The power to make lawful and reasonable directions in a COVID normal world

As Australia moves towards its COVID-19 vaccine roll out, a key area of concern for employers is whether they can give employees directions related to the impact of the pandemic. Specifically, whether they can direct their employees to be vaccinated for COVID-19 and/or direct them to return to the workplace.

In a nutshell, the ability of an employer to give such lawful and reasonable directions is qualified by necessity and the circumstances of each individual employee the direction is given to. Ultimately, we do not envision that all employers will be able to lawfully and reasonably direct each of their employees to be vaccinated against COVID-19, as such a direction will not be considered necessary or reasonably practicable in all workplaces, particularly from a health and safety perspective. Recently, workplace regulators offered their view on this issue:

• The Fair Work Ombudsman announced that “in the current circumstances” the overwhelming majority of employers “should assume” that they do not have the power to require employees to be vaccinated. However, the Fair Work Ombudsman did accept that there were circumstances where an employer may be able to impose this requirement. Such circumstances include:

  • where a law (such as a state/territory health law) requires it

  • where an enterprise agreement or contract requires the employee to be vaccinated, and

  • whether it is a lawful and reasonable direction in the circumstances.

Safe Work Australia (SWA) announced that it is “unlikely” that requiring workers to be vaccinated for COVID-19 will be a reasonably practicable control measure for the purposes of workplace health and safety legislation.

The ability of an employer to give a lawful and reasonable direction to employees to return to work at the workplace will vary, with the majority of employees being able to return to work once any government restrictions are lifted and workplace directions allow it (provided all reasonably practicable control measures are implemented to minimise the risk of exposure to COVID-19 in the workplace).

What is a lawful and reasonable direction?

Employees are obligated to comply with directions from their employer which are lawful—that they relate to the subject of their employment and do not involve illegality—and are reasonable, which is determined by examining the specific circumstances. It is commonly accepted that a failure to comply with a lawful and reasonable direction may serve as valid reason for disciplinary action, including dismissal.

In Teslime Kuru v Cheltenham Manor Pty Ltd as trustee of the Cheltenham Manor Family Trust T/A Cheltenham Manor Pty Ltd [2021] FWC 949, Commissioner Yilmaz determined that an aged care facility in Melbourne gave a lawful and reasonable direction (in the context of COVID-19 and the danger it poses to aged care residents) to its employees when it directed that its workplace be divided into “zones” and employees be restricted from interacting with other employees not working in the same zone without personal protective equipment. The Commissioner ultimately considered that, even though the dismissed employee interacted with another employee in breach of this direction prior to the start of her shift, this constituted a breach of a lawful and reasonable direction and was sufficiently connected with her employment to serve as a valid reason for her dismissal.

Can employers require employees to be vaccinated?

As of yet, there is no express guidance from the courts or the Fair Work Commission (FWC) on whether requiring employees to be vaccinated is a lawful and reasonable direction. However, the FWC recently gave some consideration to workplace policies that provide for mandatory vaccination:

• Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083:
  Deputy President Asbury, in considering a childcare business’ policy requiring staff to get the influenza vaccine, observed that it was “arguable” that the policy was lawful and reasonable “in the context of [the business’] operations”, that the policy was “necessary to ensure that it meets its duty of care with respect to the children…balancing the needs of its employees” and that it was “arguable” that by not being vaccinated the employee had unreasonably refused to comply with a lawful and reasonable direction.

• Ms Maria Corazon Glover v Ozcare [2021] FWC 231:
  Commissioner Hunt considered a policy of mandatory vaccination for influenza where an employee claimed that she had a medical condition preventing her from receiving the vaccination. The Commissioner observed that determining whether such a direction is lawful and reasonable will involve a consideration of each individual’s circumstances and that she expected the following matters to be advanced by the parties regarding the substance of this argument:

  • the vulnerabilities of the employer’s clients

  • the effects on those clients of contracting influenza

  • current medical advice regarding the employee involved, and

  • the details of whether the employee was genuinely unable to receive the vaccine due to a medical condition.

While neither of these decisions provide definitive answers on whether requiring employees to be vaccinated for COVID-19 is a lawful and reasonable direction, they affirm that each case will likely turn on its own facts, having regard to factors including:

• the industry of the employer and the inherent risks in the industry

• the vulnerability of the customers/clients of the employer and their risk of exposure as balanced against the rights of the employee(s), and

• what reason the individual employee has for refusing to be vaccinated.

Similarly, under Australian work health and safety laws, “persons conducting a business or undertaking” (PCBU) are required to eliminate or, if not possible, minimise so far as is reasonably practicable the risk of exposure to COVID-19 (and other communicable diseases). As with all hazards, PCBUs must assess risks and implement and review control measures to prevent or minimise exposure to COVID-19 in the workplace, so far as is reasonably practicable. This must be done in consultation with workers.

Whether mandatory vaccination is a reasonably practicable control measure will depend on the outcome of a risk assessment that considers all relevant information at the time including vaccine availability, the type of work, medical history and other relevant characteristics of workers (such as age), information published by health experts (such as the Australian Health Protection Principal Committee) and other available risk control measures. In determining whether it is a reasonably practicable control, cost is also a consideration and whether the cost of implementation is commensurate to the risk.

Any workplace mandating vaccination should consider making appropriate exceptions for employees who for legitimate reasons, such as medical conditions, cannot receive a COVID-19 vaccine. As such a medical condition is likely to render a direction for them to be vaccinated not lawful and reasonable. Whether political, religious or other objections to being vaccinated are a valid legal basis to refuse this type of lawful and reasonable direction has not yet been considered by the courts or the FWC.

Finally, until COVID-19 vaccines are widely available to all Australians, a direction for all employees to be vaccinated is unlikely to be regarded as lawful and reasonable as employees cannot readily access a vaccine. Any direction given by an employer would need to factor in the accessibility to the vaccination, and the schedule for the vaccine’s roll-out.

Both federal and state/territory governments have announced that they will not seek to make COVID-19 vaccination compulsory. However:

• some state governments have foreshadowed rules and restrictions that would incentivise vaccination and essentially impose additional restrictions on unvaccinated individuals, and

• the Federal Minister for Industrial Relations recently commented that state/territory public health orders will be the "primary tool" to drive COVID-19 vaccination rates in the workplace and that the states and territories will decide what industries should have their workers immunised as part of their employment.[1]

Can employers direct employees to return to work?

An employee cannot refuse an employer’s direction to return to work if the direction is reasonable and in line with their employer’s legal obligations. However in some circumstances, employees may refuse to return to work because of a reasonable concern for their health and safety.

In Benjamin Yu v Hansen Yuncken Pty Ltd T/A Hansen Yuncken [2021] FWC 486, Commissioner Cambridge considered a case where an employee of Hansen Yucken, who was a Building Cadet, had taken a period of unpaid leave following concerns associated with travelling on public transport during the COVID-19 pandemic and being unable to work from home. Subsequently, Hansen Yucken directed that the employee return to the workplace or nominate a reasonable date by which he would return to the workplace, which the employee refused to do. The employee asserted his return to work was a matter that he had unilateral discretion over. Commissioner Cambridge found that Hansen Yucken’s direction for an employee to return to the workplace or stipulate a date on which he would return to the workplace was a reasonable direction (and, therefore, the employee’s refusal to comply was a valid reason for dismissal).[2]

The ability for an employer to make such directions lawfully and reasonably in a COVID normal environment will likely be based on the outcome of a thorough risk assessment and turn on factors including the following:

• The current state/territory health directions—If the health directions that are in place require all workers to work from home then it is highly unlikely that a direction by an employer for employees to return to the workplace will be regarded as lawful and reasonable. For example, the current Victorian health directions require employers to permit workers to work from home where it is not reasonably practicable for them to work from the office, but otherwise permits workers to work from the office (subject to a cap on the number of workers who can be in the workplace at any one time). However, previous iterations of the directions required employees who can work from home to work home. In the circumstances of the latter directions, if an employee has the capacity to perform their role from home, and the health directions say they should work from home, a direction to return to the workplace is unlikely to be lawful and reasonable.

• The ability to perform role from home—In a situation where an employee can perform their role from home in a manner that has no disadvantage to working from the workplace, and they have a reasonable basis to argue that they can continue to work from home (i.e. that there is a potential risk of being exposed to COVID-19 or another communicable disease) a direction to return to the workplace may not be lawful and reasonable.

• The vulnerabilities of the specific employee—Some employees may have medical or other vulnerabilities that, in their specific circumstances, render a direction to return to the workplace not lawful and reasonable. For example, an employee that has a medical condition that renders them vulnerable to COVID-19 may be able to argue that it is not lawful and reasonable to direct them to return to work until they are vaccinated.

• The control measures implemented at the workplace—All reasonably practicable control measures must be implemented in the workplace that eliminate, or if not reasonably practicable, minimise, so far as is reasonably practicable, the risk of exposure to COVID-19 in the workplace.

Ultimately, each case is going to turn on its own facts as to whether the direction is lawful and reasonable.

What should employers be on the lookout for?

This is a topical and developing legal question and, as the landscape for lawful and reasonable directions relating to COVID-19 shifts, employers should look out for:

• any new advice from the Fair Work Ombudsman and SWA on this issue

• policies emerging from the Federal government’s consultation process with employers and unions on workplace vaccination, and

• any changes to the public health orders of the states/territories.

Further information

Please contact our Workplace team if you wish to discuss further or have any questions.

[1]Australian Financial Review, ‘Employers, unions want consistent vaccine rules in workplaces’ (1 February 2021) subscription required; Workplace Express, ‘ States to drive workplace COVID-19 vaccination rates: Porter’ (2 February 2021) subscription required

[2]Ultimately Commissioner Cambridge determined the dismissal was unfair by virtue of procedural defects he identified in the dismissal process