Can employers mandate medical interventions?

Should they?

Disclaimer - this article does not contain legal advice. It contains the personal opinion of the writer only. It features general information only and is not tailored to any individual or employer's circumstances. It should not be relied on by any individual or employer. Contrary opinions, as always, are very welcome.

The role of the employer vis-à-vis the employee is a complex one. Employees spend much of their lives working with and for employers, and employers are subject to extensive and complex duties which they must carefully administer for the sake of their employees.

Never before, however, have employers been encouraged to implement public health policy. Employers, usually beholden to Work Health and Safety laws, contracts and enterprise agreements, are being asked to consider how to fit mandatory medical procedures into this legal framework, when it's not clear whether it fits neatly into it, if at all, and when employers themselves do not have the knowledge or expertise to answer employee questions or concerns about the medical procedures that they are directing their staff to undergo.

Over the past few months, a wave of employers in Australia have taken the plunge in directing their employees to receive Covid-19 vaccinations. If employees don't follow this direction, they are often stood down indefinitely, or terminated. Advice about whether or not this is lawful is generally approached through the lens of whether such a direction is "lawful and reasonable". This is a test which is assessed on a case by case basis, with reference to the common law.

The purpose of this article is to ask two questions.

First, is there more to it than that?

Second, what are the future implications of employers facilitating and accepting such a drastic shift in their role in our society?

Specifically, this article will examine:

1. The popular approach to the issue of mandatory vaccination at work;
2. Is it that simple? whether the law actually authorises employers to mandate medical procedures;
3. What does the Common Law say?
4. What questions will the Federal Court likely need to answer?;
5. The cases so far, and why the matter isn't settled; and
6. Implications for the future.

1. The popular approach to the issue of mandatory vaccination at work

Generally, employers can only make directions to their employees that are "lawful and reasonable". The question of what is "lawful and reasonable" has been extensively explored by the courts, but only on three occasions in specific relation to vaccination (and only in the context of the influenza vaccine, not the Covid-19 vaccines, though this is coming).

Fairwork Australia has a summary on their website of the general advice given in response to the question of whether an employer can mandate Covid-19 vaccination. It says:

"Employers can only require their employees to be vaccinated where:

• a specific law (such as a state or territory public health order) requires an employee to be vaccinated
• the requirement is permitted by an enterprise agreement, other registered agreement or employment contract, or
• it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis.

This means there are two broad categories of employees who receive a direction from their employer that they must be vaccinated against Covid-19:

• those who are subject to a public health order (a PHO) saying that they must be; and
• those who aren't.

This article focusses on the second category; meaning, workers whose employers have mandated vaccination for Covid-19 for the employees, even though there is no PHO which mandates it for that particular industry.

Fairwork, and most commentators, say that in relation to the second category, the lawfulness of a direction depends on its compliance with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (such as anti-discrimination laws).

When it comes to reasonableness, they suggest a tiered system for case-by-case assessment, which in short says that it would be more reasonable for such a direction to be implemented for employees who are required to work with large groups of people, or particularly vulnerable people, or people who have Covid-19, than it would be for employees who have minimal contact with others, don't work with vulnerable people, or work from home.

2. Is it that simple? Does the law actually authorise employers to mandate medical interventions?

This is the first time in Australian history where we are dealing with the intersection of public health laws and employment laws in this way. In all states and territories, both public health law and employment law are enacted through comprehensive statutes. As always; that must be the starting point.

This article focusses on NSW. There are broadly equivalent public health and employment law statutes across the states and territories, though there are some differences too.

The Public Health Law in NSW

The primary public health legislation in New South Wales is the Public Health Act 2010 (the PHA). The objects of the PHA are;

• to promote, protect and improve public health;
• to control the risks to public health;
• to promote the control of infectious diseases;
• to prevent the spread of infectious diseases;
• to recognise the role of local government in protecting public health; and
• to monitor diseases and conditions affecting public health.

As is necessary, the PHA is comprehensive and exhaustive. As the primary piece of public health legislation in NSW, it is clearly drafted with an intention to cover the field.

Division 4 of the PHA deals with “Public Health Orders for Category 4 and 5 conditions” (which Covid-19 is defined as). Under s62 of the PHA, an ‘Authorised Medical Practitioner’ can require a person to “undergo specified treatment…a specified kind of medical examination or test”. 

So, the primary piece of public health legislation in NSW specifically makes allowance for the power to vaccinate, but only subject to several checks and balances, and only in the context of a determination made by an “Authorised Medical Practitioner”. The implication here is that the requirement for a citizen to undergo medical intervention, including vaccination, against their will, is one that can only be made by an expert, and that it is, in general, an extraordinary requirement.

Employment Law in NSW

The Work Health and Safety Act 2011 NSW (the WHS Act) and the Work Health and Safety Regulation 2017 (the WHS Regulations) form the statutory framework which govern the safety obligations for employers and employees in our state. 

Like the PHA in the realm of public health, the Act and Regulations are also comprehensive and exhaustive when it comes to work health and safety laws. They are also clearly intended to cover the field with respect to these obligations.  

The WHS Act implements several "Health and safety duties" which employers must comply with. Lets run through them:

S17 of the WHS Act says that, with regard to the management of risks in the workplace;

A duty imposed on a person to ensure health and safety requires the person—

(a) to eliminate risks to health and safety, so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

S19 of the WHS Act creates a “Primary duty of care” for employers as follows:

19  Primary duty of care

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—

(a) the provision and maintenance of a work environment without risks to health and safety, and

(b) the provision and maintenance of safe plant and structures, and

(c) the provision and maintenance of safe systems of work, and

(d) the safe use, handling, and storage of plant, structures and substances, and

(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

In addition, S20 notes that the person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.

(collectively, the Health and Safety Duties)

Many employers in NSW (and in other States who have equivalent provisions in their equivalent work health and safety legislation) have interpreted the Health and Safety Duties to mean that they must shield their staff and/or their clients (depending on their business) from Covid-19. Their direction that staff must undergo vaccination, they say, is justified by, or even necessitated by, the Health and Safety Duties that they statutorily have.

In law, however, every "duty of care" has a scope, or a limit. Employers don't need to protect their employees and clients from every single risk in the workplace, nor do they need to consider or implement every single possible means of mitigating this risk. In a world full of uncertainty and risk, that would be an unreasonable burden for employers to bear. There is an open question around whether employers need to protect their staff from contagious viruses; and if so, to what extent.

What is the Scope of the Primary Duty of Care?

To determine the scope of this particular duty, it should firstly be examined in context with the rest of the statutory framework in which it appears: the WHS Act and Regulations.

First, the Health and Safety Duties above require employers to mitigate risk and protect employees to the extent that it is "reasonably practicable".

In terms of what "reasonably practicable" means, S18 says (and we'll look at what the common law says later):

18  What is “reasonably practicable” in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about—

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

The WHS Regulations

Then there's the WHS Regulations, delegated legislation enacted for the purpose of implementing and administering the requirements of the primary legislation (the WHS Act). The WHS Regulations provide guidance to "a person conducting a business or undertaking who has a duty...to manage risks to health and safety".

Part 3.1, Section 36 of the Regulations refers to a “hierarchy of control measures”. This hierarchy is seemingly intended to be exhaustive. The definition of ‘hierarchy’ suggests this interpretation. It would be nonsensical for measures to be ranked or ordered (which is what a hierarchy is) if there were other measures, external to the hierarchy, to be included. So, this hierarchy only includes the following measures:

36   Hierarchy of control measures

(1) This clause applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety.

(2) A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this clause.

(3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following—

(a)  substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk,

(b)  isolating the hazard from any person exposed to it,

(c)  implementing engineering controls.

(4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls.

(5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.

Note—

A combination of the controls set out in this clause may be used to minimise risks, so far as is reasonably practicable, if a single control is not sufficient for the purpose.

So, a fair interpretation of the “hierarchy of control measures” within the Regulations results in an obligation to implement, so far as practicable, “risk control measures in accordance with this clause” (and nothing, therefore, outside of the ambit of this clause).

This firstly includes substituting the hazard with something which gives a rise to a lesser risk or isolating the hazard from any person exposed to it, measures which are not practicable or feasible in the case of a virus. In that case, where “a risk still remains”, as it does here, “administrative controls” and/or “engineering controls” are to be implemented. If the risk then still remains, the employer must provide the use of suitable personal protective equipment to employees. Not only does this form the absolute extent of the employer’s obligation to its staff, but it also forms the absolute extent of what could be considered a "control measure" under the Regulations. There is an important question around, on this basis, whether employees could lawfully and reasonably be directed to comply with vaccination, which is not a "control measure" statutorily authorised, as a condition of their employment.

I have seen some employers refer to vaccination as an "engineering control".

The definition of “administrative controls” and particularly, “engineering controls”, are clearly not intended to include the mandating of medical intervention, or any form of personal medical procedure, for employees.

The definition of “engineering control” within the Regulations is “a control measure that is physical in nature, including a mechanical device or process”. The requirement for staff to undergo a vaccination is a medical intervention, not a physical control measure, and obviously is not analogous to the examples given within the definition (“a mechanical device or process”). In the case law, implementations of engineering controls have included measures such as dual-acting counterbalance valves, blocking spool valves, slack wire switches and emergency stop buttons. As should be obvious, “engineering controls” have everything to do with “engineering”, and nothing to do with medicine.

The point here is that the WHS Act and the WHS Regulations were clearly not drafted with an intention to include medical procedures within their scope. The Regulations cover absolutely every possible physical measure for risk mitigation you could think of, without going anywhere near medical interventions for employees. It is therefore difficult to say that mandatory vaccination could be justified with reference to these pieces of legislation, and employers should be aware of this.

3. What does the common law say?

The other means that employers are mandating vaccination is via their ability to make 'lawful and reasonable' directions to employees at common law. (Lets leave aside for the moment the argument that the scope of the Work Health and Safety Scheme doesn't extend to mandatory vaccination, and that therefore such a direction (in the absence of a PHO) couldn't be deemed lawful).

As I said, this matter has not been directly dealt with by the Courts, except for three cases in respect to influenza vaccination. Before looking at those, lets look at how the common law has approached some of the primary questions in determining whether a direction is "lawful and reasonable". There are three primary concepts we will look at here:

1. Lawful and Reasonable;
2. The Principle of Legality; and
3. The relationship between "Reasonably Practicable" and the employer's knowledge.

Lawful and Reasonable

Whether an employer has the right to direct an employee to submit to a medical intervention in the absence of an underlying statutory requirement for them to do so is a question which can be approached through an analysis what makes an employer’s direction ‘lawful’.

Generally, to be lawful, a direction must not be inconsistent with any law, modern award or enterprise agreement. The primary source of lawfulness is the scope of the contract of services. Assuming there is no clause in the contract or enterprise agreement that allows mandatory medical intervention, it is questionable at least to suggest that such an implied term could be read into the contract given the wider public health legislative context which specifically excludes employees who are not subject to a public health order from such a requirement.

In R V Darling Island Stevedoring and Lighterage Co Ltd; Ex Parte Halliday the High Court said (with emphasis added):

An employer clearly has the authority to give directions and expect them to be obeyed, subject to such directions being lawful and reasonable.

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable.

This High Court authority has been upheld consistently. In Grant v BHP Coal Pty Ltd (No 2), the Federal Court of Australia again confirmed that a direction will be lawful to the extent that it falls within the scope of the contract of service and involves no illegality. 

It is also worth looking at Daniel Cole v PQ Australia Pty Ltd T/A PQ Australia, a case in which the Fair Work Commission explored the employer’s right to direct an employee to attend a medical examination. In finding that the employer had no reasonable basis to assume that the employee had any illness that related to his capacity to perform the inherent requirements of his job, the Commission’s decision included a useful outline of the matters that it would consider in deciding whether any requirement to attend a medical examination was reasonable:

a. Is there a genuine need for the examination, such as long work absences, or absences without evidence of an injury/illness that relate to the employee’s ability to perform the inherent requirements of their job?

b. Has the employee already provided adequate medical information that explained their absences and showed their fitness to perform their duties?

c. Is the industry or workplace particularly dangerous or risky?

d. Are there legitimate concerns that the employee’s illness/injury could impact on others in the workplace?

The Commission also emphasised that where a medical assessment is required, the medical practitioner should be clearly advised of the employer’s concerns, which must be focused on the inherent requirements of the job and the employee’s ability to perform them.

Although this fact scenario and the questions considered are not exactly analogous to that of employees who have been directed to undergo vaccination, it does convey the great care the Fair Work Commission took in determining whether it was appropriate for the employer in that case to direct an employee to undergo a medical examination. The questions above also ground that determination in a balanced consideration of the genuine need for such an examination with respect to the employee’s job. On its face, vaccination is a much more serious thing for an employer to mandate than an examination. The justification for which such a direction could be said to be lawfully made should therefore be even stricter, and considerably so, as should the clarity of its legality.  

The Principle of Legality

The issue of whether an employer can direct an employee to attend a medical examination has actually been explored quite extensively, and can provide guidance here despite, as noted above, the requirement to undergo a medical intervention being a more onerous one. In particular, in Grant v BHP Coal Pty Ltd, Dowsett, Barker and Rangiah JJ referred to the ‘principle of legality’ (a principle of statutory construction), exploring its limits with reference to other authorities. They said (with emphasis added):

87. In Starr v National Coal Board [1977] 1 All ER 243, Scarman LJ at 249 described a person’s right to personal liberty as a fundamental right which would be infringed by requiring the person to undergo a medical examination. It is settled that statutory provisions are not to be construed as abrogating fundamental rights or important common law rights, privileges and immunities in the absence of clear words or necessary implication to that effect: see, for example, Coco v The Queen (1994) 179 CLR 427 at 437; X7 v Australian Crime Commission (2013) 248 CLR 92 at [21], [86] and [158]. That principle is known as the principle of legality.

If the fundamental right of personal liberty would be infringed by attending a medical examination, then requiring an employee to undergo vaccination might be considered a much more egregious infringement of this right. The principle of legality dictates that statutory provisions, such as, say, the duty of an employer to provide a safe working environment for employees, are not to be construed as abrogating fundamental rights in the absence of “clear words or necessary implication” to that effect. It would be difficult, for reasons given above, to read clear words or necessary implication with respect to vaccination into the WHS Act or Regulations - the implication instead seems to be that such a requirement is explicitly not within their ambit. It might be difficult to argue, on that basis, that a direction to undergo a medical intervention is therefore lawful and reasonable.

Of course, there are limits to the principle of legality, which were helpfully explored at 88 by his Honours as follows:

However, the limits of the principle must be borne in mind. In Lee v New South Wales Crime Commission (2013) 251 CLR 196, Gageler and Keane JJ said (with emphasis added):

313     ...The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration of rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.

314     The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed…

So, if an employer wished to submit that an exception to the principle of legality should be made, this principle implies that it should indicate, with specificity, the “clearly identified legislative objects” they rely on for such an exception. In addition, they will need to show that the objects or terms or context of legislation make plain that the legislature “has directed its attention to the question of the abrogation or curtailment” of the employees' right to undergo medical procedures at their own discretion. In other words, they must specifically point to authorisation within the WHS Act and Regulations for curtailing the employees' right to freely informed consent with respect to undergoing such a medical procedure, particularly given that the public health legislation in NSW does not authorise such a procedure, even in the case of a generational public health emergency. 

The relationship between "Reasonably Practicable" and the employer's knowledge

As noted above, the Health and Safety Duties require employers, "as far as reasonably practicable", to reduce risk.

The courts have said that the words "reasonably practicable" bear their ordinary meaning, and have clarified multiple times that the Health and Safety Duties are not absolute.

Critically, reasonable practicability is statutorily linked to the knowledge of the employer. As a reminder, with emphasis added:

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about—

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

In Western Australia, which has an equivalent safety duty and an equivalent requirement that employers do only what is "reasonably practicable", the Supreme Court said:

The "state of knowledge" referred to in subsection (b) of the definition of "practicable" is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge, in fact, possessed subjectively by a specific defendant in particular circumstances: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 261 and Hamersley Iron Pty Ltd v Robertson (supra) at 22.

An overwhelming majority of employers do not have any expertise or experience in virology, epidemiology or vaccinology. It is very difficult to imagine how any employer could conduct an informed assessment on "the extent of the risk and the available ways of eliminating or minimising the risk", "the hazard of the risk" or the "suitability of ways to eliminate or minimise the risk" in the case of still relatively new medical interventions. This legislation was drafted with the intent of facilitating control measures which employers understand and have expertise in (such as engineering or administrative controls). It is those measures which they have knowledge in, and with which they can conduct the necessary statutory assessment of whether to implement. In this case, they are arguably being pressured by Government to implement measures they have no expertise in, in contrast to the statutory and common law position on this point.

4. What questions will the Federal Court need to answer?

As I said above, cases for Covid-19 are only coming before the Fair Work Commission in NSW (and their equivalents across Australia) now. It is likely that many of these questions will need to be referred to the Federal Court, because the Fair Work Commission doesn't have jurisdiction to answer some of the questions which will arise in these cases. For example:

Lawful Authority

• Do employers have the authority to direct an employee to submit to a medical intervention, such as vaccination, in the absence of an underlying statutory requirement for them to do so?

The role of the Employer

• Does a requirement for an employee to receive a vaccination or other medical intervention place the employer in the shoes of either;

                - a medical body; or

                - an enforcer of Public Health legislation?

• Do employers generally hold the qualifications, skills, information and/or knowledge relevant to the risks and benefits of such medical intervention to mandate it within their workplaces?
• Does a direction to undergo vaccination amount to a hazard under Work Health and Safety Laws?
• Is the direction by an employer to mandate vaccination in these circumstances a measure within the meaning of the Work Health and Safety Laws? If not, then what degree of risk, if any, is permissible?

The rights of the Employee

• Is the employer's direction precluded by the employees’ right to informed consent?
• Is the employer liable to compensate an employee who is subject to such a requirement for any adverse reaction, injury or death which eventuates from such requirement? If not, is such a requirement appropriate?

These are all, in my view, very good, very important questions. Employers have never been put into this position before: there are live issues around whether it is appropriate for them to stand there. In the final section of this article, I will consider the potential implications for the future if both this approach of employers mandating medical intervention becomes precedential, and if mandatory vaccination in this particular instance becomes widespread (which, as of the time of writing, it already has).

5. The cases so far, and why the matter isn't settled

So far, the cases of Glover v Ozcare [2021] FWC 2989 (Glover); Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 (Kimber) and Barber v Goodstart Early Learning [2021] FWC 2156 (Barber) have all failed to argue that a direction for the employee in each case to undergo flue vaccination was not lawful and reasonable.

These cases, however, do not necessarily indicate the direction in which the legal questions above will ultimately be answered.

Kimber, firstly, was brought against the backdrop of Public Health Orders (in NSW) which mandated flue vaccination. In Barber, the requirement to receive an influenza vaccination was a feature of the contract of employment. As a result, there was arguably some lawful authority for the direction in each case, and the key questions of law that arise in the case of employers mandating vaccination absent a PHO (or a contractual clause) are not as pertinent.

Glover, however, involved an employer mandating an influenza vaccination policy which did go beyond the broader legislative framework, but still lost. In that matter, President Ross considered whether the matter ought to be referred to a Full Bench of the Fair Work Commission pursuant to section 615 of the Fair Work Act. Ultimately, President Ross decided against exercising his referral power.

The following are the reasons why I think that case doesn't necessarily show us what will happen next.

The lawful basis for the direction was not adequately dealt with

In Glover, Commissioner Hunt found that the employer’s direction to mandate vaccination was lawful and reasonable but did not discuss the laws he relied upon for that purpose. Commissioner Hunt did not discuss what is a key point, which is how employers can overcome, or override, the specific powers under the Public Health Act when those powers are exclusively exercised by Government and are intended to cover the field.

So; there are two critical questions of law here which remain unanswered:

• firstly, are employer directions for vaccinations precluded principally by the specific operation of section 184 of the PHA which deals specifically with the topic of vaccinations during public health emergencies?; and
• secondly, in a situation where employer directions for vaccinations are neither covered as measures under the WHS Act and Regulations nor under the Enterprise Agreement, can those directions be lawfully made, and, if so, on what basis?

Insufficiently qualified witnesses

In Glover, Commissioner Hunt relied upon witnesses called by the employer that were not qualified medical practitioners and experts and did not have specific knowledge about influenza vaccinations, reduced risk of infectivity and transmission.

Of the experts relied upon, only one was a Doctor, being Dr Lingwood, but even Dr Lingwood was not a sufficiently qualified expert, being an Occupational and Environmental Physician (as opposed to, say, an immunologist, virologist or pharmaceutical expert).

At 225, Commissioner Hunt noted further potential issues with Dr Lingwood’s evidence, saying that “if it were necessary to do so, I would not be satisfied that [Dr Lingwood’s] evidence would satisfy the Federal Court Rules 23.13, nor the Expert Evidence Practice Note. Dr Lingwood’s written evidence was given by way of a witness statement, not by way of an expert’s report. Further, he is not independent of Ozcare, having provided services for a decade”.

In essence, Commissioner Hunt was forced to rely on unsubstantiated assertions about vaccine efficacy and safety, rather than expert evidence on these matters, in a case where the weighing up of those factors against, say, the employee’s right to informed consent, is absolutely critical to determining whether termination was lawful and reasonable in all of the circumstances.

As a result of both this lack of expertise, as well as the fact that the flue vaccine has a very different (much better developed) safety and efficacy profile than the Covid-19 vaccines, there was an absence of meaningful discussion as to the potential effectiveness of the vaccine, and whether it was reasonable to compel vaccinations that may have inherent risks of harm and/or have no or very limited utility. In a consideration of the lawfulness and reasonableness of an employer stipulated mandate to receive a medical intervention, especially one that is still new and for which the science and data is still developing, careful and expert elucidation of these issues is absolutely essential.

Finally, and perhaps most importantly, there is a question of law here in defining the common law duty of care of the employer in adducing and relying upon experts in the field rather than relying on statements made by individuals who have no scientific expertise or qualifications when administering, or indeed mandating, medical interventions for their employees.

Finally, in Glover, it is fair to assume that if the witnesses the employer called to the Commission weren’t experts, it is unlikely that the employer relied on expert evidence when mandating the medical intervention for their employees.

Failure to take into account further significant considerations

In Glover, there was an absence of any discussion in relation to the interplay of informed consent with the obligations the employer claimed to have under Work Health and Safety laws. There was also an absence of discussion around applying coercive measures to garner consent in the absence of any meaningful scientific discussion as to any inherent risks of harm and/or utility. In justifying their mandate for the influenza vaccination (via their immunisation policy), Ozcare referred to (at 188):

• “the deadly consequences of influenza for the elderly”;
• “the regulatory regime Ozcare operates within”;
• “its contractual obligations to Queensland Health regarding staff vaccination”;
• “the work health and safety obligations it is required to comply with…to ensure, as far as is practicable, the health and safety of those in Ozcare’s care”; and
• “the worker’s duty to comply with reasonable instructions to allow an employer to comply with its WHS Act obligations” [at 201].

In response to the employee in that case asserting her right to informed consent, by referring to the Australian Immunisation Handbook (the Handbook), which states that for consent to be valid, “It must be given voluntarily in the absence of undue pressure, coercion or manipulation” (s.2.1.3), Ozcare submitted that the Handbook is “not a legal requirement and does not have the status of law”, and so “did not apply to Ozcare’s decision to introduce its immunisation policy” (at 203).

Further, at 204, Ozcare submitted that:

…medical consent is a legal issue between practitioner and patient…consent has no relevance to an employee’s duty to obey under the contract of employment, and that if an employee does not wish to consent to a requirement imposed on them, they are at liberty to bring the employment to an end. It submits likewise, the employer is entitled to dismiss the employee in such a situation.

This approach leaves open an important question of law. Specifically, it remains to be determined what the ambit of informed consent is under accepted medical standards and principles when a mandate is introduced for an employee, separate to the Enterprise Agreement or employment contract voluntarily entered into by that employee, to undergo a medical intervention such as a vaccine.

Ozcare’s position implied that if an employer deemed it prudent, perhaps without any reliance on expert or medical evidence, a medical intervention made mandatory by that employer overrides an employees’ right to informed consent, at least if they want to keep their job. This approach will likely need to be clarified, at some point soon, by the Federal Court.

Indemnity and Compensation

Finally, in Glover, there was no discussion as to the lawfulness and reasonableness of compelling vaccinations by employers when there is an absence by the employer in either being provided indemnity for any risk of injury to the employee by the Government and/or the employee being appropriately covered under the Workers’ Compensation scheme to provide adequate coverage to any risk of injury to the employee. 

Notably, in this case, the employee was provided no information about this when informed that they were required to have the vaccination to retain their employment. 

The primary question of law here revolves around defining the common law duty of care of the employer in providing the employee appropriate and assured pathways of compensation where injury is possible, and where that injury may result from a act of the employer; being to mandate a medical intervention as a necessary condition of continued employment.

6. Implications for the future

What we have here is the strange situation where, by jumping into the "no jab no job" sandpit, employers have potentially expanded their obligations under WHS laws considerably beyond what that statute initially intended.

Of course, apart from attempting to comply with their statutory duties, the intention of employers in mandating vaccination is an attempt to keep their staff and employees safe.

With that said, employers should know that by taking this course in the absence of Government health direction to the same effect, they are wading into very grey legal waters, and more pertinently, they are facilitating a responsibility and assumption that they will continue to play the role of health enforcer to their employees in the future. This should be taken into account by employers when considering which measures to implement as the Covid-19 situation evolves and changes, as it already has and will continue to do.

Peter Fam is a human rights consultant and advocate at Maat's Method Pty Ltd. You can follow Peter at t.me/thepeterfamtelegram for more general content.

If you or your business is interested in professional consultation, contact peter@maatsmethod.com.au.