On 21 October 2021, the CPSU NSW held the online Forum, Covid 19 and WHS. A podcast HERE has been developed for those who missed it, or would like a refresher.
A number of legal issues were raised in relation to Public Health Orders and how they relate to Universities. The CPSU NSW Legal Team has prepared a briefing note that can be viewed HERE.
Finally, a lot of questions were asked in Chat that could not be answered on the day due to time constraints. Therefore, we developed the Q+A below.
All health or medical related questions should be directed to your treating medical practitioner. We also recommend checking the NSW Health website or Australian Government Department of Health website.
Q: What is the position of unvaccinated staff?
A: This really depends on the work the unvaccinated staff member undertakes. It will differ scenario-to-scenario.
If they work in the university within industries that have a Public Health Order mandating vaccination, it may be the case that the Health Order will require them to be vaccinated to undertake their work. In circumstances where university staff work at a hospital or clinic on a university campus, it is likely they will be required to be vaccinated in line with the Health Care Worker Public Health Order.
Employers have a duty of care to unvaccinated staff and their co-workers and the university will be required to undertake risk assessments to determine what risks and hazards are present. Risk assessments conducted for workers that perform customer-facing work or have close proximity with co-workers that cannot be avoided will likely recommend that workers be vaccinated.
The alternatives such as flexible work, redeployment and other mechanisms should be explored to avoid the termination of the employment relationship. However, whether these options are practical depends on the work that is being done, the inherent requirements of the job, the location of the workplace and any risk assessment. Consultation will be required during this process.
Q: Can you choose to work remotely to minimise risk from COVID-19 exposure at workplace (no masks)?
A: This will depend the work that you do, and your ability to access flexible work options at your university. For example, some of our members who work at regional universities have had to tend to animals and have had limited ability to work from home throughout the pandemic.
Q: Also apart from employees in Health Care, you are not covered by state laws i.e. you have to prove you got COVID-19 from workplace for workers’ compensation. How can this be done apart from going to court?
A: We are unsure as to the full meaning of this question. The workers’ compensation laws for all workers (with the exception of Comcare which mainly covers Commonwealth Public Servants and Seacare covered employers) is in the state jurisdiction. Under section 19B of the Workers Compensation Act 1987 (“WC Act”), if a worker at an educational institution, which includes a university, contracts COVID-19, for the purposes of the WC Act, it is presumed that they caught COVID-19 in the course of their employment.
Most workers’ compensation matters are resolved on making claim, and can be reviewed by the Independent Review Office (“IRO”) and the State Insurance Regulatory Authority (“SIRA”). It would be more difficult to prove that a staff member had contracted COVID-19 in the course of their employment if they have not been at the workplace.
Q: One common point of discussion in Safety Committees is assisting workplaces in monitoring and improving air quality in the workplace. Is there legislated standards regarding this and can the union assist with improving these standards?
A: There is no legislation in relation to a standard for ventilation in respect of COVID-19. Chemicals, dusts and grains (due to explosions of grain silos) often have standards called into the WHS legislation but unfortunately we have to rely on industry recommendations.
The World Health Organisation has information dedicated to this and it is accessible here.
The Australian Institute of Occupational Hygienists has resources concerning this and those are accessible here.
Q: How long does the vaccine last? How do you work out when/if you need a booster? Can you argue that you should be able to work from home if you’re coming up to this time and your vax protection is significantly reduced?
A: This is not something that the PSA is qualified to answer. However, according to the ABC’s Dr Norman Swan, experts do not know the answer yet. It has been proven in countries such as Israel with initial high vaccination rates that the efficacy reduces over time. We recommend that you refer to the many peer-reviewed articles on this topic.
The Federal Government is has announced a roll-out of boosters to priority groups (those that were identified at the beginning of the vaccine roll-out).
Q: People who have been going into work have said they are going for regular testing even though they have no symptoms. Is this a good idea?
A: If they were in a local government area of concern, this was for a time a required course of action. It is not really our place to dictate if someone should or should not go for regular testing. We note that some employers are now introducing Rapid Antigen Tests which are slightly less invasive into your time and reportedly less uncomfortable.
Q: Do the holiday restrictions relate to unvaccinated people or everyone?
A: Under the current Public Health Order, unvaccinated people must not take holidays or undertake recreation outside the local government area they live in.
Q: What do I do if I have been fully vaccinated, tested negative & use mask etc., however what happens if I am directed to go back to campus and then get the COVID-19 virus from a university campus?
A: We hope there are more controls in place than just masks and vaccines. The idea is to reduce the exposure to people, including more outdoor work, plastic screens, electronic screens, more air con etc. However, if you do catch COVID-19 you would be entitled to make a claim for workers’ compensation (see question above concerning presumed liability).
Q: If a university decides to let unvaccinated students into its library could we take the definition has written and raise objections based on university libraries being “information and education facilities” situated within “educational establishments?
A: This will depend on the risk assessment that we can consult and dispute. The click-and-collect model is a suitable mechanism to reduce exposure for unvaccinated, with tiered access for vaccinated (i.e. meeting rooms). Staff can take cease-work action to rectify unsafe work, or refer matters to their Health and Safety Representatives (HSRs) or SafeWork.
Q: What about Human Rights laws about medical consent required from individual?
A: UN Committee on Economic Social and Cultural Rights provides the right to a health system and also the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and medical experimentation.
This right of an individual to non-medical interference and the health system is often a balance between the collective system for community infectious diseases and individual rights. In the Australian context, no-one is being forced to undertake a vaccination without consent.
Q: Dec 1 2021 Employer discretion about risk & working from home for staff
A: The current roadmap from 1 December 2021 states that employers allow staff to work from home at their discretion. We won’t be able to provide further advice on this until the new Public Health Orders are published.
Q: I have an unvaccinated tradesperson who can’t work from home. They have current taken annual leave currently, where do they fit in with this?
A: This will come down to a case-by-case scenario. A risk assessment for the work will need to be undertaken, looking at where the work is undertaken, who you interact with and how you communicate with colleagues/contractors. Controls on work can also be undertaken, such as job transfers, new tech for communications, or changing shift times or work locations. In this situation, that employee should contact their delegate or call the union directly.
From participant: Part of our risk assessment for unvaccinated people (among elimination and isolation controls) will be to redesign work where practicable to support the person working from home or alter to support minimise contact with people. So though there is expected to be very high levels of vax, we have individual risk assessments that can be worked through with individual staff
Q: How can you prove you got COVID-19 at work? (now we are opened up again and going to shops etc.)
A: See earlier questions concerning presumptive liability.
Q: In terms of risk assessment, does the fact that (according to various university websites) the University of Sydney is currently the ONLY library in the Greater Sydney area (including Newcastle and Wollongong) to allow unvaccinated students into their library?
A: It may be something to be considered. However, the issue should be addressed through consultation and a risk assessment of the individual university. If agreement can’t be reached then the HSRs, workers or union can escalate the matter if there are specific risks that are not being managed adequately. This could affect the risk assessment if there are no other controls in place to mitigate the risk of COVID-19.
Q: If university libraries are considered part of educational establishments why are museums situated on university campuses under the informal education facilities rule? Couldn’t we use this to argue that libraries should be treated the same and therefore be unable to allow entry to unvaccinated students?
A: We had a similar dispute with TAFE NSW early in 2020. There is limited capacity to dispute the matter in the Fair Work Commission, but the forum where we got more headway was in relation to the risk assessment process and WHS. Collective WHS Action was utilised and this saw better consultation and controls implemented and several libraries temporarily closed.
Q: How can universities increase risk for medically vulnerable staff?
A: I assume the question is asking about universities decreasing the risk for medically vulnerable staff and that is a good question. Many of the ways that we were undertaking controls at the time of lockdown can be utilised in the post-lockdown period. The hierarchy of controls such as mandatory mask-wearing in workplaces where people with vulnerabilities, working flexibly, working remotely or through technology, better partitioning and ventilation etc. are all methods which can assist in decreasing the risk for the medically vulnerable.
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