In brief - A look at the current public health orders, SafeWork NSW and Resources Regulator advice, and risks and issues for employers to consider before enacting a Covid vaccination program 

In New South Wales, due to the current outbreak of the Covid-19 Delta strain, the government is strongly encouraging everyone over the age of 16 years to get vaccinated as soon as possible.

Every workplace in NSW is required to have a Covid Safe Plan and a process to record those persons who attend the workplace. As part of a Covid Safe Plan, is it reasonable for a workplace to require each worker to be Covid vaccinated?

Presently, the NSW Government's public health orders, which are being updated frequently, have determined that certain workers will be required to have a level of vaccination to work in certain industries. We take a look at the implications for the construction and mining sectors in New South Wales.

Public health orders for construction sites in Greater Sydney

Construction sites in Greater Sydney are directed by the public health orders to:

Not allow persons on the construction site which would breach a one person per 4 square metres of space rule or 50% of the maximum daily workforce, whichever is the lesser.

The occupier must not allow a person to enter or remain on the construction site, unless satisfied that the person has complied with the following:

  • Where a person whose place of residence is in an area of concern must not enter or remain on a construction site in Greater Sydney, unless the person has:

    • had 2 doses of a Covid-19 vaccine, or

    • had 1 dose of a Covid-19 vaccine at least 21 days ago, or

    • had 1 dose of a Covid-19 vaccine within the previous 21 days and has been tested for Covid-19 within the previous 72 hours, or

    • a medical contraindication certificate and has been tested for Covid-19 within the previous 72 hours.

A person entering a construction site in Greater Sydney must produce evidence of the above.

Fair Work Ombudsman

The Fair Work Ombudsman has recommended that employers and employees work together to determine the most suitable process that meets each individual's and the workplace's needs.

Consultation on workplace change is required pursuant to the Work Health and Safety Act of NSW and is often expressed in enterprise agreements, awards or employment contracts.

However, to determine if mandatory or voluntary vaccinations are required for your workplace, a risk assessment is required to be undertaken, noting that not every worker may be able to medically receive a vaccine.

SafeWork New South Wales advice on vaccines

SafeWork New South Wales considers vaccination a "High Order Risk Control Measure". That is, a business may require workers to be vaccinated for Covid-19 if it is reasonably practicable to do so. Factors to consider are: the eligibility for the vaccine, personal health, medical history, type of work and alternative control measures, along with the risk of exposure.

SafeWork NSW advises:

Once a vaccine is available to protect against COVID-19 it is likely to be recommended for all those performing tasks in, or intending to perform tasks in, a situation where there is a high risk of exposure to the virus that causes COVID-19, unless there is a medical contraindication.

Resources Regulator of NSW offers advice on Covid safety protocols, but yet to advise on vaccinations

The Resources Regulator of NSW has advised mine operators to update and refresh their Covid safety protocols to manage any potential Covid-19 exposures at a mine site, to manage the risk and follow the public health orders.

The Resources Regulator of NSW advises:

  • You will not be able to completely eliminate the risk of workers contracting COVID-19 while carrying out work. However, you must do all that is reasonably practicable to minimise that risk;

    • A risk assessment must be undertaken to assess the reasonably practicable controls; and

    • Closely monitor the NSW Health and Australian Government Covid-19 information.

The Regulator, to date, has not provided guidance to mine operators on the issue of mandatory or voluntary Covid-19 vaccination programs.

What should employers consider before directing employees on Covid-19 vaccinations?

Before issuing any employee directions on this issue, a number of risk factors must be considered, including the potential for discrimination and adverse actions proceedings.

Not every worker may be able to receive the vaccine and the vaccination policy must be flexible to consider an employee's medical advice, risk profile and work environment. Also, privacy laws must be considered to protect the medical records and information of employees.

Further, every instruction to the workforce on vaccines must be consistent with and follow the government health advice at all times. As the health orders and advice are being updated frequently, communication with the workforce should be a continual process to ensure employers are providing up-to-date government health advice.

Before enacting a mandatory or voluntary Covid-19 vaccination program, it is recommended that employers seek legal advice to assess your particular workplace and its level of risk, legal compliance and the current government health advice and public health orders.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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