Know Your Rights: A NSW One Nation Guide

A few hours ago the Facebook page Mark Latham’s Outsiders posted the following that I have not seen reposted anywhere outside of FB:

“KNOW YOUR RIGHTS

A NSW ONE NATION GUIDE

TO THE RIGHTS OF CITIZENS IN RESISTING VACCINE PASSPORTS AND MANDATORY WORKPLACE VACCINATIONS

(Please see the Disclaimer at the end of this document)

Background

One of the most important principles of our society is that people are in control of their own bodies and their own health care.

Adults need to give informed consent to vaccinations, dealing with Covid or anything else. No government or employer can directly force a medical procedure like this upon its workers and consumers. Legally, consent cannot be valid in an environment of coercion and duress.

Unfortunately in the Covid era, governments are intoxicated with the power to lock people in their homes and control their lives. There has been a rise in authoritarianism across the political spectrum, especially with some politicians and media blowhards yelling at people to get vaccinated.

This campaign has been counter-productive. Australia is not an anti-vaxxer nation. Just look at our high rates of child immunisation. Many people legitimately want more information about the Covid vaccines before making up their minds. They are not anti-vaxxers but vax-laters.

So far (as at August 2021) AstraZeneca has led to seven deaths in Australia, plus over 100 blood clots episodes and 30,000 reports of adverse reactions (official TGA data). People need to talk to their doctor about this and get the best advice in their individual health circumstances.

The doctor-patient relationship in Australia used to be sacred. Now governments and the media are trying to get in the middle of it, hectoring people with health instructions that should only ever come from doctors. This has raised suspicions about the process and if anything, has made people more hesitant.

Realistically, there are few good reasons to trust government. Just look at the disaster of the Sydney lockdown (which started with an unregulated airport limo driver) and the mishandling of the national vaccination roll-out. If governments knew what they were doing, we wouldn’t be in this mess in the first place.

Because the lockdown has failed, there is a push inside the NSW Government to give people no choice but to be vaccinated. Overseas, this is known as a Vaccine Passport, meaning that people can’t work, shop, visit cafes and restaurants or lead any part of a normal life without showing their vaccine records to strangers.

In France, the introduction of Vaccine Passports has created huge protest marches and riots. The police are going through shops and cafes checking people’s papers. Patients have even been turned away from hospitals. The French people are asking: Didn’t we defeat the Nazis to avoid this kind of thing?

Already the NSW Government has introduced a Public Health Order making construction workers in Western Sydney show their vaccination papers just to go to work. The only other way they are allowed onto building sites is if they have had a negative Covid test or have a medical certificate pointing to reasons what they can’t be vaccinated (such as allergies, past bad reactions etc).

Workers, sole traders and subcontractors are having to choose between their jobs and Covid vaccinations.

This may only be the start. A number of businesspeople have called for the compulsory vaccination of all workers and customers in their industry — that is, to make us like France.

One would have thought Australia’s trade unions would be fighting against this loss of basic workers’ rights, that no one should lose control of their health choices, handing them over to bosses. We are at risk of going back to the master/servant relationship of serfdom, where workers either do what their employees say in their personal healthcare or lose their job.

But the unions are weak. The ACTU has said it is happy to hand this power to State Health Orders and live with the consequences.

Many people are confused and scared of what is happening to Australia with mandatory vaccination.

NSW One Nation has taken up this fight on behalf of the people of our State. We are opposed to Vaccine Passports. We are looking at ways of introducing legislation in the NSW upper house to limit the power of government to impose mandatory workplace vaccinations.

We have also produced this document to help people understand their rights.

There are ways of defending yourself against mandatory vaccinations. People have rights under existing laws and they should use them if this suits their personal health circumstances and choices.

If State Health Orders do not apply to a workplace, yet employers want to make Covid vaccinations mandatory, the following rules apply. There are clear limitations on what employers can do.

Please read this document carefully and know your rights:

Work Health and Safety (WHS)

Existing WHS laws, Federal and State, set out clear processes companies need to follow in protecting the safety of their workers. Workplace safety is an important legal obligation. This includes minimising the risks of diseases, including Covid.

It does not follow, however, that mandatory vaccinations are required in every workplace. Nor can workers’ rights be wiped by employers sacking unvaccinated workers on-the-spot. Businesses wanting to impose vaccinations need to slow down and follow established processes of research and consultation under the WHS laws.

They need to consult their staff, talk to the unions (in unionised workplaces) and undertake Covid risk-assessment studies to see what might be necessary. Workers have a right to insist on these processes.

The current advice from Safe Work Australia (which has uniform legislation in place with the six States) reads: “It is unlikely that a requirement for workers to be vaccinated will be reasonably practicable … There is currently insufficient evidence about the impact of Covid-19 vaccines on transmission of the virus which means that a worker could get Covid-19 even if they are vaccinated.”

Safe Work Australia has also said, “Most employers will not need to make vaccinations mandatory to comply with the model WHS laws”. They have emphasised the importance of physical distancing, hygiene and other measures in the workplace. Workplace risk assessments should also consider masks and PPE as an alternative to compulsory vaccinations.

The evidence over the past 18 months is crucial: In NSW, there have been no confirmed Covid transmissions outdoors or on NSW public transport. It would be surprising, therefore, if gardeners, landscapers, tradies, construction workers and also hospitality staff working outdoors (such as picking up glasses in a beer-garden), plus public transport workers, would be deemed appropriate for employer-imposed vaccinations.

A specific provision in the NSW Work Health Safety Act is also relevant. Section 84 states that, “A worker may cease to refuse to carry out work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.”

It would be reasonable to regard a directive from an employer to get vaccinated as part of one’s work. Therefore, if the worker has a medical certificate stating that a Covid vaccination would pose a serious risk to the worker’s physical or mental health, this could be sufficient grounds for ignoring the directive. Safe Work NSW is available to assist employees with further advice.

Industrial Relations Laws

If a worker is sacked unlawfully or unreasonably for not being Covid vaccinated, they can take unfair dismissal action at the Commonwealth’s Fair Work Commission. To clarify the rules governing such cases, on 12 August 2021 the Fair Work Ombudsman (FWO) issued a statement of ‘Workplace Rights and Obligations’.

This is a crucial document that gives some hope for workers’ rights. It rules out an employer free-for-all, where bosses can sack their unvaccinated staff at the drop of a hat. As the statement says, “The coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus.”

The FWO has done a good job in giving workers hope that if they are sacked, an unfair dismissal case may be viable. Here are the main provisions protecting workers:

1. There needs to be a legal basis for forced workplace vaccinations. Employers cannot simply pursue this practice without foundations in the law. This means either a State Public Health order; a specific Covid vaccination clause in an employment agreement; or “It would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis”. Inevitably, some of these cases will be unfair dismissal claims at the Fair Work Commission.

2. “For a direction to be lawful it needs to comply with any employment contract, award or agreement, and any Commonwealth, State or Territory law that applies (for example, an anti-discrimination law).”

3. The reasonableness of an employer directive will be determined by a range of factors: the amount of face-to-face worker/customer contact; whether the business provides an essential service; whether Covid is prevalent in the local community; vaccine availability and medical exemptions for staff.

4. If there has been no Covid in the community for some time, an employer directive for worker vaccination is “less likely to be reasonable”. If Covid is spreading locally and the business needs to stay open during a lockdown period, a vaccination directive is “more likely to be reasonable”.

5. Generally, staff working from home would not be required to be vaccinated, whereas workers in the frontline of Covid control would be — such as health, aged care, quarantine and border control workers.

6. All awards and enterprise agreements have consultation clauses with workers, so there’s an expectation this will cover any attempt by employers to introduce mandatory vaccines. The views of Health and Safety Representatives must be taken into account.

7. “Vaccination isn’t mandatory for all employees and many workplaces won’t be able to require their employees to be vaccinated.” Some workers will have legitimate reasons not to be vaccinated, such as a medical reason.

8. If an employee refuses to be vaccinated, as a first step the employer should ask for their reasons. If the employee has a valid reason (such as a medical certificate), alternatives to vaccination should be explored, such as alternative work arrangements.

9. Whether an employer can take disciplinary action depends on the circumstances and the legality of such action, as set out in awards and other employment agreements. Importantly, “Employers don’t otherwise have the power to suspend employees without pay unless an enterprise or other registered agreement, award or employment contract allows them to. Employees have various protections against being dismissed or treated adversely in their employment. Employers should make sure that they follow a fair process and have a valid reason for termination, or they may breach unfair dismissal or adverse action laws under the Fair Work Act.”

Anti-Discrimination Laws

Commonwealth and State anti-discrimination laws provide important protections for certain people from unfair treatment in the workplace. For instance, if a pregnant woman said she did not want the vaccination for valid medical reasons, an employer would most likely be in breach of these laws if he sacked her.

Another key protection relates to disability. This is broadly defined in discrimination law. For instance, Section 49A(d) of the NSW Act covers a “disability that a person will have in the future”. Therefore, if a worker has a medical certificate stating that the prospect of a Covid vaccination gives them chronic anxiety and depression, it would be unlawful for an employer to take disciplinary action against that employee (given the nature of their future disability).

Workers discriminated against in this fashion should lodge complaints with Anti-Discrimination NSW (which is a cost-free jurisdiction).

Privacy Laws

Vaccination records are highly sensitive private health information. They are protected under the Commonwealth’s 1988 Privacy Act. Thankfully, the Federal Government has decided not to share any vaccination information with NSW Minister Victor Dominello, thwarting his plan for a Vaccine Passport displayed on the Service NSW app.

The Office of the Australian Information Commissioner has issued instructions about the privacy rights of workers with regard to their vaccination records. She has said that employers can only collect this information in “very limited circumstances”. Employees can say No to an employer wanting to permanently record the information, such as on a computer database. No worker should be threatened with the sack for failing to hand over his or her records.

In wanting to examine a vaccination record, employers must advise their staff as to how the information will be handled and what privacy safeguards apply. The Commissioner says that, “An employee’s vaccination status is considered sensitive health information under the Privacy Act and higher privacy protections apply.”

Consumer Protection

The ex-Turnbull MP and wealthy pub baron Craig Laundy has said that all workers and customers will need to be Covid vaccinated to enter one of his 20 hotels. This means that a family wanting to enjoy a meal in a beer-garden will need to have each of its children vaccinated, no matter how young.

The situation with customers is different to that of workers. Businesses can refuse entry to certain customers, but not in a way that breaches discrimination laws. Laundy will probably find that young families will take their patronage elsewhere. If he imposes an age exemption for children, this would likely breach anti-discrimination laws on the basis of age.

There is also the question of privacy laws. As a matter of principle, some fully vaccinated customers will refuse to show their private health records to strangers. Their rights under privacy will probably end up being contested in the courts. Laundy has announced his policy without thinking through the consequences of this complex, unformed area of law.

In other industries, the stakes will be higher. If supermarkets insist on fully vaccinated customers, this will raise the (implied) constitutional right for people to exist and survive in Australia — in this instance, being able to buy food. Court cases will inevitably follow.

One Nation Respects All Vaccination Choices

Respect is the key. NSW One Nation respects the vaccine choices of all people. We don’t yell at anyone in this debate, on either side. We know that people talk to their doctors and study the evidence and make the choice that best suits their health needs.

Within our party, people have made different choices and this is respected under the principles of informed consent. Our Federal Leader, Senator Pauline Hanson, has said publicly that she will remain unvaccinated while our two NSW MPs, Mark Latham and Rod Roberts, have been vaccinated.

Our biggest concern is for what the public is going through. It’s a horrible situation for someone to have to choose between their job and a medical procedure they don’t want.

Similarly, people should not be forced into vaccination simply to access food and the other basics of life. This is not the Australia we want or have ever contemplated: a nation more like China or North Korea in removing the informed consent of its citizens.

One Nation is fighting for government laws and processes that respect all people and their freedoms, whether as citizens, workers or consumers. We will never back down.

Disclaimer: This is not an official government or legal document. It has been prepared by the NSW One Nation research team as a guide to assist people in knowing the type of rights available to them during this complex Covid period. Care has been taken to provide the most reliable information available. But for anyone wanting to take matters further, please consult your lawyer and/or doctor for more detailed professional advice.”