There are various issues that the pandemic has raised, other than the obvious risk of contracting the virus, including the economic cost of hard border closures and lockdowns, human rights issues around mandatory vaccinations and if employers can demand their workers get the jab, as well as the general uncertainty caused by the pandemic and impact it has had on families, businesses, the elderly, and the wider community, discusses Attwood Marshall Lawyers Legal Practice Director Jeff Garrett on Radio 4CRB.
Mandatory Vaccinations – is it fair?
The no jab, no work issue has everyone asking if their employer can in fact demand they get a COVID-19 vaccination or risk losing their job.
The short answer is that an employer cannot insist or enforce a mandatory vaccination requirement. Fair Work Australia have released their guidelines on workplace rights and obligations that encourage employers and employees to work together to find solutions that suit their individual needs and workplaces when it comes to COVID-19 and getting vaccinated.
Fair Work state that an employer can only require an employee to be vaccinated where:
- A state or territory public health order is in place which requires an employee of a specific industry or workplace to be vaccinated;
- If the requirement to get vaccinated is permitted by an enterprise agreement, other registered agreement, or employment contract;
- It is lawful and reasonable to give employees a direction to be vaccinated, determined on a case-by-case basis. For a direction to be lawful, it needs to comply with any contract or agreement in place as well as any Commonwealth, State, or Territory laws.
The Federal Government have not made vaccination mandatory. This can be deemed a political decision with the Liberal Party and National Party both having their own internal factions around vaccination verses no vaccination. Leaving the politics aside, the state governments have brought in health orders for certain occupations such as residential aged care workers, first responders, health workers in COVID wards, and hotel quarantine workers, to name a few, where vaccinations are mandatory when working in these sectors.
There are some larger organisations that have recently announced that they are going to mandate vaccinations for their workers. There are a number of ways they can go about doing that under law. Some companies may elect to mandate vaccinations broadly across their workforce. It is going to be interesting to see what happens if these policies are challenged because unless the company can provide a valid reason as to why they want their workers vaccinated, workers will have rights to refuse.
There are also questions around if businesses can require their customers, or visitors, to be vaccinated. Once again, in short, businesses cannot make it mandatory for their customers to be vaccinated or insist on asking for personal details due to privacy laws. It differs from state to state, but again it will be interesting to see how this plays out. Business owners have a right to refuse service on legitimate grounds to any customer. However, the issue of whether this amounts to discrimination is a grey area. What if someone cannot be vaccinated due to genuine medical reasons or if they have a disability? What if they refuse to be vaccinated for religious beliefs? It could potentially be a legal mine field.
Europe has introduced such policies where café visitors are restricted to where they can enjoy a coffee by requiring customers to provide a proof of vaccination in order to dine at a venue. The reality is in Australia, unless there is a Federal or State government law enforcing these types of policies, a business does not have the absolute right to legally refuse service on the basis that you have not been vaccinated. Once again, it is a balancing act between the right of the business owner to determine who enters their premises and the legal rights of the customers.
Safe Work Australia have stated that if businesses want their customers and visitors to be vaccinated as a condition of entry to their premises that they should seek legal advice before taking any action as there may be privacy and discrimination issues that apply.
Hard border closures – do businesses that have suffered significant financial loss have the right to pursue a class action?
There are currently two COVID-19 lockdown class actions on foot in Victoria, brought on behalf of businesses impacted by the government’s mishandling of the hotel quarantine program.
The situation with the QLD-NSW border is a little different to that of Victoria in that the positive COVID cases are climbing in New South Wales, and as a result of the spread throughout NSW, the Queensland Premier has locked the border to restrict movement between the states and changed the definition of an essential worker to reduce the number of people allowed to enter Queensland.
Workers from all industries were affected by the tightening of the definition of “essential worker”. Although the border ‘bubble’ has recently been introduced again on similar conditions to previous restrictions, there are still many people unable to cross the border.
Historically, we have seen that an economic downturn can increase the prospect of class actions as businesses and individuals try to recover their losses.
We have received plenty of enquiry related to class actions from businesses situated around the QLD-NSW border.
The question is “who do you sue?”
At first glance you could say the Queensland Government should be held responsible for the financial losses felt by businesses as they were the responsible party who put in place the definition of an essential worker and determined who could come across the border. But the QLD Government had to put these measures in place because of the outbreak in New South Wales. Is the Queensland Government right in what they have done in relation to the border tightening? You may find that everyone who lives in the border bubble region will say they believe the border should be opened up or the definition of essential worker should be broader.
You will likely find anyone north of the most southern point of the Gold Coast are content with the decision to enforce a hard border closure because Queensland have been in a lucky position to have no lockdowns currently in place and living a relatively normal life. The overwhelming majority are happy to keep the borders closed when outbreaks are not being contained in other states.
Getting back to the issue of who do you sue and how to do you craft an action based on the border closures, at the moment it would be a very difficult case.
Time will tell when we fast-forward, and vaccination rates have increased. That may give someone, whether that be state or federal government, grounds to contest border closures. This has been alluded to by the current federal Attorney General, Michaelia Cash. These issues played out when Clive Palmer took High Court proceedings against Western Australia. The High Court supported the WA decision to close its borders.
What issues can arise if international borders open before state borders?
The National Plan sets out that international borders may open before state borders do. All states and territories had agreed to The National Plan when it was made.
The National Plan to transition Australia’s National COVID-19 Response stipulates:
- Phase A (Current Phase): Continue to strongly suppress the virus for the purpose of minimizing community transmission
- Phase B: Seek to minimize serious illness, hospitalisations and fatality as a result of COVID-19 with low level restrictions. This includes international border caps and low-level international arrivals with safe and proportionate quarantine to minimize risk.
- Phase C: Seek to minimize serious illness, hospitalisations and fatality as a result of COVID-19 with baseline restrictions. Exempt vaccinated residents from all domestic restrictions and abolish caps on returning vaccinated Australians. Allow increased capped entry of student, economic, and humanitarian visa holders and lift all restrictions on outbound travel for vaccinated Australians.
- Phase D: Manage COVID-19 consistent with public health management of other infectious diseases. Open international borders.
Premier Annastacia Palaszczuk hasn’t ruled out fighting the Morrison government in the High Court to defend Queensland’s right to close its borders come the time Australia begins to open up once more to the rest of the world.
Scott Morrison wants the borders open to allow everyone to return to their normal way of life, and boost the economy, however State Premiers — specifically from Queensland and Western Australia — have stood firm on their stance around border closures.
What else has been in the focus during these uncertain times?
Employment has seen some of the most significant changes with how people work, and how businesses operate. Many employers have had to reevaluate their policies, procedures, and how they operate, to try their best to continue business as normal during the pandemic. This has given rise to employment disputes.
There has also been a big shift in where people are choosing to live with many people exiting cities and making the move to coastal and regional towns, particularly with many NSW and VIC residents making the move to Queensland to escape ongoing lockdown directives. This shift was triggered with more and more people working remotely.
Prior to the Queensland COVID shutdown, the property market was looking pretty wobbly, however, since the pandemic began, the property market continues to defy the odds, and month on month we see record breaking demand and high property prices.
Buying sight unseen is more common now with interstate buyers eager to snap up property in the sunshine state. Those looking to cash in and benefit from the current market are selling their homes for an inflated price with ease and taking the opportunity to downsize or relocate.
Attwood Marshall Lawyers are here to help
Life can change quickly and unpredictably. If you are unsure about your legal rights during the pandemic, we are always happy to help provide guidance and advice, and help you understand what options may be available to resolve your legal matter.
We can offer phone, Skype, Zoom, TEAMS, or FaceTime appointments to clients as an initial form of communication if you are restricted and cannot visit one of our conveniently located offices.
For support and legal advice, please don’t hesitate to reach out and phone our 24/7 phone line on 1800 621 071 at any time or email info@attwoodmarshall.com.au
You are welcome to contact our Department Managers directly for a specific legal matter:
Wills & Estates and Family Law matters: Contact Donna Tolley on direct line 07 5506 8241, mobile 0423 772 555 or email dtolley@attwoodmarshall.com.au
Compensation Law (including Employment Law, Superannuation and TPD Claims, Motor Vehicle Accident Claims, Workers’ Compensation Claims and Abuse Claims): Contact Kelli Costin on direct line 07 5506 8220, mobile 0432 497 383 or email kcostin@attwoodmarshall.com.au
Estate Litigation, Commercial Litigation, Criminal Law and Equine Law: Contact Amanda Heather on direct line 07 5506 8245, mobile 0425 260 837 or email aheather@attwoodmarshall.com.au
Property & Commercial Law: Contact Jess Kimpton on direct line 07 5506 8214, mobile 0432 587 300 or email jkimpton@attwoodmarshall.com.au
