Was Bunnings right? Can businesses require customers to wear face masks? Your questions answered

Over the weekend a person walked into a Melbourne Bunnings store without a face covering.

Brandishing a camera, the wannabe customer began berating retail workers who denied them entry into the store, later posting the altercation to a private Facebook group.

The footage, since shared and viewed thousands of times on Twitter, has become the latest case study in so-called “mask rage”, as retailers across the country begin to enforce unprecedented restrictions on customers.

Wait til this Karen finds out about ‘no shoes, no shirt, no service’. pic.twitter.com/2dvLE90dOa

— cam smith (@sexenheimer) July 25, 2020

Around the world, from the United States to Europe, reports continue to flow about sometimes violent confrontations between retail workers and belligerent customers who refuse to wear masks, despite face coverings being conditions of entry.

With face coverings now mandatory in Victoria and retailers across Australia now mandating masks in their stores nationwide, it’s worth getting to bottom of what businesses can ask of their customers, and how.

Can my business require customers to wear face masks?

Short answer: yes.

There are several legal bases on which businesses can deny access to stores where customers aren’t wearing face masks.

Businesses can make face masks a condition of entry to their stores by placing a notice outlining terms for entry in their windows or doorways.

These notices operate like a contract between a business and customers who enter, meaning their enforceability comes down to the terms themselves and the signage displayed.

Under Australian Consumer Law (ACL), contract terms are able to be voided if they’re deemed unfair, particularly in cases where terms are one-sided, or cause customers to suffer financial loss and inconvenience.

Conditions of entry are only enforceable where a business can prove customers have seen and had a chance to read the terms contained within them.

That means it’s a good idea to display signage prominently, in a manner that ensures customers can’t miss notices as they enter.

Law Squared director Demetrio Zema advises businesses to place their signs out the front of their businesses.

“Business owners should place a sign at the front of their business which clearly states that people not wearing a mask, without lawful expectation will be refused entry or asked to leave, for the health and safety of other customers,” Zema tells SmartCompany.

However, “there is a list of personal reasons people may not be wearing a mask, such as being deaf or hard of hearing, or those with asthma, [and] business owners need to keep this in mind to ensure there is no discrimination on the entry”.

While the Bunnings customer cited earlier claimed the mask requirement was an unenforceable contract term on discrimination grounds, Richard Prangell of Viridian Lawyers says a requirement to wear masks is entirely legal.

“It’s entirely appropriate, and legal, for businesses to require customers to wear masks before entering their premises,” Prangell tells SmartCompany.

“The only significant exception to this is on discrimination grounds, and the most commonly cited exception I’ve heard is the prohibition against refusing entry on the basis of a genuine disability.

“The threshold for a disability, however, is reasonably high, and only includes things like loss of mental or bodily function, disease and disfigurement.

“Discomfort is not sufficient,” Prangell adds.

What about those Victorian face mask rules?

Additionally, for businesses in Victoria, it’s illegal under public health orders for anyone in metropolitan Melbourne or Mitchell Shire to leave their home without a face covering.

There are a few exceptions, such as where customers can show they’ve been diagnosed with a medical condition that impairs their ability to wear a mask.

Children under 12 are not required to wear masks, and those under two must not, because they’re a choking risk.

Some customers have already tried to undermine this rule by claiming the requirement to wear a mask contravenes their human rights, but lawyer Peter Vitale says this is quite simply wrong.

“Even if it were possible to identify exactly what human right is said to be infringed by a public health requirement to wear a mask, that legislation contemplates reasonable and justified limits being imposed on human rights,” he tells SmartCompany.

“The fringe minority popping up who claim their human rights are being infringed are, quite simply, legally wrong and have no basis for refusing to wear a mask, unless they have a medical exemption.

“In that case, the business is entitled to require the person to show the medical exemption to staff.”

Who enforces business face mask rules?

Short answer: in practice, this is murky, though technically, the police do.

The public health order is fairly definitive, although when it comes to who should enforce this order, the retail sector appears to have a different view than the state government.

Retail union the SDA has called for Victoria Police to enforce the mask rules in all retail stores across Melbourne, whereas Premier Daniel Andrews last week said retailers should be able to enforce masks in their own stores.

“Retail workers should not be required to enforce the law, that is the job of the police,” SDA national secretary Gerard Dywer said last week.

The reality here is retailers have been requiring customers to do a wide range of things for several months amid the pandemic, including in-store social distancing.

But the expectation that “mask rage” will continue to prop up in the coming weeks — as it has in other countries including the United States — is driving calls for police to take a more active role in ensuring compliance.

Technically, police are responsible for enforcing public health orders, such as those requiring face coverings in Victoria.

And sure enough, footage has emerged of customers confronting police at retail stores in recent days, seemingly after retail staff called them.

Could I get in trouble if customers don’t wear face masks?

Short answer: yes.

Under Occupational Health and Safety laws, businesses have a responsibility for the safety and wellbeing of their staff.

This includes failing to take reasonable measures to ensure staff can work safely, and that includes exposure to COVID-19.

Letting customers without masks into stores, particularly in Victoria, could expose an employer to claims they’ve not done enough to safeguard employees from the pandemic.

Vitale says businesses that permit customers to enter without masks could find themselves in hot water.

“Given the current health advice, which has been reiterated by work safe authorities, and indeed the legal requirement to wear a mask, any business which permits people to enter their premises without a mask may be committing a serious offence under OHS laws,” he says.

Prangell says businesses have a duty of care to staff and other customers.

“Businesses have a duty of care in negligence to take precautions to prevent foreseeable harm to their customers,” he says.

“I am of the belief that the risk to a business of being the source of the next coronavirus cluster is much greater than the risk posed by anti-discrimination law.”

Additionally, Australia is a signatory to several international agreements that stipulate employees have a right to safe and healthy working conditions.

These include the UN’s 2011 Protect Respect and Remedy Framework and the International Covenant on Economic, Social and Cultural Rights.

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