South Australia’s emergency management declaration is extended until 28 May 2022. This status has been in place since 22 March 2020 and has enabled the State Coordinator (Grant Stevens, Police Commissioner) to issue public directions to mitigate the impact and spread of COVID-19. This has included vaccine mandates for particular sectors (many having been subsequently repealed as our state levels of vaccination have sufficiently increased).
When the emergency management declaration ends, mandating COVID-19 vaccinations will need to be based on individual employer policies rather than employers relying on the various declarations. The Courts and Tribunals have made it clear, that a mandatory vaccination policy may be deemed lawful and reasonable only when a correct industrial implementation process is followed and said policy complies with all applicable legislation such as WHS legislation, Fair Work legislation and anti-discrimination legislation.
Despite the changing COVID-19 situation, the South Australian Business Chamber member The Law Society advises that the employer continues to have a legal obligation to provide a safe workplace and to mitigate risks to health and safety. It is well established in law that employers can impose rules on employees for the purpose of maintaining a safe workplace. This has seen a requirement, for example, that nursing home workers be vaccinated against the flu.
Ultimately, from an industrial and work health and safety perspective, consultation with staff is a critical step when considering implementing policies to mandate vaccines or to wind back these policies. The Work Health and Safety Act requires employers to consult with workers who are, or are likely to be, directly affected by a matter relating to work health and safety. The maximum penalty for a proven failure to consult with affected workers is $20,000 for an individual and $100,000 for a body corporate.
The Fair Work Ombudsman has issued advice on workplace rights and obligations in relation to COVID-19 vaccinations. To help employers evaluate the reasonableness of a vaccine directive, they have issued advice in four tiers related to the type of work undertaken.
The South Australian Business Chamber has been providing advice to employers over this time around the rights of employers to implement vaccine mandates (or other COVID-19 related policies). From working with our members, we can advise:
We understand that this is a sensitive issue and we can help you manage this process with your employees. If you want advice specific to your business, then please contact our workplace consultants on 8300 0000.
For the full article from The Law Society, please read more >
