To date, the ANMF (SA Branch) is not aware of any legal avenue that would bring into question the lawfulness of the Direction.

It is also important to note that the ANMF (SA Branch) represents over 22,500+ members, and the overwhelming majority of our members are supportive of the COVID-19 vaccination. Given the purpose of the ANMF (SA Branch) is to advance the interests of our members and the health and related systems of the profession; to challenge the Direction would be at odds with this purpose and the interests of the vast majority of our members.

Mandatory vaccination of workers in certain workplaces is not a new feature of the working and legal landscape. Many health and aged care settings, for example, have had mandatory requirements for workers to demonstrate vaccination against various illnesses or diseases. Some of these are legal requirements. Others are requirements established by the employer themselves on the premise that they are in the best interests and protective of the worker and those in their care. Recent decisions in the Fair Work Commission have found that vaccine directions are lawful and reasonable depending on the nature of the work and the risks associated with not being vaccinated. In aged care and healthcare settings, these directions are lawful and reasonable given the frequent interactions with vulnerable persons.

In Australia, public health legislation is primarily the responsibility of states and territories. Mandatory vaccination programs already exist in most parts of Australia for a range of vaccines for preventable diseases and apply to workers who are determined by public health authorities to be at particular risk of contracting and/or spreading a disease. These are generally, but not always, implemented using Public Health Orders. The Emergency Management (Healthcare Setting Workers Vaccination) (COVID-19) Direction 2021 is a Public Health Order.

Whilst the High Court has recognised the right to political expression, which may involve expressing views about medical aspects of vaccination (including inaccurate views), state level human rights instruments, where they exist, and Commonwealth constitutional provisions are unlikely to invalidate a policy, regulation or public health order mandating compulsory vaccination for high-risk workers.

In the context of considering personal liberties/freedoms, the Federal Court has found that, at least in respect of the health and safety laws applicable to the coal mining industry in Qld, that the fundamental common law right to personal liberty (in this case, the right to refuse a medical examination) can be validly curtailed by health and safety laws even though there was no specific provision providing for such examinations to occur.

A. If a member is dismissed for refusing or being unable to be vaccinated, contrary to a legal requirement or direction of their employer, then as is the case with any termination, an assessment would need to be made by the ANMF (SA Branch) as to whether there is a sound basis to proceed with, for example, an unfair dismissal application.

Any application for unfair dismissal would need to be assessed against the legislative criteria to determine if a dismissal was harsh, unjust, or unreasonable. This will turn on the facts of the individual case, actions by the employer and worker during the process, as well as what precedents may exist from previous decisions of the Fair Work Commission (FWC) and the South Australian Employment Tribunal (SAET).

When assessing an individual’s workplace rights, along with what remedies may exist if trouble is encountered, it will inevitably turn on the specific circumstances, facts, and laws that apply to the dispute or workplace situation.

However, it is important to note that a number of recent Fair Work Commission matters that have considered the question of dismissal for refusing vaccination have pointed to at least a preliminary view that these dismissals are unlikely to be found to be unfair, unless vaccination refusal is for a valid medical reason.