Employers call for leadership to navigate vaccination workplace minefield

Employers don’t want to take a prickly decision alone. Picture: Getty Images

Businesses large and small will be blundering through a minefield of liability if the chief health officers in the states and territories do not order clear and consistent rules around COVID vaccination in the workforce.

Even then, employers will need to tread very carefully.

“Put the government’s industrial relations issues to one side,” says Industry Australia Group chief Innes Willox.

“This is going to be the workplace relations issue of the year without a doubt.”

The work health and safety guidelines released on Friday on employer obligations in relation to COVID vaccines by Safe Work Australia give little comfort. For example, employers may have to pay out workers’ compensation if employees contract COVID in their workplace. Yet mandating workers to be vaccinated brings liability risk to businesses. And requiring visitors or customers to bring proof of vaccination may give rise to privacy and discrimination issues.

The federal government has made vaccination voluntary. While frontline health workers or those in aged care are required to get the flu vaccine, the COVID vaccination remains voluntary.

The bottom line for employers, says Willox, is that they have to provide a safe and healthy workplace. There is little point in making vaccination mandatory within the workplace because that’s not the government’s position. “It’s going to be very messy as we roll through this because there is enough people out there that are vaccine wary, plus the anti-vaxxers. It will definitely get tested within workplaces. In law it comes back to the reasonableness test. Is it reasonable to demand of an employee that they get vaccinated? In the end that’s going to be the determination of the courts.”

So where does this leave a truckie operating interstate? Should such a potential super spreader be required to take the vaccine?

Business Council of Australia CEO Jennifer Westacott is very concerned. She says employers cannot be left to fight the issue. That call needs to be made by the state chief medical officers.

“It has got to be risk-based and consistent and through a public health order. It can’t be business that makes that call and then suddenly you’ve got a dispute before the Fair Work Commission or the Fair Work Ombudsman.”

Unusually, unions and business share a lot of common ground. The majority of union members are pro-vaccine. CFMEU national secretary Dave Noonan says the union will be guided by the relevant health authorities.

“At the sharp edge of it, is the union going to come out and say everybody in every state has to be vaccinated or we’ll shut the site down? No, that’s not where we are at. It’s dangerous if the union or individual employers or employer groups take the attitude of, we know best, and we will try and dictate outcomes in the whole issue of COVID safety.”

In such a divisive debate, Noonan stresses that he too is looking to the health officers for advice.

“I’m pro-vaccination. I’ve got parents that could remember the polio epidemic. Someone I saw on social media after that protest rally on Saturday posted ‘oh that’s funny I see none of those people have got polio, not one of them’. But everyone knows people with other views.”

The problem for businesses, left with the bulk of the WHS risk, is that the state chief medical officers may not agree on a national policy.

“There are already signs that the states are going to wander off and do things in their own way,” says Willox.

An immediate problem for employers is the hands-on management of workers.

“You will have people who say they aren’t coming to work unless they get vaccinated,” Willox explains, “or people who say well I don’t want to get vaccinated but still want to turn up to work. Can you compel someone to work from home? That’s not going to work in a lot of cases.

“We are going to have to work through those tricky scenarios of people actively refusing duties,” agrees AWU national secretary Dan Walton. “If they are doing so because they are actively concerned about the health and safety. On the flip side, same can be applied to those refusing to get vaccinated.”

Despite reservations, Jennifer Westacott believes it is vital that the vaccine rollout moves on and that problems are solved along the way. “We’ve got to parallel-track, out to October and then we’ve got to problem-solve these issues.

“But anything that delays the progression of the rollout, you could be in the absurd situation that you’re finding something out and October comes and goes.”

Dan Walton agrees and is optimistic that as the rollout progresses, confidence in the vaccine will grow. He also sees no reason for businesses needing to require vaccines, particularly as companies risk wearing the consequences.

“We’ve already had conversations with some companies who are trying to state they are going to mandate vaccination across the board. We don’t think that is a sensible approach. It’s not going to instil confidence in the workforce or the broader population and it doesn’t seem to be in line with the expert medical advice.”

Most businesses do not want to mandate the vaccine, according to Jennifer Westacott, but she says Qantas is a special case.

“It just seems incongruous to say we are going to have a high integrity quarantine system and then not allow an airline to mandate for international crews and those with contact with international passengers.”

One clear risk for business is workers’ compensation claims for COVID sickness.

Employees cannot claim compensation for catching the flu at work, but they can for COVID. Dan Walton supports this.

“It is very different to whether you get the flu or you picked up gastro from your local dodgy Chinese restaurant. With testing available and work scientists are doing, we know who has passed on to who and at what point, and that changes the ball game dramatically.”

This new ball game is precisely why Jennifer Westacott argues that business is now taking unacceptable risk in the COVID minefield.

“This is the area that I think some serious work between government state, federal and business has to happen very quickly. If someone refuses to have the vaccine in a sector that is deemed to require it, then the employer should have their liability removed.”