Employers may have legal right to require staff get vaccinated

Australian employers could have the legal right to require their staff get vaccinated against Covid-19, a senior barrister has said.

Australian employers could have both a legal right and duty to require their staff get vaccinated against Covid-19, a senior barrister has said.

Former president of the Law Council of Australia and NSW Bar Association, Arthur Moses SC, told a legal conference on Friday that the importance of employers in the nation’s vaccine rollout “should not be underestimated”, The Sydney Morning Herald reports.

Mr Moses said their role was critical in the absence of Commonwealth laws mandating that Australians get the jab.

“Speaking to radio station 3AW on 19 August 2020, the Prime Minister said that his government would make the Covid-19 vaccine ‘as mandatory as you can possibly make it’,” Mr Moses said.

“Speaking to 2GB a few hours later, he said in response to a concerned caller: ‘can I be really clear to everyone? It is not going to be compulsory to have the vaccine … there are no compulsory vaccines in Australia’.”

RELATED: ‘Privileged’ Aussies refusing vaccine

Australian employers could have both a legal right and duty to require their staff get vaccinated against Covid-19. Picture: Daniel Pockett/Getty Images

Former president of the Law Council of Australia and NSW Bar Association, Arthur Moses SC said the role of employers in the rollout “should not be underestimated”. Picture: NCA NewsWire/Gaye Gerard

If the Federal Government won’t make the vaccine mandatory, Mr Moses said, with anti-vaccination sentiment still rife in the community, “the power of employers and employees’ jobs dependent on receiving a vaccination assumes importance in order to secure public health”.

As for how employers would have the legal power to mandate getting the jab, it was possible because there is “a term implied in law in every contract of employment requiring an employee to obey the ‘lawful and reasonable directions’ of their employer”.

There was “good reason to think that an employer is within its rights” to direct workers who interact with vulnerable members of the community to get vaccinated, he added.

“Obvious examples include healthcare workers, emergency service workers, transport workers and quarantine workers,” he said.

“Consider also the position of ‘fly in, fly out’ workers, who travel and live together at close quarters.”

Australia’s state and federal governments “should follow the lead of US President Joe Biden’sannouncement on Friday and require all government employees including on-site contractors to show proof of vaccination, or least attest to it”.

Mandating the vaccine would, however, become “more contestable when it comes to other types of workers”, Mr Moses explained, saying it would be difficult to enforce having the vaccine if employees work entirely remotely.

There could also be a legal duty for employers to get their staff vaccinated, he said, pointing to laws requiring businesses to ensure the healthy and safety of workers.

Vaccinating against Covid-19 is the only way for Australians to get their normal lives back, but as a nation we’re struggling.

News.com.au’s Our Best Shot campaign answers your questions about the Covid-19 vaccine rollout.

It’s fair to say the vaccine rollout has confused Australians. We’ll cut through the spin and give you clear information so you can make an informed decision.

NB Lawyers employment law expert, Jonathan Mamaril, echoed Mr Moses’ words, previously telling news.com.au that many industries will have the power to require employees to be vaccinated against the virus, so long as it is a “reasonable and lawful direction”.

“In settings like aged care, child care, health care, it is easy for them to establish a vaccine requirement because they are working closely with vulnerable groups,” he said.

“Where it gets a bit hairy is if the employee has a political, social, religious or ethical objection to getting the vaccine. It will then go back to: Is it an inherent requirement for that position?

“What a lot of people rely upon is discrimination laws. They are going to say, ‘You are forcing me to take this vaccine and I have ideals that object to that.’”

RELATED: Aussies’ support for mandatory vaccines

There could be different rules for unvaccinated versus vaccinated Australians, Prime Minister Scott Morrison first revealed on Friday. Picture: NCA NewsWire/Martin Ollman

While the Federal Government won’t be making the jab mandatory, Mr Morrison said today that if states agree to enact new public health orders, there could be very different rules for vaccinated versus unvaccinated Australians.

Doubling down on the controversial idea currently being weighed by national cabinet, the PM told Adelaide’s 5AA radio that pubs, hairdressers and even sports stadiums could soon be allowed to ask patrons to show proof of Covid vaccination as a condition of entry.

But, he stressed, it is currently illegal to ask customers their vaccination status and business owners should not put any restrictions in place until any future reforms are finalised and enacted.

“The law doesn’t allow for that, I should stress. I mean unless there’s a public health order. Just like it wouldn’t allow someone to be stopped from going to a venue. That’s my advice,” Mr Morrison said.

“But state governments can put those in place. Phase B of the plan is all about ensuring that those who have been vaccinated do get exempted from restrictions.”