We asked an expert — jab or job? Can Australian employers insist on workers receiving a COVID-19 vaccination? The answer — so far — in most cases, no.
Prime Minister Scott Morrison previously described jab or job as a decision for individual businesses.
“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.”
At this point, only two Australian companies, Alliance Airlines and SPC, have gone on record stating they will make the COVID-19 vaccination mandatory.
Miles Heffernan heads Industrial Relations Claims (IR Claims), a nationwide team of employment lawyers and industrial relations consultants. Miles said it’s important to remember that in the midst of a pandemic, the situation is fluid.
“What is true today, can be false tomorrow depending on the need to respond to an ever-changing pandemic. Also, we can never predict which way our legislators will jump in the face of changing circumstances.”
Safe Work Australia
Miles said, “Both Safe Work Australia (SWA) and the Fair Work Ombudsman (FWO) state that, at this time, most employers can’t compel workers to get a COVID-19 Vaccination. Despite Australia’s strict workplace health and safety regimes, SWA says most employers will not need to make vaccinations mandatory.
“However, there are exceptions as required under public health directions.
“A New South Wales health order requires at least one vaccine shot for quarantine, transport and airport workers. Nationally, every aged care worker needs to receive at least one shot before 17 September, or 16 September in Queensland.
“In Tasmania, Catholic Archbishop Porteous wrote to the state Health Minister asking for an exemption. Apparently, a few priests are claiming a ‘conscientious objection’. I don’t like his chances. Already, a local Catholic lobby group came out against his letter describing unvaccinated priests visiting aged care homes as ‘morally derelict’. The letter from Porteous seems to fly in the face of the Pope describing getting jabbed as an ‘act of love’.”
Fair Work Ombudsman
Miles Heffernan said that according to FWO guidelines, employers need very good reason to compel COVID-19 vaccinations.
“There are two conditions currently that could see people having to choose between jab or job. Hotel quarantine or border control workers, for example, interact with people with an elevated risk of COVID infection.
“Additionally, people like aged care workers interact closely with those most vulnerable to serious health impacts from COVID.”
Fired for refusing Flu Jabs
“Cases of workers appealing dismissals for refusing flu jabs provide a precedent here. The Fair Work Commission has ruled in three cases over the last year that aged care and child care facilities can insist on flu jabs as a condition of employment.”
Miles said, in current circumstances, most employees do not face a choice of jab or job.
“That is unlikely to change for the vast majority of employees. It seems most Australian companies prefer to use carrots rather than sticks to drive up vaccination rates in their workforce. Already numerous large Australian companies are considering bonuses and other incentives for workers who choose vaccination.”
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