This time last year, following the introduction of COVID-19 vaccines and corresponding public health orders, some employers were implementing policies and procedures requiring their employees to be fully vaccinated (with two doses) against COVID-19 before returning to the workplace.

Now, a year on, the state and territory governments have all but scrapped mandatory self-isolation and vaccine requirements, leaving employers considering whether it is still appropriate to have mandatory vaccination policies in place.

Employers can only require their employees to be vaccinated where:

• a public health order requires it;
• the requirement is permitted by an enterprise agreement, other registered agreement or employment contract; or
• they give employees a lawful and reasonable direction to be vaccinated.

Public Health Orders

In New South Wales, COVID-19 vaccines are only mandated in the following industries:

• disability care services, where all staff, health practitioners and students must have had three doses of a COVID-19 vaccine (exemptions apply);
• aged care, where workers must have either had three doses of a COVID-19 vaccine or show that they have taken reasonable steps to receive their third dose; and
• health care, where workers must have had two doses of a COVID-19 vaccine.

In all other industries, employers may choose to implement their own policies regarding vaccine requirements of their employees and service providers. There are no public health orders requiring employers to either continue or cease to mandate the first two doses of a COVID-19 vaccine, nor for them to mandate a third or fourth dose of a COVID-19 vaccine.

The Australian Government is constantly reviewing its advice about the current public health orders in each state.

Despite the absence of a public health order, where employers have a vaccine policy that is included in an enterprise agreement or an employment contract, they are permitted to continue to implement that policy.

If there is no vaccine policy, the direction by employers to be vaccinated will be assessed on a case-by-case basis as to its lawfulness and reasonableness. It is important that any direction by an employer does not contradict an employee’s rights under anti-discrimination laws.

Fair Work Ombudsman’s four-tier model

The Fair Work Ombudsman (“FWO”) has issued advice for employers regarding whether it is reasonable to direct an employee to be vaccinated against COVID-19 by considering the following four tiers of work:

• Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (for example, employees working in 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 COVID-19 (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.
• 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).

As per the FWO’s advice, a direction requiring employees performing tier 1 or 2 work to be vaccinated is more likely to be reasonable, while a direction to employees performing tier 4 work is likely to be unreasonable.

For employees performing tier 3 work, the FWO advises considering whether community transmission of COVID-19 is occurring where the employee is located and whether the employee is attending the workplace to perform their role.

Unfair dismissal landscape in the Fair Work Commission and courts

If an employee refuses to be vaccinated, despite a public health order, enterprise agreement, employment contract or lawful and reasonable direction by their employer requiring them to, and they do not have a medical contraindication, their employer may terminate their employment.

The Fair Work Commission (“FWC”) has heard a number of unfair dismissal cases relating to employees who were terminated from their employment for failing to be vaccinated against COVID-19. The vast majority of these cases have been unsuccessful.

In a decision handed down by the FWC in July 2022, Deputy President Asbury provided guidance for unfair dismissal claimants regarding what the FWC can and cannot consider. In summary, the guidelines include that:

• the Australian courts have upheld the legal validity of public health orders;
• where an employee is subject to the requirements of a public health order, their employer is prohibited by law from allowing them to attend the workplace without evidence of vaccination;
• any requirement or incentives by an employer for their employees to comply with public health orders is not considered coercion or force;
• employees are entitled to their views about vaccination and may refuse to be vaccinated, but that choice may result in them being legally excluded from the workplace;
• employers are not required to prove the safety or efficacy of COVID-19 vaccinations to their employees or to the FWC; and
• employers are not required to lobby Governments to have directives revoked or amended before dismissing employees for non-compliance.

The High Court of Australia has also refused special leave to hear an appeal over the NSW Government’s COVID-19 vaccination mandates from October 2021, therefore upholding the original decision that the public health orders of the time were legally valid. If heard, it would have been the first case on this issue to be heard by the High Court.

Advice for Employers

Where a public health order applies, employers must continue to enforce vaccine mandates as required.

Where no public health order applies, but employers have a vaccine policy in their enterprise agreement or employment contracts, they are able to continue to implement that policy at their discretion. Where no public health order applies, and employers do not have a vaccine policy in their enterprise agreement or employment contracts, employers may only direct their employees to be vaccinated if it is lawful and reasonable to do so.

Kirryn West James, Director