On the heels of the news that food canning and packaging company SPC will be the first Australian business to mandate COVID vaccinations among its employees, the national cabinet has confirmed that vaccines will remain voluntary in Australia, with businesses told to be careful when making a decision regarding workforce vaccination requirements.
Late on Friday, Prime Minister Scott Morrison said that the Solicitor-General was called into the national cabinet to provide advice on the use of vaccinations in the workplace.
Noting that “Australia’s policy remains that vaccines should be voluntary and free”, Mr Morrison said that “decisions to require COVID-19 vaccinations for employees will be a matter for individual business”, taking into account their particular circumstances and their obligations under safety, anti-discrimination and privacy laws.
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.
As such, businesses will be required to navigate existing workplace laws.
“We do not have a mandatory vaccination policy in this country,” the PM said.
“We do not have that. We are not proposing to have that. That is not changing. But an employer may wish to make a reasonable directive to staff, and if they do so, they would need to do so consistent with the law.
“And that particularly would deal with a situation where an employee may be in direct contact potentially, or becoming infected, and acquiring the virus.”
He reminded that existing public health orders already do allow vaccine mandates in some high-risk environments including hotel quarantine workers, airline staff, healthcare workers and frontline services.
The PM said: “In our country, everyone has choices, and they have choices that are supported by the rule of law, and simply making the point that those choices have to be exercised consistent with the rule of law.
“But in terms of the Commonwealth government or the state governments, making mandatory or issuing public health orders or taking some sort of statutory approach, then, well, except in the areas I’ve already nominated in the areas of quarantine and aged care, both the Commonwealth and the states are not making any moves in that area. Otherwise, the rule of law applies as it normally does.”
Safe Work Australia issues guidance
Just last week, Safe Work Australia issued a list of questions for businesses to consider before asking their employees to get vaccinated.
- Is the Australian Health Protection Principal Committee recommending COVID-19 vaccinations for all workers in your industry?
- Will your workers be exposed to the risk of infection as part of their work?
- Do your workers work with people who would be vulnerable to severe disease if they contract COVID-19?
- What is the likelihood that COVID-19 could spread in the workplace?
- Do your workers interact with large numbers of other people in the course of their work that could contribute to a “super-spreading” event if your 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?
- Would a requirement to be vaccinated be unlawful in the circumstances? For example, would it discriminate against a certain class of employees?