Federal Government and Fair Work Ombudsman Place the Vaccination Burden Onto Business

Thousands of tradies returned to work this week, under new rules that require them to be vaccinated for COVID-19.

The reaction to the direction has been mixed, with some seeing it is a sensible move to stop the spread of the virus, while others express the view that making vaccines a condition of employment is a slippery slope for civil liberties and personal freedoms.

For his part, Prime Minister Scott Morrison – the man ultimately responsible for botching the procurement of the very vaccines he is directing people to take – has attempted to shift the burden of vaccination away from his government and on to employers, asserting that already-suffering businesses are the ones who bear the legal burden of keeping their workplaces safe.

“Businesses have a legal obligation to keep their workplaces safe and to eliminate or minimise so far as ‘reasonably practicable’ the risk of exposure to COVID-19”, the prime minister said in a recent statement on the vaccination rollout.

The inference is, of course, that businesses who fail to direct employees to obtain vaccinations could face the legal consequences of any COVID spread.

It is a convenient and perhaps effective marketing strategy –  passing the buck from his own government on to struggling businesses.

It is also one which could further ‘divide and conquer’ an already polarised population, turning employers and employees against one another, and creating tensions and even animosity in workplaces.

Construction workers added to the list

Construction workers are not the first sector to be confronted with mandatory vaccinations.

Airport workers, hotel quarantine workers, aged care workers and some healthcare workers have already been subjected to mandatory vaccination policies in the past several months under public health regulations.

Class action may be on its way

In recent days, a number of civil law firms have foreshadowed a potential class action on behalf of construction workers in Greater Sydney, challenging the direction which requires employees to obtain a COVID vaccine or be unable to work.

Many of these workers, the potential lawsuits note, do not have conditions in their employment contracts requiring vaccination. The lawyers assert that a blanket requirement for all workers in an industry to be vaccinated is contrary to laws which require directions to be “lawful and reasonable”.

Fair Work Ombudsman

The Fair Work Ombudsman (FWO) recently released a statement asserting that employers can require their employees to obtain a COVID vaccine, provided the direction to do so is “lawful and reasonable”.

The FWO says this assertion, “is guided by applicable laws and judicial decisions, enforceable government directions (such as public health orders) and advice issued by relevant Commonwealth, state and territory agencies.”

The FWO has now adopted a new four-tiered approach for mandatory vaccines in Australian workplaces.

Under the approach:

• Tier 1 employers are more likely to be able to mandate vaccines for employees. This applies to workplaces where employees interact with people who have an increased risk of COVID-19 infection, such as border control and healthcare.
• Tier 2 includes workplaces where employees are required to have close contact with individuals who are particularly vulnerable to the health effects of the virus, including those working in aged care.
• Tier 3 covers public-facing work environments, such as essential goods and services, where employees are likely to interact with members of the public in their normal duties.
• Tier 4 applies to work environments where employees have minimal face-to-face interaction with members of the public. This includes work that is completed at home.

The FWO has acknowledged that employers may have a mixture of tiers within their businesses, depending on the roles of their employees.

Unclear message

Despite outlining these tiers, the FWO has stressed that mandatory vaccination directions must remain “lawful and reasonable” which, it says, must be assessed on a case-by-case basis.

The Ombudsman has therefore urged employers to “exercise caution if they’re considering making COVID-19 vaccinations mandatory in their workplace and get their own legal advice”.

“The coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus,” the FWO says.

It is unclear message – one which may be difficult for employers to decipher and apply, and could result in businesses ‘erring on the side of caution’ in the face of government warnings by unfairly directing workers to obtain a COVID vaccine.

It will be interesting to see if the potential class action will be filed and, if so, whether will confirm that workers cannot be forced to choose between either obtaining a vaccine or being unable to work, or if such action may otherwise lead to changes in government policy.

Only time will tell.