NSW is enjoying a beautiful late spring as the COVID-19 lockdowns wind down towards the 15 December deadline, when all people may move freely, and workers will be back in the workplace. 

For the NSW Building and Construction Industry the end of the lockdowns could not come soon enough. The LGAs of concern and the endlessly complex Public Health Orders will hopefully be just a memory. Now we can get back to what we do best, building the great State of NSW. 

NSW was able to lead the way out of lockdown directly due to an uptake of the vaccines which far exceeded what was predicted. A few short months ago some ‘experts’ were wringing their hands and hoping the State would reach 60% full vaccination, now we look set to hit the mark somewhere around the 94% mark, perhaps higher! 

Now the rush back to work is on, there is one issue that is coming into sharp focus which is this; not everyone chose to get vaccinated. This is leading to many difficult discussions in workplaces across the State. The question of vaccinated and unvaccinated workers working together and the effects on staff health and safety and business viability is arousing passions on all sides of the debate. 

The issue is a tricky one. When it comes to the workplace, the decision about whether to make COVID-19 vaccination mandatory in that workplace is a decision which will usually fall to the employer. Apart from a few occupations in NSW (e.g., aged care, airport workers etc.) vaccination is not a requirement mandated by the law. When it comes to determining the question of vaccination against COVID-19 in the workplace, each employer must decide what their position will be on this question. 

One clear way an employer can set out expectations on this issue is to have a workplace policy concerning COVID-19 vaccination. Once the expectations around vaccination are clearly set out, employers are in a better position to deal with vaccination questions on a case-by-case basis as they arise. This will be of increasing importance after 15 December, so the time to act is now.

Workplace policies are important as they have real effects and set out the expectations in a workplace. Workplace policies can be difficult to do properly. They are often put in place by an employer with little or no consultation with the staff and they can range in effect from simply being ignored, right up to termination of employment when employee’s fail to abide by them. 

MBA NSW experience in workplace policies has repeatedly shown that the best workplace policies are ones that follow a consultation process. In many cases Modern Awards require a consultation process be followed before introducing a major workplace change. 

The first step an employer should take when they are considering a policy concerning vaccination is to consult with the employees and gauge what the feeling is about COVID-19 vaccination in the workplace. The feedback MBA NSW has received on this question is that most employees are keen on vaccination and express concern about working with unvaccinated people. This is obviously more so when people have loved ones who are ill or elderly or they cannot be vaccinated for medical reasons. This is not a surprising reaction when we consider that over 90% of the State has chosen to vaccinate. 

Secondly, an employer needs to look at what work the business does to see if a policy is required and will be legally enforceable. For example, does the work involve a high level of interaction with vulnerable people (e.g., construction workers in hospitals) or the general public, or will a positive COVID-19 case amongst the workforce mean that the entire business may be banned from certain sites? Such indicia may mean that a requirement for the workforce to be vaccinated may be held to be a lawful and reasonable requirement if tested.

Employers should also consider their WHS obligations to provide a safe workplace as far as is reasonably practical. Do they have any staff who are medically unable to be vaccinated and may require extra protection? What will the business do about employees who refuse vaccination for non-medical reasons? What evidence of vaccination will be required? 

The questions can be complex. MBA NSW can discuss these questions with Members and assist in the production and implementation of workplace policies as required. Members with questions on this area should call the Industrial Relations Department on 02 8586 3555.