Written by Jamie Wells and Charlotte Fenton
Employers have limited endorsement of mandatory vaccination, after the Full Bench of the Fair Work Commission refused to uphold a vaccination direction given to mine workers by their employer at Mt Arthur.
However, the result was influenced by consultation issues, rather than the substantive question of whether mandatory vaccination is a reasonable and proportionate response to the COVID risk.
The dispute has been watched closely by employers and employees alike, given the highly emotive issues and the potential ramifications. In the end, the Full Bench confirmed that the reasonableness of any direction (relating to COVID or otherwise) depends on all of the circumstances at the time the direction is given. No blanket rule has been adopted, which says that mandatory vaccination is or is not reasonable in all instances.
This will cause some frustration among employers, in the absence of government public health directives mandating vaccinations, looking for certainty while managing their health and safety obligations.
The Full Bench fell short of endorsing mandatory vaccination in principle, but did appear to offer implicit support, noting that with further consultation the direction might then be reasonable.
Significantly, it was accepted that:
- COVID presents a serious risk, and the emerging variants represent changing circumstances with evolving challenges;
- Vaccines have been effective to limit the symptoms of COVID, and carry significantly less risk than COVID itself;
- Other measures, such as good hygiene, mask wearing, and social distancing are not a reliable substitute for vaccines;
- COVID is a genuine hazard, and must properly be managed, in a workplace where people interact with each other;
- While an employee’s ‘bodily integrity’ is an important consideration, it is not an absolute priority in light of the risk; and
- The employer’s response to the risk need not be required by a safety law; it must only be a reasonable means of managing the risk.
In these respects, the Full Bench has declined to exercise value judgments about the degree of risk of one hazard and another; rather, the approach appears to recognise that the employer’s safety obligations leave for a lot to be assumed when the science itself is evolving, and provided the employer acts reasonably, the direction must be followed.
That said, the reservation expressed by the Full Bench as to whether further consultation will lead to a different result does not offer great certainty. That one circumstance, unrelated to an apparent scientific uncertainty or consideration, can affect the implementation of a genuine safety measure, will give employers cause for pause. The Full Bench did confirm the positive features of a mandatory vaccination direction, including:
- that the motive behind the direction is the health and safety of workers;
- the direction has a logical and understandable basis;
- the direction is a reasonably proportionate response to the risk;
- the response was developed by reference to the circumstances at the workplace, including that workers cannot work from home, but interact with other workers at work;
- that local health directives were taken into account;
- that significant engagement with workers had already occurred, designed to inform and assist with vaccination matters.
Left unresolved was the question of privacy, and whether employees can genuinely consent to the collection of certain personal information when consent is linked to an adverse consequence if consent is not given. This will be an issue to watch for employers capturing information for COVID management purposes.
There is enough to suggest the Fair Work Commission will continue the trend of cases accepting employer intrusion into employee choice in relation to COVID, when work cannot be performed remotely to avoid transmission risk. However, the sensitivity attaching to these directions will require employers to proceed with all industrial caution to ensure employees are fully consulted before directions are implemented.