Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291

In Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291, the High Court upheld an application for judicial review challenging the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 on the basis that it is an unjustified limitation on specific rights under the New Zealand Bill of Rights Act 1990.

The Order mandated vaccinations for Police and Defence Force staff. The proceedings were brought by three workers affected by the Order — they did not wish to be vaccinated and faced termination if they failed to do so by 1 March 2022.

The Court upheld the applicants' claims that the Order was an unjustified limit on their right to be free to refuse medical treatment under s 11 and their right to manifest religion or belief provided under s 15 (the latter on the basis that the Pfizer vaccine was tested on cells derived from a human foetus). Cooke J observed that the Order was implemented to ensure the continuity of public services, and to promote confidence in those services (as opposed to limiting the spread of COVID-19). However, there was no evidence or explanation before the Court as to how a limited number of unvaccinated personal (164 police workers and 115 Defence Force staff, including civilian workers, out of a workforce of approximately 11,000 Police and 15,480 Defence Force) would materially affect continuity of services or public trust in the provision of such services.

The Court was not satisfied that the Order advanced the purpose for which it was created; the number of workers affected across Police and the Defence Force was small, and there was nothing to suggest internal vaccination policies could not achieve the objective. Further, the emergence of the Omicron variant meant that a threat existed for both vaccinated and unvaccinated staff and the Order did not make a material difference in that regard.

The High Court made it clear that the judgment only related to the mandate for Police and Defence Force staff. However, it provides a useful reminder to employers more generally that the justification or otherwise for workplace vaccination policies changes over time.

See the What's New in Employment Law for details on where this significant case is discussed in the product.

Changes to vaccination mandates

Following this case being decided, the Government has announced major changes to the COVID-19 Protection Framework, including changes to vaccine mandates. These take effect from 11:59pm on Monday 4 April 2022.

The Government announced that, in line with the public health advisory group advice, it will not require mandates to be in place for education, police and defence workforces and those businesses operating vaccine passes from 11.59pm Monday 4 April. (See press release <www.beehive.govt.nz/speech/post-peak-plan-safe-return-greater-normality>.)

Prime Minister Jacinda Ardern stated:

“Whether or not these workforces will continue to need to be vaccinated to do their work will be a decision for their employers or those otherwise responsible for those workforces.

“We will be continuing [mandates] for health, aged care workers, corrections staff, and border and MIQ workers.

“The rationale in each case is clear, these are either workers supporting our most vulnerable, or they work in high-risk environments where spread would be rapid, or the exposure to new variants is high.”

Ardern went on to state:

“We know that Government were not the only ones to use mandates, in fact many of the mandate examples I have heard used are those that were applied by the private sector. Given the adjustments we are making today, MBIE is working to update advice to the private sector on their use more broadly.”

Businesses will be able to voluntarily introduce workforce vaccination requirements if “appropriate to the workforce”. See <covid19.govt.nz/traffic-lights/changes-to-the-traffic-light-system>.

Specific employer and employee guidance can be found at <www.employment.govt.nz/leave-and-holidays/other-types-of-leave/coronavirus-workplace> and <www.worksafe.govt.nz/about-us/news-and-media>.

Commentary in Employment Law will be updated to explain the changes.