Following an announcement by the Premier on Friday 1 October, the Victorian Acting Chief Health Officer has now issued Mandatory Vaccination Directions (Directions) that apply to select workers1 (previously referred to as authorised workers) except those in specific industry groups of healthcare, aged care, construction and education.
Workers include employees, volunteers and other persons engaged by the employer, such as students.
Under the Directions, employers must not permit workers to work (other than from home) unless:
- On or before Friday 15 October, the worker provides evidence that they:
- are fully vaccinated; or
- are partially vaccinated and, if so, they must also provide evidence of having made a booking to receive the second vaccination dose by Friday 26 November 2021; or
- are unvaccinated and, if so, they must also provide evidence of having made a booking to receive the first vaccination dose by Friday 22 October 2021(in which case they may work until that date but from 22 October must meet the requirements in 1, 2 or 4); or
- have a medical certificate that states that due to a ‘medical contraindication’ or ‘acute, medical illness’, the worker cannot have the vaccine; and
- On or before 26 November, the worker provides evidence that they:
- are fully vaccinated; or
- have a medical certificate referred to above.
Employers may allow a worker to work while unvaccinated from 22 October if the worker:
- was not able to receive their first vaccine dose before 22 October because they were self-isolating; and
- has a booking to receive the vaccine within seven days of the end of their self-quarantine period.
Employers are required to collect, record and hold the necessary vaccination status information about the worker and to take reasonable steps to ensure that a worker who has not complied with the requirements in point one above does not enter or remain on the site, except in the case of an emergency situation or critical unforeseen circumstance as strictly defined.
Australian Privacy Principle 3 allows a person to collect health records where such collection is in accordance with a regulation pursuant to a State law. The Directions fall within this definition. Such collection must, however, be in accordance with Australian Privacy Principle 5, which includes a requirement that a collection notice is issued.
Employers are also required as soon as practicable to tell workers of their employer’s obligations under the Directions and that if the worker does not meet the vaccination requirements, they will not be permitted to work (unless they can work from home).
Application to Contractors and Labour Hire
The Directions do not give power to host employers to require the production of information on the vaccination status of contractors or labour hire workers. There are steps host employers can take to encourage and ensure compliance in respect of non-employees. Please contact us directly for further advice.
Other Health and Safety Measures
It is important to note that the Directions do not affect employers’ rights or obligations under health and safety legislation, including to ensure that there are appropriate controls in place to manage the risks of COVID-19 in the workplace. This means, for example that, in the case of workers with a medical exemption, additional control measures may be appropriate. Please contact us directly for further advice.
Significant financial penalties apply for any non-compliance with the Directions. Employers, therefore, need to be aware that if they have workers who do not meet the criteria set out above, the employer cannot allow them to work outside their home.
If such workers cannot effectively work from home, they are not presenting for work as ready for work, and therefore they can be lawfully stood aside until such time as they do present as ready for work. This means they must not enter the workplace, and if there are no alternative duties for them to perform, they will not be entitled to be paid until such time as they do present as ready for work.
An employer could agree to allow an employee to take their accrued annual leave, long service leave or RDOs in the short term while they are trying to comply or to await further developments.
It is possible that ultimately the only option is the termination of employment on the grounds that the employee cannot perform the inherent requirements of their role if there are no reasonable alternatives. We would urge employers to seek further advice about individual circumstances before moving to that option, including to ensure that they comply with anti-discrimination, unfair dismissal and general protections laws.
We can assist you to ensure your business is compliant with the Directions, including preparing the required notice to workers and privacy collection notice, as well as advising you on the various implications of the Directions for your business.
If you would like to discuss these developments further, please contact a member of our Workplace Relations team.
1. As specified in the Worker List in Schedule 1 of the Directions.
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