The New COVID-19 Mandatory Vaccine Mandates and What They Mean For You

• Residential aged care facilities;
• Construction sites;
• Healthcare facilities; and
• Education facilities.

The Workers Directions and the Specified Directions are now in force in Victoria, across both Regional and Metropolitan areas.

Legal Basis of the Powers

The Specified Facilities Directions and the Workers Directions are made in accordance with the emergency powers arising from the declared State of Emergency in accordance with section 200 of the Public Health and Wellbeing Act 2008 (Vic):

(1) The emergency powers are—

(a) subject to this section, detain any person or group of persons in the emergency area for the period reasonably necessary to eliminate or reduce a serious risk to public health;

(b) restrict the movement of any person or group of persons within the emergency area;

(c) prevent any person or group of persons from entering the emergency area;

(d) give any other direction that the authorised officer considers is reasonably necessary to protect public health.

The State of Emergency cannot exceed four weeks, however, can be extended for further four-week periods, currently set to expire on 15 December 2021. It is highly likely that either the State of Emergency will be extended for the duration of the Pandemic, or pandemic- specific legislation will be passed to enable further public health measures. Therefore, replacement Directions will likely be issued when the above Directions expire.

Key Features of the Directions

Operators of Specified Facilities are to collect and record vaccination status information, and prevent unvaccinated workers entering or remaining on specified facilities after the relevant dates contained in Schedule 1 of the Directions.

For other employers, including those who are self-employed, the Workers Directions impose an obligation to collect, record and hold the worker’s vaccination status information of an employee if the worker is, or may be, scheduled to work outside the worker’s ordinary place of residence.

There are limited exceptions for “excepted persons”, for example, if a worker holds a medical certificate from a medical practitioner that the worker is unable to receive the COVID-19 vaccine.

What does all of this mean if I am an employer?

If you are an employer, and you have an employee unwilling to be vaccinated, you must consider a range of issues such as:

• the express contractual terms of the employee’s contract, including any applicable enterprise agreement and what they provide; and
• the implied powers of employers to terminate an employee if the direction is lawful and reasonable.

Whether a direction is reasonable and lawful, will rest on each individual circumstance and the relevant factors will vary from case to case.

For further information, we suggest that business monitor the Directions on a daily basis, as this is a dynamic issue and is constantly subject to change.

The Dispute Resolution team are available to discuss your queries or concerns. 

Please contact Michelle Dunn-Vaughan – michelledv@lewisholdway.com.au or John Wood – johnwood@lewisholdway.com.au.

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.