We perform functions under the Fair Work Act. These functions may need us to consider vaccination issues at work. We do not have general power to deal with vaccination disputes at work.
In performing our role, we may need to consider vaccination related issues. For example where we receive:
an application about unfair dismissal or general protections involving dismissal where the person says they were dismissed because they did, or did not, receive a vaccination or provide proof of vaccination
a dispute under a dispute resolution procedure in an enterprise agreement about the introduction of a workplace vaccination policy.
We do not have the power to deal with all vaccination disputes at work.
Common vaccination-related issues
We have prepared summaries of some decisions, statements and recommendations made by Members of the Fair Work Commission. These will help you understand the common vaccination-related issues we have dealt with. These summaries are for guidance only. You should read the full cases using the link in the summaries.
Unfair dismissal applications
In deciding whether an employee was unfairly dismissed because they did, or did not, receive a vaccination, a Member of the Commission may need to consider vaccination-related issues such as whether:
the employer had a valid reason for dismissing an unvaccinated employee because being vaccinated was an inherent requirement of the employee’s job;
alternative duties were available to the employee which did not require the employee to be vaccinated; and
an employer had met any consultation obligations in relation to the introduction of a vaccination-related policy
Vaccination-related issues may also arise where, for example:
there is a dispute about whether the employee has been dismissed;
the employee is a casual employee and has not been offered shifts because they are not vaccinated.
General protections applications
Vaccination-related issues may arise in general protections applications, such as where:
- there is a dispute about whether the employee has been dismissed
- the employee is a casual employee and has not been offered shifts because they are not vaccinated
For more information about general protections disputes, see Understand general protections.
Disputes about workplace vaccination policies
The Commission may consider disputes about an employer’s direction that employees be vaccinated where a dispute resolution procedure in an enterprise agreement, modern award, public sector determination, contract of employment or other written agreement allows the Commission to deal with the dispute.
Entitlement to be paid while employee is stood down or on leave
The Commission may consider whether an unvaccinated employee is entitled to be paid while they are stood down or on leave.