Hello, may name is Andrew Koleda from On Demand HR as today we are going to be tackling and offering some of our thoughts on the highly charged topic of mandatory vaccinations in NSW workplaces.  If I am honest with you, we had significant internal debate on if we should be releasing any content on this subject, at the risk of polarising any individual or business owner as our observations have been that this issue is highly divisive and one which both businesses and individuals feel strongly one way or the other with little in the middle.

Ultimately, we have resolved that we have an obligation to our audience to discuss the current state of play as at 11 August 2021, some of the proposed legislation in this space, the case for mandatory workplace vaccinations balanced against some of the inherent risks as well as our current advice in this space for clients.  We do this not to advocate one position or another, but rather to inform and let our audience in to some of the conversations we are having with business as well as internally and ultimately, allow individual businesses make a more informed decision with regards to a Workplace Relations Strategy that is right for them.

Finally, before I get into the content, for the purposes of this video we will be sticking to the workplace relations side of this debate, and much of what we have to cover today will ultimately be decided in the courts and commissions, and therefore we must say that this commentary is for information purposes and prior to make any decisions we strongly encourage you to seek independent advice regarding your individual circumstances.

If you are watching this on social media, this is part of a longer session on this subject matter which you can view by visiting ondemandhr.com.au or by using the link in this post.

Lets get into the current state of mandatory vaccinations in NSW.

Currently as you may be aware, the Federal Government has issued a vaccination mandate for all aged care workers and the NSW state government has further extended this to cover quarantine and airport workers.  We will be dealing with construction workers in a moment.  Now I think that most will agree that these industries are “high risk” for the purposes of contracting and spreading Covid-19 and based on our many discussions we have not heard many objections to vaccine mandates in these industries.

However, this does bring into play some interesting legal considerations when the discussion is broadened to should the NSW government broaden their vaccination mandate further.  We note that currently up for debate is the broader health care industry with nurses working in ICU wards dealing with Covid patients not currently required to be vaccinated albeit we assume most would be voluntarily.

However, as we understand it, the Federal Government has responsibility for aged care and therefore has issued the vaccination mandate but does not have the power or at very least the will to enforce mandates for other industries as Prime Minister Morrison has stated on many occasions and passed the buck for this to the State Governments.  Now this is interesting and challenging from a workplace relations perspective as the States are seeking to make mandatory vaccination decisions which have real world implications in a Federal based Industrial Relations system including potential unfair dismissal and adverse action claims.

Ultimately there are only two ways in which these conflicts can be resolved.  Either through legislation or through precedent and case law.  In our view, there appears to be little appetite to resolve this through legislation to provide a blanket approval for businesses to implement mandatory vaccination policies in their workplace so the most likely outcome is that it will be left to the courts and commissions to make determinations regarding the “reasonableness” of such directives and any potential discrimination under protected attributes such as religion and political beliefs.

If implications and liabilities for making mandatory vaccination policies in workplaces is left to the courts and commissions to determine, in our view this poses a serious risk for businesses in bringing such policies into place. Accordingly, we are reluctant to advocate for businesses to go down the mandatory vaccination path at this time, await further direction from both State and Federal Governments before taking action outside the existing mandates.

To be perfectly clear, this is a discussion not on the efficacy of Covid vaccinations not an attack on policy decisions, but rather some constructive thought on the potential workplace relations implications of adopting mandatory vaccinations in a workplace without legislative support.

At this time, we would like to invite you to share your opinion, views and experiences and if you would like to have a discussion about this and strategies for your workplace, please do not hesitate to reach out to us by visiting ondemandhr.com.au.

Finally, if you are watching this on social media, this is an extract from a longer session on this subject matter where we tackle this challenging question from multiple angles and perspectives and you can view the entire session on our website at ondemandhr.com.au.

From the entire team here at On Demand HR we hope that you are staying safe and we are ready and available to help support your business in any way that we can.