Fair Work Commission – Appeal of decisions Jennifer Kimber v Sapphire Coast Community Aged Care Ltd. 28/09/2021.
Submitted by RT
A Fair Work Commission Deputy President has warned against a “medical apartheid” stemming from Employers and Governments mandating coronavirus vaccines.
Aged care receptionist Jennifer Kimber was sacked from a NSW south coast nursing home in July last year after refusing to have a flu jab. The Fair Work Commission refused her permission to appeal on Monday after ruling against her unfair dismissal claim in May. Fair Work Deputy President Lyndall Dean said the decision was a serious injustice to Ms Kimber which denied her protections under workplace law. “Never have I more strenuously disagreed with an outcome in an unfair dismissal application,” Ms Dean said. Vice president Adam Hatcher and Commissioner Bernie Riordan said they would not give any encouragement to a spurious objection to a lawful workplace vaccination requirement. In a majority decision, they said Ms Kimber held broader anti-vaccination views and had told the Commission her research about the Flu Jab was based on a Google search of “all sorts of stuff.” Ms Dean said it was highly inappropriate to label the sacked worker an anti-vaxxer. She declared mandatory immunisation could not be justified in “almost every workplace in Australia.” – “All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia,” she said. “It is an abhorrent concept and is morally and ethically wrong, and the antithesis of our Democratic way of life and everything we value.”
[98] In summary, it was not reasonably open on the facts for the Commissioner to find that Ms Kimber was unable to perform the inherent requirements of her role, because she was able to enter her workplace as a result of her valid exemption from the June PHO. In doing so, the Commissioner made a significant error of fact by finding that Sapphire “acted in an objectively prudent and reasonable way in not permitting the applicant to work within Imlay House absent an up-to-date flu shot, in reliance on the Media Release.” 19
[99] The Majority Decision also raises the question of Ms Kimber’s willingness or otherwise to have the COVID vaccine, and this is relied on as a reason for refusing to grant permission to appeal. During the appeal hearing, the Vice President asked Ms Kimber whether she would comply with a requirement to have the COVID vaccine. Ms Kimber’s response was that she would consider the terms of any PHO that might be made (given at the time no such PHO had been made) and obtain the advice of her medical practitioner. It is hard to see what criticism could reasonably be levelled at Ms Kimber for this response, but the Majority Decision states that this response “supports the inference that she holds a general anti-vaccination position.”
[100] Finally, the last paragraph of the Majority Decision cannot pass without comment. To suggest that Ms Kimber had a “spurious objection to a lawful workplace vaccination requirement” in circumstances where she had been advised by her medical practitioner that she did indeed have a medical contraindication to the flu shot, advised she should not have a flu shot, and had provided a properly completed IVMC form, is a terrible mischaracterisation of her and the circumstances in this case.
PART 2 –VACCINE REQUIREMENTS IN RELATION TO COVID
[101] The Majority Decision raises the issue of COVID vaccinations and their requirement in workplaces. It forms part of the reasoning for refusing to grant permission to appeal and accordingly provides the opportunity in this decision to deal with this important issue.
[102] There can be absolutely no doubt that vaccines are a highly effective tool for protection against a variety of diseases. The focus of this decision, however, is not the pros and cons of vaccination. It is about the extent to which mandatory COVID vaccinations can be justified, as to do so impinges on other Laws, Liberties and Rights that exist in Australia.
Vaccinations should be voluntary
[103] It has been widely accepted that for the overwhelming majority of Australians, vaccination should be voluntary.
[104] The commonly accepted definition of voluntary includes acting of one’s own free will, optional or non-compulsory. This is the opposite of the definition of mandatory, which is something that is compulsory, obligatory or required. Something that is mandatory must be done.
[105] The stated position of the Australian Government is that the vaccine is voluntary. On 21 July 2021, the Prime Minister in a media conference stated that “people make their own decisions about their own health and their own bodies. That’s why we don’t have mandatory vaccination in relation to the general population.”
[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.” (emphasis added)
[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.” (emphasis added)
[108] Safe Work Australia has publicly stated that “most employers will not need to make vaccinations mandatory to meet their [health and safety] obligations.” (emphasis added)
[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.
Mandatory vaccination cannot be justified
[110] COVID vaccinations, in accordance with the Australian Government’s policy, must be freely available and voluntary for all Australians.
[111] Mandatory COVID vaccinations, however, cannot be justified in almost every workplace in Australia. While there are numerous reasons for this, this decision will focus on:
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a) the requirement for freely given and informed consent for medical procedures;
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b) denying an unvaccinated person the ability work on health and safety grounds, whether at the initiation of an employer or as part of a PHO (Public Health Order); and
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c) the requirements to comply with disability discrimination laws.
[112] There is of course a degree of overlap with the reasoning applicable to the inability to justify mandatory vaccination whether at the initiative of employers or as part of a PHO, however I have not repeated the reasons under each separate heading.
[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:
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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.
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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.
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The World Health Organisation has stated that most people diagnosed with COVID will recover without the need for any medical treatment.
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The vaccines are only provisionally approved for use in Australia and are accordingly still part of a clinical trial 20.
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There are side effects to the COVID vaccines that are now known. That side effects exist is not a conspiracy theory.
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The long-term effects of the COVID vaccines are unknown, and this is recognised by the Therapeutic Goods Administration (TGA) in Australia.
Consent is required for participation in clinical trials
[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 HumanRights 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. (emphasis added)
[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 Trials 24 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.
Can COVID vaccinations be mandated by employers on health and safety grounds?
[130] The short answer to this question, in almost every case, is no.
[131] The fundamental starting point here is the answer to the question – what is the risk? All risk controls are (or should be) designed to address an identified risk. The risk needs to be a real risk and not a perceived risk. The real risk for employers is that a person who has COVID will spread COVID to others within the workplace.
[132] The risk of spreading COVID only arises with a person who has COVID. This should be apparent and obvious. There is no risk associated with a person who is unvaccinated and does not have COVID, notwithstanding the misleading statements by politicians that the unvaccinated are a significant threat to the vaccinated, supposedly justifying “locking out the unvaccinated from society” and denying them the ability to work.
[133] The primary duty of care for employers under Health and Safety Law requires the employer to ensure health and safety so far as is reasonably practicable by eliminating risks to health and safety, and if this is not reasonably practicable, risks must be minimised so far as is reasonably practicable.
[134] There is nothing controversial in stating that vaccines do not eliminate the risk of COVID, given that those who are vaccinated can catch and transmit COVID. By way of one example, a report issued by the Centres for Disease Control and Prevention (CDC) in the United States on 6 August 2021 -25- looked at an outbreak of COVID in Massachusetts during July 2021. Of the 469 COVID cases identified, 74% were fully vaccinated. Of this group, 79% were symptomatic. In total, 5 people required hospitalisation and of these, 4 were fully vaccinated. This is not an anomaly – the data from many countries and other parts of the United States provides a similar picture, although obtaining similar data from the United States will now be problematic given the decision by the CDC on 1 May 2021 to cease monitoring and recording breakthrough case information unless the person is hospitalised or dies. What is clear, however, is that the vaccine is not an effective control measure to deal with transmission of COVID by itself.
[135] In order for an employer to meet its duties under health and safety laws, it will need to minimise the risk of exposure to COVID in the workplace, which will require employers to apply all reasonably practicable COVID control measures.
[136] As noted earlier, Safe Work Australia, in relation to whether employers need to include mandatory vaccination as a control measure to comply with WHS duties, has advised that “it is unlikely that a requirement for workers to be vaccinated will be ‘reasonably practicable’”.
[137] The Safe Work Australia website also includes the following advice to employers: “Employers have a duty under the model Work Health and Safety (WHS) laws to eliminate, or if that is not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace.……… However, while this is a decision you will need to make taking into account your workplace, most employers will not need to make vaccination mandatory to comply with the model WHS laws. A safe and effective vaccine is only one part of keeping the Australian community safe and healthy. To meet your duties under the model WHS laws and minimise the risk of exposure to COVID-19 in your workplace, you must continue to apply all reasonably practicable COVID-19 control measures including physical distancing, good hygiene and regular cleaning and maintenance and ensuring your workers do not attend work if they are unwell.” 26
[138] It is very clear that a range of control measures will need to be implemented by employers to meet their health and safety obligations. In addition to the measures noted above, controls (based on a proper assessment of the risk in a particular workplace) might include appropriate air ventilation and filters, personal protective equipment including masks, staggered meal breaks, increased use of outdoor areas etc. The simple act of requiring people to stay at home if unwell and symptomatic will no doubt have a significant impact on the spread of all coronaviruses (whether a cold, flu or COVID).
[139] Critically, there is another alternative to vaccines to assist employers in meeting their WHS obligations, that being testing. Given there is no doubt that those who are fully vaccinated can catch and transmit the virus, testing (whether rapid antigen or otherwise) will provide employers with a level of comfort that a worker does not have COVID and therefore will not transmit COVID to others (that being the risk that is to be managed) in the workplace.
[140] Testing is now widely used around the World as a risk control for the spread of COVID. There is absolutely no reason why it cannot be widely used in Australia.
[141] Testing is arguably a better control measure compared to vaccines in meeting health and safety obligations.
[142] Vaccines have not been broadly mandated on health and safety grounds in most countries. For example, despite what has been reported in Australia, most of the European Union (EU) and the Scandinavian countries have not actually mandated vaccinations for travel purposes. EU citizens can travel freely now if any one of three options are satisfied, that being a vaccine, a negative COVID test, or evidence of having recently recovered from COVID (in recognition of the natural immunity that comes with having recovered from having COVID). The EU have provided these options so that people who are not vaccinated will not be discriminated against when travelling across the EU. In other words, all those who are not vaccinated can get tested for COVID and travel freely 27.
[143] In a scientific brief prepared by the World Health Organisation (WHO) dated 10 May 2021 on COVID natural immunity, the WHO found that “within four weeks following infection, 90-99% of individuals infected with [COVID] virus develop detectable neutralising antibodies….”. Further, “available scientific data suggests that in most people immune responses remain robust and protective against reinfection for at least 6-8 months after infection (the longest follow up with strong scientific evidence is currently approximately 8 months)”.
[144] The science is clear that those who have recovered from COVID have at least the same level of protection from COVID as a person who has been vaccinated. There can be absolutely no legitimate basis, then, for mandating vaccination for this group of people.
[145] In short, there is no justifiable basis for Employers to mandate COVID vaccinations to meet their health and safety obligations when other options are available to appropriately manage the risk.
[146] Finally, it should be clearly understood that Employers who mandate vaccinations will be liable for any adverse reactions their workers may experience, given this is a foreseeable outcome for some people.
Use of Public Health Orders to mandate vaccinations
[147] I will focus on the law as it applies in NSW given that is the Jurisdiction applicable to Ms Kimber.
[148] The Public Health Act 2010 (NSW) (PH Act) provides broad powers with respect to protecting the health and safety of the public.
[149] Section 7 of the PH Act, used to make PHO’s in NSW, is in the following terms:
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This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health.
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In those circumstances, the Minister—
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may take such action, and
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may by order give such directions, as the Minister considers necessary to deal with the risk and its possible consequences.
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Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary—
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to reduce or remove any risk to public health in the area, and
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to segregate or isolate inhabitants of the area, and
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to prevent, or conditionally permit, access to the area.
[150] PHOs have been made in NSW mandating COVID vaccinations for anyone who lives in a Local Government area of concern and wishes to work, and those who are airport workers, aged care workers or health care workers among others.
[151] In making blanket rules in PHOs which deny people their fundamental right to work or operate to “lock them out of society”, and which denies them freedoms which are a fundamental and essential part of any democracy, concepts of reasonableness, necessity and proportionality arise. In other words, decisions taken to restrict or remove basic liberties must be proportionate and necessary to manage the risk and must be the minimum necessary to achieve the public health aims.
[152] The Australian Health Protection Principal Committee (AHPPC) is Australia’s key decision making body for health emergencies and public health emergency management. It has issued a number of public statements on minimising the potential risk of COVID 28, the purpose of which is to provide advice on the appropriate management of COVID in certain industries or occupation groups.
[153] A statement on COVID vaccination requirements for aged care workers it issued on 4 June 2021 29 commences with the following: “AHPPC does not recommend compulsory COVID-19 vaccines for aged care workers.” (emphasis added)
[154] Notwithstanding this advice, a PHO has been made mandating COVID vaccinations for aged care workers.
[155] The AHPPC statement on minimising the potential risk of COVID transmission in schools, made on 26 July 2021, does not recommend compulsory COVID vaccines for school staff either.
[156] Notwithstanding there is no advice from the AHPPC to mandate vaccinations for school staff, the NSW Government has also made a PHO requiring that all workers in NSW schools be vaccinated, which extends to volunteers. Those without a COVID vaccine will not be able perform any work at a School after 8 November 2021 (unless a medical exemption applies). On the face of it, this will prevent a parent from attending their child’s school to assist with reading, or prevent a volunteer from occasionally helping out with maintenance or gardening at a school. What risk does a person pose that needs to be controlled by vaccination who mows the lawns of a school on a weekend? Of course, there is no risk that requires a vaccination.
[157] The vaccine mandate for NSW schools is strongly opposed by many, with over 65,000 people recently signing a petition organised by teachers and school staff to record their opposition for such a mandate.