Please note that the FWO guidance was published in April 2021 but is regularly updated, the most recent update being 20 August 2021. Please visit the FWO website for the most up to date information.
Generally speaking, a Local Government cannot direct all employees be vaccinated. However a Local Government may direct employees to be vaccinated if:
- there is a public health order, enterprise agreement or employment contract requiring an employee to be vaccinated; or
- it is a lawful and reasonable direction for a Local Government to direct an employee to be vaccinated.
This is consistent with our previous ER Alert 4 / 2021 on COVID-19 vaccinations issued earlier this year.
Lawful and Reasonable Direction to be Vaccinated
Whether a direction is lawful and reasonable will need to be determined on a case by case basis.
For a direction to be lawful, it must be consistent with any employment contract, award, or industrial agreement and any Commonwealth, state or territory law that applies. To be lawful the direction does not need to be required by law but rather the test is that the direction does not involve any contravention of a law. By way of example, a direction to vaccinate may be unlawful if an employee has a disability which prohibits them from receiving the vaccine as this may contravene anti-discrimination legislation.
The FWO has expanded its guidance to set out four tiers of work to assist with this case by case assessment to determine if a direction is reasonable. This can be demonstrated by work examples.
- Tier 1 work: For example, employees working in hotel quarantine or border control. A direction to be vaccinated may be reasonable.
- Tier 2 work: For example, employees working in health care or aged care. A direction to be vaccinated may be reasonable.
- Tier 3 work: For example, employees working in stores providing essential goods and services. A direction to be vaccinated may be reasonable, but this will depend on the circumstances of the work, including whether there is community transmission of COVID-19 in that area.
Tier 4 work: For example, where employees are working from home. A direction to be vaccinated is unlikely to be reasonable.
What Can Your Local Government Do?
Aside from vaccinations, Local Governments need to implement other measures to manage the safety of staff and customers. These measures may include meeting physical distancing requirements, providing guidance on hand hygiene and regularly cleaning and disinfecting the workplace. Please view resources from Safe Work Australia, WorkSafe WA, and the NT Government.
In response to the availability of COVID-19 vaccinations, some workplaces have been:
- encouraging employees to be vaccinated;
- providing Government health information on vaccinations to employees;
- including provisions in employment contracts around vaccinations for new employees;
- providing leave or other incentives for employees to be vaccinated, where appropriate.
Before providing leave or other incentives for employees to be vaccinated, WA Local Governments should obtain advice from LGIS and NT Local Governments should obtain advice from their insurer.
If you have any questions about this alert, please email WALGA Employee Relations or call 1300 366 956.
