Australia’s relatively strong position resulting from covid-19 would not have been possible without the exemplary performance of its companies. The government must guarantee that they will not be punished for their diligence.
Resisting a once-in-a-lifetime pandemic with remarkable agility and resilience, Australian businesses have transformed their day-to-day operations in response to rapid developments in public health and changing government demands.
The overwhelming majority have maintained difficult health orders, sometimes at considerable cost, while simultaneously facing declining income.
But the pact between business and government must be a two-way street. Businesses need to be confident that their good faith efforts to uphold the law and protect workers and consumers will not come back and bite them.
On September 1, 2021, former NSW Premier Gladys Berejiklian appeared to tell employers to make sure workers were vaccinated: “If you’re a business, start dusting off your COVID safety plan. Make sure your employees are vaccinated so we can come back to life with a 70 percent double dose vaccination. “
Regardless of your stance on vaccine mandates, many companies have reasonably interpreted these kinds of comments as direction from their political leaders to implement vaccine requirements when there is a risk. Many companies responded in good faith to these signals from government officials and demanded vaccination of staff, assuming legal protection would be forthcoming.
A national crisis is a time of deep uncertainty, and if everyone stopped and waited for foolproof legal certainties, the country would have come to a standstill.
But now Australian companies are facing a slew of unfair dismissal demands from workers who have refused to be vaccinated, and the government’s supposed protection has not been offered.
In August, Prime Minister Scott Morrison told companies they “can give reasonable direction to staff” but must “remain consistent” with existing law. He clarified that “the Commonwealth and the States are doing nothing” to pass special laws for vaccination against covid-19. “It doesn’t change,” he said.
Hopefully the current law will be enough to protect businesses. Indeed, leading companies like Qantas and SPC have introduced vaccination mandates. But these decisions were legally informed and did not necessarily generalize to other companies. Ultimately, these will be case-by-case decisions by the Fair Labor Commission.
In September, Fair Work Commission vice-chairman Lyndall Dean sided with an unvaccinated receptionist in a wrongful dismissal case against an elderly care facility, likening the dismissal to “the medical apartheid and segregation ”. His post was in the minority among the commissioners that day, and the elderly care facility won. Indeed, Commission Chairman Iain Ross has asked Dean to undergo training for his comments, and she will no longer be chairing immunization issues.
Nonetheless, it should have been an open and closed affair. Elderly care facilities – which have been forced by public health orders to require vaccinations for staff – are surely anyone’s strongest motives.
It is simply not enough for Australian businesses. They need clear protection; they cannot afford to swallow a deluge of wrongful dismissal cases.
Giants like Qantas and SPC have large legal teams and human resources departments. They have the ability to undertake rigorous legal analysis and develop detailed policies that strengthen their legal position. They have the legal budget to defend themselves against legal challenges if necessary. But all of this is much more difficult for small and medium-sized businesses. Legal disputes could spell the end of small businesses already struggling with a COVID slowdown.
All of this legal complexity comes on top of a historically unprecedented weight of rules and restrictions placed on businesses due to covid, which Innes Willox, managing director of the national employers’ association Ai Group, has described as a “mishmash”. mishmash of restrictions and anomalies and complexities. Which often vary at the state level.
On the flip side, Maurice Blackburn’s labor law principle Giri Sivaraman told ABC workers might be able to argue that their employer was negligent if they contracted covid-19 at work. When it comes to covid-19 precautions, it feels like companies are damned if they do, and damned if they don’t.
Businesses have taken up a historic challenge. They stand ready to do what is asked of them. But community obligations must be reciprocal. Existing industrial relations law fails to give Australian businesses – the backbone of our national standard of living – a fair vote.
It’s time to provide businesses with unambiguous clarity on which Covid-19 precautions are permitted and required, and then ensure unambiguous protection.