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.