Mandatory COVID Vaccinations -Closer to reality but still unsettled?

Edge Legal

25 October 2021

There has been a significant amount of recent activity regarding the compulsory vaccination debate and unfortunately the cumulative effect has been that certainty has still not been achieved.

The ‘new normal’ is changing all the time.Public Health Orders have provided some certainty for limited industries (although some have time limits giving limited certainty for employers) and the list of businesses making COVID vaccinations mandatory continues to grow but is currently untested. Now is the time to do your risk assessment and consider if your organisation needs to move towards a mandatory vaccination policy and, if so, what does this actually look like?

See below a brief summary of the ‘news breakers’ which may assist helping you make this significant judgement call for your business.

Recent cases

The recent majority FWC Full Bench decision ofJennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015has been lauded by some commentators as a ‘green light’ for mandatory vaccinations (this case dealt with flu vaccinations in aged care) but it is industry specific.

The case actually deals with the dismissal of aged care receptionist who refused the influenza vaccination. The majority considered the employee’s objection to the lawful vaccine requirement (via a Public Health Order) to be ‘spurious’ and found that her medical evidence did not indicate a medical contraindication that would have provided her an exemption. Because she was unable to perform the inherent requirements of the role she was not unfairly dismissed.

However, Dean DP in a strenuous dissent argued that the Public Health Order was a deprivation of "free consent" –a fundamental and internationally recognised human right and indicated that it was likely that the dismissal was a breach of the Disability Discrimination Act. Anti-vaccination proponents have jumped on the decision and once again provided a ‘voice’ for the now (according to vaccinations statistics) ever increasingly smaller minority.

In NSW the Supreme Court decision ofKassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (15 October 2021),Beech-Jones J rebuked Dean DP’s minority decision (see above)and her"clarion call" for Australians to "vigorously" reject the notion of mandatory COVID-19 jabs, questioning DP Dean’s assertions about the efficacy of vaccines and declaring it is not her role to challenge the validity or appropriateness of public health orders.

The Applicants unsuccessfully sought to invalidate and overturn NSW Public Health Orders which had introduced mandatory vaccinations in the aged care industry. Beech-Jones J’s judgement is a very strong judicial endorsement that compliance with Public Health Orders is non-negotiable and will provide business with certainty when dealing with Public Health Orders.Unfortunately, there was no judicial comment regarding the lawfulness and reasonableness of organisations making mandatory vaccination policies outside of Public Health Orders.

We anticipate cases specifically relating to mandatory vaccination policies outside of Public Health Orders are‘just around the corner’.

Big Business steps up towards compulsory vaccination

SPC, QANTAS and Telstra have lead the charge toward compulsory vaccinations. Many other organisations have followed and the majority public opinion has certainly endorsed their positions.Now Woolworths has joined the compulsory vaccination rollout.Woolworths have gone ‘fully national’ whilst Coles taken the much more conservative approach by focusing only on compliance with Public Health Orders –which is really just a compliance approach and not a true statement towards organisational compulsory vaccination.

Unions continue to agitate against compulsory vaccinations

Unions continue to agitate against compulsory vaccinations in a piecemeal approach rather than a unified national position.This partly reflects that some of their members are ‘anti-vax’-so they are treading carefully on the issue.

The CFMEU has applied to the FWC to halt the rollout of BHP's mandatory COVID-19 vaccination policy at the Mt Arthur open cut coal mine in the Hunter Valley, claiming it is not a lawful and reasonable direction.The CFEMU claims that without a Public Health Order, the significant voluntary vaccination rates already achieved in the workforce and effectiveness of existing control measures, means mandatory vaccination is unreasonable.

The AMWU recently failed to overturn SPC’s implementation of its compulsory vaccination scheme on the basis that it had not met the consultation obligations of the WHS legislation.SPC were found to have adequately consulted with workers and any health and safety representatives on how to manage workplace risks regarding COVID-19.This decision reinforces our earlier message of ensuring that you focus on ‘bringing your workforce along with you’ and not just the strict technicalities of risk assessment.

Should businesses move to compulsory vaccinations?

To determine and implement this, we recommend you:

  1. Do an updated COVID-19 Risk Assessment–there is a lot of guidance as to the key risk factors such as the FWO’s 4 tiers that you can apply to your business. If mandatory vaccination is considered an appropriate control measure is this to be across the board (creating a sense of fairness but open to WH&S challenges) or targeted to specific workgroups or locations (carefully calibrated WH&S response but may risk a corrosive sense of ‘us’ and ‘them’.

  2. Consider a Voluntary Employee Survey–this will inform your risk assessment andshould include vaccination status, reasons for non-vaccination, concerns as to working with unvaccinated workers, contractors, clients and customers, risk profile of your workforce.

  3. Prepare a Policy–(

    1. what) consider the interaction with any Public Health Orders that may apply, whether it is ‘blanket’ or ‘targeted’. Vaccines are not a ‘silver bullet’ so consider other control measures generally and specifically (i.e. particular roles or for exempted people).

    2. (when)when does the policy take effect.Rather than have dose deadline consider a fully vaccination date but give a reasonable timeframe that builds in a genuine consultation process(

    3. who) consider ‘exemptions’ (which should be broader than the Public Health Orders which are short, blunt instruments on public safety grounds) and the process for determining these?Carefully considered ‘exceptions to the general rule’ is where a lot of the legal risk management occurs.

    4. (where) determine roles and work groups and locations (NSW and VIC may be different to WA and TAS) that require mandatory vaccination as an inherent requirement and what reasonable other arrangements options exist?(how) ensure the collecting and recording of information complies with the Privacy Act, Public Health Orders and other laws, and also includes things like assistance provisions –paid time off work to vaccinate or extra personal leave if ill etc.

  4. Consult–provide a draft policy to respond to and share risk assessment information including any employee survey results. Ensure you comply with any industrial instruments. Take on feedback and don’t be afraid to review and recalibrate based on good information you were unaware of or didn’t think of.

Retainer Clients will receive template documents next week addressing the above issues.

Stay tuned.This matter is far from over.

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