Page 26 - Print21 November-December 2021

Legal Issues
Vaccinations in the workplace
There is a lot of discussion about vaccinations, and whether an employer can make vaccinations in the workplace compulsory. Print21 legal eagle Wal Abramowicz highlights the options.
People should have a choice about whether to undertake medical treatment or
not. The Australian Government has said
Covid vaccinations will be free and voluntary. However, in NSW, certain industries and professions have been added to the public health orders making vaccinations compulsory.
In Victoria anyone working in an essential industry has been told by the state government they have to be vaccinated. Some employers have mandated vaccinations as compulsory for their employees.
The reasons why an employer might make vaccinations compulsory include:
• Minimising disruptions to
operations through employees being absent from work due to illness.
• To avoid lockdowns, like we have had over the last 18 months, and the devastating economic effect it has on businesses.
• To fulfil the employer’s responsibility to provide a safe workplace.
• An employer might be liable if employees are infected at work.
An employer can make vaccinations compulsory if:
•
Each employee’s personal circumstances and whether they have a valid reason for not being vaccinated.
Vaccinations: Major workplace issue
challenge the dismissal under the Fair Work Act.
In recent decisions, the Fair
Work Commission held that the refusal to have a flu vaccination, contrary to public health orders and/ or employers’ policies, meant the employees were unable to fulfil the inherent requirements of their job, and the dismissals were not unfair.
The Fair Work Commission said that if a direction had been given
to an employee in an aged care facility to have a flu vaccination, the direction would have been lawful and reasonable. On appeal, the Full Bench upheld the decision, although the decision on appeal was not unanimous.
In a dissenting judgment, deputy president Dean said, “Never have
I more strenuously disagreed with an outcome in an unfair dismissal application.... one can only hope that the Majority Decision is recognised as an anomaly and not followed by others.”
• •
•
A law mandates vaccination as compulsory in certain industries, professions and/or workplaces. An Enterprise Agreement
or individual employment agreement includes a clause that makes employment conditional upon vaccination. However, care needs to be taken to ensure the clause does not infringe any anti- discrimination legislation.
The employer issues a “lawful and reasonable” direction.
The Fair Work Ombudsman has issued guidelines on vaccinations. The guidelines divide work types into 4 tiers:
• Tier 1 is where employees are required to interact with people who are at an increased risk of being infected.
• Tier 2 is where employees are required to have close contact with people who are vulnerable to infection.
• Tier 3 is where employees are likely to interact with other employees and customers in the normal course of their employment.
• Tier 4 is where employees have minimal face-to-face interaction with others.
It is more likely that a direction given to Tier 1 and 2 employees will be lawful and reasonable. It is unlikely that a direction given to Tier 4 employees will be lawful and reasonable.
A failure to follow a lawful and reasonable direction is a valid reason for dismissal of an employee. An employee who has been dismissed for failing to follow a lawful and reasonable direction may be able to
“Fair Work Commission held that the refusal to have a flu vaccination meant the employees were unable to fulfil the inherent requirements of their job, and the dismissals were not unfair.”
The debate is not over. Each workplace is different, and every employee’s circumstances are different. There is no one size fits all approach. You should seek legal advice if you are considering making vaccinations in your business compulsory. 21
For more information contact Wal at Fox & Staniland Lawyers, Gordon, NSW Tel 02 9440 1202
Email: wal@foxstaniland.com.au
Wal Abramowicz practices with Fox & Staniland Lawyers, Gordon, NSW
What is “lawful and reasonable” will depend on the facts of a particular case. Factors to consider include:
• The requirements of the
employee’s role and nature of the
employer’s business.
• The extent to which the employee
needs to work in a face-to-face role.
• The terms of any public health
orders in the industry or location of the workplace.
26 Print21 NOVEMBER/DECEMBER 2021