Consultation obligations crucial for employers considering mandating COVID-19 vaccination

In response to the COVID-19 pandemic, many employers have implemented a COVID-19 vaccine mandate for employees or are contemplating doing so. Consequently, vaccine mandates have been the subject of various legal challenges, including in the recent decision of CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal.¹ 

Although the Fair Work Commission (FWC) found in this case that BHP’s vaccination mandate was not a lawful and reasonable direction, the case turned on the consultation processes, or lack thereof, in which employees were engaged prior to the issuing of the direction. This decision demonstrates that prior consultation with employees is crucial for employers intending to mandate COVID-19 vaccination, and leaves the door open for lawful and reasonable vaccine mandates to be issued and upheld.

The Facts

Mt Arthur is an open cut coal mine in New South Wales (Mine), managed by Mt Arthur Coal Pty Ltd (respondent) and part of the BHP group of companies.

The respondent employs those who work at the Mine and controls permissions to enter the Mine, including conditions of entry. The Mt Arthur Coal Enterprise Agreement 2019 (Agreement) applies to the respondent’s approximately 724 production and engineering employees (employees), the majority of whom are represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). 

The Bayswater Lodge, of which Mr Matthew John Howard is secretary, is a group of CFMMEU members who are employed by the respondent.

On 7 October 2021, the respondent announced that all Mine workers must be vaccinated against COVID-19 as a condition of site entry (Site Access Requirement). Specifically, employees were required to receive at least one COVID-19 vaccine dose by 10 November 2021, be fully vaccinated by 31 January 2022, and provide the respondent with evidence of compliance by the relevant date/s in order to be permitted access to the Mine.

Pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) and noting the Agreement’s dispute resolution procedure, the CFMMEU and Mr Howard (applicants) made an application to the FWC seeking a determination as to whether the Site Access Requirement was a ‘lawful and reasonable direction’. 

The Issues

The FWC affirmed that all contracts for employment contain an implied term that employees must follow lawful and reasonable directions of their employer, unless a contrary intention is evident. Accordingly, the key issue for the FWC was the lawfulness and reasonableness of the Site Access Requirement.

The applicants and intervening parties broadly argued that the direction was not lawful and reasonable because:

1. consultation requirements under the Work Health and Safety Act 2011 (NSW) (WHS Act) were not complied with;
2. consultation obligations under the Agreement were not complied with;
3. obligations under the Privacy Act 1988 (Cth) (Privacy Act) were not complied with; and
4. the direction impairs the employees’ right to bodily integrity.

Conversely, the respondent contended that it has a duty under the WHS Act and at common law to ensure the health and safety of employees and other persons, insofar as it is reasonably practicable. They submitted that a direction that intends to achieve this purpose is lawful and reasonable.

The Decision

The FWC accepted that the object and purpose of the Site Access Requirement was to protect health and safety, and that the direction was lawful because it fell within the scope of employment and vaccination is not illegal or unlawful. 

In relation to the reasonableness of the direction, the FWC held that this is a question of fact having regard to all circumstances, including any instrument/s governing the employment relationship. 

Consultation Obligations

The Court had regard to consultation obligations imposed by ss 47-49 of the WHS Act, which were enlivened by the introduction of the Site Access Requirement. These obligations require employers to consult with workers directly affected by matters relating to health and safety (s 47(1)), prior to the implementation of any relevant decision/s. 

The WHS Act also requires that consultation be undertaken in accordance with any agreed procedures for consultation (s 47(2)). Clause 30 of the Agreement provides an obligation to consult if the employer makes a ‘definite decision’ to introduce a ‘major change’ that will likely significantly affect employees. The FWC found that the vaccine mandate enlivened this clause, as it creates a new condition of Mine entry and exposes unvaccinated workers to significant effects, including potential disciplinary action and/or dismissal.

The respondent argued that it had fulfilled its consultation obligations prior to 7 October 2021, through an education program, promotion of vaccination to employees, and an ‘Options Analysis’ that resulted in a recommendation that BHP workplaces require COVID-19 vaccination as an entry condition. BHP also established a ‘Vaccine Mailbox’ for employees to submit questions and comments regarding the proposed introduction of the Site Access Requirement, and accepted feedback through other avenues. BHP also engaged with unions.

However, the FWC found that employees were not asked to contribute suggestions or ideas pertaining to the decision-making process, risk assessment or rationale underpinning the decision to mandate vaccines, nor were they provided with sufficient information regarding risk assessments. The FWC also found that communication of the decision to introduce the Site Access Requirement indicated that the decision was not open for reconsideration. Additionally, they found that the respondent did not adequately engage with health and safety representatives during the consultation process, which is required under s 48(2) of the WHS Act.

Accordingly, the FWC determined that the deficiencies in the respondent’s consultation processes prior to the decision to introduce the Site Access Requirement being made are contrary to the direction being reasonable. This is despite the FWC’s finding that consultation undertaken following the announcement of the direction aligned with the respondent’s consultation obligations. 

Privacy and Bodily Integrity

In relation to the applicants’ submissions regarding privacy, the FWC found that it was unnecessary for them to reach a concluded view on this issue as they had already made a decision regarding reasonableness. In relation to submissions about bodily integrity, the FWC determined that this was relevant to an assessment of reasonableness, and underscores the importance of effective consultation in light of some people holding strong views pertaining to vaccination.

Key Takeaways for Employers

The FWC’s decision that the Site Access Requirement was not a ‘lawful and reasonable direction’ turned on the respondent’s lack of compliance with its consultation obligations prior to announcing the direction. While the decision serves as a timely reminder to employers as to the importance of meaningful employee consultation, it does not automatically invalidate a workplace direction compelling vaccination against COVID-19. Indeed, the FWC observed that, if the respondent had fulfilled its consultation obligations, there would have been strong grounds to find that the direction was otherwise lawful and reasonable. The FWC further noted that the respondent may address the consultation deficiencies and make another decision regarding the implementation of the Site Access Requirement in the future. To that end, the FWC also indicated its availability to facilitate discussions between the applicants and the respondent regarding the consultation processes.

Employers considering implementing COVID-19 vaccine mandates in the future, or taking any other actions that enliven consultation obligations, should ensure they engage in a meaningful consultation process prior to forming, and communicating, a decision. Such processes do not require the agreement of those being consulted, nor must consultees be afforded veto power. Rather, people affected by a decision must be afforded a genuine opportunity to persuade decision-makers in relation to the relevant outcome/s.

Employers considering imposing compulsory vaccination requirements upon workers are urged to seek independent legal advice prior to communicating a workplace direction to that effect.

¹ [2021] FWCFB 6059.

Special thanks for the contribution of Solicitor, Madeleine Moore.

This article may provide CPD/CLE/CIP points through your relevant industry organisation.

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.