Andrew Cardell-Ree and Jessica Rose

Another challenge to COVID-19 vaccine mandates unsuccessful so far

Andrew Cardell-Ree and Jessica Rose

9 November 2021

Employment Disputes Employment Policies Work Health and Safety

The Queensland Industrial Relations Commission (QIRC) has dismissed challenges to the Queensland Police Commissioner’s direction requiring staff to be vaccinated against COVID-19.

The QIRC found the Police Commissioner had the power to issue the direction and that the Queensland Police Service (QPS) did not fail to meet its consultation obligations before issuing the direction.

This is the latest decision rejecting challenges to mandatory vaccinations in workplaces, providing more certainty around what employers can do as Australia opens up to a “living with COVID-19” world.

Upholding the power of an employer to mandate COVID-19 vaccination, the QIRC found that:[1]

  • without more, a direction is not a term or condition of employment and it does not need to reflect what is set out in an underlying award to be binding;
  • here, the direction did not vary employees’ conditions of employment; and
  • so long as compliance does not involve illegality, an employee must comply with a ‘lawful and reasonable’ direction.

Interestingly, the focus of the case was on whether the direction was ‘lawful’.  No challenge was made to whether the direction was ‘reasonable’.

The QIRC said the direction was within the Police Commissioner’s power, and so QPS staff must comply with it.

Despite evidence from affected employees that they were not consulted, the QIRC accepted that they were given clear information about the Police Commissioner’s intentions before QPS implemented the policy.  It also accepted the wide-ranging evidence that the QPS consulted all five unions that, together, covered the entire QPS workforce and can (therefore) negotiate on behalf of those eligible to be members.  All unions ultimately supported the decision to mandate vaccination.

The Supreme Court of Tasmania similarly refused a request by around 500 healthcare workers for an injunction to halt a mandate to have at least one vaccination booked by 31 October, with a hearing of the underlying arguments due this week.  These decisions follow the trends reported in our October 2021 blogs about the lawfulness of mandatory vaccination policies and public health orders.

However, there is another challenge to the QPS direction.  Separately, seven police, one nurse and 12 ambulance officers have asked the Queensland Supreme Court to overrule the QPS direction and similar Health and Ambulance COVID-19 vaccination mandates, as beyond power or under judicial review.

In its recent interlocutory decision[2] the Supreme Court confirmed its supervisory power to review the QIRC’s exercise of its powers.  After noting that all parties asked for a ruling to help clarify the position for frontline workers State-wide, the Supreme Court will hear the case on 22 December 2021.

What next?

With the opening of NSW and Victoria, the removal of border restrictions between those States, and the planned opening of the Queensland border on 17 December 2021, COVID-19 will increasingly spread throughout the community.  This dramatically reduces any business’ ability to rely on isolation as an effective COVID-19 control measure, and so employers will need to take a different approach.

All employers may soon, if not already, ask, of any worker who interacts in person with others in the course of their work, but fails or refuses to be vaccinated, how that worker can meet their express, personal statutory work health and safety (WHS) duty[3] to:

  • take reasonable care that their omissions do not adversely affect the health and safety of others, particularly if they interact with people with comorbidities or other health issues;
  • comply, so far as the worker is reasonably able, with any COVID-19 vaccination mandate designed to allow the employer to comply with its WHS obligations to employees, visitors and others;
  • cooperate with any COVID-19 vaccination mandate notified to workers; and
  • take reasonable care for their own health and safety.

Employers may also ask how such an employee can meet the inherent requirement of their employment not to risk harm to others or to comply with the worker’s statutory WHS duties.

To learn more about mandating COVID-19 vaccination, please get in touch with our Employment, Workplace Relations and Safety Team.

Authors

Andrew Cardell-Ree | Partner | +61 7 3338 7926 | acardellree@tglaw.com.au

Jessica Rose | Associate | +61 7 3338 7928 | jarose@tglaw.com.au

 

[1]  Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356 (22 October 2021).

[2]  Johnston & Ors v Commissioner of Police & Anor; Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health & Ors [2021] QSC 275 (26 October 2021).

[3]  Section 28 of the Work Health and Safety Act 2011 (Qld) and comparable provisions in other States and Territories.