A leading industrial relations barrister says most employers would be able to defend mandatory vaccination policies in court, as debate over the immunisation of at-risk workers reaches a fever pitch.
While COVID-19 vaccination is already mandatory for select frontline quarantine workers and will soon be required for residential aged care staff, the federal government has taken a largely hands-off approach to private employers mandating vaccines.
In the absence of bulletproof government guidance, Prime Minister Scott Morrison has indicated businesses themselves will need to test the legality and “reasonableness” of their mandatory vaccine policies.
Australian businesses are now keenly observing the outcome of food manufacturer SPC’s recent decision to mandate jabs for staff.
SPC says its employees must book their first dose of the COVID-19 vaccine by mid-September to limit potential harm to its workforce and on-site visitors.
Unions representing its workforce say the decision was made without adequate worker consultation, ignores vaccine accessibility, and could be discriminatory to workers who cannot be vaccinated for legitimate medical reasons.
The stoush has not escalated to a full-blown legal battle.
But workplace law expert Ian Neil SC said that under current Australian law, there should be no barriers to mandatory vaccine policies which account for legitimate reasons not to be vaccinated.
“For most employers, in the case of the most employees, it will be both lawful and reasonable” to enforce mandatory vaccine policies, Neil told Business Insider Australia.
“In my mind, there are no legal obstacles to a sensible mandatory vaccination policy that takes account of the fact that there will be some people who cannot be vaccinated, either because they can’t get a vaccine that is appropriate for them, they have some underlying medical or other condition that makes vaccination unsafe for them, or they have a religious objections,” he said.
Accommodating those workers could be done by allowing them to return recent negative test results, Neil suggested.
There is some recent precedent for such measures. Construction workers from eight Greater Sydney hotspot regions are now permitted to return to work if they have received the jab, with industry players hoping to pilot rapid antigen testing for workers who recently received their first dose of the vaccine.
Employers are free to test the legal waters, Morrison says
Neil’s perspective is one of many voices in the roiling debate, which is yet to provide concrete answers for businesses pushing for workforce immunisation.
Australia has no overarching mandatory vaccine policy, but Prime Minister Scott Morrison appeared to open the door to private businesses mandating vaccines for their employees on Friday.
“An employer may wish to make a reasonable directive to staff, and if they do so, they would need to do so consistent with the law,” Morrison told reporters in Canberra.
“These are all legal positions which have to pass that reasonableness test, and they are ultimately decided by the courts,” the Prime Minister added.
“And employers need to obviously consider those matters very carefully if they’re looking to make directions of that nature.”
Morrison’s commentary alone was “not clear enough” for employers, Neil said.
“And yes, more could be done. There’s urgent need for federal or state governments to give clear guidance.”
Fair Work Ombudsman updating advice
After Morrison’s announcement, the Fair Work Ombudsman, which provides compliance advice to employers nationwide, said it was updating its guidance on mandatory vaccination schemes.
“We are currently reviewing our information and will have updated guidance on this issue soon,’ the Ombudsman said.
The Age reports Safe Work Australia is also cross-checking its advice with other government agencies.
As employers wait for that guidance, Diane Smith-Gander, chair of Safe Work Australia, suggested that hospitality businesses may have a reasonable basis for requiring workforce vaccination.
With regulatory clarity proving elusive, sectors which have stated their desire to enforce staff vaccinations are reportedly holding off on their own mandates.
In the face of lingering office closures, the international tourism drop-off, and the threat of infection in crowded workplaces, Neil said driving vaccine uptake will be pivotal.
“Vaccination is reasonably practicable, in fact, the most effective way to prevent the spread of the disease, the virus,” she said.
“What applies to wider society applies equally to employers and businesses. The same arguments.”
Fair Work Ombudsman – current advice for businesses can be found here and was updated on 12 August >>> COVID-19 vaccinations: workplace rights & obligations – Fair Work Ombudsman
The Drop is not providing any legal advice but has included the above article to outline some of the issues and current guidelines for vaccinations policies in the workplace. The opinions in this article are not written by The Drop.
Please contact your industry body to confirm advice when implementing a vaccination policy for staff and customers.