Our related article: Mandatory Covid-19 Vaccination Test Case: the importance of consultation – McCabes.
In June 2022, the Fair Work Commission (FWC) for the first time upheld a mandatory vaccination policy imposed where a public health order did not apply.
Similar to the BHP case we have previously discussed (click here), this FWC decision again highlights the importance of workforce consultation when proposing to implement mandatory vaccination policies.
The Australian Manufacturing Workers’ Union and the Australian Workers’ Union (the Unions) applied to the FWC for it to deal with a dispute under the Australian Submarine Corporation (ASC) Enterprise Agreement 2021 (EA).
ASC is a Commonwealth-owned business, which maintains six ‘Collins-class’ submarines at facilities in South Australia and Western Australia.
The dispute arose when ASC introduced a COVID-19 policy, requiring employees and contractors to be double vaccinated against COVID-19 before entering ASC’s worksite at Osborne, South Australia.
ASC had identified that there was an increased likelihood that the COVID-19 pandemic would have a greater impact on its business due to spikes in infections throughout Australia.
ASC then surveyed its workforce to understand the impact and risk mitigation strategies needed to manage COVID-19. Participation in the survey was voluntary, and ASC at the time had no intention of implementing a company policy mandating vaccinations.
Then, the South Australian Government announced that it planned to shortly open its border. The Australian Navy, a major client of ASC, had also announced that persons on its vessels in open water were required to be double vaccinated.
As a result, ASC proposed changes to its COVID-19 policy, including immediate control measures (wearing masks, social distancing and rapid antigen testing on site (Phase 1 Controls)) and a mandatory double vaccination requirement (Phase 2 Controls).
Those Phase 2 Controls meant that ASC employees had to be double vaccinated by a certain date or face termination of employment for failure to meet the inherent requirements of their role, unless a personal or medical exemption applied.
During the consultation process, in relation to the proposed changes, ASC met with the Unions, the consultative committee and employee health and safety representations. ASC considered and responded to feedback from employees through an email account that had been established for the purpose of consultation, and the Unions held meetings with employees to discuss the proposed changes.
Despite this, the Unions applied to the FWC to deal with the matter alleging a lack of consultation surrounding the Phase 2 Controls, resulting in further consultation on the Phase 2 Controls.
Following the additional consultation, ASC communicated its decision to proceed with the policy changes, with some modifications. The modifications included no longer retaining vaccination certificates or medical exemptions and included a show cause process for non-compliant employees.
The Unions, however, continued to dispute the implementation of the Phase 2 Controls, resulting in consultation continuing for a further 3 months including a review of the risk assessment prepared in respect of the policy.
ASC then again advised its workforce that it was proceeding with implementing the policy, including the Phase 2 Controls.
The FWC was required to determine whether ASC had met the consultation requirements contained within its EA, and whether requiring workers to comply with the policy was lawful and reasonable.
The Unions argued that the easing of public health restrictions supported its argument that ASC’s vaccination mandate was unreasonable and a disproportionate response to COVID-19.
In reaching its decision, the FWC said that consultation should be meaningful and engaged in before an irreversible decision has been made. The obligation will only be met where a party has a real opportunity to influence the decision maker. Consultation is not merely about the impact of a decision and means to mitigate the impact, but about the decision itself.
In finding that ASC had met its consultation obligations under the EA, the FWC said that:
- ASC had a predisposed view in favour of the decision it had made but was willing to, and did, consider views which questioned the need for the vaccination mandate.
- Having a predisposed view to a particular course rather than simply opening discussion on neutral options is not, of itself, a failure to consult provided the necessary ingredients exist that meet minimum consultation obligations.
- Holding to that view during the subsequent period of consultation did not mean that the consultation was not genuine and meaningful.
- Whether other or different approaches to decision-making and consultation could or should have been taken by ASC is not to the point.
- ASC was open to receive and implement feedback from its employees as well as the relevant unions, and the consultation had the capacity to inform and impact the employer’s view on the appropriateness of its decision and whether to proceed with that decision.
Lawful and reasonable direction
In considering lawfulness of the Phase 2 Controls, the FWC said that for a direction by an employer to be lawful it must at least pertain to employment (that is, be within the scope of the employment relationship) and must not be to do with something which is unlawful. The FWC determined that where ASC complied with its consultation obligations under the EA and WHS legislation, a direction to comply would be lawful.
Further, the FWC said that it did not consider the requirement to show proof of vaccination or medical exemption as being inconsistent with the Australian Privacy Principles. It was satisfied that the information required was reasonably necessary for the implementation of workplace policies in active compliance with health and safety obligations under the EA and the WHS legislation.
In considering reasonableness, the FWC said that it was not unreasonable for ASC to consider that the Phase 1 Controls were not adequate to mitigate its assessment of risk due to COVID-19.
In considering proportionality to risk, the FWC weighed numerous factors, including the right to bodily integrity and the fact that the policy provided for medical exemptions, and determined that the Phase 2 Controls, being mandatory vaccination, were not a disproportionate response to the risks presented by COVID-19.
Key take aways for employers
When proposing to implement vaccination policies, or any other policy for that matter, employers should ensure that the consultation terms of any applicable enterprise agreement or modern award are complied with.
In addition, it will be critical that employers are able to demonstrate that any direction for employees to be vaccinated is reasonable. The Fair Work Ombudsman has usefully provided a list of considerations that may be relevant when determining whether a direction for employees to be vaccinated against COVID-19 is reasonable, which can be accessed here. These considerations include:
- the terms of any applicable public health order;
- work health and safety obligations;
- the nature of the workplace, such as whether the employees are required to work in public facing roles;
- the level of community transmission in the location where the direction will be given; and
- the effectiveness and availability of vaccines and other control measures, such as physical distancing and wearing masks.
If you would like further information, please get in touch with the Employment team at McCabes Lawyers.