Since 2020, Integroe Partners has worked with businesses across various industries including education, disability, health and aged care to canvas workplace solutions and assist them in responding to challenges posed by the COVID-19 pandemic. This may include developing a workplace policy requiring COVID-19 vaccination.
As government-imposed restrictions start easing across most Australian States and Territories with a push for employer and citizen responsibility in responding to the pandemic, we are seeing businesses working on developing a consistent model of service delivery that balances the safety of staff and the key stakeholders with the ongoing sustainability of the organisation.
With many Public Health Orders and Public Health Directions expected to cease in the coming months, businesses are looking at solutions to continue managing the risks posed by COVID-19 that remains at elevated levels across Australia as well as ensuring they are well placed to manage the impact of new and novel variations of COVID-19 in the immediate future.
In its recent decision in the matter of Howard v Mt Arthur Coal (BHP Decision)[1], the Fair Work Commission (FWC) has accepted as fact, that “…even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces” and further, that other control measures “do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing a serious illness once somebody acquires an infection.”
Criteria for Mandatory Vaccinations
Presently, employers can implement a workplace policy requiring COVID-19 vaccination in the following circumstances:
1. Where a specific law requires vaccination, for example a Public Health Order (PHO), which obligates employers and workers to comply;
2. Where a legal instrument such as an Enterprise Agreement or Contract of Employment permits the requirement; or
3. Where it would be lawful and reasonable for an employer to give their worker a direction to be vaccinated.
In the BHP Decision, the FWC held that prior to determining whether vaccination requirements imposed by an employer are lawful and reasonable, the employer must ensure that the vaccination requirement:
1. Is directed at ensuring the health and safety of workers of the site;
2. Has a logical and understandable basis;
3. Is a reasonably proportionate response to the risk created by COVID-19;
4. Is developed having regard to the circumstances of the sites/operational requirements of the business;
5. Is timely having regard to the spread of COVID-19 in the local area at the relevant time; and
6. Is implemented only after encouraging and facilitating vaccination for workers as much as practicable.
In addition, consistent with Work, Health and Safety (WHS) laws across each State and Territory, a decision to introduce vaccination requirements as part of a workplace policy should only occur after:
· Conducting a risk assessment tailored to each category of worker/site operated by the employer to determine whether vaccination is a necessary and proportionate control to protect the health and safety of employees; and
· Meaningful consultation with the workforce on any risk assessments and vaccination requirement proposals.
What Should Employers Do?
In the absence of PHO or an industrial instrument, the basis for an employee to be vaccinated must derive from a lawful and reasonable direction from their employer. Employers wishing to implement such a policy must take into consideration the guidance provided by the FWC in its recent BHP Decision. Employers must also adhere to the consultation requirements under the WHS legislation in the relevant State or Territory, any applicable Modern Awards or Enterprise Agreement, or any existing workplace policies.
To navigate this complex situation, we recommend that employers exercise caution in this area by obtaining legal advice specific to their circumstances. For more information, please see our earlier blog on Enforcement of Vaccinations as Part of a Workplace Policy.
Please contact our team on (02) 9181 5001 or by email at or www.integroe.com.au
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[1] Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 at [29].