2022-2023

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Fair Work Amendment (Prohibiting

COVID-19 Vaccine Discrimination) Bill
2023
No. , 2023
(Senators Canavan, Antic and Rennick)

A Bill for an Act to amend the Fair Work Act 2009,

and for related purposes
Contents
1 Short title .............................................................................. 1
2 Commencement .................................................................... 1
3 Schedules.............................................................................. 2

Schedule 1—Amendments 3
Fair Work Act 2009 3

No. , 2023 Fair Work Amendment (Prohibiting COVID-19 Vaccine i

Discrimination) Bill 2023
 1 A Bill for an Act to amend the Fair Work Act 2009,
2 and for related purposes
3 The Parliament of Australia enacts:
4 1 Short title
5 This Act is the Fair Work Amendment (Prohibiting COVID-19
6 Vaccine Discrimination) Act 2023.

7 2 Commencement
8 (1) Each provision of this Act specified in column 1 of the table
9 commences, or is taken to have commenced, in accordance with
10 column 2 of the table. Any other statement in column 2 has effect
11 according to its terms.
12

No. , 2023 Fair Work Amendment (Prohibiting COVID-19 Vaccine 1

Discrimination) Bill 2023
 Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. The whole of The day after this Act receives the Royal
this Act Assent.
1 Note: This table relates only to the provisions of this Act as originally
2 enacted. It will not be amended to deal with any later amendments of
3 this Act.

4 (2) Any information in column 3 of the table is not part of this Act.
5 Information may be inserted in this column, or information in it
6 may be edited, in any published version of this Act.

7 3 Schedules
8 Legislation that is specified in a Schedule to this Act is amended or
9 repealed as set out in the applicable items in the Schedule
10 concerned, and any other item in a Schedule to this Act has effect
11 according to its terms.

2 Fair Work Amendment (Prohibiting COVID-19 Vaccine No. , 2023

Discrimination) Bill 2023
 Amendments Schedule 1

1 Schedule 1—Amendments
2

3 Fair Work Act 2009

4 1 Section 12
5 Insert:
6 COVID-19 vaccination status means the status of a person relating
7 to whether, and to what extent, the person has been vaccinated
8 against the coronavirus known as COVID-19 (including any
9 subsequent variants of that virus).

10 2 Subsection 153(1)
11 After “intersex status,”, insert “COVID-19 vaccination status,”.

12 3 Subsection 195(1)
13 After “intersex status,”, insert “COVID-19 vaccination status,”.

14 4 Subsection 351(1)
15 After “intersex status,”, insert “COVID-19 vaccination status,”.

16 5 Paragraph 351(2)(a)
17 Before “not unlawful”, insert “for action taken other than because of a
18 person’s COVID-19 vaccination status—”.

19 6 Paragraph 578(c)
20 After “intersex status,”, insert “COVID-19 vaccination status,”.

21 7 Paragraph 772(1)(f)
22 After “intersex status,”, insert “COVID-19 vaccination status,”.

23 8 Section 789HB (at the end of the heading)

24 Add “—breastfeeding, gender identity or intersex status”.

25 9 At the end of Part 6-4E

26 Add:

No. , 2023 Fair Work Amendment (Prohibiting COVID-19 Vaccine 3

Discrimination) Bill 2023
 Schedule 1 Amendments

1 789HC Extension of anti-discrimination rules—COVID-19

2 vaccination status

3 State referral laws

4 (1) Subsection (3) applies for the purposes of the operation of the
5 provisions identified in subsection (2) in relation to COVID-19
6 vaccination status.
7 (2) The provisions are as follows:
8 (a) section 153;
9 (b) section 172A;
10 (c) section 195.
11 (3) In applying sections 30H and 30S in relation to that operation of
12 the provisions identified in subsection (2), assume that:
13 (a) the matter to which that operation of those provisions relates
14 is not an excluded subject matter for the purposes of:
15 (i) the State’s referral law mentioned in sections 30H and
16 30S; and
17 (ii) Divisions 2A and 2B of Part 1-3; and
18 (b) the referral of that matter by that referral law results in the
19 Parliament of the Commonwealth having sufficient
20 legislative power for those provisions (to the extent of that
21 operation) to have effect.

22 Protection against adverse action

23 (4) The provisions identified in subsection (6), as they operate in
24 relation to COVID-19 vaccination status, apply to action taken in a
25 State.
26 Note: Action taken in a State includes action taken by a State public sector
27 employer in a State.

28 (5) For the purposes of the provisions identified in subsection (6), as

29 they operate in relation to COVID-19 vaccination status:
30 (a) a reference to an employee with its ordinary meaning
31 includes a reference to a law enforcement officer of a State or
32 the Northern Territory; and

4 Fair Work Amendment (Prohibiting COVID-19 Vaccine No. , 2023

Discrimination) Bill 2023
 Amendments Schedule 1

1 (b) a reference to an employer with its ordinary meaning

2 includes a reference to the Commissioner (however
3 described) of the police service or police force of a State or
4 the Northern Territory; and
5 (c) the Commissioner (however described) of the police service
6 or police force of a State or the Northern Territory is taken to
7 be an employer of law enforcement officers of the State or
8 the Northern Territory, as the case requires.
9 (6) The provisions are as follows:
10 (a) section 351;
11 (b) any other provision of Part 3-1, to the extent the provision
12 relates to section 351.
13 (7) Subsections (4) to (6) apply despite sections 30G, 30R and 337,
14 and do not limit the operation of sections 338 and 339 (which deal
15 with the application of Part 3-1).

16 10 In the appropriate position in Schedule 1

17 Insert:

18 Part 14—Amendments made by the Fair Work

19 Amendment (Prohibiting COVID-19
20 Vaccine Discrimination) Act 2023
21 86 Application of amendments
22 (1) Subject to subclauses (2) and (3), the amendments made by
23 Schedule 1 to the Fair Work Amendment (Prohibiting COVID-19
24 Vaccine Discrimination) Act 2023 apply on and after the
25 commencement of that Schedule.
26 (2) The amendments of section 195 made by that Schedule apply in
27 relation to enterprise agreements made on and after the
28 commencement of that Schedule.
29 (3) The amendments of section 351 made by that Schedule apply in
30 relation to adverse action taken on and after the commencement of
31 that Schedule.

No. , 2023 Fair Work Amendment (Prohibiting COVID-19 Vaccine 5

Discrimination) Bill 2023