Fair Work Ombudsman issues fresh advice on mandatory COVID-19 vaccinations

The Fair Work Ombudsman has issued fresh guidance on the topic of mandatory COVID-19 vaccinations for staff, giving employers in certain industries the green light.

Previously, the FWO advised that the majority of employers in Australia would not be able to require workers to be vaccinated against COVID-19. But there has been growing pressure from employers to provide clarity after the outbreak of the highly-infectious Delta variant. Workplaces, including building sites and manufacturing plants, have been at the source of many of the cases, particularly in south-west Sydney, with employers struggling to protect workers from catching the virus.

Public health orders requiring vaccinations are in place under state and federal laws for certain workers, including construction staff, residential agedcare workers and those involved with hotel quarantine. But industries like aviation, hospitality and even real estate have joined the call for the government to introduce a mandate.

Fair Work has released a four-tier system to advise employers on whether a mandatory vaccination direction would be considered lawful and reasonable. For workers within tiers one and two, a compulsory vaccination mandate is likely to be considered reasonable. The direction must also comply with anti-discrimination laws.

  • Tier 1 work: Where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
  • Tier 2 work: Where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
  • Tier 3 work: Where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
  • Tier 4 work: Where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

The Ombudsman said for workers within Tier 4, a mandate is unlikely to be seen as reasonable. But for tier three, it’s more complicated. The FWO has stated:

  • where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable
  • where community transmission of coronavirus is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown, a direction to employees to receive a vaccination is more likely to be reasonable.

Fair Work advised employers to make directions on a case-by-case basis, using the tier level of the employee for guidance. But employers must also consider whether supply issues are impacting a worker’s ability to be vaccinated and consider how it will deal with workers who cannot be vaccinated on medical or religious grounds.

It comes after Victorian food manufacturer SPC introduced a mandatory COVID-19 vaccine policy. The company announced that all on-site employees must be vaccinated by the end of October. SPC is believed to be only the second and the largest Australian business to introduce a mandate, after Brisbane-based aviation company Alliance Airlines announced a compulsory COVID-19 vaccine policy earlier this year.

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