Employers have been navigating government issued COVID-19 vaccination workplace directions for some months now and an increasing number are moving to mandate workplace requirements as they transition to COVID-19 ‘normal’ as described in the Federal government’s roadmap.
Many employers have also been on the receiving end of objections from employees and advocacy groups. Interestingly, distributed materials to employers often have common themes and approaches. While these ‘objections’ may be compelling at first glance, they often contain misinformation, incorrectly presented as fact or law. In this update, we look at some of those common objections and how employers may choose to respond.
Variation or breach of employment contract
Some objectors state the implementation of a vaccination requirement is either an unlawful variation to, or a breach of, an employee’s contract.
A contract of employment, written or verbal, will contain some of the terms and conditions of the relationship between an employer and an employee. A contract will also stipulate various employee and employer obligations, such as payment of remuneration, position duties, rights of termination, and confidentiality obligations.
However, an employment contract is not an exhaustive representation of the employment relationship. The law recognises that through implied terms in employment contracts, an employer can supplement express terms with additional obligations in policies and directions that are lawful and reasonable. Additionally, a changing regulatory environment may impose additional requirements for employees which, if not complied with, may mean that the employee cannot perform their role for the employer. The imposition of government mandated vaccination requirements in the workplace is an example of such a change.
Demand for safety and risk assessments
Since the beginning of the pandemic in 2020 and increasing community transmission in Australia, the risk of spread and transmission of COVID-19 in the workplace is a relevant safety risk that employers have had to respond to as part of their occupational health and safety framework.
It is that risk that will often found the basis of an employer’s decision to implement a vaccination requirement in the absence of a government issued workplace direction.
Risk assessments are commonly used as part of an employer’s safety evaluations and are useful to identify risks, controls and effectiveness of controls relevant to the particular workplace. In the course of employee objections to government vaccination directions, many employers have been asked by employees for a copy of a ‘risk assessment’.
The recent decision in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal  FWCFB 6059 reinforces the importance of meaningful consultation ahead of the introduction of a vaccination policy. For example, under the Occupational Health and Safety Act 2004 (Vic), where an employer identifies and assesses a risk to the health and safety of its employees, and implements measures to control that risk, the employer must consult with any employees who will be affected. The duty to consult requires that employers inform employees about the occupational health and safety matter and allow employees to express their own views, which should be taken into account.
The legislation does not expressly require employees to disclose their risk assessment, but consultation often involves the sharing of relevant safety information. Whether or not an employer is obligated to share its safety assessments will depend very much on the circumstances and basis for the vaccination requirement. There may be some circumstances in which providing relevant safety information is beneficial but further advice should be sought if in doubt.
Expiry of vaccination mandates
Some employees have asked for more time to comply with relevant government directions citing that the vaccination mandates will lapse in the future and enable their return to onsite work. That is common with those who have been working remotely but also forms the basis for extended leave arrangement requests.
These responses generally assume that vaccination requirements will not be extended after the expiry of the current orders, often issued for a 4 week period. The uncertainty about the duration of government directions can be challenging. However, an employer can reasonably position its requirements based on current directions. It may need to consider reasonable alternatives if considering employment termination as part of its overall approach, given the unfair dismissal protections which extend to considerations of alternatives to termination (in some cases).
Referring to legislation and case law
Some objections quote particular Australian and international legislation as the basis for a claim that state government directions are invalid or even ‘unconstitutional’. Despite legal challenges in Victoria and New South Wales, state directions have not been invalidated and continue to have legal force.
Employee objections have also cited the Deputy President Dean’s decision in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd  FWCFB 6015 in disputing workplace vaccination requirements. However, of note is that Deputy President Dean’s commentary was the minority judgment in the decision. This case was heard by the Full Bench of the Fair Work Commission, with the majority of the Full Bench disagreeing with Deputy President Dean’s position.
Therefore, her statements do not reflect the state of the law as such. The Full Bench in that decision found that the employer had validly terminated an employee’s employment for failure to comply with a flu vaccination requirement (in the context of the COVID-19 pandemic) having regard to her objection on medical grounds.
Claims that employ legal language
A common feature of many employee objections is the appropriation of legal language, including claims which may appear to have a legal basis. Some claims refer to employers’ vaccination requirements (based on government direction or otherwise) as ‘threats’ of ‘assault’ or ‘battery’.
The effect of a government direction means that in many cases, an employer cannot permit an unvaccinated person to enter its site (unless medically excepted). Requiring compliance with the direction will not constitute battery or assault given that an employee still has choice about whether or not to comply.
These claims were brought before the Fair Work Commission (Commission), in the case of Ms Bou-Jamie Barber v Goodstart Early Learning  FWC 2156 which considered an employer’s requirement for employees to be vaccinated against the flu. Among other claims, the employee contended that the requirement to be vaccinated constituted battery and assault. The Commission had regard to the legal elements of battery and assault, and determined these claims would fail, because there was no physical contact for the purposes of battery, and no threat to inflict a vaccination for the purposes of assault. The Commission found the requirement to consent to vaccination or face termination was not the same as a threat of being forcibly vaccinated, and that the idea the employer would threaten to inflict a vaccination upon the employee was ‘fanciful’.
Requests for unpaid leave
Many employees who do not wish to comply with a vaccination requirement have requested to take unpaid leave where paid leave has been exhausted (or not available).
There may be benefits to allowing some leave including to demonstrate a reasonable approach by employers in the circumstances.
However, employers are not required to allow employees to take periods of unpaid leave; this is a discretionary decision.
Additionally, we have seen an increase in requests to employers related to ill health, for which employees are asking for extended personal leave. If an employee seeks to take personal leave, and has paid personal leave entitlements accrued, employers should approach such requests cognisant of legal obligations in the Fair Work Act 2009 (Cth) and anti-discrimination obligations, including that termination of employment due to ‘temporary illness or injury’ may not be lawful in some cases.
Some responses to an employer’s vaccination requirement claim that employers will be liable for adverse reactions to the vaccine.
The introduction of the Federal Government’s no-fault indemnity scheme further limits exposure to claims for vaccine related illness or injury. Under the scheme, Australians who suffer injury and loss of income as a consequence of receiving a COVID-19 vaccine may make a claim. The scheme will cover the cost of injuries incurred as a result of a proven adverse reaction which exceed $5,000. Claims may be made against employers for amounts under that threshold and an employer’s workers’ compensation insurance may be enlivened if such a claim is received.
How we can help
Moores can assist employers respond to objections to vaccination government mandates or stand-alone policies. Moores can also advise on discrimination and privacy issues.
Please do not hesitate to contact us for further information and assistance.