“Too weak a position”: Scott Morrison is facing more vaccine mandate issues from employers

Scott Morrison’s strategy for dealing with the employer vaccine mandate issue — leave business in a state of uncertainty so he doesn’t alienate religious zealots and extremists on his own side — is going to keep coming under pressure.

So far the focus has been on whether employers can require employees to be vaccinated, with federal bodies declining to provide anything beyond the vaguest of guidance. Indeed it’s not even clear if an employer can ask if an employee has been vaccinated.

Last week the Fair Work Ombudsman finally released some slightly clearer advice, giving some guidance on whether an employer could lawfully require an employee to be vaccinated. But there remains “a range of factors” that employers have to consider, rather than clear guidelines about who can and who can’t mandate vaccinations. Industrial lawyers will have great fun exploring their implications.

Even our colleagues in the mainstream media have worked out that Scott Morrison is wedged on the issue, to the detriment of employment and investment — and any chances of a recovery from current lockdowns. Morrison demonstrably shifted his position to opposition last weekend after hard-right elements in his home division arced up against New South Wales Premier Gladys Berejiklian’s tradie vaccine mandate.

But the issues will soon go beyond whether employers can lawfully require staff to be vaccinated. The next issue will be anti-discrimination law: can employers require job applicants to provide details of vaccination status (including medical or religious exemptions), and then decline to employ them on the basis they’re not vaccinated without a legitimate reason?

Polling indicates there’s a hard core of about 10% of the population who are vaccine refuseniks. Whether this stolid refusal remains once life starts becoming more difficult for the unvaccinated remains to be seen, but you can bet some diehards will be itching to take to court any employer who refuses to hire an unvaccinated person. And the issue is a live one — not merely for business but for the country’s biggest employer, governments. They face the issue not merely among public servants but any public-interacting government employee, such as teachers, police, local government workers and emergency workers.

Then there’s the real “vaccine passport” issue, where businesses start refusing to serve the unvaccinated out of concern that they pose a threat to their staff and other customers. Businesses should be able to argue that they can’t properly minimise the risk to their staff unless they can exclude the unvaccinated from the physical presence of those staff, but current industrial relations and anti-discrimination law doesn’t provide any sort of reliable guide.

Morrison would prefer all of these were dealt with via the states and public health orders, but they don’t appear any keener than the federal government to provide certainty.

From one perspective, Morrison is wedged. But from another he’s being held hostage by a fringe group of culture warriors, anti-vaxxers, religious extremists and conspiracy theorists who occupy serious real estate within the Liberal and National parties and the LNP. If he was in a stronger political and parliamentary position, he might be able to stare them down and stand up for the rights of the rest of us to lead relatively normal lives. But he’s in too weak a position to do anything other than pander to them.

This article was first published by Crikey.