02 Mar FEBRUARY NEWSLETTER

GUIDANCE RELEASED ON EMPLOYERS MANDATING VACCINATIONS AGAINST COVID-19

With the introduction of the COVID-19 vaccine in Australia, there has been a lot of discussion around the ability employers have to be able to mandate that their employees be vaccinated. This has been a topic which employers have not had much certainty about until recently.

Media Release

On 19 February 2021, IR Minister Christian Porter released a media statement making the Governments views on mandatory vaccinations clear. 

In essence, the position is that the overwhelming majority of employers should assume they will not be able to require their employees to be vaccinated. 

Similarly, it is unlikely in the majority of circumstances that employees could refuse to come to work because, for instance, a colleague had not been vaccinated.

That being said, the statement notes that employers should be aware of any public health orders that may have been issued by relevant state and territory government health agencies that could require certain workers to be vaccinated in some high-risk industries.

The media statement can be accessed here:  https://www.attorneygeneral.gov.au/media/media-releases/guidance-released-vaccine-rollout-australian-workplaces-19-february-2021

Fair Work Ombudsman

The Fair Work Ombudsman has supported the Government’s view and provided additional details regarding the limited circumstances where an employer may require their employees to be vaccinated, whilst emphasising that whether an employer can require their employees to be vaccinated against COVID-19 is highly fact dependent, taking into account the particular workplace and each employee’s individual circumstances.

The Fair Work Ombudsman has said that relevant factors an employer should consider will include:

• whether a specific law (such as a state or territory public health law) requires an employee to be vaccinated;
• whether an enterprise agreement, other registered agreement or employment contract includes a provision about requiring vaccinations;
• if no law, agreement or employment contract applies that requires vaccination, whether it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated (which is assessed on a case by case basis).

Additional considerations may also apply, including whether employees have a legitimate reason for not being vaccinated (for example, a medical reason), and if there are protections for employees under anti-discrimination laws.

Safe Work Australia

Similar guidance to that above, is available on the Safe Work Australia website.

Safe Work Australia has also highlighted that:

• Employers have a duty to eliminate or minimise the risk of exposure to COVID-19 in the workplace. 

• The vaccine is only one part of keeping the Australian community safe and healthy.  For employers to meet their work health and safety duties and minimise the risk of exposure to COVID-19, they must continue to apply all reasonably practicable COVID-19 control measures including physical distancing, good hygiene and regular cleaning and maintenance and ensuring workers do not attend work if they are unwell.  As well as complying with any public health orders made by state and territory governments that apply to you and your workplace.

The question of whether or not mandatory vaccinations can be required to assist in managing that risk will continue to depend on health advice and will differ for different industries.

We anticipate this will continue to be an area to watch and we will keep you updated.

We recommend seeking specific advice if you are considering mandating vaccines. Please contact the team at HR Law if you require assistance.

Other Hot Topics – Consultation

• The Fair Work Commission has put forward a recommended framework for consulting about COVID-19 related proposals to Santos, AWU and the AMWU, after the AMWU and the AWU notified disputes about changes regarding Government COVID-19 guidelines and Santos’ responses. You can access our article about this here: https://www.hrlawyers.com.au/tribunal-offers-blueprint-for-covid-19-consultation/

• The Fair Work Commission also made clear the importance of consultation as required by a modern award in the recent case of Michelle Sposito v Maori Chief Hotel [2021] FWC 700 (12 February 2021).  You can access our article about this here: https://www.hrlawyers.com.au/a-reminder-on-the-importance-of-consultation/

The content of this article is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.