A Full Bench decision of the Fair Work Commission [CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059] has overturned a vaccine mandate introduced by BHP on 7 October this year at the Mt Arthur open cut coal mine in NSW citing that it was not a reasonable direction due to a failure to properly consult with employees prior to the implementation of the new policy and that any direction to an employee must be both lawful and reasonable.

The vaccine mandate had required employees to:

– have a single dose of an approved COVID-19 vaccine by 10 November 2021; and
– must be fully vaccinated by 31 January 2022.

Employees were informed that if they attended the workplace after midnight on 9 November 2021, they would not be permitted access to the workplace unless they provided their employer with evidence that they had had at least a single dose of an approved COVID-19 vaccine.

An application was made by the CFMMEU under the Fair Work Act 2009 (Cth) seeking that the Fair Work Commission deal with a dispute under the dispute resolution procedure in the employer’s enterprise agreement. There was agreement between both parties that the question of whether the vaccination mandate was a lawful and reasonable direction be arbitrated by the Fair Work Commission.

The Full Bench of the Fair Work Commission held that the vaccine mandate was not a reasonable decision because BHP had failed to properly consult its employees prior to implementing the policy. It found that BHP had engaged in ‘scant consultation’.

This decision reminds employers of the importance of compliance with consultation provisions within the Work Health & Safety legislation (being sections 47-49 for the NSW legislation).

Whilst the Fair Work Commission highlighted the lack of consultation, there were factors in favour of finding that the vaccine mandate was reasonable as follows:

– it was directed at ensuring the health and safety of the employees
– 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 the fact that the employees cannot work from home and they come into contact with other employees whilst at work.
– the timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time; and
– 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 workplace.

The Full Bench decision held that there would have been a “strong case” for introducing the vaccine mandate had BHP consulted properly.

TTIA Members wishing to enforce a vaccine mandate should ensure they engage in a meaningful consultation before making any decision to implement a mandatory vaccination policy.

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