Australian Prime Minister Scott Morrison—with support from heads of state and territory chief ministers—is set to make COVID-19 vaccination mandatory for aged care workers.
This is despite opposition from Mark Olson, the West Australian President of the Australian Nursing Federation (ANF).
After surveying 4,000 ANF members in aged care, he wrote to the prime minister last week that two thirds of the respondents Recognize that vaccination should be voluntary. Another 31 percent said they would be left in the industry if forced to shut down.
This raises the more general question, which is whether employers can force employees to take the vaccine.
In April, nine newspapers reported how the Fair Work Commission (FWC) of Australia retained the right An employer—in this case major childcare provider Goodstart Early Learning—for sacking a staff member who refused to get a flu shot.
The headline of the story suggested that the decision would have major implications, and that businesses may have a right to demand employees receive jobs.
However, I think it can be a somewhat tedious to use legal phrase.
One of the first rules of legal reasoning is that each case must be decided on its own merits. Put another way, each case turns up its own facts.
The different risks posed by COVID-19 compared to the seasonal flu are factors that lawyers and judges will take into account.
COVID-19 in its current incarnation poses little threat to the majority of the population, especially children. Meanwhile, the seasonal flu has become a major threat.
FWC Vice President Nicholas Lake noted in the childcare case that the body’s decision took into account “influenza vaccination in a childcare environment where risks and concerns were different”.
While employment attorney at Barry Nilsson, Corina Dowling, said the ruling did not set a legal precedent.
“Similar refusal (to vaccinate) would need to be considered on a case-by-case basis to determine whether the employer’s instruction is ‘valid and proper’.
“Not only will the industry in question need to be considered, but the specific role of the employee in question will also need to be considered.
“Given recent concerns about side-effects a distinction may also be made between the flu jab and the COVID-19 vaccine.”
In another example, a survey of nurses in Queensland showed that health workers were reluctant to make vaccination a condition of employment.
Marg Gilbert, president of the Nurses Professional Association of Queensland, said nurses were best informed about the COVID vaccine in the community and the results were not surprising.
“It is an experimental therapy at this point. The Centers for Disease Control has not formalized its approval, as it is seen as an emergency measure to combat the pandemic,” she said Australian.
Australia’s drug regulatory body, the Therapeutic Goods Administration, aligns with this approach, stating on its website that “more clinical data is needed to confirm the safety of the vaccine.”
Maureen Kaine, workplace consultant at Maureen Kaine & Associates, said issue dependent On whether mandatory vaccines were appropriate “in the context of your business”, saying:
“There is a clear difference between asking an aged care or quarantine worker to get vaccinated, compared to someone who works by themselves or remotely.”
“Employers who play the vaccination card for employment and promotions, pay increases or even determine which employee they choose to bring back into the office find themselves in costly legal disputes. Can get confused,” she said.
“COVID-19 vaccination is a complex issue and we need to be sensitive to individuals who may not be vaccinated, for whatever reason, be it anti-vaccine beliefs, political views, or religious and medical grounds. Or not. “
Finally, there should also be consideration of the common law principle known as the “eggshell skull” rule.
The rule provides that even if a person is more likely to be injured or is vulnerable, it is no defense of the gravity of the injury caused to him.
So if your boss forces you to get vaccinated, and you have a severe reaction or you die, the rule means the employer can’t say, “I didn’t know that would happen.”
So in that case, recent government orders and FWC decisions would be governed by implied common law principles, which, in turn, would limit the mandatory of vaccinations.
Rocco Loyacono is a senior lecturer and translator from Italian to English at Curtin University Law School in Perth, Australia. His work on translation, linguistics and law has been widely published in peer-reviewed journals.
The views expressed in this article are those of the author and do not necessarily reflect the views of The Epoch Times.