The East coast of Australia is now in the grip of a tyranny that most of us thought we’d only ever see in Sci-Fi movies (like Gattica). Many people have been issued with a ‘no jab no job’ ultimatum, and face the choice of certainly losing their job, or possibly losing their life.
I’m not in a position to advise people what to do, but what I can potentially do is place a tool in your hands that no one seems to be aware of. In simple terms, your position is a lot stronger than you think it is, and you are not without some leverage.
I don’t know much about contract law – specifically whether a jab mandate as a condition of ongoing employment is legal – but I know a lot about OH&S law, which contains provisions that most employers (and employees) seem unaware of.
Specifically, under the OH&S Act 1984 your employer has sole responsibility to ‘provide a safe work environment’ for you. The point here is that your employer has all the responsibility – not you.
Consider for example a case where a forklift driver was injured because he had an accident and wasn’t wearing a seat-belt. The investigating authority would consider three questions. To prosecute the company they would have to prove all three:
- Did a permanent, debilitating injury occur that will impinge on the ability to hold down employment and live a normal life?
- Did the injury occur at work?
- Could it have been prevented?
Let’s suppose for the sake of the argument that the first two are proven. It would come down to the third question, and this is where the rubber hits the road. You see, under this Act, the employer does not have available to them as a defence the fact that the employee broke the rules. Rather, the statutory authority would be asking questions like these.
- What is it about your safety culture that allowed him to drive around without a seat-belt?
- Had other employees noticed this? Had they raised this with him?
- Was the issue raised at weekly Toolbox meetings?
- Had the employee been spoken to by management, with appropriate reprimands and/or warnings?
In other words, to avoid prosecution, in these circumstances the employer would have to tick a whole lot of boxes, including a paper trail of their interactions with the employee, minutes of Toolbox meetings and so on.
The reason the law is so heavily slanted towards the employer’s responsibilities is that in the past employers often made just a token effort of putting procedures in place that they didn’t bother policing or enforcing. Since the OH&S Act things have changed dramatically and industrial accidents have plummeted as it forces employers to go the extra mile. The fact that they have complete responsibility for the employee’s safety means that they must do a whole lot more than give lip service to safety. They must promote it.
And one of the consequences of this is that unlike other areas of employer/employee interactions (such as wages and benefits), what’s good for the employer is good for the employee, and vice-versa. It’s an Act that has revolutionised the workplace and greatly impacted on industrial accident frequencies and outcomes..
And so it is with Covid. In terms of the Covid mandates, the employer has a choice to make.
- Do not mandate vaccines.
- Mandate vaccines.
In simple terms, the employer must carry out a risk assessment of these two approaches, and choose the one with the lowest risk for the company (and therefore the workers). This is a risk assessment using what’s termed a Systems approach.
A Systems approach works like this: a hazard is identified. The risk to the whole system (not just one part of it) is assessed. Then a risk management strategy is put in place. A risk assessment is then carried out a second time, to assess the risk imposed by the risk management strategy on the whole system. This is to avoid the situation where the cure is worse than the disease.
My comments on the Government’s handling of the risk imposed by Covid19 is here.
The risk resolves into two questions:
- What might happen?
- What are the legal implications?
The question of legal implications will itself resolve into three questions we considered above for the forklift driver:
- Could a permanent, debilitating injury occur that will impinge on my ability to hold down employment and live a normal life?
- Did the injury occur at work?
- Could it have been prevented?
A prosecuting authority will have to prove each of these in the affirmative for the employer to be liable.
Let’s now consider the two options.
If you DON’T mandate vaccines, what might happen?
- Someone might catch Covid19.
Legal implications:
- Could a permanent, debilitating injury occur that will impinge on my ability to hold down employment and live a normal life? This is almost impossible to prove. Most people that get Covid19 are asymptomatic (88% according to CDC). Those that do experience illness are sick for about a week with flu-like symptoms. This falls very far short of a ‘permanent, debilitating injury’. If an older employee caught the virus the effects may be more severe, but given that 99.2% of fatalities occur in people with other co-morbidities (CDC data), it’d be difficult to prove a causal link with Covid19. So this point is not impossible to prove, but certainly very difficult
- Did the injury occur at work? It is of course impossible to prove exactly where you caught the virus.
- Could it have been prevented? This is also impossible to prove. It is widely acknowledged that the vaccines do not prevent you from passing on the virus, and thus it is impossible to prove the preventability of the infection.
If you DO mandate vaccines, what might happen?
- Death. In Australia at least as many people have died from the “vaccines” as those that died with Covid19.
- Myocarditis or pericarditis – permanent and irreversible damage to the heart.
Legal implications:
- Could a permanent, debilitating injury occur that will impinge on my ability to hold down employment and live a normal life? Obviously yes. Death and myocarditis are both permanent and irreversible. Easily proved.
- Did the injury occur at work? Also obviously yes, if it was mandated as a condition of employment. Both these outcomes are listed as possible side effects of the vaccine. Also easily proved.
- Could it have been prevented? Also obviously yes, simply by not taking the vaccine. Also easily proved.
It is then beyond doubt that your employer exposes themself to far greater risk by mandating vaccination than by not mandating it.
Now what you do about this is not clear. I’m not in a position to advise you how to approach it legally (although you could do worse than give them a copy of this article). The point is that it’s in the employer’s interest to understand this, and this is how it should be approached. In a smaller company, for example, where the boss probably doesn’t know anything about the OH&S Act it might be the kind of thing you could discuss over a coffee and suggest he look into it.
In a larger company, hopefully they’ll have an OH&S Manager that is aware of this.
As sure as night follows day, however, although I seem to be the only one to have noticed this so far, it’s only a matter of time before someone has a heart attack after taking one of these vaccines, and legal proceedings ensue.
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