The power to make lawful and reasonable directions in a COVID normal world19 March 2021
As Australia moves towards its
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
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
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
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  FWC 949, Commissioner Yilmaz determined that an aged care facility in Melbourne gave a lawful and reasonable direction (in the context of
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  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  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
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
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 works (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
Both federal and state/territory governments have announced that they will not seek to make
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-19vaccination rates in the workplace and that the states and territories will decide what industries should have their workers immunised as part of their employment.
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  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
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-19or 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-19may 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-19in 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
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.
Please contact our Workplace team if you wish to discuss further or have any questions.
Australian Financial Review, ‘Employers, unions want consistent vaccine rules in workplaces’ (1 February 2021) subscription required; Workplace Express, ‘ States to drive workplace
Ultimately Commissioner Cambridge determined the dismissal was unfair by virtue of procedural defects he identified in the dismissal process