The recent decision of Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356, has provided some helpful guidance for employers considering implementing a COVID-19 Vaccination Policy.
Background
The Full Bench of the Queensland Industrial Relations Commission (QIRC) considered the lawfulness of a direction by the Queensland Police Commissioner (the Commissioner) that staff of the Queensland Police Service (QPS) be vaccinated with one of three approved COVID-19 vaccines in use in Australia, including a first dose by 4 October 2021 (the Direction).
In making the Direction, the Commissioner had considered that the QPS had to be operationally ready to fuemplyfill its policing role and that COVID-19 challenged that ability. In particular, she noted that ‘rapid transmission of COVID-19 through the Queensland Police Service would take police officers and staff members out of service while they undertake quarantine periods or recover from COVID-19. In an extreme scenario, this could reduce the availability of police officers and staff members for deployment, and threaten the ability of the Queensland Police service to serve the community’.
The application brought by several QPS staff challenging the Direction sought:
- A declaration that the Direction was inconsistent with the Police Service Administration Act 1990 (Qld) (PSA Act) and of no effect.
- A declaration that the Direction purported to unilaterally vary the terms and conditions of the applicants’ employment, was beyond power, invalid and of no effect.
- An interim injunction that the Respondents were restrained until the hearing and determination of the proceeding from taking disciplinary action against any of the applicants for any non-compliance with the Direction and from ordering or seeking to compel any of the applicants to receive any COVID-19 vaccine.
The grounds for the application were:
- The Commissioner had failed to consult with employees, as required by the relevant industrial awards;
- The Commissioner had failed to consult with employees in breach of the Work Health and Safety Act 2011 (Qld); and
- There was no power in any applicable industrial instrument, legislation or law authorising the Respondents to unilaterally vary the terms and conditions of the applicants’ employment whereby the applicants could be directed/compelled to be vaccinated against COVID-19 unless they fell within an exemption.
The applicants did not challenge the reasonableness of the Direction or the stated reason for the making of the Direction, namely to prevent COVID-19 from disabling the QPS.
The QIRC found the applicants’ submissions regarding imposing a term and condition of employment to be misconceived stating that:
A direction given to an employee does not, without more, become a term or condition of employment. …Where a direction is within the scope of employment and is not contrary to the employment contract, the award or any certified agreement, the direction must be obeyed provided compliance does not involve illegality and the direction is reasonable.
The QIRC noted that this was consistent with the provisions of the PSA Act and powers of the Commissioner regarding the operation of the QPS, which enabled the Commissioner to give lawful directions to employees. Accordingly, unless there was a reasonable excuse not to comply, it found the employees must comply.
It also noted that no provision in any award, certified agreement or legislation was identified which was inconsistent with the Direction.
The QIRC found that the applicable awards did not require the Commissioner to consult, as it did not involve a significant change in production, program, organisation, structure or technology.
The QIRC did find that there was a requirement under the relevant provisions of the Work Health and Safety Act 2011 (Qld) to consult but determined that there was a solid body of evidence that established proper consultation and no breach of WHS legislation had been established.
It determined that the application had failed on all three grounds and dismissed the application.
Key takeaways
This decision:
- Confirms that employers have an obligation to consult with employees under the Work Health and Safety Act before introducing a COVID-19 Vaccination Policy; and
- Highlights the benefits of following a clear process and working within the ambit of legislation, applicable awards and certified agreements if you decide to introduce a COVID-19 vaccination policy.
Whilst the decision suggests the introduction of COVID-19 vaccination policies are likely to be considered reasonable and lawful, it is important to remember that every case will turn on its own facts, including the nature of the industry, the likely impact of COVID-19 on the industry, the manner in which the policy is introduced (including consultation) and the requirements of any applicable industrial instruments and legislation.
If you are considering implementing a mandatory vaccination policy our Employment Law experts can assist you to navigate the process and ensure that you meet your legal obligations.
Please contact Matt Bell on 1300 068 736.
This publication has been carefully prepared, but it has been written in brief and general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
