Vaccination related matters

Owens v I-Med Radiology Ltd [22] FWC 1823 (Asbury DP, 12 July 2022)

The employee was a radiographer.  In October 2021, the employer implemented a policy requiring employees to be vaccinated against COVID-19. The Queensland Government issued public health orders in November and December 2021 that prohibited workers in healthcare settings from entering healthcare settings unless they were vaccinated by 15 December 2021. 

The employee was dismissed in late December 2021. The employer argued that the unfair dismissal application was filed outside the statutory time limit. The Commission concluded that the application had not been filed late and therefore the employee was able to have the merits of her unfair dismissal application determined. 

The Commission expressed a provisional view that there were arguments in the employee’s application that would be unlikely to succeed and would likely be irrelevant to the question of whether her dismissal was unfair. To assist the employee to make an informed decision about the future conduct of her case, the Commission noted that the following arguments in relation to workplaces that are subject to government public health orders had been emphatically rejected in numerous cases in court and in the Commission:

1. The Fair Work Commission is not a court and has no power to make a binding declaration about the validity of state or federal legislation including health directives or orders 
2. At the time of the employee’s dismissal and to date, Australian courts have upheld the validity of public health orders issued in response to the COVID-19 pandemic including requirements that workers in particular settings are vaccinated
3. The argument that public health orders issued by state governments are inconsistent with federal law and are invalid because of s.109 of the Constitution has been rejected by Australian courts
4. At the point the employee was dismissed, she was subject to the requirements of a public health order issued by the Queensland Government and the employer was prohibited by law from allowing her to attend the workplace unless she provided evidence of vaccination
5.  A requirement that the employee comply with the public health order by receiving a vaccine, to continue to work for an employer, does not involve coercion or forcing the employee to participate in a medical trial
6. Incentives to encourage employees to be vaccinated are not coercion
7. The employee is entitled to her views about vaccination and to refuse to be vaccinated, but that is a choice and to decline to be vaccinated or provide proof of vaccination pursuant to legal requirements for entry to a workplace, will result in the employee being legally excluded from the workplace
8. While the choice may be difficult, it is nevertheless a choice
9. COVID-19 vaccinations are approved for use in Australia pursuant to Commonwealth legislation and employers are not required to prove their safety or efficacy to employees or to the Fair Work Commission in the event of a dispute with an employee
10. Employers are not required to lobby governments to have directives revoked or amended before dismissing employees for non-compliance.

Jovcic and Anor v Coopers Brewery Limited [2022] FWC 1931 (Colman DP, 22 July 2022)

Two employees from South Australia were dismissed because they did not comply with the employer’s COVID-19 vaccination policy. 

The employees argued that:

• The policy did not serve its stated purpose because, while the employer relied on ATAGI advice in implementing the policy, ATAGI’s advice that vaccination reduced transmission of the virus was wrong and 
• It was unreasonable for them to be directed to be vaccinated because they objected to being vaccinated due to their Serbian Orthodox religious beliefs

The employees relied on evidence of an expert to support their argument. The Commission was not persuaded that ATAGI’s advice was wrong and concluded that it was reasonable for the employer to rely on ATAGI’s advice in developing and implementing its policy. 

The employer had some immunocompromised workers and the Commission concluded that even if the vaccines only modestly reduced the risk to the lives of those workers, that would weigh in favour of a decision to implement the policy. 

The Commission accepted that the employees had genuine religious grounds for not wanting to be vaccinated but did not consider it harsh, unjust or unreasonable of the employer to require them to comply with the policy or dismiss them when they refused to do so. 

The Commission decided that there were two valid reasons for dismissal: the employees. Firstly that they failed to comply with a lawful and reasonable direction; and second, they were unable to perform the inherent requirements of their role because they were unvaccinated and therefore not able to enter the workplace. 

Marriott v Baptcare Limited [2022] FWC 300 (Johns C, 28 April 2022)  

The employee worked in the North/West Customer Service Support team. In March 2020, the employer directed the employee to work from home due to COVID-19 lockdown measures.  

In 2021, the Victorian Government introduced a public health direction that required certain employers to ensure workers who had not provided evidence of COVID-19 vaccination did not work outside their homes. The employee refused to provide evidence of his vaccination status. In November 2021, his employment was terminated with 4 weeks’ pay in lieu of notice.  

The Commission noted that ample decisions of the Commission support the proposition that failure to meet the requirements of a public health direction support a valid reason for dismissal. However, in this case, the public health direction dealt with work outside the home, and the employer did not require any North/West Customer Service Support employee to attend work in person until 24 February 2022.  

The Commission concluded that the dismissal was premature. For more than 3 months after the employee was dismissed, he could have continued to perform his work at home, like his vaccinated Customer Service Support colleagues. As at the date of the dismissal, there was no valid reason for dismissal because there was no reason why the employer could not have allowed the employee to continue in his employment until 24 February 2022, when the employer required Customer Service Support employees to attend the office. The Commission decided that the dismissal was unfair.  

The Commission did not reinstate the employee because since 24 February 2022, the employer has required Customer Service Support employees to attend the office and the employee could not do so because he is unvaccinated. The Commission also concluded that the employee suffered no economic loss and so did not order the employer to pay any compensation.  

Gee v Eastern Health (Wilson C, 22 April 2022)  

The employee was a project officer for a health provider. The employer said that in March 2020, employees were offered the option to work from home if they could. This was a temporary arrangement caused by the COVID-19 pandemic.  

In 2021, the Victorian Government introduced a public health direction that required the employer to ensure its staff were vaccinated against COVID-19 unless they had a valid medical exemption, before it allowed them to enter the employer’s healthcare facility.  

The employee said that she did not intend to be vaccinated and asked to work from home indefinitely. She argued that it would be reasonable and practical because her role was administrative and had no client face-to-face contact. The employer said that working from home permanently was not sustainable and that vaccination was an inherent requirement of employment for all staff unless they were exempt. 

The Commission did not accept the employee’s argument that her employment contract had been changed to allow her to work from home permanently if she chose. That would be counter-intuitive because in-person interactions with patients and staff would always be necessary for the employer, who was a major public health authority.  

The Commission concluded that the employer had a valid reason to dismiss the employee because she could not fulfil the inherent requirements of her job without providing her vaccination information. Before she was dismissed, the employee was notified that her dismissal was contemplated and what she had to do to avoid dismissal. 

Roy-Chowdhury v Ivanhoe Girls’ Grammar School (Young DP, 12 April 2022)  

The employee was a risk and compliance manager at a school. The Victorian Government introduced a public health direction which prohibited the employer from allowing unvaccinated education workers from working onsite unless they had a valid exemption.  

The employee advised that she intended to wait for the Novavax vaccine. She asked to work from home or take leave without pay until she could receive the Novavax vaccine.  

The employer said that waiting for the Novavax vaccine would not meet the requirements of the public health direction. The employer advised that if the employee had not complied with the public health direction when the school returned to onsite learning, she would be put on unpaid leave until 15 November 2021, to give her time to obtain advice and decide whether she would get vaccinated. She was told that if she did not comply by 15 November, her employment would be terminated. On 15 November, while on leave without pay, the employee was dismissed with immediate effect.  

The employee said that she had successfully worked from home for 16 weeks during lockdowns. She said that she was able to manage interaction with staff via Zoom meetings and phone calls and that she had attended workshops and training, engaged consultants and delivered feedback to the school’s board, all while working from home.  

The Commission noted that during the lockdowns in Victoria, students and most staff were not onsite. This was atypical and did not reflect the conditions in which the employee’s duties would ordinarily be undertaken. The Commission accepted the employer’s evidence that the employee was required to be onsite for at least some aspects of her role such as participating in emergency management drills. 

The Commission decided that because the employee was not ready, willing, and able to perform the requirements of her role, there was a valid reason for her dismissal.  

The employee argued that she was not given notice of termination under section 117 of the Fair Work Act 2009. The Commission noted that the employer was entitled to dismiss the employee with immediate effect by making payment in lieu of notice. The amount of the payment in lieu was the amount the employee would have received for the hours she would have worked in her notice period. As the employee was on leave without pay at the time of her dismissal, the Commission concluded she was not working any hours and was not entitled to any payment.  

Mitchell v Kinda Kapers Holdings Pty Ltd (Saunders DP, 19 April 2022)  

The employee was a Manager and Educational Leader at a daycare and preschool centre. The New South Wales Government issued a public health order which required education and care workers to not work at an early education and care facility after a certain date unless they were vaccinated against COVID-19 or had a medical exemption certificate.  

The employee said that she was going to see a doctor about a possible medical exemption. When the employer followed up, the employee said that her doctor would not sign the medical exemption certificate and had advised her to get vaccinated.  

On 1 November, the employer told the employee that she was being stood down from 8 to 28 November and if she did not intend to be vaccinated after 28 November, the employer would need to dismiss her.  

Then on 11 November, without warning, the employer dismissed the employee, effective immediately and with no payment in lieu of notice.  

The employee admitted that even if her employment had continued until 28 November, she would not have had a first vaccine dose by that date. The Commission concluded that if the dismissal had not happened on 11 November, it would have happened on 28 November.  

The Commission concluded that there was a valid reason for dismissal because the employee was not able to fulfil the requirements of her role and there were no alternative duties for her to perform.  

The Commission also noted that the employee would not have received wages from 11 November onwards because the public health order meant she was not able to enter the workplace. So even if the employee had been given notice of termination, she would not have been entitled to wages during the notice period.  

Stevens v Epworth Foundation [2022] FWC 593 (Colman DP, 17 March 2022).  

The employee worked as a dietician for the employer, a healthcare facility. The Victorian Government introduced a public health direction that prohibited healthcare workers from working onsite unless they were vaccinated against COVID-19 or had a valid medical exemption.  

The employee objected to providing information about her vaccination status. She took sick leave, annual leave and long service leave. By letter, the employer told the employee that it had grounds to terminate her employment because she could no longer fulfil the inherent requirements of her role. It invited the employee to show cause why her employment should not be terminated.  

The employee asked for her long service leave to be extended because the government emergency powers in force in Victoria were due to expire. The employer refused. The employer told the employee that the Victorian Government had announced that the public health direction would be renewed, and that the employer had also implemented its own COVID-19 vaccination policy.  

The employee said she was willing to take PCR tests to show she did not have COVID-19. The employer responded that negative PCR test were not an exemption from the public health direction and dismissed the employee.  

Due to the public health direction, the employee was unable to perform the inherent requirements of her role because she could not lawfully enter the healthcare facility. The Commission accepted that the employer therefore had a valid reason to dismiss the employee. 

The Commission accepted that the employer had reasonable business grounds to refuse employee’s request to take further long service leave. The Commission agreed that the public health direction did not allow workers to remain unvaccinated if they returned negative COVID-19 tests. In relation to the employee’s argument that the public health direction breached federal privacy and anti-discrimination laws, the Commission concluded that the Privacy Act 1988 (Cth) allowed evidence of vaccination status to be gathered, used and stored and that being unvaccinated was not a protected attribute under federal anti-discrimination law.   

The Commission decided that the employee's dismissal was not harsh, unjust or unreasonable. The show cause letter notified the employee of the proposed reason for dismissal and gave her an adequate opportunity to respond.  

Johnson v Flinders Adelaide Container Terminal Pty Ltd [2022] FWC 371 (Anderson DP, 25 February 2022).

The employee was a stevedore. The South Australian Government issued a direction that prohibited people from embarking on a commercial vessel unless they had been vaccinated against COVID-19 or had a valid medical exemption. 

The employee notified his employer that due to his concerns about safety, he would not get vaccinated. The employee did not work any shifts after the government direction came into operation. Unvaccinated staff without valid medical exemptions were stood down with pay. The employee decided to take personal leave and annual leave rather than being stood down. The employer said it would grant him annual leave once his personal leave expired, but would not grant more than one month’s annual leave.

Due to the government direction, while the employee remained unvaccinated he was not lawfully able to fulfil a core element of his role as a stevedore, which was to work on commercial vessels. The Commission accepted that this was a valid reason for the employee’s dismissal.

The Commission decided that the employee's dismissal was not harsh, unjust or unreasonable. The employee was told in advance of the likelihood of dismissal and the reason. He had multiple opportunities to respond and he did so.

Hillenaar v RTL Mining and Earthworks Pty Ltd [2022] FWC 484 (Wilson C, 4 March 2022). 

The employee worked at a mine. The Victorian Government introduced a public health direction that required people performing onsite mining work to be vaccinated against COVID-19 unless they had a valid medical exemption.

After being suspended without pay, the employee told the employer that he had booked a vaccination. The employer confirmed that if the employee was vaccinated by a certain date, he would be allowed to return to work. The employee subsequently told the employer that he did not attend the vaccination appointment.

Due to the public health order, the employee was unable to perform the inherent requirements of his role because he could not lawfully enter the work site. The Commission accepted that the employer therefore had a valid reason to dismiss the employee.

The Commission decided that the employee's dismissal was not harsh, unjust or unreasonable. There were no procedural defects in the dismissal process.

O’Toole v Australian Community Support Organisation Ltd [2022] FWC 477 (Masson DP, 3 March 2022).

The employee was a Family and Carer Program Worker. The Victorian Government introduced a public health direction that required the employer to ensure workers who had not been vaccinated against COVID-19 did not attend its facility unless they had a valid medical exemption.

The employee told the employer she was unvaccinated but did not need to attend the facility because she could perform her role from home.

Face-to-face service delivery remained a feature of the employee’s role during the pandemic. The Commission decided that the employer was entitled to require the employee to carry out the full requirements of her role which included attending the employer’s facility. The employer had a valid reason to dismiss the employee because the employee could not lawfully attend the employer’s facility.

The Commission decided that the employee's dismissal was not harsh, unjust or unreasonable. Before she was dismissed, the employee was given opportunities to respond to the employer’s concerns about her unvaccinated status and at each opportunity she confirmed she was undecided and would not be getting vaccinated within the required timeframe.

Bateson v Ventura Transit Pty Ltd [2022] FWC 355 (Anderson DP, 28 February 2022).  

The employee was a bus driver. The Victorian Government issued a public health direction that prohibited employers from allowing transport workers to work outside their homes unless they had been vaccinated against COVID-19 or had a valid medical exemption. The employee did not provide proof of vaccination or a valid medical exemption and was stood down without pay.  

Due to the public health direction, the employee was not able to fulfil his role as he could not attend for work. The Commission decided this was a valid reason for the employee’s dismissal.  

The Commission decided that the employee's dismissal was not harsh, unjust or unreasonable. There were no suitable alternative duties reasonably available. Before he was dismissed, the employee did not receive the employer’s letters advising of a further opportunity to meet face-to-face, because they were sent to an incorrect email address. However, the employee had read the staff memorandum posted on the noticeboard at the employer’s depot, which advised of the public health direction and the employer’s requirements. The employee was also handed a hard copy letter that was addressed to him regarding the public health direction and was subsequently stood down.

As a result, the Commission was satisfied that the employee had an opportunity to respond to the risk that he would be dismissed, and that he did so in writing. The Commission decided that the denial of procedural fairness in circumstances where dismissal was based on a direction imposed by law did not render the dismissal unfair.  

Edwards v Regal Cream Products Pty Ltd [2022] FWC 257 (O’Neill C, 9 February 2022). 

The employee was a Mixed Plant Operator at the employer’s facility. The Victorian Government introduced a public health direction that required manufacturing workers to be vaccinated against COVID-19 in order to work onsite, unless they had a valid medical exemption. The employee confirmed he did not intend to be vaccinated.  

The employee was unable to meet the inherent requirements of his role, which could only be performed onsite. There were no suitable alternative duties available. If the employer allowed the employee to work outside his home, the employer would have committed an offence and been liable to pay a substantial financial penalty. The employer therefore had a valid reason to dismiss the employee.  

The Commission decided that the employee's dismissal was not harsh, unjust or unreasonable. The employee was given ample opportunity to provide a valid medical exemption.  

Shepheard v Calvary Health Care trading as Little Company of Mary Health Care Limited [2022] FWC 92 (Saunders DP, 20 January 2022).

The employee provided personal care assistance to residents at an aged care facility. The New South Wales Government introduced a public health order that prohibited employees of aged care facilities from entering the facilities unless they were vaccinated against COVID-19 or had a valid medical exemption.

The employee raised concerns about the lawfulness of the public health order and the privacy of her medical information. She did not provide evidence of vaccination or a valid medical exemption.

The Commission did not accept the employee’s argument that she was dismissed because she exercised a right to privacy in relation to her medical information. The employer was legally required, due to the public health order, to obtain medical information where an individual sought an exemption.

The Commission decided that due to the public health order, the employee was unable to fulfil the requirements of her role. There were no alternative duties available for the employee. If the employer had permitted the employee to enter her workplace, it would have been in breach of the government public health order  and the employer’s accreditation as an aged care provider may have been put at risk. For those reasons, the employer had a valid reason to dismiss the employee.

The Commission decided that the employee's dismissal was not harsh, unjust or unreasonable. Before she was dismissed, she was given opportunities to respond to the reason for her dismissal, and she did respond.

Fawaz v G4S Integrated Services Pty Ltd (Mirabella C, 7 April 2022)  

The employer had a contract with Court Services Victoria to provide security officers, including the employee, to Victorian courts. 

While the Victorian Government introduced a public health direction regarding COVID-19 vaccination, the direction did not apply to the employee because it excluded people who worked in connection with court proceedings.  

However, Court Services Victoria implemented its own vaccination policy that required anyone who worked at a Court Services Victoria workplace to be fully vaccinated or provide proof of a medical exemption. The employee was dismissed for failure to comply. 

The Commission decided that there was a valid reason for dismissal because the employer’s contract with Court Services Victoria prohibited it from allowing the employee to attend the workplace.  

The Commission concluded that the employee was told that if he did not provide evidence of vaccination by a certain date, his employment would end. The employee was given an ample opportunity to respond. 

Glover v Ozcare [2021] FWC 2989 (Hunt C, 26 May 2021).

The employee was a care assistant who provided at-home care to the employer’s clients. The employer was an aged and disability care provider. The employer changed their Immunisation Policy by making influenza vaccination an inherent requirement for all employees, volunteers and students in aged care facilities and community care programs.

The Commission decided that the employer’s direction that all client-facing employees receive an influenza vaccination, without any exceptions, was lawful and reasonable.

The employee said that she had been told that as a child, she suffered some anaphylactic reactions to the influenza vaccine. Consequently, the employee refused to be vaccinated.

The employer had a valid reason to dismiss the employee, having regard to her capacity and the employer’s operational requirements.

The Commission decided that the employee's dismissal was not harsh, unjust or unreasonable. Before being dismissed, the employee was allowed to access her very substantial amount of paid personal leave and then her annual leave and long service leave. The employee was given a very substantial period of time to respond to the employer’s reason for not rostering her on for work. There were no non-client-facing roles for the employee to be moved into.

CSL Limited t/a CSL Behring v Papaioannou [2018] FWCFB 1005 (Ross J, Sams DP, Platt C, 16 February 2018)

The employee was employed as a Plasma Receipt Operator. He was dismissed because he had no capacity to perform his pre-illness duties. At first instance, the Commission decided that the dismissal was harsh. The employer appealed.

A Full Bench of the Commission allowed the appeal and quashed the first instance decision. The Full Bench adopted the reasoning in Jetstar Airways Pty Ltd v Neeteson-Lemkes [2013] FWCFB 9075 and concluded that in a dismissal related to the employee’s capacity, the Commission must consider whether, at the time of dismissal, the employee suffered from the alleged incapacity.

Lord v Amywood Pty Ltd t/a Central Kitchens [2022] FWC 243 (Wilson C, 7 February 2022).

The employee worked as a cabinetmaker on a casual basis. The Victorian Government issued a public health direction that restricted certain workers from attending construction sites unless they were vaccinated against COVID-19 or had a valid medical exemption.

The employee rarely entered construction sites and spent most of his time working in the employer’s factory. The employee raised concerns about the vaccine with the employer. Subsequently, the public health direction changed so that unvaccinated employees were prohibited from entering the employer’s factory and office.

The employee stopped coming to work on the day before the public health direction came into effect.

The employee argued that the employer notified him that he was dismissed when the employer told its staff about the public health direction. The employer raised a jurisdictional objection that the employee had not been dismissed.

The Commission decided that the employer had not dismissed the employee. While the employer no longer offered work to the employee, this was consistent with the employee’s status as a casual employee and the fact that he was unable to hold himself out as being available for work, because he could not lawfully attend the workplace due to the public health direction. The employee’s application was dismissed.

Callender v MCI Southport Properties Pty Ltd t/a Southport Day Hospital/Cosmetic Evolution [2022] FWC 164 (Lake DP , 25 January 2022)

The employee worked on a casual basis as a registered nurse. The employer announced that staff were required to be vaccinated against COVID-19 by a certain date, otherwise they would not be able to attend the workplace. Staff were told to contact the employer if they had a medical or other reason why they could not be vaccinated.

The employee told the employer she was hesitant about the vaccine and asked to be allowed not to be vaccinated. The employer told the employee that unvaccinated staff would not be rostered for work and that the employee should seek advice from her doctor. The employee then made an unfair dismissal application to the Commission.

The employer raised a jurisdictional objection that the employee had not been dismissed. The Commission decided that the employer’s mandatory vaccination policy was lawful and reasonable. The Commission was satisfied that the employer had not dismissed the employee. Rather, the employee would not be offered any further shifts unless she was vaccinated or provided a valid medical exemption. The jurisdictional objection was upheld.

Sharif v Calvary Health Care Adelaide Ltd [2022] FWC 445 (Anderson DP, 4 March 2022).

The employee was a Servicing Theatre Supply Officer at a hospital. The employer introduced a policy that required hospital employees to be vaccinated against COVID-19 by a certain date and provide evidence of vaccination. Employees who had a valid medical exemption or conscientious objection could request an exemption so that the employer could conduct a risk assessment as described in the vaccination policy. 

The employee raised concerns and the employer corresponded with the employee about the policy. 

The South Australian Government subsequently issued a public health direction that prohibited hospital employees from working in a hospital unless they were vaccinated against COVID-19 or had a valid medical exemption.

The employer advised the employee of the public health direction and said that it had not identified suitable alternative duties for the employee. The employee was invited to give further feedback within a set timeframe. After that timeframe passed and the employee had not provided an exemption, the employer dismissed the employee.

The employer argued that the employee’s unfair dismissal application had no reasonable prospects of success and asked the Commission to dismiss it.

The Commission made a provisional assessment that the employee’s case was not strong. However, there were facts in dispute, including whether alternative duties were available to the employee and whether the dismissal satisfied procedural fairness requirements. The Commission decided that the employer had not satisfied the high threshold required for the case to be struck out.

Cordiano v Love and Co Real Estate [2022] FWC 467 (Platt C, 3 March 2022).

The employee was a real estate agent. The Victorian Government introduced a public health direction that restricted real estate agents from performing work outside their home unless they were ‘an excepted person’ or had been vaccinated against COVID-19.

The employee contracted COVID-19 and was required to isolate. She told the employer that she had a vaccination exemption because her doctor had advised it was dangerous to be vaccinated so soon after a COVID-19 infection.

The employer asked for evidence of the exemption and the employee refused to provide it. The employer raised a jurisdictional objection that it had not dismissed the employee. The employer argued that the employee had repudiated her employment contract by failing to get vaccinated and/or failing to provide proof of being exempt from the vaccination requirement.

The Commission decided that the public health direction did not appear to require employees to provide evidence to support their ‘excepted person’ status, and the employer did not give a direction to the employee to provide such evidence. 

The Commission decided that that the employer had dismissed the employee because she was not able to meet the inherent requirements of her employment contract. She was legally unable to work outside her home and no alternative work was available. The employer’s jurisdictional objection was dismissed.

Varichak v COG Regional Team Pty Ltd [2022] FWC 186 (Colman DP, 28 January 2022).

The employee was a casual forklift driver. The Victorian Government introduced a public health direction that required certain employers to prevent employees from working outside their home unless they provided evidence of a COVID-19 vaccination or a valid medical exemption.

The employer told the employee he could not be rostered to work unless he provided evidence that he had been vaccinated or had an exemption. The employer raised a jurisdictional objection that it did not dismiss the employee and would offer him shifts if he became eligible to attend the workplace.

The Commission decided that the employer was required by law to refuse to allow the employee to attend the workplace because he had not provided evidence of his vaccination status. The employee was still recorded on the employer’s system as an ‘active’ employee and had not been dismissed. The employer’s jurisdictional objection was upheld.

Liang v Empire Hospitality Australia Pty Ltd [2021] FWC 5980 (Boyce DP, 11 October 2021).

The employee was a casual housekeeper. The employer provided housekeeping and cleaning services to hotels and apartments.

The employee argued that she was dismissed for exercising a workplace right because she was not offered any shifts at a particular hotel. The employer raised a jurisdictional objection that the employee was not dismissed. It said it could not offer her shifts at the hotel in question, because it had been converted into a hotel quarantine facility and the New South Wales Government had issued a public health order that required that only vaccinated staff work there.

The Commission decided that the employer did not dismiss the employee and she was not forced to resign. The employer was not able to offer the employee shifts at the quarantine hotel because she was not vaccinated. The employer’s jurisdictional objection was upheld.

Construction, Forestry, Maritime, Mining and Energy Union and Anor v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal [2021] FWCFB 6059 (Ross J, Catanzariti VP, Saunders DP, O’Neill C, Matheson C, 3 December 2021).

The employer announced a ‘site access requirement’ whereby all workers at its Mount Arthur coal mine must be vaccinated against COVID-19 and provide evidence of vaccination by specified dates. The parties involved in the dispute asked the Commission to decide whether the site access requirement was a lawful and reasonable direction to employees at the mine who were covered by the Mt Arthur Coal Enterprise Agreement 2019.

The New South Wales Government had not made any public health order that required employees at the mine to be vaccinated against COVID-19.

A Full Bench of the Commission decided that the employer did not consult with employees as required under the Work Health and Safety Act 2011 (NSW). As a result, the site access requirement was not a reasonable direction.

However, the Full Bench noted that if the employer had consulted employees as it was obligated to do, a range of matters would have weighed in favour of finding that the site access requirement was reasonable, including that: it was directed at ensuring the health and safety of workers at the mine; mine workers cannot work from home and they come into contact with other workers; and the employer had encouraged vaccination and set up a vaccination hub for workers at the mine, before it implemented the site access requirement.

The Full Bench also noted that the employer could consult employees on whether the site access requirement should be imposed, and then make a decision about whether to implement it. The Commission offered to help the parties facilitate discussions about the consultation process.

Statement (Saunders DP, 17 December 2021).

2 weeks after the Full Bench decision was handed down, the Commission issued a statement about the case. In its statement, the Commission stated that:

• after the Full Bench handed down its decision, the employer withdrew its direction to employees to comply with the site access requirement
• the employer consulted with employees and their representatives about whether a site access requirement (which had been revised with new dates for compliance) should be introduced and

after the consultation process was complete, the employer announced to all employees that it had decided to introduce the revised site access requirement.

Construction, Forestry, Maritime, Mining and Energy Union and Ors v BHP Coal Pty Ltd t/a BHP Billiton Mitsubishi Alliance/BMA and Ors [2022] FWC 81 (Asbury DP, 21 January 2022).

Various unions made an application for the Commission to deal with a dispute under various enterprise agreements. The employers had announced a ‘site access requirement’ that required employees to provide evidence of vaccination against COVID-19 as a condition of entry to Queensland coal mines and related sites.

The Commission did not arbitrate the dispute between the parties. The parties asked the Commission for a recommendation as to whether the site access requirement was a lawful and reasonable direction, considering employees’ privacy rights and rights to bodily integrity.

The Commission’s recommendation stated that:

• the practical effect of the site access requirement was to pressure employees to provide the employers with sensitive health information about their vaccination status. However, this was not coercion or economic duress;
• the site access requirement did not breach the Privacy Act 1988 (Cth) and so was not unlawful on that basis and was not unreasonable in the context of privacy or bodily integrity issues; and

the site access requirement was a lawful and reasonable direction having regard to the Privacy Act 1988 (Cth) and the right to bodily integrity.

Reilly v Wilson Security Pty Ltd [2021] FWC 6596 (Williams C, 13 December 2021).

The employee made an application for the Commission to deal with a dispute under the Wilson Security WA – Public Transport Authority (PTA) Contract Enterprise Agreement 2013.

The dispute resolution clause of the enterprise agreement referred to disputes relating to a matter under the enterprise agreement or the National Employment Standards.

The employer introduced a vaccination policy that required employees to be vaccinated against COVID-19. The dispute was about staff being required to upload their vaccination status online by a specified date. The employee argued that he had asked various questions about the policy and the employer’s response was delayed and incomplete.

The Western Australian Government had issued a public health direction. The parties agreed that the public health direction applied to the employer and the employee.

The Commission noted that it could only deal with a dispute in the way that the dispute resolution clause in the enterprise agreement allowed. In this case, the Commission was satisfied that the dispute was not a matter that arose under the enterprise agreement or under the National Employment Standards. Accordingly, the Commission had no jurisdiction to deal with the dispute. The employee’s application was dismissed.

Nidai v Autonexus Pty Limited (Matheson C, 11 April 2022)  

The New South Wales Government issued a public health order that prohibited workers who lived in ‘areas of concern’ from attending work outside their area of concern, if they had not received one COVID-19 vaccine dose or did not have evidence of a medical exemption.   

The employee was a forklift driver and lived in an area of concern. He refused to provide evidence that he was vaccinated or medically exempt. The employer told the employee he was stood down without pay under section 524 of the Fair Work Act 2009. 

3 weeks later, the public health order changed and unvaccinated employees could return to work. The employer notified the employee and ended the stand down. The employee returned to work.  

The employee argued that the employer was not able to stand him down under section 524. He sought payment for the period he was stood down.  

The Commission decided that the employer’s business had not stopped operating and there had been no ‘stoppage of work’, therefore the stand down was not authorised under section 524.  

However, the Commission refused to order the employer to pay the employee for the stand down period. The Commission noted that during the 3-week stand down, the employer was unable to allow the employee to work on its premises due to the public health order and the employee’s refusal to provide evidence of his vaccination or exemption status. The employee was effectively unable to perform the inherent requirements of his role for the 3-week period. The employee had been given the option to ask to use his accrued leave during the stand down, but refused. 

Wilkinson v Eastern Health [2022] FWC 260 (Gostencnik DP, 10 February 2022).

The employee was an associate nurse unit manager. She made an application for the Commission to deal with a dispute under the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020.

The Victorian Government issued a public health direction that required the employer to take all reasonable steps to ensure that unvaccinated workers (other than excepted persons) did not work on the employer’s premises.

The employee was not vaccinated and was not an excepted person. She obtained a medical certificate that certified her as unfit for work for a number of days due to illness. The employer told the employee that she would be stood down and was not entitled to sick leave.

The employee argued that under the enterprise agreement, she was entitled to paid personal leave and while she was on paid personal leave, she was excused from attending work and therefore excluded from the employer’s obligations under the public health direction to prevent her from attending the workplace.

The employer argued that the employee was not entitled to paid personal leave under the enterprise agreement. The entitlement was based on the number of ordinary hours the employee would have worked on the days on which the leave was taken. The number of hours the employee would have worked was zero, because the employer was not legally permitted to allow the employee to work on its premises and she could not carry out her role from home.

The Commission accepted that from the date when the public health direction came into effect, the employee would not have worked any ordinary hours because the employer could not lawfully allow the employee to work at its facilities. She was not entitled under the enterprise agreement to be paid for personal leave after that date. The employee’s application was dismissed.