Workplace policies and covid 19 vaccinations

 

As I predicted in a recent post, an employer’s covid vaccination policy requiring employees to be vaccinated against covid 19 as a condition of entry to a workplace can be validated in the view of the Fair Work Commission, tested in an unfair dismissal case context in the absence of a State government mandate in the form of a Public Health Order, as a common law lawful and reasonable policy.

[36] I do not consider the fact that the Respondent’s industry has not been the subject of NSW Public Health Orders mandating vaccinations has any weight in assessing the reasonableness of the the COVID Policy. Whilst the existence of a government mandate requiring vaccination to enter a high-risk setting may weigh in favour of a complementary policy at that setting being reasonable, the converse is not true. The reasonableness of an employer’s policy proposing a vaccination requirement is to be objectively considered on its merits, and not be burdened by a presumption of unreasonableness simply because government authorities have not declared that worksite to be a high-risk setting.

[37] I give significant weight to the fact that a vaccination policy such as that included in the COVID Policy intrudes on one’s right to bodily integrity if it is complied with. The practical effect of the COVID Policy is to place pressure on an employee to give up this fundamental right, given that non-compliance is accompanied by potential disciplinary consequences that include termination of employment. This weighs against the COVID Policy being assessed as reasonable.

[38] However, I also give weight to the fact that the COVID Policy has a logical and understandable basis in that it deals with the management of a real and present risk to health and safety. I give significant weight to this consideration given the collective rights and obligations the Respondent and employees have to the management of workplace health and safety (including the mitigation of risk). That is particularly so where:

(a) Persons employed by the Respondent physically interact with other employees. The risk of virus transmission is real, not abstract or peripheral;

(b) While at the time of implementation of the COVID Policy there was the commencement of the prevalence of the Omicron variant of COVID-19 which was less severe in impacts than previous variants, it was highly transmissible and the rates of transmission were material; and

(c) Vaccination materially mitigates against the serious risk to health and safety posed by COVID-19 8.

[39] Considered overall, the factors in favour of the COVID Policy being assessed as reasonable outweigh the factor against such a conclusion, being that the policy places pressure on an employee to give up a fundamental right to bodily integrity. I do not conclude that the COVID Policy is unreasonable, or disproportionate, as a workplace health and safety response to the risks presented by COVID 19. That being so, I conclude that a direction to comply with the Policy would be reasonable.”

Tey v Winc Australia Pty Ltd (2022) FWC 1566 delivered 2 August 2022 per Cross DP