As Australians line up to receive the first batch of COVID-19 vaccinations this week, agribusiness owners are scrambling for answers and say government agencies have offered little support and guidance about the rollout.
- Business owners are worried they could be liable for COVID-19 outbreaks if employees refuse vaccination
- The Victorian OH&S act is ill-equipped to give clear direction to employers on their responsibilities regarding vaccination, a lawyer says
- Fair Work Ombudsman says the majority of employers should assume they cannot force workers to get vaccinated
Employers want to know if they can force their workers to have the vaccine and, if their employees choose not to, can employers guarantee a safe workplace?
Catherine Velisha runs a food picking and packing business, Velisha National Farms in Werribee, near Melbourne and said she is desperate for more industry-specific information about how to talk to staff about their vaccination plans.
“As an employer of these people, what do we do with people who are vaccinated and those who aren’t?” she said.
“What are our rights? Do we run two workforces, are we able to make vaccination compulsory?
Ms Velisha said the lack of clarity is a pressing legal issue, and she is concerned she could be liable if a COVID-19 outbreak occurs and some employees have refused to get the jab.
“Where does the onus lie?” she said.
“Is it going to be a law or legislation that governments make, or will it fall on each employer and the needs of their businesses and people?
Corporate lawyer at NS8 Group, Neil Salvador, said the Victorian Occupational Health and Safety Act was ill-equipped to give clear direction to employers on their responsibilities regarding vaccination, and the legislation needed to be reviewed.
“Within the act there are a number of obligations and primarily it is to keep people within the business as safe as possible, as far as what is reasonably practicable,” he said.
“We need to think about whether mandatory vaccinations might assist with alleviating some of that risk.”
Make vaccines mandatory?
Mr Salvador said individual businesses under the current act are required to undertake a risk assessment and determine if there is a significant risk posed if some staff are not vaccinated.
“Once you do that risk assessment, you might find that you can’t have social distancing and workplace bubbles for a variety of different reasons,” he said.
While an employee’s right to refuse a COVID-19 vaccination is yet to be tested, Mr Salvador said discrimination issues could arise if people are refused shifts based on their personal health choices.
“The heart of the matter here is adverse action — that is, an employer discriminating by not employing someone who is not vaccinated,” he said.
Ms Velisha said although she will get vaccinated, it would be a tough call to demand that of her workforce.
“If I was advising people I’d advise they get vaccinated, but I don’t really know if that’s the right of the employer to do,” she said.
Can’t force people to have jab
The Fair Work Ombudsman said the overwhelming majority of employers should assume they will not be able to require their employees to be vaccinated against coronavirus.
“The Australian Government’s policy is that receiving a vaccination is voluntary, although it aims to have as many Australians vaccinated as possible,” the Ombudsman said in a statement.
There are however, limited circumstances where an employer may require their employees to be vaccinated but that is dependent on the particular workplace, and each employee’s individual circumstances.
The Ombudsman said a range of factors should be considered by an employer including state and territory laws and whether an enterprise agreement or employment contract includes a provision requiring vaccinations.
“Employers should obtain their own legal advice if they are considering making coronavirus vaccinations mandatory in their workplace or if they operate in a coronavirus high-risk environment, for example health care or meat processing.”
Government guidance needed
Mr Salvador said both state and federal governments should be involved in deciding if vaccines should be mandatory in sectors such as food processing and packing, subject to medical advice.
“Business owners are looking for practical advice and guidance with how to deal with these matters,” Mr Salvador said.
The ABC contacted the federal and Victorian governments for comment.
A spokesperson for the Federal Department of Health said additional advice on prioritisation of people into the ‘critical’ and ‘high risk’ workers category would be advised as “the program rolls out based on dose availability at that time”.