The response to SPC’s decision to mandate COVID-19 vaccinations for its workers, contractors and visitors illustrates a common misunderstanding of occupational health and safety (OHS) management, poor OHS literacy and some industrial and media rent-seeking.
On ABC Radio’s PM program in early August 2021, the main objection of Andrew Dettmer of the Australian Manufacturing Workers Union was insufficient consultation prior to SPC’s decision. (Really?! What about the validity of the company’s OHS decision?) Dettmer said:
“…we thought we had a reasonable relationship with this employer and yet yesterday, in fact, as I understand it after working hours, we were notified that the company had simply decided that they were going to introduce mandatory vaccination, and that all would have to be vaccinated by November. That’s really a bit strange because firstly there’s been no consultation.”
So, the main complaint is that the union was not told beforehand!! This position was hammered home in an (undated) AMWU media statement. OHS management is based on consultation so Dettmer can feel justified in his complaint (echoed by the ACTU) but according to SPC’s Chair Hussein Rifai, in a different ABC interview:
“Well, we were actually in consultation with our employees, with our unions, we had a very big reception yesterday when you communicate to our employees, and our head of HR is in contact with the unions and he communicates with them on regular basis.”
Significantly, in relation to statements by other unionists in mainstream media, Dettmer says of vaccinations:
“We support vaccination. No question, but this issue about compulsion is another question altogether, risk analysis, and in doing a proper plan in consultation with the workers in the union is all we’re asking for.”(Emphasis added)
Some official contributions
So, the rub is making vaccines mandatory. Safe Work Australia believes that most workplaces will not need mandatory vaccinations, but any vaccination program needs to be part of a suite of infection control measures. There has been no indication from SPC that mandatory vaccination will be applied without the existing risk control measures.
On the matter of mandatory vaccinations, the Victorian Equal Opportunity and Human Rights Commission advises:
“Under the Equal Opportunity Act, discrimination on the basis of disability or physical features is allowed if it is reasonably necessary to protect the health and safety of any person, or the public generally. If an employer wishes to make vaccination a mandatory requirement, they must prove how this health and safety exception applies. A range of things will likely be relevant to whether it is ‘reasonably necessary’ to require vaccination, including:
– the type of workplace and the people in the workplace, and whether there is a heightened risk they will suffer severe symptoms if they contract COVID-19 (for example, aged care settings where there are people over 60 or healthcare settings people where patients have respiratory conditions)
– the physical space of the workplace and associated risk of transmission
– whether alternative measures could have been put in place to protect employees and any members of the public who enter the workplace
– the rate of community transmission at the time
the availability of the vaccine
– advice from work health and safety bodies such as Safe Work Australia about vaccinations at the time – Safe Work Australia currently states that it is unlikely that work, health and safety laws require employers to ensure their workers are vaccinated.
WorkSafe Victoria, the OHS regulator for SPC says this of COVID-19 vaccines:
“The COVID-19 vaccine is one control measure for COVID-19. It should be considered part of a broader range of controls to reduce the risk of exposure to COVID-19 in workplaces.”
WorkSafe also stresses the need to consult with workers about any risk control initiatives.
Essential Workers and/or Emergency Workers
Several days prior to SPC’s decision, The Australian newspaper was reporting that the major business lobby groups were pushing for a workplace vaccine mandate. Well, yes and no. There is general agreement that vaccinations should be mandated for “essential workers” – those who are in health care and emergency services. But the concept of essential workers has evolved over the pandemic. What was originally described as essential workers are really “emergency workers” because the continuation of food and service supply lines is being provided by workers who have been seen to be “essential” – a similar point has been made by SPC’s executives.
“If you really think there is going to be a severe pandemic, the first thing you are going to want to do is organise the earliest survivors, the people who get the flu and don’t die, into delivery people. Then they can deliver food and fuel and everything people need so that everyone else can stay home .”
Australia focussed on emergency workers and healthcare workers, understandably as a huge wave of infected was planned for particularly in aged care facilities, but the language and concepts of what was essential were muddier, perhaps anticipating a short pandemic.
Businesses have a similar conceptual challenge. OHS laws define some workplaces as high risk, such as those involved with high-risk construction activities. COVID-19 has added an additional dimension to a high-risk activity or a high-risk workplace. These are likely to remain high-risk until all workers are vaccinated but vaccines do not stop transmission so the risk of infection will continue, only the level of risk will vary. This variable level of risk is likely to be needed to be considered in the next iteration of OHS laws. Australia’s current laws may be adequate to the challenge, but the political and community pressure will increase for overt references of infection risks, just as has occurred on the matter of workplace psychosocial hazards.
Safety Leadership and Consequences
One of the few journalists who have acknowledged the safety leadership of SPC is Jennifer Hewett in the Australian Financial Review (AFR, paywalled) on August 6 2021. Hewett wrote
“… despite the federal government’s reluctance to legislate, confused messages from Safe Work Australia and the possibility of legal challenges from unions and individuals, the rural Victorian-based company still wants to take urgent action on behalf of its employees, its customers and its business.”
The hard copy article headline is “Business leads way on mandatory jabs”. The online headline is “Business takes up the slack on mandatory vaccination”. There is more room online for longer headlines but the loss of the leadership reference is disappointing.
Hewett notes that companies in the United States and France have also mandated vaccinations but there is little for Australian companies to take from other countries other than moral support. The employment contracts and OHS laws of both jurisdictions mentioned are very different from Australia. The United Kingdom, Canadian and New Zealand experiences would be more relevant. There is never any argument against mandatory vaccination for health care workers but governments like NZ and the US are starting to mandate vaccinations for government employees – port workers in NZ, federal workers in the US.
President Biden’s preference for federal employees to be vaccinated has focussed on the military to a large extent but has a much broader social context. A White House factsheet on vaccinations (July 29, 2021) says:
“The federal government employs more than 4 million Americans, including over 2 million in the federal civilian workforce, throughout our country and across the world.
These rules should not only apply to federal workers and onsite contractors. President Biden is directing his team to take steps to apply similar standards to all federal contractors. The Administration will encourage employers across the private sector to follow this strong model.”
The White House also explains the COVID-19 control measures that will be applied for those who object to vaccinations – a topic that is largely missing from the Australian discussions on mandatory vaccines.
“Today, the President will announce that to help protect workers and their communities, every federal government employee and onsite contractor will be asked to attest to their vaccination status. Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirement, and be subject to restrictions on official travel.”
The beauty of this paragraph is that it outlines the personal consequences for those who choose not to vaccinate. These may affect the ability to satisfy one’s job requirements, but every choice has consequences, and this factsheet means that federal workers will be aware of the consequences prior to taking a firm position, in other words, a full-informed decision. Such consequences are still to be worked out in Australia, but the US consequences seem reasonable for those who object from personal choice rather than a documented religious or medical reason.
“Australian Medical Association national vice-president Chris Moy said it was likely Australia would hit a point where those who are unvaccinated are refused entry to restaurants, cafes, sporting events and crowded spaces.(link added)
“As time goes on, it’s going to change what you as a citizen can access,” Dr Moy said. “It may be mandatory to have a vaccine to go into the cinema or restaurant. Nobody has made a clear policy, but I would think that would be reasonable.””
Moy’s opinion on what is reasonable is an important one when one considers the prominence (and misrepresentation) of “reasonably practicable” in some of the other discussions on mandatory vaccinations. Imagine if the Australian Football League said that vaccinated fans would be given priority for tickets to the Grand Final. There would be an outcry from some but there would be a rush for vaccinations as well.
Some reporters and commentators have called on Prime Minister Morrison to show leadership on the issue of mandatory vaccinations. It can be hard to imagine the real-world actions expected of leaders, especially if one has a leadership role. The SPC decision is one example of safety leadership. President Joe Biden‘s preference is another, but although Biden and the White House only recently addressed mandatory vaccinations, they acted on the role of the United States OHS agencies back in January 2021 by issuing an Executive Order. That Executive Order established pathways from National to State and local levels offering assistance and consultation. Morrison could argue that the National Cabinet is performing this function or he could delegate this type of action to Safe Work Australia and its membership or more directly to the Heads of Workplace Safety Authorities who operate under a Memorandum of Understanding.
The frequent testing regime mentioned in the White House factsheet above may seem onerous to Australian readers, but the US is ahead of us in rapid antigen testing – testing that can produce reliable results within 30 minutes. Such a process could delay entry to workplaces but would not stop attendance. Probably due to the lack of such tests in Australia, rapid antigen testing has not featured in the mandatory vaccine discussion although the Liberal and National Parties of Victoria held a promotional stunt on the steps of Parliament House last week. The political theme however was to combat lockdowns rather than the promotion of vaccinations.
It is important to note that Australia’s Therapeutic Goods Administration does not permit these tests in Australia due to their unreliability, however, the political and business pressure for a review of such tests is growing.
The rapid testing will be a useful tool but the Conservative parties in Victoria should note that some law firms, companies who one would expect to be up to date on legal obstacles, are in favour of workplace vaccinations. According to the AFR, (paywalled) Gilbert+Tobin is applying inducements. Minter Ellison is exploring workplace vaccinations and testing. Ashurst may expand its flu vaccination program to COVID-19. Sam Nickless of Gilbert+Tobin did not say “mandatory vaccination”, but he sees a time when vaccination will be a mandatory requirement:
“We need the best encouragement and education campaigns, but ‘that will probably not be enough,… At some point there will be aspects of our society where it will be reasonable to say that if you want to participate, you will need to be vaccinated.”
The majority of mainstream reporting on SPC’s requirement for mandatory vaccination has followed the tired template of lazy consideration of OHS advice and guidance and the fallback position of industrial relations, primarily through the Fair Work Commission. Some readers would support the prominence of the Fair Work Commission on the issue of occupational health and safety, but this position often leads to delayed action or lawyers waiting (sometimes years) for Case Law to clarify points of law and what may be reasonably practicable. COVID-19, in particular the Delta variant, does not allow the luxury of debate or time for a nationally applicable rule.
Many business groups are calling for clarity on what they should do rather than doing what they should do. SPC has chosen to be on the front foot controlling this unprecedented workplace hazard. This is the type of action – the application of a positive duty of care – that was expected by the drafters of the OHS laws in the 1970s, 1980s and 2000s, and which is currently being sought by the Federal Sex Discrimination Commissioner on workplace sexual harassment.
SPC’s decision may be “brave” but is the type of decision for which the OHS laws were written. SPC is pursuing an OHS strategy that might not be “reasonably practicable” but reasonably practicable safety is supposed to be the minimum that a company does to achieve compliance with the law. It is not the same as achieving a safe and healthy workplace that is free of risks. Achieving a reasonably practicable level of OHS is for the unimaginative.
A careful reading of the statements and quotes from Australia’s business lobby groups shows that few, if any, have criticised SPC for its decision. What they have done is obliquely question SPC’s stance by saying that the Federal Government needs to provide clarity on mandatory vaccinations. The business groups have done so in the full knowledge that, outside of Comcare, ALL OHS is regulated by the States and Territories. As shown above, WorkSafe Victoria is silent on mandatory vaccinations although it has a clear position on vaccinations.
Law firms too are looking largely at the possible challenges and complications arising from the primarily OHS decision rather than acknowledging the positive health and safety benefits mentioned repeatedly by the SPC executives in their media statement and media interviews. Lawyers are ever so, and this perspective is what many clients desire – what could go wrong rather than support what could go right.
To SPC and its workers – Live Long and Prosper