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Limebite 10/21

Tribunal upholds employer’s consultation steps and directions about COVID-19 vaccination

Joel ZyngierMaddison Harrington
Authors (from left):

Mandatory vaccination is on the minds of many Australian employers and employees, but there is a lot of uncertainty amongst employers about how to go about it. The Queensland Industrial Relations Commission (QIRC) recently handed down a decision that helps explain the steps an employer needs to take when consulting about mandatory vaccination requirements. It also addresses what an employer does not need to do.

The decision can be used as a helpful guide for employers seeking to understand consultation obligations and/or rebut employee arguments.

The facts

 In Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) [2021] QIRC 363, employees (claimants) of the Commissioner of Queensland Police Service (QPS) challenged their a direction from the QPS to receive a first dose of an approved COVID-19 vaccine by 4 October 2021 (vaccination direction).

The claimants objected to the vaccination direction on three specific grounds:

  1. QPS failed to consult with employees before making the vaccination direction, breaching applicable industrial awards (Awards);
  2. QOS failed to consult with employees before making the vaccination direction, breaching the Work Health and Safety Act 2011 (Qld) (WHS Act), section 47 of which requires consultation about safety matters; and
  3. QPS could not unilaterally vary employees’ conditions of employment to require them to be vaccinated against COVID19.

The decision

 The QIRC rejected all three grounds. The QIRC held the decision of QPS to direct its employees and officers to be vaccinated was lawful and reasonable. The QIRC found the Awards did not require consultation on the vaccination direction and that there was appropriate and adequate consultation in any event. The QIRC also found QPS had satisfactorily consulted about the vaccination direction pursuant to the WHS Act, which requires employers to take reasonably practicable steps to consult about health and safety matters. The QIRC also found that QPS could give the direction and it did not constitute a variation of employees’ conditions of employment.

Take away lessons

The consultation steps taken by QOS, as employer, included sending each employee an email with various documents which explained to them their employer’s intentions and reasons for implementing the vaccination direction. Further, QPS consulted with the relevant unions about the direction, and the claimants were either already members of a relevant union or eligible for membership. The QIRC held that QPS had consulted with employees as best as was reasonably practicable, by providing them with all available documents and engaging in discussions with the relevant unions.  The QIRC noted the phrase ‘reasonably practicable’ had a plain English meaning. Employers should take comfort they are not required to take every possible step that could be taken to consult with their employees.

Employers should ensure they consult with employees about mandatory vaccination in accordance with law. A clear and well-reasoned policy accompanied by straightforward explanatory material are important tools to achieve this, in addition to consultation with applicable unions. However, employers do not need to consult employees on an individual level about implementing mandatory vaccination directions.

If you have or are considering implementing mandatory vaccinations in your business, please contact Gilchrist Connell for assistance.

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.