Unfair dismissal and government workplace vaccination mandates

This is how the Fair Work Commission rationalizes the proposition that it will not in its cases question the validity of State government covid 19 vaccination mandates.

“Ms Stevens variously contended that the Directions were invalid. However, at the time of the dismissal, and indeed to date, the Directions have not been declared by a court to be invalid. The Commission is an administrative tribunal and will carry out its functions according to law, proceeding on the basis that legislation and delegated legislation is valid until a court says otherwise. I would add, parenthetically, that in any event I do not consider the arguments advanced by Ms Stevens to cast doubt on the validity of the Directions. The contention that the Directions are inconsistent with federal law and therefore invalid pursuant to s 109 of the Constitution does not appear to me to have any merit. In particular, there is no reason to think that the Directions are inconsistent with the Privacy Act 1988; evidence of vaccination status can be gathered, used and stored in accordance with the privacy principles. Nor would there appear to be any cogent basis to contend that the Directions are inconsistent with Commonwealth anti-discrimination legislation, because the status of being unvaccinated is not a protected attribute. Further, the contention of Ms Stevens that the Directions are invalid on the ground that they are contrary to international human rights conventions is misconceived, because international conventions have domestic effect in Australia only to the extent that they have been incorporated into legislation. There is no general ‘right to work’ in Australia, regardless of what the ICESCR may say about the matter.” 27

Isabella Stevens v Epworth Foundation [2022] FWC 593 at [26] and see Smith v Cleanaway Operations Pty Ltd – [2022] FWC 876 delivered 4 May 2022 per Lee C