Cannery manufacturing processor SPC has become the first Australian business outside of the prime areas of Aged Care, Child Care and Health to mandate COVID-19 vaccinations for all staff and visitors.
We have already provided guidance and viewpoints on this particular topic in the articles
- Will Directing An Employee To Take The Vaccine Be Held Reasonable? 3 Takeways From The “Goodstart Early Learning” Case,
- Can Australian Employers Force An Employee To Get Vaccinated? 3 Considerations From An Employment Lawyer and
- COVID-19 Vaccinations Are Coming – What Now? 5 Questions For Australian Employers To Consider
Regarding whether an Employer can direct an employee to get the COVID-19 vaccination for workplace purposes.
Although Safe Work Australia have put up on their website a generalised viewpoint that it is unlikely to be held “reasonably practicable” to direct an employee to take the COVID-19 vaccine the case law commentary seems to differ in this approach – (read https://www.lawyersforemployers.com.au/will-directing-an-employee-to-take-the-vaccine-be-held-reasonable-3-takeways-from-the-goodstart-early-learning-case)
So what have SPC done?
SPC are requiring all workers and any visitors to their sites to be vaccinated by November providing the following:
- 6 weeks to book their first vaccination
- Paid vaccination leave
- 2 days of special leave if they are unwell in the recovery of the vaccination
The Union claims they were not consulted with the roll out of this policy and potentially there may be challenges on a number of fronts which will require further debate. Some of the challenges are:
- The roll out of the vaccine has been slow and there are also eligibility issues for some people to receive the vaccine – this may well lead to “moot” discussions around it being mandatory
- The effect on contractors and visitors to site – this may well lead to contractual obligations inserted into dealings with SPC
- With the claimed lack of consultation will that be a breach of the Enterprise Agreement or Modern Award in place?
- The medical condition objections that some workers and visitors may have
- The religious or other objections that may well lean into actions around discrimination
- Health and safety obligations – how will this be adhered to and linked with the employment of the worker
- Is there a basis for the mandated vaccine to be an “inherent requirement of the position?
- Will SPC’s position embolden other organisations to follow? If so, will this lead to mandated vaccine passports and how will this be challenged in line with other laws outside of Employment law such as Administration law?
This is a challenge all Employers will need to face.
At this stage the rollout of the vaccine has made this to some extent a moot discussion but the actions of SPC could kickstart a number of Employers implementing a similar policy.
Legal advice is highly recommended in this area. NB Lawyers – Lawyers for Employers undertake and offer an obligation free consultation – we are happy to help.
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.