With the ongoing rollout of COVID vaccines across the country, many Australian businesses and industries are considering implementing mandatory vaccines as a requirement for an employee to attend work. Despite an individual’s or organisation’s view on mandatory vaccines, it is important to remain updated on the current status of the law.

In principal, employees have an obligation to comply with directions issued by their employer, as long those orders are “lawful and reasonable”.

On 12 August 2021, the Fair Work Ombudsman (FWO) released a 4-tier system which ranked the reasonableness of a direction to be vaccinated in certain workplaces. The FWO ranked the tiers as follows:

• Tier 1 work: where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel 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 coronavirus (for example, stores providing essential goods and services).
• 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 (for examples, stores providing essential goods and services).
• 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).

However, these guidelines are just one part of the process for employers, as there will often be other factors which relate to specific workplaces that are relevant in determining whether a direction is “reasonable.”

In some circumstances, certain industries and workplaces already have mandatory vaccine policies in force under Public Health Orders. If such a Public Health Order exists, employers and employees must comply. Different Public Health Orders are currently in force in different jurisdictions around Australia.  As such, obligations can vary from workplace to workplace.

If an employer does seek to implement a mandatory vaccine policy, that employer should also first carefully consider all relevant obligations under anti-discrimination and privacy laws.

As this is a fluid and evolving situation , employers should continue to monitor the latest advice and recommendations from a variety of agencies, including the Fair Work Ombudsman, Safe Work Australia, and both Federal and State governments.

This article was prepared with the assistance of Rhys Mapstone, law student.

John Hayward
WGC Lawyers