The Fair Work Commission has confirmed that an employer must comply with any relevant consultation obligations when seeking to impose a workplace COVID-19 vaccination requirement in the decision of Construction, Forestry, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd t/a Mr Arthur Coal  FWCFB 6059 (BHP Case).
The BHP Case concerned the announcement made by BHP on 7 October 2021 that all workers at the BHP Mt Arthur mine would be required to be vaccinated against COVID-19 as a condition of site entry (the Site Vaccine Requirement). The Full Bench of the Fair Work Commission ruled that the Site Vaccine Requirement was unreasonable on the basis BHP failed to adequately consult with its workers in accordance with its obligations under the Work Health and Safety Act 2011 (NSW) (WHS Act).
In brief, the facts of the BHP Case were as follows:
following an extensive risk assessment process, BHP decided to implement the Site Vaccine Requirement having regard to work health and safety matters;
BHP announced the Site Vaccine Requirement, which required all its workers to:
o have a single dose of an approved COVID-19 vaccine by 10 November 2021; and
o be fully vaccinated by 31 January 2022;
BHP also directed that workers provide evidence of their vaccine by these dates;
workers were informed that if they attended the Mt Arthur mine after midnight on 9 November 2021, they would not be permitted access to the mine unless they complied with the Site Vaccine Requirement;
BHP engaged with workers about the implementation of the Site Vaccine Requirement, however it did not engage with workers prior to making the decision to introduce the Site Vaccine Requirement;
the introduction of the Site Vaccine Requirement was disputed by the CFMEU on behalf of approximately 700 affected workers.
The CFMEU and Mr Howard (secretary of the local member group of the CFMEU) made an application to the Fair Work Commission arguing that BHP failed to consult with its workers about the Site Vaccine Requirement in accordance with its duty under section 47 of the WHS Act.
In the absence of a legislative requirement for workers to be vaccinated (for example, Public Health Orders which require workers in specified industries to be vaccinated for COVID-19), a direction by an employer requiring its workers to be vaccinated will only be legal if it is both a lawful and reasonable direction.
In the case of BHP, there was no Public Health Order which related to the workers at the mine. As such, the Full Bench was required to consider whether the Site Vaccine Requirement was a lawful and reasonable direction.
The Full Bench concluded that the Site Vaccine Requirement was unreasonable because BHP failed to comply with its consultation obligations under the WHS Act.
After examining in detail the nature of consultation and considering the consultation obligations of BHP under the WHS Act, the Full Bench was not satisfied that BHP had fulfilled these consultation obligations.
Section 47 of the WHS Act relevantly provides:
“The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.”
The Full Bench held that the Site Vaccine Requirement could not be considered reasonable in the absence of an applicable work health and safety consultation process.
Importantly, the Full Bench emphasised that the consultation obligations under the WHS Act required a “person conducting a business or undertaking” (i.e. an employer) to consult with its workers about any proposed work health and safety changes prior to making any definite decisions to implement any such changes. In this case, the Full Bench found that BHP had not engaged in consultation with workers until after it had decided to implement the Site Vaccine Requirement and therefore had not met its obligations under the WHS Act.
However, whilst the Full Bench found the Site Vaccine Requirement was not “lawful and reasonable”, it recognised there were valid and compelling reasons for the introduction of the Site Vaccine Requirement, stating:
“Had the Respondent consulted the Employees in accordance with its consultation obligations − such that we could have been satisfied that the decision to introduce the Site Access Requirement was the outcome of a meaningful consultation process – the above considerations would have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction.”
The “above considerations” in respect of the Site Vaccine Requirement referred to by the Full Bench were as follows:
the Site Vaccine Requirement was directed at ensuring the health and safety of workers of the Mt Arthur mine;
there was a logical and understandable basis for the Site Vaccine Requirement;
the Site Vaccine Requirement was a reasonably proportionate response to the risk created by COVID-19;
the Site Vaccine Requirement was developed having regard to the circumstances at the mine, including the fact that mine workers could not work from home and came into contact with other workers whilst at work;
the timing for the commencement of the Site Vaccine Requirement was determined by reference to the circumstances pertaining to NSW and the local area at the relevant time i.e. that there was community transmission occurring and a number of cases in the local area;
BHP had spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the mine, prior to implementing the Site Vaccine Requirement.
The Full Bench also acknowledged that in the dynamic environment of the COVID-19 pandemic, employers faced a difficult task in managing the associated risks for their workers. It was also highlighted that BHP could potential rectify the issues identified, by engaging in a consultation process with its workers as required under the WHS Act.
The decision should not be interpreted as meaning that employers cannot impose mandatory vaccination policies. However, where employers rely on statutory work health and safety obligations as a basis for the introduction of such a policy, the obligation to consult with workers prior to the introduction of the policy is enlivened.
The Full Bench acknowledged that employers could, in appropriate circumstances, lawfully and reasonably direct employees to be vaccinated.
Where consultation obligations apply, employers must engage in genuine consultation with workers about any proposed vaccine mandates or requirements before making any definitive decision to introduce any such mandates or requirements. Consultation should be genuine, meaningful and engaged in before an irreversible decision to introduce a policy is made.
If you require any assistance with respect to employee vaccination policies or queries, please contact our team.