Legislative Council, Wednesday 1 September 2021

Ms FORREST - to LEADER of the GOVERNMENT in the LEGISLATIVE COUNCIL, Mrs HISCUTT

With regard to COVID-19 vaccination status and employment in Tasmania:

1 What are the government’s policy position and frameworks for:
a. A public sector employer requiring staff, who interact with the public, to be vaccinated;
b. A private sector employer or not-for-profit organisation or company requiring staff, who interact with the public, to be vaccinated; and
c. requiring people who attend invitation-only gatherings like Networking events or ‘training courses for adults’ also being vaccinated.

2 What are the legal provisions in place or being contemplated for:
a. A public sector employer requiring staff who interact with the public to be vaccinated;
b. A private sector employer or not-for-profit organisation or company requiring staff who interact with the public to be vaccinated; and
c. requiring people who attend invitation-only gatherings like Networking events or ‘training courses for adults’ to be vaccinated.

3 What is the duty of care of employers to with regard to requiring vaccinations?

Answers:

1 The Government’s priority since the start of the COVID-19 pandemic has been to keep Tasmanians safe.

The Government would like to see as many Tasmanians as possible vaccinated, as well as to maximise the vaccination rates of those who interact with vulnerable persons, including those in residential aged care facilities and hospital and health care settings.

The Government is supporting all Tasmanians to get vaccinated, particularly those in high-risk settings.

2 In response to the decision of National Cabinet of 9 July 2021, the Director of Public Health, on 13 August 2021, made Mandatory vaccination of certain workers No.1 under section 16 of the Public Health Act 1997 to support the mandatory vaccination of persons employed, or engaged, by or on behalf of a residential aged care facility.

National Cabinet has also agreed to require vaccinations for persons working in quarantine settings, including those involved in transportation. This includes persons working in quarantine facilities under Commonwealth, State and private arrangements.

It is expected that the Director of Public Health will make directions under the Public Health Act to expand the vaccination requirements to persons working in these sectors.

The directions issued under the Public Health Act apply to all persons working, or volunteering, in residential aged care facilities, both in the public and private sector.

Given the opportunity for priority vaccination that has been provided to the healthcare workforce, and the risk a COVID-19 outbreak poses to this critical workforce and the continued operation of our health system, mandating vaccination for healthcare workers is also under active consideration in Tasmania.

The Department of Health is preparing advice and will make a recommendation on coverage and timing in the Tasmanian context, to the Ministerial Council on Emergency Management.

The Fair Work Ombudsman and Safe Work Australia have produced guidance for Australian private sector employers addressing whether it is lawful to compulsorily require an employee to receive the COVID-19 vaccination, outside of the requirements of relevant public health orders and directions.

Currently, neither the Government nor the Director of Public Health has imposed any legal requirement that requires persons attending certain gatherings to be vaccinated. However, private sector organisations may impose such requirements on persons attending premises or events, subject to a risk assessment.

3 Employers have a duty of care to provide a safe workplace for employees.

Employees have a duty to comply with directions of their employer which are lawful and reasonable. A failure to do so without a good excuse can be misconduct and warrant dismissal.

Employers may issue “lawful and reasonable” directions to their workers and employers have to take “reasonably practicable” steps to keep staff safe. Both could be used as the basis to mandate vaccines.

What is a lawful requirement will depend on the circumstances, including the work related risk being addressed by vaccination, the nature of the workplace, the employees and the work undertaken by the employees.