With fruit and vegetable giant SPC becoming the first Australian company to require its staff to be vaccinated against Covid-19, it may only be a matter of time before others follow suit.Qantas looks like a likely contender, with the airline having been a vocal supporter of mandatory jabs for all aviation workers.
This continues the trend we’ve seen overseas, where major US companies like Netflix, Google and Facebook have already announced they will require employees to be vaccinated against Covid-19.
Speaking recently on the topic, Prime Minister Scott Morrison said any moves by Australian companies to mandate covid vaccinations for staff must be “consistent with our laws and particularly our employment laws”.
So, what do our employment laws say on the topic?
Employees in Australia are required to comply with directions given by their employers which are both ‘lawful’ and ‘reasonable’. In most instances, failing to do so may provide a valid reason for dismissal.
What is a lawful direction?
To determine whether a direction to get a covid jab is lawful, employers and workers could start by looking at public health orders for guidance.
For example, in Queensland the state government has mandated the vaccine for certain workers, including aged care workers and those working in Covid-19 wards of hospitals.
Similarly, the federal government has mandated that aged care workers receive their first vaccination by mid-September.
Given these announcements, it would be lawful for an employer in these workplaces to direct an employee to get vaccinated.
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Some of these issues might have already been considered by the employer or industry.
For example, some employers of nurses or hospital staff already mandate vaccinations against other illness, such as tuberculosis and diphtheria, or require workers to wear appropriate personal protective equipment (PPE).
Employees should take a close look at their enterprise agreement, employment award or employment contract to determine if any requirements around vaccinations are included.
What is a reasonable direction?
To work out if a direction is reasonable, we need to look at the details of each case, including what kind of job it is, who the workers are, and what exactly they are being directed to do.
For example, how does the direction work to lessen the risk of covid in that workplace? Is the work particularly “high risk” or essential? Are there other ways of mitigating the risk of covid? Would the worker still be able to do their job if they don’t comply?
Some social circumstances may be relevant too. For example, a requirement to wear a mask at all times may not be reasonable in a regional town, when there is no community transmission of covid in the state, or the worker doesn’t interact with the general public.
In summary – it depends.
Helpfully, the Fair Work Commission has begun to decide on unfair dismissal applications brought by employees who refused to comply with their employer’s COVID-19 direction.
So far, those decisions are indicating a ‘safety first’ approach.
In one case, a community-based care worker refused to get a flu vaccination because she had a reaction to it more than 50 years prior. Her employment was terminated.
In upholding the dismissal, the Commission paid particular attention to the fact that the worker’s clients were old and vulnerable, and her potential to be a “super-spreader” of the flu.
In two further decisions, the Commission upheld the dismissals of a receptionist at a high-care aged care facility, and an early childhood educator. These workers had refused to get the flu shot on medical and general “individual rights” grounds, respectively.
In each case, the Commission emphasised the health and safety obligations the employer owed to both its other employees, and those in its care.
Beyond vaccinations, the Commission has also upheld the dismissal of an employee who refused to disclose his recent travel history to his employer, and a disability worker who failed to report a temperature reading that was 0.5 degrees too high, according to the employer’s policy.
It also upheld the dismissal of a worker who breached a direction not to interact with workers in another work area.
While these decisions all turned on their facts, there is a key message coming out of the Fair Work Commission: when it comes to mitigating the risks of Covid-19 in the workplace, an employer’s health and safety obligations may outweigh any individual circumstance or preference.
Of course, there will always be exceptions, and we should not expect to see any blanket rules applied across any industry.
However, against the context of continuing lockdowns across the country, and low vaccination rates, it is likely that some directions – up to and including mandatory vaccinations – will be upheld as lawful and reasonable.
Giri Sivaraman is a principal lawyer at Maurice Blackburn, specialising in employment law.