Gladys Berejiklian hints returning to work in some industries could be tied to vaccination
New South Wales premier Gladys Berejiklian has given the strongest indication yet that Covid vaccination could be required for workers in some industries to return from the Delta outbreak, as corporations across the country act ahead of governments to announce vaccine mandates for employees as early as November.
When announcing a record high daily caseload of 262 on Thursday, Berejiklian said her government was looking at vaccination incentives, including allowing some fully vaccinated employees to return to work, and that the Delta outbreak in NSW could only be substantially limited by vaccinations as opposed to tougher restrictions.
“We’re definitely trying to consider options that are more positive, to say classes of employees can go back if they’ve had the vaccination. We’re considering those options,” she said.
“We do want to incentivise people for getting the jab, in terms of occupations that might be able to go. So potentially, if someone that’s providing a service is vaccinated and their client is vaccinated, we feel much more comfortable in relaxing that restriction on August 29.
“We know too many authorised workers, people putting food on our table or taking care of our aged care facilities, are not vaccinated. If we didn’t let these workers work, we’d have no food supplies and no essential services ... The challenge is to get those people who are mobile vaccinated,” Berejiklian said.
Earlier on Thursday, canned fruit and vegetable manufacturer SPC announced it would become the first nonhealth businesses to ban workers from returning to its cannery and other sites unless they were fully vaccinated by the end of November.
The vaccine mandate applies to permanent and casual staff, as well as contractors and visitors, and requires em
ployees to have booked their first dose by 15 September to be administered before the end of October.
SPC’s chief executive, Robert Giles, said staff were being encouraged to consult GPs about their options, and that the company was considering a pop-up vaccine clinic to make it easier for employees to get vaccinated by the deadline.
SPC’s announcement follows calls from Qantas last week for a national rule requiring vaccination for aviation workers, with the airline actively lobbying national cabinet to expand the requirement currently in place in NSW and South Australia.
Reaction to SPC’s announcement has been mixed. The Australian Manufacturing Workers’ Union, which represents its employees, said it was “unrealistic” to expect workers to book their first dose in September because not all staff are eligible in the rollout yet.
Samantha Mangwana, head of employment law at Shine Lawyers, noted that employees in Australia have previously been required to get vaccines, including the flu shot for aged care workers, but that SPC’s requirement could attract potential legal challenges focussing on “disability discrimination laws, medical exemptions, and political beliefs”.
She said any unfair dismissal cases would rely on medical evidence to prove employees could not have the vaccine, but noted this evidence could “change rapidly” as new variants enter Australia and outbreaks flare up.
“If an employee refuses to be vaccinated on those grounds, should they lose their job?... A private company like SPC would argue its policy is reasonable to ensure a safe workplace but this is not a blanket justification,” she said.
“Taking a precautionary approach to protecting staff and the supply chain may be a legitimate aim but the question is whether the policy is necessary and proportionate to the risk.
“The policy will only be reasonable if it is genuinely straightforward for staff to be vaccinated with no unreasonable deadlines or penalties,” Mangwana said.
Maria O’Sullivan, a senior law lecturer at Monash University and deputy director of the university’s Castan Centre for Human Rights Law, said it is easier for individual corporations to mandate vaccines as opposed to waiting for the government to legislate a policy.
She said this is because individual corporations do not have to abide by as many legal obligations as governments, with discrimination laws being the main risk for businesses.
O’Sullivan gave examples of those with valid medical exemptions to the vaccines, but noted the larger indirect risk of discrimination relies on age, for younger workers without access to the vaccine, as well as sex-based discrimination given different vaccine advice for pregnant women.
“If a government has mandated vaccinations, then a corporation would feel much more legally comfortable mandating vaccines for its workers, they can say this is a requirement of the law. They want a signal from the government that it’s OK to mandate.
“But there’s a broader range of grounds that people can litigate against a government on [freedom of movement].
“So there’s an advantage for the government in doing nothing and allowing corporations to regulate this ... they may want to leave Qantas and SPC to do the heavy lifting,” O’Sullivan said.
O’Sullivan said that while corporations don’t have to act to protect public health in the way a government does, they have duties under occupational health and safety laws that could require them to mandate vaccines in certain contexts. She points to aged care as an example, but notes Qantas’s position and how distancing cannot be ensured in plane cabins.
She said this is “highly contextual” based on workplace risk of Covid spread, and for this same reason, workers who can work from home may not be able to be forced to get a vaccine to work. She gave the example of a university returning to on-campus learning, but keeping one stream of a unit online for unvaccinated academics and students.
“The vaccine requirement has to be necessary, reasonable and proportionate ... A court will look at whether there are other reasonable measures to protect the cohort, so it’s not as though they’re saying someone will hold you down and put a needle in you.”
Regarding how a mandate would be legislated, O’Sullivan said moves on a state and federal level could work to require vaccines for public sector workers.
She also said amendments to occupational health and safety laws could be used to require vaccines in non-government businesses, as well as regulations to the Biosecurity Act – wide-reaching federal legislation that was used to shut Australia’s border at the beginning of the pandemic.
SPC’s announcement follows Venues NSW indicating this week that major stadiums in the state would soon only allow vaccinated spectators. There have also been calls for the NSW government, as the country’s biggest employer, to require all public service employees to be vaccinated to set an example for businesses.