All Australian states are currently rolling out COVID-19 vaccinations at full speed. At the current pace, it is expected that by early November the two-dose vaccination rate across Australia (for those aged 16 and over) will reach 70%, and by mid-November it will reach 80%.

One can imagine that in the period ahead, whether or not a person has been vaccinated will affect every aspect of our lives, work and study.

Is vaccination mandatory in Australia?

Prime Minister Morrison said:

“Employers can give employees ‘reasonable directions’ regarding vaccination, but any direction must be ‘lawful’.” He then added: “There is no mandatory vaccination policy in this country, and ultimately employers need to consider these issues and make their own decisions.”

Qantas and Other Large Australian Companies and Certain Industries

Qantas has announced mandatory vaccination for its employees, requiring all frontline staff to complete two doses of the COVID-19 vaccine within three months. Pilots, crew members and airport staff of Qantas and Jetstar must be fully vaccinated by 15 November, while the deadline for other employees is 31 March 2022. The CEO warned: “The aviation industry is not suitable for those employees who are unwilling to be vaccinated against COVID.”

Similarly, packaged-fruit producer and canned-food manufacturer SPC will ban unvaccinated employees from entering the workplace, making it the first non-health-related company in Australia to issue such a ban.

In June this year, the National Cabinet agreed that all workers in residential aged-care facilities across the country must be vaccinated by mid-September.

How Is Lawful and Reasonable Determined?

The following circumstances generally need to be considered:

1. Whether the Public Health Orders require the employee to be vaccinated

2. Whether the employment contract or other agreement stipulates vaccination requirements

3. If neither applies, it is necessary to consider whether the direction issued by the employer to the employee to be vaccinated is lawful and reasonable.

Four Work “Tiers” to Help Assess “Reasonable Requirements”

In August 2021 the Fair Work Ombudsman released new vaccination guidelines. The updated advice outlines four work “tiers” to help assess whether mandatory vaccination is a “reasonable” requirement.

Tier 1 refers to employees who are required to interact with high-risk groups, such as hotel quarantine and airport workers. 

Tier 2 refers to those who are required to deal with vulnerable people, such as healthcare and aged-care workers.

Tier 3 covers employees who have daily interactions with the public, such as many retail and supermarket workers.

Tier 4 is directed at employees who rarely need face-to-face contact.

NS Legal Analysis

However, both the tier classifications and the suggested considerations are relatively broad and general. In addition to the scope and responsibilities of the job itself, it is also necessary to consider risks within the workplace, the region and location, and the personal circumstances of the employee, among other factors. There are therefore quite a few grey areas that can easily give rise to disputes.

Moreover, most industries currently cannot make vaccination mandatory. Of course, this depends on whether the situation changes in the future, or whether the government introduces new work health and safety requirements for specific industries.

If an Industry Does Not Require Mandatory Vaccination but an Employee Becomes Infected, Is the Employer Legally Liable?

At present there is insufficient evidence that COVID-19 vaccines affect the transmission of the virus, meaning that an employee may still become infected even if vaccinated. It is therefore unlikely that an employer would breach Work Health Safety (WHS) laws simply by not requiring employees to be vaccinated.

As an employer, where possible you can encourage employees to get vaccinated. At the same time, you must continue to implement all reasonably practicable control measures in the workplace, such as social distancing, good hygiene practices and enhanced cleaning.

As an employee, if you feel unwell you should not go to work, even if you have been vaccinated.

My Co-workers Have Not Been Vaccinated and I Feel Unsafe — Can I Refuse to Come to Work?

Under Work Health Safety (WHS) laws, an employee may only stop or refuse to carry out work where there is a ‘reasonable concern’ that carrying out the work would expose the employee to a serious risk to health or safety, or to immediate or imminent harm. In most cases, an employee cannot stop work under Work Health Safety (WHS) laws simply because another employee in the workplace has not been vaccinated — it depends on the specific circumstances.

More specifically, because there is currently insufficient evidence that COVID-19 vaccines affect the transmission of COVID-19, there is no basis to refuse to work in the same workplace as unvaccinated employees solely on the grounds of vaccination.

However, for vulnerable employees, employers should continue to make reasonable work arrangements, such as arranging work from home.

If I Am Suspended or Dismissed for Not Being Vaccinated, Is That Discrimination Against the Employee?

The forms of discrimination currently protected by legislation include race, colour, sex, sexual orientation, age, mental or physical disability, marital status, family or carer responsibilities, pregnancy, religion, political opinion, and national or social origin. Whether or not a person has been vaccinated is not discrimination under the legal definition, and it will be difficult to classify it as discrimination in the future.

Put simply, if an employer requires employees to be vaccinated in accordance with the law, relevant regulations, or other reasonable grounds, that is not discrimination against the employee. However, if an employee cannot be vaccinated for medical reasons such as a physical disability and is therefore dismissed, this may fall within disability discrimination protected by law, and in that case the employer’s conduct may amount to discrimination against the employee.

If I Am Dismissed for Not Being Vaccinated, Is That Unfair Dismissal?

According to the Fair Work Ombudsman, one of the elements of unfair dismissal is that the employer’s conduct must be harsh, unjust or unreasonable.

Returning to the ‘lawful and reasonable’ requirement mentioned above, all of this requires the employer first to carry out a risk assessment of the work environment. First, it is necessary to look at whether there are relevant regulations in the employer’s industry requiring mandatory vaccination, whether the groups the employee comes into contact with include vulnerable populations, and whether there are other control measures in place at the workplace.

When conducting a risk assessment, there must be a “reasonable concern” (‘reasonable concern’), meaning that if the suspended employee continued to work, they would expose other employees to a serious risk to health or safety, or there would be immediate or imminent harm to themselves or others. In such circumstances, the employer’s conduct may well be reasonable.

Therefore, whether the employer’s conduct amounts to unfair dismissal needs to be determined on a case-by-case basis.

If I Feel I Have Been Treated Unfairly, What Can I Do?

If you feel you have been treated unfairly at work, you can contact the Fair Work Ombudsman to raise or lodge a complaint about your issue.

The Fair Work Ombudsman is the government agency dedicated to dealing with labour matters. Its functions include:

– Providing information about Australian workplace laws

– Helping employees and employers understand their rights and obligations

– Assessing and investigating compliance with workplace laws

– Enforcing workplace laws where breaches are found