Ross Stitt traces the Australian responses to vaccinations as the pandemic grips NSW, and follows what it will mean for their public health measures and their economy when vaccination rates plateau at higher levels

In 1945 the British Prime Minister and national hero Winston Churchill was defeated in Britain’s first post-World War II election. His wife Clementine, concerned for Churchill’s health, said that the loss might be a blessing in disguise. He replied that if so, it was bloody well disguised. 

Sydney’s current Covid-19 outbreak may well be a similar blessing.

Tragically, there have been more than thirty deaths and hundreds of hospitalisations. The city has been in lockdown for six weeks at enormous economic cost.

The blessing is that the outbreak has been a real jolt for governments, businesses, and the general population, not just in Sydney but around the country. The realisation that Sydney may not return to zero cases for many months, possibly years, has banished the previous complacency. There is now near universal recognition of the paramount importance of high vaccination rates and a new-found urgency to achieve them.

The National Cabinet comprising the Prime Minister and all state and territory premiers and chief ministers has laid out a strategy for dealing with the pandemic. As vaccination rates increase, the country will move through a series of phases. While the strategy is still a little vague, each successive phase should involve reduced lockdowns, greater freedoms, fewer border restrictions and so on. 

The corporate sector has much to gain from the success of this opening up strategy and has embraced the drive to get the country vaccinated. This has been encouraged by Federal and state governments which recognise the contribution that business can make, particularly the nation’s major employers. Bodies like the Business Council of Australia and Australian Industry Group are working with governments to facilitate the vaccine rollout.

Woolworths, Australia’s largest private employer, gives staff up to eight hours paid leave to get vaccinated and has established ‘pop-up’ vaccination clinics at distribution centres in South West Sydney to provide onsite staff access to vaccines.

The banks are working on a plan developed by the Australian Banking Association to vaccinate staff. Last week Westpac Bank launched a pilot program to assist employee vaccination. It includes “workplace vaccination hubs” for employees in the worst effected parts of Sydney and was “designed in partnership with the Federal Government’s COVID Shield Taskforce”.  

Professional firms are also on board with the rush to vaccinate. Some are keen to provide in-house vaccination if the government develops a suitable workplace vaccination program. Some are offering incentives to their staff to get vaccinated. In an imaginative twist, one law firm is donating to UNICEF’s ‘Give the World a Shot’ program in poor countries when an employee gets the jab. 

Before the latest Sydney lockdown, there was a notable lack of urgency around the vaccination rollout. Unsurprisingly, few Australian businesses were offering vaccine incentives. In the new Delta induced reality, businesses are now much more focused on getting out (or staying out) of lockdown and keeping their employees well. They also want to avoid breaching laws requiring safe workplaces. In this environment, vaccination is crucial and if that requires incentives, increasing numbers of businesses appear ready to provide them. 

Of course, the alternative to rewarding staff who get vaccinated is to punish those who don’t. The stick versus the carrot. The ultimate stick is ‘no jab, no job’. To date, there has been little appetite among Australian businesses to mandate vaccination for their employees. The most high-profile proponent of the practice is the fruit and vegetable processor SPC which is requiring all its staff to be vaccinated by the end of November.      

According to SPC Chairman Hussein Rifai, mandating staff vaccination is “the right thing to do”. He says -

Lockdowns are not a sustainable solution and the Australian economy needs to open up again. The Delta variant poses a significant threat to our people, our customers and the communities we serve. The only path forward for our country is through vaccination.

Most businesses would agree with these sentiments. However, there are two reasons why few are pursuing mandatory vaccination. First, not all employees want to get vaccinated. Unions are generally in favour of vaccination but recognise that many of their members do not want the jab.

Secondly, it is not clear whether employers are legally entitled to require their employees to be vaccinated. This issue is the subject of heated debate. Prime Minister Scott Morrison was questioned about it at a recent press conference. He said he had been advised by the Solicitor General that it involves “matters regarding discrimination law and a reasonableness of any direction made to an employee”. He referred employers to the website of the Fair Work Ombudsman for detailed advice on the issue and helpfully noted that “ultimately, employers need to consider these matters and make their own decisions”.

The advice on the Fair Work Ombudsman’s website is that “in the current circumstances, the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus.” According to the website, the issue is currently under review.

The essence of the legal position is that an employer has the right to require an employee to be vaccinated if it is “lawful and reasonable”. That turns on various factors including the particular circumstances of the employee, the nature of the tasks they perform, and the nature of the workplace. 

The level of uncertainty is regrettable. It leaves many businesses in a difficult position. Absent federal legislation to clarify the position, we may see litigation and industrial disputes about mandatory vaccination. 

Given the federal government’s goal to have 70-80% of Australians fully vaccinated by Christmas, its reluctance to clarify the ability of employers to mandate vaccination seems odd. With a federal election due before next May, it may reflect the government’s desire not to lose the votes of the ‘vaccine hesitant’ and the anti-vaxxers.  

Some businesses want the government to go further than allowing employers to require their staff to be vaccinated. They want the government to mandate vaccination for all workplaces or, better still, mandate vaccination for the general population. To date, the government has rejected such suggestions. Such levels of compulsion are unlikely any time soon. 

The state government in New South Wales has adopted a form of de facto compulsion in the Sydney construction sector. That sector was shut down several weeks ago as part of the Sydney lockdown. However, given the importance of construction to the NSW economy (and, some say, the power of the NSW construction lobby), the shutdown has been lifted, subject to several key conditions.

Those conditions dictate that construction workers living in the areas of Sydney with the highest Covid-19 rates, can only work if they have -

• had 2 doses of a Covid-19 vaccine or
• had one dose of a COVID-19 vaccine before 21 July or
• had one dose of a COVID-19 vaccine after 21 July and have been tested for COVID-19 in the past 72 hours or
• evidence of a medical exemption and have been tested for COVID-19 in the past 72 hours.

This favouring of vaccinated over unvaccinated workers will inevitably play an increasing role in NSW’s handling of the current crisis. It will be welcomed by businesses, especially those in the hospitality and entertainment sectors.

For some this is the first step on the slippery slope to ‘vaccine passports’. If it is appropriate to distinguish between vaccinated and unvaccinated workers in a business, why not distinguish between vaccinated and unvaccinated customers of that business? The pressure on everyone to get vaccinated will increase. 

There are some difficult issues here, but they cannot be avoided. The sooner Australia (and New Zealand) grapples with them, the sooner it will reach what must be the ultimate goal – ‘living with Covid-19’.

Ross Stitt is a freelance writer and tax lawyer with a PhD in political science. He is a New Zealander based in Sydney. His articles are part of a new 'Understanding Australia' series.