Many workplaces are on solid legal ground to demand a workplace jab

Bosses and unions are struggling with the complex issue of mandatory workplace Covid vaccinations. But can they force workers to get one?

Victorian workers required to get a Covid vaccine under public health orders will not be able to fall back on unfair dismissal laws if they are sacked for refusing to comply, workplace lawyers say.

While employment lawyers have warned businesses mandating a jab could run afoul of unfair dismissal laws, the ability to launch such an action by aged care or construction workers has all but been shut off given the requirement has been made via a government issued public health order.

Employers and unions are grappling with the complex issue of mandatory vaccinations, weighing up competing interests and legal requirements around keeping staff and customers safe, individual choice and privacy.

The federal government’s position remains that vaccines should be free and voluntary, arguing the issue is a matter for individual businesses, taking into account workplace safety, anti-discrimination and privacy laws.

Qantas has introduced a mandatory Covid vaccination policy.

It has, however, decreed certain employees such as those working in aged care or quarantine will need to be vaccinated and state health agencies have issued corresponding public health orders.

The Victorian government has also included the construction sector.

Hall and Wilcox employment lawyer Fay Calderone said this was the most legally robust method to mandate workplace jabs and provided the best protection for bosses.

The only credible reason a worker in one of these industries had to refuse a vaccination was if they held a medical exemption, she said.

“If the employee doesn’t have an approved exemption to the public health orders and the employer cannot accommodate the employee – by working from home for example – then they may proceed with termination of employment,” she said.

HopgoodGanim Lawyers workplace lawyer Andrew Tobin said while he would not be surprised to see unfair dismissal claims launched by aged care and construction workers, he did not believe they had a chance of being successful.

“When it is mandated under a public health order it’s pretty black and white – if you don’t have a valid exemption, your case would fail,” he said.

Staff including those working in aged care or quarantine will need to be vaccinated. Picture: David Crosling

For workplaces not included in public health orders, the Fair Work Ombudsman has said employers could direct workers to get vaccinated if it was “reasonable” for health and safety.

It has drawn up a four-tier workplace hierarchy.

Mandatory vaccine orders for workers in Tier 1 and 2 workplaces – those where employees have a high risk of interacting with Covid or working with people susceptible to Covid – are likely to be reasonable.

Tier 3 workplaces cover those with public interaction, such as retail, while Tier 4 covers offices and employees working from home.

Lawyers say mandatory vaccinations orders under these tiers are more contested but businesses that have staff interacting with each other, or with the public, are likely to be on safe ground mandating a jab.

Mr Tobin said much would turn on the idea of what a reasonable request was, with that likely to be decided by things such as the amount of social distancing possible or whether the employee could be redeployed or work from home.

He noted an early childcare worker lost her unfair dismissal case earlier this year after failing to get an influenza shot.

“There will be some exemptions but the tide is well and truly against objectors,” he said.

Mandatory vaccination for the construction industry sparks a massive protest in Melbourne. Picture: David Geraghty