Mandatory vaccination powers for hotspot employers

The workplace regulator has opened the way for employers to require ­mandatory vaccinations of workers in ­Covid-19 hotspots.

Industrial Relations Minister Michaelia Cash says it is important that employers take a collaborative approach with workers over Covid-19 vaccination. Picture: Gary Ramage

The nation’s workplace regulator has opened the way for employers to require ­mandatory vaccin­ations of workers against Covid-19 where businesses are operating in ­lockdown hotspots.

However, in a highly anticipated legal guidance on the ­vaccination regime, released on Thursday night, the Fair Work Ombudsman warned that ­employers might not have the power to require mandatory ­vaccination where there had not been a Covid-19 transmission for some time.

The ombudsman said that ­employers could direct employees to be vaccinated if the direction was lawful and reasonable, but whether a direction was lawful and reasonable would be “fact-­dependent” and needed to be ­assessed on a case-by-case basis.

The advice will disappoint business groups, which have been pushing for legal certainty around the mandatory vaccinations of workers. Scott Morrison indicated last week that the federal government would not be legislating to facilitate mandatory vaccinations, saying employers would have to be prepared to defend their ­actions in court.

The Fair Work Ombudsman’s advice was released as NSW recorded 345 new locally acquired cases of Covid-19 and two deaths.

NSW Premier Gladys Berejiklian tightened lockdown restrictions in the local government districts of Burwood, Strathfield and Bayside as infections spread into the these areas.

Canberra was also forced into a seven-day lockdown on Thursday when a Covid case was detected.

 

The Fair Work Ombudsman’s updated guidance came as the ­push to vaccinate 70 per cent of eligible Australians passed the halfway point, with 14.48 million doses now administered.

National cabinet has set 70 per cent as the threshold for the initial easing of Covid restrictions.

Based on the current rollout trajectory, the 70 per cent threshold of having 14.43 million Australians aged 16 and over fully vaccinated should be reached during October.

The ombudsman said an ­employer’s direction to essential service workers to get a vaccination was more likely to be reasonable where the business needed to remain open in a locked-down hotspot.

Dividing work into four broad tiers, it said an employer’s direction to employees performing Tier 1 or Tier 2 work – including quarantine, border control, health and aged care – was “more likely to be reasonable” given the ­increased risk of employees being infected or giving Covid to a vulnerable person.

The guidance describes Tier 3 work as where there is interaction or likely interaction between workers and others such as customers, other employees or the public in the normal course of employment, such as stores providing essential goods and services.

It says when no community transmission of coronavirus has occurred for some time where the employer is located, a direction to employees to be vaccinated was in most cases less likely to be ­reasonable. However, “where community transmission of coronavirus is ­occurring in an area, and an employer was operating a workplace in that area that needs to remain open despite a lockdown, a ­direction to employees to receive a vaccination is more ­likely to be reasonable”.

Employer directions to Tier 4 workers, including employees working from home, was unlikely to be reasonable, given the limited risk of Covid transmission.

The guidance says an ­employer might be able to take disciplinary action, including termination of employment, against an employee for refusing to be vaccinated if the refusal was in breach of a specific law or a lawful and reasonable direction requiring vaccination.

Factors that might be relevant when determining whether a ­direction to an employee was reasonable included the nature of each workplace. For example, the extent to which employees needed to work in public-facing roles, whether social distancing was possible and whether the business was providing an essential service.

A second factor was the extent of community transmission of Covid-19 in the location where the direction was to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community.

The guidance says employers should also take into account: the availability and effectiveness of vaccines; work health and safety obligations; duties and risks associated with an employee’s work; and whether employees had a legitimate reason for not being vaccinated such as a medical reason. Generally, it was unlikely an employee could refuse to attend work because a co-worker was not vaccinated against coronavirus, as jabs were not mandatory for all employees and many workplaces would not be able to require their employees to be vaccinated.

Industrial Relations Minister Michaelia Cash said it was important that employers took a collaborative approach with workers when discussing, planning and facilitating Covid-19 vaccination in the workplace. Senator Cash said some workers in high-risk settings – such as aged care and quarantine facilities – were required to be vaccinated to protect vulnerable people and the community.

Fair Work Ombudsman Sandra Parker said the regulator’s information was guided by applicable laws and judicial decisions, enforceable government directions (such as public health orders) and advice issued by commonwealth, state and territory agencies. Only NSW and Western Australia are considering mandatory vaccinations in certain workplaces.

The Prime Minister has refused to indemnify businesses that pursue vaccine mandates.