The recent Full Bench decision of Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 (3 December 2021) considered whether Mt Arthur Coal (operated by BHP) met its consultation obligations in directing 724 employees covered by an enterprise agreement to be vaccinated for COVID-19 to gain entry to the mine.
Relevantly, although a direction to be vaccinated is lawful, whether it is reasonable is a “question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations”.
In introducing the Site Access Requirement (SAR) that employees are to be vaccinated for COVID-19, Mt Arthur Coal identified 3 distinct “consulting” phases:
- The Options Phase – whereby Mt Arthur Coal commenced an education program, by promoting COVID-19 vaccination to all employees, regularly circulating announcements and videos discussing health and safety benefits of the COVID-19 vaccine, exposed common myths and provided information regarding where to make a booking;
- The Assessment Phase – whereby Mt Arthur Coal announced that it was actively conducting a risk assessment to determine whether to make COVID-19 vaccination mandatory. A vaccine mailbox was set up, which invited employees to submit questions and comments regarding the proposed mandate. Importantly, only 20 emails were received;
- The Implementation Phase – whereby Mt Arthur Coal announced that the SAR will include that employees are to have received a COVID-19 vaccine.
In the Decision at [161], the Full Bench found that it was only during the Implementation Phase that Mt Arthur Coal began:
- conducting toolbox meetings with employees;
- meeting with various health and safety committees;
- providing employees with information about the risk assessment; and
- meeting with unions and BHP to discuss concerns about the implementation of the SAR.
In the Full Bench’s view at [174], Mt Arthur Coal employees were not given a reasonable opportunity to express their views or raise health and safety issues or contribute to the decision-making process prior to the announcement to “introduce” the SAR.
Relevantly, active employee consultation, insofar as, for example, surveying all employees to ascertain their views on receiving a COVID-19 vaccine, discussing concerns with those who are vaccine-hesitant and working collaboratively to consider redeployment and/or alternative working arrangements should have occurred in the Assessment Phase. The vaccine mailbox and pursuit of consultation after the SAR was introduced ultimately rendered Mt Arthur Coal’s direction unreasonable.
Where to from here?
It is difficult to predict what will happen in 2022, and whether vaccine mandates will remain, or fall away. Absent Public Health Orders directing that workers must receive a COVID-19 vaccine, employers will need to consider whether introducing a mandatory vaccination policy is both lawful and reasonable.
This Decision at [259] highlights that, “in considering the reasonableness of a direction, employers must not forget to comply with any relevant consultation obligations, the nature of the particular employment, the established usages affecting the employment, the common practices that exist, and the general provisions of any instrument governing the relationship”.
If you are an employer considering introducing a mandatory vaccination policy and require specific advice on whether such a policy is both lawful and reasonable, reach out to one of our team on (03) 9448 9600.
The above is general information and should not be taken as legal advice.
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