Know Your Rights in Australia – ConspiracyOz

Know where you stand – Mick Raven

SAFE WORK AUSTRALIA

www.safeworkaustralia.gov.au

COVID-19 Information for workplaces

AUSTRALIAN HUMAN RIGHTS COMMISSION

COVID-19 vaccinations and federal discrimination law

https://humanrights.gov.au

Rights and Freedoms

Nurse giving COVID vaccination

Commission guidance

This page provides general information on COVID–19 vaccinations and federal discrimination law and is intended as a guide only. It gives guidance on the most frequently asked questions that we are getting on this subject.

The information reflects current discrimination legislation, applicable judicial decisions, and guidance issued by government agencies.

As outlined below, each state and territory in Australia also has discrimination legislation, which may apply in different ways. People must comply with both federal and state/territory law.

The Fair Work Ombudsman and Safe Work Australia have provided specific guidance about workplace rights and obligations in the context of the COVID-19 pandemic under employment law and work health and safety law. Employers and staff should read this page in conjunction with those guidelines.

Summary

If there is no specific law requiring a person to be vaccinated, individuals, businesses and service providers are encouraged to obtain legal advice about their own specific circumstances, and to carefully consider the position of vulnerable groups in the community before imposing any blanket COVID-19 vaccination policies or conditions. These may have unintended consequences, particularly for some people with disability, and may also breach federal discrimination law.

Are COVID-19 vaccinations voluntary?

The Australian Government’s policy is that COVID-19 vaccinations are voluntary for most Australians, although its aim is to have as many people as possible choose to be vaccinated.

On 28 June 2021, the Australian Government announced that COVID-19 vaccinations would be made mandatory for residential aged care workers. All workers in aged care will be required to receive their first dose of the vaccine by September this year. Note: We are seeking further advice from the government and will update the information on this page soon.

Some states and territories have also issued public health orders mandating vaccination for certain industries or workers. For example, Queensland has a public health order in place mandating vaccination for health service employees who are likely to encounter and treat people with COVID-19.

Information about relevant public health orders can be found on the Safe Work Australia website.

Can it be unlawful discrimination for an employer to require that its employees be vaccinated?

If there is no specific law requiring that a person be vaccinated, employers should be cautious about imposing mandatory COVID-19 vaccination policies or conditions on staff. The need for vaccination should be assessed on a case-by-case basis, taking into account the nature of the workplace and the individual circumstances of each employee.

There are medical reasons why some people may not be able to receive a COVID-19 vaccination, or may choose not to in their circumstances, including because of protected attributes such pregnancy or disability. Additionally, at present, many younger Australians have not been eligible for certain COVID-19 vaccinations at all, or for shorter periods of time than older Australians.

The Sex Discrimination Act 1984 (Cth) (SDA), the Disability Discrimination Act 1992 (Cth) (DDA) and the Age Discrimination Act 2004 (Cth) (ADA) make it unlawful to discriminate on the grounds of pregnancy, disability and age in many areas of public life, including in employment. ‘Disability’ is broadly defined in the DDA and includes past, present and future disabilities, as well as imputed disabilities.

A strict rule or condition that mandates COVID-19 vaccinations for all staff, including people with certain disabilities, medical conditions or who are pregnant, may engage the ‘indirect discrimination’ provisions in the SDA, the DDA and the ADA.

Indirect discrimination and reasonableness

In broad terms, indirect discrimination occurs when a person is required to comply with a general requirement or condition (such as mandatory COVID-19 vaccinations), and they are unable to do so because of a protected attribute, for example because of their disability, and it has the effect of disadvantaging them.

Under the SDA, the DDA, and the ADA indirect discrimination may occur if an employer requires, or proposes to require, that a person comply with a general requirement or condition.

This means that an employer does not need to seek to enforce a mandatory COVID-19 vaccination policy (for example, by way of termination, suspension, or performance management) to engage in unlawful discrimination. It is a defence to a claim of indirect discrimination if the condition or requirement is shown to be ‘reasonable’ in the circumstances of the case.

Whether a court considers it ‘reasonable’ for an employer to mandate COVID-19 vaccinations is likely to be highly fact dependent, considering the workplace and the employee’s individual circumstances. It may consider information such as:

  • The existence and scope of any relevant public health orders.
  • Health and safety issues and the reasons advanced in favour of the mandatory COVID-19 vaccine requirement.
  • Issues relating to an employee’s disability or medical condition.
  • The nature and extent of the disadvantage resulting from the imposition or proposed imposition of the mandatory COVID-19 vaccine requirement.
  • The feasibility of overcoming or mitigating any disadvantage to the employee by the mandatory COVID-19 vaccine requirement.
  • Whether the disadvantage to the employee is proportionate to the result sought by the employer.
  • The nature of the work performed by the employee.
  • Whether the employee has close contact with people who are most vulnerable to severe COVID-19 health impacts. For example, people working in aged care, disability care, health care, people over 60 or people with respiratory conditions.
  • Whether the employee interacts with people with an elevated risk of being infected with COVID-19. For example, medical professionals, flight crew, border control or hotel quarantine workers.
  • The incidence, severity and distribution of COVID-19 in the areas where the work is undertaken.
  • The availability of the vaccine.
  • Advice from medical and work health and safety bodies such as the Australian Health Protection Principal Committee and Safe Work Australia about COVID-19 and COVID-19 vaccinations at the relevant times, including duties owed by employers to staff and customers under work health and safety laws.
  • Whether there are any alternative methods that might reasonably achieve the employer’s objective without recourse to the mandatory COVID-19 vaccine requirement, such as:
    • testing regimes
    • remote work
    • physical distancing
    • personal protective equipment.

The SDA, the DDA, the ADA explicitly place the burden of proving ‘reasonableness’ on the person who requires compliance with the requirement or condition — in this case, the employer.

The duty to provide reasonable adjustments

The DDA also creates an explicit duty to make ‘reasonable adjustments’ for people with disability, including at work. Depending on the circumstances of the case, a ‘reasonable adjustment’ may include exempting workers with disabilities, who have a medical reason for not being vaccinated, from a general rule requiring COVID-19 vaccination. Employers are not required to make adjustments for people with disability if the adjustments would impose an unjustifiable hardship on them. Unjustifiable hardship is a high test, and it recognises that some hardship on businesses and employers may be needed and justifiable to reduce discrimination against people with disability.

What about ‘the inherent requirements’ of a role and other exemptions?

In responding to a complaint of disability discrimination, an employer may seek to rely upon the defence of ‘the inherent requirements’ of the role. Under the DDA, it is lawful for an employer to discriminate against a person on the ground of the person’s disability if the person is unable to carry out the ‘inherent requirements’ of a particular job or would, in order to do so, require services or facilities that would impose an ‘unjustifiable hardship’ on the employer.

Depending on the circumstances of the case, it might be an ‘inherent requirement’ of a particular role that a person be vaccinated against COVID-19.

An employer may also seek to rely upon the ‘infectious diseases’ exemption in s 48 of the DDA. This provides that it is not unlawful to discriminate against a person if their disability is an infectious disease — or arguably the potential to acquire an infectious disease — and such discrimination is ‘reasonably necessary’ to protect public health.

In considering the term ‘reasonably necessary’, it is not likely to be sufficient that a discriminatory condition or policy is merely helpful, desirable or convenient in protecting public health.

Can it be unlawful discrimination for an employer to require that its employees attend a particular workplace?

There are reasons why some people might be particularly vulnerable to severe COVID-19 health impacts, including because of protected attributes such as pregnancy, disability or age. Depending on the nature of the work being performed, a blanket rule requiring all employees to attend a particular workplace may constitute indirect discrimination.

As outlined in the question above, whether a general requirement to attend a particular workplace is considered ‘reasonable’ by a court is likely to be highly fact dependent, taking into account the nature of the work and the employee’s individual circumstances. It may consider information such as:

  • The reasons advanced in favour of the requirement to attend the workplace, including operational requirements and reasonable business grounds.
  • Issues relating to the employee’s age, pregnancy, disability or medical condition.
  • The nature of the work performed by the employee, whether it is outside or in a confined space, and associated risk of transmission.
  • Whether the work involves interacting closely with other employees or with large numbers of people.
  • Whether the employee is able to perform their work remotely, and if they have demonstrated the capacity to do so effectively.
  • The incidence, severity and distribution of COVID-19 in the areas where work is undertaken.
  • Advice from medical and work health and safety bodies such as the Australian Health Protection Principal Committee and Safe Work Australia about COVID-19 at the relevant times.
  • Whether other control measures are available and in place in the workplace to minimise the risk of infection, so far as is reasonably practicable.

The duty to provide reasonable adjustments

The DDA also creates an explicit duty to make ‘reasonable adjustments’ for people with disability, including at work. Depending on the circumstances of the case, ‘reasonable adjustments’ may include allowing a person to work remotely, at different times or on different shifts, or to have stricter control measures in place.

Employers are not required to make adjustments for people with disability if the adjustments would impose an unjustifiable hardship on them. Unjustifiable hardship is a high test, and it recognises that some hardship on businesses and employers may be needed and justifiable to reduce discrimination against people with disability.

What about ‘the inherent requirements’ of the role defence?

In responding to a complaint of disability discrimination, an employer may seek to rely upon the defence of ‘the inherent requirements’ of the role. Under the DDA, it is lawful for an employer to discriminate against a person on the ground of the person’s disability if the person is unable to carry out the ‘inherent requirements’ of a particular job or would, in order to do so, require services or facilities that would impose an ‘unjustifiable hardship’ on the employer.

Depending on the circumstances of the case, it might be an ‘inherent requirement’ of a particular role that a person be able to work at a specific workplace.

Can it be unlawful discrimination for a business or service provider to refuse to provide goods, services or facilities to people who are not vaccinated?

If there is no specific law requiring COVID-19 vaccination, businesses and service providers should be cautious about imposing a blanket rule requiring vaccination as a condition of entry, or as a condition for the delivery or provision of goods, services or facilities.

There are medical reasons why a person may not be able to receive a COVID-19 vaccination, or may choose not to in their circumstances, including because of protected attributes such pregnancy or disability. Additionally, at present, many younger Australians have not been eligible for particular COVID-19 vaccinations at all, or for shorter periods of time than older Australians.

The Sex Discrimination Act 1984 (Cth) (SDA), the Disability Discrimination Act 1992 (Cth) (DDA) and the Age Discrimination Act 2004 (Cth) (ADA) make it unlawful to discriminate on the grounds of pregnancy, disability and age in many areas of public life, including in the provision of goods, services and facilities.

‘Disability’ is broadly defined in the DDA and includes past, present and future disabilities, as well as imputed disabilities.

A strict rule or condition that requires COVID-19 vaccination as a condition of entry, or as a condition for the delivery or provision of goods, services or facilities, may engage the ‘indirect discrimination’ provisions in the SDA, the DDA and the ADA.

Indirect discrimination and reasonableness

In broad terms, indirect discrimination occurs when a person is required to comply with a general requirement or condition (such as mandatory COVID-19 vaccinations), and they are unable to do so because of a protected attribute, for example because of their disability, and it has the effect of disadvantaging them.

Whether a court considers it ‘reasonable’ for a business or service provider to make COVID-19 vaccination a condition of entry, or a condition for the delivery or provision of goods, services or facilities is likely to be highly fact dependent, taking into account all the circumstances. It may consider information such as:

  • The existence and scope of any relevant public health orders.
  • The reasons advanced in favour of the COVID–19 vaccination condition, including operational requirements and reasonable business grounds.
  • The nature of the goods/services/facilities being delivered. It can be expected that a court would strictly scrutinise the reasonableness of any measure that had the effect of seriously limiting or depriving people with disability of essential services.
  • The physical space of the location (e.g. the shop) and associated risk of transmission.
  • Issues relating to an employee’s disability, age, pregnancy or medical condition.
  • The nature and extent of the disadvantage resulting from the imposition or proposed imposition of the COVID–19 vaccination condition.
  • The feasibility of overcoming or mitigating any disadvantage to the person attempting to access goods/services/facilities by the COVID–19 vaccine condition.
  • Whether the disadvantage to the person attempting to access goods/services/facilities is proportionate to the result sought by the business or service provider.
  • Whether the business or service provider has close contact with people who are most vulnerable to severe COVID-19 health impacts. For example, people working in aged care, disability care, health care, people over 60 or people with respiratory conditions.
  • Whether the business or service provider interacts with people who have an elevated risk of being infected with COVID-19. For example, medical professionals, flight crew, border control or hotel quarantine workers.
  • Whether the business or service provider provides any opportunity for people who cannot be vaccinated to access its goods/services/facilities.
  • The incidence, severity and distribution of COVID-19 in the areas where the business or service provider operates.
  • The availability of the vaccine.
  • Advice from medical and work health and safety bodies such as the Australian Health Protection Principal Committee and Safe Work Australia about COVID-19 and COVID-19 vaccinations at the relevant times, including duties owed by employers to staff and customers under work health and safety laws.
  • Whether there are any alternative control methods that might reasonably achieve the business/ service provider’s objective without recourse to the condition, such as:
    • testing regimes
    • physical distancing
    • personal protective equipment.

The SDA, DDA and ADA explicitly place the burden of proving ‘reasonableness’ on the person who requires compliance with the requirement or condition — in this case, the business or service provider.

The duty to provide reasonable adjustments

The DDA requires businesses involved in the provision of goods and services to make ‘reasonable adjustments’ for people with disability. ‘Reasonable adjustments’ are all adjustments that do not impose an unjustifiable hardship on the business making the adjustments. Unjustifiable hardship is a high test, and it recognises that some hardship on businesses and employers may be needed and justifiable to reduce discrimination against people with disability.

Depending on the circumstances of the case, a ‘reasonable adjustment’ may include allowing unvaccinated customers into a shop or to receive services if they cannot receive a COVID-19 vaccination for medical reasons.

Can it be unlawful discrimination for an employer to require that its employees be vaccinated if it goes against their religious beliefs?

There are very limited avenues for people to make complaints about discrimination on the ground of religion or religious belief under federal discrimination law.

The Australian Human Rights Commission can accept complaints about discrimination in employment based on a person’s religion under the International Labour Organisation Convention (No 111) concerning Discrimination in respect of Employment and Occupation.

However, unlike discrimination complaints based on protected attributes such as race, sex, pregnancy, disability or age, these complaints cannot proceed to the Federal Circuit Court or the Federal Court for legal remedies.

Discrimination related to religion, religious conviction or religious activity may be unlawful under state and territory discrimination law. For further information on this topic, please seek legal advice or contact your local state or territory human rights, equal opportunity or anti-discrimination agency.

State and territory agencies

Can it be unlawful discrimination for an employer/ business owner/ service provider to require medical evidence as to why an employee or customer cannot be vaccinated?

It is not unlawful under the Disability Discrimination Act 1992 (Cth) (DDA) or the Sex Discrimination Act 1984 (Cth) (SDA) for a person, such as an employer or a service provider, to request or require another person to provide information about a medical condition or pregnancy if the person making the request can demonstrate that it is not in connection with, or for the purpose of, unlawfully discriminating against the other person on the ground of disability.

However, the collection of personal information is also regulated by privacy laws. Any requirement for individuals to provide evidence of a medical reason for refusing a vaccination must be made in compliance with those laws.

You can find more information on Australia’s federal privacy laws on the website of the Office of the Australian Information Commissioner (OAIC).

The OAIC also provides links to relevant state and territory privacy laws and bodies.

How might the ‘infectious diseases’ exemption in section 48 of the Disability Discrimination Act apply?

Section 48 of the Disability Discrimination Act 1992 (Cth) (DDA) provides that it is not unlawful for a person to discriminate against another person on the basis of disability — either directly or indirectly — if the person’s disability is an infectious disease and the discrimination is reasonably necessary to protect public health.
The exemption in section 48 of the DDA clearly applies to people who have a disability that is an infectious disease. ‘Infectious disease’ is not defined in the DDA but it appears likely that it would apply to COVID-19, as it has been accepted as applying to other transmissible viruses such as HIV.

In considering the application of the section 48 exemption in relation to COVID-19, a court would need to consider whether the relevant conduct was ‘reasonably necessary’ to protect public health. The existence of the COVID-19 pandemic, and information and advice from public health bodies such as the Australian Health Protection Principal Committee, would likely be relevant to any consideration of what was ‘reasonably necessary’ conduct.

The exemption in section 48 of the DDA may also extend to people who are not vaccinated against COVID-19 (see Beattie (on behalf of Kiro and Lewis Beattie) v Maroochy Shire Council [1996] HREOCA 40 (20 December 1996)).

However, as judicial consideration has not been given to the application of section 48 of the DDA to unvaccinated people, it is strongly encouraged that anyone seeking to rely upon the exemption in relation to mandatory COVID-19 vaccinations seek legal advice.

State and territory discrimination legislation

In addition to federal discrimination legislation, each state and territory in Australia has equal opportunity and discrimination legislation and agencies with statutory responsibilities.

Federal laws and the state/territory laws generally overlap. However, the laws apply in different ways and people must comply with all legislation.

For more information on state/territory laws, please seek legal advice or contact your local state or territory human rights, equal opportunity or anti-discrimination agency.

And….

FAIR WORK OMBUDSMAN

Health and safety in the workplace

COVID-19 vaccinations: workplace rights and obligations

https://coronavirus.fairwork.gov.au

Published 9 April 2021 | Updated 3 September 2021

Mandatory COVID-19 vaccinations for some residential aged care workers

States and territories have started introducing public health orders mandating COVID-19 vaccination for some residential aged care workers.

Most of the new public health orders require affected workers to receive a first dose of a COVID-19 vaccination before a set date. States and territories that have new orders or made announcements include:

  • Australian Capital Territory
  • New South Wales
  • Northern Territory
  • Queensland
  • South Australia
  • Tasmania
  • Victoria
  • Western Australia.

Access our updated information and the public health orders at Can an employer require an employee to be vaccinated?

While the Australian Government’s policy is that receiving a vaccination is free and voluntary, it aims to have as many Australians vaccinated as possible.

With Australia’s vaccine rollout continuing and the increasing availability of COVID-19 vaccinations, employers and employees are encouraged to work together to find solutions that suit their individual needs and workplaces. A collaborative approach in the workplace that includes discussing, planning and facilitating COVID-19 vaccinations is an important part of Australia’s vaccine rollout, because having a vaccine is one of the best ways to protect ourselves and our community against COVID-19.

Employers can support their employees by:

  • providing leave or paid time off for employees to get vaccinated
  • helping to ensure employees have access to reliable and up-to-date information about the effectiveness of vaccinations – Learn about COVID-19 vaccines external-icon.png on the Department of Health’s website
  • where employees do not wish to be vaccinated, or don’t yet have access to vaccinations, exploring other options including alternative work arrangements.

In some cases, employers may be able to require their employees to be vaccinated against COVID-19. Employers should exercise caution if they’re considering making COVID-19 vaccinations mandatory in their workplace and get their own legal advice.

Find more information about these topics below.

Managing vaccinations in the workplace

Does an employer need to consult when implementing a workplace policy about coronavirus vaccinations?

Employers may be considering whether a workplace policy about coronavirus vaccinations is necessary for their workplace.

Before implementing a new workplace policy or changing an existing policy about vaccinations, employers should consider their workplace and employees’ circumstances and whether they need legal advice about their obligations.

Most workplaces are covered by either an award, enterprise agreement or another registered agreement. All awards and enterprise agreements have a consultation clause requiring employers to consult with employees and any representatives when an employer intends to implement significant workplace changes. Some registered agreements, employment contracts or existing workplace policies may also require employers to consult. You can find more information about consultation and cooperation in the workplace here: Consultation and cooperation in the workplace – Best practice guides – Fair Work Ombudsman.

This means that before introducing or changing a workplace policy about vaccinations, employers should review any applicable award, agreement, employment contract or existing workplace policy to find out:

  • whether they need to consult under that document (as well as needing to consult under work health and safety laws)
  • who they need to consult with (including any employee representatives or unions)
  • how they need to consult about the proposed workplace change.

Under work health and safety (WHS) laws, employers also have to consult with employees and their health and safety representatives (HSRs) about possible control measures to address WHS risks. This includes consideration of a new policy about coronavirus vaccinations or changes to an existing vaccination policy.

Employers must also provide employees and their HSRs a reasonable opportunity to express their views about the policy changes. Employers need to take these views into account when making a decision and advise employees and HSRs of their decision.

You can find more information on specific coronavirus WHS issues external-icon.png and consultation obligations external-icon.png under WHS laws from Safe Work Australia.

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Do employees have to be paid for the time to get vaccinated against COVID-19?

Where an employer can require an employee to be vaccinated against coronavirus (for example, because they have a mandatory vaccination policy in place), the employer should cover the employee’s travel costs and give the employee time off work without loss of pay if the appointment is during work hours.

Employers should consider any applicable awards, agreements, employment contracts or workplace policies, in case they include rules about these types of issues.

Even where an employer doesn’t require their employees to be vaccinated against coronavirus, they can still discuss work adjustments, leave arrangements or incentives with their employees to support them getting vaccinated. These arrangements could include:

  • requesting and taking leave (for example, annual leave or unpaid leave)
  • starting work later or finishing early (to help employees to attend a vaccination appointment around work hours)
  • working from home (to help an employee attend a local vaccination appointment)
  • providing paid time off for their employees to get vaccinated against COVID-19.

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Can an employee take sick leave to get vaccinated against COVID-19?

Employees can’t usually take sick leave to get vaccinated against COVID-19. This is because the entitlement to sick leave under the National Employment Standards is only available when an employee is unfit for work because they are ill or injured.

However, an award, enterprise agreement, other registered agreement, employment contract or workplace policy may include extra rules about using sick leave.

For more information about when sick and carer’s leave can be taken, go to Paid sick and carer’s leave.

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Can employees take paid time off if they feel unwell after being vaccinated?

Full-time and part-time employees can use paid sick leave if they can’t work because they’re unwell after being vaccinated.

If a full-time or part-time employee runs out of paid sick leave, they may be able to agree with their employer to access other paid leave entitlements, like annual leave, or to make other arrangements like taking unpaid leave.

Employers should also consider their obligations under any award, enterprise agreement or other registered agreement, employment contract or workplace policy, which could include extra rules about sick leave.

Casual employees aren’t entitled to paid sick leave under the National Employment Standards.

Find out more about:

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Can an employee refuse to attend the workplace because a co-worker isn’t vaccinated against coronavirus?

Generally, it’s unlikely that an employee could refuse to attend their workplace because a co-worker isn’t vaccinated against coronavirus. The reasons for this include:

  • vaccination isn’t mandatory for all employees and many workplaces won’t be able to require their employees to be vaccinated
  • the co-worker may have a legitimate reason not to be vaccinated (for example, a medical reason).

If an employee refuses to attend the workplace because a co-worker isn’t vaccinated, their employer can direct them to attend the workplace if the direction is lawful and reasonable. Whether a direction is lawful and reasonable depends on all the circumstances.

If it’s unclear whether a direction or an employee’s refusal is reasonable, employers should consider seeking legal advice before taking disciplinary action.

If an employee has concerns about the safety of the workplace, they should raise their concerns with their employer as soon as possible. Employers should also consider sharing information about any steps they’ve taken to ensure a safe workplace, to help manage employee concerns.

Go to:

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Requiring employees to be vaccinated

Can an employer require an employee to be vaccinated?

Employers can only require their employees to be vaccinated where:

Employers should also consider how protections for employees under anti-discrimination laws may apply. Learn more at How does a requirement to be vaccinated interact with anti-discrimination laws?

An employer may in certain circumstances be required to direct employees to get vaccinated to comply with obligations under a work health and safety law. Information on work health and safety obligations is available from Safe Work Australia external-icon.png. Go to Commonwealth, state or territory workplace health and safety regulators to learn what work health and safety laws apply.

Employers should get their own legal advice if they’re considering making coronavirus vaccinations mandatory in their workplace.

Legislation and public health orders requiring vaccination against coronavirus

State and territory governments have made and may continue to make public health orders requiring workers to be vaccinated against COVID-19 in their state or territory. Employers and workers need to comply with any public health orders that apply to them.

The current public health orders requiring vaccination in various states and territories are outlined below.

Australian Capital Territory

The Australian Capital Territory Government has issued a public health direction mandating COVID-19 vaccination for certain residential aged care facility workers from 17 September 2021.

Read the public health direction at Public Health (Aged Care Workers COVID-19 Vaccination) Emergency Direction 2021 external-icon.png.

New South Wales

The New South Wales (NSW) Government has issued public health orders requiring COVID-19 vaccination for workers specified in the NSW Airport and Quarantine Vaccination Program. The requirements apply to:

  • quarantine workers
  • transportation workers
  • airport workers.

The NSW Government has also introduced COVID-19 vaccination requirements for:

  • authorised workers leaving an area of concern for work (from 6 September 2021)
  • construction workers who live in an area of concern
  • certain early education and care facility workers and disability support workers who live or work in an area of concern (from 6 September 2021).
  • residential aged care facility workers (from 17 September 2021)
  • health care workers (from 30 September 2021)

For detailed information about these requirements go to Public Health Orders and restrictions (NSW) external-icon.png.

Public health orders:

Northern Territory

The Northern Territory Government has issued a public health direction mandating COVID-19 vaccination for certain residential aged care facility workers from 17 September 2021.

Read the public health direction at COVID-19 Directions (No. 48) 2021: Directions for Aged Care Facilities external-icon.png.

Queensland

The Queensland Government has issued public health directions mandating COVID-19 vaccination for some workers. The directions affect:

  • health service employees
  • Queensland Ambulance Service employees
  • hospital and health service contractors
  • residential aged care facility workers (first dose by 16 September 2021)
  • workers in quarantine facilities
  • essential workers with permission to cross into Queensland from New South Wales.

For more information, read the public health directions:

South Australia

The South Australian Government has issued public health directions mandating COVID-19 vaccination for some workers.

The directions apply to:

  • workers within the South Australian quarantine system, including in airports, medi-hotels, health-care settings and transportation
  • staff, contractors and volunteers in residential aged care facilities (requirements apply from 17 September 2021)
  • some ‘essential travellers’ arriving into South Australia (requirements apply from 24 September 2021).

Learn more about the public health directions:

Tasmania

The Tasmanian Government has issued a public health direction mandating COVID-19 vaccination for certain residential aged care facility workers from 17 September 2021.

Read the public health direction at Tasmanian Government – Mandatory Vaccination of Certain Workers – No. 1 external-icon.png.

Victoria

All residential aged workers must receive at least their first dose of a COVID-19 vaccine by 17 September 2021.

Learn more about this at Australian Government Department of Health – Mandatory COVID-19 vaccination in residential aged care external-icon.png.

Western Australia

The Western Australian (WA) Government has issued public health directions with vaccination requirements for:

  • quarantine centre workers
  • residential aged care facility workers (from 17 September 2021)
  • health care facility workers (from 1 October 2021 for some facilities).

Read the public health directions for more information, including about when the requirements apply:

Some employees in WA aren’t covered by the Fair Work system. For information about the WA state system, visit WA Labour Relations – Guide to who is in the WA state system external-icon.png.

We’ll continue to update our information if new public health orders or directions are issued by states or territories.

For information on other requirements and restrictions for businesses in each state and territory, see List of enforceable government directions during coronavirus.

Agreements or contracts relating to vaccinations

Some employment contracts or agreements may contain terms relating to vaccinations, including COVID-19 vaccinations. Employers and employees should check to see if any terms apply to COVID-19 vaccinations (for example, a term relating only to flu vaccinations won’t apply to COVID-19 vaccinations).

Employers may wish to consider including a term in employment contracts for new employees relating to COVID-19 vaccinations. Find out more at Can an employer require a prospective employee to be vaccinated before starting work?

Even where a contract or an agreement has a term about coronavirus vaccinations, employers and employees should consider whether the term complies with anti-discrimination laws. A term that is contrary to anti-discrimination laws isn’t enforceable. Find out more at How does a requirement to be vaccinated interact with anti-discrimination laws?

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Lawful and reasonable directions to get vaccinated

Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable will be fact dependent and needs to be assessed on a case-by-case basis.

For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, state or territory law that applies (for example, an anti-discrimination law).

There are a range of factors that may be relevant when determining whether a direction to an employee is reasonable. Things to take into consideration include:

  • the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service)
  • the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community
  • the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant (find out more at the Department of Health: statement from ATAGI external-icon.png)
  • work health and safety obligations (find out more at Safe Work Australia external-icon.png)
  • each employee’s circumstances, including their duties and the risks associated with their work
  • whether employees have a legitimate reason for not being vaccinated (for example, a medical reason)
  • vaccine availability.

When undertaking this case-by-case assessment, it may also be helpful as a general guide to divide work into 4 broad tiers:

  • Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control).
  • Tier 2 work, where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
  • Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
  • Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

A workplace may have a mix of employees, with different employees performing work in different tiers, all of which could change over time.

The coronavirus pandemic doesn’t automatically make it reasonable for employers to direct employees to be vaccinated against the virus.

An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus, or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.

An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.

For employees performing Tier 3 work:

  • where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable
  • where community transmission of coronavirus is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown, a direction to employees to receive a vaccination is more likely to be reasonable.

Regardless of the tier or tiers which may apply to work performed by employees, the question of whether a direction is reasonable will always be fact dependent and needs to be assessed on a case-by-case basis. This will require taking into account all relevant factors applicable to the workplace, the employees and the nature of the work that they perform. Employers should get their own legal advice if they’re considering making coronavirus vaccinations mandatory in their workplace.

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Can an employer require a prospective employee to be vaccinated before starting work?

An employer may be able to require a prospective employee to be vaccinated against coronavirus.

Before requiring that a prospective employee be vaccinated before starting employment, employers should consider their obligations and responsibilities carefully, for example, under general protections or anti-discrimination laws.

Get more information on discrimination protections under the Fair Work Act at Protection from discrimination at work.

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How does a requirement to be vaccinated interact with anti-discrimination laws?

It’s important that employers consider their obligations and responsibilities under anti-discrimination laws, which generally prohibit discrimination against employees in the workplace based on protected characteristics, such as disability.

Before requiring employees to be vaccinated, employers need to consider:

  • Commonwealth, state or territory discrimination laws
  • general protections provisions under the Fair Work Act.

Find out more about COVID-19 vaccinations and anti-discrimination laws in Australia at the Australian Human Rights Commission external-icon.png. Get more information on discrimination protections under the Fair Work Act at Protection from discrimination at work.

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Refusing directions to be vaccinated

What happens if an employee refuses to be vaccinated?

If an employee refuses to be vaccinated (contrary to a specific law, agreement or contract that requires vaccination, or after receiving a lawful and reasonable direction), an employer should, as a first step, ask the employee to explain their reasons for refusing the vaccination.

If the employee gives a legitimate reason for not being vaccinated (for example, the employee has an existing medical condition that means vaccination is not recommended for the employee), the employee and their employer should consider whether there are any other options available instead of vaccination. This could include alternative work arrangements. Find out more at Alternative work arrangements.

Whether disciplinary action is reasonable will depend on the circumstances. For more information on disciplinary action for refusing to be vaccinated, see Can an employer take disciplinary action if an employee refuses to get vaccinated?

We encourage employers to discuss options with their employees depending on the circumstances of their individual workplace. Learn more about consultation and cooperation in the workplace.

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Can an employer take disciplinary action if an employee refuses to get vaccinated?

An employer may be able to take disciplinary action, including termination of employment, against an employee for refusing to be vaccinated if the employee’s refusal is in breach of:

  • a specific law, or
  • a lawful and reasonable direction requiring vaccination.

Before taking any action, an employer should talk to the employee and discuss the employee’s reasons for not wanting to get vaccinated. For example, the employee may have a medical condition that means vaccination is not recommended for the employee.

Whether an employer can take disciplinary action will depend on the individual facts and circumstances. To work out if and how an employer can take disciplinary action, employers should consider the terms, obligations and rights under any applicable:

  • enterprise agreement or other registered agreement
  • award
  • employment contract
  • workplace policy
  • state or territory public health order.

If an employee refuses a direction to be vaccinated, it’s unlikely that their employer can stand down the employee. Stand down is only available in certain circumstances. Learn more about standing down employees at Stand downs.

Further, employers generally don’t have the power to suspend employees without pay unless an enterprise or other registered agreement, award or employment contract allows them to. Employees have various protections against being dismissed or treated adversely in their employment. Employers should make sure that they follow a fair process and have a valid reason for termination, or they may breach unfair dismissal or adverse action laws under the Fair Work Act.

Employers should also consider getting legal advice in these situations.

Find more information see:

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If an employee refuses to be vaccinated, can an employer require evidence about why they’ve refused?

If an employer has provided a lawful and reasonable direction to be vaccinated and an employee refuses, the employer can ask the employee to provide evidence of the reason for their refusal.

Employers are only able to collect evidence of vaccination in limited circumstances. More information about workplace privacy is available at:

An employer should also make sure that a requirement to provide evidence is lawful and reasonable. Whether a direction would be lawful and reasonable depends on all of the circumstances. If it is unclear whether a direction or the employee’s refusal is reasonable, employers should not take disciplinary action lightly and should seek their own legal advice.

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Providing evidence of vaccination

Can an employer require an employee to provide evidence that they have been vaccinated?

If an employer has provided a lawful and reasonable direction to be vaccinated for coronavirus and an employee complies, the employer can also ask the employee to provide evidence of their vaccination.

An employer should also make sure that a requirement to provide evidence is lawful and reasonable. As stated above, whether a direction would be lawful and reasonable depends on all of the circumstances. If it is unclear whether a direction or the employee’s refusal is reasonable, employers should not take disciplinary action lightly and should seek their own legal advice.

An employer may ask to view evidence of an employee’s vaccination status without raising privacy obligations provided they do not collect (i.e. make a record or keep a copy of) this information. An employer should not collect vaccination status information from an employee unless the employee consents and the collection is reasonably necessary for the employer’s functions and activities. However, consent to collection is not required if the collection is required or authorised by law (for example, a public health order applies or where it is necessary for the employer to meet their obligations under WHS laws). More information about workplace privacy is available at:

Find out what is considered proof of vaccination at What counts as proof of vaccination?

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What counts as proof of vaccination?

Australians can access proof of vaccination after they have been vaccinated through myGov, their vaccination provider (including a medical practitioner) or the Australian Immunisation Register. See Services Australia – How to get proof of your COVID-19 vaccinations external-icon.png for details.

Posted on September 5, 2021, in ConspiracyOz Posts. Bookmark the permalink. Leave a comment.

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