Businesses implementing mandatory vaccines could face legal challenges through employment law

The Canberra Times understands the current stance of the Morrison government to not implement mandatory vaccination codes for high transmission risk industries could open an avenue of legal risks to businesses looking to instil vaccine employment rules.

Due to no indemnity clause, which would protect a business from legal action from implementing a vaccine policy, a worker refusing to be vaccinated could sue its employer for unfair dismissal or breach of contract.

Companies which also implement an internal vaccination program could also be liable for workers' compensation if there was an adverse reaction to an immunisation, rather than a lawsuit being filed against the pharmaceutical manufacturer.

Special counsel at Herbert Smith Freehills law firm Nerida Jessup said industry-wide mandates would remove some of the legal risks associated with employment and workplace law.

Ms Jessup noted a court would look at the "reasonableness" of a mandatory program on a case-by-case basis, and if relevant state and territory public health orders supported the decision.

"The key legal risk is in that unfair dismissal, breach of contract and the employment risk," Ms Jessup said.

"If that is challenged by a worker. So if they're disciplined or they're redeployed and they challenge that in the Fair Work Commission or another tribunal court. What a court will look at is whether that direction is reasonable and lawful and because vaccination is an invasive procedure ... it is a direction that we expect to be looked at closely by court."

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Ms Jessup said there was currently no guidance on employment law and vaccine mandates, but flagged a legal test case would likely arise in a sector not deemed essential or at high risk under public health orders.

National cabinet is considering a statement of regulatory intent, designed to make it clear businesses not subjected to public health orders would not breach work health and safety duties if they do not implement vaccinations.

Healthcare workers administering vaccines are protected from legal action.

Industrial Relations Minister Michaelia Cash said the government's voluntary vaccination policy was supported by a number of businesses, Labor and the unions.

"The Morrison government's position is clear. Vaccination is free and voluntary, unless a state or territory public health order is in place. But we strongly recommend that everyone gets vaccinated as soon as they can," Ms Cash said.

"The government's position of voluntary vaccination does not detract from individual employers seeking their own advice and mandating for their workforce if they believe it is the right decision for them."

Ms Jessup's comment follow on from Qantas' recent decision to mandate vaccines across its workforce, after conducting a survey which found the majority of staff had been or were willing to be vaccinated.

Only 4 per cent of the airline's staff were unwilling, prompting a hard stance from Qantas boss Alan Joyce.

"If other employees decided that they're not taking the jab, they are deciding, I think, that aviation isn't the area for them," Mr Joyce said.

"Our responsibility is to provide the safest possible environment for our employees and for our customers."

Qantas confirmed workers with a medical excuse would be exempt from the mandate.

Ms Jessup said this would likely protect the company from discrimination claims.

Food manufacturer SPC has also implemented mandatory vaccination for its employees.

Qantas was initially asking for a sector-wide vaccination program, a view also echoed by Labor MP Tony Burke.

"I think the simpler the rules are, then the better we get with this," Mr Burke said.

"I don't want to end up with a situation where you've got some airlines where they're taking unvaccinated, other airlines where you have to be vaccinated."

Only aged care and international aviation workers have mandated vaccination industry-wide policies.

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