Vaccinations and workplaces

The Fair Work Commission has ruled that an employer does not contravene the common law right of an employee to personal and bodily autonomy and integrity (see  CFMMEU v Mt Arthur Coal [2021] FWCFB 6059  ) by enforcing a policy requiring employees to be vaccinated against covid 19 to continue in employment, including requiring employees to provide evidence of vaccination as a condition of employment.

“In light of those intimations by the Applicant, the Respondent could not provide her with further work. I am satisfied that the Applicant’s failure to comply with the Respondent’s direction – the consequence being that the Respondent could not provide her with any further shifts or else be in contravention of the government mandate – constituted a valid reason for dismissal.

[38] It is not in dispute that the Respondent holds certain responsibilities under the Privacy Act. These requirements outline that any proposed information to be collected from employees consent to the collection pursuant to APP3.3(a). This notion of consent and whether the information is collected in a lawful and reasonable circumstances is dependent on the context in which it is invoked.

[39] There is a common law right to personal and bodily autonomy and integrity which is recognised in the Mt Arthur Coal Full Bench decision. In relation to the Privacy Act or bodily integrity any consent given for the two matters may be vitiated by a threat of discipline or termination. In this matter there is no issue of lack of compliance by the Respondent to any of the requirements of the Privacy Act.

[40] In relation to the present case, requesting an employee to provide vaccination status does not in any way put undue pressure on an employee to undergo vaccination. The decision resides with the Applicant and is open for her to decline. The Full Bench noted that the choice lay with the Applicant and her decision to decide between getting the vaccination and continuing to be employed. The rights of bodily integrity need to be balanced against all other rights, including the health and safety of other employees in the workplace. For these reasons, I find that the Respondents direction that requires for the collection of employee sensitive information such as their vaccination status does not impinge on the rights of employee’s bodily integrity and is not an unlawful or unreasonable direction.

[41] The Applicant argues that her contract of employment does not require her to be vaccinated against COVID-19. and there is not a public health order in place prohibiting those working in food distribution without being vaccinated or providing a medical exemption. However, an employee is duty bound to follow lawful and reasonable directions from their employer. Further to this, the Applicant’s contract of employment has a requirement to comply with all company policies and procedures. The Respondent provided evidence that they drew up a COVID-19 Vaccination policy which under the contract of employment the Applicant was required to follow. The Applicant failed to comply with the policy and procedures, which was in breach of her contractual provisions and may constitute a valid reason for dismissal.

[42] Consequently, I am satisfied that the Respondent had a valid reason to terminate the Applicant’s employment.”

Tester v Food Connect Brisbane (2022) FWC 1700 delivered 1 July 2022 per Lake DP