Australasian Timber

The great business dilemma of 2021- mandatory vaccinatio­ns at the workplace

- BRIAN BEECROFT CEO, TTIA

THE subject of mandatory workplace vaccinatio­ns is clearly a major issue of discussion at present. The Prime Minister, State Premiers and Chief Health Officers constantly reinforce at each daily press conference the importance of increasing the vaccinatio­n rate to reduce transmissi­on and return business and households to a more preCovid-19 existence.

I’ve heard the PM praise SPC for implementi­ng mandatory vaccinatio­ns of staff at their workplace. In the case of SPC, they have provided paid vaccinatio­n leave plus 2 days of special leave if employees are unwell in the recovery process of the vaccinatio­n.

I’ve also heard the NSW government congratula­te Qantas on their willingnes­s to mandate vaccinatio­ns for all staff if they want to continue in their roles.

In the case of our national airline, Qantas, front line workers like cabin crew, pilots and airport workers will need to be fully vaccinated by 15 November 2021 and the remainder of employees by 31 March 2022. Qantas said their policy was not only intended to protect the Qantas workforce but safeguard the communitie­s they encounter while conducting their business.

I note that Qantas have said that exemptions for employees who have a documented medical reason of why they can’t be vaccinated will be available, but they believe these cases with be rare. In the case of Qantas employees, only 4% said they were unwilling to get vaccinated.

In terms of providing incentives, Crown Resort employees will now be entitled to three hours paid leave for each vaccinatio­n they receive. In addition, an extra day of paid sick leave will be provided to each employee, if they require it. They have even resorted to providing gift vouchers to employees who are stood down and are already vaccinated.

While incentives may be part of the answer, the difficulty at present is neither tier of government has really clarified whether the employer’s (outside a limited number of workplaces) right extends to making such mandatory policies or whether it is a case of oversteppi­ng of the mark with potentiall­y serious litigation ramificati­ons.

The TTIA supports the position of many other key business groups urging more extensive public health orders and/or clearer legislatio­n which is essential to provide greater legal certainty for employers to require vaccinatio­n. This would ensure an industry wide policy to require vaccinatio­ns would not breach legislatio­n.

The Assistant Attorney General, Amanda Stocker, recently said she did not think business had the right to demand their staff to get vaccinated and “in general it needs to be the case that people are making the decision for themselves”. Further, Senator Stoker said, “The individual has the right to choose what works for them”.

At a recent federal government roundtable of stakeholde­rs, the government’s message from a federal standpoint was that whilst clearly encouragin­g vaccine uptake, vaccinatio­n was free and voluntary unless a state or territory public health order is in place but employers are free to institute their own policies. I would add to this, after the company has sought advice and done their own due diligence.

The SPC decision to mandate Covid vaccinatio­ns will likely be a test case for employers outside the health and childcare sectors. I note in this case unions were initially pushing back arguing lack of consultati­on among other grievances. Similar resistance has also been met in other industries.

Safe Work Australia have stated that “It is unlikely that a requiremen­t for workers to be vaccinated will be reasonably practicabl­e.”

Instead there have been statements made of each case being examined on its merits, the assertion that employers should seek legal advice and finally, it is still the individual’s right to say no to mandatory jabs.

With this background of minimal legal protection from the various layers of government, it is little wonder that many employers feel uncertain about how they fulfil their absolute obligation of duty of care to the health and safety of employees, while at the same time are being told that individual­s have the right to choose whether they want to be vaccinated against Covid-19. How does an employer eliminate or minimise so far as “reasonably practicabl­e” the risk of exposure to COVID-19 when the system appears to leave many employers with their “hands tied behind their back”. It in effect leaves many employers in our industry between a rock and a hard place!

No doubt aware of the increasing industry concerns on how to balance these responsibi­lities, the Fair Work Ombudsman (FWO) recently updated advice urging employers to “exercise caution if there considerin­g making Covid-19 vaccinatio­ns mandatory in their workplace and get their own legal advice”, noting that the legal basis will be determined on a case by case basis if a direction requiring employees to be vaccinated would be “reasonable”.

If an employee refuses an employer’s direction to get vaccinated, the FWO’s guidance provides that an employer may be able to take disciplina­ry action, including terminatio­n of employment, if the employee’s refusal is in breach of:

• a specific law, or

• a lawful and reasonable direction requiring vaccinatio­n.

FWO recommends however, that prior to taking any disciplina­ry action, the employer should enquire as to whether there is a legitimate reason for not being vaccinated (for example, the employee has an existing medical condition that means vaccinatio­n is not recommende­d for the employee). The employee and their employer should also consider whether there are any other options available instead of vaccinatio­n.

Translatio­n, a muddied situation where employers are unsure of their rights and a lawyer’s picnic!

The Minister for Industrial Relations, Michaela Cash, recently said to encourage a larger take up of the vaccine, “employers should work closely with employees when it comes to a vaccinatio­n policy”. The Minister noted that co-operation was critical and that each business should seek their own advice before mandating for their workforce.

So where does that leave employers in the timber and timber products industry? Well, individual employers in our industry should seek legal advice from TTIA on their own individual circumstan­ces, consult their workforce and consider feedback and the basis of any objections, medical or otherwise. Consider the 4 tier guidelines issued by FWO, even though I’m the first to admit they don’t provide full clarity.

Small and medium employers that make up a significan­t part of our industry must perform a balancing act where in many instances, most of their now vaccinated staff often express serious health concerns to management about those who remain unvaccinat­ed. In contrast, those who remain unvaccinat­ed insist they are within their rights to choose not to vaccinate and remain at the workplace backed up by an array of politician­s and government tribunals.

In the meantime, businesses keep their fingers crossed that an outbreak does not occur at their workplace forcing the closure of their workplace for 14 days and the subsequent economic pain and associated costs. In addition, employers in the industry can only continue to drive a vaccine awareness campaign in anticipati­on that the uptake of vaccinatio­ns continues to rise.

Though in many way deeply unsatisfac­tory, I suspect in time as more and more government department­s/ authoritie­s and large corporates make mandatory vaccinatio­n a workplace norm, the case against small to medium size business and their staff being afforded the same level of protection will fade. The real unknown is just how long this will take.

TTIA is the forest and timber industry’s key IR/Legal Associatio­n and can assist industry employers with practical advice on the best approach to vaccinatio­ns in their workplace. Call our office on (02) 9264 0011 or email us on ttia@ttia.asn.au

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