New vax mandates in effect in QLD, another NSW challenge fails
By 17 December 2021, many private-sector Queensland workplaces will be operating under public health directions, issued by the State Government, mandating vaccination against COVID-19 for all employees, contractors and volunteers. Similar public health directions have been operating in other States and Territories for months, with New South Wales and Victorian businesses having been subject to particularly expansive mandates on COVID-19 vaccination.
The new Queensland directions override employer-implemented mandatory vaccination policies and prevent unvaccinated individuals employed in specified industries from entering the workplace and/or performing work from mid-December onwards.
The Workers in a Healthcare Setting (COVID-19 Vaccination Requirements) Direction – applicable within “healthcare settings” including all healthcare and medical services, allied health and disability services – comes into effect first, with a deadline of 15 December 2021 for employees in the industry to be fully vaccinated (double dose) against COVID-19. This public health direction was released on 10 November 2021.
Commencing 5am, 17 December 2021, the Public Health and Social Measures Linked to Vaccination Status Direction will take effect, requiring employees (and patrons) in certain settings – including hospitality venues such as clubs, pubs, restaurants and cafes, etc – to be fully vaccinated (double dose) against COVID-19 in order to enter the premises. This public health direction was released on 8 December 2021.
By 17 December 2021, employees in defined “high risk settings” will be required to have received at least their first dose of an approved COVID-19 vaccine, and be fully vaccinated (double dose) by 11.59pm on 23 January 2022 in accordance with the COVID-19 Vaccination Requirements for Workers in a High-Risk Setting Direction. This public health direction, released on 11 December 2021, defines “high risk settings” as including early childhood, primary and secondary education, airports and correctional services facilities.
Employers operating in an industry in which a public health direction applies are obliged to comply with all stipulations of the direction, with non-compliance punishable by fines exceeding $13,000 and up to six months imprisonment. Limited exemptions are available to workers who possess a medical contraindication to vaccination, however, the requirements that unvaccinated workers must adhere to in order to continue working safely are onerous and costly, making the ongoing employment of an unvaccinated individual under a public health direction impracticable for most employers.
More public health directions could be on the way for Queensland, with Griffith University advocating for the Government to mandate vaccination for the tertiary education sector, whilst flagging its intent to introduce its own vaccination policy requiring its workforce and students to be fully vaccinated, or agree to regular COVID-19 testing, in order to return to campus in 2022. Staff and students will be required to confirm their vaccination status, or medical exemption from vaccination, by 18 February 2022.
Despite some individuals seeking to argue public health directions do not constitute lawfully enforceable orders, available case law confirms the Fair Work Commission will uphold the dismissal of an employee for their refusal to comply with a mandatory vaccination requirement, providing the employer has extended the employee fair and reasonable opportunity to comply, to understand the implications of their decisions, and to provide a response to the employer prior to termination.
Note: Relevant case law pertains only to compliance with mandatory flu vaccination requirements. There are no decisions on record regarding dismissal for non-compliance with mandatory COVID-19 vaccination orders but, to date, all attempts by workers to challenge or overturn public health directions have been unsuccessful.
Another NSW challenge fails
Earlier this month, the New South Wales Court of Appeal dismissed two challenges to vaccination mandates for certain categories of workers (within the industries of health, aged care, construction and education) under COVID-19 public health orders. The appeal attempt fell particularly flat, with the Court awarding costs against the applicants.
Elsewhere, a Western Australian employee’s attempt to challenge his employer’s adherence to an incoming public health direction has been dismissed, with the FWC confirming the dispute was “beyond jurisdiction”.