The latest update from the Fair Work Ombudsman is that employers can now direct their employees to be vaccinated if the direction is lawful and reasonable.
Whether a direction is lawful and reasonable will be fact dependent and needs to be assessed on a case-by-case basis.
Below are some factors that are considered when determining whether a direction to an employee is reasonable, i.e. the nature of each workplace and each employee’s circumstances, including their duties and risks associated with their work.
The 4-tier System
The 4-tier system recommended by the Fair Work Ombudsman will assist with the case-by-case assessment.
- 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 (i.e. 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 (i.e. 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 (i.e. stores providing essential goods and services).
- Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties (i.e. where they are working from home).
Employees performing Tier 3 work
- where no community transmission of coronavirus has occurred for some time in the area where the employer is located, a direction to employees to be vaccinated is in most cases less likely to be reasonable.
- where community transmission of coronavirus is occurring in an area, and an employer is operating a workplace in that area that needs to remain open despite a lockdown, a direction to employees to receive a vaccination is more likely to be reasonable.
The advice for employees that are currently in Tier 3 may change i.e.:
- when there is another outbreak in Western Australia;
- when the health advice given by the Government changes due to a new variant of the virus;
- a part of the population is considered vulnerable i.e. young children.
Some Further Considerations
For a direction to be lawful, it needs to comply with any applicable employment contract, award or agreement, and legislation i.e. anti-discrimination laws.
If you require workplace relations advice, please contact our Workplace Relations team on 9364 5444 or firstname.lastname@example.org