Brett O'Riley, CEO of the EMA

The big Covid question now is whether the Government will extend yesterday’s announcement of a vaccination mandate for healthcare workers, schools and early childhood centres to business.

Businesses are caught in a legal tangle if they try to enforce “no jab no job” policies.

Up until yesterday, business leaders were convinced the Government would not move on “no jab no job”, in part because it is opposed by the Combined Trade Unions.

As an alternative, business was looking to require mandatory inspection of vaccine certificates before allowing entry into a workplace.

But the preferred option has always been mandatory vaccinations.

And the move yesterday has raised hopes that, finally, the Government might find a way for business to avoid the Privacy Act, the Bill of Rights and the Human Rights Act and be able to implement “no jab, no job.”

“For over 12 months, we’ve been asking for clear guidelines,” Brett O’Riley, CEO of the Northern Employers and Manufacturers Association (EMA), told POLITIK yesterday.

There is little doubt that the private business sector is becoming frustrated more generally with the Government’s Covid response.

There was another example yesterday when Rako Science Limited, which has been unsuccessfully trying to persuade the Ministry of Health to sign up to its Covid saliva testing service, accused the Ministry of effectively trying to nationalise its testing laboratories through compulsory requisition.

But the immediate issue facing most businesses is whether they will be allowed to keep the unvaccinated out of their workplaces.


“The ultimate question has to be in the time of a pandemic or endemic how do you keep the workplace safe?” said O’Riley

“And when we have health and safety legislation, which is very onerous and the if you get health and safety outcomes wrong are pretty draconian then it’s only fair that businesses want to keep their workers safe.

“I think it’s a high priority.

“It’s something we’ve talked to ministers and to agencies about as recently as is the tail end of last week.

“We’re told that guidelines are coming.

“We’re told that it’s being worked on.

“We’re told that the government is working on what’s been done in other countries.”

But the Prime Minister hardly sounded encouraging yesterday when she set out where vaccination mandates mighty apply.

“We’re making very clear decisions on where individuals are interacting with vulnerable New Zealanders, our young children, school settings and also health care,” she said.

“I think for New Zealanders, that will make good sense.

“In other high-risk settings like, for instance, large scale events or potentially hospitality, that’s where we’re looking to use things like vaccine certificates as a way to ensure that only vaccinated people are engaging with one another.

“And that’s a big piece of work we’re doing at the moment.”

But then she appeared to open the door slightly.

She was asked if public servants going to work had a right to know whether people they worked with were double vaccinated.

“Keeping in mind that individual workplaces will also be undertaking their own health and safety assessment of the role of vaccines in those workplaces,” she said.

“What we are doing is looking at the areas where we have a direct responsibility for those workforces; health and education is a very clear area where those are individuals dealing with vulnerable New Zealanders.”

O’Riley said employers were also looking at how they dealt with visitors to their workplaces.

“What questions are we going to ask of people that come onto the site as to whether they have been vaccinated or not?” he said.

“And the direction from the Government has made it so problematic that employers are just looking at all sorts of solutions.

“You add in testing, whether it’s rapid antigen testing, which has now finally being contemplated; Saliva testing, which we’ve been pushing for over 12 months; those are another way of ensuring that workplaces can be safe.”

But though business has been pushing for saliva testing, so far, only one supplier, the APHG company, has been approved to supply it, and so far, POLITIK understands its rollout has been limited.

Another company, Rako, has mounted a high profile lobbying and media campaign to get its saliva test accepted by the Ministry of Health. But it has been unsuccessful.

However, the COVID-19 Public Health Response Amendment Bill, which is now before the Health Committee, includes a  range of measures to clarify the Government’s powers to manage the Covid outbreak also includes a provision allowing the Government to requisition testing services’ consumables.

A Cabinet paper released by the Ministry of Health says that the Minister (Chris Hipkins) has approved provisions in the Bill requiring labs doing COVID-19 testing to do so for the national public health response; and “requisitioning testing consumables held by laboratories for reallocation to the national public health response.

“An appropriate compensation and disputes appeal process is provided for this (modelled after similar provisions in the Health Act 1956).

“Officials will examine the arrangements for disputes about compensation for requisitions in light of submissions received during Select Committee.”

However, the Minister says in the paper that he does not plan to actually use the provision at the moment.

“I do not propose that any COVID-19 Order be drafted to implement these provisions now, but this will provide a valuable tool in case there is a need in the future,” he says.

“It is important to note that these provisions are not anticipated to be needed but provide a mechanism to help ensure that New Zealand’s testing capacity is not overwhelmed in any significant outbreak.”

This has met with an angry reception from Rako director Leon Grice.

 “We have no public contracts.,” he says in a submission to the Health Committee.

“Our testing operations protect workforces in hospitals, elective surgery patients, cancer patients, rest homes, a respiratory equipment manufacturer, food processors, electricity generation and supply, airlines and the film industry.

“We are directly threatened by this Bill, which gives the state powers to requisition our services and supplies by compulsory order.”

Among Rako’s clients are Air New Zealand, Genesis Energy and Auckland Airport, all heavy hitters in the Auckland business community.

The Government’s relationship with business has been good so far through the Covid outbreak.

But heavy-handedness and a failure to understand the practicalities of keeping workplaces safe could endanger that.