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Unions and business agree, but governments still passing buck on workplace jabs

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Can companies demand their workers get vaccinated against COVID-19? Don’t ask state or federal governments. They’re too busy passing the buck writes Robert MacDonald

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The latest outbreak of government-level buck passing is making life even more confusing for companies trying to survive the pandemic.

Here’s the problem: company bosses face big fines and possible prison sentences if they fail to provide a safe workplace.

Demanding their workforce be as protected as possible by being vaccinated against COVID-19 would seem a logical step in that process.

That’s the defence being used by Hussein Rifai, the chairman of Victorian-based food processor SPC – the first company in Australia to mandate jabs for all its workers.

But, of course, it’s not as simple as that.

Workers have rights too, enshrined in various bits of legislation – from workplace and anti-discrimination laws to human rights acts.

Unions, lawyers and peak industry bodies warn any unilateral move by companies to mandate vaccinations will end up in the courts, to say nothing of the risk of union work bans.

The logical answer would be a clear set of rules from the Federal Government, something both the ACTU and the Business Council of Australia have called for in a rare joint public statement.

“Employers and unions recognise that for a small number of high-risk workplaces there may be a need for all workers… to be vaccinated to protect community health and safety,” they said.

“These are serious decisions that should not be left to individual employers and should only be made following public health advice based on risk and medical evidence.

“The ACTU and the BCA call on governments and the National Cabinet to support this position and ensure that where mandatory vaccination requirements are necessary, they are implemented through the use of nationally consistent public health orders.”

And that’s where the buck passing starts.

Prime Minister Scott Morrison has refused to endorse mandatory vaccinations. He’s also refused to provide indemnity to companies wanting to force jabs on their staff.

He has said however the states can use their own workplace health and safety laws to indemnify companies whose workers get sick in an unvaccinated workplace.

“The advice I have received is that workplace health and safety regulators in the states can provide a statement of regulation intent that a business that does not mandate (vaccinations) is not in breach of workplace health and safety laws,” he said after Friday’s National Cabinet meeting.

But the states aren’t impressed at being dragged into the debate – well, certainly not Queensland.

“It’s not our responsibility,” Premier Annastacia Palaszczuk told media on Friday.

“It’s a federal issue and I think the ball is in the Prime Minister’s court here.

“Let me say very clearly, the national vaccination program and whether or not they want to mandate certain sectors is a matter for the national government.”

Palaszczuk is right but only up to a point. The Queensland Government is, after all, the biggest employer in the state, with a 235,000-strong workforce, and has already made vaccinations compulsory for certain of its health sector employees.

It has also, through public health direction, required jabs for aged-care workers.

In addition, it is in charge of the state’s workplace health and safety laws, through its agency, WorkSafe Queensland, and could, at least according to Morrison’s advice, indemnify companies that choose not to mandate vaccinations.

But this isn’t really about who’s got the power to do what. It’s all about politics.

The unions don’t want bosses making unilateral decisions about who gets vaccinated. And that means of course that the union-dependent Queensland Government is against forced jabs, whatever other moral and ethical issues might be in play.

For his part, Morrison has to deal with those on his side of politics who object in principle to anything smacking of government edict and removal of personal choice.

And so, for now, any company wanting to vaccinate its workforce must be able to prove that its direction to workers is “lawful and reasonable”.

To date, the official advice from the Fair Work Ombudsman and other oversight agencies, can be boiled down to: “Talk to your lawyers”.

On Thursday last week the Fair Work Ombudsman, in a bid to bring some clarity to the issue, did issue some updated guidance on workplace vaccinations.

Among other things, it has developed a four-tier coronavirus-risk rating for different types of work – ranging from border control to employees working from home.

It’s useful as far as it goes but the Ombudsman concludes its updated advice with the following:

“Regardless of the tier or tiers which may apply to work performed by employees, the question of whether a (vaccine) direction is reasonable will always be fact dependent and needs to be assessed on a case-by-case basis.”

“Employers should get their own legal advice if they’re considering making coronavirus vaccinations mandatory in their workplace.”

In other words, until governments finally stop passing the buck  and  settle on the rules and ethics around vaccine mandates, if you are a business owner thinking it’s important to vaccinate your workforce, you’re on your own.

 

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