You might recall that on 13 August we wrote to all work safety authorities asking them to make clear statements as to where they stood on business-mandated vaccinations for staff. Here’s our letter.
It’s essential that authorities with the power to prosecute business under work safety laws tell business people how to comply with the law.
Three days ago (1 September) we received a clear, short reply from SafeWork NSW. The key sentence reads:
“SafeWork NSW considers vaccination a high order risk control measure against disease.” Here’s the SafeWork NSW letter.
We have checked with our lawyers.
SafeWork NSW is saying that if a business/organisation does not mandate Covid vaccinations, the business is at risk of breaching OHS (work safety) laws. That is, the business would be failing to use a high order health strategy to provide workers (and others) with a safe workplace.
We congratulate SafeWork NSW for its statement. People will legitimately have different views on mandated vaccinations. Our point is that the work safety authorities have an obligation—both moral and in terms of governance—not to leave business as the meat in the sandwich over statute interpretation. In the mandated vaccination debate, we say that OHS law is the top priority over other laws such as industrial relations. Every business has a legal OHS obligation not to put people at risk. SafeWork NSW has made a clear statement on that obligation.
This is highly important for small business people. Big business can use armies of lawyers to advise them. Small business people only have themselves. SafeWork NSW has done the right thing by the people of NSW.
The NSW letter also then lays out a checklist for businesses to assess if workers don’t have to be vaccinated. This includes (1) eligibility for the vaccine, (2) personal health, (3) medical history, (4) type of work, (5) the risk of exposure, and (6) the availability of alternative control measures.
In relation to unfair dismissal, it would seem probable that the NSW statement should arguably be a high order defence against an unfair dismissal action. It will be interesting to see how ambulance-chasing lawyers and unfair dismissal tribunals respond to this.
Tasmania is the only other state to reply to our letter of 13 August. It put the responsibility back on to the business. The other states have been silent. Yesterday we wrote to all the other state authorities with a copy of the NSW letter. We have asked the other states if they agree with NSW. All state work safety authorities have a responsibility to the community to make their position on mandated vaccinations totally clear.