Manda­to­ry work­place vac­ci­na­tion: Some myths

With SPC putting its head above the para­pet by man­dat­ing COVID-19 vac­ci­na­tion for its work­force, and the Nation­al Cab­i­net State­ment on 6 August, the top­ic of manda­to­ry work­place vac­ci­na­tion has nev­er gen­er­at­ed such inter­est, analy­sis or debate.

In dis­cus­sion and report­ing on the issue there are some reg­u­lar­ly recur­ring myths. It is time­ly to exam­ine some of those a lit­tle more closely. 

1. There is no pow­er or right what­so­ev­er to man­date COVID-19 vac­ci­na­tion. It is always up to the individual

The Nation­al Cab­i­net State­ment on 6 August 2021 under the head­ing “Employ­ee Vac­ci­na­tions” noted:

“Aus­trali­a's pol­i­cy remains that vac­cines should be vol­un­tary and free.”

This is, with respect, an unhelp­ful and poten­tial­ly mis­lead­ing state­ment in the con­text of manda­to­ry work­place COVID-19 vac­ci­na­tion. While it accu­rate­ly sum­maris­es the broad pol­i­cy posi­tion of the fed­er­al gov­ern­ment, that there will be no oblig­a­tion imposed on all Aus­tralians to be vac­ci­nat­ed (which is an impor­tant prin­ci­ple), it does unfor­tu­nate­ly serve to con­vey the false impres­sion to some that no one else has any right to man­date vac­ci­na­tion, includ­ing employ­ers. The state­ment in iso­la­tion does not reflect the legal sub­tleties asso­ci­at­ed with manda­to­ry work­place vac­ci­na­tion. It is read­i­ly fore­see­able that some employ­ees will cite this state­ment in response to a direc­tion from their employ­ers to be vaccinated. 

Broad­ly speak­ing, employ­ers will have a right to direct employ­ees to be vac­ci­nat­ed against COVID-19, where it is law­ful and rea­son­able to do so. In almost all cas­es it will be law­ful. The enforce­abil­i­ty of the direc­tion will almost invari­ably turn on whether the direc­tion is rea­son­able. This will [large­ly depend on whether vac­ci­na­tion is a nec­es­sary con­trol mea­sure to address the risk of COVID-19 in the par­tic­u­lar work­place in which the direc­tion is issued and enforced.

It should be remem­bered that manda­to­ry vac­ci­na­tion for influen­za has applied in var­i­ous work­places for some years, most com­mon­ly in busi­ness­es or under­tak­ings involv­ing the care or treat­ment of sick, elder­ly or oth­er­wise vul­ner­a­ble peo­ple. Three recent Fair Work Com­mis­sion unfair dis­missal deci­sions upheld the right of the employ­ers in those cas­es to direct employ­ees to be vac­ci­nat­ed against influen­za. Sim­i­lar prin­ci­ples and con­sid­er­a­tions will like­ly apply to a direc­tion to employ­ees to be vac­ci­nat­ed against COVID-19. 

2. An employ­er can't man­date work­place vac­ci­na­tions unless the gov­ern­ment does so

This is a com­mon myth. Some employ­ers in indus­tries entail­ing acute risk from COVID-19 have, in the face of crit­i­cism for not already imple­ment­ing manda­to­ry vac­ci­na­tion, assert­ed they are unable to do so because a gov­ern­ment (either state or fed­er­al) has not yet specif­i­cal­ly man­dat­ed it.

An employ­er does not need to wait for a gov­ern­ment man­date or order to seek to imple­ment manda­to­ry COVID-19 work­place vaccination.

Of course, if there is a Pub­lic Health Order or oth­er gov­ern­ment man­date in place then that sub­stan­tial­ly strength­ens the argu­ment that the direc­tion from the employ­er to be vac­ci­nat­ed is law­ful and rea­son­able. It is not, how­ev­er, a prerequisite. 

3. The posi­tion of Safe Work Aus­tralia and the Fair Work Ombuds­man is bind­ing and authoritative

The broad posi­tion of both Safe Work Aus­tralia and the Fair Work Ombuds­man has been (and remains at the time of writ­ing) that the over­whelm­ing major­i­ty of employ­ers can­not man­date COVID-19 vac­ci­na­tion for their staff. This has been cit­ed by some as an incon­tro­vert­ible truth, vast­ly over­stat­ing the legal sig­nif­i­cance of the views of these agencies. 

The infor­ma­tion pro­vid­ed by Safe Work Aus­tralia and Fair Work Ombuds­man in rela­tion to manda­to­ry vac­ci­na­tion is by way of guid­ance only. Indeed, with the great­est of respect to both agen­cies, there seems to be a grow­ing sen­ti­ment among the employ­ment law com­mu­ni­ty that they may have adopt­ed an over­ly cau­tious approach to their guid­ance to employ­ers on the top­ic to date. The cau­tion has like­ly been informed in part by the prac­ti­cal con­sid­er­a­tion of COVID-19 vac­cine sup­ply – employ­ers can't effec­tive­ly man­date vac­ci­na­tion if the employ­ees don't have access to the vac­cine (or, to add a fur­ther com­pli­cat­ing fac­tor, the “rec­om­mend­ed” vaccine). 

Inter­est­ing­ly, the Fair Work Ombuds­man has fore­shad­owed an update to its guid­ance on manda­to­ry work­place COVID-19 vac­ci­na­tion in light of the Nation­al Cab­i­net State­ment, even though the Nation­al Cab­i­net state­ment itself offered nei­ther any sub­stan­tive rev­e­la­tions nor fore­shad­owed any changes to the applic­a­ble legal prin­ci­ples. The updat­ed guid­ance will pre­sum­ably be based on the recent­ly obtained advice of the Solic­i­tor-Gen­er­al referred to in the Nation­al Cab­i­net statement.

In short, while gen­er­al guid­ance from agen­cies such as Safe Work Aus­tralia and the Fair Work Ombuds­man is use­ful and inter­est­ing, and no doubt the work of much con­sid­ered thought and delib­er­a­tion, employ­ers should seek bespoke advice from their legal advi­sors in rela­tion to the spe­cif­ic cir­cum­stances of their work­place. The valid­i­ty of an employ­er's actions will ulti­mate­ly be a mat­ter for courts and tri­bunals (most like­ly the Fair Work Com­mis­sion at first instance) to determine. 

4. An employ­er can man­date COVID-19 vac­ci­na­tions to be a good cor­po­rate cit­i­zen or to take a moral stand

Some employ­ers might decide to man­date COVID-19 vac­ci­na­tion in their work­place to show they are a “good cor­po­rate cit­i­zen” or to take a moral stand on the impor­tance of vaccination. 

While this might arguably be laud­able, it is unlike­ly to be a rel­e­vant con­sid­er­a­tion in any ulti­mate deter­mi­na­tion by a court of tri­bunal as to whether the direc­tion to employ­ees is law­ful and rea­son­able. That con­clu­sion will pri­mar­i­ly be reached on health and safe­ty grounds, specif­i­cal­ly the need to imple­ment manda­to­ry vac­ci­na­tion to man­age the risk of COVID-19 infec­tion and trans­mis­sion in the workplace. 

5. An employ­ee who refus­es a law­ful and rea­son­able direc­tion to be vac­ci­nat­ed can have their employ­ment ter­mi­nat­ed immediately

While a refusal to com­ply with a law­ful and rea­son­able direc­tion to be vac­ci­nat­ed for COVID-19 might give rise to a valid rea­son for ter­mi­na­tion, employ­ers need to be mind­ful of afford­ing employ­ees pro­ce­dur­al fair­ness in effect­ing a dis­ci­pli­nary process (includ­ing ter­mi­na­tion of employ­ment) for refus­ing to fol­low a direc­tion. A fail­ure to do this could lead to an adverse out­come for an employ­er before the Fair Work Com­mis­sion in unfair dis­missal pro­ceed­ings, even where that employ­er had a right to man­date COVID-19 vaccination. 

6. Manda­to­ry vac­ci­na­tion is a breach of the Aus­tralian Con­sti­tu­tion, Magna Car­ta, Nurem­berg Code or con­sti­tutes assault and/or battery

These types of legal or qua­si-legal argu­ments advanced by those in the anti-vac­ci­na­tion move­ment (often based on argu­ments run by the “sov­er­eign cit­i­zen” move­ment, with whom there is some over­lap) are devoid of mer­it and will almost cer­tain­ly be giv­en short shrift by courts or tri­bunals con­sid­er­ing cas­es relat­ed to manda­to­ry work­place COVID-19 vaccination.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.