Fair Work Commission provides further support for mandatory flu vaccinations in workplaces

In a case that has been closely watched by employers considering whether to require employees to be vaccinated against COVID-19, the Fair Work Commission has upheld another dismissal of an employee who refused a mandatory flu vaccination. 

The decision comes within five weeks of two similar findings in the Commission supporting mandatory vaccination in the childcare and aged care sectors¹, and indicates some willingness by the Commission to determine that it is lawful and reasonable for an employer to introduce a mandatory vaccination policy in certain circumstances.

In Glover v Ozcare [2021] FWC 2989 (26 May 2021) (Glover), a long-serving care assistant, Ms Maria Glover, declined to receive a compulsory flu vaccination on the basis that she had previously suffered an adverse reaction to the flu vaccination when she was a child.  Ms Glover was employed by Ozcare to provide home care services to clients aged over 65 years.

In April 2020, Ozcare updated its immunisation policy to make flu vaccinations mandatory for all employees working in residential aged care facilities and in community care services with direct client contact (the Policy).  Finding that Ms Glover could not meet the inherent requirements of her position, Ozcare effectively dismissed Ms Glover in October 2020.  Ms Glover subsequently brought an unfair dismissal claim².

"Not a widget maker in a widget factory"

Commissioner Hunt held that Ozcare's decision to mandate flu vaccinations for its client-facing employees, without allowing any exemption, was lawful and reasonable.
 
In finding that the Policy was lawful, Commissioner Hunt observed that Ozcare never physically forced employees to be vaccinated against their will and the fact that Ozcare's Policy mandated a higher bar than that contained within the Aged Care Direction in force at the time did not render the Policy unlawful³.
 
The Commissioner found that the Policy was reasonable in the circumstances, noting that Ms Glover's role "was not that of a widget maker in a widget factory where her status as an unvaccinated employee might not matter"⁴. In finding that the Policy was reasonable, Commissioner Hunt had particular regard to the following factors:

• the clients cared for by Ozcare in community care were elderly and vulnerable and would expect that care workers attending their home would take every precaution not to expose them to influenza, which could have severe consequences;
• the wearing of PPE alone without vaccination was an insufficient safeguard in circumstances where community-care employees visited many private homes each day where there was no formal infection control; and
• Ozcare considered the Policy necessary to safeguard its clients and employees so far as was practicable.

Commissioner Hunt also observed that Ms Glover was provided with many months to reconsider her position while on paid leave and that Ms Glover's evidence in support of her alleged allergy amounted to no more than informing her treating medical practitioner that she believed she suffered from the condition.
 
While ultimately finding that there was a valid reason for the dismissal on the basis of Ms Glover's capacity and Ozcare's operational requirements, the Commissioner dismissed Ozcare's argument that it had a valid reason for dismissal on the basis of Ms Glover's conduct and refusal to comply with its instructions. 

Implications for mandatory COVID-19 vaccinations

While the commentary of the Fair Work Commission appears to support mandatory flu vaccinations in certain workplaces, the law on this issue is expected to evolve further, noting that no decisions on COVID-19 vaccinations have yet been handed down.
 
In the absence of any laws or public health orders in Victoria that require employees to be vaccinated against COVID-19, employers considering whether to introduce mandatory COVID-19 vaccinations should conduct a comprehensive occupational health and safety risk assessment and seek advice as to whether a mandatory vaccination policy is appropriate for their workplace.
 
Employers should also ensure that they consult with employees, so far as is reasonably practicable, on matters related to health or safety that directly affect, or are likely to directly affect them. There may also be an obligation to consult arising under an enterprise agreement.
 
In considering whether to impose a mandatory vaccination requirement, some key factors are likely to include:

• the likelihood of staff being exposed to COVID-19 in the workplace, taking into account the nature of the role(s) undertaken by staff, the particular features of the workplace and the rates of COVID-19 infections and transmission in the community;
• the degree of harm that might result from exposure to COVID-19 (including consideration of any particular vulnerabilities of staff) and the extent to which unvaccinated staff pose a risk to others;
• whether vaccination is an effective control measure against those risks (so far as is reasonably practicable), based on the current medical evidence on the efficacy of the particular COVID-19 vaccine in both preventing infection and transmission;
• the availability and suitability of other control measures to eliminate or reduce the risk of exposure to COVID-19; and
• whether it is appropriate to include any exemptions for particular classes of staff (noting that there were no exemptions made in Glover) and if so, how they will be accommodated given any associated risks. 

Additionally, employers should consider whether a mandatory vaccination requirement gives rise to any implications under anti-discrimination legislation.  Victorian public sector employers should also consider any implications under the Charter of Human Rights and Responsibilities Act 2006 (Vic).
 
The VGSO Workplace Relations and Occupational Safety Team provides advice and conducts litigation in relation to all aspects of Victorian public sector employment and occupational safety issues.

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¹ Barber v Goodstart Early Learning [2021] FWC 2156 (20 April 2021); Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 (29 April 2021).
² Glover v Ozcare [2021] FWC 231 (18 January 2021).
³ Ms Glover challenged the Policy on the basis that the mandatory vaccination requirement under the Aged Care Direction in force in Queensland at the time only applied to residential aged care facilitates, not community care or in-home care.
⁴ Glover v Ozcare [2021] FWC 2989 (26 May 2021) [237].

Contact our team

For advice on assessing the merits and risks associated with introducing a mandatory COVID-19 vaccination policy or considering associated issues in a Victorian public sector context, contact Frances Anderson, Assistant Victorian Government Solicitor, on 03 8684 0449 or frances.anderson@vgso.vic.gov.au or one of our Workplace Relations and Occupational Safety team members.