Mandatory vaccinations without making vaccinations mandatory

In a little over a month, the Australian conversation about mandatory vaccinations at work has changed dramatically. In early August, food processing company SPC was treated suspiciously over its requirements for its workers, customers, and contractors to be vaccinated against COVID-19. Recently, the New South Wales Premier, Glady Berejiklian, required vaccinations for workers to move outside of certain residential locations. And today, the Victorian Health Minister, Martin Foley, has all but made vaccinations mandatory for the construction industry.

As Berejiklian has shown, you don’t need to impose mandatory vaccinations to make vaccinations mandatory.

Foley announced

“To ensure we can slow the spread of coronavirus and protect the Victorian health system, a four-week blitz will be carried out by the Government’s Industry Enforcement and Engagement Operation, in partnership with Worksafe and the Victorian Building Authority.”

The health and safety of Victorian workers is implied in controlling the spread of the coronavirus. Still, there is also an admission that the current health and hospital resources may be inadequate to deal with the Delta variant cases. “Flatten the curve” was last year’s cliche, but the intention is part of the current strategy. The occupational health and safety (OHS) context of Foley’s announcement is obvious with his inclusion of its OHS regulator, WorkSafe, and its inspectors.

It will be interesting to see what penalties and infringement notices WorkSafe will apply, as its recently obtained capacity to apply on-the-spot fines for breaches of OHS laws. These fines would seem to have suited COVID-19 breaches, but the on-the-spot fines have a limited scope.

The OHS justification for vaccinations is clear. Whether those should be mandatory should be related to risk. Currently, two Australian governments are determining COVID risk levels on behalf of the employers, who have the primary OHS responsibility. It is almost at the point of the governments issuing the Public Health Orders (PHO) for which many business groups have been pushing. These orders would be legally enforceable and have good evidence bases. Still, they also take the employer out of the decision-making process for the workers, sidelining the significance of OHS laws and duties.

On September 10 2021, in The Guardian Australia (paywalled), lawyer Michael Tooma offered some clarity on employers and COVID:

“Michael Tooma, managing partner of law firm Clyde & Co, believes that for hospitality and retail businesses that will be opening up in NSW at 70% vaccination, employers will be within their rights to stop employing unvaccinated workers.
He said this is because vaccination against Covid could be seen as a safety requirement for interacting with others.
“Think of it like a licence. To be a truck driver you need a special type of licence to work. This is in effect a precondition to perform your work safely, it’s an inherent requirement of the job.”

Tooma’s perspective of vaccination being a prerequisite for a job has been supported by many others. A week before Tooma’s comment, Simon Longstaff of The Ethics Centre made the same point in an interview with the Australian Broadcasting Corporation when asked about choice:

“Well, it’s always been the way, and I think this is part of the problem. We’ve blown this up to make it seem quite extraordinary when in fact there are many many occasions surrounding us in which, including in employment, when you have to make choices about whether you will meet the conditions to do this.

Some of them are non-trivial ones. I mean people who want to be Olympic athletes have got to be prepared to have their blood taken as part of doping testing; people working in the military have to undertake all sorts of things and we should know that from time to time circumstances change which bring about additional requirements. And then we’ve got to make the choice.

Our choice is whether we wish to continue doing that work and thereby meet the conditions, ……. Those who choose not to be vaccinated in circumstances where it’s going to be a condition, need to also understand that the people employing them have a choice as do those who work with them or their customers.”

Longstaff later mentioned “autonomy” – “the right or condition of self-government; freedom to act or function independently” – a concept that is critical to one’s understanding of OHS and employer duties, and a concept that deserves much greater analysis:

“Now they’re both about autonomy, they’re both about the ability to make a choice, it’s just that some people think that choices should be able to be made without any consequences at all.”

Australia is seeing many people making choices but wanting to avoid the inevitable consequences of that choice. This expectation could be partly due to the primacy of selfishness in neoliberal economics and politics. Still, it could also be an unintended consequence of the no-blame OHS culture in workplaces or Australia’s, supposed no-fault workers’ compensation system.

The political decisions of Berejiklian and Foley may come from frustrations with the current lack of social responsibility and collectivism in the Australian population – a perspective that some of our laws and social strategies may have encouraged. Employers now have to face similar challenges, regardless of the possible avoidance mechanism of PHOs. OHS laws assume a commonality of purpose and a collective approach to the prevention of harm – the safety and health of workers and those affected by the work – but the resistance to vaccinations by a minority of workers, strengthened by a confusing position from trade unions, is changing the employer/employee/worker relationship and the role of OHS.

Kevin Jones

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