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Vaccine Passports and pub tests

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Words: Brendan Nyst – Nyst Legal Photography: Supplied Magazine Issue: # 43 Winter Ocean Road Magazine

It’s a hot topic at water coolers around the country? Can I be prevented from working or travelling if I don’t get the vaccine?

Can I be prevented from working or travelling if I don’t get the vaccine?

In this current time of Covid-19, the issue of vaccine passports has become something of a moving feast. Late last year there was a lot of talk by state politicians and industry heavyweights (particularly in the travel sector) about the prospect of individuals being required to be vaccinated before they are allowed to access essential services, travel or attend various locations. However, for the time being at least, that talk seems to have now died down somewhat. Currently, there are very few government mandates around vaccination, and big business is generally encouraging, rather than seeking to force, its customers to get the jab.

Private businesses are of course entitled to turn away customers if they have a reasonable excuse for doing so, provided they don’t discriminate on the basis of criteria such as gender, race, religious belief and the like. For example, a restaurant owner may turn away inappropriately dressed patrons and a business owner may theoretically bar entry to individuals they perceive to be a risk to other customers or staff. It is conceivable such an embargo may be extended to people who have not been vaccinated against Covid-19. However, the difficulty with imposing that kind of blanket rule requiring vaccination is that, for many people, the decision to refuse vaccination is forced upon them by a medical condition or impairment. For example, they may be pregnant or carry a disability that prevents them from receiving the vaccine. In such instances, a blanket rule rejecting those who have not been vaccinated could potentially constitute discrimination, which would fall foul of state legislation.  It is perhaps for that reason that companies such as Qantas have promoted potential incentives to those who are vaccinated, rather than exclude those who are not, which may well be the smarter option to take.

In terms of employment, the State Government has issued a public health mandate requiring employees working in certain lines of work to be vaccinated. For those employees, vaccination is a mandatory condition of employment. Other employers may decide at their election that vaccination of their employees is now an inherent requirement of the job, having regard to the nature of the work. In those circumstances, a court or tribunal may be tasked with determining whether the employer’s direction was lawful and reasonable in all the attendant circumstances. Obviously, how that determination falls will differ from case to case, but in many circumstances, a prerequisite of Covid vaccination will be considered a reasonable and therefore lawful restraint to impose.

In the recent case of Glover v Ozcare, the Fair Work Commission considered this issue and noted by way of an example that Covid-19 vaccination could, perhaps, be reasonably required as a precondition of employment at shopping centres of men engaged to play the role of Santa Claus, given their close interaction with children.

While in some circumstances it may be ruled reasonable for employers to implement mandates on their employees, in others it won’t be; and, in any event, an employer who does so will not necessarily be permitted to dismiss an employee who is unable to comply with the direction. Two recent Fair Work Commission cases indicate that, in circumstances where an employee can produce evidence of a reasonable medical excuse for not being vaccinated, termination of their employment would likely be considered unjust and unlawful.

So, unfortunately, there continues to be much uncertainty around the issue of vaccine embargoes. The best yardstick may still be the simple ‘pub test’ of what seems fair and reasonable in all circumstances.

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