Munn v Health Secretary [2022] NSWIRComm 1044 (20 June 2022) was another attempt by a number of NSW Health employees, including a NSW ambulance paramedic, to overturn the obligation on health workers to be vaccinated against COVID-19. In this case they alleged that their employer, the Health Secretary, could not impose vaccination requirements as she had not consulted with employees as required by the Work Health and Safety Act 2011 (NSW).  The Industrial Relations Commission disagreed.

Section 49 of the Work Health and Safety Act says that a Person Conducting a Business or Undertaking must consult with employees

(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking:

(b) when making decisions about ways to eliminate or minimise those risks; [and]

(c) when making decisions about the adequacy of facilities for the welfare of workers,

The public health orders were made (at [51]) to reduce:

(i) the risk of infection, severe disease and death in the workers, and

(ii) the risk of transmission of infection from workers to patients and other workers.

Commissioner O’Sullivan agreed (at [52]) that, given the stated purposes of the health orders, they would attract the need for consultation if the mandates were implemented by the PCBU. In this case the PCBU was ‘the Crown in right of NSW’ ([56]). For the purposes of the WHS Act, however, the Minister acting in that capacity is not considered an ‘officer’ of the PCBU. It follows ([58 and WHS Act s 247(2)] that ‘the conduct of the Health Minister in making the Health Orders is not conduct of the Crown and is not subject to the duty to consult under sub-section 47(1) of the WHS Act.’ In short the Minister when exercising powers under the Public Health Act was not acting as or representing the employer of the various health staff.  At [59]-[60] Commissioner O’Sullivan said:

The Health Minister made the Health Orders which applied as of law upon the respondent. There were consequences for failure to comply with the Health Orders. The respondent, in complying with the Health Orders had a positive obligation place [sic] on it to take all reasonable steps to ensure that health care workers comply with the Vaccination Requirements …

In the circumstances I find that the implementation of the Vaccination Requirements by the respondent did not fall within any of the circumstances listed in section 49 of the WHS Act and therefore the duty under sub-section 47(1) of the WHS Act to consult was not engaged …

Discussion

In an earlier post, Requiring COVID vaccines for emergency workers (April 1, 2022), I said ‘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.’  This case reinforces that position.

As Commissioner O’Sullivan said “the Health Orders … applied as of law upon the respondent”. Where there is a change in the law an employer is required to comply and as in these circumstances required to ensure that the employees comply.   For example, when ambulance services were established paramedics were not registered. From 1 December 2018 paramedics needed to be registered. People who were previously employed as paramedics can no longer be employed as paramedics if they don’t meet registration standards even though those requirements were not part of the terms and conditions of employment when they started; notwithstanding that their employer may not have consulted with them about the changes etc. The law is now if you are going to use the title ‘paramedic’ you have to be registered.  Employers cannot ignore that no matter how much someone may object that it is a change to their employment that they did not consent to etc. 

These orders are similar. The law has changed changing the work environment. Now (or whilst the orders are in place) if you want to work in health you need to have a vaccination. That is the law (until a competent court rules otherwise). An employer must comply; an employee must comply. If you chose to reject the vaccine and lose your job then like the applicant in Giggs v St John Ambulance Western Australia Ltd [2022] FWC 1362 you can exercise your ‘free will and chose not to receive the … vaccination … in the full knowledge that [you] would consequently be dismissed.’

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 Association and the 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.