With the recent decision by the Commonwealth Government to make COVID-19 vaccination mandatory for all residential aged care workers, it raisers the issue of the position of childcare employees. Although vaccinations are not compulsory for employees of childcare services, a recent article on the CareforKids.com.au website discussed this interesting issue. The Fair Work Commission has held that employers can make vaccinations, at least for flu, a condition of employment in childcare services, see Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083, and the analysis by Saines Legal).
On the other hand, there are a number of other questions that are raised should a childcare operator fail to vaccinate their staff and consequently a child suffers harm by getting infected:
Would a childcare operator be held liable in negligence by a court in such a case? It has been established that operators owe a common law duty to take reasonable care to avoid children sustaining injuries while in their care at a child care centre (see Brown v Hewson [2015] NSWCA 393; and Children and the Law in Australia, 2nd edition, p. 292).
Would it be a breach of section 167, National Law? That is, the approved provider's obligation to ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury.