Nearly three years into the COVID-19 pandemic, we are still dealing with the challenges of this new world. Some believe that this will be the new norm. In this new world, one of the biggest questions being posed is whether employers can mandate COVID-19 vaccinations in the workplace. In this article, we explore the concept of mandatory vaccinations in the workplace, their effects in the workplace and the prosperity of long-term employment for many employees. We also discuss the ethics of mandatory vaccination in the workplace and what this means for employees in instances where the mandate is unlawful or unreasonable.

Why have some employers introduced mandatory vaccinations in the workplace?

Vaccinations are not a new concept. However, the idea of requiring employees to get a certain vaccine in order for them to maintain their employment is one that is unprecedented.

In August 2021, SPC Global Limited became one of the first Australian-based companies to mandate the COVID-19 vaccination for its staff.  SPC gave its employees six weeks to book their first dose of the vaccination, giving them paid vaccination leave and two days of personal leave for any sickness as a result of the vaccine. SPC faced much criticism at the time for the manner in which it mandated the vaccination amongst its employees. Although, they also received appreciation for their efforts in pioneering and accelerating the COVID-19 vaccination campaign in Australia.

Currently, in New South Wales, the Public Health Order[i] (PHO) has only seen the COVID-19 vaccine mandated for individuals in areas of concern and certain professions such as:

However, the limitations of the PHO raises the question of whether the infamous Victorian Government’s ‘no jab, no job’ policy will apply in New South Wales across all sectors.

Can employers ‘ethically’ require their employees to get vaccinated?

Employers have a ‘duty of care’ where their primary obligation is to ensure the health and safety of everyone at the workplace, including employees and visitors. Allowing unvaccinated individuals within a workplace can arguably cause the employer to be in breach of its duty of care.

On 3 December 2021, a Full Bench of the Fair Work Commission (FWC) delivered an important decision in the case of CFMMEU and another v Mt Arthur Coal Pty Ltd t/as Mt Arthur Coal[ii] (CFMMEU Case). In this case, Mt Arthur Coal (a member of BHP) had mandated that their employees were required to get a COVID-19 vaccine in order to gain access to the company worksite.

Although the FWC ruled against BHP and found its COVID-19 vaccine mandate unlawful, the FWC’s decision was on the basis that BHP (as the employer) failed to provide ‘reasonable directions’ to its employees as it did not consult with its employees[iii]. In handing down their decision, the FWC granted that those who remain unvaccinated are at greatest risk of acquiring the virus, developing serious illness from the virus and infecting others with whom they come into contact[iv].

The CFMMEU Case stresses that even though employers can impose and enforce mandatory vaccination policies within the workplace, they must do so by giving reasonable instructions to their employees and the employees must comply, provided certain conditions are met[v].

Before implementing any workplace policy or amending an existing workplace policy such as mandating the COVID-19 vaccinations in the workplace, employers must first consult with their employees about the possible changes as per their obligations under the Work Health and Safety Act (WHS Act).

Further, employers must follow a strict set of guidelines and only mandate vaccines where:

  • a specific law requires an employee to be vaccinated (such as a State or Territory Public Health Order);
  • there is a specific requirement under an enterprise agreement, other registered agreement, or an employment contract; or
  • it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated.

Is it ‘unlawful’ to require employees to get vaccinated?

Despite the decision in the CFMMEU Case, the FWC clarified that requiring employees to get vaccinated (to meet the Site Access Requirement) was ‘lawful’ because:

  • the object and purpose of the Site Access Requirement was to protect the health and safety of employees and other people;
  • it falls within the scope of the employment; and
  • there is nothing illegal or unlawful about becoming vaccinated[iv].

 

Key takeaways

In order for vaccination mandates to be considered reasonable and lawful for employees that are not covered under the Public Health Order, employers wanting to mandate vaccination in the workplace must:

  • take a note of the decision in the CFMMEU Case; and
  • comply with the WHS Act and other relevant laws.

Before mandating vaccination in the workplace, employers may wish to first manage the risk of COVID-19 infection and transmission without imposing a vaccine, including social distancing, hygiene practices, and the option to work from home.

Whilst employers are within their rights to mandate vaccines within the workplace, they must do so in a manner that cannot be deemed as unreasonable or unlawful, as in the case of BHP.

Only when an employer has first considered the best approach in minimising the risks associated with COVID-19, conducted the proper assessments and undergone a consultation process with their employees, can they consider implementing a vaccine mandate in the workplace.

Need help with an employment law matter?

If you feel your employer has implemented a vaccine mandate without proper consideration or consultation or if you are an employer wanting to understand and implement proper vaccination policies, Ivy Law Group’s trusted Sydney Employment Lawyers are here to assist. Contact us today on 02 9262 4003 for a confidential discussion, or submit an online enquiry.

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