The Australian Industry Group welcomed the commission’s decision saying it would influence decisions relating to mandatory COVID-19 vaccinations. Chief executive Innes Willox said this was the commission’s first full bench decision on the issue of vaccination mandates to be handed down during the pandemic.
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“It is pleasing that the full bench has supported an employer’s right to mandate vaccinations where reasonable in the circumstances,” he said.
Herbert Smith Freehills employment lawyer Alexis Agostino said the decision “should give some comfort to employers considering mandating vaccination policies within their workforce where those policies are lawful and reasonable”.
Maurice Blackburn Lawyers principal Mia Pantechis said the decision dealt with a dismissal in a specific context, “and although it provides guidance on the type of evidence required to prove a medical contraindication and to gain an exemption from a public health order mandating the vaccination of certain workers, it is not a blanket ruling that it’s lawful to sack employees who refuse vaccines”.
“In most workplaces, including those that are not the subject of a public health order, the question of whether it’s lawful to mandate that employees receive the COVID-19 vaccine or to sack employees who refuse requires careful consideration and a balancing of a range of factors.″
Ms Pantechis said these factors include work health and safety obligations, rights under anti-discrimination laws, the level of risk within the workplace, and whether flexible work arrangements can be offered.
Shae McCrystal, a professor of employment law at the University of Sydney said the decision was unlikely to provide an authority to employers mandating COVID-19 vaccines outside of public health orders.
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