Mandated vaccinations are a bone of contention for Australian employers
In a recent case, the Queensland Industrial Relations Commission considered the steps an employer must take when directing employees to receive a COVID-19 vaccination. The claim was brought by employees of the Commissioner of the Queensland Police Service (QPS) after QPS directed its staff to receive a COVID-19 vaccination by 4 October. Ultimately, the Commission upheld the employer’s consultation procedure and dismissed the claim.
The employees’ claim relied on a few specific grounds, namely that the Commissioner failed to consult employees before making the mandatory direction, in breach of the relevant awards and the legislation, and that the Commissioner had no power to vary the terms and conditions of employment to compel vaccination against COVID-19. The Commission considered each ground separately.
Ground 1
Under the first ground, the employees submitted that their employer failed to comply with the relevant award, which provided that, where QPS decides to introduce significant changes in “production, program, organisation, structure or technology”, it must notify the affected workers.
The Commission was not satisfied that the direction to be COVID-19 vaccinated concerned production, program, organisation, structure or technology. It commented that the clause was relevant to changes that could erode job security through redundancy, not to health issues and the impact of COVID-19. This led the Commission to dismiss Ground 1.
Ground 2
The employees also asserted that their employer failed to consult them on the mandatory direction, as required by the Work Health & Safety Act.
The Commission heard evidence that, in addition to email correspondence with its staff, QPS also consulted with all five of the relevant employee unions. Ultimately, all five unions supported QPS’ decision to mandate vaccination. With this, the Commission noted that “the consultation reached the level where the directive was not a measure of contention” and dismissed Ground 2.
Ground 3
Finally, the employees asserted that the requirement to be vaccinated against COVID-19 must be a “term or condition” of their employment.
The Commission described this submission as “misconceived”. It noted that “a direction given to an employee does not, without more, become a term or condition of employment”, adding that the direction “must be obeyed provided compliance does not involve illegality and the directive is reasonable”.
With this, the Commission dismissed Ground 3 and found in favour of QPS.
Key Takeaways
- Under the legislation, employers owe a duty to consult with workers “so far as is reasonably practicable” regarding matters related to work health or safety
- With this, employers should ensure they consult with employees and/or relevant unions before making a direction regarding mandatory vaccination in the workplace
- Any directions made regarding mandatory vaccination must be “lawful and reasonable”
- Generally, a direction to receive a vaccination, without more, does not become a “term or condition of employment”
