The business is a large manufacturing company operating nationally.  They operated throughout the Pandemic and were an essential service provider including to the NDIS.  It employs a large workforce in regional areas, both permanent and casual.  It undertakes seasonal work, and this often requires many casuals to employed as surge employees. 

Like many essential services providers, it developed a robust Covid Safe Plan from 2020 as early as possible.  This was critical as any infection related shut down would jeopardise supply, thereby adversely impacting worker pay and risking community spread. The plan was adapted and refined as the pandemic moved through its stages and it proved to be effective in minimising the risk of transmission of Covid in the workplace.

Mid 2021 and the need to Vaccinate

Vaccination, whilst slightly delayed was a key change in Pandemic in Australia. The advent of SARS-CoV-2 (Delta) in 2021 was a game changer as it was much more contagious and posed an elevated threat to their staff, their families, the community, and the business. It was clear that their Covid safe protections risked falling short against the Delta strain. Vaccination was already being used globally as an effective step, with other steps to protect against the risk.

At that time, there was unclear vaccination advice and availability.  The Government position was lacking in clarity in relation to its interventions to require or mandate vaccinations.  It appeared at that point that Governments were unlikely to do more than “encourage” vaccination except in very special circumstances.

The business decided it needed to be proactive in this area.  It relied on both global and local medical and specialist advice to determine its next steps to do all that was practicable to protect its employees.  There was certainly enough evidence to indicate that vaccination was a measure needed to provide a safe working environment reasonably and practicably.  Several experts had attested to this at that time:

“Vaccines continue to be highly effective in preventing hospitalisation and death”- Centres for Disease Control (USA)

“80% full vaccination threshold for lock down minimisation”- Doherty Report

“Vaccination against COVID-19 is the most effective way to reduce deaths and severe illness from infections”. TGA

“Delta variant at least twice as contagious as WUHAN strain”. RACGP

“COVID-19 vaccination is a key component of SARS-CoV-2 control with the overarching goal of protecting all people in Australia.” ATAGI

The highest level of management determined that clear direction, information, and leadership must come from private enterprise in relation to the managing the pandemic, if the economy was to open up and lockdowns became the exception rather than the default position of government.

With the advice of experts and within the context of needing to provide a safe working environment for its workers, the business took the decision that a fully vaccinated workplace was a safest option for all.

Mandating Covid -19 Vaccination

Prior to any Government in Australia creating vaccination mandates, the business led by taking steps to mandate vaccination in the workplace.  It did so in a methodical fashion by considering its policy, consulting, and communication with stakeholders before implementing the policy.

Consideration of its Policy – In order to develop its position and policy regarding vaccination the business looked at and received advice regarding its legal obligations:

1. Work Health and Safety Law: requires that employers have a duty to ensure the health and safety of workers and other persons.  The high transmissibility of Delta and the potential for significant adverse health outcomes presented a major risk for persons in a workplace where there is personal contact.  The evidence was that vaccination was the most effective control measure to manage that risk.
   
   The risks to their workforce were compounded, by the necessity for physical attendance at the workplace for many employees working in close proximity of each other in processing roles. Social distancing and the effect of personal protective equipment had their limitations. The business determined that the existing controls for preventing transmission of earlier variants of COVID-19 infection were not going to be sufficient to manage the risks associated with the Delta variant.  Appropriate vaccination requirements were identified as being far superior to the other available controls in reducing the workplace risk, and it was reasonably practicable to implement in the circumstances.
2. Employment Law: The issue was centred around the concept of lawful and reasonable directions. The basis of lawful and reasonable is both WHS compliance and employer prerogative to manage the business effectively and to protect its legitimate business interests. The business needed to comply with its industrial instruments and any public health orders/directive.
3. Discrimination Law: the business needed to consider the impact of the (very limited) circumstances that may impact on “protected attributes” under anti-discrimination laws, such as disability, age, race, religion. It also had to ensure flexibility with respect to persons who have a genuine contraindication to being administered an approved COVID-19 vaccine.  This meant adjusting any policy to ensure that employees were not discriminated.
4. Privacy: Important aspect of any policy needed to include verification of vaccinations status or medical contraindication. Compliance with applicable privacy laws needs to be considered. The systems and processes had to ensure confidentiality of medical information, as with other employment circumstances involving medical information or conditions.

The business developed its position that all employees that could be vaccinated had to be vaccinated and as of 1 January 2022, it will be requirement to be vaccinated to be employed.

Additionally, the vaccination requirement was extended to cover all contractors and visitors as a condition of engagement and/or to attend site.  If there was a reason that someone could not be vaccinated, they had to contact the People and Culture team.  If a suitable alternative could not be found, they would not be able to attend the site. Contractors and visitors had to provide their certificate of vaccination to the business by 31 December 2021.

The business Covid Safe Plan was ultimately updated to give effect to this.

Consultation and Communication

This position was approved by the Board and the next step was to start the consultation process. In accordance with the business’s enterprise agreement, the relevant Union was notified as a definite decision had been made to mandate vaccination. The consultation process commenced from early August with

• Weekly meetings with the relevant Union and the shop stewards
• Onsite town hall meetings with all staff by shift
• Weekly virtual town hall meeting with all staff
• Weekly toolbox talks (Q&A) with team leaders
• Frequent executive and management walk arounds. This was to ensure that this was a whole of business approach with senior management being very much involved. There was visible senior executive involvement
• One on one consultations on request
• Daily email and SMS updates
• Calls to staff as needed.

FAQs were developed, circulated, and updated as necessary.  The FAQ’s addressed several questions that employees had and provided direct and clear information on issues including:

• The reasons for the vaccination policy
• Concerns employees may have had about getting a vaccination and references to health department websites where they could get further information.
• The financial support available when getting vaccinated and if there were any adverse reactions.
• How to record their vaccination evidence and how the information is protected
• The grounds for any exemption and what evidence would be requires.

Employees were informed that subject to vaccine availability staff needed to provide:

• Confirmation of vaccination booking by September 15, 2021.
• Confirmation of first dose vaccination by October 31, 2021.
• Confirmation of second dose vaccination by November 30, 2021.

There was also clear communication  for those who were not able to be vaccinated due to medical grounds, that they needed to provide the appropriate medical evidence. Similarly, those who were not exempted, but chose not to be vaccinated would have failed to follow a lawful and reasonable direction. In such cases the business reserved its rights to take disciplinary action which could include the termination of employment.

Implementing the Policy

The strength of the implementation process was the strong involvement of its executives and senior managers.

Staff were supported throughout the process, to answer their questions and concerns. There was time and monetary incentives to encourage vaccination as follows:

• Dedicated resources, staff support desk and email
• Dedicated landing page on intranet
• Guest expert speakers and education sessions
• 2 days additional leave if suffer vaccination side effects (perm employees)
• Proforma letters of support for doctor visits
• 1 day paid leave for casual staff
• 2 hours’ time off to attend vaccination appointment
• Weekly updates on adjustments to rules
• $50 gift voucher on full vaccination
• Personal registration support
• Paper based notification program
• Collaboration with vaccine hub on registration

The steps taken to provide information and respond to employee queries was aided by a sufficiently appropriate lead time to ensure that employees were aware of the vaccination requirement, the reasons why it was being implemented, the time frame and plan. The process and implementation of the vaccination requirement had a high level of transparency.

The business successfully implemented its vaccination policy with a 0.04% of its workforce being exempted due to medical reasons. During the journey to 1 January 2022,  State Governments started mandating vaccination requirements for the workforce.  This provided additional support to the position albeit after the business had undertaken the hard work to ensure their positive vaccination outcome.

This case study was produced with the support of the Commonwealth Government, represented by the Fair Work Ombudsman.