By Australasian Convenience and Petroleum Marketers Association CEO Mark McKenzie.
As federal and state governments move to increase the supply of Covid vaccine in Australia, more and more employers are asking whether they can legally require their staff to get vaccinated.
This question has been hotly debated in recent days, given the highly publicised decision of food and vegetable giant SPC to prevent staff (and visitors) entering its food processing facilities after November unless they have been vaccinated. The move has been applauded by some employer groups as a sensible solution to the management of the business risk of Covid-19 but has also been opposed by unions and civil liberty groups who have branded the policy as ‘unfair and unreasonable’.
But is the SPC move legal? Can employers force their staff to vaccinate?
Unfortunately, there is currently no definitive answer to this question. Employees are required to comply with all “lawful and reasonable” directions of their employer under Australian employment law and the employer is required to take all reasonable actions to ensure that their workplace is safe under relevant State/Territory work safety legislation – but they must also respect privacy legislation and the workers individual rights to make their own health decisions.
So, the answer to the question of whether it is legal to require staff to vaccinate hinges on whether a requirement for staff to vaccinate is a ‘lawful and reasonable’ action.
The Fair Work Ombudsman (FWO) – the national arbiter of workplace disputes – suggests that there are limited circumstances where an employer can compel their employees to be vaccinated. The FWO suggests that the relevant factors an employer should consider before issuing any instruction on this issue include:
- Whether a specific law (such as a state or territory public health law) requires an employee to be vaccinated.
- Whether an enterprise agreement, other registered agreement, or employment contract includes a specific provision about requiring vaccinations.
- If no law, agreement or employment contract applies that requires vaccination, whether it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated (which is assessed on a ‘case by case’ basis).
Further considerations include whether employees have a legitimate reason for not being vaccinated (for example, a medical reason), and how protections for employees under anti-discrimination laws may apply (additional guidance on compulsory staff vaccination is included on the Fair Work Ombudsman’s website at Covid-19 vaccinations: workplace rights & obligations – Fair Work Ombudsman).
Setting aside the legal debate, there are a lot of things that an employer can do to ‘strongly encourage’ staff vaccination without actually making it compulsory.
It is worth noting that the SPC staff vaccination policy announced this week did not simply involve the company introducing compulsory vaccination from November 2021. The policy was accompanied by a raft of new actions designed to make it easier for staff to get vaccinated. These measures included:
- Providing paid time off for staff to get vaccinated
- Providing additional paid sick leave for staff who have an adverse reaction to their vaccinations
- Allowing exemptions for staff on a case-by-case basis, where a staff member has received advice from their doctors that they should not receive a vaccination.
In our industry, a small NSW fuel retail business recently sent out a message to staff that provides a great example of how to walk the ‘fine line’ between reducing the risk of Covid contagion at fuel sites and observing the requirements of Australian employment law, when it comes to the issue of staff vaccination (the business provided permission for ACAPMA to reproduce the message, with some minor edits to protect privacy, and this message is provided at the bottom of this article).
This particular communication is a great example of how to work with staff to encourage vaccination and contains four important elements, namely:
- A discussion of why the business believes it is important for staff to vaccinate
- Affordable and meaningful incentives for staff to vaccinate
- Links to sources of reliable information designed to counter some of the vaccine myths that are circulating in the community, and
- A clear statement that staff are not being forced to vaccinate.
In the meantime, ACAPMA continues to work with Australian state and territory governments to promote increased opportunities for the early vaccination of front-line fuel distribution and fuel retail staff.
Members with questions about vaccination policy in the workplace should contact the ACAPMA Secretariat by emailing communications@acapma.com.au or calling 1300 160 270.
An example of a staff communication on workplace vaccination is available at ACAPMA’s site.
Published with permission from ACAPMA.
Source: https://acapmag.com.au/2021/08/staff-vaccination-compulsory-or-not/
