A Federal Court judge has ordered the lawyer representing unvaccinated Qantas workers to rewrite their case against the airline’s vaccine mandate for the third time, stating the current case is “unclear” and “unsatisfactory”.
Last month, a group of 24 Qantas workers filed legal action against Qantas in the Federal Court, arguing that the airline’s mandatory COVID-19 vaccination policy was unlawful.
The group, which includes pilots and engineers from both Qantas and Jetstar, have claimed that the mandate violates the Fair Work Act and privacy laws.
On Monday, Federal Court Justice Darryl Rangiah – who has repeatedly expressed his concern about the lack of clarity in the complainant’s case – requested that the lawyer representing the group rewrite the case for the third time.
The complainant’s lawyer Rob Grealy again promised on Monday to produce medical and scientific evidence in support of his case that Qantas’ decision to introduce a COVID vaccine mandate for all staff was discriminatory and unlawful.
“There are circumstances in which the Human Rights Act allows discrimination or impingement on human rights where those circumstances are serious enough to warrant that sort of conduct,” Grealy said.
“In our view, the risk posed by the virus in the Qantas workplace was not significant enough to warrant the vaccination mandate.”
Justice Rangiah replied to this stating Grealy’s “position ultimately might not matter”.
“The pleading to me seems to be unsatisfactory. It’s unclear, it’s scrambled, some of the order of what is alleged doesn’t seem to make sense and some of the allegations, it’s difficult to determine their relevance,” Justice Rangiah said.
“What I think is going to have to happen, it’s going to have to be pleaded in a succinct and clear way so that I can understand clearly for example on what basis you say the directions were unreasonable or unlawful. I just don’t have that clarity at the moment.”
Justice Rangiah also suggested that Grealy consult additional legal counsel before rewriting the case for the third time, “given that is an underrated specialist skill”, in order to make the claim clearer.
The unvaccinated Qantas workers’ team has been given until 4 March to file a new application to the court, which will be heard on 30 March.
Qantas announced in August 2021 that all frontline staff across the group, including pilots, cabin crew and ground services workers would be required to be fully vaccinated against COVID-19 by 15 November, or face dismissal.
After lodging their class action case with the Federal Court last month, the unvaccinated workers also applied for an urgent interim injunction to prevent Qantas from enforcing disciplinary action under the policy, allowing them to keep their jobs throughout the legal proceedings.
The injunction was denied due to insufficient evidence.
At the interlocutory hearing last month, Grealy argued that Qantas had “failed to undertake sufficient investigation into the safety of the available vaccines” before implementing the company-wide mandate.
“We also say the requirement that employees provide copies of the vaccination certificate to be uploaded to a database is a breach of the Privacy Act,” Grealy argued.
However, when pressed on his claims that the COVID vaccines are unsafe, Grealy was unable to produce supporting evidence.
Justice Kylie Downes replied that the claim made was “based on his assessment … There’s no evidence before me from an expert saying this.
“It’s your opinion, and you’re a solicitor.”
The court also heard the unvaccinated workers argue that overall, government public health orders were not lawful, due to being “inconsistent with other legislation which takes precedence”.
However, the group were “unable to identify with precision the other legislation” they were referring to.
Ultimately, Justice Downes dismissed the application, due to insufficient evidence that the workers would suffer harm if the immediate injunctions weren’t granted.
Justice Downes told the court it was “difficult to understand” why the applicants waited until after the policy deadline to make an application for “urgent relief” from disciplinary action.
“The applicants have been aware since July but certainly by no later than September that the Qantas Group would require them to be vaccinated as a condition of their continued employment,” she said.