On 5 August 2021, the iconic Australian fruit and vegetable processor SPC announced it would be making the COVID-19 vaccine mandatory for all its staff. It is the first Australian company to do so. This crucial step is to be supported, for the protection of SPC's employees and the Shepparton community in which SPC operates.
It is important to examine the lessons to be derived from SPC's leadership and approach, as they may be applied to other businesses with similar working arrangements and circumstances.
Current state of play
A survey conducted by Restaurants and Catering Australia shows that 63 percent of businesses surveyed want the Federal Government to either mandate vaccines for the population or indemnify businesses requiring that staff be vaccinated.
However, a broad, government mandated COVID-19 vaccination requirement appears very unlikely, although the NSW Government has recently considered a 'no jab, no work' policy, allowing workers to return to work if they have been vaccinated. There are also public health orders applicable in various States and Territories which require workers in certain workplaces to obtain COVID-19 vaccination.
This leaves it to industry to lead on workplace vaccination. On 12 August 2021, the Fair Work Ombudsman published updated advice confirming that in certain circumstances, it will be lawful and reasonable for employers to direct employees to have the vaccination. The Fair Work Ombudsman encourages employers and employees to work together to find solutions that suit their individual needs and workplaces. The Fair Work Ombudsman's advice substantially aligns with SPC's position and stated aims. The Fair Work Ombudsman has emphasised that employers should seek independent legal advice if considering mandatory vaccination policies or disciplinary action arising from them.
So, are SPC's circumstances unique?
SPC's circumstances are not unique and other employers in similar positions may consider following suit.
SPC is an Australian household brand and significant regional food producer, currently expanding and streamlining its Shepparton facility. It engages around 450 permanent staff and 600 seasonal workers over the summer harvest season.
COVID is a significant business risk for any food producer. A COVID-related closure at SPC during the summer harvest could mean ripened fruit is unble to be processed and so, wasted. This would have devastating impacts on employees, orchardists, the Shepparton community and SPC's business. Further, as SPC is the dominant processor of stone fruits in Australia, orchardists would have few other options to sell their produce.
What do we know about SPC's announcement?
SPC has announced that:
- Workers have until September 2021 to book their first vaccination and a timeline of all of their 450 onsite workers being vaccinated by November 2021;
- Employees risk being barred from onsite work if unvaccinated;
- All onsite workers will receive paid vaccination leave and up to two days of special leave to recover; and
- Workers with genuine medical grounds precluding them from receiving the COVID-19 vaccination will be treated with the 'utmost compassion'.
SPC has a sound legal basis for its position
An employer can impose a mandatory COVID-19 vaccination policy if the direction is lawful and reasonable. In mandating vaccination, SPC is able to rely on its duties under the Victorian Occupational Health and Safety Act 2004 (Vic) (OHS Act) to, so far as reasonably practicable:
- eliminate risks to health and safety (including identifying and controlling risks to health or safety associated with potential exposure to COVID-19);
- provide and maintain for employees a working environment that is safe and without risks to health (including the risk of COVID-19); and
- monitor the health of employees.
Employees have a duty under the OHS Act to take reasonable care for their own health and the health and safety of other employees who may be affected by their acts or omissions. They also have a duty under the OHS Act comply with their employer's lawful directions in respect of safety matters.
Health and safety legislation in other States and Territories contain substantially similar duties to those set out above.
The risks to the workforce are compounded, in SPC's case, by the necessity for physical attendance at the workplace for the majority of employees working in close proximity of each other in processing roles. Social distancing and the effect of personal protective equipment have their limitations. At the height of the pandemic in the USA in 2020, the pig meat industry was devastated by COVID in working circumstances similar to those at SPC. Many other employers in Australia will face similar risks.
SPC can also rely on its commercial imperatives and community considerations as a foundation for giving reasonable directions requiring employees to be vaccinated. The spread of COVID-19 in the workplace has shown to have real economic consequences to businesses, with businesses reporting that their revenue has been affected by the recent lockdowns in Victoria. If a business is partially or wholly shut down due to a COVID-19 outbreak, it would have significant detrimental impacts on the business and employees.
In many circumstances, such as SPC's, it will be lawful and reasonable for businesses to make it mandatory that workers receive the COVID-19 vaccination. This is supported by statutory safety duties, public health orders in certain circumstances, commercial considerations and the Fair Work Ombudsman's updated advice.
What does this mean for businesses?
If a business is considering implementing mandatory COVID-19 vaccinations, it should consider whether it is reasonable within the context of their specific workplace and for particular types of work. Critical issues would include type of workplace, type of work, and interaction with other employees and members of the community. However, employers should have regard to the Fair Work Ombudsman's four tiers of work type and consider their obligations under discrimination and privacy laws. It is important for employers to take legal advice to determine what may be reasonable for their specific circumstances and how to lawfully implement such policies.
Leadership by key industry figures is certainly powerful but practical support by other employers is also required to advance workplace and community safety.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.