A senior barrister says employers must play a lead role in Australia’s COVID-19 vaccination program and may have both a legal right and a duty to require employees to get vaccinated.
Arthur Moses, SC, a former president of the Law Council of Australia and the NSW Bar Association, said state and territory governments would be forced to “resort to that blunt instrument of virus suppression, the lockdown” until a “significant majority” of the population is vaccinated against COVID-19.
The importance of employers in the vaccination rollout “should not be underestimated,” he told a legal conference on Friday, and their role was critical in the absence of Commonwealth laws mandating that people get the jab.
“Speaking to radio station 3AW on 19 August 2020, the Prime Minister said that his government would make the COVID-19 vaccine ‘as mandatory as you can possibly make it’. Speaking to 2GB a few hours later, he said in response to a concerned caller: ‘can I be really clear to everyone? It is not going to be compulsory to have the vaccine … there are no compulsory vaccines in Australia’,” Mr Moses said.
In light of the government’s reluctance to make the jab mandatory, anti-vaccination sentiment spread by “fringe sections of the media” and some politicians, and “conflicting advice from various chief health officers”, Mr Moses said “the power of employers to make employees’ jobs dependent on receiving a vaccination assumes importance in order to secure public health”.
Mr Moses’ speech marks his first public comments on policy matters since NSW Premier Gladys Berejiklian’s office confirmed last month that the pair are in a relationship.
Employers may have the legal power to direct employees to get the COVID-19 vaccination in some circumstances, Mr Moses said, because there is “a term implied in law in every contract of employment requiring an employee to obey the ‘lawful and reasonable directions’ of their employer”.
The Business Council of Australia has held discussions with the COVID Taskforce about how its members can play a role in vaccinating their staff.
