Covid ruling a ‘false dawn’ for anti-vaxxers

A Queensland ruling that workers can say no to a Covid-19 jab may have limited application, say lawyers.

Vaccination. Picture: Brendan Radke

A Queensland court ruling upholding workers’ right to say no to Covid-19 vaccinations is likely to be a “false dawn” for other Australians trying to retrospectively challenge employers on the issue.

That’s the view of leading workplace lawyer Michael Byrnes, a partner at Swaab, who says the decision is “very much confined to Queensland public servants because it relies upon the Queensland Human Rights Act”.

In the case, Supreme Court judge Glenn Martin ruled that a directive in December 2021 – at the height of the pandemic – for all Queensland police to be vaccinated, was unlawful under the Act, which applies to public entities, not private companies. The judge also ruled a mandatory order for paramedics to have the jab was “of no effect”.

But while the 74 employees who took three separate actions against the Queensland government have been vindicated, according to supporters, lawyers suggest the decision is unlikely to “travel” interstate, although other jurisdictions with human rights legislation could see cases.

Most cases protesting the widespread vax mandates during the pandemic have been taken as unfair dismissal cases to the Fair Work Commission, which has mainly ruled for the employers. The cases which have been won by workers have involved procedural failures, that is, they have been decided on facts, not interpretation of the law.

But the Queensland case is unusual because it has been taken under human rights legislation and been seen in that state as representing a test case for other potential litigants.

However, lawyers says Justice Martin’s decision will almost certainly be appealed.

If upheld, it could have ramifications for other employees able to pursue a case under the human rights legislation – although they would have to prove the employer had not given “proper consideration” to their human rights. That phrase was a central part of the 115-page judgment from Justice Martin who ruled there had not been “proper consideration”, thus the directives were unlawful.

Byrnes argues that even if the ruling is upheld on appeal, those challenging vaccinations in other states and territories “will find the case of limited use”.

Consistently, courts and tribunals had upheld the right of employers to mandate Covid-19 vaccinations during the pandemic and in the period immediately after, he says.

“Time and time again, the Fair Work Commission upheld it and repeatedly other courts upheld it,” he says. “There have been very, very few successes for those who have opposed vaccine mandates. Of course, if an employer insisted on a Covid-19 vaccination now, that might be a different situation because the risk of the pandemic has been largely mitigated or contained and so the risk profile now is different to what it was in 2021 and 2022.”

It was unusual for an employer to mandate a vaccination, though this had been lawful during the pandemic because of the risk posed by the virus at that time, according to Byrnes.

“Now that the risk has by and large passed, so has a right of an employer to mandate a vaccination, unless of course, you’re dealing with employees who are in a healthcare setting, or in some other high-risk setting,” he says. In these cases, flu vaccinations, Covid-19 vaccinations and vaccinations for other viruses or diseases could potentially be mandated on health and safety grounds.

During the pandemic, employers had also been supported by government health orders covering frontline workers, although Byrnes points out that directives did not rely on those orders. The real basis for mandating a jab was the right to give an employee a lawful and reasonable direction. The real question was whether a specific direction was “reasonable”, and that depended on the nature of the work.

“Where employers mainly went wrong was in terminating the employment of employees without affording them procedural fairness,” Byrnes says. “The cases employers lost in the Fair Work Commission usually came down to the employer not fully exhausting all possibilities of redeployment and not giving the employee a chance to stay in employment before terminating their employment. They usually were a bit a bit too quick to terminate, and so they failed on procedural grounds, rather than the fundamental right of an employer to require the employee to be vaccinated.”

Tim McDonald, a principal at law firm McCabes, points out that Justice Martin referred in his judgment to a NSW Court of Appeal ruling which upheld public health orders made by then health minister Brad Hazzard. The plaintiffs had come from a range of industries and included construction worker Al-Munir Kassam and aged-care worker Natasha Henry. But the court ruled that the orders did not authorise the involuntary vaccination of any worker and were therefore lawful.

McDonald says that in the Queensland case, Justice Martin “doesn’t disagree, that at common law, it is not unlawful to have a vaccination policy as long as people are not forced to have the vaccination. But he distinguishes the common law approach to consent in the Kassam case from the test in the Queensland Human Rights Act, which states there must be full and free, as well as informed, consent. That’s a broader test of consent and it leads Justice Martin to a different conclusion to that reached in NSW. This decision is therefore unlikely to have any application in NSW.”