COVID vaccine mandate fails because of lack of consultation
Posted on December 07, 2021
The recent decision of the Full Bench of the Fair Work Commission (FWC) in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059, held that a COVID-19 vaccine mandate to employees at BHP’s Mt Arthur mine was not a lawful and reasonable direction. The determinative factor was the lack of reasonable consultation under Work Health and Safety Laws, which sends an important message to employers about complying with consultation obligations when imposing a vaccine mandate in the workplace absent a public health order.
Facts
Mt Arthur is a member of the BHP group of companies who employs employees at the Mt Arthur open cut coal mine in the Hunter Valley in New South Wales. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) represents the bulk of the employees employed by Mt Arthur who are covered by the Mount Arthur Coal Enterprise Agreement 2019 (Agreement).
A site access requirement was announced by Mt Arthur on 7 October 2021, that all workers at the site be vaccinated against COVID-19 as a condition of site entry (Site Access Requirement). This required workers to have at least one dose of an approved COVID-19 vaccine by 10 November 2021 and fully vaccinated by 31 January 2022. A failure to provide evidence of vaccination meant that the workers were not permitted to enter the mine site. An application was made by the CFMMEU to have the dispute dealt with under the dispute resolution procedure in the Agreement.
The question to be answered by the FWC was whether the direction was a lawful and reasonable direction in respect to the employees at the Mt Arthur mine who were covered by the Agreement.
The FWC ultimately held that the answer to this question was no.
Consultation obligations
It was uncontentious that the introduction of the Site Access Requirement and the implementation enlivened the consultation obligations in the WHS Act, which is based on the Work Health and Safety Model Laws enacted in all jurisdictions except Victoria and Western Australia.
In addition to those obligations there was also an obligation under the Agreement which required consultation when Mt Arthur had made a definite decision to introduce a “major change”.
BHP did engage in consultation which included “toolbox meetings”, health and safety committee meetings, union meetings, and information behind the reasoning for the vaccine mandate. However, this occurred after the vaccine mandate was announced. The effect of this was that it was not a lawful and reasonable direction for employees to be vaccinated in line with the Site Access Requirement.
Although it was held that Mt Arthur had ‘substantially’ met its consultation obligations under the Agreement in that it consulted with employees after it made a definite decision to introduce the Site Access Requirement, it had failed to meet its consultation obligations under the WHS Act.
The FWC did make clear that there were many reasons why the vaccine mandate might otherwise be considered reasonable including that:
- It was directed at ensuring the health and safety of workers of the mine;
- It had a logical and understandable basis;
- It was 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 mine workers cannot work from home and 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.
COVID-19 going forward
The FWC noted that if Mt Arthur commenced its consultation with employees in relation to vaccination requirements in a timely fashion it may be possible for them to make a decision whether to impose the Site Access Requirement prior to 15 December 2021, which is when NSW anticipates relaxing COVID-19 restrictions.
The FWC made several factual findings about the risks of COVID-19 based on the evidence before it, including that the risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants and that vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.
The FWC emphasized that one of the particular features of the case was that the decision to implement the Site Access Requirement was made in a dynamic environment which has since evolved since the hearing of the matter with the Omicron variant of COVID-19 being designated as a variant of concern. The FWC noted that the rates of infection throughout Australia is likely to increase over time as movement restrictions ease with a consequent increase in risk in particular for the unvaccinated, stating that the WHS Act framework is concerned with the assessment and reduction of risk.
This is an important lesson for employers that what is reasonable will depend on the circumstances but includes complying with consultation obligations in a meaningful way.
Employers must comply with Work Health Safety Laws as well as any additional consultation obligations under enterprise agreements and contracts of employment. The decision does not create a path to repeal all COVID-19 vaccine mandates but does show that individual directions may be challenged on a case-by-case basis.
Please contact our workplace relations team if you require advice about mandatory vaccinations in the workplace.
