Fair Work Ombudsman suggests Australian employers could force certain workers to get Covid jab
Updated advice outlines four-tier system and urges caution as Coalition MPs speak out against requiring workers to be vaccinated
The Fair Work Ombudsman has issued fresh advice for employers considering making the Covid vaccine mandatory for workers, setting out a four-tier system to determine when such an order would be reasonable.
The updated advice, released on Thursday, replaced its previous advice that most employers would not be able to compel staff to get the Covid vaccine.
It came as the assistant attorney general, Amanda Stoker, urged “ordinary” employers not to require staff to be vaccinated.
Stoker is one of a number of Coalition MPs who believe the government must continue to resist employer calls for clearer public health orders requiring vaccination in at-risk industries, which Morrison has labelled a mandatory vaccination program “by stealth”.
Despite the mixed views within the Coalition, Morrison has cleared the way for employers to direct staff to be vaccinated, citing advice from the solicitor general it may already be lawful to do so where such a direction is “reasonable”.
The FWO’s updated advice urged employers to “exercise caution if they’re considering making Covid-19 vaccinations mandatory in their workplace and get their own legal advice” noting that legality will be determined on a case-by-case basis.
Factors that influence the reasonableness of a direction include: the nature of the workplace, community transmission, the effectiveness of vaccines, employers’ circumstances, employees’ reasons for refusing, and vaccine availability.
The FWO declared it was “more likely” to be reasonable to require vaccination for tier one work, where staff are in contact with people at risk from coronavirus, such as airline workers, or in tier two, where they work with vulnerable people, such as aged care.
Tier three work, where there is interaction with the public, may allow employers to require vaccination, but this is more likely if there is community transmission.
Tier four work with minimal face-to-face interaction is unlikely to allow employers to direct their staff to be vaccinated.
On Thursday, Stoker said that she did not think businesses had a right to demand their staff get vaccinated because “in general it needs to be the case that people are making a decision for themselves”.
“Let me be perfectly clear … this should be voluntary,” Stoker told Sky News. “The individual has the right to choose what works for them.
“An employer can encourage, an employer can – if they want to – provide an incentive … but forcing someone is a different thing altogether and I think that is a clear message.”
Stoker argued that conscientious objection rates may be so low that Australia can achieve 80% vaccination rates without vaccine requirements.
The Liberal senator Gerard Rennick also said he was not comfortable with mandates outside of high-risk health environments, and said he believed most employers were only looking at the concept to avoid lockdowns.
“I think there are competing rights and there are competing risks, and in an aged care the risks for older people overrides the rights of the workers … but I think for the under-60s, I would say that the risk of dying of Covid doesn’t justify it,” Rennick said.
“I am very reluctant to mandate, I am very reluctant to give carte blanche to employers.”
He said employers should wait until they saw the success of the voluntary program before considering mandates, saying “stick with it” before introducing such orders.
The Western Australian MP Celia Hammond, a former academic lawyer, also supported “the option of choosing wherever possible”, and said any decision on mandates should be left up to each workplace.
“The employers and employees are best placed to work out whether their workplace is actually one where the health and safety of staff, and anybody else who comes in to the workplace, is such that it should be made to be mandatory,” she told Guardian Australia.
Other MPs did not want to comment publicly, saying the federal government had “nothing to gain” by getting involved in the debate, and there was concern that mandates could fuel vaccine hesitancy.
“Business are not doing themselves any favours by raising the prospect of this,” one said.
But Michael McCormack, the former Nationals leader, said employers were wanting to provide a safe workplace and if a minority did not want to get vaccinated, “that causes problems”.
“If it is not mandatory in certain industries then that does create a real legal and medical dilemma,” he said.
McCormack said the issue would need to be resolved for the aviation sector, manufacturing industries and professions such as teaching.
At a doorstop later on Thursday, Stoker said that “in places that have a public health function it’s well established that it’s necessary to take whatever precautions you can to mitigate those risks” – including in aged care, where vaccination will be mandatory from mid-September due to a national cabinet agreement pushed by the Morrison government.
“But they’re in a different category to an ordinary workplace – and ultimately those are matters for state governments,” she told reporters.
“As a federal government our principle is clear: we strongly encourage vaccination but it’s voluntary.”
The Australian canned goods giant SPC last week announced it would be mandating coronavirus vaccines for its employees and other major employers, including Qantas, have called on the government to mandate Covid-19 jabs for aviation staff.
The largest employer groups ,including the Business Council of Australia, Australian Industry Group and Australian Chamber of Commerce and Industry, have all urged more extensive public health orders to provide greater legal certainty for employers to require vaccination.
Industry groups have more mixed views on vaccine mandates, with many nominating vaccine supply and priority worker status as more important measures to help their workforce.
Dean Long, the chief executive of the Accommodation Association, said his members were negotiating the “quagmire” of whether an industry-wide policy to require vaccines would breach legislation unless it were included in public health orders.
“The line used by every government is to follow the health advice – but if the health advice is this is what we need to do to avoid lockdown and stay open, it should be actively considered by government.
“It takes away issues of who is liable. It can’t be a business-by-business approach … it needs some government decision with business engagement to get the right outcome.”
Patrick Hutchinson, the chief executive of the Australian Meat Industry Council, said at this stage there was “no point talking about mandating no jab no job” because of insufficient vaccine supply.
Jos de Bruin, the chief executive of Master Grocers Australia, said members would “strongly encourage” vaccination given their workers were exposed to high levels of risk, but requiring them was a “sledgehammer approach” they were unlikely to adopt.
“They’re at constant risk from consumers coming in who may have the disease and not have been vaccinated – at risk both of our staff contracting it and the business closing down,” he told Guardian Australia.
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