Last Friday 15 October, the NSW Supreme Court issued a decision regarding multiple legal cases against the NSW Health Minister Brad Hazzard covering the validity of the Health Orders issued by Mr Hazzard, the validity of mandatory vaccination orders for certain industries, and if the Health Orders were in effect coercing NSW residents to get vaccinated by restricting their ability to work.  Today, we are going to break down parts of the decision that are relevant to businesses from a HR & Workplace Relations perspective and consider any implications for businesses in this space.

First, let’s cover a couple of key points of the decision. Firstly, the decision was made in relation to Health orders that were in effect prior to 11 October 2021, and the large majority of these orders have already been rescinded by the NSW government. So effectively, a large part of the case examined “past” health orders, rather than the current ones.

Secondly the legal arguments were constrained to the legality of making, and the associated implications of orders made by Mr Hazzard and the NSW government, and do not consider additional decisions made by individual businesses regarding vaccination. This is an important distinction which we will cover in more detail when discussing the HR & Workplace Relations implications for business.

The case looked at a number of complex legal arguments considering State, Federal, Constitutional and International laws, as well as expert Australian and International medical experts. However, in essence the decision, which we note may yet be appealed, found that Mr Hazzard had the ability to make the orders that he made, and even though those orders restricted many people from being able to work for a period of time, did not amount to mandating or coercing a person into a medical procedure.

So what are the implications and insights that NSW businesses should take out of this decision from a HR & Workplace Relations perspective?  We really what to highlight and emphasise that this decision only dealt with the NSW Health Orders and not with individual businesses making their own decisions regarding vaccination above and beyond the Health Orders.

You are likely to see some headlines in mainstream media saying that NSW businesses now have the ability to mandate vaccination, however it should be remembered that this was a case about the reasonableness of government orders, a number of which were temporary. In our view, the same considerations and risks for businesses regarding mandatory vaccination are basically the same after the decision, as they were before the decision.

HR & Workplace Relations operate under a complex mix of Federal & State legislation. Still today, 18 months in we are seeing mixed messaging regarding if mandatory workplace vaccination policies are permitted.

For example, Deputy President Dean of the Fair Work Commission has recently made statements against termination of employment as a result of a workplace mandatory vaccination policy which we have covered in detail on our website. Worksafe Australia is still indicating that businesses should seriously consider if mandatory vaccinations are reasonably practical in your businesses individual circumstances.

Ultimately, mandatory workplace vaccination continues to be an issue we are asked about a lot by our clients, associate members, and broader network. We have taken the view for some time now that whilst businesses have the ability to make their own decisions in this space, they should take caution before implementing policies above and beyond what is required by the Government, as the risk for unintended claims continues to exist, and there is still quite limited guidance from unfair dismissal cases which go to the issue of vaccination.

If your business is struggling with how to manage Covid-19 in your workplace and would like advice and guidance in this area, please do not hesitate to contact us by visiting ondemandhr.com.au

That all for today, we hope that you are all staying positive and we are looking forward to seeing you in the next update.