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Can Employers Force Employees to be COVID-19 Vaccinated?

In January of this year, we examined whether employers could force employees to be COVID-19 vaccinated when the vaccine became available. At that time, whilst still isolated from the rest of the world, there were relatively few cases of COVID and those cases were confined to hotel quarantine. International travel bubbles were even being discussed and all of us could enjoy the domestic freedoms prior to the pandemic.

Then the Delta variant broke loose in the community causing nationwide lockdowns, the most serious and persistent being in NSW and Victoria. It is now apparent that widespread vaccination is the only way the NSW and Federal Governments will allow society to return to pre-Covid freedoms.  This has placed the issue of mandatory vaccination at the forefront of many employers’ thoughts. In this alert, we re-examine our January 2021 advice to employers and employees regarding their rights with respect to COVID vaccination and some of the current trends we have identified.

Can Employers Direct Employees to Receive the COVID Vaccination?

Employers can only require their employees to be vaccinated where:

  • a specific law (such as a state or territory public health order) requires an employee to be vaccinated;
  • the requirement is permitted by an enterprise agreement, other registered agreement or employment contract; or
  • it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis.

From 17 September 2021, the Federal Government has made it mandatory for all residential aged care workers to have received their first dose of a COVID-19 vaccine. This is in line with already existing public health orders in some States and allows private employers to make COVID vaccination an inherent requirement of the position. The Federal Government is also being encouraged, from within its own ranks, to extend that mandate to all aged care and disability workers and this may extend to employees within the airline industry and health sector.

However, the vast majority of employers in Australia will likely not enjoy the ‘luxury’ of relying on public health orders or other government regimes to enforce a mandatory COVID vaccination policy. Are these employers able to mandate vaccination? If they wish to do so they will need to determine whether a vaccinated workforce is essential to ensure a safe workplace such that a direction to staff to get vaccinated is reasonable in the circumstances.

Opening the batting is SPC Australia who, on 5 August 2021, mandated that all casual and permanent staff as well as contractors must be fully vaccinated by the end of November to gain entry to any company location. Furthermore, any visitors to an SPC site would also need to be vaccinated. Their principal reasoning for the decision is that lockdowns are not a long-term solution, and that vaccination is the only way to propagate a safer workplace. The secondary reason SPC rely on is that it provides an “essential service” in so far as it is a producer of food products. SPC’s decision was met with a lukewarm reception by the Australian Manufacturing Workers Union which, although agreeing with the company’s decision in principle, felt that SPC had not adequately consulted with its workforce prior to making what was essentially a unilateral decision affecting major workplace change.

QANTAS has also introduced a mandatory vaccination policy which requires that all its “frontline workers” (including cabin crew, pilots and airport employees) must be fully vaccinated by 15 November 2021 and the rest of its employees by 31 March 2022. The policy allows exceptions for those who cannot be vaccinated for valid medical reasons but will be subject to other measures such as compulsory wearing of masks, social distancing and regular testing.

On 30 August 2021, Virgin Australia also announced that it was “considering” following QANTAS in rolling out a mandatory COVID vaccination policy and as per QANTAS’ timetable for frontline workers and other employees but intended to consult with its employees and the Transport Workers Union before rubber stamping the policy.

Current Legal Position

At present, there is no legal authority on which employers can rely with respect to mandatory COVID vaccination; however, as traversed in our January 2021 client alert, there have been several cases heard in the Fair Work Commission regarding mandatory flu vaccination, which suggest that the judiciary are sympathetic to employers who direct employees to vaccination in circumstances that are reasonable. In the recent matter of Barber v Goodstart Early Learning [2021] FWC 2156, the applicant refused her employer’s direction to get an influenza vaccination on account of her purported “sensitive immune system”. Her employer considered her medical certificate to be insufficient grounds for refusal to follow a lawful and reasonable direction and subsequently terminated her employment. The Fair Work Commission held that the direction for childcare educators at Goodstart Early Learning to receive a mandatory influenza vaccination was lawful and reasonable and that the employee’s refusal to be vaccinated was a valid reason for termination of her employment.

This authority provides comfort to employers on three key grounds. The first is that the courts and tribunals are likely to have little mind to employee arguments that mandatory vaccination is an ‘assault on their person’ as contended in Arnold v Goodstart Early Learning Limited [2020] FWC 6083. The second is that valid medical grounds will be a consideration but not an impediment to directing employees to vaccination; the third suggests that it is not a breach of employee privacy for employers to request evidence of vaccination or reasons of medical exemption.

Nonetheless, we expect a tranche of cases brought before the Fair Work Commission and higher courts in the coming months that will challenge these indicia.

What Position Should Employers Take?

The most contentious question employers are currently asking themselves is whether they should roll out a mandatory COVID vaccination policy or whether it should employ a policy that strongly encourages voluntary vaccination by way of incentives.

A combination of factors may be at play which make that decision more straightforward. For example, employers operating in the healthcare sector, whose employees have intimate contact with the general public, might mount a compelling argument as to why compulsory vaccination is an inherent requirement for the safety of patients and staff alike. Likewise, the hospitality industry might mount the argument that the inevitable handling of food and beverages by its employees dictates that compulsory vaccination is the best way to provide a safe environment for staff and patrons. Finally, the current differing health regulations in each jurisdiction make it very difficult, for example, for employees who live near state borders and need to cross borders for work. Employers with a workforce that is subject to these difficulties might consider standing down employees who refuse get vaccinated an unsatisfactory remedy. The better remedy might be to issue a direction to employees to get vaccinated, the disobedience of which may lead to disciplinary action up to and including termination of employment.

Ultimately, each employer must ask itself the following questions before deciding on adopting a mandatory COVID vaccination policy:

  1. do they operate in an industry that involves physical interaction with the public or are they providing an essential service;
  2. what are the employer’s workplace health and safety obligations and common law duties of care;
  3. does a public health order apply, or other government policy guides them towards directing their employees to vaccinate;
  4. if there is a case of COVID at work would the ramifications seriously jeapodize the viability of the business because it needed to shut down for a period of time;
  5. are there any relevant provisions in applicable employment contracts, modern awards or enterprise agreements that allow the introduction of a mandatory policy;
  6. can employees be safely deployed to perform duties that require minimal interaction with others (for example, working from home);
  7. has an appropriate degree of consultation with the workforce taken place before adopting a mandatory policy; and
  8. is vaccination an inherent requirement of the position of their employees?

If an employer can satisfy itself that it meets one or more of these criteria, we are relatively confident that it can adopt and enforce a mandatory vaccination policy without facing opposition from the judiciary, provided that where valid medical exemptions apply, appropriate accommodation is genuinely explored and employers properly consult with employees who object to the policy to understand their concerns on a case-by-case basis.

Otherwise, we continue to advise our clients that the adoption of a COVID vaccination policy that, at least, strongly encourages and incentivises vaccination (for example, by providing special paid leave for receiving a vaccination and reasonable time to recover from any ill effects post vaccination) should be considered at a minimum by all Australian employers.

We have created customised COVID vaccination policies for several of our clients and are ready and able to assist any employers who wish to roll out their own bespoke policy. If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any other employment law advice or support.

This alert is not intended to constitute, and should not be treated as, legal advice.

The High Court Has the Final Say as to when a Casual is a Really a Casual

In a significant win for employers, the High Court has handed down its decision overturning the Full Federal Court decision in WorkPac Pty Ltd v Rossato [2020] FCAFC 84 which permitted casual employees to receive the 25% casual loading and nonetheless claim paid service entitlements only applicable to permanent staff, where certain conditions applied.

The High Court decision now squarely aligns with the newly introduced casuals provisions in the Fair Work Act 2009 (Cth) which took effect on 27 March 2021. These legislative amendments affirmed that if agreed under terms of an employment contract, a casual employment relationship that mutually acknowledges no firm commitment to an ongoing working relationship or a regular pattern of work between employer and employee, will be sufficient to curtail any subsequent claims for service related entitlements enjoyed by permanent staff provided the parties observe the terms of the casual contract.

Lockdown – An Employer FAQ

From Sunday, 18 July 2021, most workplaces in Greater Sydney have been declared closed to the public. This lockdown has now expanded to parts of regional NSW and other capital cities.

This means that many employers have had to stand down some or all their employees under the current lockdown restrictions.

So, what is it that employers can and cannot do during this lockdown?

Looking back on the last week, we compiled a list of FAQ to assist employers.

Snap Lockdowns and What it Means for Employers and Employees

At 11 am on 7 July 2021, NSW Premier Gladys Berejiklian announced that the lockdown for Greater Sydney and surrounding factions will extend at least until Friday, 16 July 2021. This represents a three-week lockdown whereby affected residents must stay at home causing many businesses into a temporary cessation of operation. Not only do such conditions create hardships for employers but also for employees, many of whom are not required for work and, in some cases, are going without pay. In this client alert, we examine what options are available to employers to protect themselves and their employees during these snap lockdowns.

What are the Current Restrictions in Greater Sydney and How does it affect Businesses?

Generally speaking, when State governments issue a public health direction for residents to ‘remain at home’, the effect has been that members of a household cannot leave their homes except for specific reasons. For example, under the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021, dated 26 June 2021, made under the Public Health Act 2010 (NSW) (“Order”), residents of Greater Sydney cannot leave home unless:

  1. obtaining food or other goods and services in Greater Sydney; or
  2. for the purposes of work or education if it is not possible to do it at home; or
  3. exercising in Greater Sydney; or
  4. medical or caring reasons, including obtaining a COVID-19 vaccination.

There has been some confusion as to direction ‘a.’ above as it has been widely reported in the media that residents of Greater Sydney can leave home to obtain ‘essential items’ or for food and groceries only. However, the Order does not define what is an ‘essential item’ so, in effect, any business that provides goods or services, whether public facing or not, has not been mandated under the Order to cease trading or to perform its normal function.

Nevertheless, for certain industries, such as hospitality and retail, the Order has had the effect of reducing traffic to such an extent that, for many employers, to remain open while continuing to pay its permanent employees, is commercially imprudent. This has potential implications for employers as we discuss below.

What Protections are in Place for Employers who Temporarily Cease Operations during Lockdown?

When the country was first faced with COVID-19 and the reality of nationwide lockdowns, the Federal Government introduced the JobKeeper programme, providing employers with the flexibility to direct their permanent employees to either work reduced hours and/or in different roles, or not to work at all, and still receive defined minimum fortnightly remuneration. The premise behind the JobKeeper programme was to protect both employers and employees from financial hardship during temporary business closures or a reduction in operations. The JobKeeper programme concluded on 28 March 2021 and has not been reactivated even in light of current lockdowns in Greater Sydney and elsewhere across the country.

Furthermore, when JobKeeper was first introduced, the Fair Work Commission also made temporary amendments to several modern awards which allowed for a combination of flexibilities where, depending on the award, employees were entitled to:

  1. take annual leave where available at short notice;
  2. take annual leave for a full day, at the rate of half pay, and at the expense of a half day’s annual leave;
  3. work reduced hours where the employee could not usefully be employed for the employee’s normal days or hours due to the COVID-19 pandemic or where government initiatives were in place to slow the transmission of COVID-19; or
  4. take two weeks’ unpaid pandemic leave.

With some exceptions (for example, the entitlement to take two weeks’ unpaid pandemic leave under the Restaurant Industry Award 2020 is operational until 31 December 2021), these award flexibilities are no longer in place.

So, where an employer cannot usefully deploy its employees due to temporary closures as a result of the lockdown, what legal apparatus is in place to stand employees down?

Section 524 of the Fair Work Act 2009 (Cth) (“the Act”) allows for an employer to stand down its employees where, amongst other reasons, there has been “a stoppage of work for any cause for which the employer cannot reasonably be held responsible”. This is where the lines are somewhat blurred. In the event a government direction forbids an employer from conducting a business or undertaking for public health reasons, it is uncontroversial that the employer can rely on section 524 of the Act to stand down its employees, and without pay if it so chooses. However, if an employer simply faces the reality of a reduction in trade volumes or where it is merely uneconomical to continue to pay its staff during the lockdown, it might not be considered a “stoppage” within the meaning of section 524 of the Act.

Whilst some mandates are in place (such as the wearing of masks within an indoor workplace) the NSW Government, by not defining ‘essential items’ or ‘essential services’ under the Order has, in effect, not expressly forbidden any businesses from operating. Hence, in the event of a claim by an employee, employers who opt to rely on section 524 of the Act in standing down employees without pay would likely need to demonstrate that the Order has obliged them to temporarily cease operations rather than simply made it uneconomic or otherwise difficult to continue operations during the temporary lockdown.

What can Employers do to Mitigate this Risk?

The Federal and State governments agreed that the Federal Government would consider options to support employees during COVID-19 lockdowns. However, State Governments agreed to consider and implement assistance to businesses throughout their own states.

Accordingly, on 29 June 2021, the Berejiklian Government announced new grant packages and changes to the Dine and Discover programs to assist small business and people across NSW impacted by the current COVID-19 restrictions.

In this regard, the package includes grants of between $5,000 and $10,000 for small businesses, a tourism COVID-19 support package, payroll tax deferrals for all employers, an extension of the Dine and Discover program to 31 August 2021 and the ability for people to use the Dine & Discover vouchers for takeaway delivered directly to their home by the venue itself.

In particular, the business grant amounts will be available for businesses depending on the decline in turnover experienced during the restrictions, being $10,000 for a 70% decline in business, $7,000 for a 50% decline in business and $5,000 for a 30% decline in business. The Premier stated the small business support grants were aimed to help businesses by alleviating cashflow constraints while trading is restricted. The grants can be used for business expenses such as rent, utilities and wages.

Notably, businesses will be able to apply for the grants through Service NSW from late July and will need to show a decline in turnover over across a minimum two-week period after the commencement of the major restrictions which came into place on 26 June 2021. Full eligibility criteria will be available on the Service NSW website.

In addition, Service NSW currently has a number of other support assistance available on their website including export assistance grants, travel support program, taxi industry support package, electricity and gas network relief package, small business fees and charges rebate, jobs plus program and the like.

Is There Assistance for Employees during the COVID-19 Lockdown?

A Federal Government assistance programme for employees affected by the lockdown in Greater Sydney has been put in place. In the event employees have been adversely affected by a public health order and cannot attend work or have lost income after day 8 of a ‘COVID-19 restriction of movement event’, those affected employees can apply for the COVID-19 Disaster Payment through Services Australia. In this scenario, and based on other criteria such as age, residency status and assessable liquid assets, the affected employee must also not have access to paid leave entitlements through the employer, cannot be in receipt of another income support payment and can only be applied for after the seventh day of lockdown where attendance at work has not been possible. This is of particular relevance to casual employees.

Additional support has been made available through the Pandemic Leave Disaster Payment. This benefit is available to employees who:

  1. have COVID-19;
  2. have been in close contact with a person who has COVID-19;
  3. cares for a child, 16 years or under, who has COVID-19; or
  4. cares for a child, 16 years or under, who has been in close contact with a person with COVID-19.

Again, eligibility criteria applies but this benefit is of particular relevance to an employee who has been directed to self-isolate by NSW Health in instances where, through contact tracing, is determined to be a ‘close contact’ with a COVID-19 case or is diagnosed with COVID-19.

It is a matter of good policy and serves as a mitigating factor against any potential legal claims, for employers to be aware of, and direct their employees to, these support regimes, particularly where employees find themselves either stood down by their employer or directed to self-isolate by health authorities, and their income earning capacity suffers as a result.

Industries that are Particularly Affected

An employer’s ability to direct employees to receive a COVID vaccination when available may be a matter for our higher courts to determine; however, on 28 June 2021, the National Cabinet agreed that COVID-19 vaccinations are to be mandated for residential aged care workers as a condition of working in shared state, territory, and Commonwealth facilities. Furthermore, NSW workers specified in the NSW Airport and Quarantine Workers Vaccination Program can only enter the workplace or provide services if they have received at least the first dose of a COVID-19 vaccine. This provision commenced at 12pm on 28 June 2021.

Vaccination obligations applicable to certain industries will likely continue to evolve. The aged care sector, unsurprisingly, was the first industry whereby the National Cabinet declared it a mandatory requirement for employees to be vaccinated against COVID-19 and other industries such as health care, hospitality, food preparation and sanitation are likely to be scrutinised for mandatory vaccination moving forward.

As such, we remind our employer clients that it is prudent to, at least, have in place a COVID-19 vaccination policy as part of a suite of human resources policies as this pandemic situation evolves. We are ready and able to provide a bespoke COVID-19 vaccination policy to our clients as needed.

If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any specialist employment law advice or legal support at this time.

This alert is not intended to constitute, and should not be treated as, legal advice.

Employment Law Changes from 1 July 2021

The beginning of the financial year marks a number of important changes to the employment law area. These changes, relate to minimum wages, the unfair dismissal threshold, the Fair Work Information Statement and changes to the Superannuation Guarantee rate. A summary of the changes to come and what this means for your business is covered in this alert.

Performance Management How To Do It Right?

This time of year is typically when both employers and employees buckle down for mid-year performance appraisals. It can be a stressful time for some for many reasons. From an employer perspective, performance management and annual or bi-annual reviews instill dread as managers are tasked with conducting individual performance reviews. However, despite the angst and stress that accompanies performance reviews, not much else is achieved as a result of the review, other than to tick the relevant box stating they have been done. This surely cannot be the purpose of performance reviews. It certainly does not constitute appropriate performance management and the consequence of failing to have hard conversations can be costly.

The Government’s Response to the Sex Discrimination Commissioner’s Report on Sexual Harassment in the Workplace

We have written previous articles regarding the #metoo movement and sexual harassment and what this means in the context of employment law. Community expectations are rapidly changing in this area especially as the issues of sexual harassment and sex discrimination have come to the fore in recent times as a result of the increased media attention following allegations being aired about sexual assault and inappropriate conduct in our Federal Parliament.  Sex discrimination issues continue to garner political and media attention, with the lens of sex discrimination being applied to the treatment of Australia Post’s former CEO, Christine Holgate by the Federal Government.

Terminating an employment agreement

There are many reasons why an employer and employee may want an employment relationship to end.  If the termination of the relationship is at the initiative of the employee, and the employee resigns, there is usually not any significant risk to an employer that there will be resulting claims by the employee, but this is not always the case. In this article, we examine the manner in which the relationship can be terminated and the associated risks, and how these risks may be obviated.


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