When are employer instructions mandatory?

When must an employee comply with a direction or instruction by an employer? Here is the answer.

“Vaccination Policies and Directions to Employees

[20] As the Full Bench’s reasoning in Mt Arthur Coal Pty Ltd at [64]-[67] makes clear, the legal basis for Woolworths to introduce and enforce its Vaccination Policy is the term implied into all contracts of employment that employees must follow the lawful and reasonable directions of their employer:

“[64] None of the Parties submit that there is anything in public health orders, the Agreement or the express terms in the Employees’ contracts that would provide the legal basis for the Site Access Requirement. It follows that the basis for the Site Access Requirement must derive from the term implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of their employer. Such a term is implied, by law, in the absence of a contrary intention by the parties.

[65] The seminal decision concerning the requirement of employees to follow their employer’s lawful and reasonable directions is R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (Darling) in which Dixon J summarised the common law position as follows:

‘Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable.

In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.’

[66] Recently the Full Federal Court in One Key Workforce Pty Ltd v CFMEU adopted a slightly different formulation of the implied term:

‘The duty of the employee at common law is to obey lawful orders. The “standard or test” by which the common law determines whether the order is lawful is one of reasonableness: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621. Dixon J explained at 621–2:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.

As Finn J observed in McManus v Scott-Charlton (1996) 70 FCR 16 at 21:

The need for some such limitation is patent: employment does not entail the total subordination of an employee’s autonomy to the commands of the employer. As was said by the President in Australian Tramway Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42:

A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.

There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case.’

[67] Whether expressed as a ‘lawful and reasonable’ direction or a ‘lawful’ direction in which the test for determining lawfulness is whether the direction is reasonable, may simply be a matter of semantics. In each case the direction must be ‘lawful’ and ‘reasonable’. The weight of authority supports the use of the expression ‘lawful and reasonable’; it is the expression used in the arbitral question posed by the Applicants and acceded to by the Respondent; and it is the formulation we have decided to adopt.”

[Footnotes omitted, emphasis original]

[21] In other words, relevant terms of a policy issued by an employer, such as a group-wide vaccination policy, can be understood at law to be directions issued by an employer. Employees are required to comply with such directions as an implied term of their contract of employment, to the extent that any direction is both lawful and reasonable.

[22] The Full Bench in Mt Arthur Coal recognised that the introduction of a site access policy containing a COVID-19 vaccine mandate enlivened the consultation obligations in the Work Health and Safety Act 2011 (NSW) (WHS Act). Woolworths’ decision to introduce the Vaccination Policy, by the same reasoning, enlivened the consultation obligations in the WHS Act.

[23] The Mt Arthur Coal decision needs to be understood in the following context. In that matter a direction had been given to the workforce at the site, but consultation had not been adequate before the direction was issued. The direction was challenged and Mt Arthur provided an undertaking not to implement the outcome of any disciplinary process associated with any employee’s refusal to comply with the Site Access Requirement pending the resolution of the proceedings in the Commission (see (2021) 310 IR 399 at 408, [2021] FWCFB 6059 at [15]).

[24] The Full Bench found that the original direction was not reasonable, solely because of the deficiencies in the consultation process, and identified the way forward to be further consultation in a short period of time before the site access requirements could be imposed. That is, the earlier deficiencies were not incurable and did not render the vaccine mandate direction forever unenforceable. The Full Bench contemplated and effectively endorsed the possibility that exactly the same direction could be issued/enforced once adequate consultation had occurred.

[25] After the Full Bench decision Mt Arthur did undertake further consultation over only a few days and then announced to all employees that it had made the decision to introduce the site access requirements. On the day of the announcement Mt Arthur gave employees who had been stood down seven days to consider whether they would comply with the new site access requirement (see [2021] FWC 6626 at [48]-[49]).”

Nightingale v Woolworths Group Limited T/A Woolworths Group (2022) FWC 2848 delivered 24 October 2022 per Easton DP