Federal Court upholds decision to stand down unvaccinated workers without pay

This decision is particularly significant as the Federal Court considered both the public and private commercial interests of DP World alongside the potential risk of COVID-19 infection.

The proceedings arise following DP World’s actions of over the past few weeks in which 44 of its 1800 wharf workers including 21 workers stationed at Sydney’s Port Botany and 10 in Melbourne were terminated because they refused to get vaccinated. Maritime Union of Australia (MUA) sought orders from the court to stop DP World’s termination of a further 11 unvaccinated workers in Brisbane on the basis that the COVID-19 risk profile in Queensland was different than in New South Wales. DP World’s introduction of a vaccination mandate followed its forced shutdown and isolation of several NSW workers following a number of positive COVID-19 cases.

Counsel for the workers, Mr Jeremy Sweeney, argued that there was zero evidence that the risk of COVID-19 was significantly different if 100 as opposed to 90 workers received the vaccination. The Court also heard from Mr Jamie Darams, counsel for the workers, who maintained that transmission of the COVID-19 Delta strain could easily occur in Brisbane as was the experience in New South Wales, with potential consequences for other wharf workers and stevedores including the shutdown of Queensland’s only container port. Furthermore, Mr Darams noted that the workers’ objections to the vaccine were subjective and unsupported against the weight of common public knowledge. He also told the court that DP World’s vaccination policy was imposed for the safety of all persons in the workplace.

In an interim decision, Justice John Logan found that DP World was entitled to adopt and implement a policy based on experience elsewhere in Australia. Furthermore, considering Queensland was scheduled to reopen its borders on 17 December 2021, Justice Logan ruled that MUA’s argument that DP World’s mandate was unreasonable on the basis of differences between the COVID-19 risk profile in Queensland and New South Wales was not compelling.

It is noteworthy that alongside the risk of COVID-19 infection, Justice Logan also considered the commercial consequences, stating that, ‘[t]he experience in NSW of the company in relation to interruption of that supply chain is instructive both in terms of a legitimate private commercial interest as well as…a public interest in relation to minimisation of supply chain interruption.’

Ultimately, Justice Logan rejected MUA’s seeking of interim orders that the wharf workers be paid until a final decision on the mandate was reached.

Importantly, DP World has committed not to terminate its workers prior to a final decision being handed down by the courts in late December. However, MUA states that Justice Logan’s interim decision will cause wharf workers to seek employment elsewhere on the basis that they cannot afford to wait for several weeks without pay. On the issue of loss of wages, Justice Logan considered that this could be remedied through employment termination payments as well as damages.

This decision is in line with the recent approach taken by courts in which the termination of employees refusing vaccination following the implementation of a vaccine mandate has been upheld. In early November, as detailed in our previous update, the Federal Court also dismissed an application for interlocutory relief seeking to stop Monash Health from terminating the employment of nurses refusing the COVID-19 vaccine or to disclose their vaccination status.