Compliance Update for Employer's Mandatory Vaccination Policy

The activity around COVID-19 vaccinations has not abated. The trend (at this stage) is indicating an increasing number of businesses continuing to push ahead with mandatory compliance via their own policy.   

How to respond to non-compliance with a Mandatory Vaccination Policy

Provided your organisation’s Mandatory Vaccination Policy is considered reasonable, a failure to comply with that Policy shouldn’t be much different to how a business ordinarily treats other serious breaches of their policies.

Key aspects to obtaining ‘reasonableness’ will commence with the initial consultation and implementation process. Consultation must comply with the consultation, cooperation and coordination requirements in the applicable WHS Act and should also address any applicable EA/Modern Award requirements (even if not specifically required). Consultation must be objectively based. A clear way to do this is through a genuine Risk Assessment, providing technical guidance from applicable Regulators and Public Health Officials, and supplementing the above with your own FAQS and feedback mechanisms (eg meetings and online forums). Address any concerns as you go and don’t be afraid to make reasonable amendments.

Once your Policy has been properly consulted upon, make sure you confirm its final application and operative date. This will provide clear evidence of the end of the consultation process

If an employee then fails or refuses to comply with the Policy we recommend you issue a written direction to comply with the Policy. The value of the written direction is that it enables the employer to clearly set out what is required and will defeat most claims of employees claiming “they didn’t understand what the Policy meant”. The more details the better when issuing such a direction.

Finally, if the employee continues to fail or refuse to comply with the Policy and now the written direction we recommend that you proceed to a show cause process – where the employee will be given a final opportunity to demonstrate why their employment shouldn’t be terminated.

To assist in the above process we have created for Retainer Clients a template suite consisting of: consultation letter, confirmation letter, written direction and show cause letter.

*NB All templates should be tailored to suit your organisation’s specific circumstances.

News Breakers

The BHP Mt Arthur coal mine case currently in FWC is shaping up to be the one that will deliver certainty for employers. BHP workers failed to win interim orders after being refused access to the site following their refusal to comply with mandatory vaccination requirements at the mine. The matter has been set down for a 5 member Full Bench on 24 November 2021 – with an expectation that the decision will be brought down in early December. 

A House of Representatives standing committee is set to conduct a "short, focused inquiry" into the effects of COVID-19 policy responses on the workplace and the FWC, while it is particularly keen to explore whether vaccine mandates "and demands upon staff to enforce mandates in the workforce, are likely to impact on FWC caseload". Given the hype around this issue we would expect that FWC’s workload will definitely increase until there has been an authoritative position delivered via an appeal like that foreshadowed in the BHP case (see above).

The Federal Court has dismissed an attempt for a group of DP World wharfies to maintain their wages until their challenge against a COVID-19 vaccination mandate is decided at trial. Our reading of the case is that the wharfies case is not particularly strong. Logan J stated DP World had a common law duty to provide safe systems of work and was also required to do so under the agreement and State OHS law. Such comments follow a consistent trend of courts and tribunals supporting Public Health Directions without question and well reasoned policies.

Stay tuned and be prepared to adjust. More change is the only certainty.

Edge Legal

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