FairWork process for those of us that have been fired

[gonzo]

Some advice given recently was not to try to make the argument for why vaccine mandates are unconstitutional. That at this stage, we need to be concise.

Having read a little more about the constitutional argument (civil conscription), I believe it's a valid route. I've made contact with all possible groups, as everyone is more than willing to suggest I contact such folks. The issue is that these groups are overrun, so we need to be able to lodge our submissions ourselves assuming we won't be getting any specialized advice.

I've only just started filling out the F2 unfair dismissal application. The section in which we're required to give reasons as to why the dismissal is unfair is in my view the only section we really need advice on (especially when referring to the constitution or the Biosecurity Act).

My brain has become stuck in a fog, so I really haven't done much at all. So far simply the following:

I've maintained that it was impossible to give valid, informed consent to a vaccine I'm being coerced into taking. It's unfair and unethical to coerce a person into giving "completely voluntary" consent. Such coercion nullifies the possibility to comply with their demand because a practitioner can't give the vaccination without valid consent.

I believe that the demand that I be vaccinated or face unemployment is unconstitutional. Section 51 (xxiiiA)   of the Australian Constitution forbids "any form of civil conscription" in relation to medical and dental services.
For example, in Wong vs Commonwealth of Australia, in respect to civil conscription Justice Kirby stated:

"However, the prohibition on "any form of civil conscription" is designed to protect patients from having the supply of "medical and dental services", otherwise than by private contract, forced upon them without their consent." (127)

"A rare constitutional guarantee:  Because of its character as a guarantee or protection, both for the healthcare professionals identified and for the patients affected by the provision of their services, the exclusion of any form of "civil conscription" must be seen as one of the rare instances of an individual guarantee and protection spelt out in the Australian Constitution" (128)
I further believe such demands violate the Privacy Act 1998.

[gonzo]

I could pull arguments from my reply to their "show cause" letter.

Perhaps some from:

6.   Your demand violates the Consent to Medical Treatment and Palliative Care Act 1995
7.   Your expectation that I sign a consent form saying that I agree the vaccine is "completely voluntary" is completely unreasonable.
8.   Your expectation that I give consent (a voluntary agreement free from coercion) to something which is not voluntary is completely unreasonable/impossible.
9.   Your demand violates Xxxxxxxx's definition of informed consent as defined in Informed Consent.docx:
"Consent must be freely given; not obtained by: Fraud, force, undue influence"
Under definitions:
"Informed Consent: Voluntary agreement given by a person or a responsible proxy (e.g., a parent) for participation in a study, immunization program, or treatment regimen, after being informed of the purpose, methods, procedures, benefits, and risks. The essential criteria of informed consent are that the subject has both knowledge and comprehension, that consent is freely given without duress or undue influence, and that the right of withdrawal from the entity at any time is clearly communicated to the subject."
10.   Your demand runs contrary to  the Australian Immunisation Handbook (See pictured above- consent form Xxxxxxxx required me to sign), "For consent to be legally valid... It must be given voluntarily in the absence of undue pressure, coercion or manipulation." 
11.   Your demand violates the UN's Universal Declaration on Bioethics and Human Rights which states: "Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice."
12.   The Australian Commission on Safety and Quality in Health Care states:
"Informed consent is a person's decision, given voluntarily, to agree to a healthcare treatment, procedure or other intervention that is made" . Your demand removes the possibility to give informed consent.
13.   AHPRA's "Good medical practice: a code of conduct for doctors in Australia" states:
"Informed consent is a person's voluntary decision about medical care that is made with knowledge and understanding of the benefits and risks involved" . Your demand removes the possibility of being able to give informed consent.
14.   Your demand is contrary to SA Health's Consent to Medical Treatment and Health Care Policy Guideline (4.1.2): "For consent to be valid, it must be voluntary and clear, and the patient consenting must have decision-making capacity. These terms are explained below. Voluntary: the decision to consent or not consent to treatment must not be made due to pressure or coercion."

[gonzo]

I've started emailing more lawyers. This is the email I'm sending out. I want bites at least. Any suggestions on how to improve this would be greatly appreciated. I do tend to repeat myself so if you find such, please let me know. I'm emailing law firms that probably charge 1000 an hour.. my hope is that I may get some free legal advice without paying a cent. Hints as to whether I'm on target, etc.

Dear Sir/Madam,

I've recently been fired for refusing to sign a consent form which asked me to give "completely voluntary" consent to vaccines. It's my understanding that informed consent requires a voluntary decision free from coercive influence. I believe my right to free and informed consent has been violated and that such coercive measures make a mockery of what it means to give informed consent.

My employer referred to SA's emergency management act relating to aged care facilities. My employer is of the opinion that I failed to comply with a reasonable and lawful directive.

I have a problem with the concept of consent under clearly coercive forces. I've maintained that I don't believe it possible to give valid consent under the circumstances and therefore can't comply with the demand of my employer.

I'm curious as to whether such emergency directives are legally valid. Section 51 (xxiiiA) of the Australian Constitution forbids "any form of civil conscription" in respect to medical and dental services. Justice Kirby (Wong vs Commonwealth of Australia) states:

"However, the prohibition on "any form of civil conscription" is designed to protect patients from having the supply of "medical and dental services", otherwise than by private contract, forced upon them without their consent." (127)

"A rare constitutional guarantee:  Because of its character as a guarantee or protection, both for the healthcare professionals identified and for the patients affected by the provision of their services, the exclusion of any form of "civil conscription" must be seen as one of the rare instances of an individual guarantee and protection spelt out in the Australian Constitution" (128)

If civil conscription extends to myself, the Constitution supersedes state directives.

I have issue with the implications of such demands in respect also to my privacy rights under the Privacy Act 1998. I also question the validity of such directives considering the Biosecurity Act.

I have limited time to launch a claim with FairWork. I wish to challenge my termination.

Regards,

Thomas Webb

[D-toxify]

I am only just reading this now, sorry.

Where are you up to? How did you go?

[gonzo]

I've had zero replies from any lawyers outside of the advocacy groups. The group I'm most interested in (revolving around Darren Dixon) does not seem to at this stage be showing many signs of life?
Honestly rather.... frustrated.

[Excogitatoris]

For the update of the Fair Work website of 12 Aug:Fair Work: Requiring employess to be vaccinated

[Jonquil]

Hi Excogitatatoris,
thank you for creating this forum.

I work as an administrator in health care tho a role could be created for me to work from home which has been denied. The gov mandates require me to be vaccinated as we fall under the healthcare practice banner.

My employer is asking me to submit my resignation if I do not 'choose' to have the vaccines. 
I realise my job will be likely  ending but I do not want to resign and would like to know how to respond  to the email which is 'requesting' me to submit my resignation if I do no get the vaccines currently on offer.
I have seen a GP who has urged caution around the current vaccines and I am hesitant about the current vaccines and do not voluntarily consent to them.
Can you help advise how to respond to this?
kind regards.
JPKM

[Excogitatoris]

Whatever you do. Do NOT resign. It is despicable that they pressure you to resign. Don't reveal your position; just say that your medical information is private. There are many delaying tactics. Asking for a risk assessment. There are many templates around now with a bunch of questions that you like to be answered before you can make a decision. But do not resign. You will probably be sacked but if you are sacked you have options to fight it or join a class action. If you resign all options are gone, than you lose your job due to your own choice and have no recourse options anymore. Prepare to be sacked, delay as long as possible but do not resign.