This guideline is designed to be a simple reference document to assist HVIA members, that wish to have a COVID-19 policy for their workplace.
- 1. Is there a requirement to have COVID-19 policy?
- 2. What content should the COVID-19 policy cover?
- 3. Compliance with State Public Health Orders/Directions?
- 4. Workplace Health and Safety
- 5. How should I consult with my staff?
- 6. How should the policy operate for new staff members?
- 7. Mandatory Vaccinations
- 8. Privacy
- 9. What do I do if an employee is being difficult?
- 10. Conclusion
1. Is there a requirement to have COVID-19 policy?
There is no legal requirement to have a COVID-19 policy, but recent advice provided to HVIA suggests that having one, is considered best practice.
The content of the policy is ultimately up to the employer and management, but HVIA strongly advises broad and genuine employee consultation to ensure the policy has broad acceptance in the workplace.
2. What content should the COVID-19 policy cover?
It is best practice to set out how the business will handle situations affected by COVID-19.
- Setting the objective of the policy
- Reviewing guidance material from the Fair Work Ombudsman and Safe Work Australia (see links to this information below)
- Outlining the Risk Assessment Process for COVID-19
- Listing the different control measures you have taken and will take in the future should a certain trigger level be reached. Outline, how these control measures will be different based on the risks for respective employees, visitors, customers etc.
- Outline compliance with Public Health Orders – current and in the future.
- Advise how this policy will apply to new employees, including addressing medical contraindication, and potential anti-discrimination issues
- Providing guidance on how the business will consult with employees about work health and safety requirements to be vaccinated
- Providing guidance on how to address vaccine hesitancy, and employees that refuse to be vaccinated in accordance with Public Health Orders, or work health and safety requirements
- Setting out how the business will comply with the Australian Privacy Principles for vaccination status.
- Determining how the business will handle situations where staff may refuse to work should they feel uncomfortable about unvaccinated colleagues.
3. Compliance with State Public Health Orders/Directions?
The business must ensure compliance with any relevant Public Health Order.
These are normally expressed by the Chief Health / Medical Officer or the State Government where your workplace or site is located.
They can change depending on the geographic location, so it is important to try and stay up to date with them.
Several State jurisdictions have mandated that certain workers are to be fully vaccinated by a certain date, and that employers should also keep a record of an employee’s vaccination status.
In this case, requiring employees to comply with a Public Heath Order as they apply to the business and to them would be regarded as a lawful and reasonable direction.
These mandates also provides that employees should not be employed in the respective workplaces unless they have had a first or second dose of a vaccine (as the case maybe).
In circumstances where employees have not received their first or second dose of the vaccine (as required by the Public Health Orders) employees cannot be employed in their respective workplace as they cannot perform the inherent requirements of their job.
These employees should be advised that unless they comply with the relevant Public Health Orders, they are not entitled to be paid, and that their job is at risk.
One alternative approach is to allow employees to use available annual leave to consider their options. Exemptions apply where the employee has provided a medical contraindication in the prescribed form from the Chief Health/Medical Officer.
Employers should check the respective state Public Health Orders vaccination mandates for mandated dates and application.
A one-stop-shop website, which is able to help you navigate the requirements is the Australian Government’s Department of Health website here.
4. Workplace Health and Safety
Employers (and a person conducting a business or undertaking (PCBU)) have an obligation to ensure the health, safety, and welfare of employees, as well as contractors and visitors.
Employers (and PCBU) should conduct a risk assessment and implement appropriate measures to address the risk to health and safety of COVID-19.
(i) Risk Assessments
In making your workplace and safe as possible, it may be useful for HVIA members to view COVID-19 as a hazard and to undertake a risk assessment process, that might lead to effective control measures being implemented.
As state and international borders open, this will inevitably result in more movement within the respective states, with the likelihood of higher infection rates following the easing of restrictions.
Given these scenarios, and the highly infectious nature of the Omicron and Delta variants, employers should take these factors into account in their risk assessments.
Advice on how to undertake a risk assessment, can be found here. Included in this risk assessment can be measures to ensure business continuity.
It is important to understand that the risks can change depending on a range of factors.
For example, the risk for a heavy vehicle dealership, that is open to the public and has uncontrolled people movement, is going to be higher than the risks faced by a member of the workshop that does not have a public facing role.
The Fair Work Ombudsman issued guidance by way of a four-tiered approach.
These tiers are:
- 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).
Examples of control measures include:
- Health Monitoring – if your sick stay home, get tested and isolated until you get the result and feel better.
- Physical Distancing – Workers should bear this in mind when carrying out tasks, but can the workplace be altered or can some employees work from home.
- Good Hygiene – washing hands, availability of hand sanitizer, cough and sneeze protocols, and signage.
- Use of PPE – gloves or facemasks to help control the spread
- Increased levels of sanitization – do workers need to assist with additional levels of cleaning, when, who, how.
- Ventilation – Can the workplace be modified to improve the level of ventilation for staff.
- Workplace density – can workstations be moved, shifts split, additional lunch spaces, can meetings be held outdoors, can physical distancing be increased.
- Daily tests – Will temperature checking, or Rapid Antigen Testing be implemented, if not immediately, is there a trigger for when it will commence.
- Training – Is there any training that can be offered to assist employees.
- Vaccinations – who, when, future trigger levels based on increased risk of community transmission.
(ii) Lawful and Reasonable Directions
When implementing new workplace conditions or requirements for employees, including a requirement to be vaccinated based on work, health and safety risk assessments, the employer should ask themselves if the requirement is a lawful and reasonable direction.
Situations where this might arise is instructing staff back to the office (if they have been working from home), or requiring employees to be vaccinated based on a work health and safety assessment.
When considering if direction is lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, work health and safety laws).
In addition to a lawful direction, guidance also exits as to reasonable directions. The Fair Work Ombudsman has issued guidance, which can be accessed here.
Further, several recent Fair Work commission cases can also assist employees. Some of the factors to consider include:
- work health and safety obligations (find out more at Safe Work Australia)
- 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 Omicron and Delta variants among employees as state and international border restrictions are eased, customers or other members of the community
- the terms of any Public Health Orders in place where the workplace is located
- the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Omicron and Delta variants (find out more at the Department of Health: Statement from ATAGI)
- each employee’s circumstances, including their duties and the risks associated with their work
- whether employees have a legitimate reason for not being vaccinated (a medical contraindication in the prescribed form from the relevant Chief Health Officer)
- the extent of consultation with employees concerning work health and safety responsibilities and the requirement to be vaccinated
- vaccine availability.
5. How should I consult with my staff?
There is no right way. Employers are required to consult with their employees when implementing appropriate work health and safety measures.
Firstly, check if the employment instrument (Award or contract) sets out a policy formation process.
If it does, follow it, if it does not, then HVIA suggests you follow the standard process for your other policies but noting the sensitivities around COVID-19 and the importance of majority approval and support for the agreed approach. HVIA suggests:
- Forming a working group.
- Ensure management approves of a draft policy.
- Undertaking consultation with staff members listening to any concerns and ensuring the working group considers all feedback.
- Ensuring a mechanism for acceptance of the policy.
Alternatively, the Fair Work Commission has a helpful consultation resource here.
6. How should the policy operate for new staff members?
Employers have more control in dealing with new employees, as accepting the policies of the workplace is generally a condition expressed in an employment contract.
HVIA members should review their employment contracts to ensure they are consistent with the COVID-19 policy and ensure maximum protection.
There are two legal principles to consider as part of new employment contracts and that is whether an employee states, they are unable to adhere to the COVID-19 policy due to genuinely held religious beliefs, or an impairment (for example a prior medical condition.)
Such matters should be addressed on a case -by-case basis. This will mostly arise when considering mandatory vaccinations.
It may help HVIA members to understand that the defences to an anti-discrimination action or general protections claim, include that the action was:
- Reasonable and necessary to comply with a public health order)
- Reasonable and necessary for public health
- Reasonable and necessary to meet the inherent requirements of that role (case by case consideration based on which tier the work falls into and the other implemented control measures for the existing workforce (see section 5) above.
- Reasonable and lawful to comply with a statutory requirement to ensure the work health and safety of employees in the workplace
7. Mandatory Vaccinations
In the absence though of a state or Federal Public Health Order, which would make an action lawful, the employer should follow the steps set out in section 4 of these guidelines, depending on the case-by-case analysis of the level of risk or the types of work done compared to the suggested tiered approach outlined above.
The current advice for private business, is that it is more likely to be deemed reasonable to mandate the vaccine for everyone in a workplace as a blanket rule if you are in a Tier 1 or 2 type business as outlined in section 5 above. Further, directing an employee in a Tier 4 type business to be vaccinated is more likely to be unreasonable.
Employers should constantly assess risk in their respective workplaces, particularly as restrictions ease and COVID-19 cases increase. HVIA employers should read the Fair Work Commission judgment in CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (BHP), which overturned a workplace direction mandating the vaccine.
The judgment is available by clicking the following link: https://www.fwc.gov.au/documents/documents/summaries/2021fwcfb6059ds.pdf
The Fair Work Commission stated that while the direction was prima facie lawful, it was not reasonable:
 The Full Bench said that the Site Access Requirement was prima facie a lawful direction because:
• it falls within the scope of the employment, and
• there is nothing ‘illegal’ or unlawful about becoming vaccinated.
 The Full Bench determined that, in all the circumstances and on balance, the Site Access Requirement was not a reasonable direction. The determinative consideration was that the Full Bench was not satisfied that the Respondent had consulted the Employees as required by ss.47 and 48 of the WHS Act.
There are 13 Australian Privacy Principles. You can read about them here.
The Office of the Australian Information Commission (OAIC) has produced a guide on how to handle sensitive information as it relates to COVID-19. To access this guide please click here.
Your policy might wish to consider the benefits of viewing this information rather than retaining or collecting it, as OAIC has confirmed that an employee’s vaccination status is deemed a sensitive health information under the Privacy Act 1988 and thereby requiring additional measures pertaining to keeping the information securely.
The latest advice is that an employer may ask to view evidence of an employee’s vaccination status without raising privacy obligations, provided they do not collect (i.e. make a record or keep a copy of) this information.
An employer should not collect vaccination status information from an employee unless the employee consents and the collection is reasonably necessary for the employer’s functions and activities. More information can be found here.
The main points for consideration are:
- Employers can only collect an employee’s vaccination status where the employee consents and the collection is reasonably necessary for your workplaces’ functions and activities.
- Employers must have clear and justifiable reasons for collecting employee vaccination status information for it to be reasonably necessary.
- If you do not have clear and justifiable reasons, you should not collect vaccination status information. You can only collect vaccination status information without consent in circumstances where the collection is authorised by law (including a state or territory public health order or direction, or compliance with a work health and safety law).
- In these circumstances, this information would be regarded as an employee record and be exempt from the privacy principles.
- However, employers should accurately record the information that is collected, keep it up-to-date and store it securely, and limit the access, use and disclosure of employee vaccination status information.
- The policy should advise employees how their vaccination status information will be handled.
- Vaccination status information should only be used or disclosed on a ‘need-to-know’ basis.
- Only the minimum amount of personal information reasonably necessary to maintain a safe workplace should be collected, used, or disclosed.
- Ensure you take reasonable steps to keep employee vaccination status and related health information secure if you are retaining the information.
9. What do I do if an employee is being difficult?
If a situation arises, the Fair Work Ombudsman is encouraging employers and employees to try and resolve the dispute between them.
The policy may set out some of the early steps both parties should take in trying to do this in good faith.
For example, the employer may wish to learn why an employee is unwilling to comply, what the basis of this concern is and whether it can be alleviated through changing an employee’s workplace setting, surrounds, hours or by providing additional PPE.
Similarly, the employee should be willing to outline potential solutions to the situation.
By following this checklist, HVIA hopes that you can solve any issues.
If the problem persists, remember HVIA does offer free HR advice via our Employer Assist hotline, which you can access by calling: 07 3376 6266.
HVIA hopes this guidance material somewhat simplifies the issues that confront our members pertaining to how to deal with COVID-19.
A policy can protect the business in setting out how the business will attempt to keep the staff, customers, contractors, and visitors safe.
We believe in the supply chain having a COVID-19 policy may be required to transact with customers in the future.
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