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Employers at sharp end of vaccination checks


Governments have largely outsourced the introduction and enforcement of vaccination check-ins to businesses with legal obligations to protect staff and customers, writes Morry Bailes.

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The jubilation of open borders in our state masks a great deal of paddling under the water by businesses and employers – both to meet community health expectations around Covid preparedness, but also compliance with the law.

Governments across Australia have not always made this episode easy for employers, by declining to legislate common standards in favour of individual decision making. Ordinarily that is the preferred approach, but on this occasion it has squarely left the onus for complying with legal obligations and meeting what is expected by employees and customers to be determined business by business.

For instance, some States have legislated that unless an employee is fully vaccinated they may not enter the workplace. Not so in South Australia and other jurisdictions, which leaves employers on their own to determine this thorny issue. That said, in South Australia the State Coordinator is now mandating vaccine in particular industries such as passenger transport.

To fully understand an employer’s position at this moment in time, it is necessary to turn to the law. The law creates the concept of duties of care. An example is that on the road we owe a duty of care to other road users. Breaches of that duty can have civil and sometimes criminal consequences.

The workplace is the same. All employers owe duties of care to their employees, who also owe duties of care to each other.

Interpreting the argument about a requirement to be vaccinated in the workplace purely through the lens of individual rights and freedoms ignores an employer’s duties at law to create a safe work for its employees and for third parties who may enter, such as customers.

What are those duties, and what are employment lawyers advising employers that is resulting in their making decisions to mandate vaccination in order for an employee to attend the workplace?

Firstly, employers have a liability under workers compensation codes at State and Commonwealth levels. It has been fairly easy for health authorities to follow the genome of a Covid infection to trace infection back to its source, and if it is proved to have emanated from the workplace the employer will be legally liable to compensate the worker for their losses.

Additionally in some states – although not South Australia – employers remain liable at common law for negligent acts or omissions that breach their duty of care and harm an employee.

Of greatest concern to employers however are the provisions in the various Work Health Safety Acts across Australia. Coinciding with the repeal of common law rights for injured workers in many jurisdictions, trade unions in particular demanded much stiffer penalties for negligent employers.

Enter into the legislation the concept of a ‘person conducting a business or undertaking’ or PCBU. An employer is a PCBU for the purposes of WHS legislation, and a breach of a duty under this Act does indeed come with penalties of the harshest nature. At its height for what might be described as gross negligence resulting in injury or death, the owners or senior executives of a business can be sentenced to hefty terms of imprisonment. Lesser breaches may still be met with millions of dollars in fines to a business, as well as substantial fines for individuals.

It is not difficult to imagine this type of industrial prosecution as a result of negligence on the part of an employer resulting in Covid death or serious disability. Indeed, this very circumstance was investigated  by WorkSafe Victoria in relation to the apparent negligence exhibited by Victorian Department of Health officials in relation their botched Victorian hotel quarantine system which resulted in illness and death. A prosecution against individuals in that department under Victoria’s Occupational Health Safety Act was just launched and those matters are before the criminal courts right now.

Little surprise then that employers are less concerned with arguments of individual liberty and choice and more concerned with discharging their duties in statute and at common law, and not ending up before a criminal court en route to jail.

Correspondingly employment lawyers are advising the easiest way to discharge these duties of care is to mandate vaccine. However, before doing so there is a process to ensure it is properly considered and has the backing of the Fair Work Act. In short it is a three step process.

First carry out a risk assessment of the workplace, which needs to be comprehensive because every workplace is different and the ‘business or undertaking’ carried out in that workplace will also be different. Second, with risk assessment in hand consult with your employees to understand their views and take those on board. Third, draw up a policy for the workplace that needs to deal not only with permitted vaccination status but all the requirements to discharge the duties of care owed to an employee and third parties in a hierarchy of importance. That policy will include such things as mask policy and how and when to wear them, and education about what is and what is and what is not an effective mask.

Little surprise then that employers are less concerned with arguments of individual liberty and choice and more concerned with discharging their duties in statute and at common law, and not ending up before a criminal court en route to jail

Other policy topics will include social distancing, working from home, remote communication, working outside, how to deal with the customer facing element of a people business, and may contain a ban on the use of public transport to and from work, and so on. A good risk assessment will inform your strategy.

With that type of comprehensive approach, employment lawyers are advising employers that it is likely that directions given to employees will be lawful and enforceable, and critically, address and discharge the duties of care that exist in law and are owed to employees, third party contractors and other third parties such as customers. Any shortcuts and you and your business may be at risk.

As to the role of government, it has provided the legislative environment in which we must all sort through these challenges and as is typical in a federation, predictably each state and territory is different. Pity national employers who are plunged into the nightmare of needing to create workable variants to their policies depending upon the state or territory of their application.

What government has largely not done however is lifted any of the burden from employers by the use of universal legislative standards, with notable exceptions such as those states who have through legislation required certain employees attending the workplace to be fully vaccinated. To oppose governments mandating vaccines may be reasonable as a matter of principle, but it will not stop vaccines being mandated. Rather it will just mean it is employers who will have to do the dirty work.

Business of course generally knows how to look after itself and we can expect to see the blue team, red team system back in play as well as directions to work from home and otherwise limit infection in the workplace. And as we approach Christmas expect a reversion to largely remote attendance. No one, including the boss, wants to be in quarantine on Christmas Day.

It is a challenging time both for employers and employees. Trying to understand the onerous duties in law that exist for employers and what their lawyers are advising them to do to discharge those legal obligations helps explain what may otherwise be perceived by employees as high-handed.

There will always be a bell curve in every population and the subject of vaccination has certainly thrown up the expected outliers. However as John Howard said ‘Australians don’t like extremists’ and it’s true. Most of us are capable of working through these issues and there is always a middle road. What’s more, employers did not ask for the onerous duties of care thrust on them by law; however it remains their legal obligation to discharge them.

‘Delta Day’ for South Australia has dawned and we are facing a brave new world of living with the virus. Stay safe but also stay sensible because the law can only set a framework – it is the common sense of South Australians that is the best chance to keep us safe.

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.

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