Qantas has agreed not to sack a group of un-vaccinated employees until a court rules on the legality of its COVID-19 jab mandate, after the workers launched last-minute legal action to save their jobs.
The airline had a small reprieve in its legal battle with the 24 staffers with the Federal Court on Monday refusing an application by the workers to stop Qantas continuing other disciplinary action, including standing them down without pay, for refusing to be vaccinated.
A group of Qantas employees failed to stop the airline’s disciplinary action against them for not being vaccinated. Credit: Edwina Pickles
Qantas became one of the country’s first major employers to announce it would make vaccination mandatory for staff in August last year, telling frontline staff such as pilots to have two jabs by November 15 and office staff to be double vaccinated by the end of March.
The two-dozen employees, including three who have already been dismissed, filed an application to the Federal Court late on Friday seeking an urgent injunction to stop Qantas firing them.
Their solicitor, Rob Grealy, told the court Qantas’ mandate was contrary to its obligation to provide a safe workplace, and that the company had not properly assessed the risk of available COVID-19 vaccines.
“Qantas is effectively mandating an experimental medication,” Mr Grealy said. “They have no evidence to show that they are safe.”
Justice Kylie Downes said there was nothing before her to support that claim, but Mr Grealy said he would call “a number of scientific and medical experts” to give evidence.
Mr Grealy also argued that Qantas’ staff survey about vaccination ahead of announcing its policy was not sufficient consultation, and that state public health orders also mandating vaccination in the aviation industry were unlawful because they were inconsistent with other legalisation.
However, Justice Downes said Mr Grealy had not identified what that other legislation was, making it “difficult for me to form a view as to whether that submission has any proper basis”.
Justice Downes dismissed the employees’ application for an injunction, which would have also halted Qantas’ six-step disciplinary action process for un-vaccinated workers that can lead to their employment being terminated.
Qantas’ barrister, John Sheahan, QC, said the workers did not have a valid case, but the company had agreed to some undertaking so that the legal challenge could be resolved as quickly as possible.
The airline would not sack any of the applicants until the court rules on the case, which is expected to be heard in March. But it will proceed with other disciplinary action, including informing them it had decided to terminate their employment and standing them down without pay. Nineteen of the 24 applicants are still being paid currently, Mr Sheahan said.
Justice Downes noted that the employees were aware since September at the latest that they would need to be vaccinated to continue to work at Qantas.
“It is therefore difficult to understand why, on the 21st of January, 2022, in the afternoon on a Friday, an urgent application is brought by the applicants, some two months after the date by which they were required to be vaccinated has past,” she said.
The Fair Work Commission stuck down BHP’s attempt to enforce a jab mandate at its Hunter Valley coal mine in early December, in a blow to private sector jab mandates, after finding the mining giant had not consulted properly with staff. But the commission waved through the mandate a fortnight later, after BHP conducted further discussions with employees and their health and safety representatives.
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