The Fair Work Commission has recently considered cases related to whether employers can direct employees to be vaccinated. The decisions do not relate to the COVID-19 vaccine but do assist in setting the legal framework for this question.

When considering the employer’s direction, the first question is whether vaccination is required via contract, an Enterprise Agreement, or a public health order. If a public health order exists that mandates the vaccination, it is clear that employees must comply with that order or risk termination. 

In some instances, there are public health orders requiring cohorts of employees to be vaccinated against COVID-19.

Business Council of Australia and the Australian Council of Trade Unions have jointly called on the federal government to “ensure that where mandatory vaccination requirements are necessary, they are implemented through the use of nationally consistent Public Health Orders.”

This approach is supported by medical advice, provides the clearest directive, and minimises disputation at the work level.

Where no public health order exists, this is where Qantas’ policy can become unstuck. The requirement now must be that the direction itself is lawful and then reasonable in the circumstances.

The Fair Work Ombudsman is the national regulator for workplace relations. It does not set the law but can guide how it believes it should be applied. The Ombudsman has set out factors that are taken into account when considering the directive.

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It includes:

1. The nature of each workplace;

2. The extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission among employees, customers or other members of the community;

3. The effectiveness of vaccines in reducing the risk of transmission of serious illness;

4. Work health and safety obligations;

5. Each employee’s circumstances, including their duties and the risks associated with their work;

6. Whether employees have a legitimate reason for not being vaccinated (for example, a medical reason), and;

7. Vaccine availability.

For the Qantas Group, these factors will differ significantly across the nation and workgroups. The typical perception of the aviation worker would include pilots, cabin crew, freight handlers, and customer services officers at the ports.

But it extends beyond those workers to include corporate functions such as IT, finances etc.

If the Fair Work Commission is asked to consider whether it is a reasonable directive, it may place greater importance on where a higher risk to health and safety exists.

It would be unlikely that all of the Qantas Group 22,000 employees are exposed or create the same level of risk to COVID-19.

The company’s policy is in the consultation stage, and no direction yet has been made. However, it is a difficult decision for employees considering whether or not to be vaccinated.

If the employee chooses not to and is terminated, they would need to apply under Unfair Dismissal protections, and each case will fall on its own facts.

Corey Rabaut is a lawyer and National Industrial Officer at the Australian Service Union.