COVID Vaccination updates

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New Emergency Management Act Direction mandates COVID vaccinations for health care settings

The ANMF (SA Branch) Responses to frequently asked questions relating to the new Emergency Management Act Direction mandating COVID vaccinations for health care settings.

Last updated 12 October 2021.

On 7 October 2021 the Emergency Management (Healthcare Setting Workers Vaccination) (COVID-19) Direction 2021 (the Direction) came into effect. The Direction can be found here.

This Direction states that a person must not engage in work or perform duties in a health care setting from 1 November 2021 unless they have received at least one dose of a TGA-approved COVID-19 vaccine and has received the second dose or has evidence of a booking within a month of the first dose.

A ‘healthcare setting’ is defined as the following:
(a)    A public hospital; or
(b)    A private hospital; or
(c)    An ambulance service (including an ambulance service for transporting patients).

An exemption applies to the Direction provided a legally qualified medical practitioner certifies that the person has a medical exemption in accordance with ATAGI guidelines that has been endorsed by the Chief Public Health Officer or her delegate.

The Australian Nursing and Midwifery Federation (SA Branch) (ANMF (SA Branch)) is continually meeting with SA Health and other providers to discuss the impact that this Direction may have on our members and to ensure that where possible our members can be supported at this time. All members will be provided with relevant information as soon as we receive it. Updates can also be found here.

The ANMF (SA Branch) Position on the COVID-19 Vaccination

The ANMF’s full position statement on the COVID-19 Vaccination can be found here.

To summarise, the ANMF (SA Branch) supports vaccination and strongly encourages all health care workers to be vaccinated if there is no medical contraindication. Vaccination of nurses, midwives, care-workers, and nursing and midwifery students who are employed or undertaking placements assists in preventing the spread of COVID-19 to vulnerable patients/residents in health and aged care settings.

Vaccination of health care workers also helps protect nurses, midwives, students and care-workers from contracting COVID-19 at work. Crucially, people who are fully vaccinated have a much lower risk of becoming infected and if they do contract COVID-19, they have a much lower risk of infecting others, serious illness, hospitalisation and death.

The ANMF (SA Branch) is aware that due to the emergence of COVID-19 and subsequent prioritised development of COVID-19 vaccines, some members may have personal and health concerns about the vaccines. The ANMFSA has confidence in the Therapeutic Goods Administration (TGA) and the Australian Technical Advisory Group on Immunisation (ATAGI) and we rely on their guidance about the safety of COVID-19 vaccines. The ANMFSA also encourages members to access the COVID-19 Vaccination resources on our website here.

 

Please note the advice provided on these pages is intended as general advice. If you have specific concerns, please contact the Duty Officer to discuss your particular circumstances by email [email protected]

A. The ANMF (SA Branch) is aware that some members may decide for their own reasons that they will not receive a COVID-19 vaccination and as a result may seek the assistance of the ANMF (SA Branch) to challenge the Direction.

To date, the ANMF (SA Branch) is not aware of any legal avenue that would bring into question the lawfulness of the Direction.

It is also important to note that the ANMF (SA Branch) represents over 22,000 members, and the overwhelming majority of our members are supportive of the COVID-19 vaccination. Given the purpose of the ANMF (SA Branch) is to advance the interests of our members and the health and related systems of the profession; to challenge the Direction would be at odds with this purpose and the interests of the vast majority of our members.

Mandatory vaccination of workers in certain workplaces is not a new feature of the working and legal landscape. Many health and aged care settings, for example, have had mandatory requirements for workers to demonstrate vaccination against various illnesses or diseases. Some of these are legal requirements. Others are requirements established by the employer themselves on the premise that they are in the best interests and protective of the worker and those in their care.

A. To date, the ANMF (SA Branch) is not aware of any legal avenue that would question the lawfulness of the Direction.

In Australia, public health legislation is primarily the responsibility of states and territories. Mandatory vaccination programs already exist in most parts of Australia for a range of vaccines for preventable diseases and apply to workers who are determined by public health authorities to be at particular risk of contracting and/or spreading a disease. These are generally, but not always, implemented using Public Health Orders. The Emergency Management (Healthcare Setting Workers Vaccination) (COVID-19) Direction 2021 is a Public Health Order.

Whilst the High Court has recognised the right to political expression, which may involve expressing views about medical aspects of vaccination (including inaccurate views), state level human rights instruments, where they exist, and Commonwealth constitutional provisions are unlikely to invalidate a policy, regulation or public health order mandating compulsory vaccination for high-risk workers.

In the context of considering personal liberties/freedoms, the Federal Court has found that, at least in respect of the health and safety laws applicable to the coal mining industry in Qld, that the fundamental common law right to personal liberty (in this case, the right to refuse a medical examination) can be validly curtailed by health and safety laws even though there was no specific provision providing for such examinations to occur.

A. If a member is dismissed for refusing or being unable to be vaccinated, contrary to a legal requirement or direction of their employer, then as is the case with any termination, an assessment would need to be made by the ANMF (SA Branch) as to whether there is a sound basis to proceed with, for example, an unfair dismissal application.

Any application for unfair dismissal would need to be assessed against the legislative criteria to determine if a dismissal was harsh, unjust, or unreasonable. This will turn on the facts of the individual case, actions by the employer and worker during the process, as well as what precedents may exist from previous decisions of the Fair Work Commission (FWC) and the South Australian Employment Tribunal (SAET).

When assessing an individual’s workplace rights, along with what remedies may exist if trouble is encountered, it will inevitably turn on the specific circumstances, facts, and laws that apply to the dispute or workplace situation.

However, it is important to note that a number of recent Fair Work Commission matters that have considered the question of dismissal for refusing vaccination have pointed to at least a preliminary view that these dismissals are unlikely to be found to be unfair, unless vaccination refusal is for a valid medical reason.


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