OFFSHORE ALLIANCE MEMBERS FAQs – WA RESOURCES INDUSTRY WORKER DIRECTIONS

12 November 2021

A complete version of the Resources Industry Workers (Restrictions on Access) Directions is accessible here:  https://www.wa.gov.au/sites/default/files/2021-11/211112_Resources_Industry_Worker_Restrictions_on_Access_Directions_No_2.pdf

THE INFORMATION PROVIDED BELOW IS BASED ON EXPERT ADVICE FROM SENIOR COUNSEL

 

1.Would a challenge to the Directions be successful?

Based on the advice received from senior counsel, it is extremely unlikely that the Directions would be found by a court to be unlawfully made. There have been several legal challenges to emergency measures taken in response to the COVID-19 virus in other Australian jurisdictions. None of these challenges have been successful. Senior counsel has indicated the recent judgment of the NSW Supreme Court in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 particularly indicates the chances of a successful challenge in Western Australia would be low.   

 

2. Is my workplace covered by the Directions?

Resources sites

The Directions limit access to rural or remote resources industry sites from 1 December 2021 for unvaccinated workers falling within the definition of a resources industry worker. The definition of a resources industry worker is broad and is directed at work location rather than job titles or residential, FIFO or DIDO status.

Resources sites are defined to include:

• mining operations;
• petroleum operations;
• pipeline operations;
• exploration operations;
• geothermal energy operations; and
• ancillary operations.

The Directions do not apply to resources sites located in the Metropolitan Region. This region extends from Singleton in the South to Two Rocks in the North and East to the Lakes.

Rig or platform crew members & petroleum vessel workers

The Directions limit access to rural or remote airports or State Ports from 1 December 2021 for unvaccinated workers falling within the definition of a rig or platform crewmember or a petroleum vessel worker. The directions specifically refer to FPSOs as petroleum vessels. 

Remote Operating Centres

The Directions also apply to the remote operating centres identified in Schedule 1 which are operated by Fortescue, BHP, Rio Tinto, Roy Hill, Chevron and Woodside in Perth and East Rockingham.

 

3. What can I use as evidence of vaccination?

• COVID-19 digital vaccination certificate
• Immunisation History Statement

Information from Services Australia about proof of vaccination is accessible here:

https://www.servicesaustralia.gov.au/individuals/subjects/getting-help-during-coronavirus-covid-19/covid-19-vaccinations/how-get-proof

 

4. Can my employer ask for proof of vaccination?

Yes, employers that have workers covered by the Directions can require workers to produce evidence of their vaccination status. A worker can provide either a COVID-19 digital vaccination statement or an Immunisation History Statement in response to such a request.

 

5. What can my employer do with this information?

Employers are required to maintain a record of employees’ vaccination status. Employers are required to store and handle this information in accordance with privacy legislation and principles.

Information from the Office of the Australian Information Commissioner about privacy issues associated with the COVID-19 vaccinations is accessible here:

https://www.oaic.gov.au/privacy/covid-19/covid-19-vaccinations-and-my-privacy-rights-as-an-employee

 

6. What if my employer uses this information for any other purposes?

This would breach the Public Health Orders and the employer would be liable for a $100,000 fine. The employer would also be breaching privacy laws.

 

7. Who is liable if I have an adverse reaction to a COVID-19 vaccine?

A worker that has an adverse reaction to the COVID-19 vaccine after being required to be vaccinated to perform their work duties may be entitled to claim workers’ compensation. Information from WorkCover WA about claims associated with the COVID-19 vaccines is accessible here:

https://www.workcover.wa.gov.au/wp-content/uploads/2021/10/COVID-19-Vaccine-Injuries-Bulletin-October-2021.pdf

For those employees who have a mild reaction, some employers have in place vaccine leave. If your workplace does not have this type of special leave, you can access your personal leave.

For those employees who have a severe reaction that includes a night in hospital, the Federal Government has a COVID-19 Vaccine Indemnity Scheme in place, which can be accessed here – https://www.health.gov.au/initiatives-and-programs/covid-19-vaccine-claims-scheme

The AWU has been pushing for the WA Government to include effects of a COVID-19 vaccine as part of the Workers’ Compensation and Injury Management Act to clarify the entitlements for affected workers.

 

8. What if I have a medical exemption?

A person with a genuine medical exemption is exempt from the requirements to be vaccinated.

A medical exemption means a medical exemption recorded on the Australian Immunisation Register and displayed on an individual’s immunisation history statement.     

 

9. Can I apply for a temporary exemption?

Yes, temporary exemptions can be granted when an appointment to receive a COVID-19 vaccine is booked after the deadline or when it is physically impossible for a person to attend an appointment by the deadline (for example, due to your work cycle or lack of vaccine facilities in your region).

Decisions on temporary exemptions will be considered by the Chief Health Officer on a case-by-case basis and may be subject to terms and conditions. These temporary exemptions can be for an individual, an organisation or a group of people.

 

10. Can I apply for a religious or cultural exemption?

No, there are no religious or cultural exemptions provided under the Directions.

 

11. What will happen if I have not received my first vaccination dose by 1 December 2021?

If you meet the definition of a resource industry worker, your employer will refuse you entry to site on the basis of the Directions, unless you have a temporary or medical exemption. 

If you meet the definition of a rig or platform crew member or petroleum vessel worker, in accordance with the Directions you will be refused entry to any rural or remote airport or state port that you transit through on the way to or from your workplace unless you have a temporary or medical exemption.

Workers face a fine of up to $20,000 and employers a fine of up to $100,000 for breaching the Directions.

 

12. Can I take leave?

Taking annual leave and long service leave is a workplace right and the AWU will support members where they request to use their leave. Whether or not an employer has to agree to a worker’s request to take leave will be determined by the applicable enterprise agreement, award or the National Employment Standards.

 

13. Who should I speak to about any concerns I have about my own health and well-being or potential adverse reactions to the Covid-19 vaccines? 

You should seek advice from your own General Practitioner about the effectiveness and risks associated with the COVID-19 vaccinations and any other health and well-being concerns you may have.