The Fair Work Ombudsman (FWO) last week updated its guidance on workplace rights and obligations in relation to COVID-19 vaccinations.
The most important change is the FWO has abandoned its earlier position that vaccinations “in most circumstances” could not be mandated and has now listed a variety of considerations for when it would be “lawful and reasonable” for an employer to require or direct employees to be vaccinated.
According to the FWO, whether a direction is lawful and reasonable “will be fact dependent and needs to be assessed on a case-by-case basis”, with factors to consider including the following (note: abbreviated):
- the nature of each workplace (e.g. social distancing, public facing etc);
- the extent of community transmission of COVID-19 in the relevant location;
- the effectiveness of vaccines in reducing the risk of transmission or serious illness;
- work health and safety obligations;
- each employee’s circumstances, including duties and risks;
- whether employees have a legitimate reason for not being vaccinated; and
- vaccine availability.
Employers are also reminded for a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies.
Further, to assist employers in making risk-based vaccination assessments, the FWO has offered four (4) broad “tiers of work”, ranging from employees who regularly interact with high-risk individuals (tier 1) to employees who mainly work from home (tier 4).
AREEA members are encouraged to visit the FWO’s updated advice to review the definitions and examples of each work tier, and to read in full the factors for determining the reasonableness of a mandatory vacation direction.
In addition, the FWO’s guidance covers a range of other key workplace vaccination issues such as employee refusal, disciplinary action, leave considerations, and evidence of vaccination.
The FWO’s new guidance, as well as information on the recently approved Moderna Vaccine, is provided in Version 6 of AREEA’s Member Guide to the COVID-19 Vaccine.
Western Australia’s effective “vaccine passport”
In another significant development, the Western Australian Government last week announced tighter border controls that will only allow people to enter the state from New South Wales if they have been vaccinated.
The McGowan Government’s new policy will see travellers from ‘extreme risk’ jurisdictions (where there has been ‘significant and sustained outbreaks’ of the Delta strain) required to provide proof of at least one dose of an approved COVID-19 vaccine, in addition to further quarantine requirements.
In effect, this sees Western Australia implement the country’s first so-called “vaccine passport”.
Members requiring advice on workplace vaccination policies and travel matters should contact AREEA’s specialist workplace advisory team at your closest AREEA office.
Govt statement on COVID-19 vaccinations and the workplace
The Morrison Government is continuing to support Australians through the pandemic and is encouraging employers and employees to work together on the issue of COVID-19 vaccination for Australian workers.
Minister for Industrial Relations, Michaelia Cash welcomed the FWO’s latest guidelines, reiterating the Morrison Government recommended that all eligible Australians get vaccinated as soon as they can and encouraged employers to assist wherever possible.
“We are seeing record numbers of Australians coming forward for vaccination and we thank each and every person vaccinated and all of our medical workforce for their dedication and hard work,” Minister Cash said.
“Vaccination is free, voluntary and an important way to ensure the Australian community and economy can emerge and recover from the impact of the COVID-19 pandemic.”
Minister Cash said some workers in high risk settings—such as aged care and quarantine facilities—are required to be vaccinated to protect vulnerable people and the broader community. These are requirements set by state and territory public health orders.
Minister Cash said it was important that workplaces take a collaborative approach with their workers on discussing, planning and facilitating COVID-19 vaccination in the workplace.
“It is important that both employers and employees continue to work together to get vaccinated as soon as possible. This will benefit not only our workplaces, but help our nation return to normal as soon as possible,” Minister Cash said.
Coronavirus (COVID-19) Vaccinations: Understanding your privacy obligations to your staff
The Office of the Australian Information Commissioner has released privacy guidance intended to help entities regulated by the Privacy Act 1988 (Cth) (Privacy Act) to understand their obligations when collecting, using, storing, and disclosing employee health information related to the COVID-19 vaccine. It complements the OAIC COVID-19 Guidance for employers which provides more general information about employer’s privacy obligations in the context of the pandemic.
Privacy is only one of many factors to consider when asking employees whether they have received a COVID-19 vaccination (their ‘vaccination status’).
Key points:
- Employers will only be able to collect information about employee’s vaccination status in very limited circumstances
- Only the minimum amount of personal information reasonably necessary to maintain a safe workplace should be collected, used or disclosed
- You must only collect vaccination status information if the employee consents and the collection is reasonably necessary for your functions and activities, unless an exception applies
- One exception that may allow collection without the employee’s consent is circumstances where the collection is required or authorised by law
- If vaccination status information is collected, you must advise employees how this information will be handled
- Vaccination status information should be used or disclosed on a ‘need-to-know’ basis
- Ensure you take reasonable steps to keep employee vaccination status and related health information secure
AREEA’s Policy Position / Ongoing Advocacy
AREEA views the guidance and advice from administrative bodies like the Fair Work Ombudsman and Safe Work Australia as well intended and designed to assist employers in identifying key issues when considering COVID-19 policies.
However, the position AREEA continues to advocate to government at all levels is that the business community requires greater national leadership from our legislators to help deal with these complex issues.
Employers in all sectors are faced with a growing conflict between their overarching duty to provide a safe workplace for all employees, including a COVID-safe environment, and the minefield of employment law considerations that might apply if they take a position of mandating vaccinations.
The resources and energy industry is highly dynamic and involves people constantly moving around the country, working in close quarters on high value assets and interacting with both CBD and regional community members.
It is highly likely that in the resources and energy industry, some employers will take the position that requiring employees to be vaccinated is critical to maintaining the safety of their workforce and the communities in which they work.
Employers need to be in a position to make such assessments and implement them with confidence that such a direction is lawful and reasonable and would not expose them to liabilities or prosecution.
To discuss AREEA’s policy positions and government advocacy, contact [email protected]
