Can an employer introduce a vaccine mandate even without public health order in their area?
The Fair Work Commission (FWC) has ruled that the vaccine mandate of a shipbuilding company is legal and reasonable, following a complaint filed against them by two unions. The decision affirms that employers may be able to introduce a mandatory vaccination policy in the workplace, even if they are not located or based in an industry that asks for one, as long as they meet the criteria for it. But what are the standards that employers need to uphold to make sure that their policy is legal?
The Australian Manufacturing Workers' Union and the Australian Workers Union went to the FWC to question the legality of a shipbuilding company's mandatory vaccination policy, which requires employees and contractors of the company to be double vaccinated against COVID-19 before entering the worksite in South Australia.
Failure to comply with the policy may not only lead to barring at the workplace, but also disciplinary action, and even worse consideration for termination.
But according to the union, they policy itself is "unreasonable" because the mandate is "not a reasonably proportionate response to current risks created by COVID-19."
In addition, the unions alleged that the shipbuilding company failed to meet its industrial and legislative consultation obligations, which makes the vaccination mandate unlawful.
The company, however, refuted this and remained firm that its vaccine mandate is "both lawful and reasonable," adding that it consulted on the proposal directly with employees.
According to the company, the unlawfulness in consultation claimed by the unions is just them "disagreeing with the company decision to proceed with the vaccination mandate and advancing objections by a small number of unvaccinated employees."
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In its decision, the FWC sided with the employer on the case and ruled that the policy is lawful and reasonable and that "a direction to employees to comply with the policy would be lawful and reasonable."
According to the commission, it was lawful because the company complied with consultation obligations, and was reasonable because other control methods, aside from mask-wearing, physical distancing, and rapid antigen testing, were needed to mitigate the risk for employees working for the company.
The FWC, however, made three recommendations for the policy:
Erin Kidd, Director (Employment Law) at Squire Patton Boggs, said employers should "take comfort" from the decision because vaccination policies made outside a government-issued mandate are lawful and reasonable as long as they meet the following criteria:
"Those employers who have not engaged in consultation, or undertaken a risk assessment, should look to do so as a matter of priority to ensure that their policy, and any disciplinary action taken in respect of employees who do not comply with its terms, cannot be successfully challenged," said Kidd.
