Victorian workers refusing the Covid vaccine are taking their cases to the Fair Work Commission

Despite people with disabilities being among those most at risk of dying with Covid, a large percentage of NDIS workers remain unvaccinated.

Unjabbed workers taking their beefs to the Fair Work Commission are likely to lose. Picture: Angela Weiss

Workers dismissed for refusing the Covid vax are taking their beef to the Fair Work Commission, but are unlikely to win according to legal experts.

Employment law experts say if employers are enforcing a public health order, workers will struggle to mount a successful case based solely on their right to ‘freedom of choice’.

It comes as it’s revealed 12.5 per cent of NDIS disability workers in Victoria were yet to receive their first jab, as of October 20.

People with disabilities are among the most at risk of becoming seriously sick or dying of Covid-19.

A National Disability Insurance Agency spokesperson said the huge Commonwealth agency had not mandated vaccinations for workers, but ‘strongly encouraged’ them.

The spokesperson said, in Victoria, Commonwealth employees were exempt from the requirement to be vaccinated, and they were not aware of anyone being stood down for refusing to be vaccinated.

Friday marked the first vaccination deadline for thousands of Victorian authorised workers, who now need to have had at least one dose of the Covid vaccine to attend their place of employment.

Employment law expert George Haros said unfair dismissal claims had already made to the Fair Work Commission.

“(It) has started receiving claims from employees who have not complied with the orders and as a result have been terminated,” he said.

Construction workers must have a Covid jab. Picture: David Crosling

“The majority of those claims appear to be unfair dismissal claims.

“The employees are saying that the basis for their termination is either harsh, unjust or unreasonable.”

Mr Haros said the hearings would probably not be heard until late November or December, and complainants were unlikely to win if their employers were following public health orders.

He also said the commission was unlikely to be swamped with complaints.

“I don’t think we’re going to see huge numbers (of Fair Work complaints),” Mr Haros said.

“I think it will be very difficult for the employee to challenge the harshness of their dismissal.”

Employees who did not fall under the Covid vaccine mandate would also struggle to win a case, but “that might be a bit more open to challenge”, he said.

“Given the public health orders in Victoria cover such a significant number of workers in the state that need to attend work . . . it’s going to be quite difficult for employees to be able to bring successful claims.”

Hospitality workers have to be double-vaccinated. Photo by Getty Images

Arnold Thomas & Becker lawyers managing partner Lee Flanagan said it was unlikely discrimination laws would help unvaccinated workers with any unfair dismissal cases.

“As the Victorian government has declared a State of Emergency and given new powers to the chief health officer (CHO), directions made by the CHO must be followed along with other current workplace laws,” he said.

“The current directions clearly suggest that individuals may lose their job, depending on the circumstances and the type of work they do.

“Given the current government guidance, it is unlikely that discriminations laws will protect those who choose not to be vaccinated. That means you could lose your job if you refuse to be vaccinated.

“These directions have been put in place to keep workplaces safe and to protect member of the general public in their interaction with workers.”

As of Friday, more than 90 per cent of Victorians aged over 16 had received at least one dose of the Covid vaccine, placing people reluctant to get the jab in a growing minority.

Daniel Andrews said Victoria’s high vaccination rate meant Melbourne could safely exit lockdown on Friday. Picture: Getty Images

But there are a small number of vaccine hesitant individuals across the workforce — including police and protective service officers.

The Herald Sun surveyed a number of government agencies in Victoria to find out whether any of their staff have had to go.

Many public servants have been able to work from home during the lockdown, meaning they do not fall under the authorised worker Covid jab mandate.

But staff, who in lockdown were granted permits to work outside the home, can be included in the vaccine mandate such as Work Safe’s authorised workers, who the Herald Sun understands have all complied.

A TAC spokesman said all their front line staff were fully vaccinated.

“The TAC is supporting our people to get vaccinated by offering a half day of leave to attend an appointment, and encouraging staff to speak with their health practitioner if they have any questions or concerns,” he said.

“All TAC staff are required to be fully vaccinated (two doses) by 26 November 2021.”

While the vast majority have received their first dose, some authorised workers across several agencies including the EPA, Vic Roads, Corrections Victoria and the NDIS have not yet been vaccinated.

The Herald Sun understands 96 per cent of Vic Roads registration and licensing authorised workers have had at least one dose, with those who miss the deadline unable to work on site unless they have a valid medical exemption.

Head of Transport Services Nick Foa said vaccination “is the way to keep those we love safe and to open up Victoria”.

“We are pleased to see our vaccination rates so high and we are working with all staff to ensure they have every opportunity to get vaccinated.”

EPA CEO Lee Miezis said more than 92 per cent of their front line staff have received at least one dose.

“That number is expected to rise over the coming weeks as more of our staff provide their vaccination certificates,” he said.

“Staff will be working from home until their certificates are received.

“We are pleased to see our vaccination rates so high and we are working with all staff to ensure they have every opportunity to get vaccinated.”

The Herald Sun understands a small number of prison staff have been stood down after deciding not to get the vaccine and are currently using their leave entitlements.

More than 98 per cent of prison staff have received at least one dose of a Covid vaccine and 82 per cent are fully vaccinated.

Under the Victorian government rules, disability support workers are also required to get the Covid jab.

But 12.5 per cent of NDIS screened disability workers in Victoria were yet to receive their first dose as of October 20, according to government statistics.

The vaccine significantly reduces the chance of you dying or ending up in hospital from Covid. Picture: NCA Newsire

A National Disability Insurance Agency spokesperson said it had not mandated vaccination for workers but ‘strongly encouraged’ it, and was not aware of anyone being stood down for refusing the jab.

“The NDIA complies with all local health orders in all states and territories where we operate,” they said.

“This means, in some cases, the agency has a responsibility to ensure workers are vaccinated.”

“In Victoria, Commonwealth employees have been exempted from the requirement to be vaccinated.

“The NDIA’s workforce is supplemented with workers employed through labour hire agencies. Labour hire agencies are responsible for managing their workforces to ensure compliance of local health orders.

“The NDIA is not aware of any workers that have been stood down . . . for refusing to book in a Covid vaccine by the deadline this week.”

An NDIS Commission spokesperson said the enforcement of public health orders was a matter for the Victorian government but it would support NDIS providers to engage with “workers on their vaccination status and their plans for vaccination, to help inform their business continuity planning”.

Originally published as Victorian workers refusing the Covid vaccine are taking their cases to the Fair Work Commission