The COVID-19 pandemic has seen restrictions and obligations imposed on the entire Australian community. Many of the steps taken to control the pandemic are unprecedented within Australian living memory. One response to the pandemic has been to require people in some professions to be vaccinated against COVID if they are to continue in their role. This article will review legal challenges to these directions.
Work health and safety
A person conducting a business or undertaking (a PCBU) is required to take reasonable steps to ensure that workers (including volunteers) are not exposed to unnecessary risks to health and safety due to their work. Further there is an obligation to take reasonable steps to ensure that the work does not expose others, such as clients and customers, to a risk to their health and safety. To meet those obligations, a PCBU may require employees or volunteers to get vaccinated.
Before implementing WHS procedures and policies or changing employment conditions, a PCBU must consult with affected workers (ss 47 and 49). It was this failure to consult, rather than any fundamental rule against vaccine mandates, that led to a ruling that a mandate imposed by BHP was not lawful (CFMEU v Mt Arthur Coal  FWCFB 6059).
Further, a PCBU that requires all employees to have a vaccine will have to demonstrate why, whether alone or with other control measures, that was a ‘reasonably practicable’ step to protect either the workers, or those affected by the work, from the risk of COVID-19. Deputy President Dean of the Fair Work Commission (in dissent) said (Kimber v Sapphire Coast Community Aged Care Ltd  FWCFB 6015. ):
It is very clear that a range of control measures will need to be implemented by employers to meet their health and safety obligations… [C]ontrols (based on a proper assessment of the risk in a particular workplace) might include appropriate air ventilation and filters, personal protective equipment including masks, staggered meal breaks, increased use of outdoor areas etc. The simple act of requiring people to stay at home if unwell and symptomatic will no doubt have a significant impact on the spread of all coronaviruses (whether a cold, flu or COVID).
Identifying that a vaccine is a necessary part of the reasonable control measures will be easier in some workplaces compared to others. Paramedics for example are exposed to people in uncontrolled environments. People cannot be asked to refrain from calling paramedics if they are unwell as that if the very time, they need paramedics. Paramedics cannot ‘socially isolate’ from their patients. The use of PPE may reduce risk of infection, but that risk is further reduced with vaccination. Further paramedics who are not vaccinated may pose a risk to vulnerable patients. As Adamson J said in Larter’s case (Larter v Hazzard (No 2)  NSWSC 1451, , discussed in more detail below):
… the effect of the orders was to remove the increased risk of transmission posed by unvaccinated NSW Health workers. It would be of no comfort to the vulnerable patient who is infected by the unvaccinated health care worker to be told that he or she was unlucky by being in the wrong ward at the wrong time because most health care workers had been vaccinated.
Similar arguments could also be made for rescue operators who must also operate in close contact with patients. Whether those arguments apply to fire fighters and others depends on all the circumstances. What is clear is that relying on the Work Health and Safety Act does not give an easy answer to the question of whether employers can or must require their workers to be vaccinated.
Public Health Orders
The presence of public health orders changes the issue. Where an order has been made under relevant public health legislation, or as has happened in some cases, emergency management legislation, then those operating in that environment have no choice but to comply. To draw a parallel an employer cannot employ someone to drive an emergency vehicle if they do not have a licence. The person may be a competent and safe driver but the obligation to have a licence is imposed by law and the employer has no choice but to comply.
Kimber v Sapphire Coast Community Aged Care Ltd involved a nurse who did not want to get an influenza vaccination. On 24 March 2020, the NSW Minister for Health made a Public HealthOrder which said that an employee of a residential aged care facility must not enter the facility if they did not “have an up-to-date vaccination against influenza, if the vaccination is available to the person” (Kimber v Sapphire Coast Community Aged Care Ltd  FWCFB 6015, ). Sapphire Coast Community Aged Care wrote to Ms Kimber and advised her that because of her refusal to get vaccinated she was ‘unable to perform the inherent requirements’ of her role and so she was dismissed. The majority of the Full Bench of the Fair Work Commission upheld the finding that her dismissal was not ‘unfair’. They said (Ibid  (Vice President Hatcher and Commissioner Riordan):
Ms Kimber was at the time of her dismissal legally prohibited from working at Imlay House. That plainly made the continuation of her employment untenable. In circumstances where Ms Kimber was given ample opportunity by her employer to get vaccinated or demonstrate that she had a medical contraindication, no other consideration could operate to render her dismissal unfair.
Where there is a valid public health order, an employer has no choice to comply and if that order requires that a certain class of workers are vaccinated then the employer cannot continue their employment if they refuse to get the vaccination. But are the public health orders lawful? That was the question in Kassam & Henry v Hazzard & Ors and again in Larter v Hazzard, a supreme court case involving a NSW paramedic.
In Kassam’s case (Kassam v Hazzard; Henry v Hazzard  NSWSC 1320)Justice Beech-Jones went through arguments regarding the scope of the powers vested in the Minister for Health and whether the orders made were unconstitutional or beyond the power of the Minister. This paper cannot deal with each step in His Honour’s reasoning but notes that all the objections were dismissed. His Honour’s reasoning was confirmed by the NSW Court of Appeal (Kassam v Hazzard; Henry v Hazzard  NSWCA 299). In response to the claim that the various orders were a vaccine mandate, His Honour said (Kassam v Hazzard; Henry v Hazzard  NSWSC 1320, ):
… the proper analysis is that the impugned orders curtail freedom of movement which in turn affects a person’s ability to work (and socialise). So far as the right to bodily integrity is concerned, it is not violated as the impugned orders do not authorise the involuntary vaccination of anyone.
In the Court of Appeal, Bell P said (Kassam v Hazzard; Henry v Hazzard  NSWCA 299, -):
None of those Orders mandated vaccinations nor compelled citizens to be vaccinated, and none of the Plaintiffs in either set of proceedings had been vaccinated…
The Orders recognised that not all workers may choose to be vaccinated, and that choice was respected. Vaccination was not a requirement under the Orders; rather, it was an element of the conditions by reference to which a worker would be permitted to take advantage of an exemption, namely to leave a particular area … or to enter a particular place…
Leeming JA said “… “free choice” is a label which disguises the fact that many choices commonly made by people are influenced by incentives and burdens, which are not uncommonly put in place for the express purpose of altering behaviour” (Ibid ). Or, as Senator Jaccqui Lambie said “You have freedom to make a choice but, if you make a choice, those choices have consequences” (Commonwealth, Parliamentary Debates, Senate, 22 November 2021, 10 (Jacquie Lambie).
John Larter was a NSW Paramedic who chooses not to have the COVID-19 vaccination. He argued that the orders went too far. In making that argument he relied on the principle of legality – a principle of statutory interpretation that says a statute should not be held to interfere with fundamental rights and freedoms unless that intention is expressed by clear language. Her Honour Justice Adamson said (Larter v Hazard (No 2)  NSWSC 1451, ):
The object of s 7 [of the Public Health Act 2010 (NSW)] is to permit orders to be made which may, for the greater good, interfere with fundamental human rights, such as freedom of movement. In these circumstances, the principle of legality is not of any real assistance in discerning the meaning of particular provisions…’
The Parliament had provided that “[t]he protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this [Public Health] Act” (Ibid ). In doing so the Parliament had given the Minister an intentionally broad power. It is not the role of the court to assess each of the options and make some determination as to which decision the minister should have made. As Beech-Jones J said in Kassam (Kassam v Hazzard; Henry v Hazzard  NSWSC 1320, ):
… [I]t is not the Court’s function to determine the merits of the exercise of the power by the Minister … much less for the Court to choose between plausible responses to the risks to the public health posed by the Delta variant. It is also not the Court’s function to conclusively determine the effectiveness of some of the alleged treatments for those infected or the effectiveness of COVID-19 vaccines … These are all matters of merits, policy and fact for the decision maker and not the Court. Instead, the Court’s only function is to determine the legal validity of the impugned orders which includes considering whether it has been shown that no Minister acting reasonably could have considered them necessary to deal with the identified risk to public health and its possible consequences.
The Minister might choose to require certain workers to be vaccinated or he or she may take another of many options. In Larter’s case, Justice Adamson said (Larter v Hazzard (No 2)  NSWSC 1451, ):
… The range of decisions reasonably open to the Minister is, in this context, wide. As long as the decision sought to be impugned falls within the ambit of those which are reasonably open, this Court has no power to set it aside on the grounds of unreasonableness. Each of the decisions between available alternatives are policy questions which Parliament has decided are to be matters for the Minister’s consideration and decision.
Her honour dismissed all the challenges to the relevant order requiring Mr Larter and other health care workers to be vaccinated.
I understand that both Larter and Kassam have sought leave to appeal to the High Court of Australia. Until the High Court rules on either matter the conclusion to be drawn is that where the Minister or Chief Health Officer has exercised a power under relevant Public Health or emergency management legislation to issue an order or direction requiring certain workers to be vaccinated then the employer has no choice but to comply. Workers do retain a choice, there have been no orders that ‘authorise the involuntary vaccination of anyone’. Workers have a choice, but choices often come with a cost. In this case a worker in an area subject to an order must choose between the vaccine or their job. That is a hard choice, but it is a choice.
For readers of this blog these decisions are relevant first (and obviously) because they may be subject to a similar direction and these decisions explain the impact of those directions. On a different note, these decisions suggest that there is a wide discretion given to those empowered by legislation to make emergency decisions. Where in a flood or fire a duly authorised emergency officer makes a direction that impacts upon liberties, such as decision to order an evacuation or to restrict access to an area, or to cut off fuel or electricity, they too will be judged – not on the merits of the decision – but on whether they were legally empowered to make it. Courts can be expected to leave decision making to those charged with the lawful authority to make those decisions recognising that in an emergency, however caused, decisions must be made and some of those decisions will impact upon what we perceive to be our fundamental rights and freedoms. It is in recognition of that need that legislation like public health and emergency management legislation has been passed.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Associationand NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.