Fonterra announced on Wednesday afternoon that its workplace Covid vaccination mandate would be dropped from 1st April. All staff who remain unvaccinated will have to commit to a daily testing programme using Rapid Antigen Tests (RATs), only being allowed to enter Fonterra premises if a negative test is returned. Testing prior to site entry is not required for staff who can produce evidence of being fully vaccinated.
This does not mean that employees who test positive will be treated equally. Fonterra states, “That means vaccinated employees who have approved COVID leave over and above their contractual entitlements will receive their full pay, while unvaccinated employees will receive the Government subsidy rate.”
Further, staff guidelines provided by Fonterra further state that the staff “may need to do this in your own time and at your own cost“, in reference to undertaking daily testing requirements. Testing will not be required if a staff member is not working or in a role that does not require in-person contact as part of their work, such as if the staff member is working from home or with appropriate management approvals for that day.
The Daily Examiner is aware that on Monday, the CEO of Fonterra was presented with a legal class action brought by employees challenging the workplace mandate.
While the NZ High Court overturned the COVID-19 Public Health Responses (Specified Work Vaccinations) Order 2021 on 25 February 2022, the COVID-19 Public Health Response (Vaccinations) Order 2021 remains in force. However that latter Order refers specifically to industries or groups where staff are likely to either be in close contact roles or at border roles, such as managed quarantine facilities, airports, ports, food businesses, gyms, education and health & disability. Thus businesses such as Fonterra, which has a very wide array of roles but most of which either do not require close contact and are not captured by the Vaccinations Order, are not covered by this Order.
“Yardley” High Court Judgement
The High Court judgement notes on page 34 the following, in reference to arguments put forward regarding the effect of vaccination on transmission (emphasis added):
“For example Deputy Commissioner Kura’s evidence was that the advice to Police was that unvaccinated and partially vaccinated Police staff were more likely to contract the virus. But the health advice so provided for the opinion is not in evidence. Similarly the Minister’s paper to Cabinet stated that unvaccinated individuals were more likely to contract and transmit COVID-19 and become more seriously ill and that Police were more likely to have higher levels of sick leave given their operations. Again the advice relied upon is not available to the Court, and I note the other references in the Cabinet documents to health advice that further vaccine mandates to stop the spread of COVID-19 were not needed.
I note there is one concrete example of affected workers referred to in the contemporaneous documents, however. That is a reference to a NZDF diving team whose capacity was interrupted because of COVID-19 infection. But the advice pointed out that the divers were all vaccinated, so that it does not take the position very far.”
It is worth noting that a key reason the High Court set aside the Order was because its purpose was not to prevent the spread of COVID-19 but to ensure continuity of function for police and NZDF, which the Crown failed to show the Order was required to achieve. However, it is clear that there was no evidence presented to show that vaccination mandates had an effect on transmission of COVID-19.
NZ Government Public Service Mandate Update
The NZ Government Public Service Commission released updated guidance to its agencies on vaccination policies and associated dismissals.
Specifically, it states “We therefore recommend that dismissal processes are paused whilst agencies review their health and safety risk assessment and vaccination policy.” This is particularly relevant as the Ministry of Social Development announced plans this week to terminate unvaccinated staff, estimated at over 200.
The guidance further emphasises that “agencies are still advised to exhaust all reasonable alternatives prior to dismissing staff on the basis of a valid vaccine order.” Included in the guidance is for agencies to consider “residual risk with current proactive controls (such as barriers, masks, handwashing, social distancing, and remote working)”.
