The Victorian Government’s vaccine mandate means that many Victorian employees and contractors will be required to be vaccinated as a condition of continuing to work or returning to onsite work, with employers and site operators having the obligation to ensure that their employees and contractors are complying with the mandate.*
In a previous article Passports to work: Vaccine passports in the workplace, we provided some general advice to guide employers when deciding on vaccination requirements in their workplace. In this article, we specifically consider the Victorian Government’s vaccine mandates and the implications for employers, employees and contractors.
Industries and employees affected
The vaccine mandates are made by the Chief Health Officer under the Public Health and Wellbeing Act 2008 (Vic). As of 8 October 2021, the COVID-19 Mandatory Vaccination Directions mandate that most workers working onsite and away from home across Victoria must have booked into receive, and have received, their first and second dose of a COVID-19 vaccine before the relevant dates (more on dates below).
Previous Mandatatory Vaccination Directions required workers working on construction sites, in residential aged-care, heathcare and education facilities to be vaccinated. On 8 October 2021, this was extended to most workers authorised to work away from home across the State. The list of authorised workers to whom the mandate applies can be found on the Government's website.
It is unclear how long the vaccine mandates will be in place in Victoria, or at what vaccination level the mandates might be removed (for example, once 80% or 90% of the population over 12 is fully vaccinated).
Obligations on employers and site operators
The health directions require employers and siteoperators to collect, record and hold vaccination information for the relevant workers, and to only permit those workers who can provide evidence of being vaccinated to attend onsite or carry out work outside their home (unless they have an approved medical exemption). If a worker cannot provide the evidence of their vaccination status, the employer or site operator cannot permit them to attend the site or carry out work outside their home.
There are three relevant dates employers and site operators need to be aware of:
- The date by which you must collect workers’ vaccination information and ensure that they have booked to receive their first dose;
- The date by which workers must have received their first dose of a COVID-19 vaccine; and
- The date by which workers must have received their second dose of a COVID-19 vaccine.
There are specfic provisions for outdoor personal training staff with Melbourne and other restricted areas within the State.
If an employer or site operator fails to comply with the directions, they may receive an infringement notice or they may be prosecuted. If they are prosecuted a court may impose a fine of up to$21,808.80 per offence for individuals and $109,044.00 for bodies corporate.
The greatest difficulty for employers and site operators with the vaccine mandates arises where workers are not vaccinated and do not have a medical exemption from a medical practitioner.
In relation to employees of a business, in the first instance we recommend considering whether unvaccinated employees can work from home.
If that is not possible, and the effect of the vaccine mandate is that they cannot carry out the work for which they are employed, then you will need to consult with the relevant employees and explain their options to them. This could include:
- Asking your employees to take paid annual leave or long service leave;
- Asking your employees to take unpaid leave;
- If your unvaccinated employees could carry out some (but not all) of their work from home, only employing them forthe hours that they can work at home;
- For casual employees, not providing shifts as long as the mandate is in place.
If those options are not viable for a particular employee, then you may have no choice but to treat the employee as being absent from work without leave or stand the employee down from work on the basis that they are not able to lawfully carry out the work for which they were employed.
As a last resort, you may also consider dismissing the employee. For employees protected from unfair dismissal under the Fair Work Act 2009 (Cth), you would need to be satisfied that the dismissal was fair in the circumstances, having regard to the business’s situation, the employee’s period of service, whether alternative options are available, the likely length of the vaccine mandate and any other factors that may be relevant.
If you have unvaccinated contractors that are required to work onsite, in most circumstances you could require them to cease providing their services on the basis that they cannot lawfully carry out their duties under their contract. However, the exact approach will vary depending on the terms of the contract and you should review your contractor agreements, and in particular the default and termination clauses.
It is to be hoped that the vaccine mandates will facilitate the re-opening of the Victorian economy, but it does also place businesses with unvaccinated workers in a difficult situation. If you would like advice on your business’s particular situation, including assistance with drafting communications to workers, please feel free to contact us.
* This article was updated on 8 October, 2021
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The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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Samuel is a Senior Associate at Sharrock Pitman Legal.
He deals with areas of Commercial Law, Employment Law and Charities & Not-for-Profit Law. For further information, contact Samuel on his direct line (03) 8561 3316.