Workplace Relations Wrap-up for 2021

The defining workplace issue for 2021 has without any doubt been mandatory COVID-19 vaccinations.

As the current Declaration of the State of Emergency expires in Victoria at 11:59pm on Wednesday 15 December 2021 and the Pandemic Declaration made by the Premier under s 165AB of the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (Vic) (the Act) comes into effect, the following will apply:

• The existing Chief Health Officer (CHO) Directions will continue until revoked (save that the expiry dates will not apply)
• New Pandemic Orders will come into operation as and when they are made by the Minister of Health under s 165AI of the Act.

The pressing mandatory vaccination issues for Victorian Public Sector employers as we head into 2022 include:

Firstly, the importance of a clear strategy for managing unvaccinated staff – employers covered by the COVID-19 Mandatory Vaccination (Workers) Directions include employers of public sector employees and employers of emergency service workers.¹

Many public sector employers have not confronted this issue due to working from home arrangements, however, with the return to an office based environment and/or implementing hybrid working, this is likely to become a more pressing issue as public sector employers must not permit a worker on and after 26 November 2021 to work outside of their ordinary place of residence unless fully vaccinated (save for excepted persons, and persons specifically excluded under the relevant Directions). As a result, employers need to develop a strategy to give effect to this, including:

• Whether to issue a lawful and reasonable instruction for employees to be fully vaccinated by a particular date or face a disciplinary process which could result in termination of employment for serious misconduct
• Whether to treat the failure to be fully vaccinated as incapacity on the basis that it is an inherent requirement for employees to work outside their ordinary place of residence which they cannot do if they are unvaccinated - this could result in a show cause process and possible termination of employment for reasons of incapacity.

Some of the Fair Work Commission flu vaccination cases (such as the Full Bench's Kimber decision²) provide useful assistance in supporting an incapacity argument (albeit in an analogous flu vaccination context).

Although there are a number of challenges currently before the Courts regarding mandatory COVID-19 vaccinations particularly from a human rights perspective, as yet there are no FWC mandatory COVID-19 vax unfair dismissal decisions (nor any Federal Court or Federal Circuit and Family Court General Protections decisions) to consider other than breach of enterprise agreement matters (such as Beydoun v Northern Health³, and the Mount Arthur Coal⁴ decision) and the Q Nurses v Monash Health⁵ adverse action injunction. There are, however, several mandatory COVID-19 vaccination unfair dismissal and general protections matters at the conciliation stage at the FWC, and we are likely to see decisions in this regard early in the new year.

The key take out from these cases seems to be:

• Interim relief is unlikely to be granted if the employer is implementing a CHO Direction
• The status quo provisions under a dispute resolution clause in an enterprise agreement may not be enlivened in the context of a disciplinary or incapacity process
• In the absence of a CHO direction, consultation is required (eg under applicable occupational health and safety legislation) prior to making a decision to implement a mandatory COVID-19 vaccination requirement. Consultation may be required in other contexts as well and specific advice should be obtained.

A second important issue for employers to consider in 2022 is booster vaccinations – ATAGI (the Australian Technical Advisory Group on Immunisation) has advised that, based on current evidence, the highest priority groups to receive booster doses are those with risk factors for severe COVID-19 and/or those at increased occupational risk of COVID-19⁶. This will be further reviewed by ATAGI in January 2022 and we expect that there may be interest in extending this to the broader population, noting that, at this stage, Israel is the only country in the world to have mandated boosters as yet.

Victorian public sector employers do not necessarily need to wait for a Pandemic Order on boosters, but could proceed to issue a lawful and reasonable direction to this effect (or potentially consider an argument that a booster is necessary for an employee to work safely which is an inherent requirement of the job). However, before a Victorian public sector employer can implement a booster requirement (in the absence of a Pandemic Order to this effect) there would need to be:

• appropriate medical evidence to support this
• consultation under any relevant enterprise agreement and occupational health and safety legislation
• a Charter Assessment
• consideration of privacy issues in the collection and storage of vaccination health information.

As a result, co-ordinated strategies need to be developed by Victorian Public Sector employers, informed by legal advice.

We have advised several Victorian Public Sector employers on mandatory COVID-19 vaccination issues this year, and it has been a topic where occupational health and safety has been front and centre.

Our OHS practice, which Cass Tanner leads, continues to grow as our Victorian public sector clients seek specialist OHS advice.

Key mandatory COVID-19 vaccination take-aways from an OH&S perspective

From an OHS perspective, employers have been giving a lot of thought to controlling risks to persons other than employees either acquiring COVID-19 or of them transmitting the virus to employees. These considerations are relevant to contractors, visitors and members of the public. The reason for considering them through an OHS lens is that most employers are not required to obtain vaccination status information from these people under a public health order. Notwithstanding this, there is a need to control the risk of employees acquiring COVID-19 from these third parties and to control the risk of transmission of COVID-19 to third parties visiting the workplace.

The reason that employers need to do that is that they have legal obligations under the Occupational Health and Safety 2004 (OHS Act) to:

• provide and maintain a safe working environment for employees, so far as is reasonably practicable (s 21)
• ensure that persons other than employees are not exposed to risks to their health and safety, so far as is reasonably practicable arising from the conduct of the employer's undertaking (s 23).

What this means is that organisations need to assess what to do about:

• contractors engaged through third parties
• other visitors to the workplace
• third parties with whom employees may interact if they are out in the field.

To discharge obligations under the OHS Act, employers have been undertaking a risk assessment to determine the measures to adopt for each circumstance. The assessment takes into account things such as:

• public health orders which may be applicable to cohorts of people with whom the workforce engages (for example, you may be able assume that certain types of contractor are vaccinated because that is what the law requires in order for them to be working)
• the nature of the engagement with third parties - for example, if a delivery person leaves something at the door, an employer would be less concerned about that than about managing the risk associated with a client attending a 1 hour meeting indoors
• publicly available information about control measures, including from the Victorian Government, or Worksafe or ATAGI.

To summarise, the decision points on mandatory vaccination are these:

• whether the employer intends to request proof of vaccination status from persons attending premises in a work capacity (or whether the employer will rely on the assumption that workers are vaccinated, unless excepted)
• whether the employer intends to request proof of vaccination status from visitors who are not attending in a work capacity
• whether the employer will ask third parties with whom staff will interact offsite to provide proof of vaccination status
• if an employer seeks vaccination status information from third parties, whether it intends to sight or actually collect the vaccination status information
• if an employer is collecting (and not merely sighting) the information, how vaccination status information will be handled, in accordance with the Health Records Act 2001 (including by expressly or impliedly providing for consent in the collection process)
• what the employer will do if someone does not comply – will the employer refuse access to premises or a services and what, if any, options will be available for alternative avenues of engagement.

The related issue for employers to consider in relation to OHS is consultation. The OHS Act specifically provides that employers must consult with employees, so far as reasonably practicable, when making decisions about the measures to be taken to control risks to health or safety at a workplace under the employer's management and control or arising from the conduct of the undertaking of the employer (s 35(1)(b)).

Where a public health order does not require an employer to adopt a particular measure, decision making about OHS measures must be informed, so far as reasonably practicable, by taking into account any views expressed by elected HSRs and any other employee consultation mechanisms at the employer's workplace.

The related issue for employers is decision making around those who are excepted from vaccination. The Directions have not been prescriptive for employers in terms of directing them about what to do to manage the risk of acquiring and transmitting the virus. Rather, the OHS Act will be engaged and should inform decision making.

Employers have been applying the hierarchy of control to this issue in order to ensure the highest possible protection is made available to employees (s 4 OHS Act). First, they may consider whether physical separation or remote working is reasonably practicable, where a person is not able to comply with a vaccination requirement. If that is not an option, some organisations are considering engineering controls in the form of proof of a negative PCR test prior to a person attending the workplace or rapid antigen testing.

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¹ There are several other CHO Directions currently in operation which are also relevant to public sector employers, for example: COVID-19 Mandatory Vaccination (Specified Facilities) Directions which applies to operators of residential aged care facilities, construction sites, healthcare facilities and education facilities.

² Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015.

³ Beydoun & Ors v Northern Health [2021] FWC 6341.

⁴ CFMMEU v Mt Arthur Coal [2021] FWCFB 6059.

⁵ QNurses First Inc v Monash Health [2021] FCA 1372.

⁶ https://www.health.gov.au/resources/publications/atagi-recommendations-on-the-use-of-a-booster-dose-of-covid-19-vaccine

The contents of this wrap-up do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matters you or your organisation may have.