Mandatory vaccination directions for workers – Part 3

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Can Dan Andrews require workers to be sacked?
Victorian workers are being told they have to jab or lose their jobs. But legal questions abound.

Today, on 8 October 2021, new so-called “mandatory vaccination” directions were made.

I have set out the statutory framework for these types of directions in Part 2.

I commented in Part 1 on the 7 days during which no directions had been made, but everybody took the Premier’s press release as law. It wasn’t.

The new directions are called the: Covid-19 Mandatory Vaccination (Workers) Directions under the Public Health and Wellbeing Act 2008 (Vic)

The Directions apply to some 140 categories or sub-categories of workers in Victoria.

Some of those categories have already fallen away. The Spectator reports in the article “Will someone please explain to Dan Andrews he can’t sack a judge who isn’t double jabbed.” that judges and other court-related ‘workers’ will be ‘exempt’ from the mandate. Whoops.

What do the Directions from Acting Chief Health Officer dated 8 October 2021 mean?

The Directions issued today are in my view likely unlawful, and are certainly temporary. 

They do not force people to get vaccinated. They put pressure on employers to keep records and keep unvaccinated people out of the workplace.

It’s very extreme, a clear breach of human rights, and completely unjustified as a ‘State of Emergency’ ‘urgent’ step. After more than 18 months of Covid, and many months of voluntary vaccination, it’s totally untenable to see mandatory vaccination (or coercion to that effect) as an urgent emergency.

They only operate from midnight 7 October until midnight 21 October 2021. 

The State of Emergency currently expires on 21 October 2021.  If it is extended, new Directions have to be made.  It cannot be extended beyond 15 December 2021.

The Directions require an employer to collect, record and hold vaccination information about a worker.  (clause 4(1)).

If the worker tells an employer that they are unvaccinated, the employer must collect, record and hold information about whether the worker “has a booking to receive” a first dose by 22 October 2021.  (clause 4(3)).

That means a worker could tell the employer that they have a booking to receive a first dose by 22 October 2021.

Therefore the Directions do not require a worker to be vaccinated by any date prior to the expiration of the directions.

Vaccination information “is information about a person’s vaccination status”.  It could be information that the worker tells the employer.  It  “includes information that is derived from a record of information…” but it does not state whether the information must be derived from a record of any kind.  It doesn’t require an app or a certificate or a vaccine passport (clause 8(7)).

Therefore the Directions do not require a worker to be vaccinated, but require a worker to provide information, including orally, about their vaccination status (or their booking information).

Despite the above, an employer is not required to comply with clauses 4 and 5 if an exceptional circumstance exists.  For example, “to continue essential operations due to an emergency situation or a critical unforeseen circumstance” (clause 6(2)(b)).

“Critical unforeseen circumstance means a circumstance that the employer could not reasonably have foreseen nor planned for which results in a critical need for staff” (clause 10(3)).  That could include the unforeseen circumstance of this Direction itself, which could have the effect of suddenly decimating the workforce.

What is the time-reach of the Directions?

The Directions expire on 21 October 2021.

That’s it. They can’t be extended. It is speculation as to whether another set of Directions may be made after that.

These Directions only relate to the period for which they exist. Not a future date.

As to the so-called vaccination due dates (first jab, second jab), some of these dates fall outside the ambit of the directions.

It’s impossible to have an urgent emergency direction that requires someone to do something in the future after the direction expires.

So when the direction ‘mandates’ a booking for a first jab by 22 October 2021, and a second jab by 25 November 2021; it shows the overreach here. How can you mandate that someone book a medical procedure for a date which falls outside the ambit of the direction?

The authorised officer might think that the directions are going to continue. But under the Statute, each set of directions has to be considered on its own, not with a speculative view to the future. Each and every time, the authorised officer has to form the requisite statutory intention (as described in Part 2 of this series.)

Penalties in this Direction do not refer to the worker’s provision of information to an employer. It’s all imposed on the employer.

Really? Do employers need more red tape covering all their workers when the majority of the population were happy to get vaccinated anyway?

After the State of Emergency ends, as I have said in Part 2, this kind of Direction won’t be able to be made. I appreciate that some workplaces have specific issues, like aged care residences, because of the close contact required with vulnerable people. But it’s not the same for all workplaces in Victoria.

It is hard to imagine any lawful or ethical basis on which ongoing vaccination status can be a requirement of working in most jobs when our normal governing framework resumes. Therefore, these mandatory vaccination directions can only be a short-term knee jerk reaction to the anticipated political panic that the government presumably fears at the end of lockdown.

They have nothing to do with legal, humane and ethical ongoing management of Covid as part of our society going forward.

5 comments on “Mandatory vaccination directions for workers – Part 3

  1. Fiona …. the information on mandatory vaccination should be read by every victorian and every victorian should be grateful for you setting it out so clearly and concisely. thanks for speaking so forthrightly on these issues when so many are burying their heads in the sand. there has to be further question about the standing of the state of emergency law because it has been used to violate human rights that are protected in international covenants to which australia is a state party. the federal government has not complied with the prerequisites allowing the abrogation of human rights anywhere in australian territory. nowhere in australia is there now or has there been a situation threatening ‘the life of the nation’ as stipulated in the international covenant on civil and political rights. the commitment australia has made would surely oblige the federal government to ratify what andrews has done or otherwise declare that it has put australia in breach of the covenant. as for mandatory vaccination anywhere in australia there seems to almost no room for manoeuvre. it breaches the ethical obligations of every medical association in the world, as safeguarded, again, in instruments of international law which australia has ratified. the threat that doctors must comply with government policy or face ‘regulatory’ action puts them in an impossible situation if they happen to think that vaccination is not in the best interests of their patients, which is their overriding obligation. it amazes me that the AMA has not spoken out on these issues. i see that daniel andrews is following the pending end of lockdown with the threat to lock out the unvaccinated. this is surely incitement, setting one section of the population (the majority) against the minority but there is no more outrage at this than there has been at any of the premier’s actions in the state over the past 18 months or more. it shocks me that the compliance of the victorian people and the media has reached such a low state. thanks again for your terrific input.

  2. Thank you for the summary – it’s very disturbing to witness a government misleading the people with such alacrity Peter Cain LLB

  3. The Directions apply to the employers of “workers”. “Workers” are defined by the Directions as people in certain vocations listed by the Directions. Not every worker in Victoria. There are explicit exemptions and everyone else not listed is implicitly exempt, the Directions do not apply to them. Do you agree with this logic?
    My job (IT work) is not listed by the Directions yet my employer issued a vaccine policy demanding our personal sensitive information, refusing to issue work permits, forcing to take leave. No amount of arguing helped, they are hell bent on this. They even admit I am right, this is a quote from their correspondence: “Company maintains that direction to require workers to provide evidence of their vaccination status is lawful and reasonable, irrespective of whether Company workers fall within the ambit of the Mandatory Vaccination (Worker) Directions or not. “
    What can be done? I have complained to the company Privacy Officer and the ethics board, but they will simply take weeks to tell me to bugger off.
    I fully expect this to be extended or rather re-issued today and then again until 15th of December.

    1. Impulse buyer please see my other reply to “Tash” on the site today. I think you should get some legal advice. A company might maintain that their actions are lawful and reasonable, but your legal adviser might tell you otherwise. A lawyer can tell you what actions you may take. Good luck!

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