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Royal Life Saving Society - Australia has released guidance following recent announcements by both federal and state governments on the ‘roadmap’ that aims to see Australia free from lockdowns.

With policy makers signalling that this scenario hinges on the levels of COVID-19 vaccination in the population, Royal Life Saving advise that it has sought guidance from Fair Work Australia and Safe Work Australia to clarify the rights and obligations of employers in mandating vaccines both for their staff but also potentially for their customers.

Royal Life Saving advises that questions remain as to what steps to take at a facility level.

For the aquatic industry, the question of what the industry can and will do in relation to mandating COVID-19 vaccinations for staff and/or patrons is a key topic of discussion in industry leadership circles around the country. This discussion is as a result of two factors: i) the importance of vaccination as a means of reducing the likelihood and consequence COVID-19 transmission in aquatic facilities and swim schools, and ii) to reduce industry/activity risk to acceptable levels to remain open. Therefore, considering what the rights and obligations of a vaccine mandate are for aquatic facilities, swim schools and the aquatic industry is prudent.

The WHS ‘primary duty?
A good starting point, in the States and Territories which have adopted the ‘model”’ WHS laws (all but Victoria and Western Australia) is to look at the two limbs to what is described as the 'primary duty' in relation to work health and safety.

• The first limb is that a ‘business or undertaking’ (which includes not-for-profit undertakings) must ensure the health and safety of its workers (which includes employees, contractors and volunteers).
• The second limb is that the business or undertaking must ensure that the health and safety of other people (that is, other than workers – for example, pool users) are not put at risk by the way that work is carried out in the business or undertaking. It is important to understand both limbs when designing a safe system of work - for example, if the pool entry permits staff to be socially distanced, but forces members of the public to crowd together, that may satisfy the first limb but fail the second.

COVID safety as part of an overall WHS system
This means that a well-designed WHS system to guard against COVID-19 is likely to have a number of elements to satisfy both limbs. These will include social distancing (for example, controlling maximum attendance through a booking system) and ensuring effective ventilation in indoor spaces. The COVID system should coordinate with, not cut across, existing safety systems (so that active lifeguards should not generally be distracted from their lifeguard function by being required to enforce social distancing). The need for coordination means that any policy relating to COVID-19 WHS risks should ideally form part of an existing WHS policy, rather than being treated as a separate document raising separate issues.

Vaccination requirements may be part of, but not all of, that safety system – even when vaccination becomes more widespread, no safety system can ever rest on a single pillar.

Can vaccination be made mandatory for employees and pool visitors?
Starting with employees, the answer is complicated by the lack of much clear law on the subject, and by the fact that two of the key legal requirements involved include a test of ‘reasonableness’. What is ‘reasonable’ for a particular employee depends very much upon all the circumstances of the case including, most importantly, the risk that the employee may contract, or transmit, COVID-19.

The first reasonableness requirement arises from general employment law, which requires employees to follow the ‘lawful and reasonable directions’ of their employer. A direction from an employer to be vaccinated is likely to be ‘lawful’, but it may not always be ‘reasonable’, especially if it is presented to the employee in the form of a directive to get the vax, or the sack.

The second reasonableness requirement arises from discrimination law. Where an employer imposes a condition or requirement which applies to everyone, but which has a detrimental impact upon somebody because of an attribute protected by discrimination law (for example, age, disability, and in some states, religious belief) this is described as ‘indirect discrimination’ (as opposed to ‘direct discrimination’, which is where someone is targeted because of their protected attribute). Indirect discrimination is only unlawful if the condition or requirement which is imposed is not reasonable.

Some guidance on reasonableness has been provided by the Fair Work Ombudsman, which classifies employees into four ‘tiers’. Tier 1 employees are those required to interact with people who are likely to have COVID-19, and Tier 4 employees are those whose work requires minimal face-to-face contact. Companies which have publicly announced mandatory vaccination requirements include QANTAS (where, at least once international travel restarts, there may be a number of Tier 1 employees) and SPC (whose food processing employees are likely to have less direct contact with COVID-19 and so be in a lower tier). A mandatory vaccination requirement is much more likely to be reasonable for Tier 1 employees than for Tier 4 employees.

How does this apply in the aquatic industry?
The vast majority of aquatic industry employees, however, will fall somewhere in the middle, and it may be that different employees of the same employer will be in different tiers (and therefore have different reasonableness requirements). The key to finding the right balance is likely to come from consultation with employees. 

Consultation does not mean giving employees a right of veto, and it should not be viewed as a ‘tick a box’ process (‘I sent my employees an email and so therefore I must have consulted’ is not the approach). Rather, consultation is about the genuine exchange of information, and the genuine consideration of the views that have been exchanged. Effective consultation will look different in every workplace, but in every workplace it is likely to be the best tool for resolving questions which are not easily resolved by resort to strict law.

What about visitors?
The questions around vaccination for pool visitors also require consideration of discrimination laws. Discrimination laws do not prevent discrimination against people who have not been vaccinated for that reason only, because vaccination status is not of itself a protected attribute. 

However, if the reason why someone has not been vaccinated arises from a protected attribute (for example, a medical condition which qualifies as a disability, or in most States, a genuinely held religious belief) then a requirement for all visitors to vaccinated may amount to indirect discrimination. However, the need to protect the health and safety of both pool staff, and other pool users, is likely to be a fairly compelling factor in determining that any indirect discrimination is not unreasonable and therefore not unlawful, especially in locations (and during times) where the risk of transmission will be meaningfully reduced by requiring vaccination.

What do we next?
Royal Life Saving welcomes the aquatic industry to a free and open webinar which will contain a presentation and discussion on where to next. 

Event details - Aquatic Industry Webinar: 
COVID-19 vaccinations: workplace rights and obligations for aquatic facilities and swim schools

Webinar Details: 
Wednesday 1st September 2021, 11:00am-12:00pm AEST

Description: 
Royal Life Saving is pleased to facilitate its third Aquatic Industry webinar for 2021-22 and will be joined by practioners, advocates and experts in the field including:
• Angus Macinnis, Director of Dispute Resolution, StevensVuaran Lawyers
• Associate Professor Holly Seale, Program Director, Bachelor of International Public Health (BIPH), University of New South Wales
• and others 

Facilitator:
• RJ Houston, National Manager - Aquatics, Royal Life Saving Australia

Registration for this event is essential.

Click here to register.

Disclaimer: This news story is produced by Royal Life Saving and prepared by StevensVuarans Lawyers who have drafted an opinion piece on the likely effect of a potential vaccine mandate within aquatic facilities, swim schools and the aquatic industry. 

The article is designed and intended to provide general information only in summary form and current at the time of publication. The contents do not constitute legal or professional advice and are not intended to be a substitute for legal or other professional advice and should not be relied upon as such. You should seek your own legal advice or other professional advice in relation to any matter you or your organisation may have. 

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