In an ongoing discussion over the role of employers in the Covid-19 vaccination program, The Australian Chamber of Commerce and Industry, Australia's largest and representative business association issued an advisory to alert employers of a potential threat. Employers can face compensation claims by workers for any adverse reactions or aftereffects if they implemented incentives to get their employees vaccinated.
The Acci and the Australian Industry Group, peak industry organisations, reiterated that employers might be indemnified if they mandated inoculation of their employees. The member states were advised by Acci to help employees to get Covid-19 jabs as it could be a huge contribution to public health efforts and in protecting the wellbeing of staff but also warned that it was “not without some risk”.
The Chamber stated that employees can lay a compensation claim if they suffer an adverse reaction to the vaccine. Employers who refer or merely inform about the vaccines would not be liable but employers who mandate vaccines will be liable to uphold compensation claims.
It further stated that compensations can also be claimed if employers provide an incentive or reward for vaccination, or organised a vaccination onsite or elsewhere.
The FWO advised employers to be vigilant and discretionary before making Covid-19 vaccines compulsory for workers because the rationality of such orders will be adjudicated on a case to case basis. It announced that Covid-19 jabs for tier one work where staff are found to be in contact with people at risk from coronavirus, such as airline workers or in tier two settings, or where they work with vulnerable people, such as aged care are more likely to be stand or hold ground on reasonability standpoint. Tier three work- where workers are interacting with common people can be asked by their employers to get vaccinated. It would be justified more if there is a danger of community transmission.
Acci stated that employers can ask workers to work from home if they refuse to be vaccinated but has also advised to exercise caution because the denial to get vaccinated can be based on steady grounds like medical or religious ground, as this may amount to discrimination. Employers can investigate if the employees have legitimate grounds for refusal and make “reasonable accommodation” by changing their duties if they do. Acci said that the employers have a right to contractually require that a prospective employee be vaccinated. But denying to give a job to the person if he/she refuses can result in a discrimination claim. The chamber said that employers could inquire if their employees had been vaccinated. But privacy law would govern the use and disclosure of that information once it is collected.
The National Cabinet noted that protection could be given to employers( not mandating vaccines) by state work health and safety regulators if an employee sues them for not requiring other staff to be vaccinated.
The Business Council of Australia, along with the Australian Council of Trade Unions argued and supported that only employers covered by public health orders should require staff to be vaccinated, unlike a barrage of employer groups who pushed for indemnity for employers who encourage or mandate vaccination.
All these debates were held prior to a major meeting of employers and unions which will be superseded by Michaelia Cash, Federal Industrial Relations Minister. A prominent enquiry by different parties in the meeting will be of Fair Work Ombudsman advice. Employers may be able to require their staff to be vaccinated, depending on their risk of exposure to coronavirus, according to it. The agenda of the union is to use the platform to raise the demand for paid vaccine leave for workers to be vaccinated and recover from any routine side effects. ACTU will also support the demand of paid leave which includes 20% of people who report routine vaccine side effects that require time off work according to the AusVaxSafety tracker. Sally McManus, ACTU secretary said that there was “no more important job to be done than getting 80% of Australians vaccinated”.
Another flag bearing issue which will be highlighted in the meeting is how businesses can comply with the work, health and safety obligations without mandating vaccines. The appeals of vaccine mandates by employers have been ruled out by Prime Minister, Scott Morrison.