On 27 September, 2021, the Fair Work Commission handed down its decision in the matter of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd(C2021/2676).
While the case concerned the ‘flu injection’, the Commission in its Decision, focused on COVID-19 mandatory vaccinations.
The following verbatim excerpts taken from the Decision and brought to the public’s attention by Tanya Davies BAppSc (Phty) MP (Liberal), possibly the only politician who is concerned enough to speak up about this matter. Certainly, incurious Australian journalists can’t be bothered.
The document can be read in full here:
The following is from the dissent, by Deputy President DEAN:
PART 2
[106] On 13 August 2021, the Australian Council of Trade Unions (ACTU) and the Business Council of Australia (BCA) issued a joint statement on mandatory COVID vaccinations in which it acknowledged the Australian Government’s COVID vaccination policy that the vaccine is voluntary, and confirmed the views of the BCA and ACTU that “for the overwhelming majority of Australians, your work or workplace should not fundamentally alter the voluntary nature of vaccination”.
[107] The Fair Work Ombudsman has publicly stated that employers will need to have a “compelling reason” before requiring vaccinations, and that “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus”.
[108] Safe Work Australia has publicly stated that “most employers will not need to make vaccinations mandatory to meet their [health and safety] obligations”.
[111] Mandatory COVID vaccinations, however, cannot be justified in almost every workplace in Australia. While there are numerous reasons for this, this decision will focus on:
- a) the requirement for freely given and informed consent for medical procedures;
- b) denying an unvaccinated person the ability work on health and safety grounds, whether at the initiation of an employer or as part of a PHO; and
- c) the requirements to comply with disability discrimination laws.
[113] Before turning to a consideration of these reasons, it is important to set the context with some information that is publicly available and should be uncontroversial:
- Unlike many other vaccinations such as those used to stop the spread of tetanus, yellow fever and smallpox, COVID vaccinations are not designed to stop COVID. They are designed to reduce the symptoms of the virus, however a fully vaccinated person can contract and transmit COVID.
- The science is clear in that COVID is less serious for those who are young and otherwise healthy compared to those who are elderly and/or who have co-morbidities. In other words, the risk of COVID is far greater for those who are elderly or have co-morbidities. Around 87% of those who have died with COVID in Australia are over 80 years old and had other pre-existing illnesses listed on their death certificates.
- The World Health Organisation has stated that most people diagnosed with COVID will recover without the need for any medical treatment.
- The vaccines are only provisionally approved for use in Australia and are accordingly still part of a clinical trial 20.
- There are side effects to the COVID vaccines that are now known. That side effects exist is not a conspiracy theory.
- The long-term effects of the COVID vaccines are unknown, and this is recognised by the Therapeutic Goods Administration (TGA) in Australia.
Can COVID vaccinations be mandated by employers on health and safety grounds?
[130] The short answer to this question, in almost every case, is no.
[131] The fundamental starting point here is the answer to the question – what is the risk? All risk controls are (or should be) designed to address an identified risk. The risk needs to be a real risk and not a perceived risk. The real risk for employers is that a person who has COVID will spread COVID to others within the workplace.
[132] The risk of spreading COVID only arises with a person who has COVID. This should be apparent and obvious. There is no risk associated with a person who is unvaccinated and does not have COVID, notwithstanding the misleading statements by politicians that the unvaccinated are a significant threat to the vaccinated, supposedly justifying “locking out the unvaccinated from society” and denying them the ability to work.
[133] The primary duty of care for employers under health and safety law requires the employer to ensure health and safety so far as is reasonably practicable by eliminating risks to health and safety, and if this is not reasonably practicable, risks must be minimised so far as is reasonably practicable.
[134] There is nothing controversial in stating that vaccines do not eliminate the risk of COVID, given that those who are vaccinated can catch and transmit COVID. By way of one example, a report issued by the Centres for Disease Control and Prevention (CDC) in the United States on 6 August 2021 25 looked at an outbreak of COVID in Massachusetts during July 2021. Of the 469 COVID cases identified, 74% were fully vaccinated. Of this group, 79% were symptomatic. In total, 5 people required hospitalisation and of these, 4 were fully vaccinated. This is not an anomaly – the data from many countries and other parts of the United States provides a similar picture, although obtaining similar data from the United States will now be problematic given the decision by the CDC on 1 May 2021 to cease monitoring and recording breakthrough case information unless the person is hospitalised or dies. What is clear, however, is that the vaccine is not an effective control measure to deal with transmission of COVID by itself.
[135] In order for an employer to meet its duties under health and safety laws, it will need to minimise the risk of exposure to COVID in the workplace, which will require employers to apply all reasonably practicable COVID control measures.
[136] As noted earlier, Safe Work Australia, in relation to whether employers need to include mandatory vaccination as a control measure to comply with WHS duties, has advised that “it is unlikely that a requirement for workers to be vaccinated will be ‘reasonably practicable’”.
Final comments
[179] Research in the context of COVID-19 has shown that many who are ‘vaccine-hesitant’ are well educated, work in the health care industry and have questions about how effective the vaccines are in stopping transmission, whether they are safe to take during pregnancy, or if they affect fertility. 37 A far safer and more democratic approach to addressing vaccine hesitancy, and therefore increasing voluntary vaccination uptake, lies in better education, addressing specific and often legitimate concerns that people may hold, and promoting genuine informed consent. It does not lie in censoring differing opinions or removing rights and civil liberties that are fundamental in a democratic nation. It certainly does not lie in the use of highly coercive, undemocratic and unethical mandates.
[180] The statements by politicians that those who are not vaccinated are a threat to public health and should be “locked out of society” and denied the ability to work are not measures to protect public health. They are not about public health and not justified because they do not address the actual risk of COVID. These measures can only be about punishing those who choose not to be vaccinated. If the purpose of the PHOs is genuinely to reduce the spread of COVID, there is no basis for locking out people who do not have COVID, which is easily established by a rapid antigen test. Conversely, a vaccinated person who contracts COVID should be required to isolate until such time as they have recovered.
[181] Blanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of the actual risk, fail the tests of proportionality, necessity and reasonableness. It is more than the absolute minimum necessary to combat the crisis and cannot be justified on health grounds. It is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged.
[182] All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia. It is an abhorrent concept and is morally and ethically wrong, and the antithesis of our democratic way of life and everything we value.
[183] Australians should also vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID. Science is no longer science if it a person is not allowed to question it.
[184] Finally, all Australians, including those who hold or are suspected of holding “anti-vaccination sentiments”, are entitled to the protection of our laws, including the protections afforded by the Fair Work Act. In this regard, one can only hope that the Majority Decision is recognised as an anomaly and not followed by others.
VICE PRESIDENT
Gab, this is a great find. When I read Dean’s dissent, I immediately recall Weinberg’s dissent in Pell V Queen. I hope it has the same effect.
There is much wisdom in the second half of this document, from 101 onwards.
Valuable ammunition against the rolling forces of stupidity and evil.
At last, an official organ of the state speaking against mandates, lockdowns, and other coercions.
Morro will read it and feel a sudden loss of blood pressure as it dawns on him that he might have to do something.
And Gladys’ entire Covid strategy has now been called out. Time to step down, you dreadful woman.
If there is anyone in the Liberal party with the slightest backbone and sense of which way the wind is blowing they will be looking for allies to call for a spill.
Backbone? Hmph. So it will be up to the LDP and UAP and other minor parties.
Yah…
I hope it goes up the line. This really needs a High Court ruling / precedent. FAST!
Of course – if it is slow in getting there, the more ammunition against forced / mandated vaxx. So there may be more EVIDENCE … (and public opinion!) against enforced vaxxinations, and hence more chance of the decision being overturned [Nilliganed!].
We also need a ruling on constructive dismissal re the vaxx. A lot of people are being forced to resign – and that is also a travesty of justice.
Well done Gab!
Pffttt……they’ll just pass legislation legalising it all.
Just remember that everything the Nazis did was legal.
Again … it’ll be interesting if they try to make law that is – in all aspects – unconstitutional. [Remember – both GulagGlad and DiktatorDan are on record saying that they LEGALLY CAN’T make anyone take the Vaxx… So they are well aware of this and hence why everything is done under a dodgy State of Emergency rule.]
Rorschach says:
September 30, 2021 at 2:44 pm
.…if they try to make law that is – in all aspects – unconstitutional
Rorschach, Rorschach, Rorschach – they have already wiped their arses with the Constitution.
They’re not going to suddenly have a road to Damascus moment. This is all deliberate and will not stop until they are either in complete control or dead.
Maybe … Given 7-Nilligan in the Pell case, I still reserve some optimism. 🙂
STOP THE PRESSES!
What’s that…doesn’t fit our carefully crafted narrative? Advertising revenue?
Uh…never mind…roll the presses.
Good one Gab.
The federal libs are right behind mandatory vax for their areas of responsibility (such as aged care).
For other (state) responsibilities – they have kicked the can down the road. “Not my department”
Here’s their position, I received from my local member this afternoon:
appropriate given the high risk environment in which border workers work,
Yeah – I’m getting sick of having to step over all the dead bodies in the street from this “pandemic”.
Fuck ’em.
Those were my thoughts exactly.
appropriate given the high risk environment in which border workers work,
They’re doing their best to destroy the supply lines.
Struth was just a bit premature last year about this, but it is slowly coming to pass.
I’ve been doing a bit of on-line window shopping lately – “Out of Stock” is the most common description.
Food will slowly start to become scarce – I think Stalin starved to death most of his 30 million Kulaks – a population greater than Australia’s, people leading comfortable lives (for the period).
And nobody else in the world gave a fuck.
Wondering just how they are going to set about destroying this woman. Maybe she once employed a tradie whose cousin looked at a Qanon video.
yes, but its only a minority view right …. the court ruled in support of mandation right?
No. The issue was not Covid vaccination at all. That was only tangential. It had to do with flu vaccination in a nursing home several years ago.
Dean simply took the opportunity to express his views on the current position, and what views they are. I pity any employer whose defence of compulsory vaccination comes before him.
The best thing about this is that it’s completely gratuitous. This is someone in a position of authority who is deeply offended by what is happening here.
her. Lyndall Dean is of the fairer sex.
All the better. They might find it harder to attack her.
I call bullshito. It was designed to block an entire family of S1 spike protein bioweapons. The lack of immunity is just a by-product of its especially narrow targeted effect. A normal vaccine would not have been so targeted.
Yes, I guess it would block other bioweapons if the subject died first.
So they are well aware of this and hence why everything is done under a dodgy State of Emergency rule.
+ coercion
Gab, thanks for posting this. Agree with Dover – it is like Weinberg’s dissenting opinion in Pell’s Appeal case.
Tanya Davies on this decision
Hi
Thank you for correctly reporting this outcome, unfortunately many other media sites have twisted or misinterpreted the findings olloeing the underlying message to be lost
Hi could you correct the typo – should read “allowing”
Tetanus unlike smallpox has not been eliminated so any injuries in the garden or involving stables or rusty nails needs the Tetanus vaccine pronto.
Dean’s dissenting statement is encouraging, but as noted, two other imbeciles came down in favour of state coercion. Nonetheless, I will be waving it under my employer’s nose, should they be stupid enough to even contemplate “mandating” the administration of those useless unnecessary toxic chemical cocktails.
The latter, thanks, toot sweet.
Never forget what they have stolen from us.