“The new FWO guidance on the mandating of COVID-19 vaccinations will assist employers in understanding the regulator’s views on when it would be ‘lawful and reasonable’ to direct employees to be vaccinated,” Innes Willox, Chief Executive of the national employer association Ai Group said today.
“Ai Group has been seeking greater certainty on the rules around mandating vaccinations for some time and the updated FWO advice gives more clarity for businesses around what they can do and what they cannot do.
“Of course, both employers and employees are required to comply with any public health orders for vaccinations. The FWO advice deals with circumstances where a public health order is not in place and where an employer who wishes to mandate vaccinations needs to rely on their common law right to issue a ‘lawful and reasonable’ direction to employees.
“In such circumstances, the FWO advice places businesses and their employees into 4 tiers. Where the work falls within the 1st or 2nd tier, an employer direction to employees to be vaccinated is more likely to be reasonable, and where the work falls within the 3rd or 4th tier, an employer direction is less likely to be reasonable.
“An employer may shift between tiers depending upon whether or not there is community transmission in the area in which the business is located. In this regard, the FWO’s advice states: ‘For employees performing Tier 3 work….where community transmission of coronavirus is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown, a direction to employees to receive a vaccination is more likely to be reasonable’.
“Naturally, the FWO advises that before an employer issues a direction to an employee to be vaccinated, the employer needs to consider whether the direction would be ‘lawful and reasonable’ in the context of the specific business, the employee and the risk of COVID-19 inflections.
“The ACTU’s creative claim that ‘what the Fair Work Ombudsman said is that the only employers who can mandate vaccinations are those where there’s a public health order’ is complete nonsense. What employers and employees need now is clear information and advice, not misinformation.
“It is the employers who are ultimately responsible for the health and safety of their workers and customers, and employers have the right to make decisions on what steps need to be taken to protect their workers and customers,” Mr Willox said.
