The Fair Work Ombudsman’s (FWO) updated information to employers about mandatory COVID-19 vaccines in the workplace reiterates the need for employers to get legal advice on the issue.

The FWO states that employers can only require their workers to be vaccinated if:

• a specific public health order is in place, such as the ones for hotel quarantine and aged care workers;
• it is embedded in an enterprise agreement or employment contract; or
• if it would be lawful and reasonable to direct employees to be vaccinated, which is assessed on a case-by-case basis.

CCIWA CEO Chris Rodwell said the FWO advice reinforces the need for employers to seek advice about the issue of mandatory vaccinations.

“Efforts by the Ombudsman to provide general advice on mandatory vaccines, really only highlight how uncertain the issue is for business,” he said.

“While WA businesses are supporting and encouraging staff and customers to participate in the national vaccination drive, it remains in the Government’s hands whether the vaccine will be made mandatory across the economy.

“We urge businesses to seek advice for their specific circumstances from CCIWA’s workplace lawyers or Employee Relations Advice Centre.”

In determining whether it is lawful and reasonable to mandate a vaccine or any other measures to comply with their WHS obligations, there are a range of factors for employers to consider, including how much customer interaction their employees have, vaccine availability and the extent of the COVID-19 outbreak in their area.

The FWO classifies workplaces under four tiers according to their risk levels:

• Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (e.g. employees working in hotel quarantine or border control).
• Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (e.g. employees working in health care or aged care).
• Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (e.g. stores providing essential goods and services).
• Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (e.g. where they are working from home).

To better understand which of these tiers you fall into, it is best to seek legal advice.

The updated advice follows fruit and vegetable processor SPC mandating COVID vaccines for its onsite workers, in a move that could act as a test case for business.

For legal advice, contact CCIWA’s workplace relations lawyers on 1300 422 492 or [email protected].

For general guidance, contact CCIWA’s Employee Relations Advice Centre on (08) 9365 7660 or [email protected].

Up-to-date information on WA’s COVID-19 restrictions can be found at CCIWA’s COVID-19 page.