Kara Le v Virgin Australia Airlines Pty Ltd

Kara Le has applied to the Fair Work Commission under section 365 of the Fair Work Act 2009 (FW Act) for a general protection against unfair dismissal. The application is against Virgin Australia Airlines Pty Ltd. The applicant seeks to refer certain questions of law and fact to a Full Bench of the Fair Work Commission (FWC) before any conciliation conference can occur. The questions concern the legality and reasonableness of a directive by the respondent that all frontline and airport-based team members must be fully vaccinated against COVID-19 by a certain date. The applicant argues that the questions must be decided by a Full Bench before any conciliation conference can occur.

The questions presented to the President concern the validity of the vaccination directive and the interpretation of certain criteria in the Australian Immunisation Handbook. The applicant argues that the directive was unlawful and unreasonable because it involved undue pressure, coercion, or manipulation. The applicant further argues that the directive was unlawful and unreasonable because it could not be complied with lawfully or practically. The applicant also argues that the employer's assertions about the infection risk posed by unvaccinated persons are erroneous and misguided.

The President dismissed the application. The President noted that the FWC does not have jurisdiction to determine the questions posed. The FWC's role in dealing with general protections disputes involving dismissal is limited by the FW Act. The FWC can only arbitrate a general protections dismissal dispute if certain preconditions are satisfied. A certificate has not been issued to the applicant or any of the other individuals identified, and the conditions in s.369(1) have not been satisfied. The President also noted that ruling on the questions would involve an impermissible exercise of judicial power by the Commission. Determining existing legal rights is a matter for the courts, not the FWC. The President concluded that it is not appropriate to refer the questions to a Full Bench.

The President dismissed the applicant's application to refer questions to a Full Bench. The application was dismissed on the basis that the FWC does not have jurisdiction to determine the questions posed. The questions concern the interpretation of the Australian Immunisation Handbook and the validity of the vaccination directive. However, the FWC's role in dealing with general protections disputes involving dismissal is limited by the FW Act. The FWC can only arbitrate a general protections dismissal dispute if certain preconditions are satisfied. A certificate has not been issued to the applicant, and the conditions in s.369(1) have not been satisfied. The President also noted that ruling on the questions would involve an impermissible exercise of judicial power by the Commission.