Dissenting Report
1.1The COVID-19 pandemic saw unprecedented government powers used to try to protect Australians, these included lockdowns, travel restrictions and the cancellation of events. While all of these restrictions have ended, vaccine mandates remain. For those locked out of work due to vaccine mandates, the coronavirus pandemic is not over.
1.2The Fair Work Amendment (Prohibiting COVID-19 Vaccine Discrimination) Bill2023 (the bill) amends Australia’s workplace laws to make it illegal for an employer to discriminate against someone because of their COVID-19 vaccination status. The Bill provides that a person’s ‘COVID-19 vaccination status’ cannot be used by an employer to take ‘adverse action’ against an employee or prospective employee. Such ‘adverse action’ includes not hiring a prospective employee, dismissing an employee, and altering the position of the employee to the employee’s prejudice.[1]
1.3In effect, this bill would ensure that someone could not be sacked, or denied employment, due to whether or not they have had a COVID-19 vaccine, similar to how someone cannot unreasonably discriminate against someone based on their sex, marital status, race and other reasons.
1.4COVID-19 vaccine mandates did nothing to materially stop the spread of coronavirus in Australia. Their continuing imposition, however, causes massive heartache for the people who are denied the fundamental right to provide for their families. They also exacerbate the workforce shortages that are crippling the provision of health and other essential services for Australians.
1.5Vaccine mandates were never a good idea but they are now well past their use by date and should be removed.
1.6Of the 132 public submissions and 281 confidential submissions received for this inquiry, opposition to these two bills came from a small number, some indicating that the bills did not go far enough in preventing vaccination discrimination.[2]
1.7Coverse, in its submission, argued for the inclusion of broader protection of ‘vaccination status’, to ensure protection for any similar discriminatory issues stemming from refusal of any mandated vaccine in the future, not just those for COVID-19.[3]
1.8A contrary view was expressed by the New South Wales Council of Civil Liberties (NSWCCL) stating that:
…the Bills unreasonably and disproportionately protect the unvaccinated at the expense of the rights of other members of the community. Based on the generally accepted medical science, the Bills are incompatible with human rights.[4]
1.9NSWCCL goes on further to state that the bills:
…could cause an ‘imbalance between the important task of protecting the choice to be unvaccinated and protecting the wider community from infections of COVID-19.[5]
1.10Public sector bureaucracies (most notably state health and education systems) continue to pursue sanctions and penalties against workers who did not obey vaccine mandates—in some cases despite the fact the mandates in question have been lifted.
1.11There is a well-established human right to work. Australia has been a signatory to the International Covenant on Economic, Social and Cultural Rights (IESCR) since 1972. Article 6 (1) of the IESCR states that:
The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.[6]
1.12The imposition of vaccine mandates restricted the basic right of a person to work and provide for his or her living.
1.13The Department of Employment and Workplace Relations (the department) stated in its submission that:
…the addition of COVID-19 vaccination status as a protected attribute in the FW Act …would be likely to increase what is already a complex area of law.[7]
1.14However, avoiding complexity in law is not a legitimate reason to restrict someone’s basic human rights. Australia has traditionally taken its human rights obligations seriously. Arguing that we cannot protect a human right because it would make our laws too complex is not consistent with our good human rights record.
1.15A restriction of someone’s right to work can only be justified if it is made to help protect some other human right. In this case, the only possible justification to restrict someone’s right to work would be if it was necessary to protect someone’s right to life.
1.16Those who supported vaccine mandates argued in favour of them because they believed that they would help limit or stop the spread of coronavirus and therefore potentially save lives. For example, on 15 September 2021, the then-Premier of New South Wales, Gladys Berejiklian, said:
Remember that people might say well if you’re not vaccinated, that’s on you and you might get sick—well, no. Unvaccinated people spread the disease more readily. So if you’re in a venue or somewhere and there’s unvaccinated people [you have] more chance of contracting the disease from them because they don’t have that protection.[8]
1.17In January 2022, the Premier of Victoria, Daniel Andrews, said:
At the moment two doses are protecting the vast majority of people from serious illness, but it’s only with three doses that you’ll be prevented, not just from serious illness but from getting this virus, this Omicron variant, and therefore giving it to others.[9]
1.18The key question then is whether the coronavirus vaccines do in fact stop or significantly restrict the transmission of the virus such that lives are saved. Without this test being met there is no justification for someone’s right to work to be limited.
1.19It is patently clear that coronavirus vaccines have not stopped the transmission of the virus. In August 2021, Australian governments commissioned modelling that in part looked at how coronavirus would spread in Australia at different rates of vaccination. The modelling was conducted by the Doherty Institute.
1.20The Doherty modelling predicted higher vaccination rates would lead to fewer coronavirus cases. At an 80 per cent vaccination rate the Doherty modellers predicted that there would be 280 000 coronavirus cases in Australia in the sixmonths after lockdowns and border restrictions were removed. The actual record showed that Australian recorded 5.9 million cases of coronavirus cases six months after restrictions were removed.
1.21The science clearly demonstrated that the hypothesis of the Doherty modelling– that higher rates of vaccination would limit the spread of coronavirus–was wrong.
1.22This should not have been a surprising conclusion given that there was never much evidence that the vaccines stopped transmission. Under questioning from this Committee Pfizer admitted that:
The BNT162b2 (Comirnaty) trials were not designed to evaluate the vaccine’s effectiveness against transmission of SARS-CoV-2.[10]
1.23If the vaccines were not tested in regards to transmission, how did authorities confidently say that a vaccine would help stop transmission?
1.24As the Australian Medical Professions Society (AMPS) stated in its submission:
The vaccines were never tested for any alleged effectiveness in stopping transmission of Covid-19 from person to person. Any efficacy wanes quickly. Revelation of these facts demonstrates that the control measure fails to accomplish the goal of stopping the spread of Covid-19. Health Directives and orders were justified on the grounds of stopping or reducing community spread or transmission; there was no available evidence then or now that showed the vaccines could achieve such a goal. We consequently believe it is reasonable to demand health professionals have access to the health advice that forms the basis of what the government or an employer deems ‘a reasonable and justified requirement of the job.’ Government data indicate very few health care employees meet the current definition of fully vaccinated.[11]
1.25AMPS asserted there was ample evidence available at the time mandates were legislated to clearly indicate the risk of harm to employees from these unsafe and ineffective control measures.
Now, there is even more such evidence available. Health care workers should not be excluded from the anti-discrimination bill and any medical procedure deemed an inherent requirement for employment through the Fair Work Act must be fully approved and proven beyond reasonable doubt safe and effective.[12]
1.26Notwithstanding the lack of testing, on 1 April 2021, the Pfizer CEO tweeted:
Excited to share that updated analysis from our Phase 3 study with BioNTech also showed that our COVID-19 vaccine was 100% effective in preventing #COVID19 cases in South Africa. 100%![13]
1.27In its response to the Committee, Pfizer claimed that:
There are a number of independent real-world data studies which have reported some benefit of COVID-19 vaccination on reduction of disease transmission. This benefit has differed based on the variant that was dominant during the study periods.[14]
1.28However, Pfizer did not reference any of these studies and, in any case, Pfizer admitted that:
As per the World Health Organisation, there could be a modest impact on transmission for the mRNA vaccines.[15]
1.29A claim that there ‘could be a modest impact on transmission’ is hardly a ringing endorsement of the effectiveness of vaccines. And, it is well short of the kind of evidence that should be required to violate the fundamental human right to work and provide for one’s family.
1.30In addition, while the Pfizer CEO strongly promoted the earlier view that vaccines were ‘100% effective’, Pfizer could not point the committee to any other statement it had made which updated this conclusion as per the World Health Organisation (WHO) advice that vaccines could have only a modest impact on transmission.
1.31Of all the restrictions imposed during the COVID-19 pandemic, the imposition of vaccine mandates is perhaps the one that has been imposed with the flimsiest of evidence and caused the greatest degree of harm.
1.32Whatever the views people had at the time of the rollout of the vaccines, it is now abundantly clear that the vaccines do not significantly reduce the transmission of coronavirus. The only thing that seems to be keeping vaccine mandates around is a stubborn refusal to admit a mistake.
1.33While we cannot correct the mistakes made during the pandemic we should be courageous enough to admit where things went wrong and correct our decisions as soon as possible. Those who continue to be out of work because of vaccine mandates deserve this at the very least.
1.34While most vaccine mandates have been lifted, there remains mandates across some industries including in both the public and private sectors.
1.35As the department stated in its submission to the committee:
The Australian Capital Territory, Victoria, and Queensland still require COVID-19 vaccination in some high-risk settings, such as for aged-care workers.[16]
1.36In addition, a number of private employers continue to impose vaccine mandates and people continue to have their employment impacted by coronavirus vaccine mandates. The Fair Work Commission revealed to the committee that it has received 4250 applications related to vaccines.[17] These applications were covered issues across six categories including unfair dismissal claims; unlawful termination claims; general protections disputes; applications for orders to stop bullying at work; stand down disputes, and dispute notifications under a modern award or enterprise agreement.
1.37The committee received many submissions from people that continue to be impacted by vaccine mandates, although many of these were from people who wished to remain anonymous for obvious reasons:
There is now a process underway where my original employer is being taken over by a larger organisation. This larger organisation has taken on all employees, including remote employees, as it intends for the original business to continue in its same form so as to provide the same services to their larger client base.
My position was also to continue however my conditions have changed in that vaccine is now mandated for me as a remote worker.
As such, I have been told my employment will be terminated as of 30th April 2023 as I am now deemed a safety risk to the employees and members of the incoming organisation.[18]
1.38The committee has heard heartbreaking stories of long-serving and highly qualified nurses, teachers, police, ambulance, emergency services officers (and volunteers), childcare workers, aged care workers, disability care workers, hospitality workers, pilots, and flight attendants—all being turned away, stood down, asked to show cause why they should keep their job and ultimately sacked.
1.39Many submissions contained personal stories from nurses and aged-care workers with varying levels of experience, about losing their jobs when mandates were instituted across the country.
I was working as an AIN (assistant in nursing) on Stroke/Neuroscience ward at one of the private hospitals in since February 2009. I loved my job, helping people, being there to support them when they are most vulnerable. I loved providing high quality of care to patients and making a difference in their hospital stay.
I remember to this day when the Covid-19 vaccines were made to be mandatory in the health care system.
I was given an ultimatum, to either take the vaccine or I lose my job. Initially I have requested to go on long service leave to think about it all, which was rejected. A request letter was written to HR, but my request has fallen on deaf ears.[19]
1.40And in another submission:
As a health professional who has lost my job due to the vaccine mandate implemented in response to the COVID-19 pandemic, I am writing to express my concerns and share my experience.
First and foremost, I want to acknowledge the severity of the pandemic and the importance of taking measures to control its spread. However, the vaccine mandate has resulted in the loss of my livelihood and those of many of my colleagues who are also dedicated healthcare professionals.
As someone who has worked in the healthcare industry for 20+ years, I understand the importance of vaccines in protecting public health. I have administered countless vaccines throughout my career and encouraged others to get vaccinated. However, mandating vaccines as a condition of employment is a violation of my personal choice and bodily autonomy.[20]
1.41In addition to the impact on peoples’ livelihoods, vaccine mandates have exacerbated skills shortages in critical sectors like health, education, retail and hospitality, police and emergency services. These strains are being felt by the workers who still work in the industry, as outlined in an anonymous submission to the inquiry:
I am a healthcare worker with 16 years of experience in acute healthcare and healthcare management. Since December 2021 I have fought to continue to practice and continue to contribute during an unprecedented time of pressure and strain on the health service as a result of being unwilling to comply with mandatory vaccination to COVID-19 as exists in my jurisdiction.
Unfortunately pressures on an already strained health workforce were and continue to be greatly exacerbated nationally by COVID-19 vaccine mandates and discrimination. I have personally seen the effects of the mandates across my state with significant numbers of healthcare workers who with great personal anguish have elected for early retirement, have reluctantly resigned, or have been forced into misconduct processes with their employers, often resulting in termination as a result of their unwillingness to take these experimental vaccines. Although some healthcare workers happily and voluntarily elected to take these vaccines, I am also personally aware of many healthcare workers who were vaccinated who would not have had these vaccinations and boosters unless they had been mandated as a condition of their ongoing employment. Their primary reasons for compliance being that they did not want to lose their well-established career with the prospect of never being able to work in health again, or be unable to sustain the financial hardship suffered from being unable to practice / work, resulting in having to sell their family homes.[21]
1.42These are not the only industries that the committee received submissions about, but considering the critical shortages being faced in these sectors, ensuring that the COVID-19 vaccines do not continue to be mandated is essential to increase the pool of experienced, and new workers into these areas.
1.43Given the urgency presented by the pandemic, governments prioritised the need to find a way to reduce the risk and transmission of COVID-19. Multiple vaccines were developed in a condensed timeframe to combat the virus. This resulted in a more truncated timeframe for safety and effectiveness testing than would otherwise typically have been required for new drugs to receive approval.
1.44With the benefit of hindsight, we are now aware that the vaccines are not as safe as initially thought when they were first ‘approved’ for widespread use.
1.45This has resulted in some vaccines no longer being approved for use by the Therapeutic Goods Administration (TGA), like the AstraZeneca vaccine, widely used in 2020-21, being delisted on 21 March 2023.
1.46Safety concerns were the predominant reason, outlined in many submissions to this inquiry, why people did not want to get vaccinated.
1.47A lack of understanding of the difference in status and effectiveness of the COVID-19 vaccination was evident in several submissions.
The department’s view is that COVID-19 vaccinations should be treated in the same way as other vaccinations and that the amendments proposed by this Bill are therefore unnecessary.[22]
1.48There have been many reports of adverse reactions, some unfortunately causing death, directly attributed to the COVID-19 vaccine. The committee heard from Ms Deborah Hamilton about the tragic circumstance of the death of her daughter:
My name is Deborah Hamilton and my healthy 21 year old daughter Natalie Boyce died from the Moderna vaccine on the 27/03/22. She is recognised as the 14th death in Australia by the Therapeutic Goods Association from the vaccine.
My daughter’s workplace was mandated to have all employees have the vaccine as per Daniel Andrews and the Victorian Government rules. Deakin University where she was studying also mandated vaccines to attend. Natalie only had this vaccine to follow these rules so she could continue to work and study.[23]
1.49The committee also heard from Ms Hamilton that when a death was determined to be as a result of the vaccine, the direct family was not notified about the cause of death, but rather learned this information from a public report available on the TGA website:
It was 23 September. If you go on the media release report—I think it is safety vaccine report—they say ‘a female in her 20s’; they don’t say ‘21-year-old’. It is just one little paragraph and it says they did an independent safety panel and that is how I discovered it online… I was not told. When I read it I was told. But when they had a meeting after the newspaper article with me, they then blamed the coroner’s office—that they should have communicated it to me.[24]
1.50This tragedy was made worse by the lack of action from the government scheme set up to help compensate victims of adverse vaccine events.
The TGA told me to do it (seek compensation via the government scheme) when I did have that meeting and they gave me the dedicated director of complex claims… I have sent follow-up emails but he just ignores them…I sent him an email saying, ‘Can you advise what is happening with this?’ and he won’t respond.[25]
1.51Serious concerns about safety and being unable to access any form of compensation if the vaccine results in the person being unable to continue to work means that people are less likely to get vaccinated, increasing the pool of people who will not want to be vaccinated.
1.52The committee also received many submissions from people who had valid medical exemptions for not receiving the vaccine, including from those who had an adverse reaction to the first dose which prevented them from having a second dose.
I had my first dose of Pfizer on the 19th December 2021. The only reason I did this was because I am a teacher, and it was mandated by the Department of Education (under Public Health Order of NSW Government) that all staff were required to have 2 doses of the vaccine and show proof of being vaccinated to be permitted to return physically to school premises. About one week later I developed a severe blistering body rash. I also experienced heart palpitations, nausea, numbness and tingling on the left side of my body. On the 1st January 2022 I went to the emergency department of Concord Hospital. The doctor in the emergency ward did note after consultation with a dermatologist, that the vaccine was most likely the cause. From here I was referred to a cardiologist, dermatologist and immunologist… After several consultations with the immunologist, it was recommended that no further vaccination (from any of the 4 manufacturers) be conducted due to high risk of further reactions. The immunologist also commented that even if I were to get Covid, it would be very unlikely I would be hospitalised due to my good health condition and age. The immunologist then gave me a medical contraindication (IM011) and an accompanying letter to explain everything to my principal. He also noted that he would be happy to clarify any questions my principal may have. The principal never contacted the immunologist. I was very transparent with the school regarding my vaccine injury and gave the school all relevant paper as soon as I received it. I did everything needed to meet the Public Health Order for teachers in place at the time. Despite all of this I was not allowed to return to work… Not only was I required to show proof of receiving two doses of the vaccine, when I did present my medical contraindication, it was rejected, and I was terminated.[26]
1.53COVID-19 vaccination mandates were brought in under the justification that the vaccinations would reduce the spread of the virus, a claim which we now know was not based on evidence.
1.54As the global population became vaccinated and growing evidence became available that the vaccine did not stop transmission, there should have been a rollback of the policy, especially as evidence of more serious safety concerns also became known.
1.55People should have the right to be able to work and provide for themselves and their family without undue coercion, and without mandating a vaccine with growing evidence of safety issues.
1.56Australian governments’ reluctance to acknowledge their mistakes in this regard continues to cause unnecessary distress for Australian families, leaving many sectors without experienced staff.
1.57These ongoing vaccine mandates have no scientific justification, a view now backed up by Australia’s former Chief Health Officer, and Secretary of the Department of Health. On 1 June 2023, during Senate Estimates hearings, Professor Brendan Murphy, was asked about the need for ongoing COVID-19 vaccine mandates, responding that:
At this stage in the pandemic there is little justification for vaccine mandates. We have a highly vaccinated population… In some healthcare settings early on, particularly when the risk of transmission was high—and the vaccines, in the early phase, did prevent transmission—I think they were proportionate. Personally—I am not speaking for the government; I’m speaking as a clinician—I think the proportionality of vaccine mandates is no longer justified.[27]
1.58It is not over for the many thousands of Australians who remain locked out of their jobs by COVID-19 vaccine mandates. Public sector bureaucracies (including health, education, police and fire services) continue to pursue sanctions and penalties against workers who did not obey vaccine mandates—in some cases despite the fact the mandates in question have been lifted.
1.59There is absolutely no evidence for the continuation of COVD-19 vaccine mandates. This vaccine mandate madness protects no-one’s health because it has been demonstrated beyond doubt the mandated COVID-19 vaccines are not preventing transmission or infection.
1.60We must defend and protect individual’s human and workers’ rights. Public and private sector employers are ignoring the evidence against unjustified vaccine mandates.
1.61A clear message needs to be sent that unreasonable directions that infringe on workers’ rights have no place in Australian workplaces. Any business that sacks someone for not getting a coronavirus vaccine now should be guilty of unfair dismissal.
Recommendation 2
1.62That the Senate pass the Fair Work Amendment (Prohibiting COVID-19 Vaccination Discrimination) Bill 2023 to ensure that Australians are not discriminated against for choices about their own health.
Senator Matt O’SullivanSenator the Hon Matthew Canavan
Deputy ChairLNP Senator for Queensland
Liberal Senator for Western Australia
Senator Gerard RennickSenator Alex Antic
LNP Senator for Queensland Liberal Senator for South Australia
Senator Ralph Babet
UAP Senator for Victoria
Footnotes
[1]Fair Work Amendment (Prohibiting COVID-19 Vaccine Discrimination) Bill 2023, Explanatory Memorandum, p. 1.
[2]Note: the Fair Work Amendment (Prohibiting COVID-19 Vaccine Discrimination) Bill 2023 was referred to the committee for inquiry alongside a private senator’s bill introduced by Senator Pauline Hanson, the COVID-19 Vaccination Status (Prevention of Discrimination) Bill 2022.
[3]Coverse, Submission 3, p. 5.
[4]New South Wales Council for Civil Liberties, Submission 5, p. 3.
[5]New South Wales Council for Civil Liberties, Submission 5, p. 7.
[6]United Nations, International Covenant on Economic, Social and Cultural Rights,Part 3, Article 6(1).
[7]Department of Employment and Workplace Relations, Submission 1, p. 5
[8]Frank Chung, Yes, they claimed the vaccines would prevent transmission, news.com.au (accessed 25August 2023).
[9]Extract of press conference by Dan Andrews, Premier of Victoria, tweeted by @grantfisher,11January2022(accessed 25August 2023).
[10]Response to Question on Notice taken by Pfizer at the Education and Employment Legislation Committee, Committee Hansard, 3 August 2023.
[11]Australian Medical Professions Society, Submission 4, p. 3.
[12]Australian Medical Professions Society,Submission 4, pp. 3–4.
[13]Tweet by @AlbertBoula, 2 April 2021 (accessed 25 August 2023).
[14]Answer to questions taken on notice at a public hearing in Canberra on 3 August 2023, by Pfizer, answers received on 18 August 2023, p. 1.
[15]Answer to questions taken on notice at a public hearing in Canberra on 3 August 2023, by Pfizer, answers received on 18 August 2023, p. 1.
[16]Department of Employment and Workplace Relations, Submission 1, p. 4.
[17]Ms Katherine Chaffner, Acting Executive Director, Communications, Legal and Organisations Branch, Fair Work Commission,Committee Hansard, 2 May 2023.
[18]Name withheld, Submission 69, p. 1.
[19]Name withheld, Submission 82, p. 1.
[20]Ben Fealy, Submission 22, p. 1.
[21]Name withheld, Submission 62, p. 1.
[22]Department of Employment and Workplace Relations, Submission 1, p. 4.
[23]Ms Deborah Hamilton, Submission 7, p. 1.
[24]Ms Deborah Hamilton, Private capacity, Committee Hansard, 2 May 2023, p. 26.
[25]Ms Deborah Hamilton, Private capacity, Committee Hansard, 2 May 2023, p. 25.
[26]Name withheld, Submission 68, p. 1.
[27]Senate Community Affairs Legislation Committee, Estimates Transcript, 1 June 2023, p. 131
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