The last two years have been challenging for employers in more ways than one.  Employers have dealt with the financial and operational effects of COVID-19 and now they are faced with a new challenge, the dilemma of mandatory vaccination.  In this Employment Update we will briefly consider two recent cases dealing with mandatory COVID-19 vaccination in the workplace.

Mandating COVID-19 vaccination based on a workplace risk assessment

In a recent decision of the Federal Court, Cox v DP World Brisbane Limited [2021] FCA 1335, the Court considered whether the employer’s implementation of a mandatory COVID vaccination policy, after employees refused to provide vaccination information, was: threatened adverse action; threatened breach of contract; and/or a contravention of the workplace enterprise agreement (‘allegations’).

In September 2021, the Chief Executive Officer (CEO) of the national container stevedoring business  sent a communication to relevant employees imposing a deadline by which the employees were to be vaccinated.  The CEO confirmed that failure to be vaccinated in accordance with the policy by the nominated compliance date may result in termination.  On 2 November 2021, the GM of the Brisbane Terminal emailed non-responsive employees a letter referencing that “vaccination against the Covid-19 virus is now a condition of employment at DP World”.  The GM, in his correspondence, referred to the CEO’s earlier communications advising that a vaccination deadline was in place and invited the employees to show cause why their employment should not be terminated on the basis that they were “unwilling to comply with the requirement to be vaccinated and could no longer meet the requirements for performing work”.

Before a show cause process could be completed, eleven employees from the Brisbane terminal made an application to the Federal Court regarding the allegations and sought interlocutory injunctive relief from the Court to prevent the employer from terminating their employment due to their non-compliance with the vaccination policy.

What is interesting about this case is that the Court was required to consider whether the employees’ allegations about the implementation of the employer’s mandatory COVID-19 vaccination policy had prospects of success.  In doing so, the Court looked at the work performed by the employees, the work environment and work arrangements at the Brisbane Terminal.  The Court considered the categories of work being performed, including general duties; operation of machinery and yard equipment; clerical work and crane driving; and then whether the work was indoor or outdoor work; in a confined space; and required interaction with others (including the public).

The Court heard that the GM had consistently and repeatedly considered the safe management of COVID-19 in the workplace to keep employees safe and the terminals operating.  The GM attended numerous meetings, including with the relevant union to discuss and answer questions in relation to the Draft Risk Assessment and COVID-19 vaccination mandate.  After positive cases of COVID-19 were reported at terminals in New South Wales and Victoria, the employer undertook a risk assessment to assess whether current controls to reduce the risk of the spread of COVID-19 were adequate.  It was a consequence of that risk assessment that the employer decided to mandate COVID-19 vaccination for all terminals.

After considering the evidence / arguments from the parties, Justice Logan was not convinced that the employees had a “particularly compelling” case.  His Honour was mindful that there were private and public interest considerations relating to the risk of supply chain interruptions if unvaccinated employees were unable to attend site to perform work.  In rejecting the interlocutory injunctive relief sought by the employees, Justice Logan considered a number of factors, the most relevant of which was that the employer agreed to provide an undertaking to extend the compliance deadline for the mandatory vaccination policy to align with the hearing dates (in late December 2021).

Ultimately, Justice Logan did not consider that there was a causal link between the employees’ unwillingness to comply with the vaccine mandate, the show cause letter and the exercising of a workplace right by the employees.   The Court concluded that grounds to support the application for interlocutory injunctive relief were not made out.

Mandating COVID-19 vaccination based on a public health order

Another recent decision involving the implementation of a mandatory vaccination policy, is Nazih Beydoun & Ors v Northern Health & Ors [2021] FWC 6341.  This case involved various Victorian health employees who applied to the Fair Work Commission (‘Commission’) to prevent Victorian public health service employers from taking disciplinary action due to the employees’ non-compliance with mandatory COVID-19 vaccination policy (‘mandatory policy’).  Relevantly, the employers had introduced a mandatory policy to comply with the COVID-19 Mandatory Vaccination (Specific Facilities) Directions (No 4) issued by the Victorian Chief Health Officer (‘the CHO Directions’).

The CHO Directions required that the employers collect, record and hold COVID-19 vaccination information and take all reasonable steps to ensure unvaccinated healthcare workers did not attend for work after the mandatory vaccination requirement deadlines (subject to exceptions).

In response to the employees not complying with the mandatory policy, the employers commenced disciplinary action that in some instances lead to termination of employment.

In this case, the employees made dispute applications to the Commission and sought to have the Commission deal with the dispute under the dispute resolution provisions of the relevant enterprise agreements.  The employees also sought interim orders from the Commission to prevent the employers terminating their employment until resolution of the dispute applications.

The employees were required to establish that an arguable case existed and that the case had reasonable prospects of success.   In support of their case, the employees claimed that the employers had contravened:

• occupational health and safety (OHS) consultation requirements under an enterprise agreement;
• a disciplinary clause in an enterprise agreement; and
• ‘status quo’ clauses of the relevant enterprise agreements.

After examining the relevant enterprise agreements, Deputy President Clancy determined that the consultation requirements of the OHS clause of the enterprise agreement was “concerned with injuries that might occur at the workplace and during the performance of work, hazards in the workplace and the prevention of them, and the safe performance of work”.   Deputy President Clancy drew a distinction between the requirement to receive the vaccine outside of the workplace and the performance of work.  The Commission concluded that the duties under the OHS clause (regarding consultation requirements) did not apply to receiving the vaccine outside of work and that employers “simply must comply” with the CHO Directions.

The Deputy President rejected the employees’ argument that the employers should be prohibited from initiating disciplinary action due to non-compliance with consultative provisions under the OHS clause of the enterprise agreement.  The employees were also unsuccessful in challenging the mandatory policy based on ‘status quo’ provisions in the enterprise agreements.

Interestingly, Deputy President Clancy was of the view that it was detrimental to require the employers to continue to employ the unvaccinated employees who were prevented by law from performing work on the employers’ premises, stating that the “potential inability to assign unvaccinated persons either their usual or useful work for the foreseeable future produces a potential determent for the [employers] that would appear to be irrecoverable.”

Lessons from the cases

These two cases should give employers, who can demonstrate a reasonable basis for mandating vaccination (such as complying with a CHO public health direction or risk assessment on health and safety grounds), some confidence in doing so.  Whilst it will always be open to aggrieved employees to challenge such decisions, if the employer has a reasonable and considered assessment and/or grounds supporting the decision, and then implements the decision in a reasonable way, then the employer will have reasonable prospects of defending an application made against them.

The imposition of mandatory vaccination policies continues to be an area of contention for employees and employers.  There are various jurisdictions in which ‘COVID cases’ have not yet been properly argued or tested, and so it is vital that employers stay in touch with the most recent developments in this space.

Most importantly, employers who are looking at implementing mandatory vaccination policies need to properly plan for the policy’s implementation, and seek advice before commencing that process (or even drafting a policy).  For more information, Aitken Legal recommends that employers contact an experienced employment lawyer.