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Is vaccination going to be a requirement before going back to the office? If not, should it be?

Are some people going be to denied access to the office? Can you be sacked at work for not being vaccinated?

Bosses around the world, and governments including the US, UK, France and Germany, are toughening on this, varying from mandating jabs to a host of restrictions on the unvaccinated; Saudi Arabia is among the harshest – ‘no jab, no job’.

Whose interest do we protect – the unvaccinated or their vulnerable colleagues? These are questions facing Australian bosses, lawyers, and corporate affairs folk. And how we navigate the conversation is a sensitive communication issue.

Tom Brent is an employment lawyer with Gilbert and Tobin.

(QuickTake is a niche publication that provides a mix of analysis and commentary on communications issues impacting CEOs, directors, corporate affairs professionals, and journalists. Subscribe at https://lnkd.in/gBw6yCs)
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Peter Wilkinson:

So, Tom can employers insist that their employees are vaccinated?

Tom Brett:

In short, Peter, the answer to that is, yes. And to provide you with a bit of context, it’s worthwhile just stepping back to the start of this year, when employers were looking at calling back their workforces on a large scale, and we were hopeful for a fast vaccine rollout. At that time, the answer to that question would have been limited to a very small number of industries, such as aged care, childcare, and quarantine workers, where they were dealing with vulnerable persons or large cases of potentially COVID 19 cases. Fast forward to now, when we’re dealing with the Delta strain, the landscape has changed dramatically. And because of the transmissibility of the Delta strain, both within workplaces and also the workers’ families, arguably there is going to be a broadening of that group of employers that can insist on their employees being vaccinated before they returned to work.

Peter Wilkinson:

So, what are the parameters for demanding that somebody is vaccinated?

Tom Brett:

One of the key parameters is that the direction needs to be a lawful and reasonable one. And I appreciate that the concept of reasonableness is as long as you can make it. But in these circumstances, an employer could legitimately say, I have a legal duty to ensure the health and safety of my staff, of all of my workers.

Peter Wilkinson:

So, it sounds as though you’ve answered the question then that an employer can insist that somebody is vaccinated in order to come to the office?

Tom Brett:

That’s right. But it’s important to remember that it cannot be a one size blanket mandatory policy that is imposed on the workforce. It needs to be approached on a case by case basis.

Peter Wilkinson:

But if you’ve got somebody who’s vulnerable in the office, and you could argue that a lot of people are vulnerable in the office, given the Delta strain and the impact it’s having, then you could easily argue, couldn’t you that nobody comes into the office unvaccinated?

Tom Brett:

Yeah, that’s right. What I was going to say though, is that the employer in those sorts of circumstances and using that example, which is a great one, would need to look at some alternative control measures. So rather than insisting on everyone being vaccinated, can I move certain parts of the business to areas where socially distancing can occur, where PPE can be worn, where masks could be worn to mitigate against that risk? Or do I have no other option, but to insist on mandatory vaccination across the workforce? Those alternative control measures are really important to consider.

Peter Wilkinson:

Yeah. You’re not suggesting that everybody in our office building has to wear PPE?

Tom Brett:

No. And for that reason where there are vulnerable workers or is there’s that risk of transmissibility, arguably, I think that those sorts of organisations could insist on COVID-19 vaccinations.

Peter Wilkinson:

Right. So, can an employer then sack somebody who hasn’t been vaccinated?

Tom Brett:

Yes. So provided there is that lawful and reasonable direction that has been given in circumstances where an employee refuses to be vaccinated and there is no legitimate basis for that refusal. For example, the employee is not justified that refusal by way of medical reasons, religious beliefs, or any of those protected attributes under the discrimination laws, then the employer could consider taking disciplinary action against that employee, including standing them down on leave without pay. Or for example, terminating their employment. However, if they were to terminate their employment, yes, the fair work commission might ultimately find that there was a valid reason for termination. However, in the current climate where the community’s facing a high degree of anxiety apprehension, the commission may look at that decision to terminate that employee’s employment as a harsh one.

Peter Wilkinson:

So, the difficulty is for an employee who genuinely doesn’t want to be vaccinated, they’re going to have some difficult choices?

Tom Brett:

Yeah. One of the key risks is discrimination risk. For example, that might include a pregnant employee who has not been vaccinated because a lot of the clinical trials that the COVID-19 vaccination based on didn’t include pregnant women in those trials. So, if an employee can produce some evidence or a declaration from their treating medical practitioner that suggests they do not be vaccinated. And if an employer imposed a COVID-19 vaccination policy company-wide and not impacted that particular employee, that would definitely be an indirect discrimination risk that the employee would be to make a claim on.

Peter Wilkinson:

But aren’t you looking at it from the wrong side, because if you’ve got vulnerable staff, then it’s Hobson’s choice really? I mean, you can find put them in a different office and that kind of stuff, but you’re not going to have an office full of people wearing PPE?

Tom Brett:

No, they would be and there are requirements under discrimination laws to see what reasonable accommodations could be made for those employees where they might be exposed to an indirect discrimination risk. For example, can that employee suitably work from home?

Peter Wilkinson:

So, if you’re an employee and you genuinely don’t want to get vaccinated, how would you argue your case?

Tom Brett:

Look, in the context of anti-vaxxers and I know this is an area that is fraught with danger. An ideological objection to vaccination is not a protected attribute under discrimination law. The other areas of religious beliefs, age, pregnancy, disability, they all are.

Peter Wilkinson:

So where do you think, this is going to land? Just do a bit of future forecasting. Are we going to end up with an understanding that you must be vaccinated unless you have a really good excuse in order to come back to work?

Tom Brett:

In short, we are progressing to that. I’m saying even over the last week, for example, a slow creep towards that sort of position. If you look at the US for example, a number of organisations over there are requiring their employees to be vaccinated. A number of universities, even more recently, a number of countries have introduced laws requiring employers to insist on vaccination before their employees returned to work. But now seeing this sort of debate occurring across public sporting events and concerts, for example, whereby attendees can only attend if they have had vaccinations.

Peter Wilkinson:

In that case, what we need. And again, I’m speaking from a corporate affairs point of view is strong messaging from the premiers and the federal government about where this is going to land so that people have got time to get used to the notion of compulsory vaccination?

Tom Brett:

Yeah, absolutely. And we have the functions of the public health orders, which have now been applied. For example, in New South Wales, anyone in that’s a quarantine worker, a transportation worker, or an airport worker must be vaccinated. And the federal government introduced mandatory vaccination for aged care workers. So, it is happening. And I would expect to say that those sorts of employers and that group of employees will be broadened over time.

Peter Wilkinson:

Tom Brett greatly appreciated. Thank you very much.

Tom Brett:

Thanks, Peter, it’s been wonderful.

Video Transcript

Tim Harvey:

A sustainability-linked loan is really incentivising businesses that are already advanced on the environmental social governance, or more commonly known as ESG pathway but are really looking to stretch and go that extra step and do more. And we’re delighted to be able to partner with Stockyard Group in offering this sustainability-linked loan.

Peter Wilkinson:

This gets very quickly to the heart of the trust of the issue because as you know, this area is awash with green-washing.

Tim Harvey:

We’re very excited to be able to partner with Stockyard. Stockyard are already very well advanced on this pathway. But there’s really good auditing that goes with this as well. So, Ernst & Young, one of Australia’s leading accountancy and advisory firms, they’re really looking at this from an auditing point of view. Clearly, the bank has a sustainability team and the banks run its eye over it very closely as well. So, I think from a trust point of view, when you have the trust of the Commonwealth Bank, with Stockyard who have already strong credentials in this and independently audited by Ernst & Young, one of Australia’s leading accounting advisory firms. I think that really, really makes sure that this is standing up to the test.

Peter Wilkinson:

Yeah, well you’d know the degree to which CBA is trusted, but let’s talk about the EY auditing for the moment. So EY would be conflicted, wouldn’t they? Because they would do a lot of work for CBA, not in the sustainability area. So, the perception is that they’ll be giving you the kind of audit that you want, rather than the audit that you need.

Tim Harvey:

The audit that EY does is very much in conjunction with the customer and EY have a very credible at-arms-length sustainability team. And we’re very comfortable with the work that they’ve done in really testing what the client has already done.

Peter Wilkinson:

Did you consider using some of the global sustainability companies? There’s a Sustainalytics. I think there’s another world called MSCI. Did you think of using those that are completely arms-length?

Tim Harvey:

I think for us, one of the most important things was that we were looking at what Stockyard have done and really lining up with the Australian-based sustainability framework and the carbon-neutral plan that’s been set out by Meat & Livestock Australia. So, they are very much already advanced on that. EY has a very strong sustainability team here in Australia. So, we’re very comfortable with what one of Australia’s leading producers is already doing. And this is just putting the additional stretch around that, incentivising them on that additional stretch.

Peter Wilkinson:

So, let’s talk about the stretch then. What are you stretching them on?

Tim Harvey:

There’re three key areas, Peter. So, the first area is around animal welfare, greenhouse gas emissions. And then the third one is really around their own staff wellbeing and safety in the business. So, they’re the three key themes that they’re already doing in their business, but that’s where the stretch comes in around those three specific areas.

Peter Wilkinson:

So, Stockyard Group, amongst other things, is a large feedlot producer, which has its animal waste, has its greenhouse gas issues. So, what are you measuring on greenhouse gas emissions?

Tim Harvey:

The greenhouse gas emissions really capture scope 1 and scope 2 emissions. And scope 1 is obviously the emissions that are direct from the feedlot. So, it can be from their waste. It can be from their energy consumption. So, there’s a whole range of things that are captured under that. And I guess probably one of the things that we’ve really looked at it again, back to the Australian Beef Sustainability Framework, but specifically for Stockyards, it’s around scope 1 and 2 emissions.

Peter Wilkinson:

Yeah. But if they’re already doing that, what are you measuring their improvement specifically? What are you measuring or asking them to improve on in order to get a better deal with you?

Tim Harvey:

For Stockyard across those three key areas, animal welfare emissions-

Peter Wilkinson:

Just emissions for the moment. I’ll get to animal welfare.

Tim Harvey:

It’s really linked to a reduction across their emissions overall. So, scope 1 and 2. So without, sort of commercially in confidence, talking specific percentages for that business, what I would, point to is that there are really specific categories under the sustainability framework around waste management, around carbon sequestration. And what I would say, is that the beef industry has already reduced their emissions footprint significantly.

Peter Wilkinson:

Yeah. I know everyone’s working on it. So, you can’t go into detail because of client confidentiality, but public trust relies of course, on transparency. So, you’ve got a corporate affairs issue that you’re going to have to wrestle with there. So, what about animal welfare? So, in feedlots, what you want is, to use the vernacular, you want happy cattle from cradle to grave. Am I in the ballpark?

Tim Harvey:

For the animal welfare metrics, again, across the Australian Beef Sustainability Framework, there are absolute metrics that many farmers are already embracing today. So, some of the things, and again, not specific to Stockyard Group, but some of the things specific to animal welfare is around low-stress handling. So, some producers will have processes whereby when they’re moving livestock, cattle into yards, they’ve got ways of doing that to minimise the stress. So sometimes I’ve seen that they’re not forced, pushed hard with working dogs. So, I think that was one of the examples I’ve recently seen with a farmer.

Tim Harvey:

I guess one of the other examples I’ve seen is around transporting. So, when they’re moving from farms to different areas, to make sure that the carrier, in some cases, again, on the sustainability framework, that they have the TruckSafe code to really minimise stress.

Peter Wilkinson:

Yeah. Well, Stockyard Group have already been doing a lot of this, but have you got, for instance, an agreement that there’ll be no cattle prods. And there’ll be no dogs in yards. I mean, you need, again for the public to find this believable. Ultimately, you’re going to have to go public on this stuff and explain what you are actually measuring.

Tim Harvey:

We’re very happy. We’re very comfortable with what Stockyard already do. As I said, they are leaders, and people that they have-

Peter Wilkinson:

I know you are. I’m talking about the public and journalists who are a little more cynical than you folks who work inside the bank, who are excited about this deal. And if EY is doing an audit, won’t that audit need to be made public to gain public trust in what you’re doing?

Tim Harvey:

At this stage, the EY audit is not public. It’s commercial in confidence with the customer. But this is something that we’ve worked together with them, right at the inception. There’ll be regular checks along the way. So, this is not something sort of set up, set, and forget. So, it’s looking at what Stockyard are doing today. Where are the industry standards? What are we comfortable with our sustainability team? What are the independent experts in EY, who have independently looked at this, what are we comfortable with? And there’ll be sort of checkpoints along the way within that sort of three-year time horizon.

Peter Wilkinson:

Tim, thank you very much for this. I recognise this is a rapidly evolving space and what we’ll be doing in five years is entirely different to what we’re doing now. So, I appreciate your time today. Thank you very much.

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