VIC Legal Advice from RDA’s inhouse Legal Team

RDA now has in-house legal counsel so we’ll be able to review legislation in more depth to keep you all informed. This brings RDA to new heights and we’re very pleased to be able to offer legally sound clarification from now on.

A message from our counsel;

In the last 72 hours, the Victorian Government has issued two (2) directions under Section 200 of the Public Health and Wellbeing Act 2008 (Vic).

Please note that whether these directions are made lawfully under section 200 of the Public Health and Wellbeing Act 2008 (Vic) is a matter for the Courts to decide.  The following comments are given on the basis that they are lawful, however, this is likely to be the subject of court proceedings. 

Application of directions

1 Preamble

(5)        These directions must be read together with the Directions currently in force.

(6)        These directions replace the COVID-19 Mandatory Vaccination (Workers) Directions.

3 Commencement and revocation

  1. The COVID-19 Mandatory Vaccination (Workers) Directions are revoked at 11:59:00pm on 14 October 2021. 

Comment: Read these directions on a stand alone basis to avoid confusion.

PART 2 — EMPLOYER OBLIGATIONS

  1. Employer must collect, record and hold vaccination information

Vaccination information

  1. If a worker is, or may be, scheduled to work outside the worker’s ordinary place of residence on or after the relevant date, the employer of the worker must collect, record and hold vaccination information about the worker.

Timing

  1. An employer must comply with the obligations in subclauses (1) to (3) as soon as reasonably practicable after the commencement of these directions.

Comment: The “Timing” provision is an essential part of these directions. As an employer, you are not required to comply by a fixed date.  As an employee, you are therefore not required to respond by a fixed date.  Whether the Ministers department has the resources to investigate both employers and employees who do not provide this information in a “timely manner” is doubtful given the sheer volume of people that are affected by these directions. 

5 Employer must ensure unvaccinated workers do not work outside ordinary place of residence

In short – if an employee is unvaccinated, or the employer does not have vaccination records of the employee, they are not to perform work outside their ordinary place of residence.  There is an exception for those who have a booking for a “first dose” by 22 October 2021.  If a booking is in place, they are able to work without the restrictions that apply to others who are unvaccinated without a booking. 

Note – it is clear that the risk of being “unvaccinated” is not the primary concern of these directions.

6 Exception — exceptional circumstances

The following are the most relevant exceptions:

“(b) a worker is required to fill a vacancy to provide urgent care, to maintain quality of care and/or to continue essential operations due to an emergency situation or a critical unforeseen circumstance; or

(c) a worker is required to respond to an emergency; or

(d) a worker is required to perform urgent and essential work to protect the health and safety of workers or members of the public, or to protect assets and infrastructure;”

In short – operational requirements with respect to Government services (health, transport, emergency services) largely take precedence over the requirements for vaccinations contained in these directions. 

Definitions

Pages 5 to 23 of these directions contain definitions. Please review these definitions when trying to determine how they apply to you and your workplace. 

Download the Document

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Responses

  1. It’s confusing. On this Legal Advice sheet it says the direction is revoked on the 14 October. I downloaded the Directions from the web which states the directions commence 7 October and end on the 21 October. Very confusing.

    1. The whole government document is confusing – but I suspect that is their intent.
      So shouldn’t the legal questions be focused not on the content of these Directions, but on the legal definition of the word “directions”, as well as “mandates”, “directives” and “orders”? Because these are not the same as law or lawful. So, RDA Legal Advice team, please put your energies into answering what these words really mean under the law? Thanks.

      1. I have been confused about these words too, some clarification
        would certainly help, especially as the “rules” seem to change
        almost daily.

      1. Well if the directive ends on that date, you would think they no longer have the power to force us or our employers to make us have the jab unless of course, Andrews extends it. I have looked everywhere on the web but cannot find any extension to this No Jab No Job directive so as far as I know, it ends on the 21st. We need a lawyer to confirm what it means when the directive ends and has not been extended.

  2. I hazard a guess here, apart from resembling a story line from Mr Bean, the crux of the government/CHO orders directions etc, whether you are vaccinated or unvaccinated is irrelevant. One is exempt to attend work based on emergency shortages of staff if the employer deems it necessary.
    Preying/exploiting vulnerabilities, has resulted in meeting targets.

    1. yes I want to know if short staffed enables you to have these employees working. and if it was an essential service before in a trade repairing things, is it still essential.

  3. It’s all well and good to say ‘here’s the documents read them’, ‘must be read in conjunction with’, ‘read alone’ etc etc etc. You may now have an in-house legal team but as the majority of us are not lawyers, this does not make sense to us.

  4. Now that you have announced the addition of a legal team, my question to them is’ What is the validity of The Australia Act 1986″, an act to “bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation”.
    Can some-one explain to me, what this really means to the people of Australia.

  5. As a sole trader in a hairdressing business, so no staff, how am I to go about my business? I have not been vaccinated, so to remain open what do I do? or do I open only for the unvaccinated? what rights do I have? seeems like none at the moment.

  6. can the lawyers please comment. what does mandatory mean? According to the black law dictionary it means something else to what we have assumed the meaning of the word to be