The following questions & answers are for eligible employees. This information is accurate as at 20 September 2022. Updates will be provided as further information becomes available.
This Q&A contains information of a general nature only and is not a substitute for professional legal advice. You should obtain legal advice from a lawyer about your particular situation before acting on any of the following information. This Q&A is designed for Victorian and national system employees in Tasmania and Queensland only. If you are not a Victorian employee or a Queensland or Tasmanian national system employee, you should obtain specialist legal advice about your case as soon as possible.
For information about other states and territories, please contact the relevant health department.
For more information on what is most appropriate in your situation, contact JobWatch’s Telephone Information Service on 1800 331 617 (Regional VIC, QLD, TAS) or 03 9662 1933 (Melbourne Metro).
Each Australian state and territory has different health directions in force regarding mandatory COVID-19 vaccination, commonly relating to workers in healthcare, aged care, emergency and custodial services, disability services, and education.
This is a regularly changing situation with varying vaccine requirements in different industries, so we recommend you visit your state or territory’s health department website for up-to-date information.
These directions generally require employers not to allow workers to enter these facilities unless they are vaccinated, have a booking to be vaccinated by a certain date, or are exempt from the requirement for health reasons. There are also exemptions for emergency situations.
A ‘worker’ generally refers to all staff, including casual, permanent and agency staff, volunteers and contractors.
The current health directions in Queensland, Tasmania and Victoria each contain exemptions from the requirement to be vaccinated for workers who have been certified by a medical practitioner to be unable to receive a vaccination due to a limited range of specified medical contraindications. You must show your employer evidence of this to be allowed to work.
There is no exemption in any of the current health directions for people who are not vaccinated due to religious or other beliefs.
Under the current health directions, your employer cannot allow you to enter the workplace until your vaccination status is up-to-date at the relevant time.
There is no exemption in any of the current health directions for people who have recovered from COVID-19.
In general, employees must comply with a lawful and reasonable direction from their employer. Failure to do so may justify suspension, non-payment of wages or dismissal. On the other hand, if a direction is not lawful and reasonable in the circumstances, the employee is not obliged to comply.
Where there is no legal requirement for an employer to have vaccinated staff, whether it is a lawful and reasonable direction to require employees to be vaccinated will depend on the circumstances.
Under occupational health and safety law, employers have a duty to do whatever is reasonably practicable to ensure workplace safety. In some circumstances, this may justify an employer requiring staff to be vaccinated, even where this is not expressly required by legislation or a government order.
Employers also have obligations under discrimination law. This could require an employer to make adjustments for employees who cannot be vaccinated because of a disability, if it would be reasonable to do so. It could also prevent an employer from imposing an unreasonable blanket requirement for vaccination which would be difficult to comply with for people who have disabilities, are pregnant, or hold certain religious beliefs.
The employer has a defense if the necessary adjustments would impose an unjustifiable hardship, or if the requirement is reasonable.
It is important to note that discrimination law does not apply where a requirement to have vaccinated employees is mandated by law.
In general employers are not obliged to meet the cost to employees of being able to perform the inherent requirements of their job, unless this is provided for in their contract, Modern Award or Enterprise Agreement.
Where vaccination of employees is mandated by government direction, it is likely to be an inherent requirement of their job. Speak to your employer about whether they are willing to pay you for time spent getting vaccinated.
Where vaccination is not legally mandated but is required by the employer, the employer may be obliged to pay permanent employees their normal wages for time spent complying with the employer’s direction.
Employees who are ill after taking the vaccine can use paid personal leave if eligible.
Where a permanent employee is ready, willing and able to work, they should be paid wages.
However, an employee may not be ready, willing and able to work if:
This means employees in the industries subject to mandatory vaccination directions who have not received the vaccine (and therefore may not be allowed to attend the workplace) may not be ready, willing and/or able to meet the requirements of their role, and therefore would not be entitled to be paid wages while the directions are in force.
Where unvaccinated employees are not subject to government mandatory vaccination directions but their employer has a vaccination policy, they also may not be ready, willing and/or able to meet the requirements of their role and therefore may not be paid wages while the policy is in place, provided that the policy is lawful and reasonable. This is subject to provisions under discrimination law where the employer is obliged to make reasonable adjustments for certain people (see above).
An employee who has been dismissed may make an unfair dismissal claim if eligible.
To be eligible to make an unfair dismissal claim, an employee must have:
Unfair dismissal claims are made to the Fair Work Commission. The deadline for unfair dismissal claims is twenty-one (21) days from when the dismissal takes effect.
One key issue in unfair dismissal claims is whether the employer has a valid reason to dismiss the employee. The employer may argue that the employee’s failure to follow a lawful and reasonable direction constituted a valid reason for dismissal.
Employers do not have an automatic right to direct employees to be vaccinated. Rather, whether a direction to do so is lawful and reasonable will depend on the circumstances. A direction to be vaccinated may be lawful and reasonable where the direction is:
Where mandatory vaccination directions apply, an employer may argue that they had a valid reason to dismiss the employee, because as a result of not taking the vaccine, the employee:
Where no mandatory vaccination directions apply, an employer may still be able to argue that they had a valid reason to dismiss the employee on the basis that the direction to take the vaccine was lawful and reasonable in all the circumstances.
Conversely, the employee may argue that the direction to take the vaccine was not lawful and/or reasonable. For example, an employee may argue that they were unable to take the vaccine due to a medical condition. To succeed in making this argument, an employee is likely to need medical evidence.
Under the mandatory vaccination directions, an employer who provides false information to state health authorities is liable to be penalised.
If an employee provides false information to their employer, and the employer in turn provides false information to health authorities, the employee may have exposed their employer to a risk of penalty.
The employer may argue that by providing false information, and exposing them to a risk of penalty, the employee committed serious misconduct, justifying disciplinary action or dismissal.
An employer does not have an automatic right to direct an employee to disclose their vaccination status. Rather, whether a direction to provide this information is a lawful and reasonable direction will depend on the individual circumstances. It may be lawful and reasonable where the direction is:
Where an employer in one of the industries affected by the health directions directs an employee to provide information in relation to their vaccination status, and complies with the Privacy Act 1988, this direction is likely to be a lawful and reasonable direction.
Where vaccination mandates do not apply, whether such a direction would be lawful and reasonable depends on the circumstances.
The Privacy Act 1988 provides that, in general, employers cannot collect ‘sensitive information’ about an employee without the employee’s consent. Sensitive information includes health information, which includes information about health service provided to an individual. However, there are exceptions to this rule.
For example, an employer may be able to collect sensitive information where the collection is authorised under Australian law. As noted, state health authorities have issued directions requiring the collection of information in certain industries. An employer may also be able to collect sensitive information where a ‘permitted health situation’ exists. It is likely to be unlawful for the employer to use the information for any other purpose than that for which it was authorised to be collected.
In practical terms, an employee who has been directed by their employer to provide information regarding whether they have been vaccinated may request assurances that information provided by them will:
It is unlawful under discrimination law to request information that could be used to discriminate. This could include information about a person’s health. However, it is not unlawful to request this information for a lawful purpose. Lawful purposes include complying with government directions or obligations under occupational health and safety law.
In these circumstances, the employer may argue that they had a valid reason to dismiss an employee for refusing to provide information about their vaccination status, on the basis that they failed to follow a lawful and reasonable direction.
For more information on what is most appropriate in your situation, contact JobWatch’s Telephone Information Service on 1800 331 617 (Regional VIC, QLD, TAS) or 03 9662 1933 (Melbourne Metro).
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