Swaab partner Michael Byrnes said that while ​“the cus­tomer is always right” generally informs the way in which employ­ers expect their staff to treat the pub­lic. When cus­tomers become hos­tile or abu­sive, employ­ers need to sup­port their staff and take active steps to pro­tect the health and safe­ty of workers. This applies equally for law firms and their clients.

Employers will need to have a duty of care to provide a safe working environment for staff, “so far as is reasonably practicable”. 

Mr Byrnes said that businesses and law firms will need to stay alert and always have a clear and consistent approach as to when masks will be mandatory, advisable or where it is not considered necessary once the mandate sets in.

“Be consistent in the application of that approach,” Mr Byrnes said. “Carefully explain why a mask is considered necessary in those circumstances where it is.”

Furthermore, employers should clearly and respectfully communicate the approach in relation to masks to staff. Employers should seek to engage rather than dictate but be firm where necessary, according to Mr Byrnes.

If an employer considers face masks necessary to protect workers, they can lawfully direct employees to wear them.

“Consult with staff about use of masks and address any legitimate concerns or issues (in particular any medical or disability issues which might create difficulties for some to wear them),” he said.

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Once the deadline hits, employers will need to fully understand the legal rights and obligations of both employer and employees when it comes to masks. 

“Give short shrift to bizarre, vague ‘conscientious objector’ type arguments (which hopefully won’t be raised in a legal environment!) although care needs to be taken not to victimise an employee who raises a complaint or enquiry about wearing a mask, even if the employee’s underlying argument is lacking in merit or even rationality,” Mr Byrnes added.

“Put the issue on the agenda so that colleagues are aware of what they need to do when visiting or dealing with particular clients and don’t feel surprised or ambushed. Find out what is required or expected from clients, particularly when visiting their premises.”

If employ­ers of staff are con­front­ed by anti-mask activists, they should reflect upon their legal oblig­a­tions to pro­tect the health and safe­ty of those employ­ees. Two sources of such oblig­a­tions are the Work Health and Safe­ty Act 2011 (NSW) (WHS Act) and the Fair Work Act 2009 (Cth) (Fair Work Act).

Mr Byrnes said that giv­en their appar­ent propen­si­ty to film and upload abu­sive con­tent, which can lead to sec­ondary online abuse from sym­pa­this­ers, anti-mask activists cur­rent­ly pose a height­ened risk. 

“There is also a per­for­ma­tive aspect to the process, with the objec­tors often film­ing staff and then upload­ing the result­ing video to social media accounts where like-mind­ed peo­ple coa­lesce, share the con­tent and fer­ment out­rage,” Mr Byrnes said.