In Common Law, there is a remedy of mandamus which can be sought from superior courts. A writ of mandamus is (in simple terms) an order from a superior court to any government or subordinate court to compel that body to perform a specific act (that it is required by law to perform) in a particular way. Thus, it is a form of compulsion by a superior court.

When something is mandatory, it is required by law and the person subject to the mandate is deprived of any choice as compliance with the mandate is compulsory. Viewed in this way, it is perhaps easier to understand how a relatively small minority of workers will passionately (and loudly) contest a “vaccine mandate”.

As Senator Lambie rightly pointed out in a speech to the Australian Senate, however, there is a range of activities that Australians engage in every day that require us to meet certain conditions or behave in a particular way. Yet, these requirements barely elicit a mention in our public discourse. Some examples of this include:

  • obtaining a driver’s licence to operate a motor vehicle;
  • anyone who is one year or older must hold an international vaccination certificate for yellow fever if, within six days before arriving in (or returning to) Australia, they have stayed overnight or longer in a declared yellow fever infected country;
  • in order to operate a business in Australia (subject to the specific criteria set out in each jurisdiction) that business must register with, and pay premiums to, a government or private insurer for workers compensation; and
  • pilots and air traffic controllers are required to hold a current medical certificate to exercise the privileges of their licence.

Generally, we recognise that these are not mandates because there is an element of choice involved. If you wish to engage in these activities, then you have to meet the relevant requirement, but you can also choose not to engage in these activities if you are not prepared to meet the relevant requirements.

I believe that the continued use of the word “mandate” in respect of the public discourse regarding vaccination requirements only serves to reinforce negative connotations and perspectives and stifles genuine discussion about when it is, and when it is not, reasonable to require persons to be vaccinated in order to perform certain activities or attend particular sites.

Consultation

The Full Bench of the Fair Work Commission (FWC) in CFMEU & Anor v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 reviewed the decision by the employer to introduce a Site Access Requirement, which required all workers who attended the relevant worksite to be vaccinated against COVID-19.

In this case, the FWC deemed it unlawful because the employer failed to properly consult with employees in accordance with their work, health and safety obligations. This decision has emphasised the importance of engaging in appropriate consultation with the workforce before implementing a policy requiring certain workers to be vaccinated.

From a practical perspective, if your organisation is required by law to consult with the workforce, it is worth ensuring that the process itself is carefully planned to give your organisation the best chance of producing an outcome that’s accepted by the whole workforce.

It is also interesting to note that the only use of the word “mandate” in the FWC”s reasons in Mt Arthur Coal Mine (other than one reference to an expert’s evidence) was when a reference was made to the submissions of the ANWU and the CEPU. The fact that the word “mandate” appears to have only been used in submissions made against the Site Access Requirement policy, and was not used by the Full Bench, validates the observations I make about choice throughout this article and illustrates that it carries with it negative connations which should be carefully avoided when introducing such a policy to a workforce.

Vaccination directions

In Australia, the requirement to be vaccinated in order to perform specific roles can broadly be split into one of two categories:

  1. Government directions that workers in stipulated industries/sites are required to be vaccinated in order to perform their duties; and
  2. Person or Business Conducting an Undertaking (‘PCBU’) policies that direct workers to be vaccinated in order to perform their duties.

Government directions

The New South Wales Supreme Court has considered several challenges against the New South Wales Government’s public health orders requiring persons to be vaccinated in order to perform certain activities. Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 is the lead case amongst these decisions and is likely to be influential to similar legal challenges taking place in other states.

In Kassam, the Court noted that government directions regarding vaccination had the effect of either limiting a person’s freedom of movement or requiring vaccination in order to perform certain types of work (at para [57] to [58]). The Court noted that neither direction required a person to be vaccinated without their consent and proceeded on the basis that the “orders have either an encouraging effect or even a coercive effect so far as vaccination is concerned”. At [63], “Clauses 4.3 and 5.8 of Order (No. 2) do not violate any person’s right to bodily integrity any more than a provision requiring a person undergo a medical examination before commencing employment does”. [emphasis added]

The Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 3) 2021 [NSW] states that certain classes of workers must not perform work as health care workers unless they have met the vaccination requirements. The implication of this is clear. Whether you elect to be vaccinated is a matter of choice. If you choose not to be vaccinated, however, you will not be permitted to perform work as a health care worker because of the increased risk of contracting or transmitting the virus that causes COVID-19 while performing those duties.

References to the NSW Government making it mandatory that health care workers be vaccinated is both misleading and unhelpful. The word “mandate” doesn’t actually appear anywhere in the direction. Health care workers don’t have to be vaccinated if they don’t want to be, but if they are going to engage in activities that carry an increased risk of contracting or transmitting the virus that causes COVID-19, they are required to be vaccinated.

It is interesting to contrast the NSW Government’s approach with the Western Australian Government’s. The WA Government has introduced what it calls “Mandatory Vaccination requirements”. However, Health Worker (Restrictions on Access) Directions (No 4) do not require health workers to be vaccinated against their will. The directions simply restrict their ability to enter or remain in health care facilities if they choose not to be vaccinated. While the WA Government’s approach differs from some other jurisdictions in that it targets access to certain types of premises (as opposed to the performance of particular types of work), it still retains an element of choice for those persons who fall within the scope of its directions. Presumably, the decision to describe these directions as “Mandatory Vaccination requirements” was consciously made, but I question whether there’s any benefit in adopting this approach.

Unfortunately, some private sector PCBU’s have become embroiled in litigation as they seek to comply with relevant government directions. Although, strictly speaking, no consultation is required when a PCBU is seeking to comply with a government direction (as the decision has already been made), a form of consultation may be helpful in reducing any conflict that may arise in seeking to comply with the direction.

Reasonable and proportionate PCBU directions

It is generally accepted that a PCBU and their employer can require potential employees or current employees to submit to medical examinations in some circumstances. Examples of this are pre-employment medical examinations or independent medical examinations to determine an employee’s fitness to return to work (see Australian & International Pilots’ Association v Qantas Airways Ltd [2014] FCA). These requirements are accepted, provided that they are reasonable and proportionate to the risk that the employer is trying to control. As noted in Kassam, this is not considered to, generally, violate a person’s right to bodily integrity.

It seems almost trite to point out that any attempt by a PCBU to implement a policy that requires all workers to be vaccinated is not going to be reasonable and proportionate. In order for a policy to withstand scrutiny, it needs to identify the risk and make a direction that vaccination is implemented as a control measure in respect of that risk. By necessity, such a policy will be work duty or worksite specific. For example, a PCBU that employs some workers who perform all their work remotely and other workers who are required to interact with members of the general public is not necessarily going to be able to make it a requirement that both categories of workers are required to be vaccinated. Furthermore, even a worker employed to work in a role that reasonably requires them to be vaccinated cannot be compelled to continue performing that role and submit themselves to being vaccinated.

Why language matters

It goes without saying, but the greater the proportion of the workforce that understands and agrees with implementing a vaccination policy, the less disruptive it will be for the PCBU. Effective consultation with the workforce is not just critical to ensure the policy withstands a legal challenge (see Mt Arthur Coal), but it is also crucial for getting the workforce on board with the policy.

Pilots I worked with in the aerospace industry were willing to put on almost anything to keep them safe in case of a crash, but regular people in cars don’t want to be uncomfortable even for a minute.” Nils Bohlin, inventor of the three-point seatbelt.

Commencing a discussion with your workforce by stating that the PCBU intends to introduce a mandate requiring all workers to be vaccinated ensures that the focus of the discussion is on whether or not workers ought to be forced to be vaccinated. Combine this with the incorrect perception that COVID-19 is a disease that predominantly affects the elderly or those with significant co-morbidities, and you may have sections of your workforce that experience heightened levels of anxiety and resist any policy that requires them to be vaccinated.

I suggest that a proper consultation process needs to start with a discussion of the risk itself and then the available control measures to remove or minimise that risk. An example of this is how, recently, Dr Norman Swan addressed the misconception that the Omicron variant is somehow relatively harmless; in fact, it has proven to be as virulent as the original “Wuhan” variant[1].

By not starting with the outcome but instead articulating the risk and that the PCBU wants to consult with the workforce about control measures, you can start a conversation by educating your workers about why requiring certain types of worker’s to be vaccinated is reasonable and proportionate. For example, beginning with “the business notes that the state borders will be open to vaccinated travellers as of Thursday. This means that soon after, the company will need to assume that SARS-CoV-2 is spreading within the community and will have to modify its control measures accordingly” instead of “the business intends to introduce a mandatory vaccination policy”.

In order for workers to accept that a direction to be vaccinated to continue performing their role is reasonable and proportionate, it is necessary to ensure a good understanding of the risk. Ensuring any consultation is framed around the risk, as opposed to whether the PCBU has the power to force a worker to be vaccinated, there is an opportunity to try and persuade workers who are reluctant to be vaccinated about why the direction is reasonable and proportionate.

There will always be those who will not be persuaded for a range of reasonable and less reasonable reasons (I’m dealing with a few in the Fair Work Commission). However, my personal experience is that the number of workers who are not prepared to constructively engage in a discussion about the benefits of vaccination is very few. Flipping the script and changing the language about these kinds of risks and suitable control measures may well lead to a happier workforce, better culture and less costly disruption to your operations.

  1. https://www.youtube.com/watch?v=av2whK3dgBU (7.30 report, ABC).

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this article, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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Ben Duggan

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