Law Society President says health is important but so are people’s legal rights

The Fiji Law Society says it may be fair to protect the health of all people in a workplace and to require all workers there to be vaccinated however it may not be fair in other circumstances.

While commenting on the Health and Safety at Work (General Workplace Conditions) (Amendment) Regulations 2021, Fiji Law Society President William Wylie Clarke says it would not be fair if the employees in a workplace like a supermarket are required to be vaccinated, and the same rules do not apply to customers.

Clarke says the regulations prohibit an unvaccinated supermarket worker from entering the premises but does not prevent an unvaccinated customer from doing the same.

He says in such a case, the workers could also be exposed to unvaccinated customers anyway and the regulation will not serve its purpose.

Clarke says in such a case, a court is unlikely to consider this discrimination to be fair.

He says the Fiji Law Society is concerned about the approach and legal implications of the regulations.

Clarke says like many others, the Society appreciates and understands the Government’s concern for workplace safety.

He says they understand and support the need to get to the point where enough people are vaccinated that Fiji can return to a more normal state of affairs but the Law Society is of the view that a different approach is needed as there are better ways to achieve these aims.

The Law Society President says health is important, but so are people’s legal rights.

Clarke says those legal rights ensure we remain a free and democratic society.

He says unfair discrimination is prohibited under the Constitution.

Clarke says in other words, it is possible to discriminate if the discrimination is fair but what is “fair” depends on the particular case.

He says the new regulations rules effectively discriminate against employees on the basis of their personal circumstances or health status in breach of section 26(3)(a) of the Constitution.

Clarke says they also have concerns about the validity of the regulations allowing an employer to dismiss an employee who has not been vaccinated by prescribed dates.

He says this appears to be incompatible with an individual’s right to economic participation under section 32 of the Constitution and worker protections in the Employment Relations Act.

Clarke says there are many other questions which arise, including for employees who work from home (and whose homes may be designated “workplaces”), for young people who are just entering the workforce and may not have previously been vaccinated.

He says it has not been made clear how vaccination status can be proved, or how and how fast medical exemptions will be processed.

The Law Society President says they strongly urge Government to work in a tripartite forum with employers and employee bodies such as unions to design and implement rules which are consistent with the law and are clear.

Clarke says a collaborative approach will prevent resistance and uncertainty.

We have sought comments from the Prime Minister and the Attorney General.

From the 1st of August this year or after that date, any employer or employee must not enter the workplace unless the employer or employee has received at least the first dose of the COVID-19 vaccine according to the Health and Safety at Work (General Workplace Conditions) (Amendment) Regulations 2021 gazetted and signed off by the Minister for Employment, Parveen Bala.

If a worker has not received at least the first dose of the COVID-19 vaccine on or before 15th August 2021; or the second dose of the COVID-19 vaccine before 1st November 2021, this can constitute a basis for dismissal of the worker.

The regulation also states that on or after 1st November 2021, an employer or employee must not enter the workplace unless the employer or employee has received the second dose of the COVID-19 vaccine.

This does not apply to those people less than 18 years of age, those who have a history of severe allergic reaction to any component of the COVID-19 vaccine, as verified by the Permanent Secretary for Health or for any other legitimate medical reason that has been exempted from vaccination by the Permanent Secretary for Health.

An employer that contravenes or fails to comply with this section of the regulation commits an offence and is liable to a fine of upto $1,500.

In the regulation, employer includes, a sole trader, partner, trustee or director of an employer; the board or other governing body of an employer; if the employer does not have a board or other governing body, the Chief Executive Officer of the employer; for a ministry or department, the Permanent Secretary responsible for the Ministry or Department or the head of the Ministry or Department; or the person designated as or performing the functions of the head of the employer, however that designation is expressed.

The employer must not permit a worker to enter the workplace from August 1st this year unless the worker has received at least the first dose of the COVID-19 vaccine and produces vaccination documentation as proof.

On or after 1st November 2021, an employer must not permit a worker to enter the workplace unless the worker has received the second dose of the vaccine and produces vaccination documentation as proof.

An employer that contravenes or fails to comply with this section of the regulation commits an offence and is liable to a fine of upto $10,000.

A worker that contravenes or fails to comply with this regulation commits an offence and is liable to a fine of upto $500.

If an employer has not received at least the first dose of the COVID-19 vaccine on or before 15th August 2021, an inspector must order that the business be temporarily closed.

A business that is closed may resume operations after the employer receives his or her first dose of the COVID-19 vaccine.

If a worker has not received at least the first dose of the COVID-19 vaccine on or before 15th August 2021; or the second dose of the COVID-19 vaccine before 1st November 2021, such omission constitutes a basis for dismissal.

The Minister may extend any of the prescribed periods for vaccination for a specific area if the Permanent Secretary for Health determines that the COVID-19 vaccine will not be available for the area during the prescribed period.