Can business order the jab? Why there are still more questions than answers

The Australian’s workplace editor Ewin Hannan talks to workplace law expert and University of Adelaide law professor Andrew Stewart about the law and workplace vaccinations.

Employers have made it clear in recent weeks they want Canberra to legislate to give them certainty about the unresolved legal issues relating to workplace vaccinations. University of Adelaide law professor Andrew Stewart agrees legislation is needed.

“Given you are talking about issues that arise at the intersection between a lot of different legal regimes – health and safety, which is state; workers compensation, which is state; discrimination, which is both federal and state; unfair dismissal, which is federal – you are operating in a space where all these different regimes could come into play, which tend to give you different answers depending on the regime,” he says. “The government can construct a policy that provides business with a reasonable amount of certainty and which still allows you to say to the freedom warriors, look, we’re making sure that people who genuinely choose not to get vaccinated have that choice respected.

“In the end, businesses are going to do this anyway because they have to. It’s a question of do you just let it drag through the courts and tribunals, and do you let business waste huge amounts of money figuring out what they can and can’t do, or do you just show a bit of leadership?”

Stewart says he can see the basis for several types of arguments about discrimination if an employer acts against an employee who refuses to be vaccinated. “Right now, there is some potential for age discrimination because of uneven access to vaccines,” he says. “The one that clearly has the potential to cause most trouble is political opinion discrimination. A worker argues: ‘You are discriminating against me because I don’t believe vaccination should be mandatory, that’s my political opinion.’ ”

Stewart says it may be difficult to determine if an employer can stand down or terminate the employment of a vaccine refuser. He says: “There are some situations where that would be perfectly OK, like working in aged care. For example, South Australia does have a public health order about workers in residential aged care having to be vaccinated to be on aged-care premises. That means somebody who is a care worker clearly cannot work. But then what happens to their job?

“Does that mean they have to be dismissed? Can they lawfully be stood down without pay? Can they do anything about that? If they resign because the employer is standing them down but not terminating them, can they complain of unfair dismissal? If they are not the care worker but somebody working in reception or doing the accounts, can they say ‘I can’t come to the premises but I can work from home so you should let me work from home indefinitely’?

“What do you do about a person who thinks it is too big a risk medically but most doctors would say otherwise? Even in the cases where it’s clear there is a lawful basis to have mandatory vaccination, you still have all these subsidiary questions before you can answer what happens to a given employee who has not been vaccinated.”

Could a worker refuse to work with unvaccinated colleagues? Stewart says it would be possible if they could showed there was a sufficient threat to their health and safety. “But then the question becomes, if they refuse to come into work, what follows from that?” he says. “Do they still get paid? Does the employer have to redeploy them? Does the employer have to take action against the unvaccinated people and, if they don’t, what are the sanctions for that? Again, I’m back to answering your questions with a series of questions. That’s where we are with the current law and we shouldn’t be.”