Is it discriminatory to treat people vaccinated for COVID preferentially to those unvaccinated?
Is it wrong in law to entertain the idea of a vaccine passport creating an advantage for the vaccinated? Is it lawful to deny the unvaccinated certain privileges reserved to the vaccinated only? These are the questions more than one person has raised as we wrestle with a post-COVID world.
Other countries have been far more extreme that Australia. In Fiji it is ‘no jab, no job’, for public servants. Many democracies are taking steps to marginalise the unvaccinated in what is described as a ‘carrot and stick’ approach.
To discriminate is to treat someone differently to another, so in that sense such policies are discriminating between one class of person and another. However for a discriminatory practice to be unlawful in Australia it has to fit into a particular box. Our anti discrimination laws are based on age, sex, race and disability. They do not include the vaccinated status of a person.
That is why parliamentarian Craig Kelly recently introduced a private members bill the No Domestic COVID Vaccine Passports Bill which seeks to prohibit the introduction of a Vax Passport, and further seeks to prevent discrimination against the unvaccinated. Needless to say it will not pass the Parliament, but it is a tacit admission that by singling out the unvaccinated for less favourable treatment, that alone is not currently discriminatory in law.
Until we introduced specific anti discrimination legislation addressing age, sex, race and disability, discriminating on those grounds was not unlawful. Nothing existed in the common law to mean favouring particular characteristics of a person or a particular type of person was unlawful. Nothing exists now to prevent treating unvaccinated people differently.
It is not difficult for the Fair Work Act and other legislation to make it a damn sight clearer for employers what they can and can’t do within the law.
The exception to that is if the differential treatment of a person arises in the context of employment. The question then may be less straightforward. In short, the Fair Work Act has disempowered employers so as to often render them fearful to make hard decisions lest they be found to have acted unlawfully.
The primary problem with vaccinations and employment is that contracts of employment and enterprise agreements didn’t necessarily anticipate the contentious question of vaccination ever arising.
Absent a specific provision about vaccination in the Fair Work Act or relevant Modern Award, an employer is left to rely on what other relevant legislation may exist, as well as the general provisions in the Fair Work Act.
Taking the first point, it is possible that industry specific legislation may provide that if you are a health worker, for instance, you must be vaccinated. Thus an employer may be able to rely on that related provision to give a lawful direction.
If not, and in any event, under the federal Fair Work Act an employer can direct employees to do things that are ‘lawful and reasonable’, which is a test subject to the vagaries of interpretation and also of prevailing circumstances. So a direction to be vaccinated when there was little COVID infection around and the mutation was less infectious than the current Delta strain might in law be treated differently than a direction given in Sydney today. Also your occupation is going to be central to the ‘reasonableness’ of an employers direction. It is one thing to give a vaccine direction to a regional worker engaged in outdoor work on a farm. It is quite another, in contrast, to direct a health worker dealing on a daily basis with COVID-infected patients.
Similarly, to prevent an employee attending the workplace due to being unvaccinated may be reasonable in some circumstances but not others. It may also constitute a breach of contract. What it is not is discrimination for the reasons outlined above, because it does not deprive an employee of what is known in discrimination law as a protected attribute. It is purely a test of the lawfulness and reasonableness of the direction. That is of course unless the direction is coupled with another discriminatory element, such as a direction to be vaccinated on the basis of age or sex and so on.
The oddity of the current debate is highlighted when one considers that the discrimination card is often seen as a coming from the text book of the left and reviled by the right. Yet currently it is largely the conservative right exemplified by Craig Kelly who have run with the discrimination argument with respect to COVID and vaccinations.
Many of the same people would argue that trans athletes have no place in women’s sporting competitions. Proponents of the Kelly bill are also likely to take exception to the recent ruling by the Tasmanian Anti-Discrimination commissioner that it is unlawful to bar trans-identified males from a lesbian women’s only event.
The Tasmanian decision is one of statutory interpretation regarding entrenched rights, and is on appeal, but the point remains. If you are going to argue in favour of the majority view and against the protection of the minority, you can’t in good conscience choose the circumstances and facts that suit you. You really must live and die by the same logic.
In law it is not discriminatory to favour the vaccinated, and discrimination is not a factor in employment law when it comes to vaccine direction by an employer. What applies is another test entirely.
Meantime there is no doubt what the vast majority want in Australia; to be vaccinated and to use, not vaccine passports, but our real ones to re-join the international community.
There is also a question of competing interests. The argument that has been presented to us is one of discrimination against the unvaccinated. Equally if I am a patient at a health care facility, I may feel ‘discriminated’ against if I am treated by an unvaccinated person. Why can’t I be treated by a vaccinated medic? What about my rights?
So it is that the picture must be seen from all perspectives, which is a dying art in an increasingly polarised Australia. Pragmatism is fast becoming a redundant word. Yet here is a dilemma that must be seen in all its complexity. It may be completely reasonable for an informed person to not vaccinate, particularly if there exist health reasons why they should not.
Equally it is particularly unfair for employers to bear the travails of whether to direct employees to be vaccinated, and to determine if unvaccinated employees should attend the workplace. Moreover, to deal with the potential conflict between vaccinated employees concerned about the safety of the workplace inhabited by the unvaccinated, be they fellow employees, customers or bosses. After all that Australian employers and businesses have had to endure, we owe them a break.
It is not difficult for the Fair Work Act and other legislation to make it a damn sight clearer for employers what they can and can’t do within the law. Leaving everyone to the uncertainty of seeking and receiving likely thousands upon thousands of individual pieces of legal advice about employment law is rough on employers and employees alike. The Prime Minister quoting the provisions of the current Fair Work Act is also of little help. We already know the law as it stands today. It is the legislative opportunity to create some clarity for the future that should be embraced.
The discrimination angle is a furphy in this debate. In law it is not discriminatory to favour the vaccinated, and discrimination is not a factor in employment law when it comes to vaccine direction by an employer. What applies is another test entirely.
However leadership is required to set clear rules for what the vaccinated will get that the unvaccinated will not. Let’s not have governments mince around an issue that we, the public, want clear parameters around. Further, to continue to prevaricate when the Fair Work Act could so obviously do with reform is an opportunity lost.
Employers have born the brunt of this crisis. Now that we all have access to the vaccine, they should not be asked to live any further in an uncertain legal nether world unassisted by parliamentary law. Clear rules for all would greatly assist our recovery.
Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia
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