Can a private sector employer require an employee to be vaccinated against COVID-19?

Most private sector employers should assume that they cannot require an employee to be vaccinated against COVID-19.

There is a public health order which requires people who work in WA's hotel quarantine system to be vaccinated against COVID-19. Other than this order there are currently no laws or public health orders that specifically enable private sector employers to require an employee to be vaccinated against COVID-19.  

Visit the WA Government website, for information on the COVID-19 coronavirus, including the latest health advice and public health directions. You can also find information about the COVID-19 coronavirus and vaccinations on the Federal Department of Health website.

There may nonetheless be some limited circumstances where an employer may be able to require an employee to be vaccinated.

Whether an employer can require an employee to be vaccinated against COVID-19 is likely to depend on the specific situation.

An employer can generally give an employee a lawful and reasonable direction. Whether a direction requiring an employee to be vaccinated against COVID-19 is considered lawful and reasonable will depend on the circumstances. Employers are encouraged to seek independent advice on their specific situations.

There are a range of factors that may be considered, including:

• whether a law, an industrial agreement or an employment contract allows an employer to require an employee to be vaccinated;
• any enforceable directives of the State or Federal Government which are in place at a particular time;
• an employer’s duties under workplace health and safety laws;
• the type of work being performed by an employee;
• the nature of the workplace;
• an employee’s specific circumstances, including whether an employee has a legitimate reason for not being vaccinated (for example, a medical reason); and
• an employee’s protections under equal opportunity and anti-discrimination laws.

Employees who are sick with the COVID-19 coronavirus cannot attend work. Full time and part time employees who cannot come to work because they are sick with the COVID-19 coronavirus can take accrued paid sick leave. 

Under the Minimum Conditions of Employment Act 1993, full time and part time employees accrue paid sick leave equivalent to the number of hours they would ordinarily work in a two week period – up to a maximum of 76 hours per year. Sick leave is a cumulative entitlement, which means that any unused sick leave is carried over and added to the next year’s entitlement.

An employer can require an employee to provide reasonable evidence before they are paid for any time off work on sick leave. Reasonable evidence may include a medical certificate, but is not necessarily limited to this.

Please refer to the Sick and carer’s leave entitlements page for more information.

If an employee has used up all of their paid sick leave, an employer and employee may agree that the employee access another form of accrued paid leave, such as annual leave or long service leave, for the period the employee is unable to attend work. Information on annual leave and long service leave is available on the Wageline website.

Annual leave must generally be taken by agreement between an employer and employee. An employer cannot direct an employee as to when they must take a period of annual leave.

An employer also cannot direct an employee who is covered by the Long Service Leave Act to take long service leave at a particular time. Some employees are entitled to long service leave under an award, industrial agreement, other legislation or an agreement with their employer. Employers must comply with those provisions, including in relation to whether they are or are not able to direct an employee to take a period of long service leave at a particular time.

Under the termination provisions of the federal Fair Work Act 2009, which apply to state system employees, it is unlawful to terminate an employee on certain specified grounds, including temporary absence from work due to illness or injury. For more information visit the Fair Work Ombudsman website.

If an employee needs to look after a family member or a member of their household who is sick with the COVID-19 coronavirus, they are entitled to take accrued paid carer’s leave. Under the Minimum Conditions of Employment Act, the entitlement to paid carer’s leave is:

• in the first year of employment, a full time or part time employee can use any paid sick leave that he or she has accrued to date for caring purposes;
• on the second and subsequent years of employment, a full time or part time employee cannot take more carer’s leave than the entitlement they have accrued during the preceding 12-month period;
• an employee is entitled to up to two days of unpaid carer’s leave per occasion if an employee does not have sufficient paid leave accrued or has exceeded the maximum amount of carer’s leave that can be taken in any 12-month period; and
• casual employees can access up to two days of unpaid carer's leave per occasion. 

Awards, industrial agreements and contracts of employment which provide more beneficial entitlements than the Minimum Conditions of Employment Act must also be complied with.

For the purposes of carer’s leave, a member of the employee’s family or household is defined by the Minimum Conditions of Employment Act as any of the following persons:

• the employee’s spouse or de facto partner;
• a child, step-child or grandchild of the employee (including an adult child, step-child or grandchild);
• a parent, step-parent or grandparent of the employee;
• a sibling of the employee; or
• any other person who, at or immediately before the relevant time for assessing the employee’s eligibility to take leave, lived with the employee as a member of the employee’s household.

An employer can require an employee to provide reasonable evidence before they are paid for any time off work on carer’s leave. Reasonable evidence may include a medical certificate, but is not necessarily limited to this.

Please refer to the Sick and carer’s leave entitlements page for more information.

If an employee has used up all of their paid carer’s leave, they may agree with their employer to access another form of paid leave such as accrued sick leave (notwithstanding that the employee has used their allocation of carer’s leave), annual leave or long service leave for the period the employee is unable to attend work. Information on annual leave and long service leave is available on the Wageline website.

Annual leave must generally be taken by agreement between an employer and employee. An employer cannot direct an employee as to when they must take a period of annual leave.

An employer also cannot direct an employee who is covered by the Long Service Leave Act to take long service leave at a particular time. Some employees are entitled to long service leave under an award, industrial agreement, other legislation or an agreement with their employer. Employers must comply with those provisions, including in relation to whether they are or are not able to direct an employee to take a period of long service leave at a particular time.

Example:

Robert is a full time employee whose wife has contracted the COVID-19 coronavirus and Robert is required to care for his wife while she is at home and unwell. 

Robert’s employment is not covered by an award or industrial agreement. His leave entitlements therefore come from the Minimum Conditions of Employment Act. Robert has approximately 8 weeks of sick leave accrued, and he is entitled to use 10 days of his sick leave as paid carer’s leave. If Robert needs more time off work he can agree with his employer to use his other paid leave entitlements, including the remainder of his sick leave. 

For information regarding self-isolation procedures and requirements, please refer to the WA Department of Health, Australian Government Health Department or the WA Government Coronavirus Health Information Line (1800 020 080). 

Self isolating employees who are not sick

If the employee is not sick there is no legal requirement under the Minimum Conditions of Employment Act 1993 for the employer to provide an employee with access to paid sick leave for the period of self-isolation or quarantine. As the employee is unable to make themselves available to attend work due to the federal Department of Health or State isolation requirements, there is no requirement for the employee to be paid for this period, unless the employee takes some form of paid leave.

The employer is able to allow the employee to access accrued paid leave such as annual leave or long service leave. Information on annual leave and long service leave is available on the Wageline website.

Annual leave must generally be taken by agreement between an employer and employee. An employer cannot direct an employee as to when they must take a period of annual leave.

An employer also cannot direct an employee who is covered by the Long Service Leave Act to take long service leave at a particular time. Some employees are entitled to long service leave under an award, industrial agreement, other legislation or an agreement with their employer. Employers must comply with those provisions, including in relation to whether they are or are not able to direct an employee to take a period of long service leave at a particular time.

The employer and employee may wish to discuss working from home arrangements if this suits the work situation. Alternatively, the employer and the employee can agree that the employee will take unpaid leave.

Employees who are caring for children who are required to self isolate

In a situation where an employee is required to stay home to provide care for their child who is required to self-isolate, the carer’s leave provisions in the Minimum Conditions of Employment Act may apply. Under this Act, carer’s leave includes leave taken by an employee to provide care or support to a member of the employee’s family or household who requires care or support because of an unexpected emergency affecting the member.

Further information can be found on the Sick and carer’s leave entitlements page.

The employer is also able to allow the employee to use any other form of accrued paid leave such as annual leave or long service leave. Information on annual leave and long service leave is available on the Wageline website.

Annual leave must generally be taken by agreement between an employer and employee. An employer cannot direct an employee as to when they must take a period of annual leave.

An employer also cannot direct an employee who is covered by the Long Service Leave Act to take long service leave at a particular time. Some employees are entitled to long service leave under an award, industrial agreement, other legislation or an agreement with their employer. Employers must comply with those provisions, including in relation to whether they are or are not able to direct an employee to take a period of long service leave at a particular time.

Under the Minimum Conditions of Employment Act, carer’s leave includes leave taken by an employee to provide care or support to a member of the employee’s family or household who requires care or support because of a personal illness or an unexpected emergency affecting the member. 

A school or childcare facility closing due to the COVID-19 coronavirus may be an unexpected emergency affecting a member of an employee’s family or household for this purpose.

Under the Minimum Conditions of Employment Act, the entitlement to paid carer’s leave is:

• in the first year of employment, a full time or part time employee can use any paid sick leave that he or she has accrued to date for caring purposes;
• in the second and subsequent years of employment, a full time or part time employee cannot take more carer’s leave than the entitlement they have accrued during the preceding 12-month period;
• an employee is entitled to up to two days of unpaid carer’s leave per occasion if an employee does not have sufficient paid leave accrued or has exceed the maximum amount of carer’s leave that can be taken in any 12 month period;
• casual employees can access up to two days unpaid carer's leave per occasion. 

Awards, industrial agreements and contracts of employment which provide more beneficial entitlements than the Minimum Conditions of Employment Act must also be complied with.

If an employee has used up all of their paid carer’s leave, they may agree with their employer to access another form of accrued paid leave such as sick leave, annual leave or long service leave for the period the employee is unable to attend work. Information on annual leave and long service leave is available on the Wageline website.

Annual leave must generally be taken by agreement between an employer and employee. An employer cannot direct an employee as to when they must take a period of annual leave.

An employer also cannot direct an employee who is covered by the Long Service Leave Act to take long service leave at a particular time. Some employees are entitled to long service leave under an award, industrial agreement, other legislation or an agreement with their employer. Employers must comply with those provisions, including in relation to whether they are or are not able to direct an employee to take a period of long service leave at a particular time.

Example:

Cora receives an email from her child’s school stating that the school is closed for 48 hours, as a teacher is in self-isolation after being tested for the COVID-19 coronavirus. Cora contacts her employer to let the employer know that she will need to stay at home during the school closure as she has no other alternative care arrangements, and provides a copy of the email from the school as evidence of the need to take paid carer’s leave.

Example

Government directs the closure of schools

Dharani and Tom are full time employees. Dharani and Tom’s children attend a State public school. On 26 March, the WA State Government directed that from 30 March families should keep their kids home from school if possible and that formal classes will officially end one week early on 3 April.

Dharani and Tom are unable to find alternative care arrangements for their children. Tom therefore needs to stay home to care for and support their children during the school closure from 30 March to 10 April. Under his written contract of employment, he is entitled to take any portion of his accrued personal leave as carer’s leave. As the school closure is an unexpected emergency affecting a member of Tom’s family, he is entitled to take paid carer’s leave for the duration of this school closure. He provides a copy of the WA State Government direction to his employer as evidence of his need to take paid carer’s leave.  

Example

Closure of vacation care

Novak is a part time employee working 30 hours per week. He is also a single parent to a school aged child. Novak’s child was booked into vacation care during the term break. The vacation care provider has advised Novak that it will no longer be providing vacation care due to the COVID-19 coronavirus. Novak is unable to find alternative care arrangements for his child during the term break. As the vacation care closure is an unexpected emergency affecting a member of Novak’s family, he is entitled to take paid carer’s leave.

Novak’s employment is not covered by an award or industrial agreement and he does not have a written contract of employment. He is therefore entitled to carer’s leave under the Minimum Conditions of Employment Act. Novak is able to take up to 60 hours of accrued carer’s leave as this is the number of hours he would ordinarily work in a two week period. If Novak requires more than 60 hours of carer’s leave, his employer can agree to Novak using accrued sick leave for this purpose.

Novak provides a copy of the advice from the vacation care provider to his employer as evidence of his need to take paid carer’s leave.

If an employer is directing an employee to stay away from the workplace as a precautionary measure in circumstances where the employee is not required to self-isolate and the employee is ready, willing and able to work, working from home arrangements should be considered. If working from home is not viable the employer would need to pay full time or part time employees their normal wages for the period they are directed to remain away from work.

An employer and employee may agree that the employee access another form of accrued paid leave, such as annual leave or long service leave, for the period the employee is directed not to attend work. Information on annual leave and long service leave is available on the Wageline website.

Annual leave must generally be taken by agreement between an employer and employee. An employer cannot direct an employee as to when they must take a period of annual leave.

An employer also cannot direct an employee who is covered by the Long Service Leave Act to take long service leave at a particular time. Some employees are entitled to long service leave under an award, industrial agreement, other legislation or an agreement with their employer. Employers must comply with those provisions, including in relation to whether they are or are not able to direct an employee to take a period of long service leave at a particular time.

Employees who voluntarily wish to stay home and not attend work as a precaution but are not required to self-isolate must request paid leave from their employer or come to alternative arrangements such as working from home if this practical for the workplace. Normal leave application processes in the workplace would apply.

If the employee does not access some form of paid leave or working from home arrangement, they are not entitled to be paid for the time away from the workplace.

Example:

Sandra is a bookkeeper. She is not sick, but is not comfortable attending work as she needs to utilise public transport. Sandra has discussed working from home with her employer, and agreed that she can work from home two days per week to manage the payroll, and will take the other three days a week as annual leave.

Stand down arrangements previously available to employers and employees participating in the Commonwealth JobKeeper scheme

In 2020, temporary state system JobKeeper provisions were introduced for private sector state system employers and employees who were participating in the Commonwealth JobKeeper scheme. These provisions were implemented by the COVID-19 JobKeeper General Order issued by the Western Australian Industrial Relations Commission on 15 May 2020.

Under the State system JobKeeper provisions, an employer was able to give a ‘JobKeeper enabling direction’ to an employee to temporarily stand down an employee.

The COVID-19 JobKeeper General Order ceased to have effect on 28 March 2021, and the stand down provisions in the COVID-19 JobKeeper General Order no longer apply. 

Current stand down arrangements in Western Australia

Where there is no work or reduced work available to employees, employers must continue to pay full time and part time employees who are ready, willing and able to work, unless the employees are covered by a WA award which contains specific stand down or break down provisions which cover this scenario. Full time and part time award free employees would need to continue to be paid by the employer, unless they have a written contract of employment with a stand down provision in it.

An employer and employee can agree that the employee takes a period of accrued annual leave, long service leave or unpaid leave during a period when business is impacted. Information on annual leave and long service leave is available on the Wageline website.  

Annual leave must generally be taken by agreement between an employer and employee. An employer cannot direct an employee as to when they must take a period of annual leave.

An employer also cannot direct an employee who is covered by the Long Service Leave Act to take long service leave at a particular time. Some employees are entitled to long service leave under an award, industrial agreement, other legislation or an agreement with their employer. Employers must comply with those provisions, including in relation to whether they are or are not able to direct an employee to take a period of long service leave at a particular time.

WA award employers and employees

Some WA awards contain provisions which enable an employer to stand down an employee without pay in certain circumstances such as a stoppage of work by any cause which the employer cannot reasonably prevent. 

Whether the option of standing down employees is available in circumstances relating to the COVID-19 coronavirus is dependent on the facts. Employers would need to be able to demonstrate that there has been a stoppage of work and that stoppage was not reasonably preventable by the employer, and that the employees to be stood down could not be otherwise usefully employed.

The option of standing down an employee due to the impacts of the COVID-19 coronavirus should be exercised with caution. The capacity of a particular employer to stand down a particular employee under a WA award will depend on the facts relating to that employer and employee. If an employer unlawfully stands down an employee, it may amount to an award contravention and the employer may be required to repay the employee’s wages in addition to penalties.

Some of the WA awards that contain stand down or breakdown provisions are listed below. Please note this list does not include all WA awards that may have stand down provisions and you should check the stand down provisions of the relevant WA award. The WA awards are available on the Western Australian Industrial Relations Commission website.

• Building Trades Award 1968
• Building Trades (Construction) Award 1987
• Clerks (Hotels, Motels and Clubs) Award 1979
• Earth Moving and Construction Award
• Food Industry (Food Manufacturing or Processing) Award
• The Fruit Growing and Fruit Packing Industry Award
• Furniture Trades Industry Award
• Hairdressers Award
• Hotel and Tavern Workers' Award
• Industrial Spraypainting and Sandblasting Award
• Meat Industry (State) Award, 2003
• Motel, Hostel, Service Flats and Boarding House Workers' Award
• Restaurant Tearoom and Catering Workers' Award
• Rock Lobster and Prawn Processing Award 
• Sheet Metal Workers' Award No. 10 of 1973
• Transport Workers' (Passenger Vehicles) Award
• Vehicle Builders' Award
• Wine Industry (WA) Award 2005

For information on stand down provisions in these or other WA awards please check the relevant WA award on the Western Australian Industrial Relations Commission website or contact Wageline on 1300 655 266 for information.

Does an employee continue to accrue annual leave and sick leave during a (non-JobKeeper enabled) stand down period?

An employee who has been stood down in accordance with a WA award stand down clause will continue to accrue leave entitlements under the Minimum Conditions of Employment Act such as annual leave, sick leave and carer’s leave.

Does an employee continue to accrue long service leave during a (non-JobKeeper enabled) stand down period?

A stand down of an employee in accordance with the provisions of an WA award or industrial agreement does not break the employee’s period of continuous employment for the purposes of long service leave. The stand down period is not, however, included when calculating the length of an employee’s period of continuous employment. The practical effect of this is that an employee’s period of continuous employment is paused for the duration of the stand down with respect to long service leave accrual and the date at which an employee becomes entitled to long service leave is pushed out.

A full time or part time employee is redundant when their employer has decided that they no longer wish the job the employee has been doing done by anyone.  

In a situation where an employer intends making staff redundant due to the impact on the business of the COVID-19 coronavirus, the employer must first hold discussions with and consult with all employees who may be affected by the decision. If an employee nominates a union to represent them, that union must also be notified and consulted.

In a redundancy situation, there is an additional obligation for an employer to provide notice of the proposed terminations to Centrelink. The employer should also consult with any relevant union with membership at the workplace in this situation.

Employers are also required to provide paid leave for job interviews during the employee’s notice period, up to one day a week.

When an employee has been made redundant they are entitled to receive:

• the appropriate notice period or pay in lieu of notice (if the employee is not required to work the notice period); 
• any unpaid wages;
• any untaken accrued and pro rata annual leave;
• any untaken accrued long service leave;
• pro rata long service leave (if applicable); and
• severance/redundancy pay (if applicable).

A number of employees are generally not entitled to severance pay:

• casual employees;
• apprentices and trainees;
• probationary employees;
• employees with less than one year’s service;
• fixed term contract employees; and
• employees terminated due to serious misconduct or for other reasons not related to redundancy.

A requirement to pay severance pay also does not generally apply to businesses with less than 15 employees (including casual and part time employees).

However, some WA awards have specific severance pay requirements that apply to all businesses, including those with less than 15 employees, and/or provisions that do apply to one or more of the employee groups listed above. 

The Redundancy payments page lists the amount of severance payable to employees and lists those WA awards under which businesses with less than 15 employees must make severance payments.

Employers can apply to the Western Australian Industrial Relations Commission to have the severance payment varied if they:

• do not have the capacity to pay; or
• find acceptable alternative employment for the employee.

Visit the Redundancy information page for more information on redundancy.

Employers should also check any specific provisions in the relevant WA award which may provide more favourable redundancy entitlements than those outlined above.

Where an employer decides to introduce changes to the organisation or structure of a business in response to the COVID-19 coronavirus and these changes are likely to have a significant effect on an employee – such as requiring the transfer of the employee to lower paid duties – the employer must first hold discussions with the employee and consult with all employees who may be affected by the decision. If an employee nominates a union to represent them, that union must also be notified and consulted.

Transferring an employee to lower paid duties

As a general principle, transferring an employee to lower paid duties can only be done with the agreement of both the employer and employee. An agreed variation to an employee’s contract of employment which transfers an employee to lower paid duties may amount to a termination of the original contract of employment and the creation of a new contract.

In this situation, an employer would be obliged to provide notice of termination (of the original contract) or payment in lieu of notice. The amount of notice of the transfer is the same notice the employee would have been entitled to if their employment had been terminated.

Information on notice periods is available on the Dismissal notice periods and Redundancy notice periods page.

A notice period is to be paid according to the employee’s higher paid duties under the original contract of employment. Payment in lieu of notice, where the employee is now working in lower paid duties, equals the difference between the amount the employee would have been paid according to their original (higher paid) duties and their now lower paid duties hours for the duration of the notice period.

Is an employee required to accept a transfer to lower paid duties?

As a general principle, an employee is not required to accept a transfer to lower paid duties. Where an employee refuses to accept an employer’s decision to transfer the employee to lower paid duties, the employee may be able to argue that the employer has effectively terminated the contract of employment. The employer would then be required to provide notice of termination or payment in lieu of notice and may be required to pay redundancy pay to a full time or part time employee. 

However, there may be provisions in an award, industrial agreement or contract of employment which address the circumstances in which an employer may transfer the employee to lower paid duties without the employee’s agreement. Employers should comply with these provisions.

Arrangements previously available to employers and employees participating in the Commonwealth JobKeeper scheme

In 2020, temporary state system JobKeeper provisions were introduced for private sector state system employers and employees who were participating in the Commonwealth JobKeeper scheme. These provisions were implemented by the COVID‑19 JobKeeper General Order issued by the Western Australian Industrial Relations Commission on 15 May 2020.

Under the State system JobKeeper provisions, an employer was able to give a ‘JobKeeper enabling direction’ to an employee to temporarily stand down an employee, including by reducing their hours or days of work.

The COVID-19 JobKeeper General Order ceased to have effect on 28 March 2021, and the stand down provisions in the COVID-19 JobKeeper General Order no longer apply. 

Reducing a full time or part time employee’s regular working hours - current information for Western Australia

As a general principle, a variation to an employment contract which reduces a full time or part time employee’s regular working hours can only be done with the agreement of both the employer and employee. An agreed variation which reduces an employee’s regular working hours may amount to a termination of the original contract of employment and the creation of a new contract.

For example, changing a full time employee to a part time employee is a fundamental change to the employee’s original contract of employment which impliedly terminates the contract and creates a new contract. In this situation, an employer would be obliged to provide notice of termination (of the original contract) or payment in lieu of notice. The amount of notice of the reduction in working hours would be the same notice the employee would have been entitled to if their employment had been terminated.

Information on notice periods is available on the Redundancy notice periods and the Dismissal notice periods page.

A notice period is to be paid according to the employee’s working hours under the original contract of employment. Payment in lieu of notice, where the employee is now working reduced hours, equals the difference between the amount the employee would have been paid according to their original working hours and the reduced hours they are now working for the duration of the notice period.

Is an employee required to accept a reduction in working hours?

As a general principle, a full time or part time employee is not required to accept a reduction in working hours. Where a full time or part time employee refuses to accept an employer’s decision to reduce the employee’s working hours, the employee may be able to argue that the employer has effectively terminated the contract of employment. The employer would then be required to provide notice of termination or payment in lieu of notice and may be required to pay redundancy pay. 

However, there may be provisions in an award, industrial agreement or contract of employment which address the circumstances in which an employer may change a full time or part time employee’s working hours without the employee’s agreement. Employers should comply with these provisions.

Can an employer increase an employee’s regular working hours?

An employer can ask or require a full time, part time or casual employee to work:

• either 38 hours per week, or the ordinary hours specified in an award or industrial agreement; plus 
• reasonable additional hours.

In determining whether additional hours are reasonable, all relevant factors are to be taken into account, including (but not limited to) the following:

• will there be any risk to the employee’s health or safety?
• what are the employee’s personal circumstances, including family responsibilities?
• what is the nature of the business and work done?
• has the employer provided the employee with notice about working additional hours?
• has the employee provided the employer with notice about their intention to refuse to work the additional hours?
• are the additional hours on a public holiday?
• how many hours has the employee worked over the previous four weeks?

Employers must also comply with the provisions of a WA award or industrial agreement which may include requirements regarding working hours, overtime and penalty rates of pay.

Example

Nerina is a part time cleaner working 25 hours per week. She is rostered to work 5 hours per day. Due to increased demand on her employer’s cleaning business, Nerina’s employer has asked her to work an extra 5 hours per week by increasing her daily working hours to 6 hours per day. Nerina is employed under the Contract Cleaners Award.

Nerina and her employer discuss the request and agree that she will commence working the increased hours in one week’s time in order for Nerina to make personal arrangements to accommodate the request.

As Nerina is employed under the Contract Cleaners Award and she has agreed with her employer to extend her ordinary hours of work from 25 to 30 per week, Nerina’s employer would pay her at ordinary rates for the additional hours worked.