A very senior Full Bench of the Fair Work Commission has today reserved its decision on a case brought by a union on behalf of some of its members at a BHP coal mine which is expected to go a long way to determining the circumstances in which employers may issue a “lawful and reasonable instruction” to staff requiring as a condition of entry to the workplace that they be vaccinated against Covid 19. In Western Australia, and to a limited extent in some other jurisdictions, this legal dilemma for employers has largely been managed for them by the State government mandates under the Public Health Act which have imposed statutory obligations on most employers (in WA reportedly affecting 75 per cent of the workforce) prohibiting them from allowing non-vaccinated employees on site; see for example https://fairworklegaladvice.com.au/mandatory-covid-19-vaccination-policy-for-wa-workforces/
However in other States where these statutory rules have not been imposed, or have not been as wide, or as in WA where there has currently not been statutory intervention in the relatively few remaining workplaces, the ability of an employer to require staff to be vaccinated will by and large be derived from the power at common law of employers to issue “lawful and reasonable instructions or directions” to staff either as amendments to contracts of employment or as policies. And this is the issue which will be determined by the Full Bench when it delivers its decision next month.
The Full Bench has said that it expects to deliver its decision in December.