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Sep 21, 2022
A recent ruling from the Fair Work Commission (FWC) reminds us that vaccination policies are still essential to have in place.
A marine pilot has taken the Port Authority of New South Wales to the FWC, disputing an enterprise agreement regarding its vaccination policy. The Port Authority introduced a COVID-19 Control Policy requiring its employees, including marine pilots, to be vaccinated against COVID-19.
The pilot has been disciplined for failing to comply with the COVID-19 Control Policy and faces imminent dismissal. The marine pilot disputed that the direction given under the policy was reasonable and that consultation had been inadequate.
The FWC found that the Port Authority implemented several factors that supported that the policy was reasonable and valid, including:
The Port Authority deployed other safety measures, such as mask mandates and the like, that were also effective control measures.
The marine pilot submits that compulsory vaccination squarely collides with other very important rights and principles, such as principles of bodily integrity, which point against finding that a direction that all staff must be vaccinated was a reasonable direction.
The FWC recognises that “some members of the workforce hold strong views against COVID-19 vaccination, and that the medical, legal or even logical soundness of those views varies considerably.”
In a previous case, Mt Arthur Coal, the FWC Full Bench found “that the site access requirement that mandated vaccination did not violate any common law right to bodily integrity but noted that:
“While we would demur from the proposition that the Site Access Requirement constitutes coercion in the legal sense, we accept that it is a form of economic and social pressure.”
The commission found the consultation undertaken by the Port Authority was extensive, and they had provided adequate information to employees.
The FWC ruled that the direction to be vaccinated under the policy was lawful and reasonable and rejected all arguments.
Read the full judgement: Lyndon Clark v Port Authority of New South Wales  FWC 1915 (20 July 2022)
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