April 9, 2021

Mining & Resources: Workforce vaccination or not?

Workplace vaccination or not?

The COVID-19 vaccination rollout is raising plenty of questions in workplaces and shaping up to become a complex employment matter for mining and resources business owners, executives and their employees.

The law in relation to COVID-19 vaccination is currently in a state of uncertainty and flux. Until there is a government directive or health order in place, it’s leaving many employers and employees questioning their obligations, and the possible fallout of mandating vaccination for their workforce or not.

Having recently reviewed mining and resources companies’ press releases, policies and websites, those considered all appear to properly and transparently deal with how they intend to comply with the law and good practice in relation to ensuring COVID-19 does not pose a risk to their workers or the communities.

However, none of those we reviewed appear to go as far as addressing the COVID-19 vaccine and the obligations of both employer and employee.

COVID-19 has changed the political, economic, employment and legal frameworks all over the world and no doubt the rollout of the vaccine will raise novel and unique issues. Among the more vexing questions to be answered will be to mandate vaccination or not, and the repercussions for both employers and employees.

Take for example the circumstances of FIFO workers. At some time in future, they may face travel complications that could include not being allowed to board airlines if they have not been vaccinated, or refused entry to remote communities.

Currently there are no public laws, health orders or directives that enable employers to require their employees be vaccinated. So far, the Australian Government’s policy is: vaccination is voluntary.

However, this may change in future and employers (and employees) will be well advised to remain apprised of new government directives and health orders.

Employers proactively planning possible scenarios will enable swift action should legislation change. The starting point will be to consider the Fair Work Act 2009 (Cth) in alignment with those directions and health orders.

Generally, it is unusual for an employment agreement to deal with such a topic and most are silent on this specific issue.

That being said, most if not all agreements, require that the employee take all reasonable actions to ensure that injury does not occur, the workplace is safe, and that the employee does not compromise workplace health and safety standards.

Additionally, employment agreements often provide that the employee must follow all reasonable and lawful directions of the employer.  Therefore, should the Australia Government provide for mandatory vaccines in the future, employees will most likely be obliged to follow their employer’s request to be vaccinated.

In the absence of a legally binding agreement between the employer and employee relating to the vaccine, there are two ways that an employer may require an employee to get the COVID-19 vaccine.

The first is if a State Law, public health order or directive, mandate the vaccination of workers. 

No such laws or orders have been issued as at the time of writing of this article. However, it is possible that if a state government deems a particular class of workers or the work or environment they work in as ‘high risk’, such an order or law may be issued.

For example, a state government may mandate that employees working in aged care pose too great a risk to the residents in aged care homes, and therefore must be vaccinated.

Secondly, a lawful and reasonable direction is made by the employer.

However, there are many factors that will determine whether that direction is in fact, both lawful and reasonable. These factors will include the employer’s workplace health and safety obligations, anti-discrimination laws, consultation obligations, and if there are alternatives to vaccination including personal protective equipment.

Of the few Fair Work Commission cases that have dealt with an employee refusing to have the vaccine on medical grounds when required by the employer, the Commission has been sympathetic to employers.  Of course, each case must be decided on its own facts and so far, the Commission or any other Court, has not yet definitively dealt with the issue of employer mandated vaccinations.

Most commentators, including myself, are of the view that an employee who has valid medical grounds supported by appropriate evidence that they would, or could, suffer an adverse medical outcome if they receive the vaccine, would most likely be protected from an action taken by an employer based on that refusal. Certain employees may also have protection under anti-discrimination laws.

Next steps…

While there is no legislation or formal guideline providing direction for employers and employees at this time, seeking advice and pre-planning for what may well be inevitable COVID-19 vaccination related scenarios, will serve to place business owners on the front-foot should swift action be required to mitigate a COVID-19 incident.

Reviewing your employment contracts is a good first step for employers (and for employees too). Having clarity around workplace health and safety obligations will be a key consideration, which in turn will reflect on possible financial and operational requirements of the business, the effects on employees and the communities in which the business and employees operate.

For further information, please contact Robert Lamb on +61 (0) 7 3007 2000 or mail contact@resourcesunearthed.com.au.

Resources Unearthed is a solutions hub that provides integrated financial, legal, property and accounting & business advisory services for executives, professionals and business owners in the mining and resources sectors.

The information in this article is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate, we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.


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