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:

1. a) the requirement for freely given and informed consent for medical procedures;
2. 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
3. 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:

1. 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.
2. 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.
3. The World Health Organisation has stated that most people diagnosed with COVID will recover without the need for any medical treatment.
4. The vaccines are only provisionally approved for use in Australia and are accordingly still part of a clinical trial 20.
5. There are side effects to the COVID vaccines that are now known. That side effects exist is not a conspiracy theory.
6. 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