Australia, Fair Work Commission, 8 July 2022, [2022] FWC 1774
Case overview
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Deciding body (English)
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Type of Court (material scope)
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Instance
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Further areas addressed
Outcome of the decision
Link to the full text of the decision
General Summary
The Applicant sought a declaration from the Commission that one of its members, Mr Salha (“the Employee”), had been unlawfully stood down under s 524 of the Fair Work Act 2009 (Cth) (“FWA”). Under s 526 of the FWA, the Applicant has standing to bring a claim on behalf of a person who has been stood down under s 524. The Respondent argued that the Employee had not been stood down under s 524 but that he had been unwilling to comply with its lawful and reasonable requirement that employees be vaccinated against COVID-19 as a condition of work.
The Employee had not been able to attend work for some time. Initially this was due to various State government directions, but from October 2021 it was at the direction of the Respondent, based on his refusal to be vaccinated against COVID-19. In December 2021, the Respondent put in place a policy requiring all employees to be vaccinated against COVID-19 as a condition of their attendance at work. The Employee continued to decline to be vaccinated, and the Respondent informed him that continued non-attendance would be viewed as serious misconduct.
The Fair Work Commission held that the Respondent’s direction and policy did not constitute standing down for the purposes of s 524 of the FWA, and the Applicant therefore lacked standing to bring the complaint on behalf of the Employee.
Facts of the case
The Employee had been employed as a concreter with the Respondent for 13 years. He was absent from work from 21 July until 11 October 2021 due to a combination of factors including –
- having to isolate due to a potential COVID-19 exposure at work;
- due to a government close down of the construction industry by a New South Wales Government public health order; and
- as he was unvaccinated and living in a local area deemed an “area of concern”, that was locked down by the New South Wales Government.
On 11 October 2021 public health orders were lifted, such that the Employee was able to leave his home to attend work. However, the Employee was advised by the Respondent that COVID-19 vaccination was a condition of return to work. Following consultation with employees, on 5 December 2021, the Respondent implemented a COVID-19 Vaccination Policy (“the Policy”). The Policy required unvaccinated employees to provide a medical contraindication certificate before they were permitted to attend work. The Employee remained unvaccinated and had no medical exemption, but as an alternative offered to wear a mask and undergo daily COVID-19 testing if he was allowed to return to work.
The Applicant, on behalf of the Employee, argued that he had been unlawfully stood down and sought an order that he be paid wages for the period from 11 October 2021. The Respondent submitted that the Employee was unwilling to comply with its ‘lawful and reasonable´ requirement that he be vaccinated against COVID-19 as a condition of his attendance at work. Further, the Respondent argued that there was no stand down subject to s 524 of the FWA and therefore no basis to pay the Employee wages for unauthorized absence from work. As the Employee had not been stood down under s 524, the Respondent argued the Applicant had no standing to bring the claim on his behalf.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Private individual
Type of procedure
Reasoning of the deciding body
The Commission found that there was no evidence that the Respondent had exercised its right to stand down the Employee under section 524 of the FWA or purported to do so. Rather, the Respondent had issued a direction on 6 October 2021 under the Employee’s contract of employment, which was repeated on 2 and 11 November 2021, that he needed to be vaccinated in order to return to work.
In addition to these specific directions to the Employee, the Respondent’s COVID-19 Vaccination Policy was a direction to all employees about the requirement of COVID-19 vaccinations as a condition precedent to attending work. The Commission held it was not necessary to consider whether the direction/policy were lawful and reasonable, as the only matter for consideration was whether the Applicant had standing to bring the claim.
Conclusions of the deciding body
The Commission found that the Employee had not been stood down and therefore section 524 of the FWA did not apply. The application was therefore dismissed.
Fundamental Right(s) involved
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. private life
- Health v. right to work
