How can WA businesses manage proof of vaccination rules?

Stan:

By the time the WA border opens on February 5, we will have some of the toughest rules in the world around proof of vaccination before entering a raft of private and public facilities. Now, these new regulations will fall on business to enforce. If you’re a small to medium business, how can you prepare not only the logistically, but legally, so that your business complies and you make sure you cross all the Ts and dot all the Is? Steven Brown is a commercial lawyer and principal of Lynn & Brown Lawyers, based in Perth, and joins me. Good morning, Steven. Thanks for your time

Steven Brown:

Morning, Stan and listeners.

Stan:

Business has got two weeks to get in shape for these reforms. What should they be doing right now, today, to prepare?

Steven Brown:

Yeah, they certainly have to start preparing pretty quickly because for some of them it’s going to be a fairly significant burden upon them. Particularly, we know in Western Australia 97% of businesses are small businesses, which means they’ve got less than 20 employees. And those businesses will really struggle with having the manpower to be able to police to ensure people are double vaccinated when entering their businesses.

Stan:

So if you don’t have the manpower, what can you do?

Steven Brown:

Yeah. So some of the interesting ones are, think about some of these 24/7 gyms that don’t necessarily have any staff on site at certain times. So they’re probably going to have to look at developing a system where each of their members have to prove in advance that they’re double vaccinated, to be able to allow them to have access to the building. That’s a lot of work to do in a two week period.

Stan:

Yeah. That’s a very good example, 24-hour gyms. What about some of these small mom-and-dad businesses, where they’re simply run by two or three people? How can they even begin to manage this situation?

Steven Brown:

Yeah, exactly. Think of those small businesses, like a suburban bottle shop where in non-peak time there’s probably only one person working there. How are they going to keep an eye on the floor, do the cash register and keep an eye and check every single person that walks in through the front door? So I think what a lot of businesses are going to have to do is start developing a system and a policy now to ensure that they do that, but also speak to their overarching bodies. Because a lot of these bodies have done a lot of work already into developing policies and systems that will assist them in being able to police this.

Stan:

I wonder if there’s some merit in perhaps creating a network. Say you own a coffee shop on a strip, maybe connecting with other coffee shops or other small business, other retail outlets, maybe coming up with a collective strategy. Could there be something in that?

Steven Brown:

Yeah, there certainly could be something in that. And I think that’s where we look at some of the overarching bodies that look after certain sectors of the business landscape. They are looking at similar businesses and developing policies and systems that’ll work across the board for that type of business. But what we also are facing is … we saw when it was introduced for pubs at the start of this year, that there was also a lot of kickback from people at the doors, being questioned and required to prove double vaccination. They were complaining about having to put on security guards to police this. Most of these pub are significantly bigger than some of the small businesses that are now going to be required to check for double vaccination.

Steven Brown:

So how they’re going to deal, not just with ensuring their checking, but for those disgruntled customers that don’t want to have to prove that they’ve been double vaccinated.

Stan:

Steven Brown, my guest, commercial lawyer, principal of Lynn & Brown Lawyers in Perth, just giving some advice on how small business can prepare ahead of the Feb 5 border coming down. How serious can breaching a state health order be?

Steven Brown:

We’re talking about maximum penalties of $50,000 fines or 12 months in prison. We all know that’s the maximum and that wouldn’t be what we would expect to see in almost the majority of cases, but penalties are very significant.

Stan:

Yeah. And we saw an example of that in Perth recently.

Steven Brown:

Well, we see with the licensee of The George hotel on St Georges Terrace is now being prosecuted. The evidence that was led on the first appearance of that matter, what was suggested by the prosecutors, is that it wasn’t quite as innocent as what was initially suggested by the licensee. So it’ll be very interesting to see how that one plays out.

Stan:

You touched on it a bit, but what advice would you have for a business that is confronted with the customer refusing to comply in any way? Any, I don’t know, legal jargon or something you can chuck at them?

Steven Brown:

Well, I suppose, the first thing is that they can tell them it’s a mandate that they haven’t introduced, they’re just being required to police it. But it’s nothing that they have introduced or they’re requiring, but it has to be done. It’s something that the government has mandated. No different than making people do so many other things that we make them do in society. We make people wear seat belts when they hop in a car. We make our people wear clothes when they walk to St Georges Terrace. So there’s many things in society that we make people do and this is another one. A bit different to a lot of things, because we’re preventing certain sectors of the community from being able to access things that we wouldn’t normally do.

Stan:

Some texts coming through here. Mike Wrights, “Went to a very busy, large, new hipster coffee shop on the edge of Freo on Saturday where the one QR code was hidden behind an entry door, and therefore very few of the many patrons bothered to sign in.” That is Mike. You see other businesses, Steven, where it’s front and center. As soon as you walk in the door, there’s the QR code, there’s the sign in, it’s right there. The hand sanitizer. Almost confronting, to the point where you can’t get in without doing something with it. Maybe that’s the strategy there.

Steven Brown:

Yeah. And I think what we could also see, Stan, we could see businesses start to advertise things like, “All our staff are double vaccinated.” And we could also see other businesses that aren’t required to have double vaccinated advertise that they’re accessible for unvaccinated people. I think we could see a real divergence in the populace as this plays out.

Stan:

Tim in Neerabup, Perth, “Think and be responsible for yourselves, people, every single person. Stop expecting people to police you and inviting bureaucratic interference.” That is Tim on personal responsibility. (04) 3792 2720. As a commercial lawyer, Steven, are you expecting business to ramp up after February 5?

Steven Brown:

Look, an interesting one that we’ve been talking about is, what’s going to happen in that situation where someone doesn’t check if someone is double vaccinated? They enter their business, they pass COVID to another person in that business. They potentially have exposed themselves to a law case, for not complying with the law. Not just not complying with the law from the government, but that individual that’s then caught COVID off them may then have a shot at them for creating an environment in which they caught COVID, when they may not have otherwise.

Stan:

Yeah. That’s a fair point. That’s a fair point. Bill in St James, “It’s a horrible imposition on small business owners and staff rights.” Bill. Do you agree with Bill, Steve?

Steven Brown:

Look, I agree, it is a huge burden. But what we’ve seen in Western Australia is we’ve had some of the biggest restrictions in the world to deal with COVID and it’s helped us pretty well so far. So we see what’s going on over east at the moment, where they’ve had a lot more freedoms. I think a lot of Western Australians are wanting some of those freedoms to end and we’re going to open up on the 5th of February, which will see that. But with that greater freedom comes greater risk of a lot more COVID in the community. And I think we can’t have both. I think we’re either going to have freedom and restrictions or we’re going to have a lot more COVID in the community.

Steven Brown:

So I understand the intent behind it is to try to reduce the numbers. I think there’s been a bit of discussion on your program this morning about number of deaths over east and number of hospitalizations. What we do know in Western Australia is the hospital system hasn’t gone too well in 2021. And if we dramatically increase the number of hospitalizations, I think a lot of people have a concern for how we’ll handle it.

Stan:

Hey, Steven, thank you for your time and helping us navigate a little bit through this fog ahead of two weeks, when the border comes down. Thanks for your time.

Steven Brown:

Thank you very much, Stan.

Stan:

Steven Brown there, commercial lawyer and principal of Lynn & Brown Lawyers in Perth.