As the COVID-19 pandemic continues, the Australian Government and employers are faced with the difficult task of implementing strategies in an attempt to effectively manage the impact of the virus. One such strategy that has been the subject of debate particularly over recent months is mandatory vaccinations. This article provides an overview of some of the recent high profile cases on this subject.
Recent case law
Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059
This was a dispute case, meaning it was not relating to dismissal but rather whether the requirement to have employees vaccinated was a lawful and reasonable direction in consideration of the relevant Enterprise Agreement (EA) that applied to the employees. The case was bought by the Union and Mr Howard (Applicants) challenging Mt Arthur Coal Pty Ltd’s (Mt Arthur) direction that all workers at the Mt Arthur mine become vaccinated against COVID-19 as a condition of entry to the mine site (Requirement).
It was found that the consultation provisions as outlined in the relevant EA and under the Work Health and Safety Act 2011 (NSW) (WHS Act) were triggered by the decision to introduce the Requirement. While it was found consultation under the EA had occurred, under the WHS Act, the consultation requirements were not met due to the substantive consultation occurring after announcing the Requirement rather than during the decision making process.
Other key findings of the Full Bench of the FWC include that:
- in the absence of public health orders or express terms in the EA or employment contracts, the lawful basis for issuing the Requirement was implied due to the obligation for employees to follow lawful and reasonable directions of their employer;
- on the face of it, the Requirement is lawful on the basis that the object and purpose of it is to protect the health and safety of employees and people at the mine, it falls within the scope of employment and there is nothing illegal or unlawful about the direction to be vaccinated; and
- reasonableness is to be determined having regard to all of the circumstances and that, in this case, the Requirement was not reasonable, with Mt Arthur’s failure to consult in accordance with the WHS Act being the determinative consideration.
The FWC stated that had there been a meaningful consultation process in compliance with the WHS Act, there would have been a strong case for the reasonableness of the Requirement and further concluded that it remains open to Mt Arthur to address the consultation deficiencies by consulting with its employees as to whether the Site Access Requirement should be imposed at the Mine moving forwards.
Larter v Hazzard (No 2) [2021] NSWSC 1451
This case involved a New South Wales paramedic, Mr Larter, who challenged the validity of two COVID-19 related public health orders (PHOs) on the ground of unreasonableness, in that it was not open to the Minister to make the PHOs, having regard to the risk to public health posed by COVID-19.
The effect of the PHOs, if valid, was that, unless Mr Larter had received a first and second dose of a COVID-19 vaccine by certain dates, he would be prohibited from working as a paramedic in New South Wales. Mr Larter objected to the vaccine on the basis of being Catholic, alleging the vaccines were developed in connection with stem cell research and/or cells sourced from aborted foetus’.
Some of the Court’s relevant findings were that:
- it was not for the Court to stand in the shoes of the Minister and decide what PHO could or should have been made, only to determine whether the Minister was authorised to make the PHOs in the terms in which they were made. The Court was satisfied that it was reasonably open to the Minister to make the PHOs;
- the PHOs did not provide for compulsory medical treatment by way of vaccination (as also found in Kassam v Hazzard; Henry Hazzard [2021] NSWSC 1320);
- the PHOs did not infringe the International Covenant on Civil and Political Rights with respect to freedom of religion, because there is an exception that rights may be limited to protect public health; and
- Larter had genuinely held religious beliefs, but that departed from public statements made by the Catholic Church, and therefore made him more a ‘conscientious objector’.
The Court dismissed Larter’s arguments and reserved costs.
Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356
This case involved various applications concerning the lawfulness of a direction given by the Queensland Police Commissioner to the staff of the Queensland Police Service (QPS) directing them to be vaccinated against COVID-19.
The Queensland Industrial Relations Commission (QIRC) found that:
- the Police Service Administration Act (Qld) empowered the Queensland Police Commissioner to give the direction;
- a direction given to an employee does not become a term or condition of employment but an employee must otherwise obey it if is lawful and reasonable and not contrary to the contract, Award or Agreement; and
- the Work Health and Safety Act 2011 (Qld) (WHS Act) requires consultation before implementing a mandatory vaccination directive. The QPS consulted with 5 unions with collective total coverage of the workforce and therefore satisfied the WHS Act consultation obligations.
Upcoming decisions and cases
Queensland Police and Queensland Health
A group of police officers and health workers are seeking to challenge directions requiring them to be vaccinated by certain dates on the basis that it:
- impairs, affects or removes their fundamental common law rights and statutory rights and obligations; and
- breaches the Human Rights Act 2019 (Qld).
The matter will be heard in the Queensland Supreme Court on 22 December 2021.
Key takeaways
Recent case law, including the high profile cases set out in this article, supports the imposition of compulsory COVID-19 vaccination policies in certain circumstances and emphasises the requirement to first consult with the workforce where model WHS laws apply. Consultation is an imperative step in implementing any COVID-19 vaccination policy or direction for employees to be vaccinated. As is often the case, whether an employer is recommended to introduce a mandatory vaccination policy for its workforce or a portion of its workforce will very much depend on the circumstances of each case.
If you wish to obtain more advice on whether a mandatory COVID-19 vaccination policy is recommended for your workforce, or for assistance in preparing a vaccination policy, please get in touch with a member of the Brisbane Workplace Relations & Safety team.
This article was written by Heinz Lepahe, Partner, Michelle Chadburn, Senior Associate, Anna Stubbersfield, Solicitor, and Kat Bennett, Solicitor.