The general position is that covid vaccination is voluntary in this country, but is strongly encouraged. State and federal governments are imposing mandatory requirements on various public sector employees (and some private sector employees) where there is a high workplace health and safety risk such as front line health staff, police and aged care employees. Governments are also starting to impose limitations on people who are unvaccinated (at least in the short term). The reality is that governments have a broad power to make laws which have public health interests at their core, particularly in emergency situations. These are unlikely to be overruled by the courts on private rights grounds.

The position of private employers is less clear. Whilst a consultative approach is recommended, employers are able to direct employees to be vaccinated where reasonable. The Fair Work Ombudsman has published guidance suggesting a 4 tier approach to assessment in each case. Tier 1 is the highest level of risk where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (eg, employees working in hotel quarantine or border control). Tier 4 is the lowest level of risk where employees have minimal face-to-face interaction as part of their normal employment duties (eg, where they are working from home). See for further information.

What can an employee do about a direction they consider unfair? The strongest ground for resistance exists where an employee has a medical condition which makes vaccination medically inadvisable. The key is that substantive medical evidence advising against vaccination will need to be produced by an employee. This is not the end of the issue however. If an employee is working in a higher level risk environment, then it may be possible for an employer to still dismiss an employee based on their inability to perform the inherent requirements of the position. This is especially so where there is no scope for temporary or permanent redeployment. Just because there might be a valid medical reason not to be vaccinated does not automatically mean the employee can go on working in their normal job.

What legal avenues exist for a private sector employee?

1. An employee can lodge an internal grievance with the employer using its grievance/complaint policy process or writing a letter of complaint;
2. Industrial award covered employees may be able to notify a dispute to the Fair Work Commission (FWC) about a lack of consultation which may indirectly involve consideration of the reasonableness of a direction. The FWC can conduct a conciliation conference and arbitrate the dispute;
3. The FWC may also be able to deal with a dispute notification if an enterprise agreement covering the employee contains a broad dispute resolution power;
4. If employment is terminated (or constructive dismissal circumstances exist), then it may be possible to bring an unfair dismissal claim to the FWC which will consider not only whether a valid reason for termination existed but also the general harshness or unfairness of termination in the particular circumstances. Bear in mind though that reinstatement will not always be practical and compensation for loss of income is capped;
5. Discrimination based claims are likely to be difficult. It is generally not enough to hold a discriminatory attribute such as a disability. It is also necessary to show that people without the disability would be treated differently in the same situation or that a blanket requirement is unreasonable and unfair in the circumstances.

Of course, these avenues are primarily available for employees. Most contractors will have few avenues open to them.

There are several cases before the courts at the moment which may give further guidance on these matters. Further avenues may emerge, particularly as the public health emergency starts to subside over the coming months and years. But whilst there is a public health emergency, it is likely that employees will receive short shrift from public authorities, courts and tribunals in most cases.  These are of course general comments only. Please contact us if you would like any further information or help.