Wednesday 3 March 2021
Safe Work Australia and the Fair Work Ombudsman (FWO) have released guidance on workplace vaccination policy as COVID-19 vaccinations become available.
In short, the guidance states that the 'overwhelming majority' of employers do not have the right to mandate vaccinations. It is Federal Government policy that vaccination, including against COVID-19, is voluntary. The FWO goes on to state that there are limited circumstances where a mandate could be valid:
- Where a specific law (such as a state or territory public health law) requires an employee to be vaccinated; or
- Where an enterprise agreement, other registered agreement or employment contract includes a provision about requiring vaccinations; or
- 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).
With regard to the first of the above points, the FWO observes that at present, there are no state or territory instruments mandating COVID-19 vaccination. There are, however, a number requiring influenza vaccinations in specified industries such as residential aged care.
In an OHS Alert article published on 1/2/21 – HWL Ebsworth Lawyers partner Erica Hartley stated that ‘…determining whether vaccinations can be mandated in specific workplaces will require the same "reasonable and necessary" test as other workplace safety requirements.’
‘The types of roles where this may be considered are likely to be ones where there is direct and close physical contact with customers…’
‘Employers will need to consider any objection by an employee on a case-by-case basis’
Where objections have a reasonable basis, it will not be enough to say that vaccination will improve safety: it must be necessary with no other way to address the risk. This is a high bar for employers to meet…'
Also note the comments by Fair Work Commissioner Hunt in Ms Maria Corazon Glover v Ozcare  FWC 231 (18 January 2021) at 126:
'In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector'.