SPC: first legal test case for employee-mandated COVID-19 vaccinations

By Karl Rozenbergs and Fay Calderone

Shepparton-based cannery SPC has become the first Australian company to mandate the COVID-19 vaccine for all of its 450 onsite staff and visitors. The company’s decision has come off the back of the increased risk of transmission posed by the Delta variant of the virus.

SPC has enforced a six-week period in which employees can book their first vaccination to avoid running the risk of being barred from on-site work. SPC has also allowed for two days of personal leave if an employee becomes unwell after receiving the vaccine. Another challenge posed by SPC’s direction is how the vaccination status of on-site visitors will be policed.

Interestingly, SPC’s mandate has not been made pursuant to a public health order. Rather, Chairman of SPC, Hussein Rifai stated that this decision is a result of the company’s workplace health and safety obligations and status as an ‘essential service’.

In response, the Australian Manufacturing Workers’ Union disapproved of SPC’s vaccination timeframe labelling it as ‘unrealistic’ due to the current eligibility of Australians to receive the vaccine.

To this end, SPC staff have threatened to leave the company due to the lost autonomy to choose whether to be vaccinated against the virus and, particularly, the eligibility of workers in their 20s who are not yet able to receive the Pfizer vaccine.

We have seen the Federal Government enforce a mandatory COVID-19 vaccine for residential aged care workers based on advice from the Australian Health Protection Principal Committee (AHPPC).

In light of SPC’s direction, food manufacturers and the Australian Food and Grocery Council have called on the Federal Government to clarify the legality of policies which mandate a vaccine. The Fair Work Ombudsman’s current stance is for employers to assume that they can’t require their employees to be vaccinated against COVID-19. However, the Ombudsman is now considering this further and is set to provide advisory guidance shortly.

Advice provided by the Federal Government last Friday has given employers ‘the green light’ to mandate COVID-19 vaccinations in the workplace in reasonable circumstances. This advice provided to National Cabinet stated that there was a legally reasonable basis for four tiers of workers to be captured by vaccine mandates including:

• workers in direct threat of contracting COVID-19 such as airline workers;
• employees working with other people more likely to contract COVID-19 such as medical professionals;
• individuals in public-facing roles such as supermarket workers; and
• the rest of the working population.

On this information, Prime Minister Scott Morrison confirmed that these legal decisions are still required to pass a ‘reasonable test’.

Can employers enforce a COVID-19 vaccination mandate on employees?

SPC’s direction has provoked the need for consideration of the legality and reasonableness of what is still very much a ‘grey area’ in the context of COVID-19.

In determining the viability of an employer’s direction to be vaccinated, the central question to be considered is whether the direction is lawful and reasonable. It would be appropriate for employers to make case-by-case determinations.

Prior to making a determination, an employer should consider the following circumstances including:

• whether the mandate has been made in line with health advice enforced by the Federal Government;
• the industry of the relevant company, extent of physical interaction and whether they are an essential service as outlined by the relevant state health department;
• the delays experienced in the vaccine roll-out which limits the eligibility of certain populations;
• the employer’s workplace health and safety obligations and common law duties of care;
• whether the direction constitutes discrimination prohibited by Australia’s anti-discrimination regime;
• human rights legislation such as Victoria’s Charter of Human Rights and Responsibilities, as considered in our earlier article;
• any relevant provisions in the applicable employment contract, modern award or enterprise agreement;
• any relevant consultation obligations;
• the availability of reasonable exemptions to the direction and effective alternatives to vaccination (such as the use of personal protective equipment); and
• whether the employee can perform the requirements of their role without being vaccinated.

Even if it is determined that a particular employer can lawfully and reasonably direct their employees to be vaccinated, other practical issues need to be considered. This includes privacy considerations and employees who may refuse the vaccine.

The Fair Work Commission (FWC) has provided critical guidance in this area in the matter of Barber v Goodstart Early Learning [2021].^[1] The FWC held that a direction for childcare educators at Goodstart Early Learning to receive a mandatory influenza vaccination was lawful and reasonable and that the employee’s refusal to be vaccinated was a valid reason for termination of employment.

One of the reasons for the FWC’s decision included that the childcare industry involves a high level of physical interaction regularly and is an industry that has statutory obligations which heighten the duty of care owed towards children.

In its decision, the FWC stated that ‘this is a case where the Employer made a logical and legal analysis of the risks and hazards in the workplace, developed a response and implemented a policy to target that risk’.^[2] This decision highlights the importance of considering all circumstances both in a legal sense and practically, which may alter an employer’s position to enforce a vaccination mandate.

SPC’s direction and the high transmissibility of the Delta variant have again brought the issue of mandatory vaccinations to the forefront of the COVID-19 debate. We recommend that all employers that are considering mandating a COVID-19 vaccination obtain advice before directing employees.

Hall & Wilcox will continue to monitor developments in this quickly evolving space.

[1] Barber v Goodstart Early Learning [2021] FWC 2156.

[2] Ibid paragraph [435].