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They also have reasons to want to protect both customers and staff from COVID-19. Qantas staff, for example, have been聽聽over workplace transmissions.

蚕补苍迟补蝉听聽of extra frequent flyer points for fully vaccinated passengers, plus ten 鈥渕ega prizes鈥� of a year鈥檚 free travel for familes. Virgin Australia has similar plans. It also has a scheme to encourage its workers to get vaccinated. This will reportedly include the chance to win extra annual leave.

Could they go further and mandate vaccines? This is something Cathay Pacific is doing, telling its Hong Kong-based flight crews they must be vaccinated by August or their聽.

Qantas chief Alan Joyce signalled in November that once vaccines are widely available it will require international travellers to be vaccinated. This implicitly suggests it will require the same from international flight staff.

But the legal ground in Australia for employers to insist that employees be vaccinated remains murky.

Whether Qantas or Virgin 鈥� or indeed any other company 鈥� do so may depend on the case of Queensland regional carrier聽, the first employer in Australia to insist all employees be immunised.

A question of common law

Alliance Airlines specialises in flights to and from mining sites. It is聽, and collaborates with both Qantas and聽.

It announced its mandatory policy for both influenza and COVID-19 vaccinations聽. Its聽聽is to fulfil its duty to employees and passengers. But unions have questioned the policy鈥檚 lawfulness, arguing it is beyond the airline鈥檚 powers.

In Australia, there has been no general government guidance on whether employers can insist on employees getting COVID-19 vaccinations.

This differs to the United States, where the federal Equal Employment Opportunity Commission ruled in December 2020 that employers could (with some exemptions for medical and religious reasons) require employees to be vaccinated.

The Queensland and Western Australian governments have passed legislation mandating workers be vaccinated, but only in certain health and quarantine workplaces.

Whether Alliance Airlines鈥� policy is lawful therefore depends on a general common law 鈥渢est鈥� for determining the validity of workplace policies.

This test asks if a policy or direction is 鈥渓awful and reasonable鈥� given the circumstances. These include:

• the nature of the job, especially where it requires regular interactions with colleagues, clients and suppliers
• if the work can be done remotely, or other reasonably practical precautions exist
• the effectiveness or success rates of the vaccine
• any guidance or directives from government and medical experts
• the circumstances of individuals employee, such as whether they have reasonable grounds to refuse vaccination.

Unfair dismissal cases

Australia鈥檚 Fair Work Commission has demonstrated the balancing act needed to apply these factors in its most recent ruling in an unfair dismissal case involving a refusal to get an influenza vaccination.

罢丑别听聽was brought by Maria Corazon Glover, a 64-year-old community care assistant, against Queensland aged and disability care provider聽, her employer since 2009.

In May 2020, public health orders in Queensland required influenza vaccinations for entry into aged care facilities. Ozcare went 鈥渁bove and beyond鈥� those requirements, mandating the flu vaccine for all its aged care workers, even those who did not work in facilities. Glover, a home-care provider, refused. She said she believed she would suffer an allergic reaction, based on what she understood had happened to her as a child. She was ultimately dismissed.

Commissioner Jennifer Hunt upheld her dismissal despite Ozcare鈥檚 policy exceeding the relevant public health orders and Glover鈥檚 concerns. Hunt ruled those factors were outweighed by the vulnerability of Ozcare鈥檚 clients, the frequency with which care workers visited clients鈥� homes (and their potential to become 鈥渟uper-spreaders鈥�), and the employer鈥檚 鈥減rerogative鈥� to make a decision considered necessary to safeguard its clients and employees 鈥渟o far is practicable to do so鈥�.

Individual circumstances do count

Perhaps the most important takeaway from聽聽is that it was decided on its particular facts. Employers must carefully assess employees鈥� situations to decide if a mandatory vaccination policy is justifiable.

An airline might reason that cabin crew interact with people in environments with a higher risk of COVID-19 transmission and where social distancing is impossible.

But an employee might counter that, unlike aged or disability care workers, they have much less close contact with high-risk, vulnerable individuals.

The case-by-case nature of the reasonableness test means any generalised 鈥渁ll in鈥� vaccination policy is problematic. Even more so if there is employee resistance.

Discrimination may be valid

Employees who are dismissed for refusing to vaccinate might also argue it amounts to discrimination on prohibited grounds such as disability or pregnancy, where COVID-19 vaccination may be unsafe or pose medical risks.

Under the Fair Work Act, however, employers have a valid defence for discriminatory action if a policy or decision is based on the 鈥渋nherent requirements鈥� of the job.

In November 2020, Fair Work Deputy president Ingrid Asbury noted that vaccination against influenza was likely to be an inherent requirement for a position involving caring for young children, and so could be justified for child-care employees.

However, outside high-risk contexts such as child and health care, this defence may be limited and will turn on the employee鈥檚 role and the organisational context.

This article was first published on The Conversation as ''.

Dr Giuseppe Carabetta is an employment law expert from the University of Sydney Business School's Discipline of Business Law.听