Federal Court rejects application for injunction from Qantas employees regarding vaccine mandate

The Federal Court of Australia (the Court) has dismissed an application from 24 employees across the Qantas Group (the Applicants) who sought urgent injunctions to prevent the enforcement of the Qantas Group’s COVID-19 vaccination policy (the Vaccination Policy), and to stop the Qantas Group from proceeding with its employment review process. All 24 employees involved had refused to comply with the Qantas Group’s Policy, which required all employees to be double-vaccinated against COVID-19, or have applied for an exemption by 15 November 2021.

The trial, which was held on 21 January 2022, some two months after employees were required to be compliant with the Vaccination Policy, ultimately resulted in the case being dismissed, after the Court found that the four submissions made by the Applicants did not surmount to a prima facie case.

Facts

On 21 July 2021, the Qantas Group invited all its employees to participate in a survey about COVID-19 vaccination. Amongst other things, the survey indicated that 89% of employees were either already partially or fully vaccinated, or had plans to become fully vaccinated. Additionally, approximately 75% of employees expressed their concerns about working with unvaccinated colleagues.

In response to the survey results, and after consulting with various unions, and health and safety representatives, the Qantas Group finalised its Vaccination Policy on 20 September 2021. Employees who fell into ‘Category A’ under the Policy, which included all of the Applicants, were required to be fully vaccinated by 15 November 2021. Any employee who was not compliant with the Policy by this date was considered not to have complied with a ‘lawful and reasonable direction’ and would be subject to the Qantas Group’s six-stage disciplinary action process.

In this case, none of the 24 Applicants were in compliance with the Vaccination Policy, however were at different stages of the disciplinary action process at the time the injunction was sought. The Applicants challenged the policy on the following four grounds:

• The direction to get vaccinated was not ‘lawful and reasonable’ as the Qantas Group had undertaken insufficient investigation into the safety of the COVID-19 vaccines on offer;
• The Qantas Group had relied on the survey of its employees as the full consultation which was required to be undertaken per its enterprise bargaining agreements, and this was insufficient;
• The various public health orders and directions regarding mandatory vaccination are unlawful, as they are inconsistent with other legislation which takes precedence over them.
• The requirement by the Qantas Group for employees to present vaccination certificates as evidence of compliance is in breach of privacy laws.

It was on these grounds the Applicants sought urgent interim injunctions to restrain enforcement of the Policy, and additionally to restrain the Qantas Group from proceeding with the disciplinary action process.

The Qantas Group’s position was that the Applicants did not have a prima facie case. Nevertheless, the Respondents to the proceeding (being various entities within the Qantas Group) offered undertakings that, among other things, it would not terminate the Applicants’ employment on account of non-compliance with the Policy until the determination of the question of liability in this proceeding.

Decision

In determining whether to grant the interim injunctions, the Court considered whether the Applicants had a serious question to be tried. It was also considered whether, on the balance of convenience, the Applicants would suffer more damage if the injunctions weren’t granted than the Respondents would if the injunctions were granted.

The Court dismissed the Applicants’ interlocutory application due to the following reasons:

• There was no evidence that the Qantas Group did or did not carry out a sufficient investigation into the safety of the available COVID-19 vaccines;
• The Applicants conceded that there had been consultation with employees, unions, and health and safety representatives in respect of the Policy;
• The Applicants were unable to identify the ‘other legislation’ which rendered the public health orders and directions unlawful;
• The issue of privacy laws is irrelevant to the application. The Applicants’ actual concern was the Qantas Group requiring its employees to be vaccinated;
• There was significant delay in the bringing of the proceedings;
• Considering the lateness of the application, the Court was not convinced that the Applicants’ employment would continue to be negatively affected should the injunction not be granted.

Though, the matter is still ongoing, as it will now proceed to determine liability at a later date.

Take Home Messages

While this decision is specific to the Vaccination Policy of the Qantas Group, it demonstrates that a vaccination policy which has been thoroughly consulted on with relevant parties, particularly when there are also public health orders and directions in place, may be difficult to challenge.

Employers should ensure that upon the introduction of a vaccination policy, employees are given a reasonable amount of time to comply with vaccination requirements. Importantly, fair and robust procedures for dealing with employees who do not wish to comply with the procedure should also be implemented.

Should you have any queries in relation to this article, please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, or Ganesh Krishnan on +61 8 8210 1395 or gkrishnan@normans.com.au, or Anastasia Gravas on +61 8 8210 1331 or agravas@normans.com.au.