- by B Curphey
- The Guardian
- Issue #1979
Editorial note: This article does not purport to give legal advice. It is for general informational purposes only
With the national COVID-19 vaccine rollout well underway, questions have arisen about whether employers have the power to mandate vaccines for workers. This article seeks to provide some useful general information, while outlining the Communist Party of Australia’s (CPA) stance on this issue.
The Fair Work Ombudsman (FWO) states that in most circumstances, employers will not be able to require their employees to get vaccinated. There are three circumstances in which an employer can mandate vaccination. The first is where the law specifically requires that a particular class of employees, e.g. healthcare workers, must be vaccinated. The second is where the requirement to get vaccinated is included in the employee’s Enterprise Bargaining Agreement (EBA).
The third requirement is the most controversial. It is where, in the circumstances, the direction to get vaccinated is a “lawful and reasonable instruction”. Section 1.07(3)(c) of the Fair Work Regulations imposes a duty on employees to “carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.”
Whether a direction is lawful and reasonable depends on the circumstances. The direction must not be inconsistent with the employee’s contract, EBA, award, or the law. This is the “lawful” aspect. In terms of reasonability, the type of work an employee does, who they have contact with and the employee’s individual circumstances like health and access to vaccines may be relevant among other factors.
FWO advises that “the coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus.” It is more likely that it is reasonable and lawful for an employer to require employees to be vaccinated if they work in high risk jobs or with vulnerable people like the elderly or those with disabilities.
It is the CPA’s position that, while everyone should get vaccinated if it is safe for them to do so, employers should not be able to require employees to get vaccinated. This does not mean the Party is anti-vaccine. In many industries, it is the safe and responsible thing for employees to get vaccinated, but this should not be at the behest of their employer. Any vaccine mandate must be enforced by the state or national governments and should include provisions to make vaccination accessible across all sectors of the community.
The Central Committee recently released this statement outlining the Party’s position on mandatory vaccination:
“The best and most effective outcomes [for overcoming COVID-19] should be mandated across the community and enforced through national and state safety regulators … The Communist Party of Australia strongly opposes the employer drive for compulsory vaccination as an industrial weapon. We condemn the attempt to distract from the need for vaccine choice and immediate vaccination rights for all with more choice of vaccines made available from the international market.”
For more information about vaccine directions at work, visit the FWO website, coronavirus.fairwork.gov.au.