Vaccine Mandates: Workforce Consultation is Key
Many employers want to support the national public health effort to maximise vaccination uptake. However, the message is to proceed with some care and caution. On 3 December 2021, a five member bench of the Fair Work Commission (FWC) delivered its decision in CFMMEU v Mt Arthur Coal Pty Ltd  FWCFB 6059 (Decision). The decision speaks to mandatory vaccination policies and the essentiality of employee consultation.
On 3 December 2021, a 5 member bench of the Fair Work Commission (FWC) delivered its decision in CFMMEU v Mt Arthur Coal Pty Ltd  FWCFB 6059 (Decision). In essence, the Full Bench found that BHP’s mandatory vaccination policy was not a ‘lawful and reasonable direction’ because BHP had not adequately consulted with employees prior to implementation.
The key facts
Mt Arthur Pty Ltd (Mt Arthur) is a member of the BHP group of companies and manages a coal mine in the Hunter Valley, NSW. At the coal mine, 724 employees are covered by the Mt Arthur Coal Enterprise Agreement 2019 (Enterprise Agreement). Almost all of these employees are represented by the CFMMEU.
On 7 October 2021, Mt Arthur enforced a ‘site access requirement’: to enter the site, employees were required to have at least one dose of a COVID-19 vaccine by 10 November 2021 and be fully vaccinated by 31 January 2022 (SAR).
The CFMMEU applied under the dispute resolution clause in the Enterprise Agreement to have the FWC deal with the dispute. The question put to the FWC for resolution was whether the SAR was a lawful and reasonable direction with respect to the employees. The short answer was no.
Why was the SAR unlawful?
Critically, the SAR enlivened the obligations of sections 47 to 49 of the Work Health and Safety Act 2011 (NSW) (WHS Act). Section 47(1) of the WHS Act requires employers to consult, so far as reasonably practicable ‘with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety’.
Mt Arthur argued that it had consulted. More specifically:
- Prior to 31 August 2021, BHP had undertaken an education program and promoted COVID-19 vaccination to all of its employees;
- Between 31 August 2021 and 7 October 2021, BHP had a central mailbox (Vaccine Mailbox) which invited questions and comments regarding the SAR. It received 480 inquiries 20 of which came from Mt Arthur’s employees;
- Employees provided feedback through other avenues; and
- Between 7 October 2021 and 10 November 2021, the SAR was implemented with forewarning of implementation given to employees
However, the FWC did not accept that consultation for the purpose of section 47 had occurred because:
- employees were not given a genuine opportunity to express their views and to raise work health and safety issues, or to contribute to the decision-making processes;
- employees “were not provided with information relating to the reasons, rationale and data supporting the proposal, nor were they given a copy of the risk assessment or informed of the analysis that informed that assessment”; and
- “in effect the Employees were only asked to comment on the ultimate question: should the Site Access Requirement be imposed?” and that fell short of the requirement to provide a genuine opportunity to influence the outcome.
Action needed by employers
Many employers want to support the national public health effort to maximise vaccination uptake. However, the message is to proceed with some care and caution. Most employers will be covered by a modern award or enterprise agreement, and the mandatory consultation provisions in those instruments, coupled with section 47 of the WHS Act (and its equivalent in other jurisdictions) necessitate genuine, substantive workforce consultation.
Prior to implementing a mandatory vaccination policy, businesses are encouraged to:
- undertake a risk assessment;
- as a result of (1), evaluate the adequacy of current control mechanisms;
- if (2) tends to support mandatory vaccination, consult with employees and in doing so, ‘do more’ than ask whether they support mandatory vaccination. This may include providing information about analysis of the adequacies of current controls; and
- after considering the outcome of (3), proceed to implement a mandatory vaccination policy having regard to the employer’s duty of care under the WHS Act (and its equivalent for other jurisdictions).