Virgin and Jetstar have fended off claims they unfairly fired staff for not taking the COVID-19 vaccine.
Federal Court Justice Stephen Burley rejected proceedings brought by a group of airline workers led by former Virgin pilot Shane Murdock, in a judgment delivered on Tuesday.
Mr Murdock, a failed election candidate for Clive Palmer’s United Australia Party, argued that being forced to take the vaccine exposed employees to a risk of harm and “created a serious and unjustified risk to their health”.
As a result, he claimed they had a “workplace right not to comply with the direction to receive a COVID-19 vaccine” and were unfairly dismissed from their jobs.
Justice Burley dismissed a claim that Mr Murdock and other workers were discriminated against on the basis of disability.
Although the applicants did not claim to have disabilities, they alleged disabilities were “imputed” to them by their employers, including that they were infected with COVID because they were unvaccinated, treated as having mental disorders because they refused to take the vaccine and were a higher risk of transmitting COVID “when scientifically that was unsupported”.
But their arguments were thrown out, as the judge found they had no right to claim discrimination for disabilities they did not actually have.
Justice Burley found a separate pleading that Virgin contravened the Fair Work Act was “untenable and must be dismissed”.
The applicants argued that Virgin put forward a “claim”, that the employees must take the vaccine or lose their jobs, outside the terms of their enterprise bargaining agreement (EBA).
“No term in the EBA prevents Virgin from making claims or demands outside its scope,” he said.
The applicants failed to plead that the EBA provides a comprehensive code that limits all other claims or identify how it is that the introduction of a policy amounts to a “claim”, he said.
Justice Burley also rejected claims that the airlines threatened to injure them and coerced them not to exercise a workplace right, but gave the applicants the opportunity to re-plead their case.
AFL Solicitors, who represented the applicants, says it will continue to “vigorously pursue” the case and could potentially broaden legal actions to other industries.
“This is going to get bigger,” director Tony Nikolic told AAP.
“The issue really is draconian policies.
“It’s opened the floodgates from policing and health care. Our phones are going off the hook here.”