SafeWork NSW’s guidelines finally provide Covid clarity to employers

The NSW declaration makes getting 80 per cent of Australians vaccinated before the end of the year an achievable task. Picture: NCA NewsWire/Joel Carrett

Qantas chief executive Alan Joyce along with chiefs of tens of thousands of businesses based in NSW now have clear guidelines in tackling the issues of vaccination in the workplace.

Qantas believe that, given airline traveller exposure in its workplaces, it would be unsafe if there was a mixture of vaccinated and unvaccinated employees. It is possible that only vaccinated people will be able to fly.

But along with other employers around Australia Qantas is facing protests, possible strikes and union attacks if it demands that all employees on its work sites be vaccinated.

Last month I set out that the best way to overcome this problem was for the state-based SafeWork/WorkSafe organisations to make a declaration on the rules that should apply in their state.

The NSW SafeWork organisation is now the first to make such a declaration and employers and employees are now awaiting for the equivalent bodies in other states to make their declarations.

Meanwhile national employers like Qantas and the banks will protest strongly if there is one set of rules in NSW and different rules elsewhere. Synchronisation in the two states with the most serious virus outbreaks, NSW and Victoria, is very important.

The NSW declaration makes Scott Morrison’s aim to get Australians 80 per cent vaccinated well before the end of the year a very achievable task providing there is sufficient vaccine available.

Meanwhile, national employers will almost certainly use the NSW standard nationally.

It comes as a number of Australian occupational health and safety lawyers are pressuring WorkSafe Victoria to act on the 801 deaths as a result of the hotel quarantine breakdown. They also want rulings on workplaces.

Acting via the Self-Employed Australia organisation, they have communicated to all the state WorkSafe bodies to obtain much needed rulings on vaccination, employment and safe work places.

Acting via the Self-Employed Australia organisation they have communicated to all the state WorkSafe bodies to obtain much needed rulings on vaccination, employment and safe work places.

SafeWork NSW is the first to respond. Let me quote its statement:

“SafeWork in NSW considers that employers must take a risk management approach, in consultation with workers, to determine the control measures they implement to prevent workplace transmission of disease, including Covid-19.

“SafeWork NSW considers vaccination a high order risk control measure against disease. Employers may require workers to be vaccinated against Covid-19 if it is reasonably practicable to do so. Whether it is reasonably practicable will depend on a variety of factors, including:

● Eligibility for the vaccine

● Personal health, medical history,

● Type of work, the risk of exposure

● The availability of alternative control measures.”

Some features of that statement are important. First, vaccination is to be a “high order risk control measure”.

The object of the SafeWork and WorkSafe bodies around Australia is to provide safe workplaces for all employees and, just as importantly, for the public via risk control and other measures. Vaccination is given “high order” status”.

SafeWork makes it very clear that employers “may require workers to be vaccinated”. The overall declaration has the qualification that it is “reasonably practicable”. Then there are specific caveats that do not seem unreasonable.

Behind the NSW statement are the rules that allow all WorkSafe organisations to prosecute both employers and employees who undertake unsafe activities.

The employer’s duty is to provide and maintain a safe working environment for employees, so far as is reasonably practicable

Workers must take reasonable care for both their own safety and for the safety of others who maybe impacted by their acts and/or their failure to act.

Employees must co-operate with their employer in safety matters. Accordingly SafeWork NSW states that “employers must take a risk management approach, in consultation with workers”.

Unvaccinated people who are infected and who go on to a worksite where they mingle with both the unvaccinated and vaccinated are in an extremely unsafe position. There is a chance of death.

I am not sure that unions and employees understand that, like employers, they could be liable for a big fines or even prison sentences.

Potentially those penalties could apply in Covid situations given the “high risk” status given to the issue by SafeWork NSW.

Meanwhile, one of issues being raised by the anti-vaccination groups is that they are being discriminated against.

Weekend Australian columnist Katrina Grace Kelly points out that Australians are protected by state laws from discrimination in specified “personal protected attributes”.

These laws vary slightly from state to state but vaccination status is not a protected attribute in any anti-discrimination legislation.

Lack of vaccination is not grounds on which anyone can claim discriminatory treatment, in any area of life.

Accordingly it would seem that owners of premises, and operators of a business, can – without justifying their position to anyone – deny entry or service to the unvaccinated.

The legislation is not likely to change in the medium term which means that exclusion of the unvaccinated from areas of community activity like sporting events, restaurants, hotels etc is made much easier.