By Laura Sowden, Partner, Anna Ly, Associate and Theresa Au, Paralegal

Do employers still need vaccination mandates?

Yes these remain important.

COVID-19 vaccination is not compulsory for all Australian citizens and residents however, the community has been strongly advised by government health officials to vaccinate. For certain industries, the government has required mandatory vaccination of workers through public health orders or mandates.

Employers within these industries are obligated to comply meaning that they have strong basis for requiring proof of vaccination from employees. Businesses should conduct risk assessments to determine whether compulsory vaccination is appropriate. For many industries a vaccine mandate, particularly as boosters develop and are implemented remains highly relevant.

What challenges have there been?

There have been many, but generally not successful.

In a South Australian matter, the Industrial Relations Court found against an Applicant’s claim that her employer, the State government varied the terms of her employment unlawfully. The Applicant failed to comply with the vaccination cut off dates required by the Royal Adelaide Hospital. The Applicant progressed her claim to the SA Employment Tribunal, asserting that her employment contract did not allow her to be furloughed / stood down on leave without pay. The Employer argued that it was acting in accordance with the Emergency Management Act 2004 (SA) (the Act). The Tribunal found in favour of the Employer.

Relevantly, the SA Supreme Court has been dealing with a challenge against the State Police Commissioner’s power to require mandatory vaccination for health care workers under the Act.[1]

The Plaintiffs are seeking to rule the emergency declarations process and compulsory vaccination directions unlawful and are also asserting that the State Police Commissioner:

1. was required to consider other methods to prevent transmission and failed to do so;
2. that he relied on outdated science and that COVID-19 vaccines do not affect the spread of the virus.

The Plaintiffs also argue that the Act cannot be used to declare an emergency of any longer than 30 days without the matter being examined by both houses of the SA Parliament and that even if the extended emergency is lawful, the Police Commissioner is not empowered to make laws in a similar way to an Act of Parliament. We await a decision.

In NSW, the position is that an individual’s personal views or conscience does not relieve them from compliance with public health orders.[2] It was considered that public health orders were reasonable given “the risks posed by the virus, its transmissibility, the relative inefficacy of the vaccine to protect vulnerable persons and the integrated nature of NSW Health”.[3]

How are vaccination mandates implemented?

Through risk assessments and meaningful consultation.

There are consultation requirements set out in Modern Awards and the Work Health and Safety laws. Where there is a major workplace change, employers are required to consult with their employees and provide ample notice prior to the change coming into effect. This enables meaningful discussion should the change impact either or both parties.

In a Victorian matter before the Fair Work Commission (FWC), Regal (trading as Bulla Dairy Foods) (Bulla) was subject to a public health direction requiring its staff to have received their first and second vaccinations by specified dates (or a booking to do so). The Applicant argued that he had major health concerns and provided a medical certificate from a general practitioner (GP) in support of the same. This was rejected on the basis that it did not evidence a recognised medical contraindication, and the certifying GP had been earlier suspended from practising medicine. Bulla provided the Applicant with the opportunity to see another independent medical practitioner, he did not do so. The FWC concluded that Bulla had a valid reason for the dismissal and ultimately handled the situation with empathy and care such that it was not unfair.

In the case of Mt Arthur Coal,[4] the FWC determined BHP employees were not given a reasonable opportunity to express their views, to raise work health and/or safety issues or to contribute to the decision-making process for mandatory vaccinations. Further, little information was provided about the risk-assessment undertaken and unions, health and safety representatives were not involved in consultation in any meaningful way. The FWC found that while the vaccine mandate was a lawful direction however it was not reasonable because Mt Arthur had not satisfied its consultation obligations under the WHS Act.

Do we need to change current mandates?

Yes be mindful of boosters, keep reviewing and updating policies.

Employers must remain alert to any changes posed by the government and law that may impact your industry regarding COVID-19 vaccination. This is to ensure company mandates are correct and up to date, especially considering the ever-changing nature of COVID-19 which creates a level of unpredictability with government mandates.

In a Queensland Court of Appeal matter[5], a written direction was issued by the Commissioner of Police which required all police officers and staff members to receive at least one dose of a COVID-19 vaccine by a specified date, and a second dose by a second specified date, and provide evidence of such vaccinations if requested. Similar directions were issued by the Chief Executive of the Hospital and Health Services and by the Acting Commissioner of the Queensland Ambulance Service. A hearing was originally set down for February 2022, however, the matter was prepared based on the Delta variant as opposed to Omicron which had taken over. This demonstrates the fast moving nature of COVID-19. The matter has now been set down in May due to the changing landscape.

Managing non-compliance from employees

Managing non-compliance, terminations, legal proceedings resulting, when and how to terminate an employee who won’t vaccinate (and if it’s really necessary, risks of doing so, ensuring procedural compliance etc); circumventing the need to do so, particularly for valued employees (LSL/AL/WFH/stand down options – risks of with/without pay); high risk industries and vulnerable workers/members of public/patients/clients etc).

• Be careful with varying the employee’s terms of employment unlawfully – risk of repudiation
• Have consistent approaches
• Providing ample notice and opportunities to respond

There has been controversy in dealing with whether or not employees want to receive the vaccination to protect themselves from COVID-19. Employers in high-risk industries with vulnerable workers or a vulnerable client base face the challenge of ensuring compliance with public health orders and the resistance from employees or workers who either refuse or are unable to obtain the vaccination against COVID-19.

In a FWC matter an Applicant refused to provide evidence of her vaccination status despite her employer being required to obtain it as per government direction. It was held that there was a valid reason for dismissal and it was not harsh. The Deputy President stated that

“[She] is entitled to her opinions about the efficacy and safety of the COVID-19 vaccines… [She] was also within her rights to decline to become vaccinated or to provide Epworth with the information it requested from her… But her choices had the inevitable consequence that [she] rendered herself unable to perform her job.” [6]

It was held that the Applicant could have taken the necessary steps to meet the requirement but failed to do so.

In another matter before the FWC[7], it was held that the termination of an employee was valid and procedurally fair considering he had refused to obtain the vaccination due to major health concerns. The FWC found the employer “acted with empathy and care and was respectful” of the employee’s concerns, offered significant assistance and support, and gave him an ample opportunity to respond to its own concerns and provide a valid medical exemption.

Another issue employers face is retaining valued employees. Through the consultation process, employers may discuss alternatives with employees who are unable to obtain vaccination. Alternatives may include working from home if the work can be performed remotely, alternative tasks and duties within the workforce, taking a period of annual leave or long service leave. However, not all employees have the option of paid leave, and the risk of having employees on unpaid leave may lead to resistance as it may not be the most attractive option financially.

Takeaways

1. Vaccine mandates at work remains a live issue.
2. Update risk assessments and policies.
3. When managing employee non-compliance provide ample time and notice of any changes.

[1] Varnhagen & Ors v State of South Australia & Anor CIV-21-013758.

[2] Larter v Hazzard (No 2) [2021] NSWSC 1451.

[3] Larter v Hazzard (No 2) [2021] NSWSC 1451.

[4] Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCB 6059

[5] Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health; Johnstone & Ors v Commissioner of Police & Ors [2021] QCA 282 (14 December 2021)

[6] Isabella Stevens v Epworth Foundation [2022] FWC 593 (17 March 2022)

[7] Edwards v Regal Cream Products Pty Ltd [2022] FWC 257 (9 February 2022)