More trouble ahead for restaurants

29th September 2021 | Alison Turner

Freedom is on its way for NSW and Victorian residents. Fully vaccinated people in NSW will be allowed access to pubs, restaurants, gyms and hairdressers from Monday, October 11. Restrictions are also expected to be eased for Victorians from October 26. This is certainly welcome news for our hospitality sector, which has been pushed to the brink over the past 18 months. But there is still more trouble ahead for restaurants. And it’s all about vaccines.

More trouble ahead for restaurants: chef Neil Perry
Chef Neil Perry was all set to open his new restaurant in late June, when the latest lockdown began.

Release the trolls

High-profile chefs have been targeted online by anti-vaxxers after announcing they would be welcoming double-dosed patrons to their establishments. Abusive messages, one-star reviews, calls for boycotts and accusations of “discrimination” and “tyranny” have left many restaurateurs fearing for their safety and the safety of their staff. This is despite the fact that the restaurants are merely abiding by the laws that have been set by the government. Any restaurant found to be serving unvaccinated customers can be fined.

“It’s so silly,” says Neil Perry, who is due to open his highly anticipated Double Bay restaurant Margaret next month, and who was one of the main targets of this online abuse, along with Aria’s Matt Moran. “I think that sometimes people are a little bit ignorant. Other times they’re just keyboard warriors looking for followers. They’re just trolls.

“Australia has been incredibly compliant. Most kids have rubella, mumps and measles vaccines. I’ve got a smallpox scar, because that was a thing back in the day. Women have a cervical cancer vaccine now. We have a polio vaccine; you get a tetanus shot if you scratch yourself with a rusty nail. I’d be very surprised if we didn’t get up to 95 percent vaccinated in three months, if not two. So I do think it’s just a small group of people carrying on.”

More trouble ahead for restaurants
Most Australians support the temporary law to exclude the unvaccinated from places like restaurants.

A step in the right direction

According to the Melbourne Institute’s Taking the Pulse of the Nation survey, almost 70 percent of Australians agree that unvaccinated people should be excluded from participating in certain activities, such as eating at restaurants. However, one in four Australians disagree with businesses having the right to deny service to the unvaccinated. Not surprisingly, the majority of those who disagree are hesitant about the vaccine.

Perry says he understands the anger that’s been directed towards his industry. It has caused an ugly division in society, with some people allowed to do pleasurable things like eat out at a fancy restaurant, while those who refuse the vaccine are shut out.

“But we’ve got to restart the economy, and we’ve got to restart it safely,” he says. “If we keep getting vaccinated at this rate, within a few months, everybody will be mingling again. We’ll be talking about opening the borders up. And that, to me, is the true freedom.

“This is just a step in the right direction of opening the economy up. And the safest way to do that is around a temporary health order that allows vaccinated staff to serve vaccinated people. And then hopefully, it doesn’t get out of control. If everybody was allowed to mingle at 70 percent, we’d be exactly where the UK is, back in the weeds again.”

NSW and Victorian restaurants to reopen
Restaurants have always had the right to refuse service for non-discriminatory reasons.

Is it discrimination?

While anti-vaxxers might claim that being excluded from restaurants is discrimination, this is not the case. All private businesses have the right to refuse service for legitimate reasons. The “no shirt, no shoes, no service” rule is probably one of the best known. It’s only discrimination if you refuse service to a customer based on certain attributes, including race, gender, sexual orientation and disability. These are what’s known as protected attributes. Non-vaccination is not a protected attribute.

From when NSW restaurants reopen in October through to December 1, serving an unvaccinated person will be against the law, just as it’s against the law for a bar to serve alcohol to a 12-year-old child. After December 1, it will be left up to individual NSW businesses whether or not they accept unvaccinated customers.

While the law is clear on serving the unvaccinated, it’s less clear on employers requiring staff to be vaccinated, or whether employers can ask for proof of vaccination from staff.

“The issue is really under the industrial relations law,” Perry says. “There’s not really any protection. It’s a grey area, and I expect there’s going to be a fair bit of stuff tested in the courts over the coming months. But you have a responsibility to your staff under the Industrial Relations Act to look after them and keep them in a healthy environment. To protect them from things like sexual harassment, bullying and, importantly, COVID-19.”

A vaccine mandate for Victorian construction workers set off days of anti-vax protests.

Vaccine mandates: opening up a can of worms

A recent survey by Restaurant & Catering Australia, the peak industry body for more than 47,000 Australian cafes, restaurants and catering businesses, found that 63 percent of business owners want the power to make vaccinations mandatory for workers. But doing something like this is not as simple as sending out an all-staff memo.

While public health orders have been enacted that require mandatory vaccination in industries such as residential aged care and hotel quarantine, state and federal governments have thus far refused to enforce such orders for sectors like hospitality.

The Fair Work Ombudsman updated the COVID-19 vaccination workplace rights and obligations last week. Under these guidelines, employers can only make vaccination mandatory if there’s a specific law, like a public health order; if it’s permitted by an enterprise agreement or contract; or if “it would be lawful and reasonable” for employers to make vaccination mandatory. This would have to be assessed on a “case by case” basis.

Introducing staff vaccine mandates could open up a whole can of legal and ethical worms for businesses already strapped for cash. That’s not to mention the backlash that would result from the anti-vaxxer brigade. You only have to look at the fallout from the vaccine mandate for Victorian construction workers to see what trouble could occur.

Despite this, Victorian Premier Daniel Andrews has said that vaccine mandates will “probably” be introduced for businesses taking part in a two-week trial in October that aims to determine how vaccine passports could be rolled out across the state.

More trouble ahead for restaurants: who should enforce the rules?
Staff are worried about abuse from unvaccinated patrons being turned away.

Who should enforce the rules?

For restaurant employees, there are concerns about staff being expected to check people’s vaccination status. For instance, how can young waitstaff enforce such a rule? And how are they expected to deal with abuse directed at them by angry non-compliant customers?

Karma Lord, United Workers Union director for Hospo Voice, the union for hospitality workers, says the hospitality industry is extremely high risk, with numerous staff infected.

“Most hospitality workers realise vaccinations are the only path to a COVID-safe workplace and a sustainable industry,” she says. “But our members are also very worried about the difficult situations that will arise as the industry reopens. What is the plan to ensure it’s not left to 16-year-old hospo staff to tell unvaccinated patrons they can’t enter a venue?”

As the industry prepares to reopen, Lord says it’s vital that governments ensure there are clear rules about whose job it is to check patrons’ vaccination status, and that the proper training and support is provided to staff who are required to enforce the rules.

“There should also be bigger penalties for bosses who put workers in unsafe situations and don’t follow the rules about patrons’ vaccination status,” she says.

More trouble ahead for restaurants: some businesses say they will serve unvaccinated customers
Restaurants are ready to open. Those who flout the law could cause another lockdown.

The defiant few

Some businesses have publicly stated that they will be serving unvaccinated people. Some say they can’t afford to turn customers away, while others say they don’t want to discriminate against the unvaccinated. But by doing so, these businesses are leading themselves into a whole world of trouble that could end up costing them dearly.

“Businesses that are purposely stating they will breach public health orders requiring vaccination are opening themselves up to a myriad of liability,” says Wes Lambert, CEO of Restaurant & Catering Australia. “This includes workers comp for any employee that catches COVID. For breaches of the public health order for themselves and their staff. For any general liability if any staff or patrons catch COVID and have severe illness from it. And all litigation that may arise from that by publicly advertising their breaching of the law.”

Perry says that serving the unvaccinated before the majority of the population has been double dosed could also set back our progression out of restrictions even further.

“People who say that they’ll just go hell for leather and open for anybody, they’re not thinking about the long-term consequences of their actions,” he says. “If they all have parties of 60 people, and then they all end up with COVID, all of a sudden we’ve got 10,000 cases. So if they want to be part of a long-term problem, and they have to shut us down again, I hope the law is strong enough that they put those people in jail.

“We’ve got one chance to get this right; more than anywhere else in the world. So let’s do that. Let’s not become Israel or London. Let’s be New York, not Miami. That’s our choice.”