No protection in law for the idiocy of anti-vaxxers

Can’t enjoy coffee at a cafe? Too bad. Lack of vaccination is not grounds on which anyone can claim discrimination.

What everyone needs to understand is that employers have strict obligations on them and they must to do everything reasonably possible to provide a safe workplace. Picture: NCA NewsWire/ Gaye Gerard

People are being sacked every day now for refusing to have a Covid-19 vaccine. Some are just being stood down, and given more time to get themselves organised, before the axe falls.

Pretty soon the unvaccinated probably won’t be able to catch a plane, go to a pub or a concert, eat in a restaurant, or do that seemingly most vital of activities; drink a coffee in a cafe.

State and federal governments are currently working on a single-step system, which combines checking in with checking of vaccination status.

Overwhelmingly, the electorate embraces or accepts the situation. There is a rump, though, who are furious. The ones I have come across are bellicose and shouty, although they call themselves “quiet Australians”.

They refer to masks as “face nappies” and disparage those who obey health orders as “sheeple”. Some are mobilising against “vaccine passports”, which they claim are discrimination against the unvaccinated. They are egged on in their grievances by a handful of fringe-dwellers in the federal parliament and the media.

There is, in this country, a staggering array of legislation protecting us all from discrimination. There are six different federal laws, plus one law in each state and territory. These laws prohibit discrimination in tightly defined aspects of life; employment, occupation, education, access to premises, provision of goods, services and facilities, accommodation, activities of clubs, sport, disposal of land, administration of government laws and programs, and requests for information.

Australians are protected from discrimination in these defined areas of life, if they have “personal protected attributes”. Personal protected attributes vary slightly from state to state but are commonly defined as: sex, age, race, relationship status, pregnancy, parental status, breastfeeding, disability or impairment, religious belief or activity, political belief or activity, trade union activity, lawful sexual activity, gender identity, sexuality, family responsibility and irrelevant prior conviction.

What this means is that not everything is a personal protected attribute. For example, race (skin colour) is, but hair or eye colour isn’t. Having an impairment is, but being an annoying, belligerent idiot isn’t.

A lot of people think that when someone simply doesn’t like them, or doesn’t give them what they want, it is discrimination. It isn’t. When an allegation of discrimination is made, the accuser must identify the defined area they were excluded from, the personal protected attribute they hold, and demonstrate a link.

Importantly, 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.

Owners of premises, and operators of business, can – without justifying their position to anyone – deny entry or service to the unvaccinated.

It is unlikely that anywhere in Australia, our anti-discrimination laws will be amended to include vaccination status or political belief about Covid vaccines as a protected attribute.

When it comes to employment, if employees are dismissed for not having the vaccination, they have recourse to unfair dismissal in limited circumstances. If an employee works from home 100 per cent of the time, they may have a claim, but employees who attend a workplace and come into contact with others likely won’t. Of course, those with genuine medical exemptions are protected.

What everyone needs to understand is that employers have strict obligations on them and they must to do everything reasonably possible to provide a safe workplace. The fact that vaccinations don’t always prevent infection is irrelevant; the employer just has to show they did everything possible to prevent it from happening.

There is no mechanism for employees to demand their employer employ rapid antigen testing, to test staff every day, as an alternative to vaccination. Under health orders, this testing must be clinically supervised, and many business do not have the resources.

Earlier this year, employer groups asked the federal government to legally indemnify businesses that did not mandate vaccinations in their workplaces. Some employers didn’t want to mandate vaccination, but knew they needed protection from prosecution for industrial manslaughter if a fatality occurred due to the presence of unvaccinated people.

This indemnity can only be given by the states and territories, and is extremely unlikely to be given. In NSW the direction is clear; in documentation provided to Inquirer this week, SafeWork NSW states “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, and the availability of alternative control measures.”

Last weekend, the federal government announced a no-fault insurance scheme, for people to make claims for those extremely rare occasions where a serious reaction to a vaccine occurs. This takes the responsibility off business as the government accepts liability. Although politicians are reluctant to clearly spell out vaccination policy, the regulators have taken their positions, and the die is cast.