Defining essential work in lockdown times

By Binoy Kampmark

Monday July 19, 2021

NSW Premier Gladys Berejiklian (AAP Image/James Ross) (L) and Victorian Premier Daniel Andrews (AAP Image/James Ross) (R)
NSW Premier Gladys Berejiklian (AAP Image/James Ross) (L) and Victorian Premier Daniel Andrews (AAP Image/James Ross) (R)

The Sydney and Melbourne lockdowns (the latter is enduring its fifth) provide two, contrasting tales of public health approaches. The former has evolved in grinding fashion, pivoting upon the common-sense principle and loopholed directives; the latter has become a nationwide trademark: swift, sharp and definitive.

A central divergence in both approaches lies in the definition of what constitutes an essential service, and, it follows, an essential worker. The issue is not merely one of semantics but substance and, in a public health context, risk. To designate some work as essential and some that is not is bound to be arbitrary. As Gary Mortimer of the Queensland University of Technology describes it, “no worker should ever be considered, or consider themselves, as ‘non-essential’.”

The same goes for what an essential product or service might be. At the same time, being deemed an essential worker or a supplier of an essential product or service can come with its dangers, most notably the risk of infection.

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All countries have faced this issue in some form in responding to COVID-19, often providing culturally freighted policies. In the initial months of the pandemic, the coffee shops of The Netherlands were deemed to be providing an essential service, namely cannabis. In Belgium, French fries made the list. “Fries,” stated Bernard Lefèvre, head of Unafri, a Belgian trade group representing 4,600 friteries, “are a necessity.” In France, it was bakeries, with their products and social function. In the United States, it was gun dealerships and shops, with states within the country differing on whether such businesses were non-essential or not.

In Victoria, an extensive list of essential providers and workers is supplied to operate during “circuit breaker restrictions”. These were sharpened by the Andrews government in May this year. But getting to that list was quite a journey. On March 22, 2020, Premier Daniel Andrews demanded “a shutdown of non-essential activity” within 48 hours. He deemed banks, pharmacies and supermarkets essential, but provided no exhaustive list. Confusion reigned. Retailers were left to voluntarily close for reasons of safety.

The Victorian list, as it reads, is important in doing a few things. Firstly, it covers the provision of foodstuffs (supermarkets, grocery stores, bakers, butchers, food markets), liquor, financial services, petrol, post office, provision of health services, childcare, and school “but only to the extent that education services are provided to the child of an essential worker or to vulnerable children.” In the second instance, essential workers are those who aid the continued operation of essential providers, essential health services, emergency services amongst numerous other items.

On the issue of retail and essential work, the Andrews government also made it clear that this included those “supporting the operation of click and collect or click and deliver orders”. It took till July 17 for the NSW government to announce that restrictions would be placed upon retail shopping. Only “critical retail” would remain open. In Premier Gladys Berejiklian’s words, “anything which is regarded as non-critical will not be able to have face-to-face.” Click and collect, delivery or takeaway should be made available.

The Berejiklian government has taken its own cultural approach in lockdown. It has preferred to focus on a “reasonable approach” and one based upon “common sense”, leaving the rest to free will and choice. “To try and define essential work is really very challenging,” NSW Health Minister Brad Hazzard told the press on July 13. “An employer and their employee would know whether the worker is really essential.” To dictate what businesses should remain open or not would also be unnecessarily burdensome.

While this has the virtue of preserving discretion and autonomy for citizens, it also risks, in a public health sense, burdening and endangering them. Common sense seemed to have little sway on whether the Sydney limousine driver responsible for transporting international flight crew should have worn a mask, or be vaccinated. And common sense can suffer in the face of constantly evolving health orders.

This lack of clarity has caused its fair share of concern across the state. Shoalhaven city Mayor Amanda Findley has urged the Berejiklian government to be more specific. “It is important for NSW to give the clearest of directions and not just continue to leave things up to the goodwill of the citizens.”

Kiama MP Gareth Ward did not help things in accepting the principle that “common sense ain’t that common” by then proceeding to encourage it. In markedly circular fashion, Ward argued that the public health orders were clear enough, even if the public’s comprehension of them was not. “You have to be an essential worker. That means that you have to be travelling out of a hotspot to our area for a specific reason or your employer has looked at all other options including having people that may live in a non-locked down area doing the job that you can do.” With such reasoning, essential work is left precariously undefined.

Even at this point of the crisis, the Berejiklian government continues to stress testing and surveillance over strict and clear prescriptions. NSW has in place a surveillance testing program “for certain” workers regarding the Fairfield Local Government Area and Greater Sydney. Workers living in the Fairfield LGA must not enter or work in a local government area outside Fairfield unless they have been tested for COVID-19 “within the past 72 hours” and have “evidence of the test for inspection by their employer or a police office”.

Greater Sydney workers “must not enter premises for work that are more than 50 kilometres outside Greater Sydney unless” they have “been tested for COVID-19 in the previous days and [have] evidence of the test available for inspection by their employer or a police office”. In both instances, the injunctions apply to workers who enter non-residential premises.

At this writing, the NSW health orders are again changing. Their drafting and redrafting continues to show a deep reluctance to be specific, harsh and mandatory in favour of business sensibilities. Gradually, however, they are converging with the Victorian formula. If the Delta surge continues in Sydney, the language of common sense could well be eclipsed, if not abandoned altogether.


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