WHS consultation crucial to enforcing mandatory COVID-19 vaccination: Fair Work Commission hands down decision in BHP case

9 minute read  07.12.2021 Trent Forno, Leyla Dixon, Sarah Walters

The Full Bench of the Fair Work Commission recently handed down its decision regarding the introduction of vaccination against COVID-19 as a condition of site entry at BHP's Mt Arthur Mine in NSW.


Key takeouts


  • The Commission found that, while the direction was prima facie lawful, it was not reasonable. This is because BHP had breached health and safety obligations by failing to meaningfully consult its workforce on the vaccine mandate.
  • Employers can consider introducing mandatory vaccination requirements, provided there are reasonable grounds to support vaccination as a reasonably practicable control measure and that appropriate processes are followed.
  • Employers must ensure that appropriate consultation occurs in relation to any such mandatory vaccination requirement, in accordance with obligations under health and safety laws and industrial instruments.

On Friday, 3 December, the Full Bench of the Fair Work Commission (Commission) handed down its decision regarding the introduction of vaccination against COVID-19 as a condition of site entry (Site Access Requirement) at BHP's Mt Arthur Mine (Mt Arthur) in NSW.

The Full Bench found that the Site Access Requirement was prima facie lawful, because it fell within the scope of the employment and was not illegal.

However, it ultimately found that the Site Access Requirement was not reasonable because the obligation to consult with the workforce, arising from health and safety legislation, had not been complied with.

In particular, the Commission found that Mt Arthur had failed to properly consult with employees about why the Site Access Requirement was necessary before the decision was made. They focussed instead on consultation about how the Site Access Requirement would be implemented after the decision had been made.

The Commission did not determine that mandatory vaccination requirements could not be introduced, but rather that employers must ensure that appropriate consultation occurs in relation to any such requirement. This consultation must occur in accordance with obligations under health and safety laws and industrial instruments.

What was the case about?

The case involved a dispute at Mt Arthur about its direction that all workers meet the Site Access Requirement. This specifically required workers to:

  • have at least one dose of an approved vaccine by 10 November 2021;
  • be fully vaccinated by 31 January 2022; and
  • provide evidence of their compliance by each of those dates.

An application was made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for the Full Bench of the Commission to arbitrate the dispute about whether the Site Access Requirement was a 'lawful and reasonable direction' to employees covered by the Mt Arthur Coal Enterprise Agreement 2019 (Mt Arthur EA). Given the potential significance of the issue for all Australian workplaces, various other trade unions and peak industry bodies were granted leave to intervene.

How was the case argued?

The application proceeded on the basis of a number of established factual propositions, including that:

  • vaccination is the most effective and efficient control available to combat the risks posed by COVID-19;
  • with the easing of restrictions, the virus will spread throughout Australia and be present in all workplaces, including Mt Arthur; and
  • when it does spread, those who remain unvaccinated are at the greatest risk of acquiring COVID-19 and infecting others they come into contact with.

There was no express legal right underpinning the Site Access Requirement, either through public health orders, the employees’ contracts of employment, or the Mt Arthur EA. Therefore, its validity depended on the implied right of an employer to give 'lawful and reasonable' directions to its employees.

The CFMMEU, and the intervening unions, argued that the Site Access Requirement was neither lawful nor reasonable because:

  • Mt Arthur had not complied with its obligations to consult with workers under the Work Health and Safety Act 2011 (NSW) (WHS Act); and
  • it was not a 'reasonably practicable' step required to be taken under sections 19 and 20 of the WHS Act.

They also argued that the direction breached the Privacy Act 1988 (Cth) (Privacy Act), because it required the collection of health information from employees without their consent. They argued that it impaired the employees’ common law right to bodily autonomy and integrity – that is, the right of an individual to choose what occurs with respect to their own body.

Mt Arthur pointed to numerous steps it had taken to consult with its workforce, both before and after the decision to implement the Site Access Requirement. This included establishing a central mailbox for employees to ask questions and give feedback, and responding in writing to concerns raised by the unions. It argued that, even if it had not strictly complied with its consultation obligations, the direction was both lawful and reasonable. This is because it was necessary to protect its workers against the risk of COVID-19, and therefore to meet its duty of care.

What did the Full Bench decide?

Consultation under the WHS Act

The Full Bench considered the elements of adequate consultation, both under industrial instruments and the WHS Act, and relevant WHS Code of Practice. It decided that:

  • consultation did not require agreement with the direction, or provide employees with a right of veto. In the context of this matter, it should provide employees with a reasonable opportunity to persuade a decision maker in relation to the decision to introduce the Site Access Requirement;
  • Mt Arthur's consultation was inadequate because employees were not asked to contribute ideas or suggestions before the decision to introduce the Site Access Requirement. While substantial information was provided to employees during the assessment phase, these meetings occurred after the decision was made;
  • the Code of Practice explained the nature of the relevant information to be shared with workers, in order to facilitate informed and constructive discussions – such as health and safety policies and procedures, technical guidance about hazards, risks and control measures. However, insufficient information was provided to employees about how Mt Arthur had taken account of various matters – such as how it had evaluated the existing control measures. These control measures, including physical distancing and the use of Personal Protective Equipment (PPE), were inadequate when compared to vaccination;
  • it was unnecessary to reach a conclusion on whether the failure to comply with the consultation obligations under the WHS Act affected the lawfulness of the Site Access Requirement, instead focussing on the issue of reasonableness. In deciding that the direction was unreasonable, it rejected Mt Arthur's submission that further consultation would have led to the same outcome. It held that it was sufficient for it to make this finding on the basis that the employees had been denied the possibility of a different outcome.

Right to bodily integrity

The Full Bench decided that the Site Access Requirement did not violate the employees' right to bodily integrity because it did not force any employee to undergo vaccination. However, the threat of disciplinary action if the requirement was not complied with, had the effect of applying pressure to unvaccinated employees to surrender that right. This effect underscored the significance of the inadequate consultation, and was another factor informing the overall assessment that the Site Access Requirement was unreasonable.

Privacy Act

The Full Bench was unable to reach a concluded view on the limited evidence about whether Mt Arthur had breached the Privacy Act, This included whether any of the exceptions were enlivened – for example, whether collection of health information was necessary to 'lessen or prevent a serious threat to life health or safety'. In any event, it was unnecessary for the Full Bench to do so, given the conclusion it reached in relation to the reasonableness of the direction.

'Reasonably practicable'

The Full Bench found that it was unnecessary to decide whether the Site Access Requirement was a 'reasonably practicable' step that Mt Arthur had to take, in order to fulfil its duties under sections 19 and 20 of the WHS Act. In doing so, the Full Bench confirmed that a direction does not need to be founded on a statutory duty, or other statutory source of power, in order for it to be lawful and reasonable.

Conclusion

A range of factors were noted as weighing in favour of a finding that the Site Access Requirement was reasonable. These included that it:

  • had a logical and understandable basis;
  • was developed with regard to circumstances at Mt Arthur; and
  • was only implemented after Mt Arthur had spent considerable time encouraging vaccination, and setting up a vaccination hub for workers.

The Full Bench observed that if Mt Arthur had meaningfully consulted its employees, those factors 'would have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction'. It concluded that further consultation could take place in sufficient time for Mt Arthur to make a decision, before restrictions in NSW are further eased on 15 December 2021.

What does this mean for employers?

Employers can consider the introduction of mandatory vaccination requirements, provided there are reasonable grounds to support vaccination as the most effective control measure against COVID-19. However, it is critical that appropriate processes are followed to ensure a direction for employees to be vaccinated will be both lawful and reasonable. This includes:

  • considering whether there is an express legal right to introduce such a requirement, including under a public health order, an employment contract, or industrial instrument. If such a right exists, employers must ensure that any requirements within the order, contract, or industrial instrument are followed, as well as complying with WHS Act obligations;
  • where there is no express legal right, employers must rely on the implied contractual term that employees obey the lawful and reasonable directions of the employer. Whether a mandatory vaccination requirement is lawful and reasonable will depend on a number of factors and circumstances specific to that particular workplace, not the enterprise more broadly, including the nature and extent of consultation;
  • the WHS Act consultation:
    • must occur as a matter of substance prior to implementation and must otherwise meet the WHS Act requirements, such as involving an elected Health and Safety Representative;
    • requires the provision of relevant information – such as the reasons for the proposal, the rationale and data supporting the proposal and why it necessary for the particular workplace, the risk assessments or the analysis that informs the risk assessments; and
    • must be genuine – for example, employees must have the opportunity to affect and contribute to the decision making process, and employers must take employees' views into account in making their decision; and
  • any applicable industrial instrument should also be considered, to determine if additional consultation or other requirements will apply.

If you are considering implementing a vaccination policy, this case provides very useful guidance about the steps to take before making a decision to implement such a policy. Importantly, any consultation will need to be appropriate to your workplace, taking into account obligations under health and safety laws and industrial instruments. There is no 'one size fits all' approach.

If you have already implemented a vaccination policy, we recommend you consider whether consultation requirements were adequately met in relation to the decision to introduce the policy – particularly in light of the guidance about consultation provided by this case. If there is a risk that consultation was not adequate, consider the steps that can be taken now to address this risk. The Full Bench has foreshadowed that consultation requirements can be rectified expeditiously. If consultation was not adequate, and your organisation is relying on the policy as a lawful and reasonable direction to employees, risk will arise in relation to taking disciplinary action for non-compliance with the policy.

If you would like further information or advice regarding the issues raised above, please reach out to our Workplace team.

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https://www.minterellison.com/articles/whs-consultation-crucial-to-enforcing-mandatory-covid-19-vaccination

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