VICTORIA FREEDOM KEEPERS

Staying Informed: The FWO’s update on COVID-19 and workplace obligations
 
On 07 July 2022 The Fair Work Ombudsman (FWO) published an update to assist Australian businesses in determining whether the implementation of an individual workplace vaccine mandate was ‘lawful and reasonable.’
The guidelines are applicable on a national level and some key takeaways are listed in these slides.
 
When can an employer require an employee to be vaccinated?
When a specific law (e.g. a health order) requires it;
The requirement is permitted by an enterprise agreement, other registered agreement or detailed within an employment contract, or
An employer give their employees a lawful and reasonable direction to be vaccinated.
 
What is considered a ‘lawful and reasonable’ direction?
For a direction to be ‘lawful’ it will need to comply with a health order, an employment contract, an enterprise agreement, state/modern award and any other state or federal law that applies.
This also includes the employer’s requirement to adhere to consultation processes, anti-discrimination laws and general protections under the Fair Work Act 2009 (Cth).
 
For a direction to be considered ‘reasonable’ a number of factors must be taken into account including;
the nature of the workplace (e.g. is it predominantly customer-facing?)
the risk to the community (e.g. working with vulnerable people)
the employee’s specific duties and how they are performed
the employee’s reason for refusing the vaccine
 
The FWO has also loosely divided workplaces into four tiers to help employers determine if a direction is reasonable based on the type of work. These tiers are;
Tier 1: covers employees are at an ‘increased risk’ of being infected with COVID-19 (e.g. employees working in quarantine facilities).
Tier 2: covers employees who work with vulnerable people (e.g. health care or aged care).
Tier 3: covers employees who have face-to-face interaction with the public as part of their daily duties.
Tier 4: covers employees who have minimal face-to-face interaction as part of their daily duties.
Tiers 1 and 2 may hold stronger evidence for a reasonable direction to be vaccinated in comparison to Tiers 3 and 4.
 
Does an employer need to consult when implementing a workplace policy about COVID-19 vaccinations?

Yes employers may have a requirement to consult with employees when introducing a COVID-19 workplace policy. This is to ensure employee’s views are taken into account before any policy is implemented. These requirements may be covered by WHS laws, an applicable state/modern award or enterprise agreement which have specific consultation clauses. Failure to meet these consultation requirements can mean a breach of Fair Work legislation and render the policy invalid.

Can an employee refuse to attend the workplace because a co-worker isn’t vaccinated against COVID-19?
Generally, an employee cannot refuse to attend the workplace because their co-worker isn’t vaccinated. This may be because there is no public health order or the employee has provided a reason not to be vaccinated. Instead the employee should raise any concerns with their employer.
Can an employer require evidence of an employee’s vaccination status?
An employer can request an employee to provide;
Evidence of their vaccination status or;
Evidence as to their reason not to be vaccinated.
 
However, this evidence is considered sensitive information and therefore there are privacy laws that apply. An employer cannot retain this evidence without the employee’s express consent and on the basis that it is reasonably necessary for the employer’s business functions and activities.
 
Final comments
We understand this update may raise more questions than answers. The FWO’s guidelines will be implemented on a case-by-case basis and will hopefully become clearer as precedents are established. Freedom Keepers will continue to keep our community informed.
 
All information provided in these slides was obtained from the FWO website.