Australian decision sparks further debate on mandatory COVID-19 vaccinations

Further to our previous article on whether employers can require employees to get vaccinated for COVID-19[1], a recent Fair Work Commission (FWC) case in Australia has added fuel to the debate in terms of the ability for employers to require mandatory vaccinations of employees.   

Significantly the FWC found that requiring childcare workers to have flu vaccinations was a “lawful and reasonable instruction”. The decision is very timely in respect of employers wanting to know their rights to require employees to have COVID-19 vaccinations.

Fair Work Australia - Barber v Goodstart Early Learning

In Australia, the FWC found in Barber v Goodstart Early Learning [2], that:

• It was reasonable and lawful for Goodstart to have a policy of mandatory flu vaccinations.
• One of Goodstart’s teachers, Ms Barber, had not been able to provide sufficient evidence to support a claim for medical exemption to that policy.
• Her dismissal for refusing to be vaccinated was not unfair.

In this decision Ms Barber was dismissed for refusing to get her flu vaccination in accordance with Goodstart’s flu vaccination policy. She refused on the basis she had led a “chemical free life” and claimed she had an auto-immune disorder that she treated with the support of naturopaths and dietitians. 

The FWC noted the following factors when determining that the requirement to receive a flu vaccination was reasonable:

• Goodstart had health and safety obligations to ensure, so far as is reasonably practicable, the health and safety of Ms Barber and other employees.
• Goodstart also had a duty to ensure the safety of children under its care.
• Ms Barber also had personal health and safety legal obligations.
• Additional regulatory obligations to this particular workplace relating to health and hygiene practices regarding the care of children were also applicable.
• Vaccination is a superior control measure, along with other control measures, for the risk of flu infection in a childcare environment.
• Staff who had medical conditions which made vaccinations unsafe were exempt by the policy.
• Goodstart thoroughly consulted with both employees and the union about the introduction of the vaccination policy before it was implemented.

While the FWC restricted the applicability to mandatory flu vaccination policies in a childcare environment, it is quite possible that it may also apply those principles in relation to COVID-19 vaccination policies to other sectors in the future.

Possible legal implications

While Australian legal decisions are not binding in New Zealand, we do look to decisions in other legal jurisdictions for guidance on legal issues that are either new or untested. It is also important to note that our health and safety laws are predominantly based on Australia’s health and safety legislation. Therefore, while some of the relevant legal framework in New Zealand is quite different to Australia, some of the principles considered in Barber are also likely to be applicable for a New Zealand court deciding whether the requirement for an employee to be vaccinated constitutes a lawful and reasonable instruction.  As set out in our previous article, whether it is lawful and reasonable to impose a policy of mandatory vaccinations will require consideration of the following competing principles:

• the New Zealand Bill of Rights Act 1990 and the right to refuse medical treatment;
• the rights included in the Employment Relations Act 2000 and the Human Rights Act 1993 to be free from discrimination;
• obligations under the Health and Safety at Work Act 2015 to ensure the health and safety of workers, so far as reasonably practicable;
• employment law obligations of good faith and considerations of what a fair and reasonable employer could do in all the circumstances.

In addition, when determining if a fair and reasonable employer could require mandatory vaccinations, the following circumstances will remain relevant:

• whether there are cases of community transmission;
• the type of industry;
• whether it is possible to assign employees to alternative duties;
• whether it is possible for employees to work remotely;
• the impact on an employer’s business of not having staff vaccinated;
• whether PPE (personal protective equipment) can be safely used to minimise risk;
• whether there are other processes or precautionary measures;
• whether an employee’s underlying health condition contraindicates vaccination.

Concluding remarks

The issue of mandatory vaccinations continues to be one that will be hotly debated around the globe. Within New Zealand we are still in untested waters. We will continue to keep you updated of developments within this space.

The specialist employment law team at DTI Lawyers can assist you in relation to all employment matters, including obligations and rights that relate to COVID-19. You can contact the team on 07 282 0174.