We often receive questions regarding the COVID-19 vaccine, exemptions and various requirements.
ABIC is here to support everyone and every choice, as a not for profit organisation we remain neutral and are here to convey government information in a way that is easy to understand and apply, so that you are able to make an informed decision about your business and workplace.
Businesses that are not covered by a NSW Public Health Order may choose to refuse entry to unvaccinated patrons as long as they comply with their obligations under anti-discrimination and privacy laws. Businesses should not refuse entry to patrons who cannot be vaccinated for medical reasons or because they are in an age group that has not had access to vaccination for very long (i.e. - under 16s).
COVID-19: Vaccinations and my privacy rights as an employee — OAIC
Your employer can only require you to provide evidence of your vaccination status in particular circumstances.
If your employer intends to collect your vaccination status into a record, they must be satisfied that this collection is permitted under Australian Privacy Principle (APP) 3.
Information about your vaccination status is sensitive information and is afforded a higher degree of protection under the Privacy Act. Generally, your employer must seek your consent in order to collect your vaccination status information and the collection of this information must be reasonably necessary for one or more of your employer’s functions or activities, unless an exception applies.
Consent must be freely given and constitute valid consent. This means that your employer cannot pressure or intimidate you to provide information about your vaccination status where they are relying on your consent as the lawful basis for collecting it. Your employer should provide you with adequate information about what information will be collected, why it is required and what it will be used for, prior to you giving consent. Your employer should also tell you whether the information will be disclosed to any third parties.
If your employer is a private sector organisation, they must also be able to justify the collection of your vaccination status information as being reasonably necessary for one or more of their functions or activities.
If your employer is an Australian Government agency, they must also be able to justify that the collection of your vaccination status information is directly related to their functions or activities (which may include preventing or managing COVID-19).
Applicable workplace laws and contractual obligations will impact whether the collection of your vaccination status information is reasonably necessary for your employer’s functions or activities. If your employer is requiring you to disclose information about your vaccination status on a ‘just in case’ basis, or if they can achieve their purpose without collecting this information, it will be harder for them to demonstrate that the collection is reasonably necessary.
The same considerations apply to any proposed collection of vaccination status information from persons related to you or living with you. Employers should be cautious and not assume that they can collect vaccination status information from your relatives or household contacts just because they can collect information from you.
Where your employer has provided a lawful and reasonable direction to you to be vaccinated, your employer can ask you to provide evidence of your vaccination, if this is reasonably necessary. Your employer must also obtain your consent. More information about lawful and reasonable directions is available from the Fair Work Ombudsman’s website.
If there is a term in your enterprise agreement, other registered agreement or employment contract that requires COVID-19 vaccination, it is likely to be reasonably necessary for your employer to collect information about your vaccination status. However, your employer will still need to obtain your consent to the collection.
Your employer may be able to require you to disclose information about your vaccination status without consent if the collection of this information is required or authorised by an Australian law. This includes any Act of the Commonwealth, of a state or territory, or regulations or any other instrument made under such an Act, including public health orders or directions.
State and territory public health orders are continually being updated to respond to the COVID-19 pandemic. You should monitor these developments and review the specific requirements of any relevant orders or directions issued by your state and territory health authority to determine if you may need to disclose information about your COVID-19 vaccination status to your employer. Consult your relevant Department of Health to find out about any relevant requirements to provide proof of vaccination.
Your rights during COVID-19 (nsw.gov.au)
There are very limited avenues for people to make complaints about discrimination on the ground of religion or religious belief under federal discrimination law.
The Australian Human Rights Commission can accept complaints about discrimination in employment based on a person’s religion under the International Labour Organisation Convention (No 111) concerning Discrimination in respect of Employment and Occupation.
However, unlike discrimination complaints based on protected attributes such as race, sex, pregnancy, disability or age, these complaints cannot proceed to the Federal Circuit Court or the Federal Court for legal remedies.
Discrimination related to religion, religious conviction or religious activity may be unlawful under state and territory discrimination law. For further information on this topic, please seek legal advice or contact your local state or territory human rights, equal opportunity or anti-discrimination agency.
State and territory agencies
If an employer has provided a lawful and reasonable direction to be vaccinated for coronavirus and an employee complies, the employer can also ask the employee to provide evidence of their vaccination.
An employer should also make sure that a requirement to provide evidence is lawful and reasonable. As stated above, whether a direction would be lawful and reasonable depends on all of the circumstances. If it is unclear whether a direction or the employee’s refusal is reasonable, employers should not take disciplinary action lightly and should seek their own legal advice.
An employer may ask to view evidence of an employee's vaccination status without raising privacy obligations, provided they do not collect (i.e. make a record or keep a copy of) this information. An employer should not collect vaccination status information from an employee unless the employee consents and the collection is reasonably necessary for the employer's functions and activities. However, consent to collection is not required if the collection is required or authorised by law (for example, a public health order applies or where it is necessary for the employer to meet their obligations under WHS laws). More information about workplace privacy is available at:
Office of the Australian Information Commissioner – COVID-19: Vaccinations and my privacy rights as an employee
Office of the Australian Information Commissioner – Coronavirus (COVID-19) Vaccinations: Understanding your privacy obligations to your staff
Best practice guide – Workplace privacy
Find out what is considered proof of vaccination at What counts as proof of vaccination?
Australians can access proof of vaccination after they have been vaccinated through myGov, their vaccination provider (including a medical practitioner) or the Australian Immunisation Register. See Services Australia – How to get proof of your COVID-19 vaccinations for details.
COVID-19 vaccinations and federal discrimination law | Australian Human Rights Commission