‘Unrealistic’: SPC’s no jab, no work plan out on a legal limb

WorkSafe Victoria found SPC did not breach health and safety rules over its COVID-vaccine mandate.

WorkSafe Victoria found SPC did not breach health and safety rules over its COVID-vaccine mandate. Photo: AAP

Food giant SPC Australia’s plan to force workers to get COVID vaccines has sparked controversy, with unions labelling it “unrealistic”.

SPC became the first Australian business to announce a no jab, no work plan on Thursday, demanding all workers book an appointment to be vaccinated by September 15 and receive at least one dose in October.

“Lockdowns are not a sustainable solution and the Australian economy needs to open up again,” SPC chair Hussein Rifai said.

“The only path forward for our country is through vaccination.”

SPC produces canned goods under its eponymous brand as well as the Goulburn Valley and Ardmona labels, stocked in Coles and Woolworths.

Under the plan, 450 staff at its Shepparton factory in Victoria will face the vaccine requirement in what the company argues will fall under its work health and safety obligations.

But as employment lawyers question the legality of the plan, unions said SPC failed to consult them – an apparent breach of legal requirements to negotiate with workers about major changes to health and safety policies.

“Mandating vaccination in workplaces needs to be based on the advice of health professionals and a proper risk assessment – not just a poorly consulted plan by bosses,” AMWU national president Andrew Dettmer said in a statement on Thursday.

Unions stressed they supported vaccination, but said requiring staff to be inoculated by the end of October was “unrealistic” because the Morrison government did not expect to complete society-wide vaccination until the end of the year.

“How can anyone be expected to get vaccinated by November when most Australians aren’t even eligible to book a vaccination appointment and are unlikely to be for many months to come,” ACTU assistant secretary Liam O’Brien asked.

“Work health and safety regulators have stated that employers are unlikely to be required to force workers to be vaccinated and should only do so where there is public health advice supporting this.”

Unions also want indemnity offered to workers who suffer vaccine side effects, but TND understands SPC is willing to work through this issue.

Plan could be illegal: Lawyers

Employment lawyers told The New Daily SPC’s plan is shaping up as a test case over whether businesses can force workers to get vaccinated.

Trent Hancock, principal at Jewell Hancock, said it could be unlawful to force workers to get COVID jabs, but stressed the matter is currently unclear in the Fair Work Act and applicable case law for the industry.

That means the case needs to go before the Fair Work Commission or a court before there is any certainty about whether SPC’s plan is allowed.

“It’s quite a brave and bold decision,” Mr Hancock told The New Daily.

“There are a few other employers out there contemplating this policy.”

Although SPC is the first Australian business to require vaccines, others are actively considering following suit.

Last week Qantas chief Alan Joyce said he wants the government to mandate vaccines for front-line workers in the aviation industry.

Meanwhile, businesses in the US such as Google and Microsoft are  already requiring staff to get vaccinated to access their workplaces.

But Workplace Law managing director Athena Koelmeyer said the rules are different in Australia, where staff could argue they have been unfairly dismissed if SPC fires them for failing to get a COVID vaccine.

Complicating things, Ms Koelmeyer said Australian firms can’t compel workers to tell them about their vaccination status in the first place.

“There is going to be at least one person at SPC, for sure, who either can’t or won’t take the vaccine,” Ms Koelmeyer told The New Daily.

“Depending on the reasons for refusal, if it’s genuine health reasons, that could be an act of disability discrimination or adverse action.”

Work safety argument untested

SPC has argued the vaccine mandate is required as part of its legal duty to take reasonable steps to ensure a safe workplace under work health and safety laws, but this argument hasn’t been tested in court yet.

“Just because you are vaccinated does not mean that you will not get COVID or you will not transmit COVID, so while it is a measure, it is not the solution to all of our problems,” Ms Koelmeyer said.

“Would it not then be more appropriate to just maintain the measures in place now? That will be the test for the court.”

Mr Hancock said whether vaccination is counted as a reasonable step under work health and safety laws depends on how the virus is circulating and the availability of alternative health measures like social distancing, among other things.

“It’s a live question. There’s merits on both sides,” he said.

“But if the availability is there and there’s a national push … I would expect you’ll find courts and tribunals erring on the side of it now becoming a requirement to provide a safe working environment.”

SafeWork Australia issued guidance in February suggesting it is unlikely employers will need to require staff to be vaccinated under work health and safety laws.

Until Thursday, worker vaccine mandates were only made in industries subject to specific government health orders, such as staff in aged care.

Asked about SPC’s decision on Thursday, Prime Minister Scott Morrison said the federal government will be watching SPC’s case “very closely”.

“Where people are taking decisions that they believe are dealing with their concerns and their interests, then that’s something that the Coalition have always been supportive of,” he said in Canberra.

“But that’s always subject to the rule of law.”

SPC is offering staff paid vaccination leave to get their inoculations as well as two days of paid leave if they suffer any side effects from the jab.

The AMWU will meet SPC to discuss the plan on Monday.

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