Of late businesses and Chambers across the state have been asking for clarity regarding two issues:
- What rights does a business have with regards to mandating vaccinations for staff?
- Can a business refuse service to a person who hasn’t been vaccinated?
Both issues are complicated and emotive and until State or Federal governments bring in appropriate legislation, the only way to know will be to have these issues tested in court.
A recent media release from CCIQ’s Policy and Advocacy General Manager Amanda Rohan outlines the issue for business.
The Prime Minister has backed businesses to refuse service to people, saying:
“A business under property law has the ability to say, no, you can’t come in, and they can ask for that. That’s a legitimate thing for them to do. And, they are doing that to protect their own workers. To protect their other clients. And, it’s not, it’s got nothing to do with ideology. And, this, you know, these issues around liberty and so on. We all believe in freedom, but we also believe in people being healthy, and the sheer fact of it is, if you’re not vaccinated, you represent a greater public health risk to yourself, to your family, to your community and others about you. So, it’s only sensible that people will do sensible things to protect their public health.”
25 August 2021
Interview with Ray Hadley
Unfortunately for business, checking for a vaccine jab is far harder than a “no shirt, no shoes, no service” policy and again is yet to be tested in court to determine if this is discriminatory or not.
With regards to vaccination of employees, the national rollout of COVID-19 vaccines is a timely reminder for employers to review their workplace health and safety obligations.
In late February 2021, the Australian Government updated its guidance for employers and workers regarding the COVID-19 vaccine. Guidance is available at:
- Fair Work Ombudsman
- Work health and safety during COVID-19 – Guide to keeping your workplace safe, clean, healthy and informed on vaccinations (PDF, 0.37 MB)
- Work health and safety in the horticultural industry during COVID-19 – Guide to keeping your workplace safe, clean, healthy and informed on vaccinations (PDF, 0.37 MB)
According to the published material, there are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against COVID-19. The Australian Government’s policy is that receiving a vaccination is voluntary. Employers should stay up-to-date with both federal and state public health orders in case the guidance changes.
The Federal Government has noted in its guidance material that there are, however, limited circumstances where an employer may require workers to be vaccinated. Employers who believe they may fit within these circumstances should read the published guidance material and consider obtaining their own legal advice before deciding whether to mandate the vaccine.
It is important to note that the rollout of the COVID-19 vaccine does not remove employers’ workplace health and safety obligations to, as far as reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace. Employers should continue to use measures such as physical distancing, good hygiene and regular cleaning.
In the event that a Queensland worker lodges a claim for an adverse reaction to the COVID-19 vaccination, WorkCover will determine the claim like any other claim, paying particular attention to whether the worker’s employment was a significant contributing factor to the injury (as per section 32 of the Workers’ Compensation and Rehabilitation Act 2003).
To support business, the Federal Government has delivered on an indemnity scheme to protect employers who may face costly claims when they facilitate vaccination in the workplace. The commitment reduces the risks and uncertainties businesses faced for implementing voluntary vaccination drives.
The media release is attached but as always, the wording is key in any scheme such as this and again nothing is mentioned in this with regards to mandating vaccinations nor protection from any legal action.
Until the Government provides a clear position on either issue, the only way to know the answer is to test it in court.