Mandatory Vaccination and Employment: An Update

Given that COVID-19 is here to stay, as well as the NSW government utilising its powers to have a very strict mandate on vaccinations, there have been numerous developments, namely the cases of Larter v Hazzard (No 2) and CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd. Also of importance are proposed changes to workers compensation that were recently released.


Larter v Hazzard (No 2) [2021] NSWSC 1451

Since our blog on the scope of the public health order mandating Covid-19 vaccination in the workplace was released in August, further Public Health Orders have been made. With these updates to the PHO, John Larter, a paramedic, was required to have received at least a single dose of a COVID-19 Vaccine by the 30th of September in which he refused to be vaccinated. The critical issue raised by Larter was whether the NSW Health Minister had the power to make Public Health Orders.


The Supreme Court determined that there existed ample authority upholding that a Public Health Order mandating vaccine was a lawful and reasonable exercise of the Minister’s power. To prove otherwise, a person ought to prove that a Minister could not make a reasonable decision for such an order to be necessary to deal with the risk to public health and its associated consequences The court notes that the concept of ‘public health’ not only applies to the health of the whole population but also can be applied to the management of individuals, especially in the context of transmissible diseases such as COVID-19.


It was noted that the distinction in coverage between subsequent Public Health Orders as a ground to challenge the reasonableness of such orders was rebuffed on the basis that there was no requirement for the Minister to identify the ambit of the orders, rather providing the risk to public health was sufficient. Further to this, the distinction between what amounts to a ‘public health risk’ and ‘operation’ or ‘health and safety’ risks was rejected on the basis that the risks in question are related to public health in the form of COVID-19.


In conclusion, it was noted that whilst the Public Health Orders have no provision in relation to terminating workers who are not able to work due to being unvaccinated, it stood to reason that in the context of NSW Health, failing to be vaccinated when required amounted to a lawful termination. This was due to the Minister giving sufficient time requiring workers to be vaccinated.


CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 (‘BHP Case’)

In an interesting twist to prior cases on mandatory vaccination (For more information, see our blog here), the Full Bench of the Fair Work Commission has deemed it unlawful for a BHP mine to mandate restricted access for its employees who are not vaccinated.


The sole reason for this outcome is the Fair Work Commission deemed there was inadequate consultation, with consultation being done after the mandate was announced and not prior. It was deemed that for there to be adequate consultation, employees must be granted the opportunity to communicate with the employer prior to a decision due to the possibility of there being a different outcome.


It is important to note that BHP operates under an Enterprise Agreement and that this outcome will not affect every industry. The Fair Work Commission made it clear that if there was adequate consultation, the BHP policy to restrict access to unvaccinated workers would be deemed to be lawful


Workers Compensation Changes

As a result of COVID-19, the NSW Government made it that if you were working in a specific industry (i.e. disability, aged care, hospitality, construction, health, transport, retail or education) and you sought workers compensation in relation to COVID, it was automatically assumed you had COVID-19.


Now with dwindling cases and an increase in those being vaccinated, the NSW government is proposing changes that it is up to the employee to prove they caught COVID-19 at work as opposed to when not working. There is no update as to when and if this legislative change will be introduced.


If you require assistance, either as an organisation or an individual in relation to COVID-19 vaccination and mandates, please reach out at enquiries@karenansen.com