Victorian farmers need to overhaul safety practices:
A WORKPLACE safety lawyer has warned Victorian farmers could be exposed to criminal charges under the new industrial manslaughter laws that came into effect on July 1 2020.
Agribusiness owners concerned about liability for COVID-19 outbreaks if employees refuse vaccination
As Australians line up to receive the first batch of COVID-19 vaccinations this week, agribusiness owners are scrambling for answers and say government agencies have offered little support and guidance about the rollout.
Key points:
- Business owners are worried they could be liable for COVID-19 outbreaks if employees refuse vaccination
- The Victorian OH&S act is ill-equipped to give clear direction to employers on their responsibilities regarding vaccination, a lawyer says
- Fair Work Ombudsman says the majority of employers should assume they cannot force workers to get vaccinated
Employers want to know if they can force their workers to have the vaccine and, if their employees choose not to, can employers guarantee a safe workplace?
Catherine Velisha runs a food picking and packing business, Velisha National Farms in Werribee, near Melbourne and said she is desperate for more industry-specific information about how to talk to staff about their vaccination plans.
“As an employer of these people, what do we do with people who are vaccinated and those who aren’t?” she said.
“What are our rights? Do we run two workforces, are we able to make vaccination compulsory?
“We’re frontline workers, being part of the supply chain, so we have to work and Australians need us to feed them.”
Legal action
Ms Velisha said the lack of clarity is a pressing legal issue, and she is concerned she could be liable if a COVID-19 outbreak occurs and some employees have refused to get the jab.
“Where does the onus lie?” she said.
“Is it going to be a law or legislation that governments make, or will it fall on each employer and the needs of their businesses and people?
“Are we fulfilling our need to make sure that the workforce is as safe from injury as possible, that’s our health and safety obligation as an employer, so where are our rights with that?”
Vegetable farmer Catherine Velisha said employers need more information about how the vaccine will be rolled out.
Corporate lawyer at NS8 Group, Neil Salvador, said the Victorian Occupational Health and Safety Act was ill-equipped to give clear direction to employers on their responsibilities regarding vaccination, and the legislation needed to be reviewed.
“Within the act there are a number of obligations and primarily it is to keep people within the business as safe as possible, as far as what is reasonably practicable,” he said.
“That’s a problematic situation because it is different for every horticulture and agriculture business.
“We need to think about whether mandatory vaccinations might assist with alleviating some of that risk.”
Make vaccines mandatory?
Mr Salvador said individual businesses under the current act are required to undertake a risk assessment and determine if there is a significant risk posed if some staff are not vaccinated.
“Once you do that risk assessment, you might find that you can’t have social distancing and workplace bubbles for a variety of different reasons,” he said.
“That could very well mean vaccinations is the appropriate course of action.”
While an employee’s right to refuse a COVID-19 vaccination is yet to be tested, Mr Salvador said discrimination issues could arise if people are refused shifts based on their personal health choices.
“The heart of the matter here is adverse action — that is, an employer discriminating by not employing someone who is not vaccinated,” he said.
Ms Velisha said although she will get vaccinated, it would be a tough call to demand that of her workforce.
“If I was advising people I’d advise they get vaccinated, but I don’t really know if that’s the right of the employer to do,” she said.
“It’s taking a lot of choice away from people, you never want to do anything wrong by individuals but you do have to protect the whole workforce.”
Can’t force people to have jab
The Fair Work Ombudsman said the overwhelming majority of employers should assume they will not be able to require their employees to be vaccinated against coronavirus.
“The Australian Government’s policy is that receiving a vaccination is voluntary, although it aims to have as many Australians vaccinated as possible,” the Ombudsman said in a statement.
There are however, limited circumstances where an employer may require their employees to be vaccinated but that is dependent on the particular workplace, and each employee’s individual circumstances.
Business owners want to ensure their entire workforce is protected from COVID-19 outbreaks.
The Ombudsman said a range of factors should be considered by an employer including state and territory laws and whether an enterprise agreement or employment contract includes a provision requiring vaccinations.
“Employers should obtain their own legal advice if they are considering making coronavirus vaccinations mandatory in their workplace or if they operate in a coronavirus high-risk environment, for example health care or meat processing.”
Government guidance needed
Mr Salvador said both state and federal governments should be involved in deciding if vaccines should be mandatory in sectors such as food processing and packing, subject to medical advice.
“Business owners are looking for practical advice and guidance with how to deal with these matters,” Mr Salvador said.
“Whilst there is theory that exists within various legislation, it’s the practical guidance that is absolutely required.”
The ABC contacted the Federal and Victorian governments for comment.
A spokesperson for the Federal Department of Health said additional advice on prioritisation of people into the ‘critical’ and ‘high risk’ workers category would be advised as “the program rolls out based on dose availability at that time”.
The penalties include fines of up to $16.5 million and 20 years imprisonment.
RMIT lecturer and lawyer, Neil Salvador, says the state’s agriculture sector needs to overhaul its approach to safety.
Agriculture has the highest fatality rate among its workers of any industry in Australia with 11 deaths per 100,000 workers.
Mr Salvador said the new laws should serve as a wake-up call for the sector, which has flown under the radar for way too long and where attitudes towards compliance have traditionally been lacklustre.
“Currently, the agriculture industry represents three per cent of Australia’s GDP, and is responsible for close to 25pc of workplace deaths in the country,” Mr Salvador said.
“The figures have been appalling for years and point to a cultural problem.
“Over the past five years, Victoria has been averaging 37 workplace fatalities per year. The agriculture industry in Victoria has been averaging more than 12 deaths.
“That’s 37 body corporates, directors, financial managers who could now be criminally prosecuted each year across Victoria.
“If that’s not a warning to be heeded, then I don’t know what it is.”
The Victorian Farmers Federation is on the front foot already though, securing a $3 million dollar “Making our Farms Safer” grant from the Victorian Government to expand its workplace health and safety services.
The initiative aims to improve on-farm health and safety and will allow the VFF to employ two Farm Safety Officers, develop online tools and boost access to information and resources aimed at protecting not only Victorian farmers, but everyone in the farm environment.
VFF president, David Jochinke, said the health and safety of everyone on farms must always be the top priority, with workers, families and farmers all exposed to the dangers present on farms.
“Safety on farms is paramount, because it concerns the wellbeing of our workers, families and ourselves,” Mr Jochinke said.
SAFETY: Agriculture has the highest fatality rate among its workers of any industry in Australia with 11 deaths per 100,000 workers.
“The agricultural sector is one of the most dangerous workplaces in Victoria, not just for farmers, but everyone present on the farm.”
“As a father, there can be no bigger priority in a parent’s life than the health and well-being of your child.
“It’s incredibly tragic that children under the age of 15 make up more than 15 per cent of preventable death and injuries on farms.”
On-ground approval
MANAGING director of Velisha Farms, Catherine Velisha, Werribee South, said the new laws were a blessing in disguise.
Catherine Velisha, the managing director of her family’s third-generation horticulture business Velisha Farms, based in Werribee South, said the new laws were a blessing in disguise.
When I took over this business from my father, I inherited what I would call a fear-based approach to compliance,” she said.
“Compliance was basically seen as hard to understand, a cost burden and another piece of red tape that makes the viability of farming all the more tenuous. To this day, I don’t think that view is uncommon.
“However, engaging with WorkSafe Victoria I have come to change my attitude towards compliance.
“It actually bolsters your business. It reduces risk, increases staff loyalty and it puts your business in a position where you can act as a leader – in your sector and in your community.”
IMPROVE: Velisha Farms managing director, Catherine Velisha, Werribee South, Vic says improving farm safety practices bolsters a business, reduces risk, increases staff loyalty and it puts it in a position to be a leader.
Ms Velisha said she was now using her farms’ knowledge of OH&S practices to establish her business as a role model and mentor in the horticultural sector.
She encouraged other business decision makers to think creatively about how instilling a safe workplace culture could help create opportunities for their business going forward.
“I’m using compliance now to innovate and spread my business across farming and education,” she said.
“We’re registering as an RTO to spread knowledge of safety practices and management in horticulture. This is our way of trying to address those terrible figures.
“However, I think it’s going to take a lot more business owners stepping up on this to create the change in the sector that is actually needed.”
Work being done
VFF chief executive officer, Stephen Sheridan, said the VFF had been lobbying and working with the government to address the farm sector’s higher than average workplace accident rates and commends the initiative.
“The VFF believes that developing and providing an industry led farm safety service is a far more effective way to achieve on-farm practice change”, Mr Sheridan said.
“The VFF is not a regulator but is a farmer-led organisation that understands the real health and safety issues facing farmers, and the need to help provide a means to manage and reduce the inherent health and safety risks, rather than simply focus on compliance.”
“We already provide expert workplace relations services and it is a natural extension to integrate this with on-farm health and safety tools and services.
“The VFF will be employing Farm Safety Officers to work directly with farmers to help identify potential safety issues and introduce best practice safety processes to help safeguard workers, families and farmers on the farm.
“We are also commencing development of an online platform of tools and information to complement our existing workplace relations offer for farmers.
