SA clarifies employers' duties after emergency management declaration ends

Find out what happens to COVID-19 mandatory vaccinations in workplaces

SA clarifies employers' duties after emergency management declaration ends

The South Australian government ended its emergency management declaration on May 28, but what are the consequences for employers and their pandemic-related responses?

The declaration was put in place on 22 March 2020. It enabled the State Coordinator, Police Commissioner Grant Stevens, to issue directions relating to the pandemic to mitigate transmission risks. But for workplaces, its end means the mandated COVID-19 vaccinations are now based on individual employer policies rather than businesses relying on public health rules.

As to the nature of policies that employers could put in place, the Chamber of Commerce and Industry South Australia (CCISA) reminded businesses that courts have made it clear that a mandatory vaccination policy may be deemed lawful and reasonable “only when a correct industrial implementation process is followed, and said policy complies with all applicable legislation,” including Work Health and Safety, Fair Work, and anti-discrimination laws.

Meanwhile, The Law Society of South Australia cautioned businesses that the end of the State of Emergency and its protocols “may lead more employees to challenge workplace policies that they believe unfairly intrude upon their personal freedoms.”

However, it also noted that the change “may also lead to workers being aggrieved about not being sufficiently protected from COVID-19 in the workplace, particularly if they have medical conditions that may make them more susceptible to its worse effects.”

The Law Society further advised employers that it still has a legal obligation “to provide a safe workplace and mitigate risks to health and safety.”

“Ultimately, from an industrial and work health and safety perspective, consultation with staff is a critical step when considering implementing policies to mandate vaccines or to wind back these policies,” the CCISA said.

“The Work Health and Safety Act requires employers to consult with workers who are, or are likely to be, directly affected by a matter relating to work health and safety. The maximum penalty for a proven failure to consult with affected workers is $20,000 for an individual and $100,000 for a body corporate,” it added.

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