Employers’ power to direct employees to be vaccinated has received a boost in the Fair Work Commission, which has upheld the sacking of a childcare worker who refused a flu jab.
Although the commission said the decision “relates specifically to the influenza vaccination in a childcare environment”, the case confirms labour law experts’ belief that an employer’s direction to get a vaccination can be “lawful and reasonable”.
The question of directing staff to be vaccinated was under some legal doubt – as the Fair Work Commission case is the first of its kind, and could still be the subject of appeal.
Despite Fair Work Ombudsman advice warning employers they may not be able to require vaccinations, experts including the barrister Ian Neil and Adelaide University professor Andrew Stewart have said that employers’ power in common law to give employees “lawful and reasonable” directions could extend to ordering them to get vaccinated.
Bou-Jamie Barber, a childcare worker at Goodstart Early Learning since 2006, brought an unfair dismissal case after she was sacked for objecting to getting a flu vaccination when her employer introduced a new policy requiring it in April 2020.
Barber had been given an opportunity to substantiate her claims she had a “sensitive immune system” and an adverse reaction to a previous flu vaccination, but responded with what the commission described as “vague certificates which attest nothing substantive”.
The FWC deputy president, Nicholas Lake, accepted evidence that flu vaccines are on average 40-60% effective and – at worst – 29% effective. He noted that while efficacy may vary it is “uncontroversial that the influenza vaccination reduces the risk of infection and therefore transmission”.
Australia’s two Covid-19 vaccines are up to 90% effective, although the question of the extent to which they prevent transmission is still being studied.
Goodstart had argued that it was obliged to ensure the health of its workers “so far as reasonably practicable” and to “prevent the spread of infectious disease at its childcare centres”.
Lake agreed that Goodstart “operates within an industry which is highly regulated and where safety is of paramount importance”. It was therefore “logical and necessary” to require vaccines to ensure the safety of vulnerable children and staff.
Lake said he was “satisfied that a valid reason for dismissal exists, by virtue of [Barber’s] conduct in failing to comply with the lawful and reasonable direction … to be vaccinated against influenza”.
Despite noting that “employer mandated vaccination is a topical question in the current pandemic”, Lake warned it would be “audacious if not improvident” to extrapolate the decision beyond its own facts and “say that mandatory vaccination in different industries could be contemplated”.
But Neil has responded to the decision by noting it “is difficult to see why the same reasoning wouldn’t apply to Covid vaccinations” in other industries caring for the vulnerable, such as aged care.
Australia’s Covid-19 vaccination program is voluntary, although Scott Morrison has said national cabinet will determine “where if in any cases there is a requirement to have that vaccine”, such as as a condition for travel, and for frontline health and aged care workers.
Safe Work Australia has issued guidance that employers are not required to order their employees to be vaccinated but may be able to require customers and visitors to prove they have had a jab against Covid-19 as a condition for entry.
The Fair Work Ombudsman has warned employers that “in the current circumstances, the overwhelming majority … should assume that they can’t require their employees to be vaccinated against coronavirus”.
In January Stewart told Guardian Australia it was “fairly easy” for employers to argue that their employees need vaccines because otherwise they are “threatening the ongoing operation of the workplace”.
He said that could depend on the circumstances of the workplace, including “to what extent there is close contact with fellow workers, and customers”.
“If you’re in a back-office role, and it’s possible to maintain social distancing, or teaching university online the argument could be made: there are other ways of safeguarding against the risk of infection … so the employer should reasonably accommodate a preference not to get vaccinated.”
It may also depend on the employee’s reason for refusing. “It may very well be reasonable for a general policy of immunisation but not be reasonable to apply it without exceptions,” Stewart said.