COVID vaccinations and your rights

At the time of writing, no overarching laws in Australia allow employers to mandate vaccinations and all vaccinations are undertaken on a voluntary basis.

Despite this, for most organisations, a state or territory public health law could require employees to be vaccinated. If no such law exists, an enterprise agreement, employment contract or agreement could dictate whether an employer can lawfully require vaccinations.

If no guidance is provided in these avenues, whether it is reasonable for employers to require vaccinations is likely to be assessed on a case-by-case basis including considerations of the industry of employment (e.g is the employee working in health-care or providing aged-care services), the nature of the work and whether the worker deals directly with clients and customers, whether alternate work arrangements are possible and the current local health advice.

If the employee has legitimate reasons for forging the vaccination, anti-discrimination laws may be available.

Under the Privacy Act 1988 (Cth), employees are required to provide information directly related to the employment relationship which will form part of their “employee records” and is an exemption to employers’ privacy obligations and principles. This only applies to existing employees and no prospective employees only to the extent it is directly related to the employment relationship.

The Fair Work Act 2009 (Cth) and both state and federal anti-discrimination legislation outlaws discrimination on the basis of a persons’ race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, social origin or other protected attribute.

Where the employee breaches their employment contract or agreement, they may be lawfully dismissed by their employer, including in instances where a contractual term delineates the requirement to get vaccinated.

Where this does not exist, termination of employment based on the refusal to get vaccinated may constitute unfair dismissal although the employer may have a strong argument in the contrary based on the industry of employment (e.g is the employee working in health-care or providing aged-care services), the nature of the work and whether the worker deals directly with clients and customers, whether alternate work arrangements are possible and the current local health advice.