Fair Work Commission

Section 94H of the Privacy Act 1988

94H Requiring the use of COVIDSafe

1. A person commits an offence if the person requires another person to:
   1. download COVIDSafe to a communication device; or
   2. have COVIDSafe in operation on a communication device; or
   3. consent to uploading COVID app data from a communication device to the National COVIDSafe Data Store.

   Penalty: Imprisonment for 5 years or 300 penalty units, or both.

2. A person commits an offence if the person:
   1. refuses to enter into, or continue, a contract or arrangement with another person (including a contract of employment); or
   2. takes adverse action (within the meaning of the Fair Work Act 2009) against another person; or
   3. refuses to allow another person to enter:
      
      1. premises that are otherwise accessible to the public; or
      2. premises that the other person has a right to enter; or
   4. refuses to allow another person to participate in an activity; or
   5. refuses to receive goods or services from another person, or insists on providing less monetary consideration for the goods or services; or
   6. refuses to provide goods or services to another person, or insists on receiving more monetary consideration for the goods or services;

      on the ground that, or on grounds that include the ground that, the other person:

   7. has not downloaded COVIDSafe to a communication device; or
   8. does not have COVIDSafe in operation on a communication device; or
   9. has not consented to uploading COVID app data from a communication device to the National COVIDSafe Data Store.

   Penalty: Imprisonment for 5 years or 300 penalty units, or both.

3. To avoid doubt:
   1. subsection (2) is a workplace law for the purposes of the Fair Work Act 2009; and
   2. the benefit that the other person derives because of an obligation of the person under subsection (2) is a workplace right within the meaning of Part 3‑1 of that Act.

What is the protection?

An employer must not take adverse action^[1] against an employee or prospective employee, on the grounds that they:

• have not downloaded COVIDSafe to a communication device
• do not have COVIDSafe in operation on a communication device, or
• have not consented to uploading COVID app data from a communication device to the National COVIDSafe Data Store.

Are there exceptions?

There are no exceptions.

Reference