Mandatory jab opens up an IR can of worms

Qantas chief executive Alan Joyce says that refusal to take the jab is a decision by the individual that employment in the aviation industry is not for them. Picture: Jeremy Piper

Should employers be able to make Covid vaccinations compulsory for their workers? Should this extend to contractors and suppliers who have contact with workplaces? This is a hot topic. Several large US businesses have mandated vaccinations for their workers and the same is the case for many universities, at least for the staff who attend campuses.

Some large businesses, such as Taylor Farms, a producer of fresh fruit and vegetables in the US, have stopped short of mandating that their workers are vaccinated although the company has made strenuous efforts to encourage staff to have the jab, including through the provision of onsite vaccination. But given the tight labour markets in which the company operates, the company fears mandating vaccination will lead to some workers quitting, particularly young men.

In Australia, SPC is pushing on with mandating vaccinations for all staff by the end of November, notwithstanding the opposition of the trade union and broader condemnation. Qantas has joined this club, with chief executive Alan Joyce declaring that refusal to take the jab is a decision by the individual that employment in the aviation industry is not for them.

So what should we think about mandatory vaccination for workers? And what is the legal position for employers insisting workers (and potentially contractors and suppliers) be fully vaccinated?

In a completely unhelpful development, the Business Council of Australia released a joint statement with the ACTU supporting the proposition that vaccination “should be free and voluntary”.

While the two peak groups did recognise there were some workplace settings in which compulsory vaccination was justified (on the basis of public health advice), the statement concluded: “We believe that for the overwhelming majority of Australians your work or workplace should not fundamentally alter the voluntary nature of vaccination.”

It was surely ironic for BCA chief executive Jennifer Westacott that the Qantas decision on mandatory vaccination for its staff came in the same week as the BCA-ACTU statement and that Joyce is on the BCA board.

But see also this statement from the point of view of the trade unions, which have been battling for public attention as their number of members continues to fall.

What happened to the years of campaigning to make employers responsible for the health and wellbeing of workers, including the option of employers being charged with industrial manslaughter? And what about the central workplace safety principle that employers owe a duty of care to workers to ensure, as far as is reasonably practicable, a safe working environment?

So what do we know about employers making vaccinations a prerequisite for employees coming to work? The reality is it’s a mess, with vague instructions from the Fair Work Ombudsman as well as from state workplace safety agencies.

According to the FWO, employers can require their employees to be vaccinated in only three specific instances. First, if there is specific law (a state public health order, for example) that requires an employee to be vaccinated. Second, if the requirement for vaccination is outlined in an enterprise agreement or other employment contract – something that is very uncommon. Finally, vaccination can be deemed to be “lawful and reasonable” but this is assessed on a case-by-case basis.

If this is sounding unhelpful, you wouldn’t be wrong. And the FWO warns: “The coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus.”

The FWO outlines four tiers of work. The first is where vaccina­tion would be deemed reasonable but covers few instances: employees working in hotel quarantine or border control are examples. The second is “where employees have close contact with people who are particularly vulnerable to the health impacts of the coronavirus”, including healthcare and aged-care workers. In this instance, vaccination probably would be deemed reasonable.

Tier three is “where there is interaction between employees and other people such as customers, other employees or the public in the normal course of employment”. In these instances, it’s not clear whether compulsory vaccination would be deemed “reasonable” but these situations cover most workers. The fourth covers those working exclusively from home where vaccination would not be deemed reasonable.

There are also the vexed issues of whether an employer has the right to request information from employees about their vaccination status; whether an employer may be in breach of anti-discrimination laws by insisting on vaccination; and whether it’s OK to insist on vaccination just for new employees.

It’s interesting to note opinion polling suggests the vast majority of the public support mandatory vaccinations “for workers in occupations with a high Covid-19 transmission risk (healthcare, aged and child care, education)”. Three-quarters strongly support or somewhat support mandatory vaccination for these cases.

It’s hard to know where this issue goes from here. Making vaccinations compulsory for aged-care and disability workers has been a slow process and it’s not clear the deadlines will be met. Imposing state health orders may speed things up, but they run the risk of some workers simply quitting their jobs in areas where workers are in short supply.

There is also the issue of potential compensation for workers who contract the virus even in the context of mandatory vaccination. (Being double vaccinated doesn’t prevent individuals from contracting the virus.) Does this give rise to a workers compensa­tion claim? Could there be claims even without mandated vaccination arrangements, including among unvaccinated workers?

The situation is as clear as mud. Many employers probably will opt to urge workers to get the jab, offering paid time off and possibly other perks. The complications of making it compulsory make this option look fraught, particularly when the peak trade union body is not supportive and is backed by the big business lobby.