Australia may allow employers to require staff to be vaccinated

In a first of its kind, the Fair Work Commission (FWC) has upheld the termination of a childcare worker who had refused to get a flu jab.
By: | April 23, 2021

Although the commission’s ruling “relates specifically to the influenza vaccination in a childcare environment”, the case could set a precedent that an employer’s direction to get staff vaccinated can be deemed “lawful and reasonable”. 

However, whether employers can require their staff to be vaccinated is still a moot point as this case is the first of its kind and could be subject to appeal. 

Although the advice given by the Fair Work Ombudsman had warned employers that they cannot force their staff to get vaccinated, experts including barrister Ian Neil and Adelaid University professor Andrew Stewart have said that employers’ power in common law to give employees “lawful and reasonable” directions could extend to ordering them to get vaccinated. 

Bou-Jamie Barber, a childcare worker had raised a case of unfair dismissal after she was sacked for refusing to get a flu vaccination when her employer introduced a new policy requiring it in April last year. 

Barber was given a chance to back her claims that she had a “sensitive immune system” and an adverse reaction to a previous flu vaccination, but the FWC found her claims to be “vague certificates which attest [to] nothing substantive”. 

Although FWC deputy president Nicholas Lake noted that the efficacy of different flu vaccines may vary, he said it is “uncontroversial that the influenza vaccination reduces the risk of infection and therefore transmission”. 

READ: 70,700 new jobs created in Australia this March

Barber’s employer, Goodstart Early Learning, had said it was obliged to ensure the health of its workers “so far as reasonably practicable” and to “prevent the spread of infectious disease[s] at its childcare centres”. 

Lake agreed with Goodstart that it “operates within an industry which is highly regulated and where safety is of paramount importance”, and therefore, it was “logical and necessary” to require vaccines to ensure the safety of vulnerable children and staff, according to The Guardian.