Vaccination Requirements-Legal Update
With the COVID pandemic still with us, we thought we would provide an update on legal challenges to the power of employers to introduce mandatory vaccinations.
A number of claimants have sought to rely on the minority dissent of Fair Work Commission Deputy President Lyndall Dean in a FWC case 2021, to say that vaccination mandates are unenforceable because they are unfair, unreasonable and unjust. The anti-vaccination community seized on this minority position of a senior member of the Fair Work Commission as validating their position. However, despite a “Kimber” argument being raised in a number of subsequent claims, the Commission has consistently and flatly rejected this argument, and as a result DP Dean has been removed from any cases concerning vaccination mandates.
In another case involving a health worker’s claim that the Victorian Government’s public health orders mandating vaccination were “disproportionate or unfair”, the employee referred to “expert evidence” that the requirement was unjustified given the risks of harm posed by the vaccination and the limited benefits provided by it.
In response, the FWC said that no admissible evidence had been provided to support the employee’s claim that vaccinations were ineffective, unreliable or dangerous. The Commission rejected the employee’s “Kimber” argument along with her claim. The Commission stated that, while the employee had a right to refuse to be vaccinated and to provide medical information about her vaccination status, these were lawful requirements of her role, and her employer was justified in dismissing her if she could not meet them.
In a similar case, a risk and compliance manager in a school sought to avoid a requirement to be vaccinated claiming that vaccinations were unproven and risky and that she could use her accrued leave or continue to work from home. The employee also cited DP Dean’s dissenting judgment in Kimber. But again, the Commission ruled that the school had no choice but to comply with public health orders and had a valid reason to dismiss the employee. The Commission said that Kimber was of no assistance to the employee’s claim.
Late last year, the NSW Supreme Court rejected the argument brought by an ambulance officer that the public health orders and the vaccine mandate were objectionable on religious grounds.
Legal challenges have not been limited to the lawfulness of the vaccination itself, but have included the way in which the mandate has been introduced. In a recent article, we contrasted two decisions about the need for consultation when implementing a vaccination policy. In one, which concerned a public health order of the WA Government, the decision was that no consultation was required. This was because the employer’s decision to implement the vaccine mandate was a result of the public health order. The employer had no choice but to comply, and therefore the standard consultation requirement in the relevant award was not activated. The other case turned on the consultation provisions in an enterprise agreement, which were much broader than the award provisions. In this case, the Commission found that the policy had not been validly implemented because the consultation provisions had not been followed.
It is important to highlight that, in both cases, there was no question about the legality of the vaccination requirement set out in the policy – only about whether the policy had been validly implemented so that it was enforceable. In the second case, the employer promptly completed a reasonable consultation process, and the policy was then enforceable. But the case highlights that where employers seek to introduce a vaccine policy which is not in response to a public health order, then the employer will need to follow a proper consultation process to ensure the policy is enforceable.
As expected, there have been a number of legal challenges to mandatory vaccinations. While these challenges have resulted in some concessions to process, none have provided authority that a vaccination mandate is unlawful.
We are aware of some other challenges still in the works. We will be watching these keenly and will provide a further update in the near future.
Lessons for Employers:
After these challenges, it remains clear that employers may lawfully implement policies which require vaccination against COVID-19 (and its variations) even in the absence of Government health orders. While the pandemic persists, employers may need to make further changes to the requirements of their staff in an effort to ensure a safe working environment.
Employers should be aware of their obligations to consult with employees in implementing and modifying policies to ensure they are enforceable.
If you would like to discuss these or other workplace issues please contact Andrew Bland or call 02 9412 3077.
 Jennifer Kimber v Sapphire Coast Community Aged Care Inc  FWCFB 6015
 Isabella Stevens v Epworth Foundation  FWC 593
 Kathryn Roy-Chowdhury v The Ivanhoe Girls’ Grammar School  FWC 849
 Larter v Hazzard (No.2)  NSWSC 1451
 CFMEU & Ors v Mt Arthur Coal Pty Ltd  FWCFB 6059