The Fair Work Ombudsman have now released new guidance to allow Employers in certain circumstances to make compulsory and mandatory COVID-19 vaccine policies.
This is a major backflip from the previous guidance but aligns with what I and NB Lawyers – lawyers for employers have said in previous articles on this subject including:
- 4 Burning Questions Employers Have Been Asking NB Lawyers – Lawyers For Employers Regarding SPC’s Decision And Their COVID-19 Mandated Vaccine Policy?
- SPC Process Their Way To Mandate COVID-19 Vaccination For All Staff And Visitors (8 Challenges For Employers To Consider)
- COVID-19 Policy Can Protect An Employer From An Unfair Dismissal Claim – 2 Burning Questions To Answer
- COVID-19 Vaccinations Are Coming – What Now? 5 Questions For Australian Employers To Consider.
- Will Directing An Employee To Take The Vaccine Be Held Reasonable? 3 Takeaways From The “Goodstart Early Learning” Case
- Can Australian Employers Force An Employee To Get Vaccinated? 3 Considerations From An Employment Lawyer
- Employers may have legal right to require staff get vaccinated
- Can your work require you to get the COVID-19 vaccine?
Fair Work Ombudsman, Fair Work Commission and Safe Work Australia
At the time of writing Safe Work Australia have released continued guidance saying:
“It is unlikely that a requirement for workers to be vaccinated will be reasonably practicable.”
Safe work australia
Yes the case law at this stage has some level of ambiguity and there are of course opponents to Employers being given the powers (at least expressly) to make a reasonable and lawful direction of this magnitude.
However, in the unfair dismissal case of Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083, the Fair Work Commission provided some commentary on this position saying that it was “at least equally arguable ……..that requiring mandatory vaccination is reasonable in the context of it’s operation”. This case was filed out of time (and failed) and so this was really only commentary by the Fair Work Commission (and involved flu shots) but it gives Employers an idea of how the Fair Work Commission will view such directions. That is is to say they will look at the:
Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083
- context of the operation; and
- whether it is reasonable.
We also explored this in the article Will Directing An Employee To Take The Vaccine Be Held Reasonable? 3 Takeaways From The “Goodstart Early Learning” Caseand in particular pointed out 3 main points that were considered:
- Inherent requirement of the position
- Reasonable and lawful direction
- Workplace Health and Safety
In those unfair dismissal decisions and another regarding temperature health checks the Employer was successful in defending the claims. It would seem at least on the face of it that the Fair Work Commission will consider well drafted policies seriously and will take into account a number of factors:
- The industrial instruments which applied to the employee which included terms requiring:
- Compliance to policies and procedures
- Compliance to reasonable and lawful directions
- Compliance with all health and safety instructions
- The serious and imminent risk to health and safety
- The gravity of the risk to the company taking into specific account the clientele and business of the employer
- The obvious deliberate breach by the employee
- The lack of contrition and even understanding of how the breach could be construed as misconduct (and a high risk)
Fair Work Ombudsman 4 Tier System
The Fair Work Ombudsman have put together a 4 Tier guidance system.
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 (for example, employees working in hotel quarantine or border control).
Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).
Found at the Fair Work Ombudsman website.
The first 2 and potentially even tier 3 seems to support a roll out of mandated vaccine policies as reasonable and lawful taking into account the points above earlier in this article.
Tier 4 work, however, may be more difficult in particular as reasonable adjustments could probably be made with more practical ease.
The guidance from the Fair Work Ombudsman is helpful to Employers but still requires a case by case review prior to rolling out a COVID-19 vaccine policy.
There are likely going to be specific challenges to any mandated policy (save for any Government mandates) by unions and individual employees to policies that are implemented. As an example we foresee the following cases:
- Breaches of the modern award due to lack of consultation;
- Breaches of Enterprise Agreements for failing to adhere to consultation provisions in the correct procedural way;
- Discrimination claims – treating an employee differently due to their political views, parental responsibilities, ethnicity or religion;
- Discrimination claims – on the basis of a medical condition;
- Lack of consideration of medical grounds, information or medical conditions;
- Lack of or failure to consider reasonable adjustments;
- Unfair dismissal claims – for termination of employment due to non-compliance of the policy;
- General Protections claims – on the basis of a number of the factors above which has a direct correlation to the injury of employment either by way of termination, demotion or the like.
Legal advice is highly recommended in this area. NB Lawyers – Lawyers for Employers undertake and offer an obligation free consultation for Employers – we are happy to help.
Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.
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Written By
Director
NB Lawyers – Lawyers for Employers
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.