Unvaccinated nurse not entitled to paid personal leave, confirms FWC

A Nurse in Victoria, who is not yet vaccinated against COVID-19 and is therefore unable to perform work in compliance with the vaccination mandate that applies to her employment, has failed to convince the Fair Work Commission (FWC) she is entitled to access her paid personal leave at present, despite the fact she has consistently submitted medical certificates verifying her incapacity for work since October last year.

The Nurse, who has not been paid by her employer since 28 October 2021, brought the dispute before the FWC, arguing her employer’s non-payment of her personal leave was in breach of the prevailing enterprise agreement, the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020.

After submitting the first medical certificate confirming her incapacity for work from 15 October 2021, the Nurse was initially told she was due to be stood down from this date and would not be entitled to be paid any personal leave because, at that time, she had not confirmed her vaccination status or provided evidence of a booking to receive her first dose of a COVID-19 vaccine by 27 October 2021 (the ‘first dose deadline’ in the relevant vaccination mandate). Upon receiving this advice, the Nurse made the necessary booking to receive her first vaccination on 27 October in compliance with the mandate, and she was subsequently paid personal leave from 15 October. Ultimately, the Nurse did not attend to receive her first vaccination on 27 October, rendering her non-compliant with the vaccination mandate, and no further payments for personal leave have been made by the employer since 28 October. 

The Nurse argued that the medical certificates verifying her inability to work from 15 October onwards overrode the need for her employer to confirm her vaccination status and made their obligations under the vaccination mandate “irrelevant” in respect of her employment. However, Deputy President Gostencnik agreed with the employer and found that the Nurse “was not ready, willing or able to perform work at [the employer’s] facility in accordance with the externally imposed condition” (being the vaccination mandate) meaning she could have no ordinary hours of work in the period, therefore there was no entitlement to payment for personal leave beyond 27 October 2021 (the day before her vaccination status rendered her non-compliant with the vaccination mandate).

When considering the enterprise agreement against the provisions of the National Employment Standards (NES), the Deputy President noted:

“It seems to me that clause 61.2(a) of the Agreement is to the same effect as s 99 [of the NES] in that it provides for payment, in effect at the employee’s base rate of pay, for the employee’s ordinary hours of work in the period of absence. In my view the words “ordinary hours of work in the period” in s 99 condition the payment to the number of ordinary hours the employee would have worked but for the absence in the relevant period claimed. If an employer cannot lawfully require an employee to work in a period because it cannot permit the employee to work because of an operative direction or order, the employee has no ordinary hours in that period.”

Wilkinson v Eastern Health – Re Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 [2022] FWC 260 (10 February 2022)