The Supreme Court of NSW upholds validity of the vaccine mandate - October 2021
Rarely in Australian history has there been such a polarising issue for the Australian populace. Is it legal for the Government and businesses to mandate vaccination for COVID-19? This is a fast moving and fluid situation with decisions being handed down in many different jurisdictions.
What is the position?
The power to issue a vaccination mandate arises from a number of bases including:
a lawful and reasonable direction to employees;
legislative instruments.
Lawful and Reasonable Direction to Employees
We have previously advised on the issues of ‘no jab, no job’. As a reminder, the legal position is that the direction must be lawful and reasonable.
In May 2021 the Fair Work Commission considered the issue of vaccination. The applicant was employed in an aged care facility and was dismissed from her employment in circumstances where the employer required all workers to be vaccinated from influenza and the worker refused (Glover v Ozcare [2021] FWC 2989). The Commission held that the policy to require all staff to be vaccinated was not unlawful ([242]), unvaccinated staff could potentially become super-spreaders and therefore the direction was reasonable ([260]).
On 27 September 2021 the Full Bench of the Fair Work Commission considered the issue of an unfair dismissal Application where the worker refused to be vaccinated in respect of COVID-19 (Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015). Although again in the aged care sector, which was subject to a public health order requiring vaccinations, the Full Bench dismissed the appeal of the applicant on the basis that there was a valid reason for the dismissal. The Commissioner found at first instance that the applicant had failed to comply with a lawful and reasonable direction and therefore was unable to fulfil the inherent requirements of the position (that is, by being vaccinated). It must be borne in mind that the distinguishing feature in this case was that a public health order was issued mandating vaccination which does not exist in all other industry sectors.
The Fair Work Commission has also held that if there are alternative duties a worker could perform without being vaccinated, then vaccination would not constitute an inherent requirement of the position and dismissal on that basis would constitute an unfair dismissal: Barber v Goodstart Early Learning [2021] FWC 2156.
There is no dispute that the request to be vaccinated is lawful. The next issue is whether it is reasonable.
To determine whether the direction is reasonable, the court will consider the following:
work health and safety obligations;
the common law duties;
other statutory obligations;
obligations pursuant to industrial instruments.
Section 19(1) of the Work Health & Safety Act, 2011 (NSW) (‘WHS Act’) states that a person conducting a business or undertaking (‘PCBU’) must ensure, so far as reasonably practicable, that the health and safety of ‘workers’ engaged or caused to be engaged. Section 19(2) extends that duty to non-workers. Section 19(3)(a) then states that the PCBU must ensure, so far as is reasonably practicable, the ‘provision and maintenance of a work environment without risks to health and safety’. That is, the employer must ensure that employees and non-employees are not exposed to a risk of injury and not just an actual injury.
Furthermore, bearing in mind the risk of an unvaccinated person contracting COVID-19 could be death or serious injury then this would place it as, at the very least, a category 2 offence under s 32 which carries a maximum penalty for a body corporate $1,904.650.00.
The duty to ensure the health and safety of workers is paramount: WorkCover Authority of NSW v Central Sydney Area Health Service [2002] NSWIRComm 44.
If a person will come into contact with another person the risk of transmission of the virus arises. If that person is unvaccinated, then this carries the risk of serious injury or death. This therefore potentially constitutes a category 2 offence.
So if an unvaccinated person (employee or visitor to the premises) will come into contact with other persons then it would be reasonable to require that person to be vaccinated. However, if there was to be no person to person contact, such a request would unlikely to be held to be reasonable.
Legislative Instruments
The validity of the NSW public health orders was tested recently in decision handed down on 15 October 2021 in Kassam v Hazzard [2021] NSWSC 1320. A number of plaintiffs commenced proceedings seeking to test the validity of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (‘PHO’) together with s 7 of the Public Health Act, 2010 (NSW) (‘Act’).
The validity of the PHO and the Act were challenged on a number of bases including the following:
the Minister did not undertake any exercise of power in making the PHO;
the PHO was outside the power of s 7 or was an unreasonable exercise of power because of its effect on the fundamental rights and freedoms of people;
it conferred unreasonable powers on Police;
the vaccine was not an appropriate treatment protocol;
the PHO was inconsistent with Federal legislation pursuant to s 109 of the Constitution and should be struck down.
His Honour dismissed the challenges to the PHO’s on the following bases:
it was not the Court’s role to consider the validity of the vaccine at this time;
the curtailing of the movement of persons was anticipated and authorised by the Act which means s 7(2) should not be read down;
the differential treatment of persons because of their vaccination status was not arbitrary;
the exercise of the power of the Minister was genuine;
it was not demonstrated that PHO was not reasonably necessary to deal with the risk to public health and merely impeded a person’s freedom of movement;
the PHO was not inconsistent with the Federal legislation and therefore s 109 of the Constitution did not apply;
the vaccine mandate did not interfere with a person’s bodily integrity as no person was being compelled to take the vaccine – there were simply consequences for that person if they failed to take the vaccine;
the common law already recognised some implied rights and freedoms. The plaintiffs contended that there was an implied right to work and to not be discriminated against. His Honour held that there was no implied right not to be discriminated against – this arises from legislation only. Furthermore, there was no disability discrimination in any event as all persons were being treated in the same manner;
there was no obligation on the Minister to provide procedural fairness to persons prior to entering the PHO.
No doubt this decision will be subject of an appeal to the Court of Appeal and, most likely, the High Court but at this time it is clear that the PHO’s which included the vaccination mandate are legal.
Current Position
The legal position is currently subject to some debate and each situation will have to be looked at on its own merits. Although we note from 1 December 2021 NSW residents who are not vaccinated will have similar freedoms under the PHO as vaccinated persons, this does not water down or weaken an employer’s obligations pursuant to the WHS legislation. The risk of injury or death exists today and will exist post 1 December 2021 for unvaccinated persons (indeed, it may be a larger risk post 1 December 2021).
This creates some very interesting dilemmas for businesses that intend to permit unvaccinated persons to enter their premises and interact with other people.
Permitting an unvaccinated person to interact with other people in your workplace prima facie breaches the WHS legislation despite the Government’s decreed freedoms from 1 December 2021. Bearing in mind the risk of a potential $2 million maximum penalty, businesses should think very carefully about permitting unvaccinated employees (and visitors) from interacting with other persons during the course of their employment/visit. Whether the courts support this position moving forward remains to be seen. Very interesting times ahead!
If you have any questions, please do not hesitate to contact our Workplace Relations Team.