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No Jab, No Job – An Update on Mandatory Vaccines in the Workplace

Since our last article on vaccinations (which you can read here), the Fair Work Commission has made a landmark decision on mandatory vaccinations. This now gives far clearer guidance to employees and employers on whether requiring vaccination is a lawful and reasonable direction.

In the case of Barber v Goodstart Early Learning [2021] FWC 2156, the employee argued that it was illegal for her to be sacked after failing to abide by the business’ mandatory immunisation policy. The policy mandated her to get the flu vaccination in order for her to continue working in an early learning centre.

Barber refused the flu vaccine on the basis that she had a medical condition preventing her from having it. Despite presenting a medical certificate, which her employer (and later the Fair Work Commission) rejected, Barber was dismissed from her employment.

Goodstart Early Learning claimed that she did not meet the inherent requirements of her role by not being vaccinated. Although the Fair Work Commission did not accept that it was an inherent requirement of the role, it found that it was lawful and reasonable that Goodstart direct their staff to be vaccinated. Accordingly, the Fair Work Commission found that Barber’s noncompliance with that lawful and reasonable direction was valid grounds for her termination.

The Fair Work Commission found it to be a lawful and reasonable direction, as:

  1. Goodstart was required by the Work Health and Safety Act 2011 (Qld) to ensure the safety of its staff and children in its care;
  2. Goodstart had particular responsibilities to avoid the spread of infectious disease;
  3. Goodstart operated in a highly regulated industry with unique statutory obligations where safety and the protection of children was of the utmost importance;
  4. Many governments were recommending and encouraging that childcare sector staff receive the flu vaccine;
  5. The vaccine was free for staff and the immunisation policy was appropriately and reasonably implemented, allowing for exceptions for valid medical exemptions.

This case solidifies that it may be a lawful and reasonable direction to mandate the COVID-19 vaccine in highly regulated industries and those most exposed to the virus.

If you would like any advice about mandating vaccination in your workplace and/or our help in drafting a vaccination policy, please contact our experienced employment law team at Taurus Legal Management on (03) 9481 2000 or info@tauruslawyers.com.au.

Posted by Taurus Legal Management