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EXCLUSIVE: Fair Work Ombudsman leaves voluntary workers in the cold over jabs

5 September 2021

2:36 PM

5 September 2021

2:36 PM

At a time when Australians are facing the prospect of losing work and opportunities based on their vaccination status, you would expect a body such as the Fair Work Ombudsman to stand up for employees, both paid and voluntary, to ensure their rights are protected. But if the conversation I had with Fair Work is anything to go by, it seems voluntary workers are being left to their own devices, with Fair Work making the startling admission that voluntary workers have no right to seek legal advice on these matters through the Fair Work Ombudsman. Allow me to explain the situation. 

Last week, I received an email from the regional coordinator of New South Wales Special Religious Education, also known as scripture teaching, with information from the Special Religious Education and Special Education in Ethics Officer, Josh Chenery, detailing the parameters around the return to scripture teaching in the State schools. Aside from general information about when we might expect to return to this work, which is voluntary and therefore unpaid, the following was stated: 

All NSW public school and preschool staff will be required to be fully vaccinated by 8 November 2021. Staff includes department employees, contractors, third party providers, volunteers or university/tertiary students undertaking practical placements on school sites.

This means that all SRE/SEE personnel once we return to Level 2, and all Voluntary Student Activities of a Religious Nature in Schools (VSA) personnel once we return to Level 1, will be required to show evidence of vaccination status before they can commence work on a school site.

The short of the long: Volunteers like myself are being required to have the vaccine if we wish to continue engaging in the work that we do. If I want to continue to teach scripture for half an hour each week, as I have done for close to three years, I have to take a vaccine of which I do not wish to take after coming to my own informed decision on the matter. In turn, students will be denied access to scripture lessons, given we are already stretched for SREs enough as it is. 

In response to this, I emailed my regional coordinator, voicing my concerns on the matter and clarifying whether or not I will be denied voluntary work as an SRE if I choose not to take the vaccine. I received the following response: 

This is a requirement of the DoE and it aims to keep school community safe. All SRE providers must comply with school requirements, it is a condition of entry.

This response only deepened my concerns on the matter, so I engaged Fair Work in an attempt to seek further clarification, and seek free legal advice, something they are legally obligated to provide to workers. In order to be eligible for their Workplace Legal Advice Program, one must meet the following requirements: 

  • Not be represented by a lawyer or paid agent
  • Be covered by the Fair Work System
  • Be able to provide your employer’s Australian Business Number (ABN)
  • Agree to the terms and conditions

As a voluntary worker with my church and under the Confraternity of Christian Doctrine, both of which have an ABN, who is covered by the Fair Work System and has no legal representation whatsoever, it stood to reason that I would be eligible for this program to obtain free legal advice through the Fair Work Ombudsman from the expert lawyers they engage.  

However, upon speaking with a representative from the FWO, I was told that, because I was a voluntary worker, I was “not eligible” for the program. After explaining to the representative that I had to undergo training and gain the appropriate accreditation in order to undertake this voluntary work, I was again told that I was “not eligible”. I then spoke with the representative’s superior, who told me the same thing. The FWO continued to be highly evasive around this subject.  

Pursuing the matter further, I brought up the relevant Acts and legislation that they are supposed to adhere to, namely the Fair Work Act 2009, the Privacy Act 1988, and the Anti-Discrimination Act 1977. As an extension of the Fair Work Act 2009, Fair Work is also required to recognize Volunteering Australia’s Volunteer Rights and Volunteer Checklist, which lists the rights of volunteers in Australia. It is to some degree surprising that Fair Work, who are obligated to protect workers, both paid and unpaid, did not even consider discussing these Acts with someone facing the loss of voluntary work merely because the individual is a volunteer and not a paid employee. 

When I asked the superior at the FWO if they were telling me that voluntary workers were being denied access to legal advice through the FWO, they became more evasive, deferring to reading out what was written on their website. I then asked the following question: 

“Is it your position that volunteers have no right to seek legal advice through the Fair Work Ombudsman?” 

To which the superior responded: 

“That is correct.”  

The Fair Work Ombudsman has now made their position on voluntary workers very clear. They do not believe we have the right to seek legal advice through the very body that is supposed to protect us. Voluntary work is required to be free from discrimination. Under the Fair Work Act: 

An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

The Privacy Act also provides protection of the personal health information of Australian citizens, whereby an employer is prevented from asking about an individual’s vaccination status. However, the problem that has arisen since the enactment of public health orders, which are only valid so long as a state of emergency persists, is that these orders override the Privacy Act, without any consultation or debate whatsoever.

This Act is supposed to be a top tier Act safe from interference. Yet the public health orders are utilizing the emergency parameters in order to allow them to override any Australian law without objection. Before COVID-19, it was not lawful for employers to request an employee’s vaccination status. Special exemptions had been made for healthcare workers, and if exemptions were made, it infers that requesting such personal information was prohibited. 

The Office of the Australian Information Commissioner has stated that an employer must seek consent to collect information pertaining to an employee’s vaccination status, whereby consent “must be freely given and constitute valid consent” and “your employer cannot pressure or intimidate you to provide information about your vaccination status.” It would thereby be within your rights to refuse to disclose your vaccination status to an employer, and they could not demand you do so by threatening to withhold your job from you. But this was conveniently updated post-Covid-19 to include the following paragraph: 

In some limited circumstances your employer may be able you to require you to disclose information about your vaccination status without consent if collection of this information is required or authorised by an Australian law. This includes any Act of the Commonwealth, of a state or territory, or regulations or any other instrument made under such an Act, including public health orders or directions.

Again, the public health orders, which rely upon emergency orders, are given the ability to override practically any law, any Act, to create a type of rule by decree where your ability to consent is consigned to the political dustbin where your rights have been discarded to degrade into nothingness. Is it any wonder politicians keep extending the States of Emergency just as they’re about to expire? 

If Fair Work truly cared about their obligation to workers in this nation, they should have taken a stance protesting to protect workers’ rights from government edict. Instead, they chose to essentially formalize the abuse of power. Now, they have left voluntary workers in the dark, and refuse to come to their aid when they are facing the prospect of losing their positions.

Vulnerable individuals are being abandoned by the very people meant to protect them. For people like me who undertake such voluntary work as a means of maintaining a steady routine for the purpose of keeping their mental health intact, this has significant ramifications. Instead of protecting us, Fair Work have chosen to throw us right back into the deep end, where we must flail about in an attempt to save ourselves. They do not show any sense of care for our rights, and, in taking this position, have forgone their duty to the Australian worker. 

Joel Agius is an independent writer. If you would like to read more of his work, you can do so at JJ’s Outlook. 

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