13 August 2021

The Fair Work Ombudsman has issued fresh advice for employers considering making the Covid vaccine mandatory for workers, setting out a four-tier system to determine when such an order would be reasonable.

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The FWO’s updated advice urged employers to “exercise caution if they’re considering making Covid-19 vaccinations mandatory in their workplace and get their own legal advice” noting that legality will be determined on a case-by-case basis.

Factors that influence the reasonableness of a direction include: the nature of the workplace, community transmission, the effectiveness of vaccines, employers’ circumstances, employees’ reasons for refusing, and vaccine availability.

The FWO declared it was “more likely” to be reasonable to require vaccination for tier one work, where staff are in contact with people at risk from coronavirus, such as airline workers, or in tier two, where they work with vulnerable people, such as aged care.

Tier three work, where there is interaction with the public, may allow employers to require vaccination, but this is more likely if there is community transmission.

Tier four work with minimal face-to-face interaction is unlikely to allow employers to direct their staff to be vaccinated.

On Friday the Australian Council of Trade Unions secretary, Sally McManus, said the advice meant only employers covered by public health orders should require vaccines and for everyone else there was “no clear right” to do so.

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