As the push for greater COVID-19 vaccination levels grows as the outbreak of the Delta variant of the virus continues to spike, the debate around workplace vaccination mandates is starting to reach fever pitch.
Whilst the federal government made it mandatory for aged care workers and those employed in quarantine to get the jab in late July, PM Scott Morrison stated early this month that while vaccine uptake should remain “voluntary and free”, businesses are obliged to keep workplaces safe.
“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 prime minister outlined.
Industrial relations minister Michaelia Cash called an 18 August roundtable on the issue, which led business groups and unions to agree that a nationwide mandate would hinder the vaccine rollout, and, where appropriate, employers looking to make vaccines mandatory should seek legal advice.
While the Australian Council of Trade Unions (ACTU) position is that when not stipulated by the health experts, vaccine mandates are liable to cause division within the workplace.
So, rather than enforcing a requirement, employer groups and unions should act together to ensure workers can freely access the vaccine.
Encouraging, not enforcing
“We all want to get to the maximum number of people vaccinated, but, at the moment, the biggest barrier to that aim is not hesitancy, but supply and accessibility,” ACTU secretary Sally McManus told Sydney Criminal Lawyers.
“Unions and mainstream business agree that mandates are not necessary and are likely to cause conflict and division in the workplace that will slow our effort to reach 80 percent,” the top union representative continued.
The issue as to whether employers can require employees to get the jab came to a head in early August, when head of fruit and vegetable processor SPC Hussein Rifai announced that he would be requiring all 450 employees at the company’s Shepparton cannery to be vaccinated by November.
In response, the Australian Manufacturing Workers’ Union (AMWU) said that employees and union representatives hadn’t been properly consulted prior to the announcement. And it added that the timeline requirements were “unrealistic”.
“Conflict around mandates undermines the vaccination effort,” McManus made clear. “Unions are focused on consultation with employers, resolving the issues and advocating for effective support from the federal government.”
The Fair Work Ombudsman has released advice around workplace rights and obligations in relation to COVID-19, which states that in terms of vaccinations, “employers should consider their workplace and employees’ circumstances and whether they need legal advice about their obligations”.
Fair Work has released guidelines for employers regarding requiring vaccinations, which outline that a mandate needs to be lawful and that factors to be considered in assessment are employees’ face-to-face interactions with the public, especially if they’re with groups with an enhanced virus risk.
McManus maintains that the Fair Work guidelines outline existing laws, and unless medical experts determine that there should be a mandate set for a particular sector – which is then enforced by government – then employees shouldn’t be threatened with the sack but encouraged to get the jab.
“Rather than having a debate about individual companies mandating the vaccine, we should be focused on increasing accessibility, removing barriers by providing paid vaccination leave and an effective public health campaign,” the ACTU secretary continued.
As for making the vaccine accessible, McManus has stressed that all workers should be provided with paid leave to get the jab, including time off for any side effects. And this needs to be made available to all workers regardless of whether their workplace requires vaccination.
Reducing financial burden
Despite eight weeks of lockdown and heavy police enforcement of restrictions, the number of COVID cases in the state of NSW continues to grow. And critics continue to point out that if more people were able to remain at home without financial burden, the figures wouldn’t keep climbing.
In 2020, the Morrison government was quick to come to the table with the rollout of the JobKeeper pandemic wage subsidy that provided employers with a weekly payment to give their employees during the lockdown to cover their living costs, whilst maintaining employment arrangements.
However, even though this year has seen a dramatic resurgence in COVID, which has shut down Greater Sydney for more than two months now, there has been no return of the national wage subsidy.
Instead, there are several financial support payments available in NSW, which aren’t as substantial or conducive to maintaining ties.
“JobKeeper keeps working people secure and connected to employment during lockdowns,” McManus explained.
“The decision by the Morrison Government to end it has meant more hardship for millions of people who have to rely on emergency payments instead that do not connect them to employment.”
In the United States, vaccine mandates are causing similar controversies. Television network CNN sacked several employees as they turned up to work unvaccinated. While many large firms, such as Google and Facebook, are expecting that when their employees return, they should be vaccinated.
While in NSW, the Berejiklian government announced last Friday that it’s now mandatory for all healthcare workers to get the jab, and further, any childcare or disability support workers living within the eleven local government areas labelled “as concern” must undergo vaccination.
According to McManus, getting the jab shouldn’t be a reason for conflict in the workplace. And in the UK, where mandates have been imposed, they have worked to solidify opposition to getting the vaccination, as employees wonder why employers are forcing them to undergo the treatment.
There are many aspects regarding the workplace environment that have been laid bare as needing reform by the pandemic. Indeed, the ongoing casualisation of large numbers of employees has been shown to leave them in an enhanced state of insecurity when lockdowns are enforced.
As well, workplace health and safety issues are going to have to be given greater consideration in terms of social distancing and hygiene if the coronavirus is set to continue to spread within the community going into the future.
“The evidence surrounding Delta is clear – it’s even more highly transmissible than the original form of the virus and it’s essential that we make changes to workplaces and WHS regulations to ensure that when workers return to workplaces, they are safe,” McManus concluded.
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Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.