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New guidance released by the Fair Work Ombudsman could offer grounds for some employers to force their staff to get the jab, and ask them to prove they’ve had it.
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FWO greenlights select workplace COVID-19 vaccine mandates
17 August 2021
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The Fair Work Ombudsman (FWO) released updated workplace COVID-19 vaccination guidance last week, which maps out a four-tier system highlighting the select circumstances under which some Australian employers would be able to introduce a COVID-19 vaccine mandate.
The new guidance suggests that employers can direct employees to get vaccinated if the direction is lawful and reasonable, which the FWO has urged employers to assess on a case-by-case basis through its four-tier framework. Legislation, however, remains the same.
Tier one describes work where staff are required as part of their duties to interact with people in a way that might expose them to a higher risk of infection, like hotel and aged care workers. Tier two describes those where staff regularly come into contact with vulnerable members of the community, like those working in health or aged care.
According to the FWO, a vaccine mandate directed at staff undergoing work in tiers one and two is more likely to be reasonable.
Meanwhile, tier three describes work where there is “interaction or likely interaction” between employees and customers, or the broader public, commonly seen at stores providing essential goods and services.
Tier four, however, describes work where staff have minimal face-to-face interaction as part of their normal duties, like those of an office worker, who has likely taken to working from home under public health orders.
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The FWO advised that tier four employers who consider introducing a COVID-19 vaccination mandate could likely be doing so unreasonably, while the reasonability of directing a vaccination mandate at tier three workers wasn’t determined.
Across the profession, accounting and consulting firms have signalled widespread support for the vaccination of their staff by establishing vaccination programs of their own, but have yet to introduce mandates.
Earlier this month, each of the big four firms revealed plans to boost staff vaccine uptake, and some have gone so far as to offer paid leave for those eager to get the jab, after state and federal leaders called on the support of business to expedite the nation’s vaccine rollout.
But representatives of the broader business community and Australian unions say any COVID-19 vaccine mandate or direction might be unreasonable, and getting vaccinated should remain a voluntary decision.
In a joint statement, the Business Council of Australia and the Australian Council of Trade Unions said they support the broad uptake of COVID-19 vaccination, but stood in opposition to employers forcing their staff to get the jab.
“The ACTU and the BCA acknowledge that the federal government’s COVID-19 vaccination policy is that it should be free and voluntary. We believe that for the overwhelming majority of Australians, your work or workplace should not fundamentally alter the voluntary nature of vaccination,” they said.
“Employers and unions recognise that for a small number of high-risk workplaces, there may be a need for all workers in a workplace to be vaccinated to protect community health and safety. These are serious decisions that should not be left to individual employers and should only be made following public health advice based on risk and medical evidence.
“The ACTU and the BCA call on governments and the national cabinet to support this position and ensure that where mandatory vaccination requirements are necessary, they are implemented through the use of nationally consistent Public Health Orders.”
Business leaders in Victoria, however, have come out in support of the new guidance. The results of a survey conducted by the Victorian Chamber of Commerce released on Monday found that 72 per cent of business leaders said that unvaccinated people should be restricted from attending public events.
Nearly half of respondents were in favour of mandatory workplace vaccinations, at 45 per cent, while a further 29 per cent said they would only support the introduction of vaccine mandates across select professions and industries.
Victorian Chamber of Commerce and Industry chief executive Paul Guerra said the results show mounting support in favour of workplace vaccine mandates.
“These directly from Victorian businesses reveal that the majority support either mandatory vaccinations in the workplace, or at least for some professions,” Mr Guerra said. “Almost a third would like to be able to offer vaccinations in the workplace.
“The majority of our members also support the introduction of greater freedoms from restrictions and entry to events for fully vaccinated people, and restrictions imposed for those who are not.
“The Victorian Chamber continues to encourage all those who can be vaccinated to do so. Our greatest chance of victory in the fight against COVID-19 and the lockdowns and hardships that come with it, is the vaccine.”
Beyond offering employers reasonable grounds for introducing vaccine mandates, the new FWO guidance will also enable them to require staff to prove that they have been vaccinated, in order to protect their workplaces against infection.
The guidance advises employers that they can ask workers to provide evidence of their COVID-19 vaccination, if they’ve first provided staff with lawful and reasonable direction to be vaccinated.
“An employer may ask to view evidence of an employee’s vaccination status without raising privacy obligations provided they do not collect (i.e. make a record or keep a copy of) this information,” the FWO said.
“An employer should not collect vaccination status information from an employee unless the employee consents and the collection is reasonably necessary for the employer’s functions and activities.”
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