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LEGAL AND HR
NATIONAL
COVID-19 Vaccinations in the workplace MGA last addressed vaccinations for employees in our previous edition of the IR Magazine: “No Jab, No Job?”. Members were advised that mandatory COVID-19 vaccine for employees is permissible as long as such a direction is lawful and reasonable. Members were also cautioned to be mindful of anti-discrimination obligations and TGA guidelines on communicating vaccination information Members to exercise caution
What is ‘lawful and
Mandatory workplace vaccinations remain a topic at the forefront of the current industrial relations sphere. Members are advised that there are only three circumstances where implementing a mandatory COVID-19 vaccination policy is permitted:
reasonable’?
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 Member to direct a particular employee to be vaccinated. At present, circumstances 1 and 2 as above are unlikely to apply to Members. Therefore, Members are reminded that implementing a mandatory COVID-19 vaccination policy is permitted only if it is lawful and reasonable. Members may be required to consult with employees before implementing such a policy.
Lawfulness and reasonableness of an employer directive should be assessed on a case-by-case basis. This should be an assessment carried out for individual stores and individual employees. It may be reasonable for a particular store to require mandatory vaccination for a particular employee, but it may not be reasonable for another store or for another employee. Members must consider the below factors in deciding whether a mandatory vaccination policy is lawful:
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 –
• Compliance with existing
» Is the employee performing
• Compliance with legislation (e.g.
» Is the employee in a high-risk or
employment contracts, award or agreement; and
anti-discrimination law).
Members 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?
mga.asn.au | October 2021 | Edition 6
» Is social distancing possible?
high-risk work as a result of their duties?
vulnerable category?
• Whether the employee has any legitimate reason for not being vaccinated;
• Vaccine availability; and • What ‘tier’ of work the particular employee performs.
