Mandating the COVID-19 vaccine for all staff or you will be dismissed
Shepperton based food manufacturer, SPC, has become the first Australian company to mandate the COVID-19 vaccine for all of its 450 onsite staff and visitors. SPC is refusing to back down on their vaccine mandate policy for staff due to the recent the increased risk of transmission posed by the Delta variant of the COVID-19 virus. SPC requires that all staff receive their first dose of the COVID-19 vaccine by November 2021 and this mandate has not been made pursuant to a public health order. Rather, the Chairman of SPC, Hussein Rifai, explained that the decision stems from SPC’s workplace health and safety obligations to their employees and business associates.
However, the Australian Manufacturing Workers’ Union (AMWU) contend that SPC failed to properly consult with them and their employees over their new mandatory vaccination policies. AMWU say SPC’s planned timeline for workers to be vaccinated – to be booked in by September and vaccinated by November – is unrealistic as some working people are still not eligible or otherwise able to access the vaccine. The AMWU backs vaccination but claims that SPC’s plans to call for mandatory vaccination of workers needs to come with proper consultation.
In light of SPC’s “lawful and reasonable direction” to their employees, food manufacturers and the Australian Food and Grocery Council have called on the Federal Government to clarify the legality of policies which mandate a vaccine. The Fair Work Ombudsman’s current stance is for employers to assume that they can’t require their employees to be vaccinated against COVID-19. Given that a fruit and vegetable giant, such as SPC, has made the move to mandate vaccinations, the Fair Work Ombudsman is now forced to consider this position further and they are set to provide advisory guidance shortly.
Federal Government’s Position on Mandatory COVID-19 Vaccination Policy
Advice provided by the Federal Government has given employers ‘the green light’ to mandate COVID-19 vaccinations in the workplace in reasonable circumstances. This advice provided to National Cabinet stated that there was a legally reasonable basis for four tiers of workers to be captured by vaccine mandates including workers in direct threat of contracting COVID-19 such as airline workers; employees working with other people more likely to contract COVID-19 such as medical professionals; individuals in public-facing roles such as supermarket workers; and the rest of the working population.
On this information, Prime Minister Scott Morrison confirmed that these legal decisions are still required to pass a ‘reasonable test’. An employer is required to consider a number of circumstances before making a formal decision to mandate COVID-19 vaccines, including:
- whether the mandate has been made in line with health advice enforced by the Federal Government;
- the industry of the relevant company, extent of physical interaction and whether they are an essential service as outlined by the relevant state health department;
- the delays experienced in the vaccine roll-out which limits the eligibility of certain populations;
- the employer’s workplace health and safety obligations and common law duties of care;
- whether the direction constitutes discrimination prohibited by Australia’s anti-discrimination regime;
- human rights legislation such as Victoria’s Charter of Human Rights and Responsibilities;
- any relevant provisions in the applicable employment contract, modern award or enterprise agreement; any relevant consultation obligations;
- the availability of reasonable exemptions to the direction and effective alternatives to vaccination (such as the use of personal protective equipment); and
- whether the employee can perform the requirements of their role without being vaccinated.
Fair Work Commission – Mandatory Vaccination Policy
The Fair Work Commission (FWC) is yet to provide concrete guidance on COVID-19 vaccines specifically but they have discussed mandatory influenza vaccines and their necessity in particular high-risk industries.
In unfair dismissal case of Ms Bou-Jamie Barber v Goodstart Early Learning, the Applicant was dismissed after objected to the influenza vaccine. In April 2020, the Respondent introduced an immunization policy, requiring that all staff must receive the influenza vaccination unless they have a medical condition which makes it unsafe for them to do so.
The Applicant said that she has a sensitive immune system by reason of her auto immune and coeliac disease and consequently raised her objections to the vaccination. Ultimately, the Respondent determined that the medical certificate provided by the Applicant was not sufficient to support an objection the influenza vaccination, and the Applicant’s employment was dismissed on 13 August 2020 for her failure to be vaccinated and meet the inherent requirements of her role.
Given the current climate, Fair work Commission Deputy President Lake stressed that this decision is directly related to the influenza vaccine alone and employers should be cautious before relying on it more broadly to enforce COVID-19 vaccinations for its employees. Nevertheless, Deputy President Lake has recognised that it is reasonable for a childcare provider to mandate flu vaccinations for those staff who deal with children on a regular basis and in such close proximity. Deputy President also held that the flu vaccination was a lawful direction and fell within the scope of the Applicant’s employment.
In a 92-page decision, Deputy President Lake held that the Applicant’s dismissal was not harsh, unjust or unreasonable as the Applicant had chosen not to comply with a lawful and reasonable direction.
Employer mandated vaccinations have been and will continue to be an area of debate.
There is no doubt that employer mandated vaccinations have been an area of debate during the COVID-19 pandemic. However, these decisions support employers within particular industries, such as childcare and aged care, who are wishing to have their employees vaccinated against influenza. It is still unclear as to whether the rationale in these decisions will be applied to the COVID-19 vaccinations but in the case of Ms Bou-Jamie Barber v Goodstart Early Learning, Deputy President Lake did remake that “…it is beyond the scope of this decision to consider whether the conclusions above extend even as far as the entirety of the Respondent’s business, as the role each employee performs in fulling the Respondent’s undertaking may differ.”
As such, it is certainly not the case that employer mandated vaccinations will be considered reasonable and lawful in any context. It will be interesting to see what cases arise following this decision and how the FWC determines the reasonableness and lawfulness of vaccination policies within various other industries not concerned with health-care or childcare. However, as noted by SPC’s Chairman, an employer may feel obligated to mandate vaccines in an attempt to keep their workplace safe for all employees and visitors. Mr Rifai from SPC contends that their vaccination policy stems from SPC’s workplace health and safety obligations to their employees and business associates. Thus, this may open the door for any employers to justify mandating COVID-19 vaccines, following on from this sense of obligation to provide a safe work environment for all.
  FWC 2156.
  FWC 2156.