As we approached the final months of 2020, the road transport industry looked forward to the new year with optimism as not only had we flattened the COVID-19 infection curve, but we had also almost eliminated the virus in Australia.
But within days of welcoming 2021, road transport operators again were affected by new COVID-19 outbreaks across multiple states, resulting in the re-imposition of COVID-related restrictions, including hard border lockdowns and the continuing need to apply for border permits. The importance of vaccination against the virus was underlined.
The vaccine roll out across Australia is now a reality and raises important questions as to whether employers in the road transport industry can and should make vaccination mandatory for their employees. Some businesses may already be considering mandatory vaccinations for all employees to reduce the risk to their business, employees and customers. But what happens if employees refuse to be vaccinated?
This article sets out a number of considerations that employers in the road transport industry will need to examine before determining a vaccination policy at their workplace.
Key considerations for an employer are:
- The employer’s primary duty of care is to ensure, so far as is reasonably practicable, the health and safety of workers while at work;
- The specific needs of customers and any other persons to whom the employer owes a duty of care;
- The needs of individual employees, both those in identified “at risk” groups and those with health or other reasons that do not allow them to have the vaccination.
The Australian Government has announced that it will not pass laws to make the COVID-19 vaccine mandatory.
In the absence of federal or state government requirement, or any clear judicial statement on the circumstances in which a COVID-19 vaccination could be an inherent requirement of an employee’s role, employers should be cautious in mandating a COVID-19 vaccine for employees, for example by giving them a lawful and reasonable direction to be vaccinated.
Victoria has taken steps to mandate the vaccination of workers against “specified diseases” with the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020, but the mandate is limited to workers employed or engaged in public hospitals, denominational hospitals and health service establishments.
In contrast, New South Wales, Western Australia, South Australia, the Northern Territory, the Australian Capital Territory and Tasmania have used public health orders to require workers in residential aged care to be vaccinated against influenza where a vaccination is available, unless an employee has a medical contraindication to vaccination.
These differences serve to highlight the uncertainty even in high-risk settings such as health care in declaring COVID-19 vaccination an inherent requirement of employment.
Compulsory COVID-19 vaccination has not yet been definitively tested in a court. However, recently, the Fair Work Commission considered the case of an employee who refused an influenza vaccination. The applicant was an employee of a childcare centre which had arranged to pay for employees to have a mandatory vaccination. Exemptions were made for employees that demonstrated that they could not have the mandatory vaccination on medical grounds. The applicant, however, did not provide any such grounds.
The Commission was not required to make a final decision on the matter (as it determined that the application was made out of time and no extension could be given). However, the Deputy President noted that it is arguable that a policy requiring “mandatory vaccination is lawful and reasonable in the context of its [the employer’s] operations which principally involve the care of children, including children who are too young to be vaccinated or unable to vaccinated for a valid health reason”.
What is apparent from the decision is that certain workplaces, such as childcare and aged care centres, and others who work in close proximity to vulnerable persons, may be able to put in place policies to require vaccinations; but what about road transport operators with drivers who will for some time yet need to travel into and out of “COVID-19 hotspots”? Is this similar?
As touched on earlier, employers have health and safety obligations in the workplace and those obligations extend not only to workers but to other visitors or persons present in the workplace.
Arguably, now that a COVID-19 vaccine is available, the best way to ensure health and safety in the workplace would be to ensure that all employees are vaccinated.
The challenge with arguing that vaccination is an inherent requirement of a position in the road transport industry, is that there are other measures available for minimising the risk of infection from COVID-19 in the workplace, such as the use of Personal Protective Equipment (PPE), and that employees safely performed their roles for most of the past year using only those measures. Just because there may be a safer method of working this year, does not necessarily mean that last year’s methods are now unsafe, and that vaccination is therefore an inherent requirement.
One thing that is abundantly clear is that there is no “one size fits all” answer.
Employees are required to comply with the reasonable and lawful directions of their employer. These directions can relate to ensuring the health and safety of employees and customers, in compliance with the relevant health and safety legislation. Commonly, this includes requiring employees to undertake medical examinations to assess fitness for work and, particularly as part of the COVID-19 response, to self-isolate and undertake a COVID-19 test, to work from home, and requiring unwell employees to stay away from work to prevent the spread of illness.
Employers must carefully consider whether their workplace is one where a mandatory vaccination policy is appropriate. Detailed risk assessments should be carried out specific to the workplace and the work undertaken, and employers should carefully consider the necessity of any change to policy and any required exemptions. NatRoad advisers can help members on these questions and also help members tailor COVID Safe plans to their enterprise’s requirements.