A Bill for an Act to amend the Fair Work Act 2009, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act is the Fair Work Amendment (Prohibiting COVID‑19 Vaccine Discrimination) Act 2023.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. The whole of this Act | The day after this Act receives the Royal Assent. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Fair Work Act 2009
1 Section 12
Insert:
COVID‑19 vaccination status means the status of a person relating to whether, and to what extent, the person has been vaccinated against the coronavirus known as COVID‑19 (including any subsequent variants of that virus).
2 Subsection 153(1)
After “intersex status,”, insert “COVID‑19 vaccination status,”.
3 Subsection 195(1)
After “intersex status,”, insert “COVID‑19 vaccination status,”.
4 Subsection 351(1)
After “intersex status,”, insert “COVID‑19 vaccination status,”.
5 Paragraph 351(2)(a)
Before “not unlawful”, insert “for action taken other than because of a person’s COVID‑19 vaccination status—”.
6 Paragraph 578(c)
After “intersex status,”, insert “COVID‑19 vaccination status,”.
7 Paragraph 772(1)(f)
After “intersex status,”, insert “COVID‑19 vaccination status,”.
8 Section 789HB (at the end of the heading)
Add “—breastfeeding, gender identity or intersex status”.
9 At the end of Part 6‑4E
Add:
789HC Extension of anti‑discrimination rules—COVID‑19 vaccination status
State referral laws
(1) Subsection (3) applies for the purposes of the operation of the provisions identified in subsection (2) in relation to COVID‑19 vaccination status.
(2) The provisions are as follows:
(a) section 153;
(b) section 172A;
(c) section 195.
(3) In applying sections 30H and 30S in relation to that operation of the provisions identified in subsection (2), assume that:
(a) the matter to which that operation of those provisions relates is not an excluded subject matter for the purposes of:
(i) the State’s referral law mentioned in sections 30H and 30S; and
(ii) Divisions 2A and 2B of Part 1‑3; and
(b) the referral of that matter by that referral law results in the Parliament of the Commonwealth having sufficient legislative power for those provisions (to the extent of that operation) to have effect.
Protection against adverse action
(4) The provisions identified in subsection (6), as they operate in relation to COVID‑19 vaccination status, apply to action taken in a State.
Note: Action taken in a State includes action taken by a State public sector employer in a State.
(5) For the purposes of the provisions identified in subsection (6), as they operate in relation to COVID‑19 vaccination status:
(a) a reference to an employee with its ordinary meaning includes a reference to a law enforcement officer of a State or the Northern Territory; and
(b) a reference to an employer with its ordinary meaning includes a reference to the Commissioner (however described) of the police service or police force of a State or the Northern Territory; and
(c) the Commissioner (however described) of the police service or police force of a State or the Northern Territory is taken to be an employer of law enforcement officers of the State or the Northern Territory, as the case requires.
(6) The provisions are as follows:
(a) section 351;
(b) any other provision of Part 3‑1, to the extent the provision relates to section 351.
(7) Subsections (4) to (6) apply despite sections 30G, 30R and 337, and do not limit the operation of sections 338 and 339 (which deal with the application of Part 3‑1).
10 In the appropriate position in Schedule 1
Insert:
Part 14—Amendments made by the Fair Work Amendment (Prohibiting COVID‑19 Vaccine Discrimination) Act 2023
86 Application of amendments
(1) Subject to subclauses (2) and (3), the amendments made by Schedule 1 to the Fair Work Amendment (Prohibiting COVID‑19 Vaccine Discrimination) Act 2023 apply on and after the commencement of that Schedule.
(2) The amendments of section 195 made by that Schedule apply in relation to enterprise agreements made on and after the commencement of that Schedule.
(3) The amendments of section 351 made by that Schedule apply in relation to adverse action taken on and after the commencement of that Schedule.