FWC decision clarifies duty to consult employees

Last week the Fair Work Commission (FWC) ruled against an employer’s requirement for employees to be vaccinated against COVID-19. This isn’t the cut-and-dried case it might first appear to be, however — in finding against BHP, the Commission said better consultation with employees would probably have led to a different decision.

In early November, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) disputed a decision by BHP subsidiary Mt Arthur Coal on October 7 this year to require all workers at the Mt Arthur coal mine to be vaccinated against COVID-19 as a condition of site entry.

The coal miners were not subject to any public health order, as many employees (including mining employees attending remote sites) here in WA are.

BHP primarily relied on health and safety grounds for making the direction, on the basis that it was lawful and reasonable to do so.

But in considering this matter, a full bench of the FWC found the decision was not reasonable primarily because it considered that BHP didn’t consult its workers in accordance with its obligations under NSW work health and safety (WHS) legislation.

“Mt Arthur’s failure to comply with its consultation obligations under the WHS Act is the major consideration which led us to conclude that the Site Access Requirement was not a lawful and reasonable direction,” the Commission said.

Read more: Implementing a vaccination policy

The FWC noted there were a range of considerations supporting a finding that the direction was reasonable, including:

  • It was directed at ensuring the health and safety of workers.
  • It had a logical and understandable basis.
  • It was a reasonably proportionate response to the risk created by COVID-19.
  • It was developed having regard to the circumstances at the workplace, including that mine workers cannot work from home and come into contact with other workers while at work.
  • The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time.
  • It was only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the mine.

CCIWA Principal Workplace Relations Advocate Paul Moss said the considerations listed above strongly supported BHP’s contention that the requirement to be vaccinated was a reasonable direction, were it not for the Commission’s finding regarding the consultation process.

“In short, mandatory vaccination directions may be regarded as reasonable when they have been properly considered and implemented,” Moss said.

“Indeed, the FWC identified that the failure to consult was a matter that BHP could still address and said the Commission itself would facilitate this.”

The decision highlights the importance of having a procedurally fair and reasonable process in place, including undertaking risk assessments and complying with consultation requirements should a business choose to direct its employees to get vaccinated as a condition of entry to the workplace.

Obtaining considered legal advice on your business’s unique circumstances and implementing a vaccination policy that addresses key items are some of the measures a business can take to assist with understanding whether directions to employees to minimise the risk of COVID-19 will be reasonable in the circumstances.

If you need assistance with this, please contact us on 1300 422 492 and ask to speak to one of our Workplace Relations lawyers.

The full decision can be viewed here.

CCIWA has released two updated guides for businesses on WA’s mandatory vaccines. These important guides will help you understand your obligations under the State Government’s orders, and what steps you should take to ensure you and your business are protected from penalties.

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