The media has been awash with discussion about mandatory vaccination this week, and front pages across the country are leading with discussion of changes from the Fair Work Ombudsman.  So what has changed?  Is there clarity about when a business can mandate vaccinations? Has the law been updated?  The short answer is that nothing has changed.  The employment, safety and privacy laws have not changed.  The Public Health Orders have not changed in this regard.

So why all the talk?

Todays talk is in part because the Fair Work Ombudsman has released revised guidance, aiming to add more context to the existing legislative and regulatory framework.  We will explore the FWO guidance a little later, but it is becoming abundantly clear that this conversation needs to go back to basis of employment, safety and privacy law if businesses are to understand the possibilities and the problems with mandatory vaccination.

As ACAPMA has been highlighting for the last 18 months, in the current (unchanged) legislative and regulatory context mandatory workplace vaccination is possible but problematic, and the workplace, safety and privacy laws that give rise to both the possibility and the problems have not changed.    The long answer is that the government, the regulators and businesses are responding to the questions from employers and unions in the COVID context, and are publicly recognising the fact that the delicate balance between the possibility and the problems are changing and shifting with each outbreak.

It is incumbent on every business to understand both the possibilities that the law affords, and the problems that must be considered and addressed when conducting regular risk assessment and response to safety risks, including COVID-19.

The concept of mandatory workplace vaccination is complicated.  It represents an intersection of three individually complicated legal frameworks; safety laws, privacy laws and employment laws.  Navigating any of these complicated legal areas in an ideal workplace setting is difficult, navigating the tangled web of their intersection, in the less than ideal situation of a global pandemic that is in full flight and actively threatening  business operation, workers livelihoods, community freedoms and peoples lives, is almost impossible.

This inherent and situational complexity is the reason that some businesses have been calling for the government to mandate vaccines for certain industries, and failing that for detailed guidance and clarity on how and when a business can institute a workplace vaccination mandate.

The Federal Government has ruled out making changes to the Fair Work Act to make vaccines mandatory for some or all workplaces, and while the State Governments have the power, through the use of the Public Health Orders, to require vaccination for some or all workplaces, this power has so far been utilised in very limited circumstances (quarantine workers, some airport workers and health care).  It is possible that some or all of the States will change their stance and more workers and workplaces will be added to the Public Health Order requirements for vaccination, but at this point the appetite from the Sates for change is low.  So a government mandate is unlikely from either a State or Federal level and thus it falls to individual businesses to address.

So what are the options?

As ACAPMA has covered extensively (like here, here, here, here and here) in the current legislative and regulatory context all businesses have the option of setting a vaccine mandate, BUT it will need to amount to a reasonable direction in order for it to be lawful.

Those of you who were paying close attention to the Prime Ministers press conference a week or so ago will recognise that wording…”reasonable direction”.  A reasonable direction, also known as a lawful direction, is an instruction that an employer gives to an employee.  An instruction not to use personal mobile phones while at work can be a lawful instruction.  When an employee fails to comply with a lawful instruction that breach can amount to misconduct and result in termination of employment.

So what makes a reasonable or lawful instruction in the workplace?

The better question is who decides what is a reasonable or lawful instruction in the workplace, because if an instruction is given and the business and worker disagree on whether or not it is reasonable or lawful then it will be in a Tribunal / Commission / Court setting that a final ruling on whether it was lawful will be made.

What happens when an employee breaches a reasonable or lawful instruction in the workplace?

As noted breaches to a reasonable or lawful instruction amounts to misconduct, for which termination of employment is a reasonable response, however, an instruction can be found to be reasonable (such as the instruction not to use mobile phones at work) but can be found to not have been applied in a procedurally fair manner.

In a recent case at the Fair Work Commission where an employee was terminated for breaches to a clear mobile phone use policy it was found that the policy was legitimate, as was the response of the business of termination in response to breaches, however the dismissal overall was unfair because the consultation prior to the implementation and enforcement of the policy was lacking, and the business had not adequately considered and responded to mitigating circumstances in this particular situation.

The lessons in the law and this case for those businesses considering issuing an instruction to staff to be vaccinated in order to attend the workplace are clear, the business has the capacity to issue the instruction, BUT any implementation will have to follow detailed consultation and address any mitigating circumstances if the business is going to rely on the instruction and manage breaches.  Finally any dispute over the reasonableness of the instruction will be decided by a court.

These are some, (some, there are more we will explore shortly)  of the fundamental elements to be considered on the employment side of this tangled equation…the next side to review is the safety side.

What is the role of Safety?

All employers (and PCBUs) have a Duty of Care to ensure a safe workplace and to undertake an active and ongoing assessment of the risk and to implement appropriate controls that address and mitigate that risk.  In the case of a retail fuel site a mobile phone is an electronic device and a source of static risk and therefore an ignition source.  An instruction to staff not to have their mobile phone with them while onsite (for it instead to be secured in a bag/locker) is an instruction that meets the businesses legal requirement under the Safety Laws and Australian Standards to control ignition sources in hazardous zones.  In giving the instruction the business must ensure that they clearly outline what will occur if the employee breaches the instruction; such as termination of employment.

As and example if a fuel retail business that has provided new staff with a clear instruction to secure their mobile phone (in bag/locker) and to not have it with them, who then discovers the employee has taken the mobile phone with them into a hazardous zone and subsequently terminated the employee for misconduct (failure to follow a lawful instruction) and breaches to serious safety instructions, is almost certainly be considered to both have issued a lawful instruction and responded appropriately to the breaches.

This assessment of reasonable and lawful instruction and response is due to the clear safety imperative in a fuel retail context of controlling ignition sources, and the clear instruction to all staff on expectation and response.

All businesses (and PCBUs) have this Duty of Care to ensure the safety of staff.  This is a positive duty.  This means that businesses can be in breach of the laws and receive penalties (or jail time) for not adequately assessing and responding to risks to the safety of workers.  All businesses are required to understand the risk in the workplace, review current risk settings, review and understand current mitigation strategies, and implement controls and hazard mitigation strategies appropriate to their business.

COVID-19 is a risk to the safety of staff (as well as customers) and must be assessed, reviewed and responded to like any other risk (such as ignition sources in the hazardous zones).

So a business that does not put into place appropriate controls to protect their staff from COVID-19 could face penalties, even if their staff do not get sick (that is what a positive duty means, a breach can occur due to a lack of appropriate system or control, even without a safety incident).

With the current pandemic, a situation that has been active for over 18 months and is currently in its third and worst wave of infections as the Delta variant rages the positive Duty of Care requires employers to actively review control mechanisms, including masks, distancing, innovative interaction and distancing methods, and indeed vaccines.  It requires employers to consult on these controls with the workplace and to implement and enforce them in the interest of protecting workers. However, vaccine access, hesitancy and the charged nature of vaccines generally have left many businesses seeking more certainty on if they should (as covered they can) mandate vaccines, and if that instruction will be considered reasonable and lawful.

Last night the Fair Work Ombudsman updated its general guidance on vaccines in an effort to bring more clarity.

The FWO guidance focuses on; lawful and reasonable instruction, consultation, payment & leave.

FWO:  Lawful Instruction

The FWO guidance makes it clear that “the coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus”

In its exploration of lawful and reasonable instructions the FWO Guidance highlights that “there are a range of factors that may be relevant when determining whether a direction to an employee is reasonable… including; the nature of the workplace…the extent of community transmission…the effectiveness of vaccines in reducing the risk of transmission or serious illness….work health and safety obligations…each employees circumstances….whether employees have a legitimate reason for not being vaccinated…vaccine availability”

These elements are also closely ties to the safety assessment.  For fuel wholesale and retail it is important to note that the FWO guidance, when looking at the nature of each workplace, highlights that the provision of an essential service is to be weighted.

The FWO guidance makes it very clear that these assessments are case by case and to be conducted by the business themselves, but helpfully provides some examples of broad categories or Tiers of work in the context of vaccination mandating;

  • 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.  Examples would include Hotel Quarantine workers, Border Control workers
  • Tier 2 work – where employees are required to have close contact with people whoa re particularly vulnerable to the health impacts of coronavirus.  Examples would include Health workers, Aged Care workers
  • Tier 3 work – where employees have an interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment.  Examples would be workers providing Essential Goods and Services
  • Tier 4 work – where employees have minimal face-to-face interaction as part of their normal employment duties.  Examples would include employees working from home

The FWO guidance emphasises the need for any business considering issuing an instruction to workers regarding vaccination to consult.  Consultation with workers, before the implementation of any such charged instruction is vital.  This is an opportunity for the business to understand and engage with the concerns of employees.  Consultation also offers an opportunity for the business to understand if there are any special circumstances that may require special responses.  This is a vital element to ensuring that the instruction, and any response to breaches, is reasonable.

FWO:  Consultation

Consultation allows businesses to explore common issues such as; allergies or medical reasons for not being vaccinated, religious reasons for not being vaccinated, conscientious objection to vaccination, payment for vaccination time and vaccine recovery (which is a real concern with many persons suffering from a day or two of mild illness after either first or second dose).

The consultation phase allows the business to identify, consider and respond to these concerns – which greatly reduces the likelihood that there will be dissent following implementation, and thus consultation increases the chance that if the matter ends up in a Tribunal / Commission / Court that the instruction will be found to be reasonable and lawful.

The FWO guidance also notes that Awards, Agreements and Employment Contracts may be updated to require vaccination if appropriate, while noting that the consultation requirements will remain for these mechanisms too.

FWO:  Payment and Leave

All work time is paid work.  This concept needs to be extended to instructions that are given related to work.  If the business is going to require that staff get vaccinated then the business should consider providing paid time to both get vaccinated and recover from the mild illness that is common with the first or second shot (usually 2 days).

What about Privacy?

The business can enquiry as to the personal status of employees in matters where there is a direct impact on work and safety at work, so if the risk assessment conducted at the workplace for the particular work, in the current specific circumstances, highlights that vaccination is a desired control, then it would appropriate, in that context to request the vaccinations status, and evidence of same, from an employee.

What the business can not do is expose the private status of employees to other employees.  This becomes very important to understand in the context of exceptions to any vaccine mandate in the workplace.  If an employee has a medical exemption that exemption, the fact that it is a medical exemption and the fact that the employee has not actually been vaccinated, is not something that other employees have a right to understand.

This element needs to be well catered for in any implementation plan for a vaccine mandate, including a clear instruction to all staff to leave compliance with the instruction to the business and not to violate the privacy of other staff by enquiring about a persons vaccination status.

What about Vaccine Injury?

There are complications, very rare complications that are associated with all medications and vaccinations.  What has not been tested at court is the extent (if at all) a business will be held responsible if an employee suffers any complications from receiving a mandated vaccine.

Current case law is thin on numbers and this lack of clarity is causing businesses to see clarity on indemnity – this is the most opaque element of the No Jab No Job discussion.

So whats the bottom line?
“As it has been for many years, it is possible for businesses to mandate vaccination.  Possible, but problematic” explains ACAPMA Executive Manager for Employment and Training, Elisha Radwanowski.

“Businesses, small businesses particularly, are hesitant to mandate vaccination in the face of potential legal challenges to the reasonableness and lawfulness of the instruction, particularly when access to the vaccine is still ramping up.”

“Businesses that are exploring mandating absolutely must consult staff early and thoroughly, and must be ready to deal with exceptions, and to do so privately” said Elisha.

“There are legitimate reasons for persons not to have a vaccine, including religious reasons. Any action taken against an employee who has such legitimate reasons would amount to unfair dismissal and may rise to adverse action or discrimination, so a detailed and well thought out exemption process and confidential implementation framework is absolutely necessary”

“Providing payment to staff to go ant get vaccinated or to recover from the mild illness that is not uncommon with either the first or second does is an important element of any mandate, but it must also be considered from the perspective of equity.  The business must consider how it will provide for those staff who have already received their vaccine and how it will provide for those staff who are unable to get the vaccine” cautions Elisha.

“The FWO guidance adds needed context to the current conversations, but it is important to note that there has been no change to the law and that all employers have a requirement to manage safety at work, and a right to issue lawful instructions pertaining to managing safety”

“What the FWO Guidance does is highlight that, in its opinion, there are circumstances, such as in the face of an active and highlight mobile outbreak, such as the national Delta outbreak we are in at the moment, it is appropriate for Tier 3 essential workers (those who come into contact with each other and customers providing an essential service), to be directed, via a reasonable or lawful instruction, to get the jab.  This opinion comes with the important caveats that it would be appropriate only provided that consultation, payment and leave and appropriate mechanisms for addressing mitigating or special circumstances have been met”  said Mrs Radwanowski.

“This areas is going to be a topic of continued conversation, and the wheels of change in legislative and regulatory context move slowly.  The reality is that as vaccination rates continue to increase nationally and more vaccine, of more types continue to come on board, businesses are likely to be more effective in achieving high levels of vaccination in their workplaces by actively encouraging, not mandating vaccination”

“Vaccination information and drives, paid time off for vaccination and recovery and other positive vaccination encouragement, that respects the fact that some people cannot receive the vaccine (so be wary of rewards that not all employees can participate in), are much more likely to result in high levels of vaccination in the short term, which the lawyers and business groups and unions argue about whether it is appropriate for the business to use its right to issue a instruction” concluded Elisha.

This matter will continue to be an issue of focus and ACAPMA will continue to keep members updated as the guidance and context changes, for now it is clear – we can mandate, but it is much cleaner to simply encourage vaccination.

For a copy of the Fair Work Ombudsman Guidance updated last night see;

Elisha Radwanowski BCom(HRM &IR)
Executive Manager for Employment and Training