Barber v Goodstart – can employers now mandate vaccinations in the workplace?

In a much publicised decision of the Fair Work Commission (FWC) FWC, Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156, the termination of a childcare worker who refused to take a flu shot has been upheld. However, while the decision provides some guidance on the issue of vaccinations in the workplace, the FWC cautioned against its application to vaccinations more broadly in the workplace.

Background facts

Goodstart operates in the childcare industry. In April 2020, Goodstart implemented a policy that mandated all of its employees to be vaccinated against the influenza virus, unless an employee had a medical condition which made it unsafe for them to do so.

Goodstart determined that from a work health and safety perspective, its business was a high-risk workplace, particularly in light of close contact between its employees and children, the propensity for children to have poor hygiene standards, as well as the fact that not all children could be or were vaccinated against infectious diseases (for various reasons). The decision to mandate flu vaccinations for its employees was therefore made upon health advice from relevant government bodies, as well as upon consultation with the appropriate unions.

Ms Barber was an employee of Goodstart with an exemplary record over 14 years. She objected to having the flu vaccine on medical grounds. She presented evidence that she had a ‘sensitive immune system’ and a history of chronic autoimmune disease and coeliac disease and that she had an allergic reaction to the flu vaccination approximately 11 years ago.

Goodstart’s policy was that employees would not be required to have the flu vaccination if they were able to demonstrate by way of medical evidence that the vaccination was unsafe for them. However, Goodstart considered that Ms Barber had no sufficient evidence to prove that it would be unsafe for her to receive the flu vaccination.

After a lengthy four month consultation process with Ms Barber, Goodstart terminated Ms Barber’s employment, on the basis that she was unable to perform the inherent requirements of her role (although this was not the valid reason the FWC found when it determined the matter – discussed further below), rather than for acting in breach of the policy itself. Ms Barber commenced an unfair dismissal claim contesting the fairness of Goodstart’s decision to terminate her employment.

The mandatory vaccination requirement – was it lawful and reasonable?

In determining whether the mandatory vaccination requirement was lawful and reasonable, the FWC first considered whether the implementation of the vaccination policy was reasonable. Whether a direction is reasonable is a question of fact.

Ultimately the FWC found that the vaccination policy was reasonable, in light of the following:

• Goodstart had numerous legal responsibilities under work health and safety legislation, including to ensure, so far as reasonably practicable, the health and safety of all children in its care, Ms Barber, and all other employees of Goodstart;
• government bodies at both State and Federal level had made various health recommendations in relation to the flu vaccination, including for employers to strongly encourage the vaccination to all educators and other staff;
• vaccinations would reduce the risk of flu being transmitted between Goodstart employees and children;
• a mandatory flu vaccination policy was the most effective control measure, particularly in light of the industry that Goodstart operated in. It would be ineffective and impractical to implement other measures such as social / physical distancing, or the requirement for employees to wear PPE;
• Goodstart appropriately consulted all unions who had industrial coverage over their workforce, and those unions all supported Goodstart’s decision to implement the policy;
• the policy was adapted and implemented appropriately, insofar as it allowed employees who provided sufficient medical evidence to obtain an exemption from the vaccination. Each exemption request was considered on a case-by-case basis and determined by a panel comprised of legal, safety, human resources and operational experts; and
• Goodstart undertook extensive consultation with its employees, both in person and in writing, and funded the vaccination for its employees.

The FWC then considered whether the mandatory vaccination requirement was lawful. Taking into account the highly regulated environment in which Goodstart operates, where safety and quality care are of paramount importance, the FWC found that the policy was also lawful.

The FWC further rejected Ms Barber’s argument that the requirement to be vaccinated was unlawful as it allegedly constituted battery or assault. Ms Barber never actually received the vaccination and therefore no ‘battery’ was enforced on Ms Barber. Additionally, Ms Barber’s perception or fear that Goodstart would threaten to inflict such a vaccination against her wishes was found to be unreasonable, and therefore the tort of assault could not be established.

Ms Barber’s medical evidence

The FWC then considered whether Ms Barber had a valid medical exemption under the policy.

Ms Barber argued that she had a sensitive immune system, suffered from coeliac disease, and alleged that she had a reaction to the flu vaccination in the past. Although Ms Barber’s coeliac disease was not contested, there was no evidence to suggest that it would affect her capacity to receive the vaccination.

Despite Ms Barber’s contention that she suffered some form of reaction to a similar vaccination in the past, there was no record of such an incident. Rather, Ms Barber’s own evidence was that multiple doctors had refused to provide her with a statement supporting her contention that she should be exempt from receiving the vaccination. The FWC stated that it was a ‘logical inference’ that if there was a genuine risk, a medical professional would have provided Ms Barber with evidence outlining such risk.

Given the significant lack of evidence to support any exemption despite Goodstart providing Ms Barber with adequate opportunity to do so, the FWC supported Goodstart’s position that Ms Barber did not have a valid medical exemption to Goodstart’s vaccination policy. The FWC noted that Ms Barber knowingly objected to vaccination and in doing so was fully aware of the potential consequences of her actions.

Was the flu vaccination an inherent requirement of Ms Barber’s role?

Ms Barber’s employment was terminated by Goodstart for her inability to perform the inherent requirements of her role, rather than for breaching its vaccination policy. That is, Goodstart purported that the flu vaccination was an inherent requirement of her role as a Group Leader / Educator. However, the FWC was not satisfied that this was the case – the evidence put forward by Goodstart did not demonstrate that the flu vaccination was intrinsically part of Ms Barber’s role or that receiving such a vaccination was a permanent or inseparable quality or attribute required in her role, noting that she had already performed the role for 14 years.

Ms Barber had been performing her role for many years without obtaining the flu vaccination. The FWC found that it was difficult to now ‘artificially impose’ such an inherent requirement by way of the vaccination policy.

Can employers now introduce their own vaccination policy?

Whilst the FWC decision in Goodstart addresses a highly contentious issue, the FWC made it abundantly clear that this case should not be considered to be a precedent, either in relation to COVID-19 vaccinations specifically or other vaccinations more generally.

Further, the FWC noted that its decision should not be taken to extend to the entirety of Goodstart’s business, on the basis that the role of each employee in the business may differ and the application of the mandatory vaccination policy will apply differently to each employee and their specific circumstances.

What is the position in relation to COVID-19 vaccinations?

As the supply and availability of COVID-19 vaccines in Australia increases, and the Federal government makes vaccinations available to more Australians (and to more Australians who are working), the issue of whether an employer can require that its employees receive a COVID-19 vaccination comes into stark relief.

The Federal government has made clear, including through recent information released by numerous government bodies such as the Fair Work Ombudsman and Safe Work Australia, that the majority employers should not assume they can require their employees to be vaccinated (in the context of the COVID-19 vaccine).

However, there are limited circumstances where an employer may be able to require its employees to be vaccinated, but those circumstances will be highly fact dependent and would need to take into account numerous factors, including but not limited to:

• whether there are any specific government directions and/or health law requirements to do so – e.g. the flu vaccination may be mandated in certain industries such as for employees who work in childcare, aged care or disability services;
• whether there is an applicable enterprise agreement or contract of employment that contains provisions around the requirement of vaccinations (which may assist but will not itself be determinative); and
• whether any direction to be vaccinated is lawful and reasonable – this would require a detailed analysis of the business, the employee’s role and any other relevant circumstances like the Goodstart case.

Failing any strict legal requirement, the COVID-19 pandemic does not in of itself automatically make it reasonable for an employer to direct its employees to become vaccinated. However, this may not be the case where an employee is required to interact with other people who may be at an elevated risk of infection or to have close contact with other people who may be vulnerable to the health impacts of COVID-19, when it will be easier (although not easy) for an employer to establish that the requirement to become vaccinated is reasonable.

The Goodstart decision does not change the position for most employers who may be considering giving a direction to their employees requiring them to be vaccinated against COVID-19. For most employers, requiring employees to become vaccinated will not constitute a lawful and reasonable direction and any decision to terminate an employee’s employment for refusing to become vaccinated will create significant risk.

For those employers engaged in industries such as those involving childcare, aged care or disability services, then requiring non-COVID-19 vaccinations by employees is supported by this decision, other than when an employee can establish that receiving a vaccination would be contrary to medical advice or would create an unacceptable health risk for them. This distinction is, in part, justified on the basis that flu vaccinations (and other common vaccinations) have been administered for a number of years with recognised and limited side effects. The FWC stressed that the decision in Goodstart should not be stretched to cover COVID-19 vaccinations.

Without any clear guidance on whether vaccinations can be mandated in a workplace, employers will need to carefully assess on a case-by-case basis whether they will be able to implement a mandatory vaccination policy. Employees may raise different objections to such policy on the basis of medical, religious and/or political grounds, and employers will need to consider each individual employee’s circumstances carefully.

If your business requires assistance in navigating this difficult area, please contact our Employment Advisory team.

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Authored by:

Brett Feltham, Partner
Sera Park, Associate