Manda­to­ry Work­place Vac­ci­na­tion: The Cur­rent State of Play

As the Covid-19 vac­ci­na­tion process slow­ly but sure­ly pro­ceeds, the issue of manda­to­ry work­place Covid-19 vac­ci­na­tion is increas­ing­ly com­ing under consideration. 

Two recent Fair Work Com­mis­sion (FWC) unfair dis­missal cas­es, relat­ing to refusals by employ­ees to have flu vac­ci­na­tions, offer some use­ful insights into the approach that will like­ly be adopt­ed by the FWC (and oth­er tri­bunals and courts) to the issue of manda­to­ry work­place Covid-19 vac­ci­na­tion when such cas­es inevitably arise.

These cas­es are Ms Bou-Jamie Bar­ber v Good­start Ear­ly Learn­ing [2021] FWC 2156 (Bar­ber) and Jen­nifer Kim­ber v Sap­phire Coast Com­mu­ni­ty Aged Care Ltd [2021] FWC 1818 (Kim­ber). They were both hand­ed down in April 2021. The for­mer is a deci­sion of Deputy Pres­i­dent Lake and the lat­ter is a deci­sion of Com­mis­sion­er McKenna. 

In both cas­es, the dis­missals of employ­ees who had refused flu vac­ci­na­tion were found to be not unfair. As will be can­vassed fur­ther below that does not mean, how­ev­er, that employ­ers will always be able to direct employ­ees to have a flu vac­ci­na­tion. The cir­cum­stances of both the employ­er and employ­ee, as well as any applic­a­ble gov­ern­ment health orders or guid­ance, will be relevant. 

The main points aris­ing from each case that are like­ly to be rel­e­vant to manda­to­ry work­place Covid-19 vac­ci­na­tions are set out below (although with an impor­tant caveat in Bar­ber).

A Prop­er Basis for an Employ­er Direc­tion or Requirement

Employ­ers have a right to issue law­ful and rea­son­able’ direc­tions to employees. 

As such, in order for an employ­er to be able to take dis­ci­pli­nary action against an employ­ee for not com­ply­ing with a direc­tion to have a vac­ci­na­tion, an employ­er will need to be able to show that the direc­tion was law­ful and reasonable’. 

In Bar­ber, the Respon­dent employ­er, Good­start Ear­ly Learn­ing (Good­start), was involved in the pro­vi­sion of child­care services. 

Deputy Pres­i­dent Lake not­ed (at para­graph 315):

In con­sid­er­ing what is rea­son­able, it is impor­tant to give con­sid­er­a­tion to the var­i­ous statu­to­ry oblig­a­tions that Good­start has in per­form­ing its under­tak­ing. It is appar­ent that these will impact how Good­start must con­duct itself.”

After exam­in­ing the var­i­ous WHS oblig­a­tions of Good­start, includ­ing those specif­i­cal­ly relat­ing to con­trol of infec­tious dis­ease, Lake DP not­ed (at para­graph 320):

Good­start oper­ates with­in an indus­try which is high­ly reg­u­lat­ed and where safe­ty is of para­mount impor­tance. Chil­dren rep­re­sent a par­tic­u­lar­ly vul­ner­a­ble group who do not have the same fac­ul­ties and capa­bil­i­ties as adults. The pres­ence of tar­get­ed leg­is­la­tion high­lights that fact. As a mat­ter of com­mon sense, this leg­is­la­tion reflects the con­cerns that par­ents have for the safe­ty of their chil­dren. Giv­en this envi­ron­ment, it is not only log­i­cal but nec­es­sary in the cir­cum­stances for Good­start to have clear and strin­gent pro­ce­dures in place to enhance and ensure safety.”

In deter­min­ing whether the direc­tion was rea­son­able, Deputy Pres­i­dent Lake looked at a range of mat­ters includ­ing: gov­ern­ment rec­om­men­da­tions; the need to ensure safe­ty and wel­fare; con­trol meth­ods (which were found to be dif­fi­cult to imple­ment giv­en the age and lack of matu­ri­ty of chil­dren in care – hence the impor­tance of employ­ee vac­ci­na­tion as a con­trol mea­sure); whether the vac­ci­na­tion pol­i­cy was rea­son­ably and appro­pri­ate­ly adapt­ed (tak­ing account of med­ical exemp­tions); union con­sul­ta­tion (which was giv­en lit­tle weight); and imple­men­ta­tion (includ­ing ample time to achieve com­pli­ance or raise an objection). 

Deputy Pres­i­dent Lake con­clud­ed that the employ­er require­ment to be vac­ci­nat­ed was rea­son­able (at para­graph 346):

Good­start oper­ates with­in a high­ly reg­u­lat­ed envi­ron­ment, which cre­ates statu­to­ry oblig­a­tions beyond that of a nor­mal employ­er; safe­ty and qual­i­ty care are of para­mount impor­tance and this is the envi­ron­ment in which Goodstart’s pol­i­cy must be scru­ti­nised. The child­care indus­try faces unique organ­i­sa­tion­al chal­lenges which make oth­er con­trols less effec­tive, or imprac­ti­ca­ble. I am sat­is­fied that it is rea­son­able for a child­care provider to man­date flu vac­ci­na­tion for those staff who deal with chil­dren on such a reg­u­lar basis, and in such close prox­im­i­ty. While the pol­i­cy requires manda­to­ry vac­ci­na­tion, it does allow for med­ical exemp­tions and Good­start cov­ered the expens­es asso­ci­at­ed with the pol­i­cy and pro­vid­ed extend­ed time frames for Ms Bar­ber to gain com­pli­ance. I am sat­is­fied that a rea­son­able employ­er, in the posi­tion of actu­al employ­er and act­ing rea­son­ably, could have adopt­ed the policy’.”

He then con­sid­ered whether the direc­tion was law­ful’. It was found to be so, with a sub­mis­sion from the Appli­cant that manda­to­ry vac­ci­na­tion could con­sti­tute an assault or bat­tery emphat­i­cal­ly dismissed. 

In Kim­ber, the Respon­dent employ­er was involved in the pro­vi­sion of aged care services. 

Inter­est­ing­ly, in this deci­sion, Com­mis­sion­er McKen­na held that there had not been a with­in-terms direc­tion’ to the Appli­cant to have a flu vac­ci­na­tion. In this regard she stat­ed (at para­graph 53):

I find the respon­dent did not, at any time, give any with­in-terms direc­tions” to the appli­cant to have a flu shot. The evi­dence sim­ply does not sup­port a con­clu­sion there was any writ­ten or ver­bal direc­tion giv­en to the appli­cant in such respects by Mr Sierp, Ms Main or any­one else asso­ci­at­ed with the man­age­ment of the respon­dent (let alone mul­ti­ple direc­tions’) – and this is so notwith­stand­ing, for exam­ple, what the appli­cant wrote in her let­ter dat­ed 12 May 2020 to Mr Sierp assert­ing she had been giv­en such a direction.”

In any event, Com­mis­sion­er McKen­na not­ed (at para­graph 54):

Although no direc­tions were giv­en by the respon­dent to the appli­cant to have a flu shot, equal­ly, the respon­dent nonethe­less firm­ly com­mu­ni­cat­ed to the appli­cant (and to its employ­ees gen­er­al­ly) that hav­ing an up-to-date flu shot was nec­es­sary for atten­dance for work at Imlay House.”

Com­mis­sion­er McKen­na con­clud­ed (at para­graph 57):

It seems to me that if a direc­tion in fact had been giv­en by the respon­dent to the appli­cant to have a flu shot, any such direc­tion would not only have been law­ful it would have effec­tive­ly reflect­ed what in fact was the law as it applied in 2020 con­cern­ing employ­ees work­ing with­in NSW res­i­den­tial aged care facil­i­ties (sub­ject to the exemp­tions with­in the PHOs); as a corol­lary, any such direc­tion would not only have been law­ful, but also reasonable.”

Hav­ing con­sid­ered the issue of direc­tion, Com­mis­sion­er McKen­na then turned to whether the Appli­cant could have per­formed the inher­ent require­ments of her posi­tion with­out a flu vac­ci­na­tion, answer­ing that ques­tion in the neg­a­tive (at para­graph 59): 

The appli­cant was unable to per­form the inher­ent require­ments of her job if she was not prop­er­ly per­mit­ted to enter or remain at Imlay House absent hav­ing an up-to-date flu shot. That is, if the appli­cant could not enter Imlay House, she could not per­form the (prin­ci­pal­ly) recep­tion­ist role and oth­er cler­i­cal inher­ent require­ments of her posi­tion. More­over, although the appli­cant men­tioned in her cross-exam­i­na­tion that she could have worked from home, there was no evi­dence the appli­cant made any appli­ca­tion to the respon­dent to per­form from home any of the oth­er cler­i­cal and/​or admin­is­tra­tive aspects of her job (and nor was there any evi­dence the respon­dent con­sid­ered non-recep­tion­ist duties on a work-from-home basis as an option). The applicant’s case was that she could attend work at Imlay House to per­form the inher­ent require­ments of her job but was pre­vent­ed from doing so by the respon­dent — and lat­er unfair­ly dis­missed by the respon­dent — based upon the erro­neous fail­ure of the respon­dent to accept Dr Mackay’s first Let­ter of Sup­port, Dr Mackay’s sec­ond Let­ter of Sup­port and, par­tic­u­lar­ly, the IVMC Form with Dr Mackay’s cer­ti­fi­ca­tion. The applicant’s case con­tend­ed for a con­clu­sion by the Com­mis­sion that as the appli­cant had pro­vid­ed to the respon­dent the IVMC Form the exclu­sion of the appli­cant from her Imlay House work­place was with­out a prop­er foun­da­tion and the dis­missal lacked a valid rea­son – but I have accept­ed the sub­mis­sions for the respon­dent in such respects in pref­er­ence to those for the applicant.” 

Inter­est­ing­ly, in Bak­er, Deputy Pres­i­dent Lake did not find that vac­ci­na­tion was an inher­ent require­ment of the posi­tion of the Appli­cant. At para­graph 388 he stated:

How­ev­er, ensur­ing rea­son­able care and skill is not the same as stat­ing that it is an essen­tial require­ment to be vac­ci­nat­ed. To that end, it is impor­tant to dis­tin­guish between an essen­tial ele­ment and the means through which com­pli­ance with that essen­tial ele­ment occurs. Even if being vac­ci­nat­ed ful­fils the Respon­dent statu­to­ry oblig­a­tion it does not fol­low that vac­ci­na­tion itself is essen­tial – being vac­ci­nat­ed does not in its nature impact how the Appli­cant per­forms her role. As stat­ed in Christie, it is per­ti­nent to exam­ine the tasks per­formed, as the capac­i­ty to per­form those tasks inform what is an inher­ent require­ment. I am not sat­is­fied that being vac­ci­nat­ed changes the capac­i­ty of the Appli­cant to per­form the tasks that make up the role. It may change the means through which the Appli­cant per­form those tasks, but it is not the case that her capac­i­ty is limited.”

So, in Kim­ber, there was no direc­tion (although a direc­tion, had it been made, would have been law­ful and rea­son­able) but vac­ci­na­tion was an inher­ent requirement. 

In Bak­er, vac­ci­na­tion was found not to be an inher­ent require­ment but there was a law­ful and rea­son­able direc­tion to be vaccinated. 

These dif­fer­ent approach­es to the same issue man­i­fest­ed in the sub­mis­sions in Bak­er, with the argu­ments for the Appli­cant focused on inher­ent require­ments and capac­i­ty, and the argu­ments for the Respon­dent focused on law­ful and rea­son­able direc­tions, led to this lament from Deputy Pres­i­dent Lake (at para­graph 294):

The total­i­ty of the Respondent’s argu­ments regard­ing capac­i­ty are a rebut­tal of the author­i­ty pre­sent­ed by the Appli­cant. While a detailed analy­sis is pro­vid­ed of what is rea­son­able and law­ful, no stip­u­la­tion is giv­en by the Respon­dent as to what inher­ent require­ment the Appli­cant can­not per­form, nor what the prop­er con­struc­tion of the law sur­round­ing capac­i­ty is. The Appli­cant, in reliance on the rea­son for dis­missal being a lack of capac­i­ty, pre­sent­ed detailed grounds as to the fact that she could per­form the inher­ent require­ments of the role. How­ev­er, some­what unhelp­ful­ly, the Appli­cant does not in any great detail rebut the propo­si­tion that the vac­ci­na­tion pol­i­cy is not rea­son­able and lawful.”

Med­ical Exemptions

In both Bar­ber and Kim­ber the FWC found that the Appli­cants had not estab­lished that they fell with­in the med­ical exemp­tions pro­vid­ed for in the respec­tive employ­ers’ poli­cies. If an employ­ee is to argue they can­not be vac­ci­nat­ed on med­ical grounds, it is incum­bent on them to present cogent med­ical evi­dence to that effect. 

In Bar­ber, at para­graph 360, Deputy Pres­i­dent Lake noted:

Ms Bar­ber failed to pro­duce an ade­quate med­ical exemp­tion to the pol­i­cy. Her argu­ment at its strongest con­sists of a sen­si­tive immune sys­tem, that she suf­fers from coeli­ac dis­ease and that she alleges to have had a reac­tion in the past.”

He elab­o­rat­ed upon this at para­graph 369:

On the Applicant’s own account, mul­ti­ple doc­tors refused to pro­vide her a state­ment that she should be exempt from vac­ci­na­tion. In a sce­nario where the cost of vis­it­ing med­ical prac­ti­tion­ers was cov­ered by the Respon­dent, there was no bar­ri­er to col­lect­ing this infor­ma­tion, if it exist­ed. In the absence of that evi­dence, it is unclear how I, or Good­start, could be sat­is­fied that there was valid ground for a med­ical exemp­tion. The Appli­cant was pro­vid­ed ample time to seek med­ical opin­ions, and what she pro­duced was evi­dence of coeli­ac dis­ease, vague unsub­stan­ti­at­ed accounts of an aller­gic reac­tion that was not ana­phy­lax­is, and a state­ment that she a sen­si­tive gut, which is not known to be a med­ical con­di­tion. None of the above sat­is­fies me that a med­ical exemp­tion should have been grant­ed in the circumstances.”

In Kim­ber, the Appli­cant con­tend­ed that she had suf­fered a med­ical con­di­tion as a result of receiv­ing a flu vac­ci­na­tion in 2016. Com­mis­sion­er McKen­na reject­ed this, not­ing the impor­tance of evi­dence to sup­port a med­ical exemp­tion (at para­graph 72):

I reit­er­ate that noth­ing in this deci­sion is to be tak­en to involve any hint of dis­re­spect to the appli­cant and what she has described as to the con­di­tion or her con­cerns about hav­ing a flu shot. The applicant’s case was pre­sent­ed as one involv­ing a severe reac­tion to the 2016 flu shot as the rea­son not to have a flu shot in 2020. A dif­fi­cul­ty in the applicant’s case, how­ev­er, is that there was no med­ical evi­dence what­so­ev­er of a con­tem­po­ra­ne­ous diag­no­sis that the con­di­tion as described was attrib­ut­able to the 2016 flu shot. There was no evi­dence as to the iden­ti­ty of which doc­tor or doc­tors the appli­cant con­sult­ed in 2016 – 17. There was no evi­dence about which doc­tor or doc­tors made the diag­no­sis that the con­di­tion was attrib­ut­able to the 2016 flu shot. There was no evi­dence of any spe­cial­ist exam­i­na­tion or spe­cial­ist treat­ment in 2016 – 17. There was no evi­dence of any for­mal report being made (by any­one) to any organ­i­sa­tion about what was described by the appli­cant as such a severe reac­tion to a work­place-admin­is­tered flu shot.”

Pro­ce­dur­al Fairness

Both cas­es con­firm the require­ment that employ­ers need to afford pro­ce­dur­al fair­ness to employ­ees before decid­ing to ter­mi­nate employ­ment. It is not sim­ply a mat­ter of an employ­ee refus­ing a direc­tion to be vac­ci­nat­ed one day, and the employ­er ter­mi­nat­ing their employ­ment the next. (The employ­ers in Bak­er and Kim­ber were found to have sat­is­fied the nec­es­sary pro­ce­dur­al requirements.) 

In the con­text of manda­to­ry vac­ci­na­tion this includes:

  • giv­ing an employ­ee the oppor­tu­ni­ty and time to object to vac­ci­na­tion, and to pro­cure and pro­vide any avail­able med­ical evi­dence to sup­port such an objec­tion (includ­ing evi­dence sub­stan­ti­at­ing a spec­i­fied con­traindi­ca­tion in any gov­ern­ment order or vac­ci­na­tion policy); 
  • care­ful­ly con­sid­er­ing any mate­r­i­al pro­vid­ed by the employ­ee (par­tic­u­lar­ly med­ical evidence);
  • explor­ing alter­na­tive meth­ods that might be avail­able to per­form the work that might be avail­able with­out vac­ci­na­tion (even though the face-to-face nature of the roles ordi­nar­i­ly sub­ject to a require­ment to have a vac­ci­na­tion will mil­i­tate against the adop­tion of dif­fer­ent modes of per­form­ing the inher­ent duties). 

The FWC Caution

In Bak­er, Deputy Pres­i­dent Lake issued some words of cau­tion about the risks of rely­ing on that deci­sion (deal­ing with flu vac­ci­na­tion) as a basis for spec­u­lat­ing about the approach the FWC might adopt to deal with manda­to­ry work­place Covid-19 vaccination. 

At para­graph 13, Lake DP stated:

I note that curios­i­ty sur­round­ing vac­ci­na­tion is at an unnat­ur­al high; pro­tec­tion against COVID-19 is becom­ing a tan­gi­ble real­i­ty for the pop­u­la­tion and guid­ance sur­round­ing how this will be admin­is­tered in the work­place is scarce. As will be seen from the high­ly detailed evi­dence below, this deci­sion is rel­a­tive to the influen­za vac­cine in a high­ly par­tic­u­lar indus­try. While this may seem obvi­ous to most, giv­en the cli­mate we find our­selves in, it feels appro­pri­ate to make this declaration.”

A fur­ther cau­tion is set out at para­graph 394 of the judgment:

In an attempt to lim­it a mal­adroit appli­ca­tion of these find­ings in var­ied cir­cum­stances, I make the fol­low­ing remark: it is beyond the scope of this deci­sion to con­sid­er whether the con­clu­sions above extend even as far as the entire­ty of the Respondent’s busi­ness, as the role each employ­ee per­forms in ful­fill­ing the Respondent’s under­tak­ing may dif­fer. An attempt to extrap­o­late fur­ther and say that manda­to­ry vac­ci­na­tion in dif­fer­ent indus­tries could be con­tem­plat­ed on the rea­sons above would be auda­cious, if not improvident.”

And, for abun­dant cau­tion, Lake DP again not­ed (at para­graph 430):

Employ­er man­dat­ed vac­ci­na­tion is a top­i­cal ques­tion in the cur­rent pan­dem­ic. As I have said above, this deci­sion relates specif­i­cal­ly to the influen­za vac­ci­na­tion in a child­care envi­ron­ment, where the risks and con­cerns are dis­tinct. Goodstart’s enter­prise revolves around the care of chil­dren, who are by nature more vul­ner­a­ble and in gen­er­al have poor hygiene stan­dards. This can make viral spread eas­i­er and poten­tial­ly more dan­ger­ous than in oth­er settings.”

With respect to Deputy Pres­i­dent Lake, while the Bar­ber deci­sion relates to a very spe­cif­ic set of cir­cum­stances, it is nev­er­the­less an illus­tra­tion of the approach the FWC adopts in apply­ing estab­lished prin­ci­ples in unfair dis­missal law to the vexed ques­tion of manda­to­ry vac­ci­na­tion. As such, it is a deci­sion of some val­ue in glean­ing insight into what the FWC will like­ly do in the future when it has a Covid-19 vac­ci­na­tion case before it. The same is true of Kim­ber. What Bak­er and Kim­ber are not, how­ev­er, are deter­mi­na­tive prece­dents of wide appli­ca­tion that are fatal to the prospects of an employ­ee who refus­es a manda­to­ry work­place vac­ci­na­tion (whether that be a flu or Covid-19 vac­ci­na­tion) – that would be a lazy, mis­con­ceived conclusion. 

The Manda­to­ry Covid-19 Work­place Vac­ci­na­tion Complications

Employ­ers con­tem­plat­ing manda­to­ry work­place vac­ci­na­tions are present­ly fac­ing two gen­er­al com­pli­ca­tions that have arisen recent­ly. The effect of these com­pli­ca­tions is that for all but some rel­a­tive­ly small and con­fined cat­e­gories of employ­ees (usu­al­ly on the front­line of deal­ing with the pan­dem­ic who were eli­gi­ble to receive ear­ly vac­ci­na­tion) the issue of manda­to­ry work­place Covid-19 vac­ci­na­tion is like­ly to remain hypo­thet­i­cal for some time to come. 

The first is that the vac­ci­na­tion roll-out in Aus­tralia has been slow­er than ini­tial­ly antic­i­pat­ed. This is, in part, due to the sec­ond com­pli­ca­tion (the AstraZeneca issue) dis­cussed below. In short, an employ­ee can­not com­ply with a direc­tion to have a Covid-19 vac­ci­na­tion if the vac­cines are not read­i­ly avail­able to that employee. 

The sec­ond will be more con­tentious and pos­si­bly dif­fi­cult to address. The fed­er­al gov­ern­men­t’s rec­om­men­da­tion – that those under 50 should have the Pfiz­er vac­cine rather than AstraZeneca – could give some objec­tive weight to the notion of vac­cine hes­i­tan­cy’ when manda­to­ry work­place Covid-19 vac­ci­na­tion comes to be con­sid­ered by the FWC. The assump­tion upon which some ear­li­er analy­sis on this issue was pred­i­cat­ed, that the safe­ty of Covid-19 vac­ci­na­tions would not seri­ous­ly be in issue, has been some­what dis­turbed by this rec­om­men­da­tion, even though the objec­tive sta­tis­ti­cal risk of adverse effects remains very small. While both the Bak­er and Kim­ber deci­sions sug­gest some more nov­el anti-vac­ci­na­tion argu­ments (such as manda­to­ry work­place vac­ci­na­tion con­sti­tut­ing assault) will like­ly be giv­en short shrift, an employ­ee refus­ing vac­ci­na­tion will be now able to cite the gov­ern­men­t’s own cau­tion­ary rec­om­men­da­tion about the AstraZeneca vac­cine, even if the rec­om­men­da­tion might not specif­i­cal­ly apply to the employ­ee rely­ing upon it (such as if the employ­ee is over 50). 

Safe Work Aus­tralia and the Fair Work Ombudsman 

Both Safe Work Aus­tralia and the Fair Work Ombuds­man have offered guid­ance on manda­to­ry work­place Covid-19 vaccination. 

The guid­ance from the Fair Work Ombuds­man present­ly states:

In the cur­rent cir­cum­stances, the over­whelm­ing major­i­ty of employ­ers should assume that they can’t require their employ­ees to be vac­ci­nat­ed against coro­n­avirus. The Aus­tralian Government’s pol­i­cy is that receiv­ing a vac­ci­na­tion is vol­un­tary, although it aims to have as many Aus­tralians vac­ci­nat­ed as possible.”

The posi­tion of Safe Work Aus­tralia (which relates to the appli­ca­tion of WHS laws to the issue) is:

Under WHS laws, you have a duty to elim­i­nate or if not pos­si­ble, min­imise, so far as is rea­son­ably prac­ti­ca­ble, the risk of expo­sure to COVID-19 in the work­place. You may not be able to com­plete­ly elim­i­nate the risk of work­ers being exposed to COVID-19 while car­ry­ing out work. How­ev­er, you must do all that is rea­son­ably prac­ti­ca­ble to min­imise this risk and vac­ci­na­tion should be con­sid­ered as one way to do so in the con­text of a range of COVID-19 con­trol measures. 

It is unlike­ly that a require­ment for work­ers to be vac­ci­nat­ed will be rea­son­ably practicable.”

This view of Safe­Work Aus­tralia is based, in part, on the cur­rent lim­it­ed avail­abil­i­ty of vaccines. 

A few obser­va­tions about the guid­ance from these agencies:

  1. The Aus­tralian Gov­ern­men­t’s pol­i­cy that vac­ci­na­tion is vol­un­tary is of lit­tle or no legal relevance; 
  2. While the cur­rent posi­tion adopt­ed by these agen­cies is of inter­est as a guide (and no doubt the prod­uct of much work and seri­ous con­sid­er­a­tion) they have no legal effect or weight of their own — absent spe­cif­ic leg­is­la­tion or reg­u­la­tions these mat­ters will ulti­mate­ly be deter­mined by courts and tri­bunals (such as the FWC); 
  3. As vac­cines become (hope­ful­ly) more read­i­ly avail­able, it will be inter­est­ing to see if the view of Safe Work Aus­tralia on whether a require­ment for work­ers to be vac­ci­nat­ed is rea­son­ably prac­ti­ca­ble” (as defined in WHS leg­is­la­tion) is modified; 
  4. The posi­tion tak­en by both agen­cies is broad­ly con­sis­tent with the approach of the fed­er­al gov­ern­ment in active­ly encour­ag­ing rather than com­pelling vaccination. 


As the vac­ci­na­tion roll-out con­tin­ues, it is very like­ly the issue of manda­to­ry work­place Covid-19 vac­ci­na­tion will cease being the­o­ret­i­cal and become an area of active dis­pu­ta­tion in courts and tri­bunals (espe­cial­ly the FWC). It has already been report­ed (in April 2021) that some Vic­to­ri­an quar­an­tine staff were stood down on full pay after refus­ing Covid-19 vac­ci­na­tion. An inter­est­ing test as to the scope of the pre­rog­a­tive of employ­ers to man­date such vac­ci­na­tions will be if those in retail or hos­pi­tal­i­ty seek to do so – employ­ees in those sec­tors aren’t (usu­al­ly) engaged in ren­der­ing care or treat­ment but are nev­er­the­less deal­ing with the gen­er­al pub­lic, some­times in very large num­bers. While the gov­ern­ment has empha­sised the vol­un­tary nature of vac­ci­na­tion as a (sound) strat­e­gy to encour­age accep­tance of it, the applic­a­ble legal prin­ci­ples might pro­vide sup­port to employ­ers want­i­ng to take a firmer stance for their own organisations.