Business groups, unions and the Industrial Relations Minister Michaelia Cash are meeting today to discuss how employers can meet their health and safety obligations without mandating COVID-19 vaccinations in workplaces.
Despite the Fair Work Ombudsman updating its guidelines last week, employers continue to be confused about whether they can mandate vaccines and whether they risk breaching health and safety obligations if they don’t mandate vaccines.
Fay Calderone, partner at Hall and Wilcox, says although Fair Work’s new guidance is not black and white, it provides some detail about mandatory vaccines and the settings employers could enforce them in.
“Employers feel caught between a rock and a hard place in their obligations to, as far as reasonably practicable, provide a safe workplace and their inability to mandate vaccinations for employees generally,” Calderone tells SmartCompany.
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The meeting comes as Prime Minister Scott Morrison tried to appease employers’ concerns about the potential for an employee, who becomes infected with COVID-19, to bring an action against them on the basis that they didn’t mandate vaccines in the workplace.
Last Friday, Morrison said workplace health and safety regulators at the state level can issue a statement of regulation intent to clarify that a business that does not mandate vaccines is not in breach of workplace health and safety laws.
“So, protection can be provided to businesses through that process,” Morrison said.
States to manage WHS regulations
Calderone, who specialises in employment law and workplace relations, says Morrison’s comments about regulators having the ability to issue statements of regulation intent is accurate but workplace health and safety laws are state rather than federal laws.
“Work health and safety laws are in fact state laws such that the federal government cannot make the regulators across the federation provide a statement of regulation intent,” she says.
“[Morrison] said they can, not that they will.”
SmartCompany has contacted SafeWork New South Wales and WorkSafe Victoria, seeking further clarification about a statement of regulation intent that could provide some assurance to businesses concerned about workers becoming infected with COVID-19 on the job.
A spokesperson from SafeWork NSW responded to SmartCompany’s request, indicating they were unsure about the advice the Prime Minister had received prior to making his comments.
“SafeWork NSW is seeking confirmation of the statement referred to and any advice it relies on,” the spokesperson said.
Guidance from business groups
On Tuesday, the Council of Small Business Organisations (COSBOA) released a one-page policy for small businesses, recommending employers to “strongly encourage employees to receive a vaccine but not force their staff to receive a vaccine”.
The policy also encourages employers to provide paid personal or carer’s leave to employees to receive a vaccine, including for employees who aren’t normally entitled to it.
“We are also advocating for greater clarity from the government in the form of a national, consistent policy on mandatory vaccination,” COSBOA said in a statement.
Similarly, the Australian Chamber of Commerce and Industry (ACCI) released its employer guide to COVID-19 vaccinations on Tuesday. The guide sets out how employers can contribute to vaccine rollout and navigate issues relating to workplace health and safety, workplace relations, discrimination and privacy obligations.
The guide warns employers about the risks involved in offering incentives to staff to get vaccinated. For example, the guide states an employee could make a claim for workers compensation, if they experience an adverse reaction to the vaccine after they were rewarded by their employer to get vaccinated.
Today’s meeting between Industrial Relations Minister Michaelia Cash, business groups and unions will attempt to iron out some of these questions and concerns businesses and workers have.
Fair Work Ombudsman Sandra Parker and Australian Information and Privacy Commissioner Angelene Falk will also attend the meeting and answer questions.