A senior South Australian employment lawyer says fruit and vegetable processor SPC's mandatory COVID vaccination plan is likely to meet a legal challenge.
But DMAW Lawyers senior associate Kylie Dunn said it was unlikely the Shepparton company's policy would act as a test case for other businesses.
SPC has announced a timeline for mandatory vaccination, a policy strenuously opposed by the Australian Manufacturing Workers' Union.
"Everybody is very much watching SPC to see how this plays out," Ms Dunn said.
"They are the first employer to introduce a mandatory vaccination policy, in circumstances where there isn't any public health order, or direction, from a state government they can point to as the basis for what they are doing.
"We are in a situation where the issue isn't known because it hasn't been tested in any court or tribunal, thus far."
She said given the size of the workforce at SPC, she was expecting that someone would mount a challenge to the policy.
It could be that an employee refused to be vaccinated, and their employment was terminated.
"It could an unfair dismissal, it could be a claim for adverse action, prior to any dismissal, there could be a discrimination type claim made, or either an employee or SPC tries to seek a declaration from a court [mandatory vaccination] is, or isn't, a lawful policy."
The AMWU has said it doesn't want to go down the legal path, but will do so if it has to.
No silver bullet
Ms Dunn said a court or tribunal decision would be "informative" for other businesses operating in a similar way and industry to SPC.
"Because these legal issues are assessed on a case by case basis, I don't think any outcome will be a silver bullet for all businesses."
The issues the court or tribunal would consider would be specific to SPC.
"It may that some businesses will be able to rely on any decision we get from a court or tribunal, but the vast majority of businesses, I don't think, will be able to point to that court or tribunal decision and rely on it."
It was then likely several different businesses would "take it on themselves" to do what the government didn't want to do, which was to mandate vaccination.
"We will have a number of simultaneous test cases, or challenges, brought and that will be somewhat more informative than SPC.
"All we have now is a bit of a wishy-washy legal test of what constitutes a reasonable direction for an employer to give.
"That depends very much on a particular business, with a particular employee.
"Neither employers or employees have certainty about what that means with respect to the COVID vaccination."
We are in a situation where the issue isn't known because it hasn't been tested in any court or tribunal, thus far.
Ms Dunn said if the matter went to court or a tribunal, it could take months to determine.
"That would depend on the kind of application, or claim, that was made," she said.
If an SPC employee were sacked, they would have 21 days to bring an unfair dismissal claim.
"If the claim was not resolved, or if it's resolved in a settlement context, that doesn't provide any guidance for the rest of us, because there would not be a binding decision," she said.
"It would proceed to trial and a binding judgement and it could be the middle of next year before we received a judgement, given that that the claim would not be brought until Christmas."
The court might prioritise a declaration about the lawfulness of the decision.
"That said, I expect any court hearing that application would want to take care to give it their full attention, given its the first time someone has brought that kind of application."
Australian Meat Industry Council chief executive Patrick Hutchinson has said the organisation is reluctant to follow the lead of SPC and advise members to adopt a 'no-jab, no job policy.
But the Australasian Meat Industry Employees Union state secretary Paul Conway said his organisation did not support what he said was a no-jab, no-job "mentality".
"We support the roll-out of vaccines and making them easily accessible to meat industry workers," Mr Conway said.
"We believe each individual needs to make the decision as to whether or not they get the vaccine."
- courtesy Stock and Land, Victoria.
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