Following the recent Victorian announcement, declaring that 'essential workers' must be vaccinated, we reached out to occupational health and safety expert, Gary Wilcox of MONIT, for some clarification on this complex issue which could also affect business owners in other parts of Australia in the coming weeks if other state governments decide to follow suit.
The following is his response.
The recent decision by the Victorian government to mandate Covid-19 vaccinations for authorised providers and authorised workers who are not working from home raises many questions around current Acts and policies.
In case you are not sure, a collision repair shop is an authorised provider. For shops outside of Victoria that do not require their workers to be vaccinated then read on as your position may only be a temporary stay.
As a workplace health and safety professional I feel it necessary to respond to the concerns collision repair shop owners have following this decision. As a disclaimer, I am neither a medical expert or lawyer so this article will not discuss the merits or disadvantages of vaccinations but will, instead, be in direct response to the effect it has on our current policies and Acts which govern our world.
The overriding issue with this mandate is that it appears to be in direct conflict with some of our current policies which govern the business landscape. It also creates a situation where policies designed to work in unison, are now in conflict.
Without a uniform framework for business owners to guide them through a maze of legal implications it is difficult for a collision repair shop owner to even know how to enforce these health orders. This mandate can reach as far as making the shop owner a law enforcer by instructing a worker who is unvaccinated to leave the premises because they are now trespassing.
However, a mandate can only be enacted by a health minister or a member of the police. Therefore, in most cases for a collision repair shop owner to enforce the mandate, they would need to step outside the law and do it themselves or have the police or health officer present when determining whether a worker has been vaccinated or not.
So, what are the consequences if you do not enforce mandatory vaccinations for your business?
Well, just prior to the Victorian Government announcing this new public health order, the fine for an individual breaching a public health order in Victoria was increased to $10,904.00.
Workplace health and safety
In the past, workplace health and safety professionals would use government policies to determine or interpret what should be done in a workplace situation. However, because Victoria is in a perpetual state of emergency, giving the Victorian Chief Health Officer unprecedented powers, we can no longer rely solely on the OHS act to help us.
Section 21 of The Occupational Health and Safety Act 2004 (OHS Act) says: 'Duties of employers to employees. An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.'
Completed studies from around the world have verified that vaccinated workers can still spread the virus. If this is the case then how does a business owner meet the requirements of Section 21 of the OHS Act by simply refusing only unvaccinated workers to not attend the workplace?
Or, what happens if a collision repair shop follows the health orders and a worker becomes injured from getting vaccinated?
WorkSafe Victoria’s response is that an employee may be entitled to workers compensation if they sustain an injury due to the COVID vaccine and the injury occurred out of, or in the course of, employment. The vaccine may be considered to have occurred out of, or in the course of, employment if they are a front-line worker or work in an industry where their employer imposes the vaccine and the employer has:
- recommended or organised the vaccination onsite or at another location; or
- subsidised the vaccination
Under legislation, only a significant reaction to the vaccine may be considered an injury. More significant reactions could include severe fever, blood clots, allergic reactions (anaphylaxis), seizure, or stroke.
Workers will not be entitled to compensation if they suffer only mild symptoms due to the vaccine, such as feeling tired, headache, nausea, dizziness, or redness where the injection was given.
An employee has the right to have a lawyer write up a Deed of Indemnity, hand it to an employer mandating vaccinations and the employer would be liable for any loss or injury caused to the employee or estate.
There is of yet no precedence set for the ability of an estate to claim loss against a business.
It is common for businesses to take out a Directors and Officers indemnity insurance policy to protect them against such litigation; so what does the insurance world say about this?
The insurance companies have been swift to respond by saying they will not cover any injury caused to a worker where their employer mandated a vaccination.
Fair Work Commission
If a worker refuses to be vaccinated what do you list their termination of employment as? The Fair Work Commission deputy president Lyndall Dean in her minority decision, said public-health orders, including those for COVID-19, had moved 'into the realm of depravation'.
“It is not proportionate, reasonable or necessary to ‘lock out’ those who are unvaccinated and remove their ability to work or otherwise contribute to society,” Dean said. “All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia.”
She also goes on to say that employers would be held liable for any harm that came to a worker that they mandated vaccinations to.
Section 48 of the Disability Discrimination Act says: 'This Part does not render it unlawful for a person to discriminate against another person on the ground of the other person’s disability if:
(a) the person’s disability is an infectious disease; and b) the discrimination is reasonably necessary to protect public health.
Legal advice suggests that if, down the track, it is proven that a business has discriminated against a worker they have breached this Act and would make the business open to damages claims.
Part 2 of the Discrimination Disability Act does not allow us to ask the medical status of a worker. This was introduced during the AIDS pandemic where it was unlawful to ask a gay worker if they had HIV.
Is there light at the end of the tunnel for businesses or are they caught in a legal conundrum?
The backstop to all this could very well hinge on a determination which was handed down 26 years ago between Ethnic Affairs and Teoh (commonly known as Teoh's case). The High Court determined that Australia has civil rights obligations pursuant to an international covenant that we have entered into; so, even if the government thinks it is not applicable in Australia, it is.
In 1980, Australia signed onto the United Nations chamber of civil and political rights and Article 18 of that charter protects both your religious and political rights.
There are court cases going on behind the scenes that will continue all the way through to the High Court of Australia and, if necessary, will continue into international courts. Unfortunately, by the time these court cases come about the damage will have been done.
There has been no due process in mandating vaccinations for workers. It is now necessary for industry leaders to be proactive in working with governments and businesses in working out alternative measures, otherwise we could see an historical withdrawal of labour and intellectual property from the workforce.
Could it be as simple as introducing Rapid Antigen test kits, which can verify positive or negative results within a minute or two?
I think a recent statement from the legal fraternity sums it up when they say they have already determined they will not be out of business any time soon in fighting for the rights of workers and business owners.