Small businesses worried about confrontations with unvaccinated

© Provided by ABC Health Publican Luke Tilse wants clear rules on refusing service to unvaccinated customers. (Supplied: Young St Hotel)

Newcastle publican and restaurant owner Luke Tilse is desperate to reopen his two venues when the 70 per cent double vaccination target is reached in New South Wales, but he is also apprehensive.

He knows opening in October will likely bring confrontation to his door, when his young staff have to refuse entry to people who are unvaccinated.

“I’m very excited about being open, but it’s going to be us on the frontline of the new rules that come in,” he said.

“We’re going to have 18 to 24-year-olds in the hospitality industry having to deal with a very vocal minority. So I have mixed feelings.”

The state government is working on the vaccination passports, which will link to the QR code system. When a person signs into a venue, their immunisation status will be displayed, allowing entry to those who are fully vaccinated.

The government is also working on the relevant legislation and public health order that will underpin everything, and Mr Tilse said it needed to be clear and definitive.

“It needs to say, ‘There is a law that will make me liable for this if I let you in, I therefore can’t do it, it is not an arguable point, it is not a grey area’.

“We can blame the government, blame the laws and they can move on,” he said.

“Any grey area and you’re going to have mass amounts of confrontation that is going to cause chaos, and people are going to get exhausted by it.

“Make it clear that customers need to be vaccinated and staff too.”

Is refusing unvaccinated people discriminatory?

Business lawyer Kate Thompson, a senior associate at Australian Business Lawyers and Advisors, said the looming laws had raised many legal concerns for businesses, particularly about discrimination.

In recent weeks, new groups on social media have seized on discrimination as a reason why businesses should serve everyone, jab or no jab.

But Ms Thompson said the argument didn’t really have “legal legs”.

“Discrimination is one of those areas that lots of people like to talk about, but which is not particularly well understood,” she said.

“There is no protected attribute which relates to vaccination status, in the same way we understand traditional forms of discrimination like disability, sex, or age.

“So it’s not overtly discriminatory or in contravention of any of the existing legislation to discriminate against someone for reason of their vaccination status.”

In some limited cases, there might be instances of indirect discrimination when someone had a legitimate medical reason for not getting vaccinated, Ms Thompson said.

Protections will be in place

Businesses were uncertain and concerned about their responsibilities for enforcing the vaccination rule for customers, the Hunter region’s business chamber said.

“This is uncharted, uncomfortable territory,” it said in an email to its members.

But NSW Deputy Premier John Barilaro said there would be protections in place.

“Well before we open up, we’ll be looking at legislative changes or the public health order to protect businesses in relation to liability to not allowing unvaccinated people in,” he said.

“Industry and business have led the charge here, they’ve asked for this, so we can open earlier because of the pain and the impact on the economy, jobs and on their businesses.”

Mr Barilaro said the vaccine passport and QR code system would be trialled in a regional location with high vaccination rates and low transmission levels prior to opening up.

He said businesses saying they would serve customers with or without a jab should stay closed until restrictions eased further — or face heavy fines.

“Businesses don’t have to open at 70 per cent,” he said.

“If they want to open, they open under the framework that we’ve designed and announced, and that is [for] vaccinated staff having vaccinated customers.”

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