All hotel quarantine workers in Western Australia must now be vaccinated under the state government's public health direction which comes into force today.
The order made by premier Mark McGowan last month will see all cleaners, security staff, hotel workers, police and ADF personnel who have contact with guests and guests' rooms required to have the jab. Those who have had at least one jab, rather than both, will still be allowed to work, according to a statement from the WA health department provided to the ABC.
WA appears to be the first state to impose a public health order mandating the vaccine for workers. Announcing the order last month, McGowan said it was "not his first preference" but rather a result of relatively low vaccine take-up among hotel quarantine employees. Health Minister Roger Cook said despite the state's efforts, vaccination rates had been "unsatisfactory", prompting the government to act.
Speaking to HRD, Trent Hancock, principal at Jewell Hancock employment lawyers, said slowly but surely, employers in Australia are getting a better idea where the Fair Work Commission will stand on mandatory vaccination policies.
"We're starting to develop a small body of case law around the question of mandatory vaccinations," he said. "Recently, there were two single member decisions at the Fair Work Commission that addressed the question of whether or not a mandatory vaccination policy could constitute a lawful and reasonable direction by an employer.
"In those cases, both concerning the influenza, as opposed to COVID-19 vaccinations, we were dealing with a refusal on the part of the employee and an employer that had a mandatory policy.
"In both cases the Fair Work Commission determined that the policy was reasonable and lawful and therefore the unfair dismissal claims were dismissed."
The workers were in the childcare and community aged care sectors, setting a precedent for the role of mandatory influenza vaccination policies in those sectors. As well as the Fair Work decisions, the public health order made by the WA government has strengthened the call for mandatory vaccinations among frontline workers.
Other states like NSW and Victoria have been able to ensure all hotel workers have been vaccinated without a workplace direction. In March, NSW Premier Gladys Berejiklian confirmed all hotel quarantine workers had had at least their first jabs, while in Victoria, workers who refused the jab were stood down with full pay.
Similarly, New Zealand also mandated that all MIQ workers needed to be vaccinated by the end of April, and nine workers were dismissed after refusing to be vaccinated.
Hancock said there is an added level of complexity due to the nature of those workers involved in hotel quarantine. While some people such as health workers or the police may be employed directly by the state or federal government, others will be employed on a contractor basis. For example, security guards are likely to be working for a private company which has been contracted by the government to provide that service to the hotel quarantine sites.
"In those cases, the termination is at the initiative of the private company, and so it's not the state government that is terminating those employees, but the company that directly employs them," he said.
"In those circumstances, the employees have recourse through the Fair Work Commission for unfair dismissal if they believe that the termination was harsh, unjust or unreasonable.
"If, however, the private company is simply complying with a direction that's been issued by the state government which prohibits the employee from working at that site until they've been vaccinated, it is incredibly unlikely that the Fair Work Commission will find that dismissal has been unfair."
In fact, in a recent Fair Work ruling (Kimber vs Sapphire Coast Community Aged Care) that very argument was tested. The aged care worker was dismissed after refusing to be vaccinated against influenza. It followed a public health order made by the NSW government during the height of the pandemic last year which required all aged care workers to be vaccinated.
Rejecting the unfair dismissal claim, commissioner Donna McKenna agreed with the aged care centre's actions.
"If an employee makes a personal choice not to have a flu shot, then an employer which provides residential aged care services and which is subject to a [public health order] has its own obligations," she said.
Queensland is so far the only state to require health workers to be vaccinated against COVID-19. Despite the stilted progress of Australia's vaccination rollout, these questions will continue to be front and centre for employers. Many have argued mass vaccinations hold the key to life returning to normal.
