In light of a constantly changing environment, we have decided not to provide specific information on how Sailability clubs in Queensland can respond to government requirements. Instead, we provide some information from the Fair Work Ombudsman and Queensland Human Rights Commission about vaccinating employees, published in August 2021, and about situations where discrimination may or may not occur. We recommend that clubs and other interested parties keep informed by checking the official health position here:
The Fair Work Ombudsman
Sailability clubs may wish to consider these comments as wider guidance in assessing their requirements for providing a safe workplace, particularly on sailing days. Here is a precis of the Ombudsman's comments:
Can an employer require an employee to be vaccinated?
Employers can only require their employees to be vaccinated including where:
a specific law applies (such as a state or territory public health order or an obligation under a work health and safety law)
it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated
Employers should also consider how protections for employees under
anti-discrimination laws may apply.
Employers should get their own legal advice if they’re considering making coronavirus vaccinations mandatory in their workplace.
Legislation and public health orders requiring vaccination against coronavirus
The Queensland Government has issued public health directions mandating coronavirus vaccination for some workers. The directions affect:
health service employees
Queensland Ambulance Service employees
hospital and health service contractors
Queensland Health employees in residential aged care facilities operated by Queensland Health (first dose by 16 September 2021)
workers in quarantine facilities.
Lawful and reasonable directions to get vaccinated
Employers can direct their employees to be vaccinated if the direction is lawful and reasonable - this is fact dependent and needs to be assessed on a case-by-case basis. For a direction to be lawful it needs to comply, amongst other things, with Commonwealth and state laws (for example, an
Things to take into consideration when determining what is reasonable include:
the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service)
the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community
the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant (find out more at the Department of Health: statement from ATAGI )
work health and safety obligations (find out more at Safe Work Australia )
each employee’s circumstances, including their duties and the risks associated with their work
whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)
When undertaking this case-by-case assessment, it may also be helpful as a general guide to divide work (we can add volunteering) into 4 broad tiers:
Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).
An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus, or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.
An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.
For employees performing Tier 3 work:
where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable
where community transmission of coronavirus is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown, a direction to employees to receive a vaccination is more likely to be reasonable.
Regardless of the tier or tiers which may apply to work performed by employees, the question of whether a direction is reasonable will always be fact dependent and needs to be assessed on a case-by-case basis. This will require taking into account all relevant factors applicable to the workplace, the employees and the nature of the work that they perform. Employers should get their own legal advice if they’re considering making coronavirus vaccinations mandatory in their workplace. For the full text of the guidance see:
Queensland Anti Discrimination Law
The Queensland Human Rights Commission has published a guide on the Anti-Discrimination Act 1991. The guide includes these statements:
When is discrimination against the law?
The law says you must not be discriminated against when you are (including):
• At work or volunteering, or when you apply for jobs, and
• Buying things in places like shops, restaurants and bars
When isn’t discrimination against the law?
Sometimes treating people differently isn’t against the law. The law includes ‘exemptions’, or times when it is okay to treat people differently. Including:
• to make things better for people who might be disadvantaged
• to protect health and safety.
Sometimes you might need a special service or facility because of your disability. If it is too hard or costs too much for people to make these changes for you, they might not have to. They have to prove it is too hard or costs too much. This is called unjustifiable hardship.