BHP has recently become the first Australian business to have its COVID-19 vaccination policy overturned.
On 3 December 2021, a full bench of the Fair Work Commission (FWC) determined that a direction issued by BHP group member, Mt Arthur Coal Pty Ltd, which required all workers to be vaccinated against COVID-19 as a condition of entry to the Mt Arthur coal mine in New South Wales (the Direction), was not a lawful and reasonable direction due to the failure by BHP to properly consult about the Direction with affected workers.
The case serves as a timely reminder that businesses considering introducing a mandatory vaccination policy must take care to ensure that affected employees are properly consulted before a final decision is made to introduce such a policy. Employees must have a reasonable and genuine opportunity to express their views about the proposed vaccination mandate and are entitled to be given an explanation of the reasons and rationale supporting the proposed policy by reference to the risk assessment process undertaken by the business.
However for the reasons discussed in this article, the outcome in this case is not necessarily a win for those who oppose vaccination mandates.
BHP’s consultation process
On 31 August 2021, BHP announced to all staff that it was “actively assessing whether to make vaccination a condition of entry to BHP workplaces in Australia”, and that a risk-based assessment would be commenced regarding such a condition.
BHP subsequently set up a central mailbox for use by employees, invited employees to submit questions and comments regarding the proposed introduction of the site entry condition, and established a working group to assess and collate questions and comments received from employees (including through the central mailbox) as well as employee representative groups.
Some five weeks later, on 7 October 2021, BHP announced that it would introduce a requirement that persons entering BHP’s Australian based workplaces, including the Mt Arthur mine, would need to be vaccinated against COVID-19.
Following the announcement, BHP commenced a process of discussion with affected workers about the implementation of the requirement. This involved:
The Construction, Forestry, Maritime, Mining and Energy Union together with an employee representative commenced proceedings in the FWC, arguing that the vaccination requirement was not a lawful and reasonable direction and seeking an injunction to restrain Mt Arthur from taking any steps to dismiss or discipline any employee who failed to provide evidence of COVID-19 vaccination pending the FWC’s decision.
FWC observations about nature and extent of consultation obligations
At the outset the FWC confirmed that:
In New South Wales, section 47 of the Work Health and Safety Act 2011 (NSW) (WHS Act) (an identical provision to which appears in South Australia’s work health and safety legislation) requires a ‘person conducting a business or undertaking’ (in this case, BHP) to consult with workers, as far as reasonably practicable, in respect of matters relating to work health or safety.
The proposed introduction of the vaccination requirement triggered BHP’s obligation to consult with all workers who would be subject to the requirement. BHP relied upon the steps taken following the announcement of the requirement on 7 October 2021 as evidence that it had engaged in consultation.
The FWC unanimously found that BHP failed to consult with workers at the Mt Arthur mine site as required by section 47 of the WHS Act.
In reaching this view, the FWC considered that whilst consultation does not constitute a right of veto, the obligation to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that those views may be taken into account before a final decision is made.
The FWC was critical of BHP’s purported consultation process for the following key reasons:
The FWC concluded that the Direction was not a lawful and reasonable direction on account of the inadequate consultation that took place.
Not the end of the story
The outcome in this case does not resolve the question of whether BHP’s vaccination policy will be legally enforceable once BHP undertakes a fresh, compliant consultation process. In fact, the FWC expressed the view that had BHP complied with its consultation obligations, it is likely that it would have upheld the Direction.
In reaching this provisional view the FWC observed that:
The FWC further noted that consultation obligations only require consultation to be undertaken to the extent “reasonably practicable” and that, if there was a surge in the risk of transmission of COVID-19 or the prevalence of a more transmissible new COVID-19 variant, a more truncated consultation process may suffice.
Best practice consultation
This decision illustrates the importance of compliance with consultation obligations under work health and safety legislation. Businesses wishing to introduce mandatory vaccination policies should seek advice before doing so and keep in mind the following best practice guidelines:
This article provides general commentary only. It is not legal advice. Before acting on the basis of any material contained in this article, seek professional advice.
Paul Dugan, Principal in our Disputes Team
Direct Telephone: +61 8 8210 2266
Kylie Dunn, Senior Associate in our Disputes Team
Direct Telephone: +61 8 8210 2286