Cervenjak v State of Queensland (Department of Children, Youth Justice & Multicultural Affairs) [2022] QIRC 363

Date: 20 September 2022
Tribunal: Queensland Industrial Relations Commission.
Judicial Officer: Power IC
Human Rights Act 2019 (Qld) Sections: s 17
Rights Considered: Right to protection from torture and cruel, inhuman or degrading treatment
Other Legislation: Industrial Relations Act 2016 (Qld), ss 562B, 562C; Public Service Act 2008 (Qld), ss 11, 98, 137, 187, 194; Work Health and Safety Act 2011 (Qld), ss 19, 27, 47, 48.
Keywords: Education, Training and Employment

This case concerned an appeal of a disciplinary findings decision and suspension without pay decision due to non-compliance with the COVID-19 vaccination requirement policy. The appellant contended that the policy meant he had been subject to medical experimentation without his full, free and informed consent. The Commission considered this was not the case due to the approval of COVID-19 vaccinations by the Australian Technical Advisory Group on Immunisation and the Therapeutic Goods Administration. The Commission further concluded that any limits on human rights were reasonable and justified in the interests of public health and safety.

The case concerned an appeal pursuant to s 194 of the Public Service Act 2008 (Qld) of a disciplinary findings decision and suspension without pay decision due to non-compliance with the COVID-19 vaccination requirement policy.

The appellant contended, inter alia, that s 17 of the Human Rights Act 2019 (Qld) was engaged as the COVID-19 vaccination requirements policy involved 'medical or scientific experimentation or treatment without the person's full, free and informed consent': at [29]. The appellant also argued that the decision did not consider and properly address his inability to give such consent because the respondent had not informed the appellant on how the COVID-19 vaccination would impact his body: at [15]. The respondent contended, inter alia, that the appellant remained free to not receive the COVID-19 vaccines or discontinue his employment, and any alleged limits on human rights are reasonable and demonstrably justified in the interests of public health and safety: at [19].

The Commission considered that the appellant had not been subject to ‘medical experimentation’ as COVID-19 vaccinations are approved for use by the Australian Technical Advisory Group on Immunisation and the Therapeutic Goods Administration: at [29]. Moreover, although there may well be consequences for his employment, the appellant remained free to not receive the COVID-19 vaccinations: at [29].

The Commission was satisfied that the decision, which determined that any limits on human rights were reasonable and justified in the interests of public health and safety, demonstrated consideration of the Appellant's human rights: at [29].

The Commission confirmed the decisions appealed against.

Visit the judgment: Cervenjak v State of Queensland (Department of Children, Youth Justice & Multicultural Affairs) [2022] QIRC 363