Mandatory Vaccinations
In regard to a very topical issue at present, Mandatory Vaccinations, the Full Bench of the Fair Work Commission has just this week denied permission for an employee in the Aged Care sector to appeal a decision that she was not unfairly dismissed after refusing an influenza vaccination in the case of Jennifer Kimber vs Sapphire Coast Community Aged Care Ltd. This was a case specifically in relation to influenza vaccinations and not Covid-19 vaccinations. However, it is important for employers to be aware of the dissenting judgement in this case, most of which relates specifically to Covid-19 vaccinations.
In this case, Ms Kimber was employed as a receptionist at a residential aged care facility in NSW. In March 2020, such facilities became subject to a Public Health Order requiring employees to have up to date vaccinations against influenza. Following providing a letter from a health practitioner which was rejected by the employer Ms Kimber was stood down from her employment and given the option to take leave. She was also directed to attend a meeting with her supervisor and advised that ongoing refusal may result in dismissal. Ms Kimber provided a further two letters from her General Practitioner however on advice from the Chief Medical Officer as there was no alternative positions to redeploy her too the risk of unvaccinated staff in the workplace was too high. Ms Kimber was therefore dismissed on the ground that she was unable to carry out the inherent requirements of her role. An unfair dismissal claim was dismissed, and Ms Kimber then sought an appeal.
In the appeal, the Full Bench decided, in a majority decision, that permission to appeal should not be granted.
However, as mentioned, information in the dissenting judgement includes information to consider specifically in relation to covid-19 vaccinations (which governments and businesses are currently mandating and/or considering), and therefore have copied some of the information directly from the decision – see link to the decision at the bottom;
[106] On 13 August 2021, the Australian Council of Trade Unions (ACTU) and the Business Council of Australia (BCA) issued a joint statement on mandatory COVID vaccinations in which it acknowledged the Australian Government’s COVID vaccination policy that the vaccine is voluntary, and confirmed the views of the BCA and ACTU that “for the overwhelming majority of Australians, your work or workplace should not fundamentally alter the voluntary nature of vaccination”.
[107] The Fair Work Ombudsman has publicly stated that employers will need to have a “compelling reason” before requiring vaccinations, and that “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus”.
[108] Safe Work Australia has publicly stated that “most employers will not need to make vaccinations mandatory to meet their [health and safety] obligations”.
[109] Despite this, many employers are declaring they will mandate COVID vaccines for their workers, and PHOs are being made by State Governments, in circumstances where there is no justification for doing so.
[113] Before turning to a consideration of these reasons, it is important to set the context with some information that is publicly available and should be uncontroversial:
- Unlike many other vaccinations such as those used to stop the spread of tetanus, yellow fever and smallpox, COVID vaccinations are not designed to stop COVID. They are designed to reduce the symptoms of the virus, however a fully vaccinated person can contract and transmit COVID.
- The science is clear in that COVID is less serious for those who are young and otherwise healthy compared to those who are elderly and/or who have co-morbidities. In other words, the risk of COVID is far greater for those who are elderly or have co-morbidities. Around 87% of those who have died with COVID in Australia are over 80 years old and had other pre-existing illnesses listed on their death certificates.
- The World Health Organisation has stated that most people diagnosed with COVID will recover without the need for any medical treatment.
- The vaccines are only provisionally approved for use in Australia and are accordingly still part of a clinical trial 20.
- There are side effects to the COVID vaccines that are now known. That side effects exist is not a conspiracy theory.
- The long-term effects of the COVID vaccines are unknown, and this is recognised by the Therapeutic Goods Administration (TGA) in Australia.
[114] Consent is required for all participation in a clinical trial. Consent is necessary because people have a fundamental right to bodily integrity, that being autonomy and self-determination over their own body without unconsented physical intrusion. Voluntary consent for any medical treatment has been a fundamental part of the laws of Australia and internationally for decades. It is legally, ethically and morally wrong to coerce a person to participate in a clinical trial.
[115] Coercion is not consent. Coercion is the practice of persuading someone to do something using force or threats. Some have suggested that there is no coercion in threatening a person with dismissal and withdrawing their ability to participate in society if that person does not have the COVID vaccine. However, nothing could be further from the truth.
[116] All COVID vaccines in Australia are only provisionally approved, and as such remain part of a clinical trial 21. This is not part of a conspiracy theory. It is a fact easily verifiable from the website of the TGA, Australia’s regulatory authority responsible for assessing and registering/approving all COVID vaccines before they can be used in Australia.
[117] The requirement for consent in this context is not new and should never be controversial. The Nuremburg Code (the Code), formulated in 1947 in response to Nazi doctors performing medical experiments on people during WWII, is one of the most important documents in the history of the ethics of medical research.
[118] The first principle of the Code is that “The voluntary consent of the human subject is absolutely essential”. The Code goes on to say that “This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision….”
[119] Informed and freely given consent is at the heart of the Code and is rightly viewed as a protection of a person’s human rights.
[120] The United Nations, including through the Universal Declaration of Human Rights, first proclaimed in 1948, has long recognised the right to bodily integrity.
[121] The Declaration of Helsinki (the Declaration), made in 1964 by the World Medical Association, is also a statement of ethical principles for medical research involving human subjects. Under the heading of “Informed Consent”, the Declaration starts with the acknowledgement that “Participation by individuals capable of giving informed consent as subjects in medical research must be voluntary”.
[122] Australia is a party to the seven core international human rights treaties, including the International Covenant on Civil and Political Rights.
[123] The Australian Human Right Commission Act 1986 (Cth) gives effect to Australia’s obligations under the International Covenant on Civil and Political Rights, which provides in Article 7 that “…no one shall be subjected without his free consent to medical or scientific experimentation”.
[124] In 1984, the American Association for the International Commission of Jurists (AAICJ) held an international colloquium in Siracusa, Italy, which was co-sponsored by the International Commission of Jurists. The focus of the colloquium was the limitation and derogation provisions of the International Covenant on Civil and Political Rights, and the outcome is a document that is referred to as the Siracusa Principles 22.
[125] The introductory note to the Siracusa Principles commences in the following terms:
“It has long been observed by the American Association for the International Commission of Jurists (AAICJ) that one of the main instruments employed by governments to repress and deny the fundamental rights and freedoms of peoples has been the illegal and unwarranted Declaration of Martial Law or a State of Emergency. Very often these measures are taken under the pretext of the existence of a “public emergency which threatens the life of a nation” or “threats to national security”.
The abuse of applicable provisions allowing governments to limit or derogate from certain rights contained in the International Covenant on Civil and Political Rights has resulted in the need for a closer examination of the conditions and grounds for permissible limitations and derogations in order to achieve an effective implementation of the rule of law. The United Nations General Assembly has frequently emphasised the importance of a uniform interpretation of limitations on rights enunciated in the Covenant.”
[126] Paragraph 58 of the Siracusa Principles under the heading of Non-Derogable Rights provides:
No state party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant’s guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude; the right not be be imprisoned for contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation; the right to recognition as a person before the law; and freedom of thought, conscience and religion. These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation.
[127] This is consistent with Article 4 of the International Covenant on Civil and Political Rights.
[128] Australia’s National Statement on Ethical Conduct in Human Research 23 confirms that consent is a fundamental requirement for participation in any clinical trial, and that “no person should be subject to coercion or pressure in deciding whether to participate” in a clinical trial. Further, the Australian Government’s Consumer Guide to Clinical Trials24 also confirms that participation in a clinical trial is voluntary, and states “it is important that you never feel forced to take part in a trial”.
[129} Freely given consent to any medical treatment, particularly in the context of a clinical trial, is not optional. Coercion is completely incompatible with consent, and denying a person the ability to work and participate in society if the person does not have a COVID vaccine will unquestionably breach this fundamental and internationally recognised human right.
[130] Can COVID vaccinations be mandated by employers on health and safety grounds?
The short answer to this question, in almost every case, is no.
[173] In summary, the powers to make PHOs cannot lawfully be used in a way that is punitive, and human rights are not suspended during states of emergency or disaster. The current PHOs have moved well past the minimum necessary to achieve public health aims, and into the realm of depravation. It is not proportionate, reasonable or necessary to “lock out” those who are unvaccinated and remove their ability to work or otherwise contribute to society. PHOs, by their nature, are designed and intended for short term use in the event of an emergency or crisis. They are not intended to be an ongoing vehicle to enforce significant depravations of our civil liberties. The COVID pandemic started over 20 months ago. The time is fast approaching where the reliance on PHO’s will no longer be justified on public health grounds, particularly where there is such a significant intrusion on individual liberties.
[181] Blanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of the actual risk, fail the tests of proportionality, necessity and reasonableness. It is more than the absolute minimum necessary to combat the crisis and cannot be justified on health grounds. It is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged.
The decision addresses the issue; Can COVID vaccinations be mandated by employers on health and safety grounds?, The use of public health orders and Disability Discrimination. It is definitely worthwhile reading the full document – to gain a better understanding on this topic.