FWC rejects health workers' application for interim relief against mandatory vaccination

The Fair Work Commission (FWC) recently rejected the interim relief application of 38 Victorian public health workers over disciplinary proceedings against them. The proceedings arose out of non-compliance with the state’s mandatory vaccination orders.

Different healthcare operators across Victoria employ the workers. The state has ordered the said operators to have their employees be fully vaccinated within a targeted timeline. Those who did not comply faced disciplinary action.

In March 2020, the Victorian Minister for Health declared that Victoria had entered “a state of emergency” in response to the COVID-19 pandemic. During this time, the Chief Health Officer may authorise emergency powers, including issuing public health directions. 

In September 2021, the Acting Chief Health Officer issued directions relating to public health workers’ mandatory vaccination (CHO directions).

The workers challenged the CHO directions based on their respective enterprise agreements (EA). The workers emphasized a clause on their EA that states that “employers will consult with nurses, midwives and their representatives around matters relating to health and safety in the workplace.”

In their application, the workers said that their employers failed to consult them as to the CHO directions. Thus, they said the disciplinary action “cannot be invoked.”

The workers sought interim relief, mainly directing a “collective consultation process” with the employers regarding the CHO directions. They submitted that if the interim relief they seek is not granted, “their employment will be terminated or that they are at least at grave risk of dismissal.”

The FWC rejected the application and said it was not “persuaded” by the worker’s arguments.

In its decision, the FWC explained that the various healthcare operators are “required by the CHO Directions to take all reasonable steps to ensure” that any unvaccinated worker does not “enter or remain on their premises” for work.

The FWC said that the application “would effectively require” the operators to “continue to employ unvaccinated persons whom they are required by law to prevent performing work on their premises.” The FWC said that this would “produce a potential financial detriment” that would be “irrecoverable” for the employers.

In addressing the submission of the workers that they might be at risk of dismissal and financial impacts, the FWC said that it could not assess these factors because neither of the parties “has put any material” before it.

The decision was handed down on 13 November 2021.