Mandatory vaccination directions in Victoria

By Alison Baker and Iona Goodwin 

Victoria’s new COVID-19 Mandatory Vaccination (Workers) Directions (new Directions), issued on 7 October 2021, impose obligations on employers in Victoria about the vaccination of certain workers. Fines may be imposed for non-compliance or the provision of false information.

The new Directions should be read alongside other COVID-19 directions currently in force. Importantly, the new Directions do not apply to those workers and employers covered by the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 6), which continue to impose obligations on operators of residential aged care facilities, construction sites, healthcare facilities, and education facilities.

The new Directions list a broad range of workers to whom they apply, including those in emergency services, retail workers, entertainment and function workers, higher education workers, etc. We recommend employers review the list to determine its application to their operations, noting not all workers who may be 'authorised workers' are listed.

Specific obligations under the new Directions

From 15 October 2021, an employer must not permit a worker (as defined in the new Directions) (worker) who is unvaccinated to work outside the worker’s ordinary place of residence (they must not be permitted to work on-site) unless the worker:

• is fully vaccinated (has received both doses of a COVID-19 vaccine); or
• is partially vaccinated (has received one dose of a COVID-19 vaccine); or
• has made a booking to receive a first dose of a COVID-19 vaccine by 22 October 2021 (the first-dose deadline); or
• holds certification from a medical practitioner certifying that an exception applies to them, or another exception applies.

What information does the employer need to collect, record and hold?

Under the new Directions, an employer must collect, record and hold vaccination information about any worker who is or may be scheduled to work outside of the worker’s ordinary place of residence on or after 15 October 2021.^[1]

Vaccination information is defined in the new Directions and includes information recorded in a variety of documents such as a letter from a medical practitioner, a certificate of immunisation, or an immunisation history statement obtained from the Australian Immunisation Register.^[2]

If the employer collects information that a worker has been partially vaccinated, the employer must also collect, record and hold information about whether that worker has a booking to receive a second dose of the COVID-19 vaccine by 26 November 2021 (the second-dose deadline).

If the employer collects information that a worker is unvaccinated, the employer must also collect, record and hold information about whether that worker has a booking to receive, by 22 October 2021, a dose of a COVID-19 vaccine.

If the employer does not hold any vaccination information about a worker, the employer must treat the worker as being unvaccinated (which means the worker cannot work outside the worker’s ordinary place of residence).

As soon as practicable after 7 October 2021, employers must:

• comply with the obligation to collect, record and hold vaccination information about workers;
• inform workers of the employer’s obligation to collect, record and hold vaccination information; and
• inform workers that on and after 15 October 2021, they cannot permit an unvaccinated worker to work outside the worker’s ordinary place of residence (unless an exception applies).

If an employer engages a new worker who may be required to work outside the worker’s ordinary place of residence on or after 7 October 2021, the employer must inform the new worker of the employer’s obligations regarding the collection, recording and holding of vaccination information and the prevention of entry to the workplace of unvaccinated workers (unless an exception applies).

Privacy considerations

Given the sensitive nature of the information employers will be collecting, recording and holding, they need to be mindful of obligations relating to the privacy of this information and of communicating to their employees that they will comply with these obligations.

Guidance recently published by the Office of the Australian Information Commissioner (guidance) concerning privacy obligations under the Commonwealth Privacy Act and COVID-19 may assist employers. We note in particular the guidance provides that:

• an employer may collect vaccination status information without consent only where the collection is required or authorised by law such as a public health order or direction;
• only the minimum amount of personal information reasonably necessary to maintain a safe workplace should be collected, used or disclosed;
• vaccination status information should only be used or disclosed on a ‘need-to-know’ basis;
• employers must inform employees about how this information will be handled (for example, through the implementation of an appropriate policy); and
• employers must take reasonable steps to keep employee vaccination status and related health information secure.

Employers complying with their obligations under the new Directions should be aware that while the employee records exemption under the Privacy Act applies to the personal information of employees of private sector employers after the personal information has been collected (but does not apply to prospective employees and contractors), employers will still have privacy obligations under the Victorian Health Records Act.

In the present circumstances, including reportedly higher than usual levels of employee concern about the collection of this kind of information, employers may wish to reassure employees about their commitment to protecting the privacy of this information.

What if an employer fails to comply with the new directions?

A refusal or failure to comply with the new Directions can expose an individual to a fine of up to $21,808.80 and a body corporate to a fine of up to $109,044.

The provision of false or misleading information can expose an individual to a fine of up to $10,904.40 and a body corporate to a fine of up to $54,522.

If you need assistance in managing your approach to the new Directions, please contact a member of our Employment and Workplace Relations team.

[1] Section 4(1), Page 2.
[2] Definition of ‘Vaccination Information’, Section 8(7), Page 5.