Recent Organisations Mandating Covid-19 Vaccinations

With the ever-evolving risk of the Delta variant of the COVID-19 virus and increased lockdowns across many states and territories, many employers have sought to implement a COVID-19 vaccination mandate on employees.

SPC, the Shepparton-based cannery, became the first Australian organisation that made it mandatory for all onsite staff and visitors.

Since SPC imposed a COVID-19 vaccination mandate on employees, there have been an increasing number of organisations seeking to do the same.

It is interesting to note the reasoning behind the various COVID-19 mandatory vaccination workplace directives. The mandated COVID-19 vaccinations directives issued by SPC, Qantas and 13 Cabs are not based on any public health orders. In summary, the basis for their decisions is reported by the media as follows:

Both Qantas and 13 Cabs undertook a staff survey prior to mandating the vaccination, with Qantas reporting that “89% of respondents had already been vaccinated or are planning to be, while only 4% were unwilling or unable to get vaccinated and about 75% thought it should be a requirement for all employees to be vaccinated and would be concerned if other employees in the workplace were not inoculated” and 13 Cabs reporting “only 5.9 percent do not plan to be vaccinated.”

Position Adopted by the Australian Government, States, and Territories

As at the date of publishing this article the Australian Government's policy concerning COVID-19 vaccinations is that it is voluntary for most Australians, although it is mandated for residential aged care workers who must have their first dose of the vaccine by September 2021.

The response from the states and territories of Australia has varied, with many states extending the mandated COVID-19 vaccination programs to other sectors in addition to residential aged care workers by providing public health orders. For example, in Queensland, the mandated COVID-19 program includes quarantine workers, transport workers, ambulance service employees, etc.

For a comprehensive list of the mandated COVID-19 vaccination sectors in each state and territory, please visit: COVID-19 vaccinations: workplace rights and obligations.

There are currently no federal public health orders or laws that make COVID-19 vaccine passports mandatory in Australia. However, there has been some consideration by the states and territories governments to introduce a vaccine program. As an example of this, the Victorian government has proposed a vaccine passport trial in regional Victoria and the potential introduction of a new public health order requiring staff and patrons to be fully vaccinated in order to enter a venue, as a way of protecting businesses from accusations of discrimination.

This will likely be an evolving area as states and territories reach milestones of vaccinations and determine how best to protect the community against transmission whilst supporting the opening of businesses.

The Legality of Mandating Covid-19 Vaccinations for Employees

The legality of mandating COVID-19 vaccinations for employees is a difficult question to answer given the Australian Government's failure to provide a legislative framework that would afford employers a clear directive and with the Fair Work Ombudsman issuing guidance which answers the hard questions with ‘get legal advice'.

The Fair Work Ombudsman has provided guidance limited to the tier system detailed below:

Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).

Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).

Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).

Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

The guidance provided by the Fair Work Ombudsman provides that a direction to employees classified within Tiers 1 and 2 to get vaccinated is likely to be reasonable, given the increased risks of contracting COVID-19 and the interactions with people on a daily basis. In respect of Tier 3, the reasonableness of the direction will depend upon the circumstances, including whether the virus is prevalent in the community and whether the workplace is required to operate despite a lockdown. In respect of Tier 4, it is unlikely to be reasonable due to the minimal risks faced by these employees. However, the Fair Work Ombudsman clearly states that the above tier system is a guide only and employers should seek advice regarding their particular circumstances.

Reasonable and Lawful Direction

Employers have the ability to direct their employees to follow a reasonable and lawful direction and have a right to expect employees to comply with such a direction. However, what is considered a reasonable and lawful direction is determined by examining the specific circumstances of the direction, and this consideration is very important in the context of implementing a mandated COVID-19 vaccination program.

Generally speaking, a lawful and reasonable direction will be considered in the following contexts:

a) Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374 – A direction will be lawful to the extent that it falls within the scope of the contract of service and involves no illegality.

b) CFMEU v Glencore Mt Owen Pty Ltd [2015] FWC 7752 – What is reasonable in the circumstances is essentially a question of fact and balance, and there may be a range of factors that are relevant.

The Fair Work Commission has already considered reasonable and lawful directions in the context of COVID-19 in the following decision:

Teslime Kuru v Cheltenham Manor Pty Ltd as trustee of the Cheltenham Manor Family Trust T/A Cheltenham Manor Pty Ltd [2021] FWC 949 – held that a failure to follow a reasonable and lawful direction to refrain from interacting with employees not working in the same zone without protective equipment constituted a breach of a lawful and reasonable direction.

The Fair Work Commission has provided further guidance in respect of mandated vaccinations:

Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083 – held that a policy requiring a mandatory influenza vaccination was arguably a reasonable and lawful direction, and a failure to comply was considered a failure to follow a lawful and reasonable direction.

It must be remembered that each case will be decided on its facts. When considering whether a COVID-19 mandated vaccination program would be considered a reasonable and lawful direction, the Fair Work Commission has provided a number of considerations to be taken into account, including:

a) the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service)
b) the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community
c) the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant
d) work health and safety obligations
e) each employee's circumstances, including their duties and the risks associated with their work
f) whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)
g) vaccine availability

Policy
Many employers are considering implementing a policy for their employees that mandates COVID-19 vaccinations as part of their suite of policies for employees.

Employers will need to carefully consider the contracts of employment provided to employees to understand their ability to introduce a mandated COVID-19 vaccination policy and in what circumstances it may occur.

Employers will also be required to carefully consider their obligations before introducing a mandatory policy, noting that employers whose employees are covered by an award or enterprise agreement likely have a consultation clause obligating them to consult with employees and their representatives before introducing significant workplace changes. Another avenue for mandating vaccinations may be by amending employment contracts, however, similar issues may potentially arise in relation to the legality or enforceability of such provisions, including, but not limited to, potential discrimination and privacy issues.

Further, under applicable work health and safety laws, many employers have obligations to consult with their employees and their representatives about the implementation of measures to address work health and safety risks adequately.

Conclusion
Employers should seek legal advice about their specific circumstances to consider whether a direction to employees and/or implementation of a COVID-19 vaccine policy would be legally enforceable and/or suit their business.

Further, employers also need to ensure that their current arrangements are complying with any public health order issued in their relevant state and territory.

A failure to do either may have significant consequences for employers, including potentially breaching state and/or federal discrimination laws and breaches of employment contracts, awards, or enterprise agreements.