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.
Lawful and reasonable
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:
- It is directed at ensuring the health and safety of workers of the mine;
- It has a logical and understandable basis;
- It is a reasonably proportionate response to the risk created by COVID-19;
- It was developed having regard to the circumstances at the mine, including the fact that mineworkers cannot work from home and they come into contact with other workers whilst at work;
- The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time; and
- It was only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the mine.
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.
Personal and bodily autonomy and integrity
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.
What does this mean for mandatory Covid-19 policies?
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:
- If the object and purpose of a direction is to protect health and safety of employees and others, such a direction is likely to be lawful;
- To establish a direction is reasonable, it need not be necessary to show the direction is the preferable or most appropriate course of action or in best interests of the parties;
- A determination of reasonableness can only be made with reference to subject matter and context.
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:
- The development of a workplace policy in relation to COVID-19 vaccinations,
- Ensuring compliance with consultation obligations under Work, Health and Safety law, and any applicable modern award, enterprise agreements, or employment contracts;
- Ensuring that any COVID-19 vaccination workplace policy is compliant with anti-discrimination law;
- Ensuring compliance with privacy laws if health information (including evidence of vaccination) will be collected from employees;
- Reviewing employment contracts and enterprise agreements to assess whether they contain any terms with respect to vaccinations, and drafting any contract variations required;
- Determining a process for managing refusals, including the potential consequences for employees who refuse to comply with a vaccination policy; and
- Identifying alternatives methods for managing COVID-19 risks in the absence of, or as a pre-cursor to, adopting a mandatory vaccination policy.