Many employers are implementing, or are considering implementing, a mandatory vaccination policy.
Friday’s decision of the Full Bench of the Fair Work Commission (FWC) in CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal is a critical development in understanding the legality and process of mandating vaccination for those employees not subject to a Public Health Order (PHO).
This case involved Mt Arthur Coal, a member of the BHP group of companies, and its vaccination mandate for some 724 employees who are covered by an enterprise agreement.
On 7 October 2021, BHP directed that all workers at the mine would need to be vaccinated against COVID-19 as a condition of entry to site. This condition required at least one dose of a COVID-19 vaccine by 10 November 2021, with full vaccination required by 31 January 2022.
The direction came after minimal consultation with employees – a ‘vaccine mailbox’ was set up to receive feedback from employees, and, although a risk assessment was carried out, the results were not shared with employees.
The CFMMEU, representing approximately 700 of the mine’s employees, applied to the FWC to arbitrate the dispute under section 739 of the Fair Work Act.
Applicable Legal Principles
A direction by an employer to an employee (including by promulgation of a policy) needs to be both lawful and reasonable.
In NSW, this includes complying with the consultation obligations in sections 47-49 of the Work Health and Safety Act 2011 (WHS Act).
Section 47(1) of the WHS Act requires employers to consult, as far as reasonably practicable, with employees ‘who are, or are likely to be, directly affected by a matter relating to work health or safety.’ Consultation must occur prior to the implementation of any such policy.
Since there was no public health order or express contractual term regarding vaccination as a site access requirement, the dispute focused on the implied term in contracts of employment that an employee must follow all lawful and reasonable directions of their employer.
The issue was whether the vaccination mandate was a lawful and reasonable direction.
The Full Bench of the FWC found that the mandate was not a lawful and reasonable direction in this specific instance.
Specifically, BHP had failed to engage in ‘meaningful’ consultation with employees before making a decision to introduce a vaccine mandate. Employees were not given an opportunity to express their opinions about the mandate or contribute to the decision-making process, nor were they given reasons for the mandate with supporting data. This failed to satisfy the requirements of sections 47 and 48 of the WHS Act.
The FWC also emphasised that the direction was otherwise logical, reasonable and proportionate to the current health climate.
A Vaccination Mandate In Future?
Significantly, the FWC accepted the health and safety benefits of vaccination as the most effective control in the workplace, particularly during the current ‘dynamic environment’ of the COVID-19 pandemic.
BHP’s vaccination mandate failed only on the consultation ground, with the FWC pointing out that if a ‘meaningful’ consultation process is conducted ‘in a timely fashion’, BHP will be in a strong position to impose a vaccination site entry requirement that is lawful and reasonable, in time for the further easing of restrictions expected by mid-December.
What Does This Mean For Employers?
Employers need to ensure meaningful consultation with their employees under WHS laws. This must take place before any directions mandating vaccination are given to employees. The precise details of what constitutes meaningful consultation depend on the specific context.
Provided meaningful consultation is undertaken, a direction to comply with a mandatory vaccination policy will likely be lawful and reasonable. The consultation process will vary depending on the specific workplace and nature of employment.
Following these important steps will assist to avoid costly and damaging disputes.
How We Can Help!
Since what is reasonable depends on the facts of each case, and to ensure compliance, consultation needs to be tailored to an individual workplace, we recommend obtaining advice if you are considering implementing a mandatory vaccination policy. We can guide you through these complex issues.