Raise the Bar Hospitality Union Submission on COVID-19 Vaccination Issues

The following document summarises the views of Members of the Raise the Bar Hospitality Union, following consultation conducted via a Zoom Event with our Members on Friday 8 October 2021. Consultation looked specifically at the issues of mandatory vaccination of hospitality workers and the introduction of mandatory vaccine certificates for customers to present upon entry to hospitality venues and businesses. Our views and recommendations are outlined below.

Our contact details are provided at the end of this document. We are always available to discuss these matters further. 

Vaccination of workers and suppliers

  1. The Government should introduce an order requiring hospitality workers to be vaccinated.

Raise the Bar Hospitality Union (“RBHU”) supports a Government order introducing mandatory vaccinations for all hospitality staff in New Zealand, while allowing for the safe redeployment options for unvaccinated workers where available and including a limited exception where those with medical exemptions from having the vaccine can retain their employment. 

While mandatory vaccination was not a universally-held view amongst our Union Members, the overall perspective was that hospitality workers expect to work in a healthy and safe environment, and mandatory vaccinations is considered to be a key cornerstone of a safe work environment as Aotearoa proceeds with a suppression strategy of COVID-19. Without very high vaccination rates, the risk to hospitality workers is grave, and the economic consequences to the hospitality industry are severe. For these reasons, hospitality workers are prepared to accept a mandatory vaccination order as part of the toolkit for ensuring high vaccination rates.

Customers are aware of the higher risks associated with hospitality venues. We believe that customers expect hospitality venues to run safely, and will be more open to engaging with venues if the Government clearly mandates the use of vaccinations amongst hospitality workers.

Generally, our Union Members are telling us that mandatory vaccinations should be extended to all workers in the hospitality industry, not just those with customer-facing roles. Back-of-house staff may even face a greater risk than front-of-house staff in some venues, as they are expected to handle and clean used cutlery and dishes.

We recommend that this order is introduced in a gradual manner, starting with high-risk venues, and gradually extended to lower-risk venues throughout the following months. 

We also believe that employees of food suppliers to hospitality venues should be required to be vaccinated. Employees of food suppliers have regular interaction with hospitality workers and there is a real risk of COVID-19 transmission through the handling of goods. 

  1. The order should not circumvent the procedural requirements of employment law.

We submit that an order for mandatory vaccinations throughout the hospitality industry should not empower employers to circumvent the procedural requirements of employment law. Where necessary, employers should follow the elements of due process necessary for a fair and reasonable restructure and redundancy process. In particular, where an employer can safely redeploy a non-vaccinated worker to a role without any face-to-face contact with other staff or customers, this option should be open under any Government order. In our view, priority should be given to non-vaccinated workers who have a medical basis for their refusal to vaccinate; we believe that the “fair and reasonable employer” test from the Employment Relations Act 2000 aligns with this approach.

Our main concern with a Government order introducing mandatory vaccinations arises from a general lack of understanding amongst hospitality employers in terms of due process. Unlike the existing public health orders, we hope that the Government can promote the importance of good faith consultation with staff by expressly requiring good faith consultation as part of any Government order mandating vaccination for hospitality workers. As Aotearoa has lots of small-to-medium business owners, there is a gap in terms of employment law knowledge, particularly in the hospitality sector. As part of the wider campaign around this order, messaging from the Government needs to continually remind employers to follow employment law and ensure that they know their legal obligations to employees. 

Induction and education tools should be provided to hospitality employers to ensure that they understand their legal obligations around any Government order, including their health and safety obligations. Additional resources should be made available to assist employers with the restructure, redeployment, and redundancy processes, including extra allocation of staffing to query-response roles in Employment New Zealand. We would also like the Government to promote and provide education for employers around vaccine information, so that employers can engage in these discussions with their workers from an informed basis. 

To assist with overall employment law compliance, we believe that the statutory construction of any order could be more simplified in comparison with the approach taken for the existing public health orders. Rules should also be introduced with more clarity and direction for hospitality employers in terms of process.

  1. Accessible and enforceable rights to retaining employment should be available for non-vaccinated workers exempt from the vaccine on medical grounds.

Where a hospitality worker has an exemption from having the vaccine on medical grounds, we do not consider that they should be permanently prevented from working in the hospitality industry. These workers likely represent a sparse minority of hospitality workers, so their non-vaccination status is unlikely to have an impact on the spread of COVID-19. The insignificant societal benefit to a mandatory vaccination order without exemptions is outweighed by the severe consequences for a worker who cannot pursue their chosen career. Workers with medical reasons for non-vaccination should not be shunned from society. 

However, we expect that employers would discuss in good faith with these workers and explore redeployment to non-customer-facing roles where possible, including possible offsite roles for these workers, and that employers would ensure that non-vaccinated workers are not working alongside immunocompromised workers. Any Government campaign on the mandatory vaccination of hospitality workers should emphasise these key messages.

Currently, where someone has a legitimate reason for not taking the vaccination (whether this is medical, religious, or cultural), the employer must write to the Minister of COVID-19 Response to obtain approval to retain this worker. This does not reflect an accessible pathway for challenging the application of the order, undercutting a worker’s genuine rights to challenge an employer’s decision to make them redundant. The Employment Relations Authority is also facing a significant backlog of cases, undermining its potential role as an accessible pathway for challenge. In these circumstances, we believe that good faith negotiation and mediation processes with employers are the most accessible tool available to employees to enforce their rights. Additional Government funding for Community Law Centres o Aotearoa and Raise the Bar Hospitality Union will assist these vital services to provide professional advocacy and support for these workers.

  1. The Government should provide immediate, targeted financial support for hospitality workers who have been made redundant.

The Government should ensure that immediate hardship support is available to workers made redundant, as we anticipate an extreme demand for the standard Work and Income financial support tools. The Order could include the mandatory provision of redundancy compensation in order to enable workers to continue to meet urgent financial needs while waiting for Work and Income applications to be processed. This could be set at two weeks of ordinary wages. 

  1. The Government should promote the use of incentives to encourage vaccination.

In the weeks before a mandatory vaccination order becomes law, incentives should be provided to encourage vaccination take-up by workers in the hospitality industry. This could include financial incentives, employers providing time-off-in-lieu equivalent to one shift for workers to receive the vaccine, and penalty rates. Any Government campaign on the mandatory vaccination of hospitality workers should promote these strategies.

Vaccine Certificates

  1. The Government should introduce mandatory Vaccine Certificates to enter hospitality businesses/venues. 

Raise the Bar Hospitality Union strongly supports the introduction of mandatory Vaccine Certificates to enter hospitality businesses/venues. The Members we consulted unanimously agreed that Vaccine Certificates should be enforced within the hospitality industry for customers entering their venues, with exceptions for those who are unable to get the vaccine (currently, children aged 11-years-old or younger, and those with health conditions preventing them from getting the vaccine).

Historically, the health, safety, and wellbeing of hospitality workers within the workplace has not been a priority for hospitality employers, who routinely fail to engage in workplace inductions, such as Health and Safety Inductions. As such, the industry has the highest rates of complaints to the Labour Inspectorate at 33% of all complaints coming from our industry. As hospitality workers, we often struggle to gain support from our employers or those who hold positions of power within our workplaces when we are experiencing harassment or unfair treatment from customers. Mandating Vaccine Certificates at a governmental level would result in hospitality workers having more power in their workplaces if their employers failed to follow this directive.

On the back of this, our Members had many concerns that if Vaccine Certificates when entering hospitality venues was not governmentally-enforced, we would face increased abuse and harassment from customers and higher risks of exposure to COVID-19 than other industries. Our Members noted that we already face disproportionate levels of harassment and abuse compared to other industries, like the retail sector. This is especially common when we cut customers off from alcohol who are too intoxicated or behaving in other ways that risk our health and safety in the workplace. For these reasons, hospitality workers are prepared to accept mandatory Vaccine Certificates for customers as part of the toolkit for ensuring safer workplaces where their wellbeing is taken seriously. As one of our Members noted:

“People shouldn’t risk their lives for turning up to work just because a customer doesn’t want to show their Vaccine Certificate”.

  1. The order and directives should be mandatory and in plain and easily accessible language.

This mandate needs to be clearly set out by the Government in plain language. This is because the vast majority of hospitality employers have little understanding of their current legal obligations to their workers as detailed in the Employment Relations Act 2000. Historically, hospitality employers have even failed to understand their good faith obligations owed to their workers, which has resulted in epidemic levels of health and safety issues and exploitation in the industry. As such, any use of Vaccine Certificates in the industry needs to be clearly mandated and set out by the Government. As part of this, the Government should provide employers with a “best practice” step-by-step approach for supporting their workers through these changes.

This should include a wrap-around educational approach as follows:

  • The Government directive should clearly set out steps that employers must legally engage in, such as inductions to educate staff on the rules around Vaccine Certificate mandates and the processes and procedures employees can engage in when customers refuse to produce Vaccine Certificates.
  • Vaccine Certificate directives need to be clearly set out in plain language and must be easily accessible on Government websites such as Employment New Zealand and the Ministry of Business, Innovation and Employment.
  • Alcohol-serving hospitality businesses already have to display who the Duty Manager is and comply with liquor licensing laws. These laws effectively mitigate alcohol-related harm (to an extent). As such, it makes sense that hospitality businesses should be required to visually display clear health and safety directives regarding Vaccine Certificates. Workers can point to this if any customers have issues with presenting a Vaccine Certificate.

The Members we consulted agreed that if the Government backs mandatory Vaccine Certificates as opposed to relying on hospitality employers to “do the right thing”, it will change the behaviour of our customers, especially if the focus is on keeping hospitality workers safe and alive to see their next birthdays. 

  1. The order and directives should focus on the wairua and the uplifting of hospitality workers’ mana. 

We believe that the messaging around mandating Vaccine Certificates is key. The focus should be on keeping hospitality workers safe. COVID-19 is an opportunity to create more public awareness about our working conditions in the industry. Our employers do not always take our health and safety seriously, but as customers, you can protect us by getting vaccinated and being prepared to show your Vaccine Certificate upon entry. One of our Members summarises our position:

“Promote vaccination certificates as a way to be kind and do something positive for hospitality workers.”

  1. The Government should support extra measures to keep hospitality workers safe during the COVID-19 pandemic.

Globally, service and hospitality workers have faced increased harassment and violence from customers when attempting to enforce mask mandates and other health and safety measures during the global COVID-19 pandemic. We expect that if Vaccine Certificates are mandatory when entering hospitality venues, some customers will be resistant and will engage in abusive behaviour in response. As such, we recommend the use of extra security personnel during the initial stages of the Vaccine Certificate mandate, with the Government offering extra financial support to businesses to secure additional security personnel. This should be targeted to alcohol-serving hospitality businesses in particular.

Thank you for taking the time to read our submission. You are encouraged to contact us further to engage in additional consultation on these or other issues.

Ngā mihi,

Chloe Ann-King

Union Leader

Raise the Bar Hospitality Union

Phone: 022 384 1173

Email: [email protected]

Web: raisethebar.net.nz