Written by Ruth Rosedale, Daniel Delimihalis, Holly Gretton & Claudia Taranto
As the COVID-19 pandemic continues to evolve and with the emergence of the Omicron variant posing renewed challenges for business and the community at large even as vaccination rates increase across Australia, the question of whether employers can mandate vaccinations in the workplace in the absence of public health orders or directions remains a major topic of discussion and a live issue for businesses and management alike.
It is a complex topic traversing areas including employment, privacy and work health and safety laws making it vital that financial sponsors think critically about their business operations and whether mandatory vaccination is the appropriate course to take for their particular industry and workforce. However, forming a view on vaccination in the workplace for Australian businesses and their senior leadership is unavoidable.
This article expands on our previous articles Follow up: The Federal Government’s perspective on employer’s mandate to vaccinate; Mandate to vaccinate: can employers make employees roll up their sleeves for the COVID-19 vaccine and Are COVID vaccination directions coming to your workplace? and addresses what employers and financial sponsors should consider in determining whether compulsory vaccination is a genuine risk mitigation strategy for their business or, alternatively whether it will likely expose them to potential legal challenge.
What you need to know
Can employers require their employees to be vaccinated against COVID-19?
The simple answer is ‘it depends’.
Certainly there is an upward trend in organisations moving towards strongly encouraging employees to be vaccinated and, in some circumstances, mandating it is a requirement of employment. However, before doing so, care must be taken in assessing whether the nature of an organisation’s business can justify requiring employees to be vaccinated as a ‘lawful and reasonable’ direction.
Reasonable and lawful directions
Some companies have already taken the leap. Private equity-backed food producer SPC captured public attention with its announcement as the first Australian business to mandate the vaccine for its workforce. A number of other companies have since followed suit, including Qantas, Virgin Australia, Coles, BHP and ANZ.
However, in the absence of an underlying public health order or government direction requiring employees to be vaccinated to enter the workplace, a mandatory vaccination requirement will generally only be permissible to the extent it constitutes a ‘lawful and reasonable direction’.
The common law position on what is ‘lawful and reasonable’ is fact dependent and not clear-cut.
Broadly speaking, a direction to get vaccinated will be lawful if it falls within the scope of the employee’s employment and involves no illegality. The scope of an employee’s employment is determined by the nature of the work the employee is engaged to do, the terms of their employment contract and customary practices or the course of dealings between the parties.
Whether a direction is reasonable is a question of fact and assessed by reference to the scope of the relevant employee’s employment agreement and other relevant factors, including the terms of the contract, the nature of the employment, established custom and practice in the workplace and the terms of relevant instruments (such as a modern award and enterprise agreement) and any applicable legislation.
To assist employers in undertaking the assessment of whether mandating a COVID-19 vaccine is lawful and reasonable, the Fair Work Ombudsman (FWO) has issued guidance about what may be ‘lawful and reasonable’ with reference to work across 4 broad tiers. These range from tier 1, where employees are required, as part of their duties, to interact with people with an increased risk of being infected with coronavirus (i.e. hotel quarantine workers) to tier 4, where employees have minimal face-to-face interaction as part of their normal duties (i.e. where they work from home).
The FWO has stated that it is more likely that businesses engaging employees in tier 1 and tier 2 work, where close contact with people is required, will be more successful in arguing that a mandatory vaccination requirement is lawful and reasonable than those with employees in tiers 3 and 4.
Importantly, employers must consider whether their business has employees across more than 1 of the 4 tiers. For most business, a ‘blanket’ or ‘one size fits all’ approach cannot and should not be adopted. Rather, employers will need to carefully consider in what circumstances and for which particular roles it is lawful and reasonable to introduce a compulsory vaccination requirement.
Developing body of case law
In our earlier articles we discussed the recent cases involving Goodstart Early Learning and Ozcare which provided initial guidance to companies in the early stages of the COVID-19 pandemic regarding the legality of mandating the flu vaccine. In those cases, mandating vaccination was found to be a lawful and reasonable direction.
Since then, case law in this space has developed rapidly, particularly as more challenges are made against government ordered COVID-19 vaccination requirements.
In April this year the Full Bench of the Fair Work Commission gave its first substantive views on the mandating of flu and COVID-19 vaccinations under public health orders and the requirements that must be met by an employee asserting that they cannot be vaccinated due to a medical contraindication. The Fair Work Commission found that a receptionist at a residential aged care facility who refused to have the influenza vaccination contrary to a public health order but could not provide medical evidence that she was unable to be vaccinated was validly dismissed.
This was a pivotal decision on the lawfulness of public health orders mandating COVID-19 vaccines for specific industries, holding that vaccination mandates do not violate bodily integrity. However, the dissenting judgement of Deputy President Dean has received significant publicity for her strong views that blanket rules, such as mandating vaccinations across a profession or industry, do not meet the requirements of proportionality, necessity and reasonableness. These comments are illustrative of the significant divide in opinion and passionate response that this topic elicits.
Consultative rather than combative
Most recently, the Full Bench of the Fair Work Commission has highlighted the importance of employer’s engaging in genuine consultation with its workforce before introducing any mandatory vaccination requirement.
BHP introduced a requirement for employees at its Mt Arthur coal mine to be vaccinated against COVID-19 as a condition of site entry. This was successfully challenged on the ground that BHP had not complied with consultation obligations under the Work Health and Safety Act 2011 (NSW) and the Mt Arthur Coal Enterprise Agreement 2019.
The Fair Work Commission made it clear that consultation obligations are part of the circumstances that inform whether an direction is reasonable and found that the relevant employees were not given a reasonable opportunity to express their views or contribute to the decision-making process before the requirement was implemented.
Notably, the Fair Work Commission confirmed that the requirement to consult is determined by the factual context in which the requirement arises. It was specifically noted “if there was a surge in COVID-19 cases such that the risk of transmission substantially increased or if a new, more transmissible or virulent COVID-19 variant became prevalent then the circumstances may warrant a truncated consultation process.”
While this decision may be viewed as a missed opportunity by the Fair Work Commission to endorse mandatory vaccinations in principle, it did helpfully set out that a mandatory vaccination direction would be considered lawful and reasonable where it:
- has a logical and understandable basis;
- is reasonably proportionate to the risk created by COVID-19;
- is developed having regard to the circumstances of the workplace, including contact between workers and whether workers can work from home; and
- is timed by reference to the circumstances of the local area.
Potentially, the decision can be taken as offering implicit support to mandatory vaccination requirements, noting that with further consultation BHP’s direction might have been reasonable.
Where to from here?
What is clear is that there is no one-size-fits all approach.
In what is a highly controversial space, the question of whether a mandatory vaccination could or should be implemented in any given workplace will continue to turn on a risk-based assessment and case-by-case approach to what is appropriate to the particular workplace. Ensuring there is a healthy dialogue and consultation with employees on this issue will also mitigate the risk of dissatisfaction and potential legal challenges.
 Given the likely breadth of information in relation to this topic, this article does not intend to cover industries or sectors where public health orders have mandated vaccinations as requirement of an employee’s employment or their attendance at the employer’s workplace.