COVID-19 Mandatory Vaccination in WA
Go Back- 22nd October 2021
The Situation
The WA Government has announced that they are passing an order, under the provisions of the WA Public Health Act 2019, to require certain groups of workers to be vaccinated by certain dates. After those dates, allowing unvaccinated workers in those groups to work will be unlawful.
Questions
- Does the WA Government have the right to pass such an order?
The WA Public Health Act 2016 provides at s152 that the Chief Health Officer may exercise powers for the purposes of preventing, controlling or abating a public health risk. Such powers, set out in s157, include directing people into quarantine, directing people not to enter premises and requiring any person to undergo medical observation, medical examination, medical treatment or to be vaccinated.
A copy of the Act is available here:
http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/wa/consol_act/pha2016126/
- Can the order be challenged?
On October 15th, the NSW Supreme Court handed down its decision on two challenges to the NSW Government’s mandatory vaccination orders made under the NSW Public Health Act. Both challenges were dismissed. Relevant commentary from the NSW Supreme Court was as follows:
“So far as the right to bodily integrity is concerned, it is not violated as the impugned orders do not authorise the involuntary vaccination of anyone. So far as the impairment of freedom of movement is concerned, the degree of impairment differs depending on whether a person is vaccinated or unvaccinated. Curtailing the free movement of persons including their movement to and at work are the very type of restrictions that the Public Health Act clearly authorises”.
“However, the differential treatment of people according to their vaccination status is not arbitrary. Instead, it applies a discrimen, namely vaccination status, that on the evidence and the approach taken by the Minister is very much consistent with the objects of the Public Health Act.”
The full decision, being the case of Kassam v Hazzard and Henry v Hazzard [2021] NSWSC 1320 is available here:
https://www.caselaw.nsw.gov.au/decision/17c7d62628b9735ac213a597
Our legal advice is that the NSW decision will stand and similar challenges in WA would fail.
- Who is covered by the Order?
The order has three separate groups of workers. Most relevant for SDA members is group 2, which is the group who are required to have their first dose by 31st December 2021 and their second dose by 31st January 2022.
Included in this group are workers in:
- Supermarkets
- grocery stores
- bakeries
- petrol stations
- hardware stores
The SDA has written to the government querying two other areas where the order is unclear, being distribution centres supplying supermarkets and fast food outlets – which may or not be classified as restaurants. As soon as we have an answer we will advise you.
The other groups of SDA members who may be impacted are as follows:
- Pharmacy employees – who are classified as Primary Health Care Workers and therefore in group 1. Such employees need their first dose by November 1st 2021 and their second dose by December 1st
- Those in group 3, which includes:
- Click and Collect retail
- Bottle shops
- Newsagencies
- Pet stores
- Wholesalers
Group 3 employees only need to be vaccinated if there is a lockdown. Unfortunately, once the lockdown is announced, these employees will have to have already been vaccinated to be allowed to work. The SDA has raised a concern about this with government and is awaiting a reply.
More information can be found here:
- Are there exemptions available?
Typically, the only exemptions that will be granted are those on medical grounds. The process for obtaining a medical exemption can take some time and so members who believe they may qualify should note the following advice from the Department of Health:
Exemptions on medical grounds must be obtained from the Australian Immunisation Register using their IM011 form. This must be completed by your GP or specialist medical practitioner and submitted to the Australian Immunisation Register for assessment. Where an exemption is provided by them, this must be provided to your employer as proof of exemption.
Further information about the mandatory vaccination scheme can be found here:
- What if I don’t want to get vaccinated?
As noted in the NSW Supreme Court decision, although the vaccination requirement is referred to as “mandatory vaccination”, the ultimate decision as to whether or not to be vaccinated remains with the individual – no one can be forcible vaccinated. That said, if a member belongs to one of the groups for whom it is mandatory to be vaccinated to continue working, the choice is quite stark. Essentially, it will be refuse and face potentially serious consequences or accept the vaccine and continue working.
- What can my employer do if I’m in one of the mandatory vaccination groups but I refuse to be vaccinated?
In the first instance, the SDA would seek to work with you and your employer to see if there is an alternative job available where you would not need to be vaccinated, or whether you can take paid (or unpaid) leave. If this is not feasible and it comes to a time where you are required at work but have not been vaccinated, the employer will in all likelihood stand you down or, possibly, seek to terminate your employment. You should be aware that if a relevant employer allows an unvaccinated employee to work, not only are they breaking the law but they may be fined up to $100,000. Such a fine will be a significant incentive to comply with the law.
- What happens if I am stood down or terminated?
In the first instance, contact the SDA immediately. Again, we will do everything we can to see if we can arrange paid or unpaid leave. However, members should be mindful of the following. The Fair Work Commission has already decided cases regarding mandatory vaccination and has found for the employer in each case. The reason for this is that, where the government has imposed a lawful requirement upon the employer to only allow vaccinated people to work, the Commission takes the view that an instruction to be vaccinated is, to use the usual industrial language, both lawful and reasonable.
Employees are contractually bound to follow lawful and reasonable instructions. If an employee refuses to follow such an instruction they are in breach of their duties as an employee and the employer can then seek to terminate the employment contract on that basis. As such, our legal advice is that unfair dismissal claims pursued in circumstances where an employee is required by the government to be vaccinated and refuses will fail. Further, the Commission might take the view, based on case precedent, that such claims are frivolous and vexatious, thereby opening up the issue of costs being awarded against the applicant.
- What if I have the vaccine and have a bad reaction that means I need to miss work?
For permanent employees, the first avenue will be sick leave. Some employers may offer special COVID leave – you should check with your manager if this is available. For casuals, at this time there is unfortunately no practical remedy. Both the SDA and UnionsWA have called this problem to the attention of the WA Government but at this stage have had no response. We have made a broader call to employers to do the right thing and pay COVID leave to casuals but at this stage there has been little enthusiasm. Nevertheless, casual employees should check with their manager if there is any payment available.
- Is there any other assistance available if I have a really bad reaction?
There is a limited assistance scheme in place, provided by the federal government. The details can be found here:
