The first phase of Australia’s coronavirus vaccination program began on 22 February 2021. Approximately 1.4 million doses of the Pfizer vaccine will be distributed to frontline healthcare workers, hotel quarantine workers and aged care staff and residents over the next several weeks.
The second part of the first phase of vaccinations will be distributed to persons aged over 70, disabled/vulnerable persons and high-risk workers such as ADF and police personnel.
After this, the remainder of Australia’s working population will be asked to take their turn in the queue to receive the vaccine. Chief government ministers, including Scott Morrison, have repeatedly stated that the vaccine will not be mandatory.
However, many working Australians will likely be asking the question as to whether their employers can require them to take the vaccine. This question may be a cause of concern for those who are unable to take the vaccine on medical or religious grounds, or those who object to the vaccine for other reasons.
Fortunately, the question has been recently considered by the law. In the case of Glover v Ozcare  FWC 231, Ms Maria Glover made an application to the Fair Work Commission(FWC) in October 2020 against her employer, Ozcare, on the grounds that she was unfairly dismissed from work.
Ms Glover had worked for Ozcare since 2009. In early 2020, she was informed she could not return to work without an influenza vaccine. Ms Glover objected to this requirement, arguing that she had suffered an adverse reaction to an influenza vaccine as a child. Ms Glover did not provide evidence to prove she was allergic to the vaccine and was taken off the work roster from May.
The CEO of Ozcare, Mr Anthony Godfrey, wrote a letter to Ms Glover on 20 April 2020 stating that the organisation owed a duty of care to its elderly and vulnerable clients to ensure their safety during the Covid-19 pandemic. Mr Godfrey also cited s362B of the Public Health Act 2005 (Qld), which stated that employees could not enter a residential aged care facility from 1 May 2020 without an influenza vaccine, unless that employee had a contraindication to the vaccine.
During the hearing, Ms Glover submitted her belief that Ozcare owed her a duty of care, as an employee, for her health and safety by not forcing her to receive the influence vaccine.
Commissioner Hunt of the FWCstated that an employee’s role and nature of work needs to be considered when deciding whether an employer’s decision to mandate vaccination is lawful and reasonable. The Commissioner hypothesised that by the end of 2021 supermarket Santa Clauses may be required to be vaccinated to work. He stated that such a requirement may not be unreasonable considering the role and nature of such work. Therefore, Commissioner Hunt decreed that such a requirement could be lawful and reasonable in particular circumstances.
Prior to the decision in Ozcare, in Arnold v Goodstart Early Learning  FWC 6083 the FWCdecided to not exercise its discretion to allow a further period of filing an application. Ms Nicole Arnold lodged her application one day past the 21-day deadline.
Ms Arnold was a childcare worker who objected to taking a mandatory influenza vaccine in August 2020. The FWCdid not consider the merits of Ms Arnold’s case to be sufficient to extend the lodgment deadline. Notably, due to Ms Arnold not providing a medical reason to justify her objection.
Ms Arnold did provide a swath of other materials to support her position, which included:
- The King James Version of the Holy Bible
- The Convention Concerning Forced or Compulsory Labour, 1930 (No. 29)
- The Nuremberg Principles No III and IV
- The Universal Declaration of Human Rights
- The Magna Carta
- Various High Court judgments
- Various medical journal articles
- Definitions from dictionaries and other sources
Deputy President Asbury of the FWC stated that whilst Ms Arnold’s case did not lack merit, he considered that Goodstart’s policy of mandatory vaccination was lawful and reasonable. He also considered the materials that Ms Arnold submitted to be irrelevant.
Deputy President Asbury said it was arguable that the Applicant had unreasonably refused to comply with a lawful and reasonable directive which was necessary for her to comply with the inherent requirements of her position, which involved the provisions of care to young children.
Essentially, the decisions in both cases reached the same conclusion. By analogy, it may be lawful and reasonable for an employer to require an employee to receive a vaccine for Covid-19, depending on the nature of the work and the employee’s role within that work.
In the case of frontline healthcare workers, it would likely be lawful and reasonable for an employer to compel an employee to receive a vaccine due to the nature of the work. The role of the employee requires them to come into physical contact with infected persons. Therefore, it would not be unreasonable for the employer to mandate vaccination, considering that other measures like social distancing cannot adequately mitigate the risk of infection in such a workplace.
Conversely, a vaccine mandate might be considered unreasonable and unlawful for another job that requires little interaction with other people. Additionally, in workplaces where preventative measures like social distancing and wearing PPE could adequately reduce the risk of infection could render a mandate to be considered unreasonable and unlawful.
However, case law suggests that a person must have a legitimate medical reason for objecting to a vaccine in circumstances where the requirement is considered lawful and reasonable.
At the end of the day, there is legislation in the Fair Work Act 2009 and Anti-Discrimination Act 1991 (Qld) that determines the grounds on which an employee’s position can be fairly terminated. The argument can be made that legislation would support an objection to a vaccine on religious grounds.
A clear-cut decision regarding the legality of a mandatory Covid-19 vaccination will need to be determined by the state and territory governments, using their regulatory powers and pursuant to relevant work health and safety legislation.
If you have been terminated from employment due to objecting to an influenza or Covid-19 vaccine and believe you have a legitimate religious or medical reason, then please get in touch with us at Cohen Legal to seek advice.