An injunction to stop Victoria’s largest public health service from firing nurses who are refusing the Covid-19 vaccination or refusing to disclose their vaccination status has been thrown out by the federal court ahead of a trial challenging the vaccine mandate.
Nick Ferrett QC is representing about 90 nurses at Monash Health, and told the court on Wednesday that under Victoria’s Occupational Health and Safety Act, the nurses should be consulted before any disciplinary action is taken against them.
“There’s no suggestion that any of the … relevant employees … is dogmatic about vaccines, and unwilling in all circumstances to get vaccinated,” Ferrett said. “So consultation has value in those circumstances.”
A directive from Victoria’s chief health officer under the Public Health Act makes it clear that health workers must be fully vaccinated, having received at least their first Covid-19 vaccine dose by 29 October, in order to work in a healthcare setting. They must provide evidence of vaccination to their employer.
But Justice John Snaden said there was “no evidence” that Monash Health was trying to prevent nurses from exercising their workplace rights by commencing disciplinary action to fire them.
“On the contrary, the evidence that there is very much suggests that the course that has been plotted has been plotted because Monash Health has formed the view that under the public health directions by which it is bound, they’re not permitted to do anything else [other than terminate employment],” he said.
Ferrett argued whether Monash Health had commenced the disciplinary action because workers were asserting their rights and pushing to be consulted should be explored at trial.
But Snaden said the nurses “… can’t point to anything in the way of evidence that substantiates their contention”.
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“The relevant employees maintain that they ought to have been consulted about the vaccination direction and that the disciplinary action to which they are imminently to be subjected will be visited upon them because they possessed, and or, sought to exercise that right to be consulted,” he said.
“It appears very unlikely, perhaps even impossible on the material that has been filed to date, that the applicants will be able to succeed in their claim that they have been or will soon be the victims of adverse action because or for reasons that include that they have possessed or exercised workplace rights, or because Monash Health wishes to prevent them from exercising any such right.
“That of course presupposes that they in fact do possess such a right or rights. That will be a live question at trial.”
Chris O’Grady QC, representing Monash Health, said the employer had simply been following the chief health officer’s directions. “In light of the CHO directions it goes without saying that anyone working in the health sector is going to have difficulty working in that sector absent their willingness to either be vaccinated or disclose their vaccination status,” he said.
Monash Health also denied it was obliged to consult with employees before terminating them, and that it would, in any case, not change its requirement to abide by the CHO directions.
Snaden said when the matter goes to trial, if the court finds the vaccine mandate was unlawful, then the nurses would likely have their employment reinstated and receive back pay. Therefore, the court had no reason to block disciplinary action including Monash Health firing the nurses in the meantime, he said, adding that the case had been “at best, weak”.
Monash Health had given undertakings not to take action against the relevant nurses until the matter was determined. In light of Snaden’s decision on Wednesday, Monash Health was now free to terminate the staff.
The substantive proceeding will now be allocated to a judge, to be heard at a later date.
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