Can employers in Australia enforce mandatory vaccinations in the workplace?

 Australia has fared as one of the most successful countries in the world in dealing with the COVID-19 pandemic. With the roll-out of COVID-19 vaccines commencing in Australia, the legality of whether employers can require employees to be vaccinated against COVID-19 is a trending topic of discussion.

 While this discrete legal issue has not yet been tested, a similar issue was the subject of a recent decision of the Fair Work Commission (the FWC), Australia’s industrial relations commission. During the COVID-19 pandemic, the employer, who provides aged care and other support services to the community, decided to enforce a requirement that employees who were unvaccinated against influenza could not be permitted to work or enter its premises. A Care Assistant of an organisation asserted that she was unfairly dismissed from her employment because she declined to receive the influenza vaccination on the basis that she was allergic.

 The only issue for the FWC to determine at that initial stage was the jurisdictional objection of whether the Care Assistant had been ‘dismissed’ or not from her employment. It held that the employee had been dismissed because the employer refused to roster the employee to work when her paid leave entitlements had been exhausted, meaning that the employee was without work for the predicted future, unless she agreed to be vaccinated against influenza.

 In respect of the legality of employers requiring employees to be vaccinated, the FWC noted that each circumstance of a person’s role is important to consider, in addition to the workplace in which they work.

 It is possible that a direction for employees to be vaccinated against COVID-19 would be lawful and reasonable if it is directed to employees who are deemed ‘essential workers’, employees who work in high-risk industries or to employees who work in premises where social distancing cannot be achieved.

 Further, if it is an inherent requirement of an employee’s role to be vaccinated against COVID-19, the direction of an employer for the employee to be vaccinated will be lawful and reasonable. The facts of each case, including any legislative directions, must be considered before such a direction is made.

 For more information please contact Sathish Dasan on +61 8 8210 1253 or