No jab, no job – will this be the new normal for Australian workplaces?

Posted on August 10, 2021

Fruit and vegetable company SPC have made headlines for being the first Australian company to mandate the COVID-19 vaccine for all onsite staff and visitors. SPC expressed that they believe this is the only way to protect their employees and customers, and the communities in which they work, in light of the new Delta variant. SPC compared itself to essential services such as aged care and front-line workers.

The SPC policy requires that all workers be fully vaccinated by November 2021 and workers have 6 weeks to book their first vaccination or risk being barred from on-site work. SPC will give workers leave to receive the vaccine and up to two days of special leave to recover if they become unwell after receiving the shot.

The Australian Manufacturing Workers’ Union have responded that SPC’s timeline is unrealistic considering that not all workers will be eligible for the vaccination.

Food manufacturers have urged the Federal Government to clarify the legality of ‘no jab, no job’ policies, as more companies consider following SPC’s lead.

There is speculation that this may become Australia’s first legal test case on the issue.

We have discussed the legalities of mandatory vaccines in our previous articles: To Jab or no to Jab and Can I direct my employees to be vaccinated?

National Cabinet announcement

On 6 August 2021, the National Cabinet met and discussed the issue of mandatory COVID-19 vaccinations in the workplace. In summary, apart from the areas already nominated (e.g. aged care) the Federal Government will not pursue mandatory COVID-19 vaccinations for employees. As stated in the media release “Australia’s policy remains that vaccines should be voluntary and free”.

Under Work Health and Safety legislation, businesses have a legal obligation to keep their workplaces safe and to eliminate or minimise so far as ‘reasonably practicable’ the risk of exposure to COVID-19.

In the absence of a state or territory public health order or a requirement in an employment contract or industrial instrument, Prime Minister Scott Morrison explained that any decisions about vaccines in the workplace would need to be lawful and reasonable. Morrison acknowledged that this decision needs to pass a reasonable test which is ultimately decided by the courts and that employers should consider this very carefully before making directions of that nature.

In summary, the decision for mandatory COVID-19 vaccines for employees will be a matter for individual businesses, in consideration of their particular circumstances and obligations under work health and safety, discrimination and privacy laws.

Please contact our Workplace Relations team if you require assistance in navigating the complex legalities surrounding the issue of vaccinations in the workplace.

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