CWU T&S WEEKLY BULLETIN NO 2021 /
10 October 2021
OPTUS FORCED LEAVE - CONFIDENTIAL REQUEST
Once again we have reports that managers are pressing staff to reduce annual leave by March next year. OPTUS HAS NO RIGHT TO DO THIS. And it appears to breach industrial laws. We can stop this again. Please send us any reports asap - these will be treated as confidential, and we will not need to use your name. If you have been advised verbally or by email that you should reduce leave - please advise us asap.
Optus has joined Telstra by proposing a policy that some staff must be
vaccinated, else action may be taken against them. Our Union, while strongly advising all to get vaccinated, opposes mandatory vaccination. The draft policy states in part:
Optus requires workers performing the roles or job types listed in Appendix 1 (a long list) to be fully vaccinated by 1 December 2021. Workers who perform the roles (or job types) listed in Appendix 1 will not be permitted to perform their duties or provide services to, or on behalf of Optus, unless this requirement is met.
However, Optus understands that not all workers will be able to receive a COVID-19 vaccine due to medical reasons. If that is the case and they are required to be fully vaccinated under this policy, those individuals are required to notify their direct manager (and in the case of Contractors, to notify Optus) as soon as possible and provide evidence of an established medical exemption.
In order to ensure the health and safety of all workers, those with a validated established medical exemption may be subject to the imposition of specific conditions or restrictions relating to their job, workplace access and/or other safety requirements as appropriate (eg. mask wearing and/or testing).
Failure to comply with this policy may result in disciplinary action being taken against an employee. In the case of a Contractor, non-compliance will be addressed pursuant to the applicable terms of their engagement.
12 HOUR SHIFTS - SE CONSTRUCTION
We have are 13 responses and we are awaiting some more responses to our confidential survey and consent. Later this week we will contact those who have responded and commence the dispute process. We need your authority to represent you in this dispute.
We met with Mirait again to discuss the EBA. The previous proposal had been voted down by staff. Mirait has made a better offer around salaries. You are now guaranteed a pay rise of 2.5% up front and a minimum of 1% in the following 3 years. A meeting of members has been arranged.
Here is a bulletin from our Vic T&S Branch:
The CWU supports vaccinations as a means of protecting members against COVID19. If you are concerned about the vaccine, then we encourage you to speak to a trusted medical professional such as your GP.
The CWU does not support mandatory vaccinations. We support a fair process and support members in making an informed choice. We will work with Telstra to seek flexibility and access to leave entitlements for medical advice and for those who are have vaccine hesitancy. We believe that members will make the right decision for themselves and their workmates.
We have received some queries about the legality of mandatory vaccinations. Our legal advice is very similar and supportive of The Fair Work Ombudsman which has recently advised the following:
Employers can direct employees to be vaccinated if the direction is lawful and reasonable. This is fact-dependent and requires a case-by-case assessment
- the nature of each workplace(for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service)
- the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community
- the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant .
- work health and safety obligations .
- each employee's circumstances, including their duties and the risks associated with their work
- whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)
- vaccine availability.
When undertaking this case-by-case assessment, it may also be helpful as a general guide to divide work into 4 broad tiers:
Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).
A workplace may have a mix of employees, with different employees performing work in different tiers, all of which could change over time.
The coronavirus pandemic doesn't automatically make it reasonable for employers to direct employees to be vaccinated against the virus.
- An employer's direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus, or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus
An employer's direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.
For employees performing Tier 3 work:
- where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable
- where community transmission of coronavirus is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown, a direction to employees to receive a vaccination is more likely to be reasonable.'
The Fair Work Ombudsman guidance seems to be broadly consistent with the position adopted by the Fair Work Commission in recent cases involving mandatory influenza vaccinations, such as Barber v Goodstart Learning FWC 2156,Kimber v Sapphire Coast Community Aged Care FWCFB 6015andGlover v Ozcare FWC 2989. While each of those cases involved influenza vaccinations, the trend that has emerged is that requiring an employee to receive an influenza vaccination in higher-risk industries, and being able to take action against an employee who refuses to do so (without sufficient medical evidence) is likely to be considered to be a lawful and reasonable direction that can form a valid basis for terminating employment. (Note: The Kimber v Sapphire Coast Community Aged Care 2021 has since been appealed and the decision to dismiss was upheld by a full bench.)
Subject to the considerations above, the reason for non-compliance, and discrimination law, employers may take disciplinary action. This might include dismissal. The reason for the dismissal must be valid and the dismissal must be procedurally fair.
What happens if an employee suffers adverse side effects as a consequence of mandatory vaccination?
The Federal Government is developing a COVID-19 Vaccine Claims Scheme to reimburse people who suffer a moderate to significant impact following an adverse reaction to an approved COVID-19 vaccine. The scheme will be backdated to February 2021, and will cover the costs of injuries above $5,000 due to a proven moderate to serious adverse reaction to a COVID-19 vaccination. As of the time of writing, the Federal Government is still developing a portal to submit claims and documentation, however people have been able to register an intent to claim since 6 September 2021.
In summary, members' cases will be assessed on a case by case basis and individual circumstances, keeping in mind the reasonableness of the direction.
Authorised by Dan Dwyer Branch Secretary
CWU Telecommunications & Services Branch, Sydney City, NSW.