Vaccine mandate – human rights and employment law

As life begins to slowly offer some sense of post-COVID-19 normality, discussions of human rights, vaccines and employment requirements are emerging as preeminent concerns.

Understandably, there is an increased demand for discussion and clarification of the legal consequences of vaccine mandates.

Pressures have emerged, particularly in Queensland and Western Australia, to increase vaccination rollouts as the two geographically largest states with the lowest vaccination rates. The recent pressure stems from the call to reopen borders in time to cater for the festive season.

Criticisms have also been made as to the lack of clarity regarding vaccination targets, with many claiming that the lack of a fixed date will only encourage the relaxed attitude some Queenslanders have adopted towards the vaccines.

Further, many have urged the State Government to impose a mandate for vaccines and increase vaccine availability to all healthcare providers, making it practically impossible to go unvaccinated without lawful excuse.

Certain employers, most recently Coles, Woolworths, Westpac and the Commonwealth Bank, have sought to take matters into their own hands, succumbing to public pressure and requiring employees to vaccinate or be refused entry into the workplace.

This decision was made against the background of government orders requiring several workers to be vaccinated in order to perform their jobs, including interstate truck-drivers, Queensland Police Service employees and healthcare workers.

These mandates have led to a legal minefield, with many objecting to such orders on employment and human rights bases, making the question of vaccine mandates, privacy and employment one of ever-growing importance.

Notably, these competing demands are currently before the court in the matter of Belinda Cetnar & Jack Cetnar v State of Victoria & Ors, where a directions hearing was heard on 5 October 2021. The plaintiffs in this matter, Belinda and Jack Cetnar, work in the education sector. They seek relief in relation to the State Government’s directions concerning mandatory vaccination.

This case draws familiarity to the 2021 Fair Work Commission case of Ms B v Goodstart Early Learning Centre,¹ where an employer’s imposition of an immunisation policy regarding the influenza vaccination in a childcare facility was considered.

Here, the employer – Goodstart – argued that it was an ‘inherent requirement’ of the role that the employee in question be vaccinated against influenza. The commission was ultimately not satisfied that being vaccinated against influenza can constitute an inherent requirement, as it had no impact on one’s capacity to perform tasks integral to the role.

The employee also alleged that they had a valid medical exemption from receiving this vaccine; however, when no evidence of such valid medical exemption was given, their second cause of action was that they were the subject of an unfair dismissal.

In considering this issue, the commission highlighted that Goodstart had issued a direction to all staff requiring vaccination (and in implementing that direction had extensively consulted with staff), which effectively meant that the employee ‘knowingly and consciously’ objected to vaccination and in doing so was aware of the potential consequences.

The employee was also provided ample opportunity to demonstrate a valid medical exemption and did not do so. Thus, the dismissal was not found to be harsh, unjust or unreasonable. Nevertheless, whether or not mandatory COVID-19 vaccinations are held to be lawful by our courts is yet to be fully seen.

Human rights implications

Human rights in Queensland are protected under the Human Rights Act 2019 (Qld) (the Act), which echoes the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic.) and has a foundation ensuing from the International Covenant on Civil and Political Rights.

Notably, the ongoing case of Natasha Henry v Brad Hazzard² considers how vaccine mandates may breach human rights. In particular, whether the Health Minister, Brad Hazzard, had the power to impose a requirement that persons receive the COVID-19 vaccine and if so, was this done so in a proper manner and according to law. Minister Hazzard’s submissions is that these restrictions can reasonably be regarded as necessary to protect public health and safety.

It is common for there to be competing rights and interests in policy debates. Vaccine mandates are no exception. The following human rights have been purportedly limited as a consequence of vaccine mandates, namely:

• the right to protection from torture and cruel, inhuman or degrading treatment under section 17 of the Act, which prevents a person from being subjected to medical treatment without the person’s fully informed consent
• the right to freedom of thought, conscience, religion and belief under section 20 of the Act, which prevents a person from being coerced or restrained in a way that limits the person’s freedom to have or adopt a religion or belief
• the right to privacy under section 25 of the Act, which prevents interference with the person’s privacy, and
• the right to freedom of movement under section 19 of the Act, which allows a person to move freely within Queensland and to enter it and leave it. This clearly may be at risk given the mandate’s location-based limitations with border restrictions.

Against this, a primary human right to be considered and weighed against those aforementioned is the right to life as under section 16 of the Act. This right protects every person’s right to life and right to not be arbitrarily deprived of life and is especially important given the risk to life from contracting COVID-19.

The right to life, while subject to contemplation against other rights, is considered to be one of upmost significance and necessity, being the second right listed in the Act and one which must be upheld for other rights to inevitably succeed.

Certainly, the right to life has been upheld as an absolute, non-derogable right, enforceable by the imposition of both negative and positive duties on public entities. As a consequence, a positive absolute duty may be imposed on the government to take action against threats to life, such as highly infectious diseases, requiring the right to life to be heavily weighed when considering any action to be taken.

The Act provides mechanisms for the potential limiting of human rights recognised. This occurs only when the limits can be held to be reasonable and dignified under a “free and democratic society based on human dignity, equality and freedom”.

Among other factors, this requires the deliberation of the nature and purpose of such limitation and the potential for “less restrictive and reasonably available” means to reach the purpose of the limitation without infringing on human rights.³

This brings forth the question of why measures such as facemasks, social distancing and potential lockdowns, as less restrictive and reasonably available mechanisms, are not sufficient in preventing the limitation of human rights infringed by vaccine mandates.

Primarily, the argument is that facemasks and social distancing alone are insufficient in preventing the risk to the right to life resulting from the COVID-19 pandemic (particularly in circumstances where more effective protection is provided by vaccination).

Moreover, the argument may be made that those other measures provide an infringement on the right to freedom of thought, conscience, religion and belief, and when coupled with lockdown measures, the infringement of rights extends to the right to freedom of movement.

Arguably, the long-term infringement imposed by continued face-mask, social distancing and lockdown measures outweighs the short-term infringement mandatory vaccination has on one’s human rights, with the vaccine also decreasing the risk to the right to life to a much greater extent.

Recognising the competing rights at play is an important part of social debate on this issue. It is not enough for the vaccine hesitant to proclaim certain rights and ignore other competing rights. Viewing this debate through a human rights lens shows that there is a difficult balancing exercise and that considered debate is critical.

The application of the Act is wide-reaching, with it binding all persons including the State, courts and tribunals and public entities, as under section 5. Notably, public entities include government entities, public service employees, Ministers, registered providers and entities providing functions of a public nature, as under sections 9 and 10.

Thus, a wide range of businesses may fall under the duty to consider human rights in potentially mandating vaccinations among their employees, further balancing such rights against further privacy and employment law obligations.

Privacy and employment law implications

The current legal position in employment law, incorporating Fair Work Ombudsman and SafeWork Australia guidance, suggests that employers do not have to impose vaccination requirements on their employees in order to meet their workplace health and safety obligations.

This is leaving aside circumstances where a public health order applies which requires certain categories of employees to be vaccinated (for example, truck-drivers that cross interstate borders must be vaccinated).

In fact, leaving aside circumstances where a public health order applies, employers may only mandate vaccination if it is both lawful and reasonable to do so.

Whether a particular vaccination mandate issued by an employer is lawful and reasonable requires careful consideration of a number of factors pertaining to the particular workplace and individual subject to the mandate, including:

• the nature of the physical workplace (for example, whether social distancing is possible or whether employees work in close proximity to others)
• the nature of the work performed by the particular employee subject to the requirement (for example, are they working in close proximity with people who are more likely to be infected by COVID-19 or people who are particularly vulnerable to significant health risks if they contract COVID-19 such as children, the elderly or the immune-compromised?)
• the level of risk associated with contracting or transmitting COVID-19 in that particular workplace or role,
• whether there are alternative safeguards that can be put in place to sufficiently protect the health and safety of that person and the others around them (should they be permitted to work unvaccinated)
• the extent of community transmission in the location where the direction is given
• whether any people are required to attend an institution, facility, tribunal or agency where persons entering those places are required to be vaccinated
• whether the person is required by external agencies (for example, Queensland Health, Legal Aid Queensland) to be vaccinated to perform a function of their job
• the level of consultation regarding the introduction of the mandate
• vaccine availability
• whether the conditions of the mandate are reasonable (for example timeframes for compliance), and
• where applicable, the employee’s reasons for refusing, or otherwise not being able, to comply with the mandate.

Whilst there is arguably a strong basis for employers to mandate vaccination in industries where there is a higher risk of infection and transmission due to the close proximity in which people work and/or greater level of interaction with the public (for example, healthcare, retail), it is likely that employers in white-collar industries (such as law firms and other professional serves) may struggle to demonstrate the ‘reasonableness’ of a vaccination mandate across their workforce.

An employer who issues a mandate which is not lawful or reasonable could be exposed to industrial disputes, unfair dismissal claims, and claims of discrimination and/or breach of the general protections provisions contained in the Fair Work Act 2009 (Cth) (particularly in circumstances where the employer seeks to discipline or terminate an employee for non-compliance with the mandate).

Such considerations were recently put before the Federal Court in the matter of QNurses First Inc. v Monash Health [2021] FCA 1372. In this matter, the applicants, QNurses First Inc. (an unregistered union) and Ms Kallista (a member nurse) sought injunctive relief against proposed disciplinary action to be taken by Monash Health.

Specifically, the applicants argued that the proposed disciplinary action (that is, dismissal of unvaccinated healthcare workers) was contrary to the respondent’s obligations under the Fair Work Act 2009 (Cth), which restrains them from taking “adverse action” against an employee for exercising a defined workplace right.

In deciding the case, the Federal Court made two findings. Firstly, it held that the proposed disciplinary action came within the remit of adverse action as outlined in the legislation. However, the court held that the applicants failed to show any evidence that Monash Health’s proposed actions were to be carried out because the employees had exercised any workplace right.

Rather, the court held that Monash Health’s proposed course of action occurred due to the directions issued by the Victorian Chief Health Officer which restricted the employment of unvaccinated healthcare workers. On this basis, the application for injunctive relief was dismissed.

The requirements of the Privacy Act 1988 (Cth) may also need to be considered, as entities bound by this Act would likely need to obtain employee consent in order to collect or disclose vaccination information. A useful factsheet outlining the obligations of employers in regards to the safekeeping of their employees’ vaccination information is available.

Notwithstanding the above requirements of a reasonably necessary basis to mandate vaccination and collect vaccine information, the Therapeutic Goods Administration (TGA) under the Commonwealth Department of Health has indicated that vaccinations may be conditionally incentivised.

Where businesses are unable to mandate vaccines, they may instead seek to promote them in the workplace through monetary rewards, paid leave or other measures. For this to be lawful, the rules imposed by the TGA must be upheld, meaning that:

• where government materials are used to promote vaccination, this material must not be altered
• where self-created content is used, the content must maintain consistency with the current health messaging surrounding Australia’s COVID-19 vaccination program, and
• in offering valuable consideration for persons who have been vaccinated, the following conditions must be adhered to:
• rewards must only be given following partial or full vaccination
• the offer of incentive must state that vaccinations are to be undertaken on the advice of a qualified health practitioner
• the reward must not be tobacco or medicine
• the offer must refer to COVID-19 vaccines generally (as opposed to promoting a particular brand of vaccine), and
• any alcoholic reward must not promote excessive alcohol consumption or underage drinking and must be consistent with the Responsible Service of Alcohol guidelines.

Notably, employers appear to face dangers of liability no matter which approach they take, with workers potentially being able to claim compensation for injury or illness resultant from a required vaccination or potentially being able to claim compensation for injury or illness resultant from an unvaccinated or COVID-19 unsafe work environment.

The former was considered in a 2015 case where a company was fined $20,000 for failing to protect its worker against an infectious illness.⁴ Nevertheless, this exposure to liability is likely mitigated by the introduction of the No Fault COVID-19 Indemnity Scheme, which would provide a simpler avenue through which aggrieved employees could take their claims.

In addition, even where vaccination has been mandated and/or the workplace is as ‘COVID safe’ as possible, an employee who contracts COVID-19 in the course of their employment will likely be entitled to workers’ compensation and resultant benefits, as was demonstrated by the recent NSW case of Sara v G & S Sara Pty Ltd.⁵

It is expected that the matter would have been decided in essentially the same way if it related to Queensland workers compensation laws.

The issue of vaccine-related litigation does not limit itself at the employee and employer level. For example, customers may potentially assert liability onto an employer who failed to take reasonable care to protect its customers from a dangerous infectious disease ensuing from a failure to vaccinate staff.

Such liability may even extend to other businesses which risk economic loss ensuing from relying on a company that has been forced to shut down or temporarily close due to a lack of vaccination to COVID-19.

These are, of course, hypothetical matters, but without government instruction on the nature of liabilities ensuing from vaccination or a lack thereof, businesses in particular are put in increasingly vulnerable positions from all angles.

While the legal issues discussed are yet to receive judicial consideration in the COVID-19 context, many cases are on foot. In the last few months the New South Wales Health Department has been named in at least five civil suits by those opposing the vaccine mandate. Many of them have been dismissed (whether that be due to a failure to identify adequate legal grounds) while others are yet to be determined.

Larter⁶ is one such case that has only recently been dismissed by the Supreme Court of New South Wales. Here,the plaintiff, a longstanding paramedic, raised human rights within the context of attempting to avoid the New South Wales Government’s vaccine mandate for healthcare workers.

Specifically, Mr Larter opposed the vaccine mandate on the basis of his strong Catholic beliefs and the fact that, as his argument went, the vaccine was derived from stem cell research (Pfizer and Moderna) and the cells of aborted foetuses (AstraZeneca).⁷ He was described by his counsel as a “conscientious objector” to the vaccine.

In supporting his argument, the plaintiff relied upon various materials disseminated by the Catholic Church in respect of the COVID-19 vaccine. In one of those materials – a letter from the Pope – the Vatican noted that “all vaccinations recognised as clinically safe and effective can be used in good conscience with the certain knowledge that the use of such vaccines does not constitute formal cooperation with the abortion from which the cells used in production of the vaccines derive”.

While the court held that Mr Larter’s religious beliefs were genuine, they clearly depart from the Catholic Church’s own stance. Justice Anderson held: “The [vaccine mandate] require(s) the plaintiff to choose (if it be a choice) between abiding by the dictates of his conscience and continuing to practise in his chosen occupation. The dictates of his conscience do not relieve him from complying with, or being bound by, valid orders.”

She noted that while Australia is a signatory to the International Covenant on Civil and Political Rights (ICCPR) (noting of course the limitations of domestic application of international law) there could not be any incursion on the right to religion given that the ICCPR itself contains a caveat that permits necessary limitations in order to protect public health.

In any event, the International Covenant on Economic, Social and Cultural Rights also contains a right to prevent, treat and control epidemics. In such circumstances it would seem that the plaintiff is not able to cherry-pick which human rights they rely upon to substantiate their case.

Ultimately, the court considered the vaccine mandate to be reasonable in the circumstances and dismissed the application.

Kristin Ramsey is the Chair of the Queensland Law Society Industrial Law Committee and Dan Rogers is the Chair of the QLS Human Rights and Public Law Committee.

Footnotes
¹  [2021] FWC 2156 (20 April 2021).
² Natasha Henry v Brad Hazzard (Supreme Court of New South Wales, 2021/00252587, commenced 30 September 2021).
³ Human Right Act 2019 (Qld) s 13.
⁴ Details of successful prosecution against E184384, WorkSafe.qld.gov.au.
⁵ Sara v G & S Sara Pty Ltd [2021] NSWPIC 286.
⁶ John Edward Larter v The Honorable Brad Hazzard MP, Minister for Health and Medical Research (Supreme Court of New South Wales, ​2021/00259688, commenced 24 September 2021).
⁷ See Larter v Hazzard (No.2) [2021] NSWSC 1451.