Mandatory vaccination policies: “a strong case in favour”

If the average punter was to solely rely on media reports on the recent Full Bench Fair Work Commission decision in CFMMEU v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059, and unhelpful headlines like ‘policy not lawful and reasonable’, then they could be forgiven for having a false sense of the merit of mandatory vaccination policies.

While the Commission found that Mt Arthur’s direction to workers at its Mine to be vaccinated was ‘unreasonable’ on this occasion, it did so on the basis of an apparent lack of consultation in the factual circumstances of this case. 

Critically, the Full Bench found that Mt Arthur could still implement the policy after consultation. 

Undoubtedly, one of the messages from the decision is that employers must properly consult with employees on the work health and safety issues concerning implementing a policy on vaccination.  Failure to consult may render an otherwise lawful direction or policy unreasonable.  We will take a deeper look at what constitutes proper consultation in a separate bulletin.

In this bulletin, we examine what the Full Bench identified as considerations that support ‘a strong case in favour of a conclusion’ that mandatory vaccination is a reasonable direction.  The case in favour of mandatory vaccination is etched in important workplace safety obligations.

Work health and safety

Employers have fundamental obligations under workplace safety legislation to ensure, so far as is reasonably practicable, the health, safety and wellbeing of all workers at work.  As the Full Bench rightly recognised, the duty is a ‘much higher standard than the exercise of reasonable care’.

The obligation to ensure a safe workplace extends to eliminating, but if that is not possible, then controlling to the greatest extent possible, risks relating to any hazards at work.

In the context of the risks of COVID-19, it is incontestable that employers need to take positive multi-layered steps to address the risk COVID-19 presents to the workplace (and the business and customers).

COVID-19 facts

The Full Bench accepted several factual propositions as being ‘uncontentious’ when it came to understanding the risks of COVID-19:

1. COVID-19 involves a high burden of disease, greater than influenza.

2. Any infected person is at risk of developing serious illness from the virus, which may lead to death.

3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants.

4. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant.

5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.

6. All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.

7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.

8. While other measures, such as mask wearing and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection.

9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.

10. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times).

There are probably many other facts that could be added to the list, including the risk faced to vaccinated people with underlying medical conditions from contracting COVID-19 through to workers legitimately concerned about acquiring COVID-19 at work and transmitting to family and friends who may be vulnerable.

Obligation to comply with lawful and reasonable directions

Almost all employees have a contractual duty to comply with lawful and reasonable directions of their employer, regardless of whether it is expressly stated in an employment contract.  The obligation is implied.  The obligation is also contained in workplace safety legislation.

An employee needs to comply with any safety direction or policy that it is lawful and reasonable.  Disobedience can justify dismissal.

So what would make a COVID-19 vaccination policy lawful and reasonable?

Lawfulness

A direction to an employee is considered lawful:

• if it not illegal or unlawful (for example, directing an employee to commit a crime); and

• it falls within the scope of the employment (which can be treated broadly and capture matters incidental to the nature and purpose of the employment).

If the object and purpose of a COVID-19 policy is to protect employees’ health and safety while they are at work, the Full Bench held that such a direction is likely to be lawful.

Reasonableness

The reasonableness of a direction is a question of fact having regard to all the circumstances.  It must always have a logical and understandable basis.  But determination of reasonableness does not occur in a vacuum.  Instead, courts and tribunals will have regard to the specific facts on a case-by-case basis.

In the case of COVID-19 and workplaces, the Full Bench accepted that there were a range of considerations that ‘provided a strong case in favour’ of a COVID-19 policy being reasonable for Mt Arthur, including:

1. It was directed at ensuring the health and safety of workers.

2. It had a logical and understandable basis.

3. It was a reasonably proportionate response to the risk created by COVID-19.

4. It was developed having regard to the circumstances at the workplace, including the fact that the employees concerned could not work from home, and come into contact with other workers whilst at work.

5. The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time (i.e. easing of restrictions and greater social movements).

6. It was only implemented after the employer spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for its workers.

There may well be many other factors that also support a vaccination policy, including the role the policy plays in assisting in ensuring continuity of business operations or protecting the safety of customers.

Other grounds of opposition rejected

It has been a common theme that opponents to mandatory vaccination have argued about coercion and body integrity.  

The Full Bench rejected the contention that mandatory vaccination constitutes coercion in the legal sense.  The Full Bench also aligned with the NSW Supreme Court in Kassam v Hazzard [2021] NSWSC 1320 that mandatory vaccination does not violate rights to bodily integrity:

People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault. So far as this case is concerned, a consent to a vaccination is not vitiated and a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site.

Takeaways for employers

Even though the COVID-19 policy in this case was found to be unreasonable, the door very much remains open for employers to introduce COVID-19 vaccination requirements in their own workplaces to address workplace safety.

For employers to be able to rely on those policies, they first need to undertake a thorough assessment of the circumstances applicable to their workplace, determine the best approach in minimising the risks associated with COVID-19, and engage in proper consultation about the introduction of such a policy.

And employers have a degree of managerial prerogative to deal with safety risks.  As the Full Bench said:

[264]   In any particular context there may be a range of directions open to an employer within the bounds of reasonableness.  Further, to establish that a direction is reasonable it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interest of the parties.

Though there may be other options, an employer is not prevented from implementing a mandatory vaccination policy if it is assessed, in the circumstances of the workplace, to be the best or preferred way to manage the risk; a risk that increases with the easing of restrictions and new variants of concern.

For new employees, the Full Bench has also indicated that an express term in an employment contract that requires vaccination as a condition of employment may be a preferred way to short-circuit the issues regarding policy implementation.

Regardless of whether employers turn to introduce policies, update their employment contract, or both, there will be no one-size-fits-all solution.  If you think your business would benefit from some expert assistance, please contact us.

Authors: James Mattson & Joshua Handley