Youth Affairs Council Victoria is not a legal service, and this page provides general information, not legal advice. We would like to thank Young Workers Centre and the Disability Discrimination Legal Service for supporting us with the expertise to put this together. If you have concerns related to your legal rights or employment, you should seek legal assistance.

Young fruit shop employee helps a customer. Both are wearing masks.

Everyone has the right and the responsibility to stay COVID-safe at work. This is for our safety, but also our colleagues, anyone who comes to our workplace and the wider community.

Recently in Victoria, there has been a lot of discussion about ‘vaccine mandates’ from government and ‘lawful and reasonable’ directives from employers. Let’s unpack what these actually are, and how they apply to your workplace rights and responsibilities.

A vaccine mandate comes from a government. It is a law or public health order saying that you have to be vaccinated to do something, like travel or work in a certain industry. It doesn’t mean you’re being forced to have a vaccine, but you can be stopped from going certain places or doing certain things if you choose to opt out. Currently in Victoria there is a vaccine mandate* requiring all authorised workers, and workers in certain priority industries like construction and education, to get vaccinated. You can see the lists of authorised workers and required industries for more information. In the case of a vaccine mandate from the government, your employer cannot lawfully allow you to work unvaccinated. Exceptions to vaccine mandates apply for a limited number of medical conditions.

A ‘lawful and reasonable’ direction from an employer happens when an employer has a right to direct an employee to do something, and they can take When an employer does something in response to an employee breaking the rules. For example, they give you a warning or suspend you.disciplinary action if the employee doesn’t follow. ‘Lawful’ is about following the law, including employment contracts or agreements. It mostly means anything ‘not unlawful’. Deciding what is also ‘reasonable’ is a bit trickier, but an employer will consider several relevant factors like advice from health experts, levels of community transmission, the nature of the work (for example, if you must work face-to-face or if you have at-risk clients), the availability of alternative measures (for example, rapid testing or social distancing), and the nature of individual employees’ roles. The Fair Work Ombudsman has published information about this.

In the absence of a government mandate, whether a direction to employees to get vaccinated against COVID-19 is lawful and reasonable depends from case to case. It is yet to be considered by the Fair Work Commission or the Federal Court.* However, there are precedents that directions to employees to have flu vaccines may be lawful and reasonable in certain circumstances. Employers should also be aware of their obligations under anti-discrimination laws, in relation to employees who may have a medical reason to remain unvaccinated.

Examples of employers in industries that do not have vaccine mandates but have directed their employees to get vaccinated include Qantas, SPC, and Latrobe University.* Even before COVID-19 vaccines, several employers have used vaccination directions to keep people safe – for example, in healthcare, childcare or education.

*As at 15 October, 2021.

A young barista wearing a mask handing over a coffee

What are my employer’s responsibilities?

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.

What are my responsibilities as an employee?

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.
Can my employer ask about my vaccination status?

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

 

Do employees have a right to not get vaccinated?

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.

Staying COVID-Safe is important in helping Victoria re-open and stay open. For more information about COVID-19 vaccines and young people, check out our other resources.

This page provides general information, not legal advice. If you have concerns related to your legal rights or employment, you should seek legal assistance.

Sources

Australian Network on Disability, ‘Workplace Adjustments’.

Employment Law Handbook, ‘What is a protected attribute?’, 1 August 2017.

Fair Work Ombudsman, ‘COVID-19 vaccinations: workplace rights and obligations’, 20 September 2021.

Fair Work Ombudsman, ‘Protection from discrimination at work’, September 2021.

Joo-Cheong Tham, The Conversation, ‘Can Australian employers make you get a COVID-19 vaccine? Mostly not – but here’s when they can’, 11 August 2021.

Kerry O’Hagan, Disability Discrimination Legal Service, ‘COVID-19 Q&A: Who’s Being Left Behind?’ webinar, 5 October 2021.

Melanie Jasper and Lucy Tehan, Allens, ‘Can employers mandate COVID-19 vaccinations?’, 28 January 2021.

Office of the Australian Information Commissioner, ‘COVID-19: Vaccinations and my privacy rights as any employee’, 23 September 2021.

Safe Work Australia, ‘Identify, assess and control hazards’.

Tabooka Finn, Justitia Lawyers, VCOSS ‘Vaccinating Victoria’ webinar, 20 April 2021.

Victorian Equal Opportunity & Human Rights Commission, ‘Explainer: Mandatory COVID-19 vaccinations and your rights’, September 2021.