Can employers make COVID vaccines compulsory?

As Qantas joins regional airline carrier Alliance Airlines and canning company SPC in making COVID-19 vaccinations mandatory for their workforces, law experts are casting doubt on the legality of such moves.

“The law isn’t on the employer’s side,” Joo-Cheong Tham, a professor at Melbourne Law School said.

“There are only limited circumstances where workplace vaccine mandates are likely to be found lawful.”

Those limited circumstances, he said, come into play when public health directions require employers to do so. This is currently the case in most states for workers in residential aged care, quarantine staff and in NSW it has been applied in the construction industry.

But as Delta cases continue to rise, attention is being drawn to the risk faced by workers in settings where social distancing is limited, and the obligation of employers to provide a healthy and safe workplace.

SPC boss Hussein Rifai defended the move to make vaccinations mandatory for his 450 factory and office staff as an act of protection. SPC’s cannery is in Shepparton which is currently battling to get on top of a COVID outbreak. In the Greater Shepparton area there are currently 37 active cases of COVID-19, with 15 new cases announced in the past 24 hours.

“As a company director I am obliged under Australian law to provide the safest workplace I can for my employees,” Mr Rifai told NCA NewsWire.

“I could go to jail for industrial manslaughter if I don’t do this.”

Similarly, Qantas chief Alan Joyce said, “Having a fully vaccinated workforce will safeguard our people against the virus, but also protect our customers and the communities we fly to.”

In contrast, the relevant unions have vigorously protested moves to force employees to be vaccinated.

“If Qantas truly had health and safety in mind, it would be offering support to workers and ensuring rapid testing of passengers and crew is put in place to prevent the risk of spread on planes.” Michael Kaine, national secretary of the Transport Workers Union, said.

Representing SPC workers, the Australian Manufacturing Workers Union’s national secretary Steve Murphy said getting the workforce vaccinated was a goal the union supported, but the “company’s approach does not help build workers trust and confidence.”

“This is a public health matter, not an industrial one – it should not be left to bosses,” he said.

The ACTU and Business Council of Australia have backed the wide-spread sentiment that vaccination programs should remain within the realm of public health policy.

“We believe that for the overwhelming majority of Australians, your work or workplace should not fundamentally alter the voluntary nature of vaccination,” they said in a joint statement.

“These are serious decisions that should not be left to individual employers and should only be made following public health advice based on risk and medical evidence.”

The ACTU has also been publicly pushing for employees to be given paid vaccination leave, with the union’s secretary Sally McManus tweeting:

It is excellent that today the Victorian Govt has joined a growing list of employers in the private and public sector who have introduced paid vaccination leave. This is about removing barriers & supporting employees to get vaccinated. Well done @CPSU_Vic

— Sally McManus (@sallymcmanus) August 22, 2021

Last week, the Fair Work Ombudsman (FWO) issued new advice that businesses may seek to mandate vaccinations if they believed the measures were “lawful and reasonable.”

Simon Obee, the principal lawyer with specialist employment lawyers EI Legal, said the update appeared to be a marked shift from FWO’s previous position which was: “In the current circumstances, the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus.”

The FWO’s latest advice divides employees into four tiers of work. The first tier is where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus, for example working in hotel quarantine or border control.

The second tier is a workplace where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus, for example, health care and aged care.

The third tier is where there is interaction, or likely interaction, between employees and other people such as customers, other employees, or the public, for example stores providing essential goods and services.

The fourth tier is work, where employees have minimal face-to-face interaction as part of their normal employment duties, for example where they are working from home.

The FWO said whether an employer’s direction was “lawful and reasonable” would be assessed on a case-by-case basis and on the following factors: The nature of the workplace and whether it is possible to social distance; the extent of community transmission in the location of the workplace; the effectiveness of vaccines in reducing risk of transmission; work health and safety obligations; each employee’s circumstances including their duties and the risks associated with their work; vaccine availability; and where an employee have a legitimate reason for not being vaccinated.

Mr Obee said as the FWO guidance was not binding, it left employers “in the unenviable position of having to make their own assessment of whether a vaccine can be mandated in any particular circumstance.”

“In our view, the primary focus that employers should have when carrying out this assessment should be on their WHS duties,” he said.

“Employers have a duty both to protect the health and safety of their staff (from contracting COVID at work) and the health and safety of other persons affected by their staff (from contracting COVID from their employees).

“If these risks can be managed without the need for compulsory vaccines (eg a strict policy of of mask wearing, cleaning and social distancing), then it is unlikely to be possible to mandate employees to be vaccinated.”

With the prospect of court challenges from individual workers and unions, the business community is mounting pressure on the Federal Government to clarify their legal right to enforce vaccination.

To date, the prime minister has withstood such demands: “We do not have mandatory vaccination policy in this country,” Mr Morrison said last week, at the same time ruling out using federal public health orders to compel workers to get vaccinated.

He has also quashed suggestions that the federal government would be prepared to make changes to workplace law to allow employers to mandate vaccinations.