Consultation requirements for implementing mandatory vaccinations
CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (2021) FWCFB 6059
Background
BHP announced on 7 October 2021, that as a condition of site entry it is a requirement that all employees on the mine must be vaccinated against COVID-19. The mandate required the first dose by 10 November 2021 and the second dose by 31 January 2022.
BHP further provided that employees were not able to gain site access after midnight on 9 November 2021, unless they were able to provide evidence of at least a single dose.
The case involved 724 employees covered by the Mt Arthur Coal Enterprise Agreement 2019.
It is important to note that there were no public health orders in place at the time, which would capture these group of employees under that directive.
Issue
The industrial dispute was filed by the CFMMEU and Mr Howard (the Applicants), to ascertain whether BHP’s vaccination policy was made on lawful and reasonable grounds. The Applicants provided that the requirement was unlawful and failed to adequately comply with its consultation obligations both under the Enterprise Agreement and Work Health and Safety laws.
The decision
The Full Bench considered the effects of employers’ obligations with reference to consultation under sections 47 and 48 of the Work Health and Safety Act 2011 (NSW) (the Act). These two elements include the duty to consult workers and the nature of consultation.
It was held that employees were not given a reasonable opportunity to express their views and to raise work health or safety issues. Employees were also not given the opportunity to contribute to the decision-making process. In addition, employees were not provided with information regarding risk assessment and its analysis or given data to support the proposal. The Commission also identified that health and safety representatives were not involved in the consultation process in a significant way.
The Full Bench therefore was not satisfied that BHP had met the necessary elements regarding consultation obligations under the Act and noted that a lack of consultation was key to establishing ‘reasonableness’ with respect to the vaccination requirement.
It is important to note however, the Full Bench acknowledged that while there were deficiencies regarding the consultation process, the vaccination requirement was evidently, a lawful direction but rather the missing element being that the direction was unreasonable.
In this decision, we learn that employers must meet their consultation requirements when considering
imposing a major change in the workplace or implementing mandatory vaccinations.
What can employers learn from this case
- While this was an unsuccessful outcome for BHP, the Full Bench has indicated that employers may implement a COVID-19 mandate workplace policy but must ensure they comply with the lawful and reasonable tests as determined in the decision.
- It is important to emphasise that every case, scenario, and circumstance, would be different and may present other challenges that have not necessarily been addressed in this decision. What is ‘reasonable’ is assessed on a case-by-case basis.
- Any introduction of such policy must meet the requirements of the consultation obligations under the relevant work health and safety laws of that jurisdiction. For the equivalent laws in Victoria, you may wish to refer to (but not limited too) Section 35 of the Occupational Health and Safety Act 2004 (Vic) and Regulation 21 of the Occupational Health and Safety Regulations 2017 (Vic). If an Enterprise Agreement is in place, it is also important to note the consultation obligations contained within that Agreement.
- It is essential for employers to really take the time and slow down on the consultation process, and ensure they take the right steps to achieve these obligations, both lawfully and reasonably.
Further Information and Assistance
If you are considering implementing a mandatory vaccination policy or a major change to structure at your workplace and are unsure of next steps or possible consequences, please contact Constructive Employment Solutions at info@portal.businesssolutionshub.com.au or via our Contact Us page.
Please note that this article is not intended to provide legal advice, but rather constitutes general guidance on the summary of the facts and issues as perceived in the decision. For more information, you may wish to contact our Workplace Relations team to assist you further, or alternatively, we can refer you to our team of legal experts.
