The government is being accused of leaving workers in the lurch on vaccines amid legal questions about Qantas’ no jab/no work plan.
The national carrier said on Wednesday it would force 20,000 workers to get vaccinated against COVID-19 by March 31, 2022.
Frontline workers – cabin crew, pilots and airport staff – would need to get vaccinated by November 15 under the plan, which makes Qantas the second non-health employer to introduce mandatory vaccination.
Employment lawyers continue to warn, however, that vaccine mandates are legally precarious in the absence of federal government public health orders.
Transport Workers Union (TWU) national secretary Michael Kaine said “panic and confusion” are rife as other employers consider forcing jabs.
“It’s a complete cocktail of confusion,” Mr Kaine told The New Daily.
“The government has not led, but has waited and responded belatedly.”
TWU: Qantas ‘jumped the gun’
Mr Kaine said Qantas had “jumped the gun” in mandating vaccines after Industrial Relations Minister Michaelia Cash called together employer groups and unions for roundtable talks about how to deal with vaccines.
“It’s premature and a mystifying decision,” he said.
The TWU has also called the plan unworkable because Qantas does not directly employ all of its ground staff, having outsourced 2000 such roles in a move that was deemed illegal by the federal court earlier this month.
Qantas chief Alan Joyce said the decision was made after a staff survey found most workers were either already vaccinated or planning to do it.
“It’s clear vaccinations are the only way to end the cycle of lockdowns and border closures,” Mr Joyce said in a statement on Wednesday.
About three quarters of the 12,000 Qantas staff surveyed supported mandatory vaccination – although the airline did not share its survey methodology.
Qantas said it would consider medical exemptions, which it expects to be “very rare”.
No jab/no work out on a limb
Qantas’ move comes after food canner SPC unveiled a mandatory vaccination plan two weeks ago.
Workplace Law managing director Athena Koelmeyer said it was still unclear whether either mandate is legal.
Although public health orders have mandated vaccines in industries like aged care, employment laws are mute on the subject for other workers.
Businesses groups have argued mandatory jabs may be needed under health and safety obligations that employers must legally follow.
But this has not been tested in court, and firing a worker because they refuse to get vaccinated could be treated as unfair dismissal, Ms Koelmeyer said.
“Employers are between the devil and the deep blue sea, and they have to pick which jurisdiction they want to be prosecuted or sued in,” she said.
Mr Koelmeyer said most of her business clients have been asking about mandatory vaccines in their own workplaces, a sign of broader interest.
“The public health officials should be making this call. We have followed public health guidance and advice all throughout this thing,” she said.
“It shouldn’t be a political question, or one for employers to face in court.”
The ACTU and Business Council of Australia (BCA) said last week that the federal government should issue health orders to mandate jabs, as has shadow industrial relations minister Tony Burke.
“These are serious decisions,” the groups said in a joint statement.
“[They] should not be left to individual employers.”
Morrison applauds Qantas
Prime Minister Scott Morrison has resisted calls to mandate vaccination in non-health-related industries, but on Wednesday he applauded Qantas for taking a stand.
“[Qantas] have a reasonable position to be able to make this request and they’ve gone about it, I think, in a very engaged way,” he said.
“They’ve shown the right model about how you go about this.”
Mr Morrison has, however, issued advice to bosses that workers can be asked about their vaccination status.
Ms Koelmeyer said the problem is that this advice has no basis in law and may even conflict earlier precedent in the Fair Work Commission.
“We need that [in law],” she said. “I don’t know whether they’re going to put it in the Fair Work Act or the Privacy Act, but they need to put it somewhere for employers to do this.”
Roundtables in motion
There has been some movement from government agencies, with the Fair Work Ombudsman (FWO) issuing new advice last week suggesting no jab/no work plans could be legal in higher-risk workplaces.
But without new laws or public health orders, it would still be up to the courts.
Mr Kaine remains hopeful roundtables between unions and employer groups will yield a workable solution.
“The overwhelming view of participants in the roundtables is that we want to maximise vaccination,” Mr Kaine said.
“The best way to do that is to lead people to be willing and enthusiastic about being vaccinated.”
The roundtables will take place over the coming weeks.