11 March 2022
What are the mandates?
As the number of cases of COVID-19 are rising, so are the list of mandates handed down by the Western Australian Government.
Based on the latest health advice, mandatory proof of vaccinations were introduced for all regions throughout Western Australia; coming into effect at 6.00 am on Monday 28 February 2022.
Consequently, those persons in Western Australian are now required to show proof of their COVID-19 vaccination to enter certain venues. A list of those venues can be found here.
Food and licensed venues, cinemas, theatres, and gyms are amongst some of the venues which require patrons to be fully vaccinated. These venues often also form part of retail shops which are subject to commercial leases.
Issues may arise between landlords and tenants as to a landlord’s power to enforce mandatory vaccination requirements on both tenants and their tenant’s customers or clients. It is prudent for landlords of commercial property to consider what these vaccine mandates mean for them. For instance, do landlords have the right to enforce mandatory vaccinations on tenants? If so, does that right extend to include the tenant’s customers and clients?
Like most commercial leasing matters, the question can generally be found in the terms of the governing lease.
Do the terms of the Lease provide a safeguard?
The terms of a lease assist generally to identify the scope of the landlord’s powers and the obligations of the tenant. Currently, most leases do not address public health measures, including the vaccination status of their tenants and tenant’s customers. However, most leases require tenants to comply with all laws.
These provisions typically require a tenant to obey any law that requires them to do anything concerning the premises, the use of their premises, or the lease. For example, a tenant is ordinarily required to comply with their duties of care under occupational health and safety legislation.
By virtue of the catch-all provision, a landlord could require a tenant to comply with the mandates of the Western Australian government relating to vaccination requirements and proof of vaccination. The tenant’s inability to comply with government mandates could contemporaneously result in non-compliance with the relevant term/s of the lease. Thus, non-compliance with the term/s may amount to a breach and cause a tenant to be at risk of the lease being terminated.
Does the safeguard extend to include a tenant’s customers and clients?
Although unclear, the answer appears to be yes.
If a tenant operates a retail shop which falls within those list of venues requiring proof of vaccination, they are mandated to restrict access to only those customers and clients who meet such requirements.
According to the Western Australian government website, if a business is required to check patrons’ proof of vaccinations, their staff need to request that each patron entering the premises provides accepted proof of vaccination, including an acceptable form of identification. If a patron does not present an acceptable proof of vaccination, businesses must take reasonable steps to ensure that they do not remain at the premises. Reasonable steps could include the owner or an employee of the business asking the person to leave if they cannot show proof of vaccination. More information regarding proof of vaccinations for businesses and what they need to do can be found here.
Landlords should note that if the premises do not fall under the prescribed list of venues, then they may not be entitled to the safeguard of a general boiler-plate clause to enforce mandatory proof of vaccinations on a tenant and their customers and clients, under the scope of compliance with all laws.
Conclusion
In light of the above, we take this opportunity to reiterate the importance of reviewing the terms of commercial leases. It is likely, that within your lease, there this a safeguard for landlords’ to require not only their tenants, but also their customers and clients to comply with the proof of vaccination mandates, (subject to authorised exemptions).
Although some venues may fall outside the prescribed list, we believe given the current state of the government’s borders and the scheduled relaxing of international travel that it is likely further mandates will come into force.
If you have any questions, or wish to speak to one of our lawyers, please contact (08) 6316 2200.
For more information, please contact the authors:
Colette Davies | Principal Associate
Sinead Spencer | Solicitor
This article was also co-authored by Reid Thornett.
Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.
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