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COVID-19 requirements under the Public Health Act
For more than two years, the Major Emergency Declaration has enabled a range of restrictions to reduce the spread of COVID-19 in South Australia.
On 24 May 2022 the Major Emergency Declaration was lifted and amendments made to the South Australian Public Health Act 2011 to ensure important public health measures are maintained to limit the spread of COVID-19.
Despite the lifting of the Major Emergency Declaration, Emergency Management Directions continue to be in force under section 90C of the South Australian Public Health Act. This includes:
Emergency Management (Consolidated Measures) (COVID-19) Direction 2022
- Emergency Management (Residential Aged Care Facilities No 49) (COVID-19) Direction 2022
- Emergency Management (COVID-19) (Healthcare Setting Workers Vaccination No 7) Direction 2021
- Emergency Management (In-home and Community Aged Care and Disability Workers Vaccination No 4) (COVID-19) Direction 2022
- Emergency Management (Voting Arrangements No 2) (COVID-19) Direction 2022
South Australian Public Health (COVID-19 Directions) Notice 2022
These requirements are essential to protect the South Australian community and ensure the health system’s resources can manage COVID-19 cases.
The ANMF (SA Branch) Position on the COVID-19 Vaccination
The ANMF’s full position statement on the COVID-19 Vaccination can be found here
To summarise, the ANMF (SA Branch) supports vaccination and strongly encourages all health care workers to be vaccinated if there is no medical contraindication. Vaccination of nurses, midwives, care-workers, and nursing and midwifery students who are employed or undertaking placements assists in preventing the spread of COVID-19 to vulnerable patients/residents in health and aged care settings.
Vaccination of health care workers also helps protect nurses, midwives, students and care-workers from contracting COVID-19 at work. Crucially, people who are fully vaccinated have a much lower risk of becoming infected and if they do contract COVID-19, they have a much lower risk of infecting others, serious illness, hospitalisation and death.
The ANMF (SA Branch) is aware that due to the emergence of COVID-19 and subsequent prioritised development of COVID-19 vaccines, some members may have personal and health concerns about the vaccines. The ANMFSA has confidence in the Therapeutic Goods Administration (TGA) and the Australian Technical Advisory Group on Immunisation (ATAGI) and we rely on their guidance about the safety of COVID-19 vaccines. The ANMFSA also encourages members to access the COVID-19 Vaccination resources on our website here
If you have any questions or concerns please contact the ANMF (SA Branch) Member Assist team via our Member Assist Form
A. The ANMF (SA Branch) is aware that some members may decide for their own reasons that they will not receive a COVID-19 vaccination and as a result may seek the assistance of the ANMF (SA Branch) to challenge the Direction.
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.
A. To date, the ANMF (SA Branch) is not aware of any legal avenue that would question the lawfulness of the Direction.
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.