If you are like me you probably think Industrial Relation is pretty boring.
It’s usually just a bunch of people arguing over other people’s lives with no real understanding of what it means to the people themselves.
I reckon that’s how it normally goes but this week there was some bombshell statements in a Fair Work Commission (FWC) judgement.
The case itself concerned a worker appealing her dismissal as a worker in an aged care facility for not having a flu vaccine.
The leave to appeal was denied for a variety of reasons.
That was all pretty mundane stuff. I only mention it because what followed, were some very powerful comments byDeputy President Dean who clearly disagreed with the commissions determination.
They relate to Vaccine Requirements in relation to Covid.
This is how she opened it up.
There can be absolutely no doubt that vaccines are a highly effective tool for protection against a variety of diseases. The focus of this decision, however, is not the pros and cons of vaccination. It is about the extent to which mandatory COVID vaccinations can be justified, as to do so impinges on other laws, liberties and rights that exist in Australia.
Her written comments then went through a list of the considerations in respect to mandatory vaccinations addressing some things that many of our politicians and ‘health experts’ have been too scared to touch or haven’t wanted the public to know.
I’m going to take you through what this Deputy President of the FWC wrote. Not just because I agree with her, but because she makes some very important points about freedom.
So lets begin by addressing the concept that vaccinations should be voluntary
The Deputy President accepted the commonly used definition of voluntary and mandatory and quoted the Prime Minister when she said:
“people make their own decisions about their own health and their own bodies. That’s why we don’t have mandatory vaccination in relation to the general population”.
She also documented that the ACTU and the Business Council basically agreed with that position.
Even the Fair Work Ombudsman said:
“the overwhelming majority of employers should assume that they can't require their employees to be vaccinated against coronavirus”
But here’s the killer line in this opening salvo by Deputy President Dean.
Safe Work Australia has publicly stated that “most employers will not need to make vaccinations mandatory to meet their [health and safety] obligations”. (emphasis added)
Despite this, many employers are declaring they will mandate COVID vaccines for their workers, and PHOs are being made by State Governments, in circumstances where there is no justification for doing so.
The next section was written under the subheading Mandatory Vaccination cannot be justified.
This is what she wrote:
Mandatory COVID vaccinations, however, cannot be justified in almost every workplace in Australia.
That all seems pretty clear but she then went on to “set the context with some information that is publicly available and should be uncontroversial:”
I agree what follows should be uncontroversial but for some strange reason it causes normally sensible people to go crazy.
So here goes and remember these are direct quotes from the paper.
Unlike many other vaccinations such as those used to stop the spread of tetanus, yellow fever and smallpox, COVID vaccinations are not designed to stop COVID. They are designed to reduce the symptoms of the virus, however a fully vaccinated person can contract and transmit COVID.
The science is clear in that COVID is less serious for those who are young and otherwise healthy compared to those who are elderly and/or who have co-morbidities. In other words, the risk of COVID is far greater for those who are elderly or have co-morbidities. Around 87% of those who have died with COVID in Australia are over 80 years old and had other pre-existing illnesses listed on their death certificates.
The World Health Organisation has stated that most people diagnosed with COVID will recover without the need for any medical treatment.
The vaccines are only provisionally approved for use in Australia and are accordingly still part of a clinical trial.
There are side effects to the COVID vaccines that are now known. That side effects exist is not a conspiracy theory.
The long-term effects of the COVID vaccines are unknown, and this is recognised by the Therapeutic Goods Administration (TGA) in Australia.
It sounds just like what some of us have been saying for a long-time.
None of this is a conspiracy theory.
None of it should be controversial but I have to ask, why haven’t we been allowed to openly discuss such matters without being condemned as anti-vaxxers or kooks?
But the Deputy President wasn’t finished there.
She highlighted that consent is required for participation in clinical trials.
Deputy President Dean pointed out that all people have a right to autonomy and self-determination over their body and that voluntary consent for any medical treatment has been a fundamental part of Australian and International law for decades.
She then wrote:
“It is legally, ethically and morally wrong to coerce a person to participate in a clinical trial” which is what the TGAs own website confirms these vaccines are.
The Deputy President then point out that one of the most important documents in the history of ethics of medical research is the Nuremberg Code which was formulated in 1947 i n the aftermath of the Nazi doctors grotesque experiments on human subjects.
In part it describes voluntary consent as:
free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion
The Deputy President then covered a number of other human rights obligations before prompting the question, can COVID vaccinations be mandated by employers on health and safety grounds?
Here’s her response:The short answer to this question, in almost every case, is no.
In her final comments, the Deputy President said
The statements by politicians that those who are not vaccinated are a threat to public health and should be “locked out of society” and denied the ability to work are not measures to protect public health. They are not about public health and not justified because they do not address the actual risk of COVID. These measures can only be about punishing those who choose not to be vaccinated.
Blanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of the actual risk, fail the tests of proportionality, necessity and reasonableness. It is more than the absolute minimum necessary to combat the crisis and cannot be justified on health grounds. It is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged.
Australians should also vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID. Science is no longer science if it a person is not allowed to question it.
Finally, all Australians, including those who hold or are suspected of holding “anti-vaccination sentiments”, are entitled to the protection of our laws, including the protections afforded by the Fair Work Act.
Although his comments are in dissent to the judgment rendered by the commission surrounding mandatory flu vaccines, the essence of the message from Deputy President Dean is that we should not surrender our freedoms lightly.
I couldn't agree more.
To read the FWC judgement, including all the comments of Deputy President Dean CLICK HERE
Cory Bernardi is the author of seven books and has been a member of the Australian rowing team, a publican, an investment portfolio manager and spent nearly 14 years as an Australian Senator.
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