Australasian Timber

COVID-19 Vaccinatio­ns in the workplace Members advised to exercise caution

-

MANDATORY workplace vaccinatio­ns remain a topic at the forefront of the current industrial relations sphere.

We advise that there are only three circumstan­ces where implementi­ng a mandatory COVID-19 vaccinatio­n policy is permitted:

1) Where a specific law (eg. a public health order) requires an employee to be vaccinated;

2) Where an enterprise/ collective agreement or employment contract permits this; or

3) Where it is lawful and reasonable for the MGA TMA Member to direct a particular employee to be vaccinated.

At the date this article was written, circumstan­ce 1 and 2 as above are unlikely to apply to staff. However, health orders requiring mandatory vaccinatio­ns for particular employees of some businesses in Victoria and the Northern Territory may apply by the time this article is published. If so, management may be able to mandate the vaccine in their workplaces pursuant to circumstan­ce 1 above. Business owners are encouraged to seek legal advice prior to doing so.

If circumstan­ce 1 and 2 as above do not apply, you are reminded that implementi­ng a mandatory COVID-19 vaccinatio­n policy is permitted only if it is lawful and reasonable.

Business owners and management may be required to consult with employees before implementi­ng such a policy.

WHAT IS ‘LAWFUL AND REASONABLE’?

Lawfulness and reasonable­ness of an employer directive should be assessed on a caseby-case basis. This should be an assessment carried out for individual businesses and individual employees. It may be reasonable for a particular business to require mandatory vaccinatio­n for a particular employee, but it may not be reasonable for another business or for another employee.

You must consider the below factors, in deciding whether a mandatory vaccinatio­n policy is lawful:

• Compliance with existing employment contracts, award or agreement; and

• Compliance with legislatio­n (e.g. anti-discrimina­tion law).

You must consider the below factors, and any other relevant factors, in deciding whether a mandatory vaccinatio­n policy is reasonable:

• The nature of the workplace –

- how public-facing is the

particular role? - Is social distancing possible? Are other COVID-19 prevention measures possible?

- Is the employee providing an ‘essential service’? • Extent of community transmissi­on in the area;

• Risk of transmissi­on in the area between employees, customers and members of the public;

• Work health and safety obligation­s;

• Each employee’s individual circumstan­ces –

- Is the employee performing high risk work as a result of their duties?

- Is the employee in a high-risk or vulnerable category?

• Whether the employee has any legitimate reason for not being vaccinated; • Vaccine availabili­ty; and • What ‘tier’ of work the particular employee performs. Employees working in retail locations are likely to perform ‘Tier 3 work’ (as defined by the Fair Work Ombudsman), which is where there is interactio­n or likely interactio­n between employees and other people. You may also have employees that perform ‘Tier 4 work’, which is where there is minimal face-to-face interactio­n. It is more reasonable to require vaccinatio­n of a Tier 3 worker than a Tier 4 worker.

Determinin­g whether mandatory vaccinatio­ns is lawful and reasonable can be a complex exercise. We encourage MGA TMA Members to contact our Legal and IR team if requiring assistance with assessing the above factors.

NON-MANDATORY VACCINATIO­N

In light of the Fair Work Ombudsman’s view that the “overwhelmi­ng majority” of employers should assume that they cannot require mandatory COVID-19 vaccinatio­ns, you are advised to refrain from implementi­ng a mandatory COVID-19 vaccinatio­n policy without first seeking legal advice.

Instead, you are advised to continue encouragin­g and incentivis­ing staff members to receive the COVID-19 vaccine, as well as maintainin­g a high standard of COVID-19 risk control measures in the workplace. Vaccinatio­n is our key to reducing restrictio­ns and reopening our communitie­s and all eligible employees should be encouraged to speak with their doctor about getting vaccinated.

FOR MGA TMA MEMBERS ONLY:

The MGA TMA Legal and IR team has prepared a template COVID-19 vaccinatio­n policy that encourages employees to receive the COVID-19 vaccinatio­n. Our Members are encouraged to contact the MGA TMA Legal and IR team on 1800 888 479 for further queries on vaccinatio­ns in the workplace.

For membership enquiries, please contact Marie-Claire McKiernan on (03) 9824 4111 or email marie-claire.mckiernan@mga.asn.au

 ?? ??
 ?? ??

Newspapers in English

Newspapers from Australia