Mythbusting legal misinformation about COVID-19 vaccine mandates: what employers can do

16 Nov 2021

Most Australian jurisdictions have now issued directions for certain occupations and industries to be vaccinated against COVID-19, or have announced plans to do so.

In an effort to protect their employees and customers or clients, a number of employers have also taken the step of requiring employees wear masks when carrying out their duties.

In response, a number of organisations have produced a range of materials opposing Government mandates, including preparing draft letters and template documents for employees to send to their employer in response to directions to get vaccinated.

In most cases, the information contained in these letters and other documents is wrong at law, and is a phenomenon described as "pseudolaw" – where statements are made that refer to real laws, but which selectively quote, misunderstand, or misrepresent the law.

The distribution of documents with these incorrect views of the law is irresponsible and serves no one. It places employees in difficult positions where they are led to a false belief about their rights and obligations which could impact negatively on their employment.

We have collated some of the false information presented in pseudolegal documents being provided to employees, and what you can do if you're given one.

Is a direction to wear a mask or get vaccinated a change to a contract of employment?

A range of documents being provided to employees state that if their contract of employment does not require them to get vaccinated or wear a mask, then they do not have to. Further, they state that any attempt to require an employee to be vaccinated or wear a mask is a breach of their contract of employment. These views are legally incorrect.

A contract of employment does not set out every obligation owed to an employer, nor does it list every single task an employee must carry out to do their work.

Contracts of employment set out the duties of an employee, however a range of other matters are generally left to the discretion of the employer, including safety issues, disciplinary matters, the way in which work will be carried out, what the day-to-day tasks will be, what tools to use, which vehicles to drive – the list goes on.

Issuing a direction to wear a mask or to be vaccinated against COVID-19 does not require a change to a contract of employment (unless the current contract specifically has an entitlement not to wear a mask or not be vaccinated against COVID-19, which is highly unlikely). If the requirement arises from a government direction then it overrides the contract of employment in any event.

Can an employer defy Government mandates and let unvaccinated employees work anyway?

If your industry is covered by a vaccination mandate, employers in that industry must not let unvaccinated employees work in roles or at locations covered by the mandate. In many cases, to do so risks fines to both the employer and the employee.

Many pseudolegal documents being provided to employees appear to suggest that Government mandates requiring vaccination are themselves unlawful, and present a range of incorrect reasons as to why this is the case. In every Court challenge to date, the public health directions requiring the vaccination of employees have been found to be entirely legal, and a breach of them is a breach of the law.

Can an employee refuse to wear a mask or get vaccinated on the grounds that they do not consent?

There are two different issues at play here: the concept of a lawful and reasonable direction, and informed consent.

The law recognises the right of employers to issue lawful and reasonable directions to their employees (without changing their contracts of employment). The nature and reality of an employment relationship is that employees might be asked to do things that they would prefer not to do, but are required to do anyway. Provided that the direction is lawful and reasonable, the employee must comply.

In the case of wearing masks, it is not unlawful for an employee to wear a mask. Given public health advice, it is also not unreasonable for employees to wear masks. It is therefore at the discretion of the employer to issue a lawful and reasonable direction as to the wearing of masks, and employees must follow the direction. Such directions are issued by employers in any event, for example in roles where hazardous materials could be breathed in.

Informed consent is a person's decision to have a medical procedure, including a vaccination, after being provided with the relevant information, including benefits and risks, associated with that procedure. A person cannot be forced to give informed consent.

However, in most instances an employer may still issue a lawful and reasonable direction requiring a person to be vaccinated before they can work. The employee may refuse to give informed consent to be vaccinated, but this then places them at risk of being in conflict with their duties to their employer, which could lead to the termination of their employment.

Does section 51(xxiiiA) of the Australian Constitution ban compulsory vaccinations?

No. Section 51(xxiiiA) of the Constitution was inserted in the 1946 referendum. It allows the Federal Government to fund maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services, benefits to students and family allowances. It also prevents the Federal Government from nationalising medical and dental services. The section is not relevant to vaccinations, except that it would allow the Federal Government to fund vaccination programs.

What do I do if I'm given a pseudolegal document?

Don't panic! Take your time to look over the document to see whether it is a genuine piece of correspondence, or whether it speaks to issues and matters that don't seem right to you, or which fall afoul of your understanding of the law. Many pseudolegal documents can be easily identified by searching key phrases contained within them on the internet. If in doubt, consider having the document reviewed by a lawyer.

If it is a pseudolegal document, there is no need to respond to all of the queries or statements it contains, but you may want to consider responding with a statement setting out your real legal rights and obligations to ensure communications with your employees are grounded in reality, not pseudolaw.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.