Australian laws are not on the side of employers mandating Covid-19 vaccines, nor should they be (by Professor Joo-Cheong Tham)

This latest guest contribution on the Labour Law Down Under Blog is by Professor Joo-Cheong Tham of Melbourne Law School. An edited version was published on The Conversation (11 August 2021): https://theconversation.com/can-australian-employers-make-you-get-a-covid-19-vaccine-mostly-not-but-heres-when-they-can-165755  

With high vaccination rates rightly seen as the way out of this pandemic, mandatory vaccinations at work are increasingly discussed.

Last week, canning company, SPC, announced a ‘no Covid-19 jab, no work’ rule, following the footsteps of Queensland carrier, Alliance Airlines. Other food processing companies are closely monitoring the situation while Qantas, Google, Facebook and Deakin University are already considering mandating Covid-19 vaccinations for their workers.

As the National Cabinet affirmed last Friday, ‘Australia’s policy remains that vaccines should be voluntary and free’:

In general, in the absence of a State or Territory public health order or a requirement in an employment contract or industrial instrument, an employer can only mandate that an employee be vaccinated through a lawful and reasonable direction.

The National Cabinet also noted that ‘(b)usinesses have a legal obligation to keep their workplaces safe and to eliminate or minimise so far as ‘reasonably practicable’ the risk of exposure to COVID-19’.

The National Cabinet also encouraged businesses to pay heed to the guidance issued by Safe Work Australia, the federal work safety regulator, and the Fair Work Ombudsman, the agency responsible for compliance with federal workplace laws.

The guidance issued by these agencies, however, highlights that the law is not on the side of employer mandates. In most cases, employers will neither have the duty, nor power at law to require their workers to be vaccinated against Covid-19. While this could be changed through legislation, there are good reasons to oppose employer mandates: respect for workers’ rights mean a preference for facilitative, as opposed to coercive, measures; and in the limited situations where mandatory vaccination of workers is imposed, this should be by democratic decision-making, not employer edicts.

No duty to mandate in most situations

The guidance by Safe Work Australia acknowledges that public health directions may require some employers to mandate Covid-19 vaccinations. It, however, stresses that ‘most employers will not need to make vaccination mandatory’ to meet their workplace, health and safety obligations – stating that ‘(i)t is unlikely that a requirement to be vaccinated will be reasonably practicable’ in many situations due to the absence of a recommendation from public health experts; lack of vaccine availability; and workers having medical reasons for not being vaccinated. 

Typically no power to mandate

The Fair Work Ombudsman’s guidance emphasises that ‘(w)hether an employer can require their employees to be vaccinated against coronavirus is highly fact dependent’.

There are circumstances, according to the Ombudsman, which make it more likely for mandatory vaccination to be a lawful and reasonable direction including where:

• ‘employees interact with people with an elevated risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control)’; and
• ‘employees have close contact with people who are most vulnerable to the health impacts of coronavirus infection (for example, employees working in health care or aged care).’

Nevertheless, the Ombudsman has concluded that ‘(i)n the current circumstances, the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus’.

The Victorian Human Rights and Equality Commission has also warned that there may be discrimination on basis of disability, medical conditions and pregnancy. While this could be addressed through tailored exemptions, any company insisting on vaccination before all employees have access to vaccination are likely to be in breach of anti-discriminations laws due to age discrimination with 40 years-old having restricted access to vaccines (some of SPC’s young workers complained about its decision given their ineligibility for the Pfizer vaccine). There may also be racial discrimination (on the basis of immigrant status) because of the practical difficulties experienced by temporary visa-holders in accessing vaccinations.

Facilitate, don’t coerce

Neither the current legal position nor the guidance issued by Safe Work Australia and the Fair Work Ombudsman is sacrosanct. Employer mandates could be expressly authorised by amending the Fair Work Act. The Fair Work Ombudsman is currently reviewing its guidance. Some have also forcefully argued that many employers have both the power and duty to mandate Covid-19 vaccinations including senior counsels Arthur Moses and Ian Neil.

But even if employer Covid-19 mandates were lawful, we should pause before embracing them – even when we acknowledge the clear public health benefits of Covid-19 vaccinations.

At stake is the autonomy of workers, what the International Labour Organisation considers the right to work in ‘conditions of freedom and dignity’. Worker autonomy is particularly critical here given the basic human rights involved – the rights to work and privacy.

Indignity results when these rights are not properly respected with employer mandates implemented without proper consultation with workers and their trade unions – witness the outrage of SPC’s workers feeling ‘steamrolled’ after learning of the company’s decision through the media.

Worker autonomy is not opposed to workplace safety. But it does mean a preference for facilitative measures. The guidance by Safe Work Australia states that employers ‘can encourage (their) workers to get a COVID-19 vaccination, if they are able to’. In response to SPC’s decision, major companies including Wesfarmers, Commonwealth Bank and NAB have said that ‘carrots rather than sticks’ will be more effective in accelerating vaccination rates. Local tech firms, Atlassian and Zip, for instance, are providing paid leave to workers for them to be vaccinated. The Australian Council of Trade Unions has also called for in-workplace vaccinations for aged and disability care workers and a public information campaign to provide information to workers.

Promoting informed decision-making is, in fact, a key facilitative measure. Workers who are reticent about being vaccinated against Covid-19 often have understandable reasons. The Australian Health Protection Principal Committee (comprising the country’s chief medical officers) has said in relation to the low levels of vaccination amongst disability support workers that the ‘best available Australian research on disability support workers’ attitudes to vaccination shows they still have some questions about the safety and efficacy of COVID-19 vaccines, and are concerned about reductions in working hours if they have any side effects after being vaccinated’. 

Worker input is also essential to worker autonomy. As it is, workplace, health and safety laws require consultation with workers and trade unions on employer vaccination policies; as would most awards and enterprise agreements under the Fair Work Act. Guidance by the Fair Work Ombudsman also encourages a ‘collaborative approach when discussing, planning for and facilitating coronavirus vaccinations in the workplace’.

This preference for facilitation and input is reinforced by public health research recommending health education and empowerment as the principal means for attaining vaccination coverage.

Who decides matters

The Australian Council of Trade Unions and Business Council of Australia are united in opposing individual employer mandates, preferring instead public health directions to mandate vaccinations in high-risk areas.

ACTU Secretary, Sally McManus, has said that any mandate ‘has to be based on the advice of health professionals, not just made up by employers, and workers must be consulted, along with their union’. In a similar vein, Jennifer Westacott, CEO of the Business Council of Australia has said that any mandate should be ‘highly targeted’ and that ‘(t)he conversation needs to be based on the evidence, the risks and be driven as much as possible through public health orders, not left to individual employers’.

This raises a critical distinction between employer mandates and government mandates such as public health directions that rests upon two grounds. The first is legitimacy with weighty decisions to limit rights best undertaken by democratically-elected bodies in a transparent process based on public interest rather than private entities principally motivated by commercial considerations deciding in opaque circumstances.

The second is effectiveness. Governments have access to expert advice (including through the Australian Health Protection Principal Committee comprising chief medical officers). They are also able to bring together a whole range of stake-holders together for their input on implementation measures (as the federal government has done with employer groups and unions in relation to the vaccine roll-out).

Achieving vaccination through volition and democracy

High Covid-19 vaccination rates are essential to public safety in the pandemic. How we achieve them fundamentally matters.

When it comes to Covid-19 vaccination of workers, employers should encourage, not mandate. In the few situations where worker vaccination ought to be mandated, this should be done by government, using democratic processes based on expert advice.