CCBR Business Review

21 B U S I N E S S T I P S COVID-19 Liability Waivers by Employees. How effective are they? Public health order restrictions are sched- uled to commence being lifted from mid- October. This will result in many employees returning to offices and for other business- es (i.e. retail and hospitality) re-opening. As a result, employers are facing the chal- lenging decision of whether to reinte- grate both vaccinated and unvaccinated employees into workplaces. These deci- sions are separate from the requirements of compliance with specific government public health orders, mandating vaccina- tion for specific industries (i.e. aged care). Because of the genuine risk of chronic illness associated with the COVID-19 virus, many employers have chosen the path of vaccine mandates. This obviously impinges upon personal rights of individuals to refuse Covid-19 vaccina- tion jabs. Many employees are not going to accept such an approach easily and resist any impact upon their employment occa- sioned by such directives. As a solution, can employers simply seek a waiver from vaccine resistant employees to avoid any impending/potential liability, were they to fall ill in the future? Firstly, what is the risk? The NSW Government has foreshad- owed October 11, 2021, as a potential date by which 70% of people over the age of 16 will be fully vaccinated against COVID-19 in NSW. The expected date of the 80% target being reached is sometime in November. Both targets, leave a signifi- cant portion of the population that have refused/neglected vaccination. Many unvaccinated workers are pre- pared to sign liability waivers provided by their employer as a means to avoid having to be vaccinated. Some employ- ers have looked at this as a compromised approach that protects them and allows the employee to continue their role. What is the effect of such a measure in reducing an employer’s duty? Default duty of employers under the Work Health & Safety Act As a starting point, employers owe a pri- mary duty of care towards their employees and their health and safety. S19 of the Work Health and Safety Act 2011 (the Act) requires that an employer must ensure, so far as is reasonably prac- ticable, the health and safety of every employee and further ensure that the health and safety of their employees are not put at risk. What’s the effectiveness of a waiver signed by an employee in protecting the employer from liability pursuant to that legislation? In short, nil. No waiver signed by an employee (even where it was done at the employee’s insistence) relieves the employ- er from their liability under the Act. S.14 of the Act states that such a duty is not ‘…transferable to another person’, i.e., an employee. Other factors? Such a waiver would have less relevance if the employee’s workmates or third parties were more likely to be infected with the COVID-19 virus if that employee was unvac- cinated rather than a vaccinated person. (If an employee signs a waiver, that does not relieve the employer (or him) from liability if the employee infects someone else.) If the vaccinated are less contagious, and the employer (and employees) have an obligation to minimise risk of serious illness being passed from one worker to the next, then vaccination becomes an important tool in that process. [Doherty Institute, ‘Doherty Modelling Report Revised 10th August 2021’, pp. 24 & 25]. Therefore, despite having a process wherein employees may waive their rights to a safe environment or liability potentially arising therefrom, the duty of care owed by the employer remains unchanged. Comparably, an employee on a construction site cannot refuse to wear a hard hat where required and continue to work on that construction site – even where they sign a waiver. Based upon the Doherty Institute Report (see above), placing unvaccinated employ- ees in contact with customers (many of which (customers) may not be vaccinated) and other unvaccinated employees, occa- sions a real risk to such customers’/co- workers’ health and safety, significantly more so than a vaccinated employee in the same role. This area is continually changing and eliciting high emotion. So, if you are an employer wrestling with this and are a little uncer- tain as to what steps to take, we can guide you through this minefield. By Warwick Ryan, Partner, Hicksons Lawyers By Troy Marchant, Director, Adviceco Chartered Accountants Earlier this year, the Morrison gov- ernment passed a new set of laws empowering the ATO to report busi- ness tax debts of more than $100,000 that are over 90 days late to credit reporting firms. This will impact a debt holder’s ability to get credit or finance on both a business and a per- sonal perspective. This is one way that the ATO plans to narrow Australia’s small business tax gap of more than $11 billion. It’s important that businesses don’t get into tax debt in the first place. Any debt needs to be carefully managed and communicated with the ATO. That being said, cashflow issues are a common symptom of the COVID pan- demic and sometimes there just isn’t the cash to pay large sums of money. We encourage small businesses to engage an accountant for profession- al support to recover your cashflow, manage the ATO and any debts you may be accumulating, and help to create a financial structure to protect your business. Tax debts are also a popular theme for scammers so it is really important to be vigilant on the topic. If you’re unsure about a tax debt payment request, you can call 1800 008 540 or your accountant to manage the pay- ment: mail@adviceco.com.au Tax debt will impact your credit rating MIND YOUR BUSINESS • Being able to segment your markets in terms of demographics and psycho- graphics. A quick question for you - would you rather buy from brand A who has adver- tised about how effective their laundry detergent is at removing stains from clothes or brand B that has no advertisements and you have zero ideas about the key features of the product? To your success and (always) Good Selling CONTINUED FROM PAGE 20 CENTRAL COAST BUSINESS REVIEW OCTOBER 2021