Employment Update – No Jab, No Job

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From 17 December 2021, or when 80% of Queenslanders (16+) have been fully vaccinated (whichever comes first), unvaccinated Queenslanders will not be able to:

  • visit vulnerable settings (hospitals, residential aged care, disability care accommodation and prisons – exemptions may apply);
  • attend hospitality venues such as hotels, clubs, pubs, taverns, bars, cafes and restaurants;
  • attend indoor entertainments venues (nightclubs, bars, live music venues, theatres, cinemas);
  • attend outdoor entertainment activities such as sporting stadiums, theme parks and tourism experiences/excursions;
  • attend festivals (indoor or outdoor) such as music festivals, folk festivals or art festivals; or
  • attend Queensland Government owned galleries, museums or libraries.

Unvaccinated people will still be able to access essential services.

For further information, visit the Queensland Government website here.

Who, How and Why?

These restrictions will apply to all individuals who are not fully vaccinated. Fully vaccinated individuals are persons who have had both doses of a COVID-19 vaccine recognised by the Therapeutic Good Administration (TGA). This will apply to both staff and patrons of businesses that operate or provide a restricted activity.

The Chief Health Officer (CHO) will be making a public health direction in relation to these restrictions, which will be binding on all residents and visitors to Queensland.

The Queensland Government has noted that the purpose of these measures is to keep Queenslanders safe and to allow businesses and venues to return to full operating capacity once the Queensland borders are open to other States, Territories and international travellers.

Can I lose my job if I am not vaccinated?

In short, yes. Once made official by way of public health order, the restrictions will become an obligation imposed on all individuals outside of the work environment (whilst not performing work) as opposed to an obligation which is imposed by an employer.

In a Victorian case, Beydoun & Ors v Northern Health & Ors (2021), the Fair Work Commission made a distinction between the obligations of an employer to consult with respect to matters concerning the work environment and performance of work, and a public health order imposed by the CHO, which required employers to take reasonable steps to ensure unvaccinated individuals do not enter the premises. The requirement to receive a vaccine outside of the work place did not give rise to an obligation for the employer to consult in accordance with the relevant enterprise agreement. In essence, a public health order is distinguishable from an obligation to consult about OHS matters which concern managing and controlling risks, in that an employer must comply with the CHO’s directions.

Employers are therefore free to initiate and take disciplinary action (including termination) against employees who fail to comply with a direction arising out of a public health order. The question of whether such direction is ‘reasonable’ effectively becomes irrelevant, or perhaps deemed.

Furthermore, non-essential businesses in Queensland will be required to take reasonable steps to enforce the new restrictions, and the onus will be on individuals to show proof of their vaccination status before entering the premises. This means unvaccinated employees of such businesses may find themselves in a position where they are ‘ready and willing’ to perform their duties, but not ‘able’ due to public health orders, which may be grounds for dismissal.

Apart from losing employment, prospective employees who are unvaccinated may also have difficulty securing employment with any businesses subject to the restrictions. It will not be surprising if employers (if they have not already) implement mandatory vaccine policies going forward and perhaps even make it a prerequisite to qualify for a position. 

If you have any questions about your rights and obligations as an employee or employer with respect to COVID-19 and vaccinations, please do not hesitate to contact our team.

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