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THE HUMAN ISSUE
JAB , NO JAB , HOOK ?
WE ’ RE GETTING TO THE POINTY END OF VACCINES NOW … SO , WHAT DO CONTRACTORS NEED TO KNOW ?
With the country approaching a ‘ living with Covid ’ state , vaccines are a key part of the strategy to manage the pandemic . However , while the majority have rolled their sleeves up there are some across the country who ’ ve decided not to get vaccinated . The government legislation around accessing building sites and homes is tricky to navigate , so we asked Nick Maley , Partner , Workplace Relations at Holman Webb , to give us the lowdown to help us all keep our employees , colleagues and customers safe .
Thanks for having a chat , Nick . First of all , can an electrical contractor make an employee get a vaccination ? No worries . Well , the first thing to bear in mind is no one can be made to be vaccinated , it ’ s entirely voluntary . If someone chooses not to be vaccinated that ’ s ok , but there ’ s ramifications for that .
An electrical contractor can think about requiring their staff to be vaccinated , and if they do they ’ re giving their staff a direction : these are usually valid . There are exceptions to the rule . If it ’ s taken on the wrong basis it could be invalid and therefore not enforceable .
Fairwork Australia has recently released guidance on this , haven ’ t they ? What they ’ ve said is if the work being done is high-risk for someone to catch the disease – for example , quarantine staff at the airport , a direction by the employer to get vaccinated is likely to be enforceable .
What about electricians working in a high-risk environment ? There are public health orders that apply to aged care , the department of health , schools etc that require anyone who works there to be vaccinated or have an exemption . If the work being done is with vulnerable people , such as aged care , or people with disabilities , it ’ s likely that a direction to be vaccinated would be lawful .
If someone works from home , or works in an area with few people , for example , then it may be unlawful to direct people to get the vaccine .
What about the regular day-today work electricians do ? It ’ s a grey area , because the government and Fairwork says fieldwork depends on the circumstances . Can you socially distance ? Are the people you ’ re coming in contact with at risk ? If an electrician is going to a suburban home where there ’ s no one who ’ s recently had Covid or likely to have Covid , and they don ’ t need to be too close to anyone , and they can socially distance and wear masks , then it ’ d be unlikely that a direction to be vaccinated would be valid .
What would happen if I sent an unvaccinated worker out on a job , and they passed Covid onto a client who subsequently died ? Could I be held responsible ? It ’ s certainly a possibility , but it ’ s pretty unlikely . Every business has to have a Covid safety plan . That means , before every job , you should have a conversation with the client to ask whether there ’ s anyone in the property who ’ s vulnerable , or at risk . If there ’ s someone at risk , and you have four staff , two
vaccinated , two not , then you need to send the vaccinated ones to that job . If you don ’ t have that Covid safety plan to show how you ’ re doing things , you may have some exposure .
Can I refuse to do work for an unvaccinated client ? Absolutely – an electrician isn ’ t obliged to do any work for anyone , and if you think it ’ s not safe for you or your staff then it ’ s entirely justifiable as an employer to make enquiries to ensure the workplace is as safe as possible for their workers .
Can an employee make a claim if they pick up Covid from an unvaccinated colleague ? If they got infected by a colleague they may have a claim for worker ’ s compensation , because they ’ d say if it wasn ’ t for that they wouldn ’ t have got the disease . There are a few cases coming up in court around this , but it ’ s early days .
Can I sack someone who ’ s not vaccinated ? After all , if they ’ re not vaccinated they may be limiting the work I can take on . It depends . If you have directed your staff worker to be vaccinated , and that direction is reasonable and enforceable , you can consider dismissal . Of course , if they have a proper medical basis for not getting vaccinated , a dismissal might be unlawful . You also need to be careful that you don ’ t discriminate .
Can my workers refuse to work with an unvaccinated colleague ? This is still uncertain . Again it comes down to whether they can socially distance , wear protective equipment , and what is the risk of transmission . If there is a risk , you ' d probably be justified in giving a direction to get vaccinated . n
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