The following article was provided by Labor candidate for Stuart and Industrial Rights Lawyer Andrew Wright.
We have endured hearing and reading about the word 'mandate' over the past 18 months, but what the heck does it mean?
The word 'mandate' has been used when referring to workers in certain industries needing to be vaccinated, in order to continue with their duties at work. Classic examples of a mandated workforce are healthcare and education.
Confusingly, a mandate in an Act, or by an individual policy created by an employer, does not always mean that it is compulsory to comply with that Order or Direction.
Indeed, if you cast your mind back to the classic Aussie movie, The Castle, The Kerrigans didn't need to hand over their house to the Government, as it was not being acquired 'on just terms'.
Likewise, with a mandate, it must also be 'on just terms'.
So, what does that mean?
Well, the directive must be within the bounds of Australian and International law.
If there is discrimination by the employer on the grounds of being unable to be vaccinated due to a medical condition, then that may well violate Australian and International law.
There are also arguments surrounding religious reasons for not wanting to be vaccinated. However, so far, the courts have been unwilling to give much weight to that argument.
Employers are also in a tough position.
They have an obligation to ensure their workforce is safe, as are their customers/clients, as per the Work Health and Safety Act 2012.
Indeed, employer groups have called on government to mandate more broadly the vaccination requirements at work, under legislation which would then alleviate the need for business owners to attempt to create policy that is truly a minefield.
Recently, to make matters more complex, it was found by the Fair Work Commission, that there must be adequate consultation with respect to policies and vaccination.
Employers must consult with employees and, if necessary, employment groups before implementing a policy that directs its workforce to vaccinate.
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