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To forego the jab, or be an officer of the peace?

03 November 2021

The recent case of Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356 was an attempted appeal against the Commissioner of Police's directions of 7 September 2021, that mandated that all staff (unless exempted) must receive their first dose of a COVID-19 vaccine by 4 October 2021.  This appeal was split into two matters, one concerning sworn police officers, and the other all other Queensland Police Service (QPS) staff.

The applicants argued that the vaccines were experimental, untested and unsafe. They further argued that as vaccination did not prevent the risk of transmission or infection of COVID-19, that they should not have been mandated by the Commissioner.  These were retorted by the respondent's specialist, who opined "that the COVID-19 vaccines are not experimental and have passed examination by licensing bodies such as…", and further that "the vaccines do not remain part of a clinical trial. They have been approved and registered for use."

The applicants sought to overturn the directions on the following grounds:

  1. The Commissioner failed to consult with employees before making the direction, in breach of the relevant awards (ground 1).
  2. The Commissioner failed to consult with employees before making the direction, in breach of the Work Health & Safety Act 2011 (ground 2).
  3. There was no power in the Commissioner to make the direction without seeking a variation of the relevant award or the relevant certified agreement (ground 3).

Ground 1 – Failure to consult pursuant to the awards

The commentary surrounding Ground 1 requires dissection of what consultation is required under modern awards – notably the Queensland Police Services Employees Award State – 2016 ('the police award'). 

In their argument, the applicants referred to Provision 11 of the police award, which concerns changes in the way in which work is done. This provision is relevant as certain changes to a work environment can lead to an erosion of job security through redundancy.  In this context, the direction does not concern the way in which work is done.  

It was considered by the Commission that, the Commissioner's direction, "…does not concern “production, program, organisation, structure or technology”. It concerns a response to a health issue which is the COVID-19 pandemic and the impact of that disease upon operational policing. The response is to require staff of the QPS to be vaccinated against the disease so as to enable the staff to then go about their work as they have always done. There is no relevant “change”.

Ground 2 – Failure to consult pursuant to the Work Health & Safety Act 2011

The applicants raised further issues with respect to failure to comply with sections 47, 48 and 49 of the Work Health & Safety Act 2011, which enunciates an employer's duty to consult workers, and defines the nature of consultation and when this is required.

Evidence produced by the respondents at the application demonstrated that each employee received various documents by email, over a period of time, which explained the Commissioner's directions, and provided a list of exemptions to the obligation to comply.  

The Commissioner instructed QPS workers that the mandate was critical to meeting the obligations of ensuring a safe workplace, maintaining a workforce capable of meeting statutory requirements to deliver police services, and keeping workplaces and a workforce the community of Queensland is confident with and does not put them at risk when dealing with members of the QPS.

It was ultimately considered that, the Deputy Commissioner was able to produce evidence of which was effectively unchallenged and established proper consultation. That evidence included that unions, with total collective coverage of the workforce, agreed with the direction.

Ground 3 – There is no power to vary the terms and conditions of employment to compel vaccination against COVID-19

It was decided in accordance with the Police Service Administration Act 1990 ('PSA Act'), that in the context of the QPS being maintained as a disciplinary force:

  1. the Commissioner may give a lawful direction to employees;
  2. the direction is given by the Commissioner in her capacity as the effective employer of the employees;
  3. unless there is “reasonable excuse” not to comply, the employee must comply.

The applicants failed to identify any provision of an award, certified agreement, or to any legislation which was inconsistent with the Commissioner's direction.

The Commission considered that Ground 3 was contrary to the terms of the PSA Act, was inconsistent with the nature and structure of the QPS as established under the PSA Act, and was contrary to well-established principles of industrial law which recognise an employer’s right to direct employees within proper legal constraints.

Ultimately the appeals were dismissed on all grounds.

Takeaways

This QIRC decision mandating COVID-19 vaccination is the first of its kind in Queensland, and there are similar actions being raised in Australia's other states and territories. While this matter largely relates to the Commissioner's power to make certain directions, this may catalyse a wave of mandatory vaccinations across Queensland workplaces. 

It is undisputed that employees are obligated to comply with directions from their employer which are lawful.  It would not be a daring assumption to consider that failure to follow an employer's direction to obtain a COVID-19 vaccination may be grounds for termination, and that this would likely be upheld as per Brasell-Dellow above.

Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356

If you require further information or have any queries in relation to this legal update, please contact Matthew Smith or Hamish Broadbent.

We would like to acknowledge the contribution of Joshua Nash (Solicitor) to this article.

Further Reading