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On Friday 3 December 2021 the Fair Work Commission (‘FWC’) handed down an important decision concerning the ability of employers to introduce mandatory vaccination policies for employees.

In summary, the FWC’s comments support the view that it is possible for employers to mandate vaccines on health and safety grounds but confirm that if an employer does not adequately consult employees before doing so, then this is likely to render such a policy unlawful.

 

What was the Case About?

A full copy of the decision in Construction, Forestry, Maritime, Mining and Energy Union, Mr. Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 can be accessed here.

The case concerned an application by the CFMMEU (‘the Union’) to deal with a dispute in respect of a mine operated by BHP, and BHP’s decision to introduce a vaccination policy that prohibited access to the mine unless employees had been vaccinated for COVID-19. The employees were all covered by the Mt Arthur Coal Enterprise Agreement 2019 (‘the Enterprise Agreement’).

The FWC was called upon to determine whether the direction to be vaccinated was a lawful and reasonable direction.

 

The FWC’s Position on COVID-19

Helpfully, the FWC listed a number of “general factual propositions” which it stated were “uncontentious” regarding COVID-19 (based on the evidence that was before it), namely:

1. COVID-19 involves a high burden of disease, greater than influenza.

2. Any infected person is at risk of developing serious illness from the virus, which may lead to death.

3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants.

4. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant.

5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.

6. All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.

7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.

8. While other measures, such as mask-wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection.

9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.

10. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The Mine is clearly such a workplace.

 

These findings will clearly be helpful to any workplace where the employer wishes to mandate vaccinations in the current climate.

 

Lawful and Reasonable Directions’

The FWC also made a number of other helpful observations on the law in this area, including confirming that an ability to implement a mandatory vaccination policy (in the absence of a public health order, term in an employment contract, etc dealing with this) is based on the implied duty of employees to follow directions given to them by their employer. However, employees are only bound to follow such directions where they are lawful and reasonable.

In considering whether BHP’s mandatory vaccination direction was lawful, the FWC found that the direction was on the face of it lawful given that the object and purpose of the direction were to protect the health and safety at work of BHP’s employees and other people at the mine. On that basis, the direction was prima facie ‘lawful’ because:

  • it fell within the scope of the employment (ie it was not a direction concerning something unconnected with employment), and
  • there is nothing ‘illegal’ or unlawful about becoming vaccinated.

The next question was whether the direction was reasonable.

 

Duty to Consult in WHS Legislation

The FWC found that a relevant factor in considering whether the direction was reasonable, was whether BHP had complied with its duties to consult its workers under Work Health and Safety Act 2011 (NSW) (‘WHS Act’).

The WHS Act is based on federal model work health and safety model laws, which have been enacted in all jurisdictions except Victoria and Western Australia (although WA will be adopting them shortly).

Section 49 deals with consultation and is in the following form:

49 When consultation is required

Consultation under this Division is required in relation to the following health and safety matters:

(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking,

(b) when making decisions about ways to eliminate or minimize those risks,

(c) when making decisions about the adequacy of facilities for the welfare of workers,

(d) when proposing changes that may affect the health or safety of workers,

(e) when making decisions about the procedures for—

(i) consulting with workers, or

(ii) resolving work health or safety issues at the workplace, or

(iii) monitoring the health of workers, or

(iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or

(v) providing information and training for workers, or

(f) when carrying out any other activity prescribed by the regulations for the purposes of this section

 

As noted in the explanatory memorandum to the model laws, the obligation to consult requires employers (and other Persons Conducting Businesses of Undertakings (‘PCBUS’)) to “share relevant information about work health or safety matters (listed in clause 49) with their workers; give workers a reasonable opportunity to express their views; and contribute to the decision processes relating to those matters. It also requires PCBUs to take workers’ views into account and advise workers of relevant outcomes in a timely manner.”

There are also separate duties in the legislation to consult any elected health and safety representatives (HSR).

The duties to consult are to do so (only) “in so far as reasonably practicable”. The FWC acknowledged that this meant that in urgent cases a truncated consultation process might be warranted.

The FWC found that the following points can be drawn from previous case law on what constitutes meaningful consultation:

  • the content of any specific requirement to consult is necessarily dictated by the precise terms in which such a requirement is expressed; the nature of the factual or legal issues the subject of the requirement; and the factual context in which the requirement is exercised, including the particular circumstances of the persons with whom there must be a consultation.
  • a responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account
  • the consultation needs to be real; it must not be a merely formal or perfunctory exercise  
  • even though management retained the right to make the final decision, it is not to be assumed that the required consultation was to be a formality. Management has no monopoly of knowledge and understanding of how a business operates, or of the wisdom to make the right decisions about it. The process of consultation is designed to assist management, by giving it access to ideas from employees, as well as to assist employees to point out aspects of a proposal that will produce negative consequences and suggest ways to eliminate or alleviate those consequences  
  • the party to be consulted [must] be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon  
  • while the word ‘consultation’ always carries with it a consequential requirement for the affording of a meaningful opportunity to the party being consulted to present those views, what will constitute such an opportunity will vary according [to] the nature and circumstances of the case. In other words, what will amount to ‘consultation’ has about it an inherent flexibility  
  • a right to be consulted, though a valuable right, is not a right of veto  
  • the consultation obligation is not concerned with a likelihood of success of the process, only to ensure that it occurs before a decision is made to implement a proposal
  • an ordinary understanding of the word “consult” would suggest that the obligation to consult does not carry with it an obligation either to seek or to reach an agreement on the subject for consultation. Consultation is not an exercise in collaborative decision-making. All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made  
  • the requirement to consult affected workers would … not be satisfied by providing the employees with a mere opportunity to be heard; the requirement involves both extending to affected workers an opportunity to be heard and an entitlement to have their views taken into account when a decision is made  
  • genuine consultation would generally take place where a process of decision-making is still at a formative stage  
  • the opportunity to consult must be a real opportunity, not simply an afterthought  
  • consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal  
  • there is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, ‘this is what is going to be done and saying to that person ‘I’m thinking of doing this; what have you got to say about that?’. Only in the latter case is there ‘consultation’  
  • it is implicit in the obligation to consult that a genuine opportunity is provided for the affected party to attempt to persuade the decision-maker to adopt a different course of action. If a change has already been implemented or if the employer has already made a definite or irrevocable decision to implement a change then subsequent ‘consultation’ is robbed of this essential characteristic  
  • any offer to consult in relation to the matter was in the context that the respondent had already made an irrevocable decision, then the party had not, to use his Honour’s words, consulted about the decision in any meaningful way

 

The FWC also considered that the NSW Government Code of Practice Work Health and Safety Consultation, Cooperation, and Coordination was relevant to the question of meaningful consultation. This, it said, established the following points:

  • consultation is required when identifying hazards, assessing risks and deciding on measures to eliminate or minimise those risks, and is a two-way process between the PCBU and its workers  
  • consultation requires that relevant information is shared with workers to enable informed and constructive discussions. This information should be provided early on so workers and HSRs have enough time to consider matters and provide feedback. Relevant information may include health and safety policies and procedures, technical guidance about hazards, risks and risk control measures, and risk assessments. The information should be presented in a way that can easily be understood by the workers  
  • consultation requires that workers are given a reasonable opportunity to express their views, raise health and safety issues, and contribute to the decision-making process relating to the health and safety matter. The time the consultation process takes will depend on the complexity of the health and safety matter, how many people are being consulted, the accessibility of workers, and the methods of consultation
  • consultation requires that the views of workers are taken into account. This does not require consensus or agreement, but PCBUs must allow workers to contribute to health and safety decisions. Workers should be advised of the outcome of any consultation in a timely manner  
  • if workers are represented by an HSR, consultation must include that HSR, and if the PCBU and workers have agreed to consultation procedures, the consultation must be in accordance with those procedures, and  
  • it is good practice to keep records to demonstrate compliance with consultation requirements.

 

The reference to HSRs is to “Health & Safety Representatives”. Generally speaking, workers are entitled to elect HSRs under the WHS Act should they wish (but are not required to do so, so will not be a feature in all workplaces).

 

Did BHP comply with its duty to consult under WHS legislation?

The FWC found that BHP had commenced an education program and promoted COVID-19 vaccination to all of its employees across its Australian operations, prior to 31 August 2021.

From late August 2021, the senior leadership team of BHP considered whether to make COVID-19 vaccination a condition of entry to its workplaces and undertook a risk assessment.

BHP set up a specific mailbox for receiving feedback from workers in respect of the vaccine process, however, the FWC found that it was clear from the language that BHP used in seeking feedback that there was no real consultation on the decision to mandate vaccines.

In particular, the FWC noted the following announcement from BHP to employees in August 2021, which it said demonstrated that BHP proceeded on the basis that it did not need to consult prior to a decision on vaccinations being made (with the FWC’s emphasis):

‘We understand that this will generate a lot of questions, and potentially some concern, and are committed to ongoing discussion and engagement with you about the details of the finalised policy should a decision be made to introduce such a requirement.’

 

In other words, the FWC found the statement demonstrated that BHP would only discuss the matter with employees once a decision had been made, rather than as part of the decision-making process.

Similar findings were made regarding communications to the Union at the same time. These included the following wording:

‘At this point in time, no decision has been made as to whether vaccination will be a condition of entry to BHP workplaces. If a decision is made to make vaccination a condition of workplace entry, we will consult with you about the implementation of that decision.’ 

 

When the announcement regarding mandatory vaccines was delivered by BHP to employees on 7 October 2021 it included the following wording:

‘Based on the findings of our assessment, the Company will introduce a requirement for COVID-19 vaccination as a condition of entry to BHP workplaces in Australia for all workers and visitors.’

 

The FWC found that:

  • The announcement on 7 October 2021 was not that BHP ‘may’, ‘proposed to’ or ‘intended to introduce the Requirement. The announcement was that the Requirement will be introduced.”

And:

  • The language of this announcement demonstrates that the decision was ‘irrevocable’ and ‘not amenable to consultation’

 

The FWC also noted as follows (a reference to “Site Access Requirement” are to the requirement to be vaccinated to gain access to the worksite):

[150] Despite BHP’s communications noting that they were committed to ongoing engagement with their workforce, it does 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 Site Access Requirement. Although substantial information was provided about COVID-19, little if any information was provided to Employees about the risk assessment that was undertaken, such as an evaluation that the existing control mechanisms were of limited effectiveness. We agree with the Respondent that it was not obliged to provide the particular Risk Assessment document requested by the Employees and others. However, we consider that information that explained how the Respondent had taken into account and weighed up matters including those set out in s.18 of the WHS Act, was relevant information.

 

The reference to the matters listed in section 18 of the WHS Act are to those things that would be considered in a risk assessment including (a) the likelihood of the hazard or the risk concerned occurring; (b) the degree of harm that might result from the hazard or the risk; the ways of eliminating or minimising the risk, etc.

In light of the above, the FWC found that BHP had not properly consulted staff in respect of the vaccination policy which in turn meant it could not be a reasonable direction (and therefore was unlawful).

However (helpfully) the FWC indicated that had there been proper consultation there were a number of other factors that would have provided a strong case that the direction would have been reasonably lawful. The FWC put it this way:

[252] We note that there is a range of considerations which otherwise weighed in favour of a finding that the Site Access Requirement was reasonable, including that:

    1. It is directed at ensuring the health and safety of workers of the Mine.
    2. It has a logical and understandable basis.
    3. It is a reasonably proportionate response to the risk created by COVID-19.
    4. It was developed having regard to the circumstances at the Mine, including the fact that Mineworkers cannot work from home and come into contact with other workers whilst at work.
    5. The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time.
    6. 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.

[253] Had the Respondent consulted the Employees in accordance with its consultation obligations − such that we could have been satisfied that the decision to introduce the Site Access Requirement was the outcome of a meaningful consultation process – the above considerations would have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction.”

 

The FWC also made comments that it considered that BHP should now still have sufficient time to (properly) consult employees before 15 December 2021 (the date it had wished to require employees to be fully vaccinated). In doing so it leaves the door open to BHP to implement a vaccine mandate as it originally wished to.

 

Consultation obligations under modern awards and enterprise agreements

Interestingly, the FWC found that BHP had complied with consultation obligations under the enterprise agreement that applied to the employees in the mine.

As with all enterprise agreements, the BHP Enterprise Agreement was required to contain a consultation obligation which largely mirrored the model consultation obligation that appears in modern awards, namely to consult employees once it has made a ‘definite decision’ to introduce a ‘major change’ to ‘production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees.’

The FWC found the wording of the clause meant the requirement to consult was enlivened once a decision (in this case to mandate vaccines) had been made. Given BHP had consulted staff after it had made the decision to mandate vaccines (as explained above), the FWC found this obligation had been met.

 

Lessons for Employers

The decision supports the view that it is possible to lawfully introduce a mandatory COVID-19 vaccination policy on health and safety grounds. However, a failure to consult employees (and any appointed Health & Safety Representatives) in respect of the decision to mandate vaccines is likely to be fatal to introducing such a policy lawfully.

It is therefore vital that employers properly consult employees by:

  • proving them with relevant information about why it is considering implementing a COVID vaccine, including how it is considered the measure will assist in eliminating or minimizing health and safety risks in the relevant workplace(s)
  • giving employees a reasonable opportunity to express their views and contribute to the decision-making process before any decision is made

 

Need further help?

If you need further help on any of the matters raised in this article please contact EI Legal.

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