‘No jab, no job’ policy a matter for dispute

Mandating Covid-19 vaccinations will be easier for sectors, such as aged care and health, where public health orders are in place. Picture: AFP

Fruit and vegetable processor SPC broke no laws when it told staff they had to be vaccinated against Covid-19, but time will tell whether the action is legal.

Ultimately, the decision on whether SPC can run a “no jab, no job” workplace rests with the Fair Work Commission – and even a positive ruling will not necessarily make it easier for other companies to follow suit.

If SPC sacks someone who is not vaccinated, it could face ­action from the employee, with the FWC asked to decide whether the request was “lawful and reasonable”.

SPC chairman Hussein Rifai said he was leaving it to the lawyers. “We don’t think we’re doing anything that’s breaching laws that could cause any major problems,” he said.

“I will stay away from getting into any legal discussions .”

Indeed, industrial lawyers have been working overtime in recent weeks as companies explore their options for making vaccination a condition of employment. SPC, like other employers, would have received advice that it was entering largely untested waters but that recent FWC rulings on flu vaccinations - one in childcare and one in aged and disabled care - could help them if they are taken to court.

The FWC found a worker at aged-care service OzCare and an employee of Goodhart Early Learning had not been unfairly dismissed after refusing flu vac­cines. While they don’t necessarily set a precedent, the cases suggest the FWC could be open to allowing more compulsion .

Permission is unlikely to stretch to white-collar workers because they can work from home. Nerida Jessup, special counsel in employment, industrial relations and safety at Herbert Smith Freehills, said: “It is difficult to see a court making a finding it would be a reasonable requirement that a worker who works remotely gets vaccinated.”

At the opposite end of the scale, mandating will be easier for sectors, such as aged care and health, where public health orders are in place. The orders do not mandate vaccinations but identify essential work.

The SPC case falls in the middle ground where work cannot be done remotely but where it is not covered by public health orders.

“There is very clear guidance from the Fair Work Ombudsman that most employers should ­assume they can’t require vac­cinations,” Ms Jessup said. “The key question then is what are the boundaries of a directive being lawful and reasonable.

“We expect increasingly employers will issue directives that will either be resolved by a court, or that regulators will step in and provide further clarity.”

Industrial lawyer Carolyn Dorrian estimates about 60 per cent of food manufacturers want to mandate the jab but are instead encouraging staff to vaccinate.

“They can mandate it under agreements but they are not doing it because they don’t want to be in the hot waters of discrimination law,” she said. “The Fair Work Commission is still saying it will come out with extensive guidance to companies but has not done so.”

She said food processors could potentially rely on requirements under health and safety codes.