Should Australian employers have the right to dismiss staff who refuse to get vaccinated?
Two recent Fair Work Commission decisions upheld that employers were justified in terminating the employment of staff who failed to comply with the “lawful and reasonable direction” to be vaccinated against the flu in accordance with their workplace policies.
What the Fair Work Commission ruled
A not-for-profit childcare and early learning provider had valid grounds to terminate an employee who refused to be vaccinated against the flu after it introduced a mandatory immunisation policy in April last year.
The FWC found Goodstart’s mandatory vaccination requirement was a lawful and reasonable direction, and Ms Barber’s failure to comply was a valid reason for her dismissal.
The FWC rejected an unfair dismissal application by a former receptionist at a NSW residential aged care facility. It found there was no evidence the symptoms Ms Kimber suffered previously were the result of the flu vaccine.
It ruled Sapphire Coast acted in an “objectively prudent and reasonable way” in refusing to let Ms Kimber work, and that without a flu jab, Ms Kimber could not perform her job properly.
Both cases involved the flu vaccination, but these new rulings highlight the question of when employers can enforce mandatory vaccinations, particularly as employers are now considering mandating the COVID-19 vaccination.
What these rulings mean for employers
The employer still needs to justify the need and practicality of a mandatory vaccination policy.
It is unlikely, however, that a requirement to be vaccinated will be reasonably practicable across the board.
This is because public health experts have not recommended a vaccine be made mandatory in all industries; or there may not yet be a vaccine available for workers; or some workers have medical reasons why they cannot be vaccinated.
Whether you should require workers to be vaccinated will depend on the particular circumstances at the time of a risk assessment.
Can workers be forced to get a COVID-19 vaccine?
You cannot be forced to get a vaccination or undergo any medical procedure against your will. For most workers, your employer will not be able to require you to be vaccinated under work health and safety laws.
While the Australian Government strongly supports immunisation, it is not compulsory. People, parents and carers maintain the right to choose whether to receive a vaccination.
However, and this is important, some employers may lawfully require workers to have had a vaccine to perform work or to undertake certain tasks in a workplace, including where there is a public health order which requires vaccination.
If you are a worker who cannot be vaccinated, and you work at a workplace that requires vaccination, you should talk to your employer, health and safety representative or worker representative about your options. For information about your workplace rights you can also talk to the Fair Work Ombudsman.
State and territory health agencies may also make public health orders that require some workers to be vaccinated – for example, those considered to be working in high-risk workplaces. If public health orders are made, you must follow them. And you should stay up to date with the latest advice of your health agency.
For instance, Queensland has issued a public health direction for health workers working with diagnosed cases of COVID-19. Whereas Western Australia has issued a public health direction for quarantine centre workers.
While vaccination for COVID-19 remains voluntary, there may be circumstances in the future where there may be border entry or reentry requirements that are conditional on proof of vaccination.
One recent case was the announcement that COVID-19 vaccines are to be mandatory for the Australian Paralympic Team.
Do Australians support mandatory vaccination?
A recent study by The University of Western Australia and Sydney University has found three-quarters of Australians support a mandatory COVID vaccination for work, study, and travel. The study incorporated a survey of more than 1000 Australians, finding that 85% are in favour of the mandatory vaccination policy, and 9% disagree.
Vaccine mandates were introduced in Australia during the smallpox epidemics of the 19th century. The percentage of Australians willing to be vaccinated has fallen from 74.4 to 66.2 percent this year, research has shown.
Questions shaping which way the law will go
- Is the Australian Health Protection Principal Committee recommending COVID-19 vaccinations for all workers in your industry?
- Will workers be exposed to the risk of infection as part of their work?
- Do workers work with people who would be vulnerable to severe illness if they contract COVID-19?
- What is the likelihood that COVID-19 could spread in the workplace?
- Do workers interact with large numbers of other people in the course of their work that could contribute to a ‘super-spreading’ event if workers contract COVID-19?
- What other control measures are available and in place in your workplace? Do those control measures already minimise the risk of infection, so far as is reasonably practicable?
- Will employers be held liable under WHS laws if they don’t make their workers get vaccinated and one of them gets COVID-19?
- Some workers cannot be vaccinated because of medical conditions. How are unvaccinated workers protected from COVID-19?
- Would a requirement to be vaccinated be unlawful in some circumstances?
Source: Fair Work Ombudsman
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