Originally Posted by
theheadmaster
Xeptu, several times you appear to question the ability of employers to mandate vaccination as the COVID vaccine has not been ‘legislated’. I suspect that you may be confused as to what legal system we use in Australia. We are a ‘common law’ country as opposed to a ‘civil law’ country. Civil law is based on all laws being codified. In common law countries, law is based on laws that are codified (such as legislation) and also on the common law (judge made law) and equity. As an employee of Qantas, pilots will be subject to their obligations under statute, their enterprise agreement and also their common law obligations. One of those common law obligations is to follow a lawful and reasonable direction from their employer. The article linked above describes that obligation in the context of vaccination. For information, one of the people providing information in that article is Andrew Stewart. Those that have studied employment law would recognise him as the person that literally ‘wrote the book’ on Australian employment law.
I can see the argument for application of common law where the matter falls outside of that which legislation applies as is the case in this instance. Then it would come down to a
lawful and reasonable direction and I think that's where the issue is given where the vaccine was at the time the mandate was made, if in fact there has been such a mandate.
It will make for an interesting legal argument, not one that will be decided in the FWA.
Further: Given vaccinations fall under health as a medical procedure, I doubt it will or would have been deemed lawful and reasonable.