In the midst of a worldwide pandemic where 15 million Australians are currently locked down, employers are grappling with how to ensure their businesses can keep operating and their employees can continue in their roles and provide for their families. Questions are being raised about competing interests and rights in the workplace. It is unclear whether an employer’s duty to maintain a safe workplace by requiring workers to be vaccinated trumps employees’ entitlements to autonomy and freedom of choice.
Added to the mix are unions who are strongly advocating for employee freedom, issues of vaccine hesitancy, vaccine confusion and vaccine availability, and rapidly emerging technologies. With so many considerations and a lack of government direction about how to maintain a safe workplace, employers are in a unique and confusing position that is changing every day.
Current Fair Work Ombudsman (‘FWO’) Guidance
As of 12 August 2021, the FWO has updated their guidance concerning workplaces mandating vaccinations. The FWO has stated that Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable is a question of fact and must be assessed on a case-by-case basis.
The FWO has indicated that when undertaking this case-by-case assessment, it is helpful to divide work into 4 broad tiers:
- Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (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 COVID-19 (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 FWO guidance makes it clear that such a direction may not be reasonable in all workplaces, as there are a number of employees working across sectors with minimal risk of COVID-19 exposure, i.e., employees who can work from home or those that have very little face to face interaction with employees or customers as part of their day-to-day duties. On the other hand, WHS legislation clearly mandates that an employer has a duty to maintain a safe workplace.
Employer/Union Conflict
The FWO guidance leads to further confusion as to what constitutes a ‘high risk’ workplace, with unions advocating that the decision to vaccinate, even in high-risk workplaces, should be left up to the individual or only made by way of a Public Health Order. At the same time, unions and employee groups are also relying on Work, Health & Safety (‘WHS’) laws and regulations to highlight that employers must take all available steps to keep their workforce safe from COVID-19.
The Australian Council of Trade Unions (‘ACTU’) issued a joint statement with the Business Council of Australia (‘BCA’) stating that mandatory vaccinations “are serious decisions that should not be left to individual employers and should only be made following public health advice based on risk and medical evidence.”[1]
This view was echoed by the Opposition’s industrial relations spokesperson Tony Burke, who stated, “any move to mandate workers to be vaccinated must be made by an official public health order and not individual businesses.”[2]
The current position puts employers and unions squarely at odds and does nothing to protect businesses, jobs or the economy. Is it fair for union organisations to complain that employers are not protecting the work, health and safety of their employees and, at the same time, when employers take steps to achieve this, argue that their civil liberties and freedom of choice are being eroded?
A call for negotiations between unions and employer groups has shed light on the motivation for the disconnect about vaccinations in the workplace. The SMH reports that unions “will push universal paid vaccination leave, so workers, including casuals, don’t have to lose income or use up other time off to get vaccinated.”[3]
At a vaccination forum arranged by Senator the Hon Michaelia Cash on 18 August 2021, there appeared to be some sensible dialogue with the ACTU secretary Sally McManus, who believed that employers should encourage and facilitate employees getting the jab.[4] However, many employers have already assisted in arranging time off for employees to receive a vaccination – and leave should side effects be experienced.
Considering the rapidly decreasing chance of achieving a status of “COVID zero” in 2021, employers in the high-risk category may now choose to mandate vaccinations. If they follow Award guidelines by consulting with employees about introducing mandatory vaccination policies before doing so, they may be on stronger ground if there is a legal challenge. The government has urged this kind of collaboration between businesses and unions. However, this requirement poses a real risk that the process is slowed, and COVID-19 enters the workplace.
Mandatory Vaccinations and the Meat Processing Industry
Employees in the meat processing industry have been given priority for receiving a vaccine, and are classified as high-risk workers alongside defence, police, fire and emergency services in phase 1(b) of the vaccine rollout. This is because meat processing involves high-impact work, carried out at close quarters in cold temperatures.
The warning signals have been ever-present with the virus sweeping through the US meat industry leading to a 40% loss of processing capacity. In the US meat processing industry, there were reported to be over 300,000 cases of COVID-19 (6% to 8% of the national total), and over 500 deaths (3% to 4% of the national death toll).[5]
But there are issues too in respect of supply. In mid-July the ABC reported that only 10% of the Casino Food Co-op processing plant, Australia’s largest meat processing cooperative, had been vaccinated due to a combination of lack of supply and confusion surrounding AstraZeneca.
Prior to the COVID-19 pandemic, it was common practice in the meat industry for employees to be protected against Q Fever (the bacteria Coxiella Burnetii). [6] In terms of the health care sector, it is already mandatory for front-line staff to be inoculated against measles, diphtheria, tetanus, whooping cough and chickenpox.[7] However, as of late June, only 32% of aged care workers are fully vaccinated against COVID-19.[8]
Companies Leading the Way – SPC & Qantas
The combination of vaccine hesitancy and lack of ministerial direction has placed the food supply chain and economy in a precarious position; forcing employers to take matters into their own hands in the interests of employee safety and business viability. Notably, employers SPC and Qantas have mandated vaccination for their employees and provide valuable examples of how employers may be able to move forward.
SPC, an Australian fruit packing and canning company that operate a factory in Victoria, have been frontrunners in mandating vaccinations for employees. They mandated the vaccine not only for all 450 onsite staff, but also for any visitors to their site.[9]
This mandate was not made pursuant to public health orders, but instead under the company’s work, health and safety obligations, according to Chairman Hussein Rifai.[10] Despite this reasonable justification, the Australian Manufacturing Workers’ Union (‘AMW Union’) has criticised the mandate, especially the ‘unrealistic’ six-week time frame for employees to get vaccinated.[11]
It is not just the AMW Union who disapprove – many SPC staff have complained that it infringes on their liberty and is unfair to young workers who are not yet eligible for Pfizer.[12] Mr Rifai has also reportedly received vitriolic and racist abuse, including “go back to where you came from” for his decision.[13] SPC’s direction has sparked discussions about mandatory vaccinations in the FWC and has shed light on the tensions between unions, employers and employees in this space.
Further, in the high-risk aviation industry, Qantas has taken the step to mandate vaccination with Chief Executive Alan Joyce indicating their ‘no jabs – no job’ policy will be implemented for Airline Staff, cabin crew and pilots by mid-November and all other employees by April 2022. Joyce has gone so far as to state that for those employees who also decide not to get vaccinated, “aviation is not the area for them.”[14]
Qantas have backed their position following a survey of 12,000 staff, which indicated most were in favour of vaccination. Prime Minister Morrison commented in respect to this strategy, “They talked to them [the employees], they worked through. They have a reasonable position to be able to make this request, and then [they’ve] gone about it, I think in a very engaged way”.[15] Unions, however, did not support Qantas’ position, saying that they were not consulted and argued mandatory vaccination should not apply to those employees who are not customer-facing.[16]
It is hopeful that the decisions made by businesses like SPC and Qantas will lead the way and encourage businesses that are looking to commit to a mandatory vaccination policy.
Options for Employers who are not High-Risk?
The backlash experienced by SPC and Qantas may create hesitancy for some employers to implement mandatory vaccination policies. Mandatory vaccination policies will be effective in preventing the spread of the virus and safeguarding the work, health and safety of employees However, the possibility of legal challenges, internal employment disputes and union tensions are unattractive prospects. Employers who decide against a mandatory vaccination policy should instead consider alternative technologies that can safeguard against potential WHS breaches and promote employee safety.
While temperature testing is the new norm, there is potential for employers to go much further to provide a safe workplace. Tracking staff and mandatory COVID testing before entry into the workplace is not only sensible, but in light of the WHS Act, it is necessary for employers to meet their obligations. Such requirements should be considered by the FWO as fair and reasonable directions, taking into account the extreme consequences should they not be implemented.
One example of new technology that should be considered and embraced in workplaces is SmartBadge. This wearable device can track the user’s close contacts, record how many people are in an area of the workplace at one time, and alert workers if they are breaching social distancing requirements. Where employees need to be tracked for COVID protection, dystopian ‘big brother’ concerns about this kind of technology can be offset by clear and concise policies from employers as to how personal information will be obtained, treated, and destroyed.
Another example of technology that may be used in the workplace is vaccine badges. In the gig economy, Airtasker, who have over 2 million users, demonstrated how the gig economy can be more reactive to major threats by announcing it is investigating vaccination badges to communicate vaccination status of contractors whose proof of vaccination is more difficult to ascertain than regular employees’.
There is a clear need for the employment space in Australia to respond to the COVID-19 threat by adopting new technologies. It is likely that employers and workplaces who fail to do so will be left behind and will be increasingly susceptible to dangerous consequences in the event of a COVID-19 case in their workplace.
The failure of the Government
The dichotomy between breaching WHS laws if vaccinations are not made compulsory, and industrial action if the jab is mandated is still very real. On the fringes, there are reports of fundraising for a class action for a constitutional challenge to mandatory vaccination for childcare workers, with claims that states do not have the power to make such an order.[17]
The lack of leadership by the Morrison Government in respect to mandatory vaccination in the workplace has led to considerable confusion. On the one hand, the government has indicated that it may be a reasonable direction to employees to mandate COVID-19 vaccinations. However, on the other hand, Morrison has said that businesses who did not want to mandate vaccinations for staff could receive protection against lawsuits that claimed they weren’t fulfilling their duty of care.[18]
It’s not satisfactory nor illustrative of strong leadership for the Prime Minister and his team to indicate that employees have neglected to mandate and implement compulsory vaccination while the FWO blindly says that it is up to each employer to test the boundaries of the industrial relations laws. A unified and direct approach during this pandemic is necessary to ensure that supply chains, jobs, and provisions are available Australia wide.
Further, the delay in Health Minister, Brad Hazzard, implementing a Public Health order requiring all healthcare workers to be vaccinated is astounding. Vaccinations will still not become mandatory until 30th September 2021 in the health space. The mixed messaging from medical groups at the front line of the COVID-19 attack and putting their health at risk has done little to assist other peak industry employer groups in putting together a vaccine plan for other frontline industries.
Moving Forward in a COVID World
A record 309,000 vaccines were administered nationwide on 8th August 2021.There is a plan for up to 1.3 million Pfizer doses to land in Australia each week from the end of September.[19] It is essential that prior to any mandatory vaccination policy being introduced in the workplace, there is a sufficient supply and choice of vaccine available.
The roll-out is at a time when in the US, the Biden administration is advising that booster shots are now necessary due to the increased prevalence of the Delta variant of the virus.
The landscape is changing almost daily, and the case for sensible dialogue between Unions and employer groups may not be enough to achieve a COVID-19 equilibrium. It is expected that disputes regarding vaccinations may come before the Federal Court and may require the High Court’s intervention to determine their legality.
Leadership and a clear mandate from the government is necessary to ensure that essential services are able to operate as cases escalate. Australians should have the certainty of attending institutions such as hospitals, aged care, and educational facilities knowing that the government has provided sufficient vaccines for all employees, visitors and contractors to be fully vaccinated. Without a clear message from the government and a decisive approach to open up the economy from lockdown, it may be the task of employees to be the decisive voice that ensures their workplace remains COVID-19 free and operational.
The FWO has indicated that they will be upgrading their guidance in relation to mandatory vaccinations in the next week. It is hopeful that this guidance will provide some much-needed clarity in relation to the position of employers who wish to mandate vaccinations in their workplace.
M+E will keep you updated with any developments in this space.
