Posted on 31/8/2021
HR & Recruitment, Business Advisory
As Australia’s COVID-19 vaccine rollout continues to accelerate against the backdrop of rising case numbers and lockdowns across many states and territories, there is increasing debate about the power businesses have to mandate all their employees be vaccinated as soon as possible in order to continue work.
Recently, well known food products manufacturer SPC came out and declared that all employees would need to be vaccinated against COVID-19 by November and have at least booked their first dose by September 15. This move sparked a variety of reactions – while many were positive, others questioned the legality of such a move.
It is an interesting case study and yet there appears no clear answer at this stage.
Importantly, employers seeking to implement a direction regarding COVID-19 vaccinations will need to make careful note of the Fair Work Act and Fair Work Regulations and assess whether requiring employees to be vaccinated is a ‘lawful and reasonable instruction’.
Under the Fair Work Act, employees are required to comply with any direction from their employer that is lawful, meaning that it falls within the scope of their employment contract and doesn’t involve doing anything illegal.
“When determining whether a direction is reasonable, there are a range of factors that an employer will need to consider, such as the nature of the employee’s work, the terms of their contract and establish company practices and policies,” she says.
“In the current environment, there is quite a lot of tension between personal rights and privacy, anti-discrimination practices and the need to protect the health and safety of other workers, customers and suppliers. The question of what constitutes a ‘lawful and reasonable instruction’ is more important than ever.”
It is a question that was considered in the 2020 case of Kieran Knight v One Key Resources (Mining) Pty Ltd T/A One Key Resources, which found that a survey requiring employees to disclose their travel history to high-risk countries and travel plans for the next six months was a lawful and reasonable direction. The employee argued that they did not have to complete the survey on the grounds of privacy and was subsequently dismissed after repeatedly refusing to comply, at which point they filed an unfair dismissal claim. The Fair Work Commission subsequently found that the information requested was not sensitive and therefore not protected by privacy laws. As such, requiring the employee to complete the survey was considered a ‘lawful and reasonable instruction’ and the employer had a valid reason for dismissal.
However, it is important to note that the Fair Work Commission stated their decision may have been different if the survey had requested sensitive or private information about an individual’s health, which could arguably be extended to their vaccination status.
While being vaccinated against COVID-19 is voluntary for most Australians, workers in certain high-risk settings, including residential aged care, health and quarantine services are now required to get their vaccine. Equally, employers who are contracted to provide services to such facilities (e.g., security staff or cleaners in medi-hotels) must ensure their staff are vaccinated, with some businesses even providing incentives for employees willing to work in these areas.
While some, like SPC, will be willing to take the lead, employers in industries outside of these specific high-risk settings will need to assess whether it is reasonable and lawful to require that staff be vaccinated.
“In establishing whether it is lawful and reasonable to mandate vaccinations, an employer will need to demonstrate that there is a compelling argument based on a risk assessment that an employee cannot work unless they have been vaccinated,” Cecilia says.
“The present guidelines set out by Safe Work Australia tell us that, in most cases, it is not reasonably practicable for employers to mandate that their workforce get vaccinated. It can also create potential situations of unlawful discrimination if an employee has a medical condition that prevents them from receiving the vaccine.”
“Instead, it may be better to go down the route of encouraging your employees to get vaccinated. You may even consider incentivising them to get the jab, such as paying them for the time it takes to get vaccinated.”
The Morrison Government has also announced the introduction of the no-fault COVID-19 vaccine claims scheme, designed to protect businesses implementing voluntary vaccination drives in the workplace. Whilst life threatening side effects are rare, the compensation scheme provides a safety net for employers who lost more than $5,000 due to severe adverse reactions to the jab.
Vaccine hesitancy is also an issue that has become prevalent with the COVID-19 shot and, as an employer, it may be worth investing the time to explore why your employees are reluctant.
Naturally, it isn’t your role to be an expert on vaccines, but it can be useful to equip yourself with resources that can be helpful when managing employees who have engaged with misinformation or who may have anxiety about being injected with a vaccine that was developed quickly. As a starting point, there is some good information that can be found on the Department of Health website.
Cecilia says that the most important thing is communication and utilising trusted leaders in the workplace can be a good strategy to encourage greater vaccine uptake.
“Being open and honest with your staff is always a good strategy, particularly with regard to vaccinations,” she says.
“You may consider appointing ‘vaccine champions’ who are trusted by their colleagues and can lead by example, helping communicate with staff who may be hesitant or resistant to getting vaccinated.”
To assist business owners, the Federal Government has released a range of resources designed to promote vaccinations, which can be accessed here.
With a background in legal practice, Cecilia has developed strong technical expertise in all matters relating to workplace law, including awards, contracts, disciplinary matters, investigations, equal opportunity and HR policy development.
HR & Recruitment, Business Advisory
Updated August 2021 | Original article published April 2021
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