No consultation = mandatory vaccination unreasonable

07 December 2021

The FWC Full Bench finds that BHP failed to adequately consult with its workers at Mt Arthur mine before implementing a mandatory vaccination policy.

In issue

  • Whether BHP was unreasonable in requiring its staff to be vaccinated to gain entry to the worksite.

The background

This case involves a dispute about a direction made by Mt Arthur Coal Pty Ltd (Mt Arthur) requiring all workers at a mine to be vaccinated against COVID-19 as a condition of site entry (the direction). Deadlines for a first dose and full vaccination were introduced and evidence of compliance was also required.

Mt Arthur is a wholly owned subsidiary of Hunter Valley Energy Coal Pty Ltd. Both of these entities are part of BHP. Employees of Mt Arthur covered by the Mt Arthur Coal Enterprise Agreement 2019 (the Agreement) were affected. The majority of these workers are represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).

The Applicant and CFMMEU submitted that the direction to be vaccinated was not lawful because:

  • its introduction was announced without complying with the consultation requirements in the Work Health and safety Act 2011 (NSW) (WHS Act);
  • the Respondent had not complied with the consultation obligations in the Agreement;
  • the Respondent had not complied with its obligations under the Privacy Act 1988 (Cth) (Privacy Act); and
  • the direction impaired the Employees’ right to bodily integrity.

On the other hand, Mt Arthur asserted that it had a duty under the WHS Act and at common law to ensure, so far as is reasonably practicable, the health and safety of its employees and others.

The decision at trial

It was acknowledged that the basis for the direction must derive from the term implied into all contracts of employment to the effect that employees must follow lawful and reasonable directions of their employers.

In determining whether Mt Arthur’s direction was a reasonable or lawful direction, the Full Bench had regard to Mt Arthur’s compliance with its consultation obligations under the WHS Act as per s 47 – Duty to consult workers and s 48 – Nature of consultation.

The Full Bench noted that if a direction was to protect the health and safety at work of employees and other persons visiting the premises then such a direction is likely to be lawful. However, while the decision to go ahead with the direction ultimately resided with BHP, the Full Bunch upheld the significance of consultation in the decision-making process.

The WHS Act both imposed consultation requirements which the Full Bench held Mt Arthur failed to discharge.

Significantly the alleged consultation Mt Arthur alleged it had engaged in had not included any invitation to contribute ideas or suggestions. Rather Mt Arthur had provided a lot of information to workers, but not sought their input, and as a result, the Full Bench accepted decisions made by Mt Arthur had merely been communicated.

In finding the consultation was deficient, the Full Bench did not explore the Privacy Act argument or the argument as to bodily integrity.

The Full Bench determined that because Mt Arthur had failed to adequately consult with its staff the direction was unreasonable.

Implications for you

Organisations should take care to not only consider enterprise agreements, employment contracts or other industrial instruments but also WHS Act consultation requirements prior to imposing a mandatary vaccination or COVID-19 policy.

To ensure proper consultation under the WHS Act, organisations should make sure that:

  • relevant information is shared with workers;
  • workers are given a reasonable opportunity to express their views and contribute to the decision-making process;
  • those views are taken into account; and
  • workers are advised of the outcome of the consultations in a timely manner.

Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059

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