Consultation on Transport for NSW’s (TfNSW’s) proposed COVID-19 safety measures closed on 25 October 2021. The PSA has submitted feedback, which TfNSW has responded to. You can read that HERE.
TfNSW safety measures
This morning, Monday 8 November, TfNSW briefed the unions on the outcome. TfNSW announced it would be moving forward with mandatory vaccinations with amendments to the exemption process, which will result in further time for employees to comply with the vaccine requirement. The policy will become effective on 6 December 2021. TfNSW is yet to provide the unions with any updated policy.
The PSA has received inquiries from members about vaccinations and the workplace, particularly concerning their options if TfNSW moves forward with mandating vaccinations for all employees. With TfNSW moving forward with vaccinations we would like to provide members with some guidance.
Work Health and Safety considerations
TfNSW undertook the risk assessment to inform its COVID-19 safety measures; ensuring compliance with its obligations under the Work Health and Safety Act 2011 TfNSW as a Person Conducting a Business or Undertaking (PCBU). TfNSW’s obligations include a duty of care to ensure as far as reasonably practicable that employees and other people (including clients) are safe in the workplace.
The Act also defines what is reasonably practicable in ensuring health and safety.
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a) the likelihood of the hazard or the risk concerned occurring, and
(b) the degree of harm that might result from the hazard or the risk, and
(c) what the person concerned knows, or ought reasonably to know, about
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Not only does TfNSW have obligations but you as an employee under s 28 of the Work Health and Safety Act 2011 are required to:
(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and
(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
What happens if I refuse?
Members may be asking what can happen if they choose not to comply with the direction to get the vaccine.
Based on TfNSW’s proposed policy and discussions today, if you do not seek an exemption by 6 December 2021 and remain unvaccinated, the simple answer is it may lead to disciplinary action. Disciplinary action may include termination of employment on the basis you have not complied with a reasonable and lawful directive. However, what is not simple is whether the direction is both reasonable and lawful.
There is further information below about the proposed exemption process.
Lawful and reasonable directive
What is a lawful direction? It is one that is within the scope of employment and involves no unlawfulness.
Whether the direction is reasonable will have to be determined on each individual member’s circumstances. As the context of determining whether a direction to receive a vaccination is reasonable (in the absence of a Health Order), a case-by-case analysis is appropriate. Factors to be considered:
- the nature of the work the relevant employee does;
- the availability of vaccines to that person;
- their suitability for any available vaccination;
- the risks of transmission associated with the work (including the vulnerability of particular persons they might work with);
- how those risks would be reduced by vaccination;
- how much time is given to comply with any direction;
- whether costs or losses caused by complying with the direction would be met; and
- the amount of community transmission of the virus at the time the direction is issued.
The PSA has raised some concern that the direction may not be reasonable for all of the work-groups. TfNSW considers that it would be a reasonable directive.
Recent unfair dismissal decisions can provide guidance as to what is reasonable when it relates to vaccinations. In April, the Fair Work Commission (FWC) found it was reasonable for two employers, one operating in the childcare industry and one in the aged-care industry, to implement mandatory flu vaccination policies. The FWC upheld the dismissal of the two employees who were sacked for refusing to receive a flu vaccine.
Ultimately, your individual circumstances will be relevant as to whether the proposed direction to be vaccinated would be reasonable.
TfNSW advised today the employee must apply for the exemption by 6 December 2021. We recommend applying for the exemption if you are an employee looking not to be vaccinated.
The draft policy outlines a process to apply for an exemption based on medical grounds or other circumstances. We have been informed this will remain the same. TfNSW has indicated that other circumstances that would provide for an exemption would need to be exceptional. However, TfNSW would assess each case individually.
Whilst TfNSW considers whether the grant the exemption, the employee will be able to access leave. However, if the employee does not have available leave, TfNSW proposal is that the employee will be considered to be on unpaid leave.
The PSA has raised the issue of whether TfNSW can put the employee on unpaid leave if they are ready, willing and able to work, particularly where the employee can work from home. The PSA will raise these issues in individual circumstances.
If the exemption is not granted, the proposed policy states that TfNSW will attempt to look for alternative arrangements for three months. It is unclear what alternative arrangements TfNSW will implement. At the end of the three months, TfNSW will assess the circumstances, and the employee may still be directed to be vaccinated.
We are waiting for updated policy and if there are any corrections to the above we will advise our members.
The PSA will assist those members who require support through this process.
Adverse reaction to the vaccine
It may be possible for an employee to make a successful claim under workers’ compensation. Some workers across NSW have had adverse reactions to the vaccine and have made a workers’ compensation claim. All compensation claims are different, and you will be required to meet the thresholds under the legislation. If you make a claim and it is declined, as with other claims, the PSA can assist members.
In the alternative, TGA is running a compensation scheme; you can find more information about that HERE.
Vaccination discussions in the workplace
The PSA understands that mandatory vaccinations can be a divisive issue, and encourages all members to maintain appropriate and respectful behaviour when discussing the matter with colleagues, and your union.
The PSA and other unions meet with TfNSW fortnightly discuss the implementation of the policy.
We will continue to keep you updated.