In a key development for vaccine mandates, a group of Qantas employees have lost their bid to stall disciplinary action against them for failing to meet the airline’s policy.
The Federal Court yesterday dismissed an urgent interlocutory bid to stop the airline dismissing 24 employees who failed to meet its 15 November deadline of having two vaccine doses.
It followed Qantas Group last September announcing all of its staff, including people who work at their subsidiary companies such as Jetstar, would need to be fully vaccinated against COVID-19.
The group of aviation staff, including pilots and engineers from several states launched legal action in the Federal Court against the airline last Friday (21/1).
They alleged the company’s vaccination policy breached the Fair Work Act and privacy laws, while also claiming Qantas Group had not investigated COVID-19 vaccines before enforcing a mandate.
At the interlocutory hearing to prevent them from losing their jobs while the legal process was underway, the group told the court Qantas had not issued a “lawful or reasonable direction” as it had undertaken “insufficient investigation” into available vaccines.
In the group’s submission, it was contended that the company did not undertake full consultation under its bargaining agreement and had relied on a company-wide survey to make its decision.
The survey was responded to by 12,000 employees in July, indicating that 89% of participants were partly or fully vaccinated or planned to be and 4% indicated they were “unwilling or unable” to be inoculated.
Federal Court Justice Kylie Downes denied its attempt to get an injunction to stop Qantas taking disciplinary action against them while the case is pending.
However, John Sheahan, QC, appearing for Qantas, offered an undertaking from the airline effectively promising the same outcome.
“My client’s priority is to adopt a fair and practical approach to getting the matter resolved expeditiously and efficiently in this court, the same way that other challenges to vaccination mandates have been resolved,” he said.
“We will certainly be relying on the public health orders in assessing the reasonableness of, indeed the necessity for, the direction that was made in respect of Qantas’ employees.”
The court heard three of the applicants had already been terminated, two were currently on leave without pay and 19 were stood down with pay.
Justice Downes heard the majority of applicants were going through a six-stage review process, including seven staff who were providing written responses to Qantas after being issued with a “review of employment letter” in relation to non-compliance.
Ten people were in stage four of the review, with their written responses being considered.
In dismissing the application, Justice Downes said the group had been “unable to point to any harm or any urgent intermedial harm they would suffer if the injunctions aren’t granted”.
She also told the court it was “difficult to understand” why the applicants waited until after the policy deadline to make an application for “urgent relief” from disciplinary action.
“The applicants have been aware since July but certainly by no later than September that the Qantas Group would require them to be vaccinated as a condition of their continued employment,” she said.
A trial is expected to be heard in March.
AREEA’s workplace relations experts are assisting members nationally with COVID-19 risk mitigation and all related policies and procedures.
To understand the implications of this significant case and/or for all other matters in relation to COVID-19 management, contact [email protected] or phone your local AREEA office.
