Last week the Nine newspapers reported a Fair Work Commission decision to uphold the right of an employer, in this case major childcare provider Goodstart Early Learning, to fire a staff member, Bou-Jamie Barber, who refused to take the flu vaccine. The headline suggested that this was a decision with major implications for businesses’ power to demand employees get coronavirus jabs.
The article quoted Ian Neil SC, a labour law barrister who was not involved in the Barber case. He said it was the first considered decision on the subject and suggested employers with vulnerable workforces could mandate a coronavirus vaccine.
Commissioner deputy president Nicholas Lake found it was reasonable to require childcare staff to have a vaccine because of children’s risk of influenza, close contact, and the inability of some to have a vaccine because of their age. Neil said it “is difficult to see why the same reasoning wouldn’t apply to COVID vaccinations”, adding it would extend beyond childcare to other industries such as aged care.
This decision may therefore have significance in other cases such as that of the Queensland nurse sacked after refusing the flu jab on medical grounds.
However, as far as this decision having implication for coronavirus vaccines being mandated as a condition of employment, I think this may be, to use the legal phrase, somewhat precipitous.
One of the first rules of law is that each case should be decided on its merits. Put another way, each case turns on its own facts. As we have now come to realise, coronavirus poses a very minor threat to the vast majority of the population, especially children. The seasonal flu provides a completely different and potentially more severe risk.
An article in The Australian last week that touched on the childcare case explains the need to make distinctions based on the facts of each case quite well:
A recent Fair Work Commission judgment found it was within the legal right of a childcare centre to dismiss a worker who refused to have the flu vaccination.
In his ruling, FWC deputy president Nicholas Lake noted his decision related “specifically to the influenza vaccination in a childcare environment where the risks and concerns were distinct”.
Employment law firm Barry Nilsson special counsel Corrina Dowling said the ruling did not necessarily set a legal precedent.
“Similar refusals (to be vaccinated) will need to be considered on a case-by-case basis to decide whether an employer’s direction is ‘lawful and reasonable’,” said Ms Dowling.
“Consideration will need to be given not only to the industry in question but also the specific role of the employee in question.
“A distinction may also be made between the flu jab and the COVID-19 vaccine given the recent concerns around side-effects.”
This report also, perhaps more significantly, noted the reluctance of Queensland nurses to have the Covid vaccination, noting that its emergency approval underlined its status as an experimental vaccine.
Nurses’ Professional Association of Queensland president Marg Gilbert said nurses were among the most well-informed in the community about the COVID vaccine and the results were not surprising.
“It’s an experimental therapy at this point. The Centre for Disease Control hasn’t formalised their approval of it, because it’s seen as an emergency measure to deal with the pandemic,” she told The Australian.
Indeed, the Therapeutic Goods Administration states on its website that more clinical data is required “to confirm the safety of the vaccine”.
Teachers in California are fighting a coronavirus vaccine mandate on the basis that, since approval by the FDA is for emergency use, it has the status of an experimental vaccine, and thus requires an individual’s informed consent before receiving it. This principle is enshrined in the 1964 Declaration of Helsinki, which requires that recipients be informed of the benefits, risks, and “the option to accept or refuse administration of the product.” Australia has adopted this declaration.
Consideration must also be given to the common law “eggshell skull” rule, which provides that the unexpected frailty of the injured person is not a valid defence to the seriousness of the injury caused. If your boss forces you to get the vaccine and you have a severe reaction or die, this rule means the employer can’t say ‘I didn’t know that would have happened’. Have workplace safety laws regarding “lawful and reasonable directions” overridden this common law principle?
All this is before we consider matters of conscience, protected by the International Covenant on Civil and Political Rights. Let’s not forget the PM’s statement that he would respect people objection to taking the vaccine on religious grounds, since ethical concerns have been raised regarding certain coronavirus vaccines that have either been derived from the cell lines of an electively aborted foetus (in the case of the government’s vaccine of choice, AstraZeneca), or laboratory testing of them has been conducted utilising such cell lines.
Dr Rocco Loiacono is a Senior Lecturer at Curtin University Law School.
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