Fair Work Commission unanimously determines that vaccination mandate is unreasonable – a lesson in consultation

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:

• ‘toolbox’ meetings with employees;
• meetings with health and safety committees;
• employees being provided with information regarding the risk assessment that underpinned the vaccination mandate; and
• a number of meetings between BHP and the union.

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 the absence of any applicable public health order or express terms in employees’ contracts of employment, an employer direction about vaccination will only be enforceable if it is both lawful and reasonable;
• the reasonableness of a vaccination direction requires consideration of all of the relevant circumstances, including the extent of compliance with statutory consultation obligations.

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:

• it did not appear that employees were asked to contribute ideas or suggestions in relation to the decision-making process or the risk assessment or rationale that underpinned the decision to introduce the Direction;
• BHP failed to provide information to employees explaining how it had taken into account and weighed up matters relevant to the introduction of the Direction, including its evaluation of existing control mechanisms (such as personal protective equipment, physical distancing protocols, hygiene protocols, occupancy limits, and use of rapid testing as a condition of site entry) and its assessment of why those measures were not sufficient to minimise risks associated with COVID transmission and therefore why vaccination was a reasonably practicable control measure to be introduced;
• the discussion period which involved consultation with employees, health and safety representatives and the union did not commence until after BHP had already made a final decision to introduce the vaccination requirement (which the evidence revealed occurred one week earlier on 30 September 2021);
• there was no direct engagement with health and safety representatives and no discussion of mandatory vaccination at any health and safety meeting before the announcement of the Direction on 7 October 2021.

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 Direction was directed towards ensuring the health and safety of workers of the mine;
• the Direction had a logical and understandable basis;
• the Direction was a reasonably proportionate response to the risk created by COVID-19;
• the Direction was developed having regard to the circumstances at the mine, including the fact that mine workers cannot work from home and that they come into contact with other workers whilst at work;
• the timing for the Direction’s commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time; and
• the Direction was only implemented after BHP had spent a considerable period of time encouraging vaccination and setting up a vaccination hub for workers at the mine.

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:

• Relevant information needs to be shared with employees. This will include the reasons and rationale supporting the proposed vaccination policy (such as work health and safety considerations);
• Employers need to explain to employees:
  • what information the employer considered in forming the view that vaccination may be reasonably practicable to implement as a control measure to address COVID workforce risks;
  • how the employer evaluated the adequacy of the business’ existing control measures; and
  • why the employer considers that vaccination is a reasonably practicable control measure to be introduced;
• Employees must be given a reasonable and genuine opportunity to express their views about the proposed vaccine mandate. Consultation is not perfunctory advice on what is about to happen. Consultation requires employees to be given a bona fide opportunity to influence the decision-maker;
• Employees are entitled to contribute to the decision-making process. Necessarily, consultation must take place before any final decision is made;
• Employees’ views must be taken into account in the decision-making process. Whilst consultation does not require employees to agree to the direction or have the power of ‘veto’, employees should have a reasonable opportunity to persuade their employer in relation to a decision to introduce a mandatory vaccination policy;
• Workers must be advised of the outcome of the consultation in a timely manner.

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.