The PSA has received enquiries from members seeking further information on vaccinations and the workplace.

Mandatory vaccinations for certain diseases is not a new industrial development. PSA members in a variety of different occupations have been required to provide evidence of vaccinations against such diseases as Diptheria, Tetanus, Hepatitis B and Tuberculosis for many years.

Lawful and reasonable directions

The NSW Government has issued a circular which provides guidance for Government Sector Agencies regarding COVID-19 vaccinations for employees. The circular is available HERE.

A lawful direction is one that is within the scope of employment and involves no unlawfulness. In 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. This would include:

• Consideration of 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.

What happens if I refuse?

Keeping in mind the above matters, members may be asking what can happen if they choose not to comply with such a direction. The simple answer is not complying with a reasonable and lawful direction can lead to disciplinary action. To further answer this question we must look to relevant and related industrial decisions.

Unfair dismissal

In a decision handed down 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 two employees who were sacked for refusing to receive a flu vaccine.

Whether an employer can require employees to be vaccinated will depend on the circumstances of the direction given, including whether mandatory vaccinations are necessary to ensure work health and safety in the workplace, and whether the workplace is considered a high-risk setting.

Work health and safety

A Person Conducting a Business or Undertaking (PCBU) has a duty of care to make sure employees and other people (including clients) are safe in the workplace.

As with all matters regarding employee safety, sufficient risk assessments must be completed prior to any direction regarding vaccinations.  This has been confirmed by the NSW Government Circular, which states that Agencies must perform a risk assessment prior to giving a direction that employees must be vaccinated (and provide proof of vaccination) in the workplace to determine whether mandatory vaccination is lawful and reasonable.

Section 28 of the Work Health and Safety Act 2011 requires workers 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.

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.

Medical exemptions from vaccinations

Some people may have a medical condition for which receiving a COVID-19 vaccination presents a risk to their health. Under the current Public Health Orders, if you have a serious underlying medical condition, and you are issued a medical contraindication certificate from a qualified medical practitioner, you are exempted from the requirement to be vaccinated. You should seek medical advice from a qualified medical practitioner.

The Australian Technical Advisory Group on immunisation recommends pregnant women be routinely offered the Pfizer vaccine at any stage of pregnancy. For information about pregnancy and vaccines, see HERE.

The failure of the Federal Government to make vaccines available

There can be no doubt the Federal Government has bungled its responsibility to procure and make available the vaccine in a timely manner to Australians. This lack of availability to the vaccine must be considered if directions around mandatory vaccination are given.

Vaccination discussions in the workplace

The PSA understands that mandatory vaccinations remain a divisive issue, and encourages all members to maintain appropriate and respectful behavior when discussing the matter with colleagues, and your union.