As New South Wales residents emerge from lockdown the Supreme Court has affirmed the NSW government’s power to curtail individual freedoms through Public Health Orders. Workers in essential industries, such as health care, education and some areas of construction, will need to get the vaxx or risk being terminated.

Kassam v Hazzard; Henry v Hazzard

Background

Since the beginning of the Delta outbreak the Health Minister has made various Public Health Orders under the Public Health Act 2010 which significantly curtail the liberties of individuals. Of note has been the more arduous restrictions imposed on the unvaccinated, such as the requirement for mandatory vaccination in certain industries and limits on travel out of (and into) COVID-19 hotspot areas. A group of unvaccinated construction workers, health care workers and teachers sought to challenge the Public Health Orders on the principle of legality and basis that they interfered with a person’s right to bodily integrity, freedom of movement and amounted to discrimination.

Reasoning

Justice Robert Beech-Jones affirmed the legality of the Public Health Orders and ordered that appeal should be dismissed, addressing the following issues:

  • Principle of Legality

Unlike many of our Western counterparts, Australia does not have a bill of rights protecting individual freedoms. As such, the principle of legality only requires there to be clear intention to limit fundamental rights. Here, the Public Health Act expressly contemplates the restriction of movement and measures which reduce or remove any risk to the community’s health.

  • Bodily Integrity

Any argument that an individual’s bodily integrity is being violated is incorrect, “it is not violated as the impugned orders do not authorise the involuntary vaccination of anyone”. Correctly construed, each worker must make an informed choice between being vaccinated or losing their job.

  • Freedom of Movement

While Public Health Orders inevitably interfere with freedom of movement, “curtailing the free movement of persons including their movement to and at work are the very types of restrictions that the Public Health Act clearly authorises.”

  • Discrimination

His Honour further noted that the inevitable differentiate treatment of the vaxxed and unvaxxed is not unreasonable in the circumstances. The object of the Public Health Act is directed to public safety and differential treatment based on vaccination status is consistent with this and supported by evidence.

Discrimination in the Employment Context

The Court’s reasoning in the case is a timely reminder for businesses that they must exercise caution when treating workers differentially based on their vaccination status. The golden rule to avoid falling foul of your obligations under the Anti-Discrimination ActDisability Discrimination Act and Fair Work Act is that it is not unlawful to discriminate against someone if the discrimination is necessary to comply with another law or regulation, such as Public Health Orders, or if the discrimination is reasonably necessary to protect public health.

If you are considering implementing a ‘no jab no work’ policy you must consider whether discriminating against workers based on their vaccination status is reasonable, necessary and proportionate in your particular circumstances.

Moving Forward

While the Court’s decision is a clear nod to the position that workers covered by Public Health Orders must get vaccinated or cease to work in that industry, employers are still in the dark as to the practical application of when it would be lawful and reasonable for them to give their employees a direction to be vaccinated (when it is not required by any Public Health Order).

Until the Commonwealth government provide clear direction on the no jab, no job policy we are unlikely to see what is “lawful and reasonable” until disputes come before the courts.

If you are considering implementing a no jab, no job policy please contact M+E to further discuss your circumstances and any developments in this space.


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