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QUESTION ON NOTICE

Question:

22 February 2022

1. How can Fair Work Australia morally justify the mandating of vaccines by employers which goes against the explicit statement in the immunisation handbook that people cannot be coerced into an taking a vaccine? 2. How can Fair Work Australia morally justify the dismissal of employees unable to get a second inoculation because they were injured by the first inoculation and received a medical exemption? 3. How can Fair Work Australia morally justify the dismissal of employees who because of prior anaphylactic reactions don’t want to take the vaccine? 4. If an employee is injured by vaccine forced upon them by a mandate can the employee sue the employer for damages? If not, why not? 5. Why does Fair Work Australia believe that employers are responsible for the transmission of an airborne virus? If it doesn’t think, that then why not legislate accordingly so that businesses (excluding hospitals and aged care centres) are not responsible for public health measures? 6. How are employers meant to trace the transmission of the virus to either their employees or customers? If it isn’t possible then why is Fair Work Australia allowing State Governments to impose rules that are impossible to apply or substantiate? 7. Is it fair and reasonable for an employee to be forced into taking a vaccine if the vaccine doesn’t stop transmission and doesn’t prevent hospitalisation and sickness? 8. If an employee is injured by the vaccine mandated by their employer can the employee claim compensation under Workcover? 9. I note that employers have been telling employees that they are not liable for vaccine injuries because the commonwealth government has indemnified them. Is this true?

Answer:

Question Number: 46
PDR Number: EEC-AE22-046
Date Submitted: 22/02/2022
Department or Body: Attorney-General’s, including industrial relations matters

Q1-3.

To assist the Committee, the Fair Work Commission (Commission) provides the following information about its role in dealing with matters that may involve issues about vaccination requirements.

The Commission is Australia’s national workplace relations tribunal. The Commission was established by the Fair Work Act 2009 (Fair Work Act) and operates under the Fair Work Act. 2

As a statutory agency, the Commission only has the functions conferred on it by legislation. These functions include:

dealing with unfair dismissal claims
dealing with anti-bullying claims
dealing with general protections and unlawful termination claims
setting the national minimum wage and minimum wages in modern awards
making, reviewing and varying modern awards
assisting the bargaining process for enterprise agreements
approving, varying and terminating enterprise agreements
making orders to stop or suspend industrial action
dealing with disputes brought to the Commission under the dispute resolution procedures of modern awards and enterprise agreements
determining applications for entry permits, and
promoting cooperative and productive workplace relations and preventing disputes.

The Commission does not have general power to deal with employment-related vaccination disputes and does not have power to mandate vaccination.

The Commission has considered vaccination-related issues where they have arisen in the performance of its functions. That has included:

in determining unfair dismissal and general protections dismissal applications, where a person has claimed they have been dismissed because they did or did not receive a vaccination, and
pursuant to s.739 of the Fair Work Act, in dealing with disputes under dispute resolution procedures in enterprise agreements about the introduction of workplace vaccination policies.

The Commission publishes its decisions and the reasons for its decisions, including on matters that involve vaccination-related issues, on its website. Each decision turns on the facts and circumstances of the particular matter before the Commission.

Question 1 to 3 ask for expression of an opinion. The decisions of the Commission stand for themselves. It would not be appropriate for the Commission to express an opinion on a particular decision of the Commission or on how vaccination-related issues should be decided generally.

In light of order 73(1)(h) of the Senate Standing Orders, the Commission respectfully declines to provide an opinion in response to the questions.

Q4 & 8.

The Commission has no role in relation to common law damages or workers’ compensation claims.

The Commission is unable to comment on the circumstances in which an injured employee could sue their employer for damages or claim workers’ compensation. Questions about workers’ compensation could be directed to the Commonwealth, State or Territory bodies with responsibility for administering workers’ compensation schemes.

Q 5 & 6.

The Commission has no power to legislate and has no role in relation to State and Territory legislation or public health orders.

It would not be appropriate for the Commission to comment on policy decisions of State or Territory governments.

Q7.

The requirements of State and Territory public health orders are a matter for State and Territory governments.

The Fair Work Ombudsman and Safe Work Australia publish general guidance on their websites about workplace vaccination matters.

It would not be appropriate for the Commission to express a view on employer vaccination policies, except to the extent that the Commission is required to do so in dealing with a particular matter before it.

Q9.

The Commission is unable to comment on whether employers have been giving employees particular information.

The Commission has no role in relation to personal injuries.

Insofar as this question concerns Commonwealth health-related policy or regulation, it could be directed to the Commonwealth Department of Health.