Mandatory Vaccinations at the Workplace

The subject of mandatory workplace vaccinations is clearly a major issue of discussion at present. The Prime Minister and State Premiers constantly reinforce at each daily press conference the importance of increasing the vaccination rate to reduce transmission and return business and households a more pre-COVID-19 existence.

I’ve recently heard the PM praise SPC for implementing mandatory vaccinations of staff at their workplace. In the case of SPC, they have provided paid vaccination leave plus 2 days of special leave if employees are unwell in the recovery process of the vaccination.

I’ve also heard the NSW Premier recently congratulate Qantas on their willingness to mandate vaccinations for all staff if they want to continue in their roles.

In the case of Qantas, front line workers like cabin crew, pilots and airport workers will need to be fully vaccinated by 15 November 2021 and the remainder of employees by 31 March 2022. Qantas said their policy was not only intended to protect the Qantas workforce but safeguard the communities they encounter while conducting their business.

I note that Qantas have said that exemptions for employees who have a documented medical reason for why they can’t be vaccinated will be available, but they believe these cases with be rare. In the case of Qantas employees, only 4% said they were unwilling to get vaccinated.

The difficulty at present is neither tier of government has really clarified whether the employer right exists to making such policies or whether it is a legal overstepping of the mark with potentially serious litigation ramifications.

The TTIA supports the position of many other key business groups urging more extensive public health orders to provide greater legal certainty for employers to require vaccination. This would ensure that an industry-wide policy to require vaccinations would not breach legislation.

The Assistant Attorney General Amanda Stocker recently said she did not think business had the right to demand their staff to get vaccinated and “in general it needs to be the case that people are making the decision for themselves”. Further Senator Stoker said, “The individual has the right to choose what works for them”

At a recent federal government roundtable of stakeholders, the government’s message from a federal standpoint was that vaccination was free and voluntary unless a state or territory public health order is in place, but employers are free to institute their own policies. I would add to this – after the company has sought advice and done their own due diligence.

The SPC decision to mandate Covid vaccinations will likely be a test case for employers outside the health and childcare sectors. I note in this case unions are already pushing back arguing lack of consultation among other grievances.

Even Safe Work Australia have stated that “It is unlikely that a requirement for workers to be vaccinated will be reasonably practicable”.

Instead, there have been statements made that each case being examined on its merits, the assertion that employers should seek legal advice and finally it is still the individual’s right to say no to mandatory jabs.

With this background of minimal legal protection from the various layers of government, what actual guide do employers have at their disposal?

This month the Fair Work Commission (FWO) updated advice urging employers to “exercise caution if there considering making COVID-19 vaccinations mandatory in their workplace and get their own legal advice” noting that the legal basis will be determined on a case by case basis. Translation – a muddied situation and a lawyer’s picnic!

Factors that influence the reasonableness of a direction include; the nature of the workplace, community transmission, the effectiveness of vaccines, employer’s circumstances, employee’s reason for refusing, and vaccine availability.

The FWO declared it was “more likely” to be reasonable to require vaccinations for tier one work, where staff are in contact with people at risk from coronavirus, such as airline workers, or in tier two, where they work with vulnerable people, such as aged care.

Tier three work, where there is interaction with the public, may allow employers to require vaccination, but this is more likely if there is community transmission.

Tier four work with minimal face-to-face interaction is unlikely to allow employers to direct their staff to be vaccinated. This may include employees who work from the home office.

The Minister for Industrial Relations Michaela Cash recently said to encourage a larger take up of the vaccine, “employers should work closely with employees when it comes to a vaccination policy”. The Minister noted that co-operation was critical, and that each business should seek their own advice before mandating for their workforce.

So where does that leave employers in the timber and timber products industry? Well, individual employers in our industry must seek legal advice on their own individual circumstances, consult their workforce and consider feedback and the basis of any objections. Consider the 4 tier guidelines issued by FWO, even though they don’t provide full clarity.

Finally, it also means if employers don’t want to raise their head above the parapet on such a potentially difficult issue, the main hope is that in time, state governments and territories make hard decisions and clarify the situation on mandatory vaccinations with their public health orders sooner rather than later.