Fruit and vegetable processor SPC this month became the first Australian company to order staff to be vaccinated while other major companies have said they preferred to focus on encouraging employees to get the jab.
As well as concerns about breaching work health and safety laws if they don’t mandate vaccinations, businesses fear that by requiring jabs they might breach state or federal anti-discrimination laws.
Guidance released by the Fair Work Ombudsman on Thursday outlined which businesses were likely to be able to mandate coronavirus jabs for employees but did not offer firms legal protection from any industrial or discrimination claims that might arise.
Amid the growing debate, Australia’s peak big business and union groups jointly called on Friday for public health orders governing whether staff must be vaccinated against COVID-19 rather than leaving the decision up to individual employers.
The Business Council of Australia and the Australian Council of Trade Unions said while most Australians should be able to choose whether to be vaccinated, they recognised that some high-risk workplaces might need all workers inoculated to protect community health and safety.
“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,” they said in a joint statement.
Former prime minister Tony Abbott also weighed in, saying the government should provide greater clarity so the issue was not decided in the courts by “unaccountable and unelected judges”.
“My instinct would be to have more clarity from government and less that ends up in the hands of a disparate group of judges and officials,” Mr Abbott said in a podcast for the libertarian Institute of Public Affairs.
Barrister Kate Eastman SC said the choice not to be vaccinated in and of itself was not protected by discrimination law.
“We’ve got some clarity in our discrimination law that I think confirms that whether you’re vaccinated or not vaccinated is not a protected attribute,” Ms Eastman said.
The four tiers of work in the FWO advice
- 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).
But she said issues of discrimination could arise where an employers’ general vaccine mandate disadvantaged some people more than others because of characteristics that were protected, such as disability or pregnancy. In Victoria and some other states, religious belief is also protected.
Emily Howie, legal director at Victoria’s Equal Opportunity and Human Rights Commission, said even where a decision appeared initially discriminatory, it could be lawful where it was “reasonably necessary to keep the workplace safe”.
That test depended on factors such as whether social distancing was possible, employees’ vulnerability to COVID-19, whether customers came into the workplace and the availability of vaccines.
Ms Howie said if a case got to court, a person objecting to vaccination would have to show some evidence that they had a protected characteristic, such as a disability or religious belief, and that it prevented them from being inoculated.
Overall, Ms Eastman said, “I think it’s going to be very difficult for one individual person to come along and say, I’ve suffered discrimination or adverse action in the context of a public health emergency”.
But she said employers could push measures too far if they were, for example, to require staff working from home with limited interaction to get vaccinated.
Fair Work’s new four-tier guidance says people working from home are least likely to face mandatory workplace jabs while businesses on the front line such as border control or healthcare were “more likely” to be allowed to require vaccinations.
The Australian Human Rights Commission rejected interview requests and did not answer written questions, although it has some general guidance online.
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