COVID-19 and employment law updates
16 February 2022
The Fair Work Commission has issued a range of helpful decisions about COVID-19 vaccination policies in the workplace in recent months.
Compliance with Public Health Orders is non-negotiable
For organisations subject to a Public Health Order, the Commission has confirmed that compliance with the law is non-negotiable.
In the Victorian case Floors Aucamp v Association for Christian Senior Citizens Homes Inc, the Commission upheld the dismissal of a maintenance manager of a retirement village who refused to get a COVID vaccine. The Commissioner noted that the employer would have committed an offence under the Public Health and Wellbeing Act 2008 (Vic) if it allowed the manager to work unvaccinated.
In the New South Wales case Aleisha Jean Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited, an aged care worker’s employment at a residential aged care home was terminated because the worker didn’t comply with the requirement that she provide proof of vaccination against COVID-19. In finding that the worker’s dismissal was not unfair, the Commissioner noted that:
- there were no alternative duties available for the worker at the aged care facility or other parts of its business, and
- if the employer didn’t comply with the public health order, a fine could have been issued to the person managing the aged care home and the home’s accreditation as an aged care provider may have been put at risk.
Consultation is the key to introducing an enforceable vaccination policy
The Commission has also provided guidance for organisations that aren’t subject to a Public Health Order but want to introduce their own vaccination policies.
In CFMMEU v Mt Arthur Coal Pty Ltd  FWCFB 6059, the Fair Work Commission decided that BHP’s introduction of a mandatory vaccination policy was unreasonable and unenforceable because BHP didn’t meet its obligations under WHS laws to consult with its employees.
However, the Commission indicated that the policy would likely have been reasonable if BHP had consulted properly with workers.
The Commission also made some useful findings based on expert evidence, including that:
- other measures such as mask-wearing and social distancing do not provide a substitute for vaccination, and
- vaccination is and will continue to be, the most effective and efficient control available to combat the risks posed by COVID – 19 for the foreseeable future
Organisations can request vaccination information under privacy laws
In CFMMEU v BHP Coal Pty Ltd  FWC 81, the Commission held that BHP didn’t breach privacy law when it required employees to provide evidence of vaccination status as a condition of entry to the workplace.
The Commissioner said that employees, in handing over their private health information did so with consent, even though they faced potential dismissal if they refused. While employees may have felt economic pressure to consent, the Commissioner took the view that this was not duress of the kind that could invalidate consent.
The decision also provides other useful guidance about how organisations should handle vaccination information to comply with privacy laws.
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