On 3 December 2021, a five-member full bench of the Fair Work Commission (FWC) deemed that a vaccine mandate introduced by BHP at its Mt Arthur Coal mine in NSW was not a reasonable direction as BHP had failed to properly consult is employees prior to implementing the policy. However, the decision does not definitively determine that all Covid-19 vaccine mandates within NSW workplaces will be considered unreasonable. Rather it serves as a timely reminder for all employers of the importance of engaging in genuine and meaningful consultation before making any decision to implement a mandatory vaccination policy.
The vaccine mandate introduced by BHP concerns an announcement made at the Mt Arthur coal mine that there would be a “Site Access Requirement”, requiring employees to have at least one does of the Covid-19 vaccine by 10 November 2021 and to be fully vaccinated by 21 January 2022 in order to access the mine. Neither party including BHP and Mt Arthur Coal Pty Ltd (Mt Arthur Coal) and the Construction, Forestry, Maritime, Mining and Energy Union (CFFMEU), submitted there was anything in public health orders, the Mt Arthur Coal Enterprise Agreement 2019 (Agreement) or in the express terms of the employee contracts that provided a legal basis for the Site Access Requirement. Therefore, the basis for the mandate must derive from the term implied into all employment contracts that employees must follow lawful and reasonable directions of their employers.
The FWC discussed both the lawful and reasonableness of the Site Access Requirement. However, the decision was based on the issue of ‘reasonableness’, specifically the failure to consult employees.
For a direction to be ‘lawful’, it must fall into the scope of the employee’s employment and must not be something that would be unlawful. In regard to the lawfulness of the Site Access Requirement, the FWC said that “if a direction is to protect the health and safety at work of employees and other persons frequenting the premises then such a direction is likely to be lawful.” The FWC determined the Site Access Requirement was prima facie lawful as it falls within the scope of employment and there is nothing illegal about being vaccinated.
However, the issue that arose was the reasonableness of the direction. The FWC stated that the reasonableness of a direction is a question of fact that will be assessed on a case-by-case basis, with a consideration of all circumstances. The FWC listed various circumstances to consider including whether or not the employer has complied with any relevant consultation obligations, the nature of the employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship.
The FWC determined that Mt Arthur Coal failed to consult their employees in accordance with their consultation obligations. The introduction of the Site Access Requirement triggered the consultation obligations within the Work Health and Safety Act 2011 (WHS Act) s 47-49. Section 47 requires the person conducting a business to consult with workers who carry out work for the business or undertaking, who are, or likely to be directly affected by a matter relating to work health and safety. Section 49 further specifies this consultation must occur whilst the decision is being made. Several cases have referred to what constitutes consultation, including TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 178–179 which highlighted that “a responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account.”
Mt Arthur Coal submitted that between 21 August 2021 and 7 October 2021, they began a process of consultation and engagement with employees about the proposed Site Access Requirement. They stated this process included engaging with unions and setting up a Vaccine Mailbox where employees could write in questions and comments regarding the Site Access Requirement. However, on 7 October 2021 an announcement was made that the Site Access Requirement “will be introduced” rather than “proposed” or “intended“.
The FWC determined that despite Mt Arthur Coal noting they were committed to consulting with the workforce, “it did not appear that employees were asked to contribute ideas or suggestions related to the decision-making process.” The FWC noted that Mt Arthur Coal only received 20 emails to the Vaccine Mailbox from Mt Arthur mining employees and it was not evident that a genuine attempt to consult with the unions during the assessment period had occurred.
The FWC noted that adequate consultation does not require that those consulted agree to the direction, or give them a power of veto, but that Mt Arthur Coal should have provided employees with a reasonable opportunity to persuade the decision-maker in relation to the decision to introduce the Site Access Requirement. The FWC accepted the CFMMEU’s submission that the announcement on 7 October 2021 demonstrated the decision ‘was not amenable to consultation.’
In contrast to the minimal consultation said to have occurred in the decision making or “assessment phase”, during the “implementation phase” that followed the announcement of the Site Access Requirement, Mt Arthur Coal engaged in toolbox meetings with employees, meetings of the various H & S committees, the provision of some information about the risk assessment underpinning the Site Access Requirement, and meetings between the unions and BHP to discuss concerns about the implementation of the Site Access Requirement.
The FWC noted that “The contrast in the consultation or engagement with Employees in the implementation phase compared to the assessment phase is stark and suggests that during the assessment phase the Respondent was not consulting as far as is reasonably practicable as required by s.47 of the WHS Act.”
The FWC noted a list of considerations that would have acted in favour of Mt Arthur Coal when considering reasonableness of the Site Access Requirement, including:
However, it was ultimately decided that due to a failure to properly consult employees prior to the decision being made to implement the Site Assessment Requirement, as required under the WHS Act, the direction was unreasonable. Essentially, if workers had been consulted, it would have been likely found that the mandate was lawful and reasonable in the circumstances.
The CFMMEU further contended that as the Site Access Requirement impacts upon the choice of an individual to undergo a medical procedure, it engages the common law right to personal and bodily autonomy and integrity. However, the FWC found that this bodily right is not violated by the Site Access Requirement. In justifying this finding, the Commission quoted Beech-Jones CJ in Kassam v Hazzard Kassam v Hazzard who stated
“People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault.”
However, on the issue of consultation, the FWC did note that it is common knowledge some citizens feel strongly about their bodily integrity and it is important that these employees be heard, consulted and their views considered.
The FWC noted that absent a public health order or express term in a contract, the requirement that an employee be vaccinated as a condition of entry to the workplace must be derived from the implied term that employees obey lawful and reasonable directions from their employer. The FWC reiterated that such a decision will be determined on a case-by-case basis however it made some broad observations:
Therefore, the FWC have made it clear that they will not make a general statement or determination on whether a vaccine mandate will be considered a lawful and reasonable direction. It will all depend on the circumstances on a case-by-case basis.
As noted in our previous article on vaccine mandates, ideally before a mandatory vaccination policy is introduced, employees will have been given every opportunity to be vaccinated, they will have been consulted, and will understand the justification for such a policy. The FWC decision has emphasised that this consultation must occur before making the decision to introduce a Covid-19 vaccine policy, i.e. at the risk assessment phase. This earlier stage of consultation is necessary in order for the employer to discharge their duty under sections 47 and 49 of the WHS to consult as far as reasonably practicable in identifying the hazards, assessing the risks and when making decisions about the ways to eliminate or minimise those risks. Consultation about how to implement such a policy, once a decision has been made, does not satisfy an employer’s obligation to consult in the risk assessment phase.
The decision-making process in determining whether to implement a mandatory COVID-19 vaccination policy will likely be very complex for employers, and we recommend obtaining legal advice specific to your circumstances. Our team can assist with advice on:
In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph , Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph , Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph : "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.
The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane  NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.
The recent decision in New Aim Pty Ltd v Leung  FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.