In light of the recent directions mandating vaccinations for authorised workers in Victoria, we discuss what employers need to know, key details about the directions and inform you of the steps your business must take over the coming week to comply.
On October 7, the Victorian Government announced that all employees who are authorised workers are to be fully vaccinated against COVID-19 by 26 November 2021. Find the full list of “authorised workers” published by the Victorian Government here. Employees who are authorised workers must have had their first dose of the vaccine by 22 October 2021 (“first dose deadline”), in order to attend a work premise.
For all the updates to date Public Health Directions – COVID -19 Mandatory Vaccinations
The Public Health Directions will have significant impacts on the operation of all types of business. There are a lot of questions about what you need to do, what you can tell staff, and what your options are if an employee refuses to comply. We set out some guidance below.
Under the Directions released – from 15 October 2021, employers who employ or engage employees within the listed “authorised workers” must now collect, record and hold vaccination information about employees vaccination status.
From 15 October 2021, in order for your employees to work outside their ordinary place of residence, employees must provide to their employer:
- evidence that the employee has received their first dose of the COVID-19 vaccine, or
- evidence that the employee has a booking to receive their first dose by 22 October 2021, or
- evidence of a medical exemption from an authorised medical practitioner.
For employees who cannot work from their ordinary place of residence, the effect of the Direction may have consequences for their ongoing employment.
It's important to note that other industry sectors such as education, construction, healthcare and aged care, are already subject to a range of separate Directions. When assessing your employees situation, it is important to consider the other separate Directions, as they continue to apply.
An employee may be exempt and authorised to work if the employee has obtained certification from a medical practitioner that the employee is unable to receive a dose or a further dose of the vaccine due to medical contraindication. A list of authorised medical practitioners can be found here.
Employees Refusing and Non-Compliance
It is important to have discussions and facilitate open communication with your employees. The current Direction announced is only in force until 21 October 2021 and it could be expected that these Directions are extended. However, it is important that if you are unsure about what your obligations and requirements are as an employer, you should seek immediate legal advice as compliance with the Directions is mandatory under the Public Health and Wellbeing Act 2008 (Vic). Failure to comply with the Directions is an offence.
Steps for the employer to implement
- Employee consultation - Inform your employees as soon as practicable of the information and the Direction – advising of the information you are required to request.
- Information Collection - Review your record-keeping protocols – ensuring that all personal information that is collected is only accessible by those who need to know and who are collecting and recording the information for the purpose of the Direction.
- Alternate Arrangements – For those employees who have not been vaccinated, such employees may need to take an absence from work without pay, or use accrued leave entitlements. However, employers may want to also consider discussing with employees alternative working arrangements, if possible.
What we can learn from court decisions so far
In a recent decision of the Fair Work Commission, the majority of the Full Bench of Fair Work Commission upheld the decision in not granting permission to an appeal of an unfair dismissal application concerning an aged care receptionist who was dismissed for refusing the influenza vaccine based on her contraindication to the vaccine. The majority of the Full Bench found that, in the circumstances, the vaccination direction was both lawful and reasonable, and the employee’s refusal to be vaccinated rendered her unable to perform the inherent requirement of her role.
While the decision involved influenza vaccine and not a COVID-19 vaccination, it is of significance, as the Fair Work Commission would consider similar principles for an employee being dismissed for refusing to take a COVID-19 vaccine, in similar circumstances to this case. Employers should take this as a reminder that the circumstances surrounding the mandatory COVID-19 vaccines are frequently evolving. Employees that are faced with implementing the Directions, should be reminded to work with employees and consider employee refusals on a case-by-case basis, to ensure there are no grounds for unfair dismissal.
How we can help
For assistance with the developing regulations surrounding COVID-19 vaccination, or wanting to speak to us regarding workplace policy or advice on compliance and employees, contact our commercial team today to have a discussion. Call us today on (03) 9743 1333 or email
The above is general information only and should not be relied upon or taken as legal advice.