My rights and responsibilities at work

Employers have obligations to keep you and your workplace safe, healthy and functioning effectively. According to Safe Work Australia, employers have different options for how they can eliminate risks – strategies that are called ‘controls’. Different controls can have different levels of protection, and it’s up to your employer to consider all relevant factors to assess what is most reasonable for your workplace.

Getting and spreading COVID-19 is a workplace risk that we can all face, so all employers should be considering different controls to minimise that risk. In this case vaccination may be recommended by health experts as an effective control, but there are other controls we can combine to boost safety, as vaccination may not eliminate the risk of COVID-19. These could include social distancing, masks, good ventilation, and regular cleaning, for example.

The pandemic is constantly changing, so employers should be staying up to date from legitimate sources like the Fair Work Ombudsman, WorkSafe, or Safe Work Australia. They should also be keeping communication open with you about what they’re doing as things change.

If an employee fails to follow a lawful and reasonable direction, and an employer considers disciplinary action, the employer must still follow a fair process. This may include (but may not be limited to):

• Giving the employee a chance to present their reasons for failing to follow the direction, and have a support person present
• Considering alternatives to disciplinary action (for example, an alternative role)

The Fair Work Ombudsman has more information.

When you have a job, you agree to its ‘inherent responsibilities’. That’s even considering protected attributes like disability, because you have a right to your employer making reasonable adjustments that make doing inherent responsibilities possible for you.

Law Professor Joo-Cheong Tham describes two conditions from the Fair Work Ombudsman where it may be lawful and reasonable for your employer to mandate that you get vaccinated, based on your inherent work responsibilities:

1. You have a high risk of contracting or transmitting COVID-19 because of who you work with. For example: hotel quarantine.
2. You have close contact with people vulnerable to serious implications from having COVID-19. For example: aged care.

According to the Office of the Australian Information Commissioner (OAIC), an employer can ask for your vaccination information when it’s relevant to work, but they must follow A professional way of doing something most correctly, ethically and legally.best practice steps to collect, handle, store and use it appropriately. They should only be asking for information they really need, and it is highly protected by the Privacy Act.

Depending on your work, there might also already be terms in your contract or An agreement that includes the terms and conditions of your employment.enterprise agreement that require you to disclose vaccination information. Public health orders might also require that your employer knows your vaccination status.

Your employer may also ask you for proof when there has been a vaccine mandate. According to the OAIC:

Where your employer has provided a lawful and reasonable direction to you to be vaccinated, your employer can ask you to provide evidence of your vaccination, if this is reasonably necessary. Your employer must also obtain your consent.

–OAIC

You may have heard people talking about vaccine mandates from government, or vaccine directions from employers as ‘discrimination’ against someone who doesn’t want to get vaccinated. But what is discrimination, legally speaking?

Under The Equal Opportunity Act 2010 (Vic), there are some Qualities, traits or characteristics that, by law, cannot be discriminated against.protected attributes, including:

• Disability
• Gender
• Religion

See all protected attributes according to the Fair Work Ombudsman.

Legally speaking, discrimination on the basis of a protected attribute, and in a certain area (like work or education), may be unlawful.

Not wanting to get vaccinated, or vaccination status, is not a protected attribute under discrimination law.

If your reason for not wanting to get vaccinated is related to a protected attribute, discrimination law may assist you in some circumstances. For example, if you have a health condition which means you are at risk of having a bad reaction to a vaccine, as discussed with your doctor, an employer direction to get vaccinated may be unlawful.

Under Victorian health directions mandating vaccinations, there are exceptions for authorised workers who have a certification from a medical practitioner of a A reason for someone to not have a medical treatment, like a vaccine, because it could be harmful.medical contraindication or acute medical illness.

Some people have argued that not getting vaccinated comes under the protected attribute ‘political belief or activity’. However, the Victorian Equal Opportunity and Human Rights Commission notes that ‘political belief or activity’ is usually narrowly interpreted as a protected attribute. That basically means that what’s counted as political discrimination is fairly restricted, so it’s unlikely to apply to people who oppose vaccines mandated by employers.