Are you thinking of mandating vaccines in the workplace? 

Updated: Sep 20, 2021

Expert insights with Peter Paradise, Director, Paradise Charnock O'Brien and Mikaela Davis, Associate, Paradise Charnock O'Brien


COVID-19 continues to wreak havoc in Australia which has called for a push to have the entire country vaccinated. Although the vaccine rollout has been slower than expected, current numbers suggest that the adult population will be fully vaccinated by the end of the year. This is a welcome projection for those States and Territories that have been in a seemingly endless on-again, off-again lockdown cycle.


According to the Federal Government’s four-stage roadmap, Australia will move to Phase C when 80% of the adult population is vaccinated. In Phase C, vaccinated Australians would be exempt from domestic restrictions, be able to travel overseas and lockdowns would be a last resort. For vaccinated Australians, this would almost be a return to life pre-COVID-19.


More complex issues arise when considering that portion of the population who, for whatever reason, will not get vaccinated. How the Federal and State Governments will balance public safety with individual freedoms will play out over the next few months as the vaccination rate rises and Australia begins to open.


Except for some instances where workers are required to be vaccinated in order to work, the Federal and State Governments seem to have little appetite to make the vaccine mandatory. The private sector, in some cases, has taken matters into its own hands. At the time of writing, SPC, QANTAS and Alliance Airlines have mandated that all of their employees must be vaccinated.


Considering it is likely that other employers will follow suit, in what circumstances could an employer mandate or be required to mandate its employees to be vaccinated? In answer to this question, some key issues relating to the employer-employee relationship must be examined further.


The Role of Employees


The right of employees to feel safe at work is codified in the Work Health and Safety Act 2011 (Cth) (WHS Law) which is largely in force across all States and Territories.

Section 28(b) of the WHS Law states that an employee must “take reasonable care that [their] acts or omissions do not adversely affect the health and safety of other persons”. It is an offence, with hefty penalties attached, under Part 2, Division 5 of the WHS Law if an employee fails to comply with that duty.


It is not known how far this duty could extend with respect to the risks posed by COVID-19.


For example, if an employee has symptoms indicative of COVID-19, attends the workplace with those symptoms and subsequently infects fellow employees and members of the public, one could argue that the employee has failed to discharge their duty.


Another example is if a construction worker is working across multiple sites, moving around their local area and potentially interacting with members of the public. Are they failing to discharge their duty if they refuse to get vaccinated against COVID-19?

Section 84 of the WHS Law states “[a] worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.”


In response to this, the guidance published by SafeWork Australia (SafeWork Guidance) states that “[i]n most circumstances, a worker will not be able to rely on the WHS laws to cease work simply because another worker at the workplace isn’t vaccinated, however this will depend on the circumstances.”


Again, it all depends on the workplace and the individual employee. However, as Australia moves through this transition period where some age groups are able to get the vaccine and some are not. Due to no fault of their own, employees may not wish to attend the workplace as they are not vaccinated and therefore do not feel safe at work.


The Role of Employers


An employer has several duties to its employees and others under the WHS Law.

This includes at section 19(1), to “ensure, so far as is reasonably practicable, the health and safety” of its employees and, at section 19(2), to “ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.”


This is part of the employer’s primary duty of care and attracts heavy penalties under the WHS Law if an employer fails to comply. As set out in Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2, the duty of care is intended to be a general duty, “requiring employers to participate in the making and monitoring of arrangement for health and safety in the workplace.”


The SafeWork Guidance states that it is unlikely that most employers will need to make COVID-19 vaccinations mandatory to meet its obligations under the WHS Law. However, the SafeWork Guidance also states that an employer should undertake a risk assessment when considering whether it should make vaccinations mandatory.


Whether or not an employer is required to make vaccinations mandatory will therefore largely depend on each employer’s own risk analysis and any applicable surrounding circumstances.


It is interesting to consider how this interacts with the duties of the employees. Is it the employer’s duty to ensure that each of its employees are vaccinated, or is it the employee’s personal duty to be vaccinated due to the nature of their employment?


The Employer-Employee Relationship


Whether or not it is stated in an employee’s contract, it is implied that an employee is to obey lawful and reasonable directions of their employer, provided that the direction is within the scope of employment. This is as set out in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601.


Would a direction by an employer for an employee to get the vaccine be lawful, reasonable and within the scope of the employment? Much like an employer’s adherence to the WHS Law, it depends on a number of factors including those listed by the Fair Work Ombudsman.


This point was also considered in the recent decision of Glover v Ozcare [2021] FWC 2989.

In Glover v Ozcare, the Commission considered whether a direction of Ms Glover’s employer, Ozcare, for Ms Glover to have the flu vaccine was lawful and reasonable. Ms Glover was terminated for not following that direction.


It was held that Ozcare’s direction was lawful as Ozcare was not physically injecting vaccinations into its employees’ arms against their will. It was also not offending any anti-discrimination laws.


Who and how many people Ms Glover would be interacting with were important factors in determining reasonableness. In particular, Ms Glover would be taking care of aged and vulnerable members of the community and would be moving from household to household to carry out her duties.


The important factor in this debate is the concept of reasonableness, an analysis of which would need to be determined on a case-by-case basis.


Taking QANTAS as a timely example, most of its staff are in direct contact with the community every single day. Those members of the community are flying into and flying out of countries all over the world in close proximity to other members of the community who are doing the same. All it would take is for one public-facing employee to test positive for COVID-19 to infect a large number of people. It is therefore unsurprising that QANTAS has mandated vaccinations considering the sheer risk COVID-19 poses to its employees and members of the public regardless of whether they are vulnerable or not.

Unfortunately, there are no clear-cut answers without guidance from statute or law. Emphasising more than ever is that we are living in unprecedented times which may call for unprecedented measures.


Just how far employers and employees are willing to take these measures remains to be seen, however there are rights on both sides of the employer-employee relationship which may cause employers to reconsider how their business will operate as the push for vaccinations continues.


Interested in seeking advice on your policy and how it could impact your business, contact Peter directly at peter.paradise@pcolaw.com.au


















Peter Paradise, Director, Paradise Mikaela Davis, Associate,

Charnock O'Brien Paradise Charnock O'Brien