Fair Work Commission’s Decision Proves Consultation is Key in Workplace Vaccine Mandates

The Full Bench of the Fair Work Commission (FWC) has handed down their 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 that the vaccine mandate (imposed as a site access requirement) to employees at the Mt Arthur coal mine was not a lawful and reasonable direction. In handing down this decision, the FWC has underscored that consultation and a robust risk assessment are critical in imposing any mandatory vaccination requirements in the workplace.

The decision highlighted how considered employers need to be in their communications with their employees, as the FWC considered individual words and phrases in the communications sent to employees to decide whether or not the employer had fulfilled its consultation obligations. This decision should be taken as an apt reminder that consultation obligations, whether under work health and safety laws, employment contracts or other industrial instruments, need to be taken seriously and cannot be a perfunctory exercise. When making decisions about matters relating to health and safety, employers need to carefully plan the process, including:

• How employees will be consulted;
• Who to involve in the consultation process (e.g. health and safety representatives / union representatives); and
• How employees will be advised of the final outcome.

Facts

Mt Arthur Pty Ltd (Mt Arthur) is a member of the BHP group of companies and manages a coal mine in the Hunter Valley, NSW. At the coal mine, 724 employees are covered by the Mt Arthur Coal Enterprise Agreement 2019 (Enterprise Agreement). Most all of these employees are represented by the CFMMEU.

On 7 October 2021, Mt Arthur announced a site access requirement. In order to enter the site, employees would need to have at least one dose of a COVID-19 vaccine by 10 November 2021 and be fully vaccinated by 31 January 2022. Failure to provide evidence would mean that the employee could not attend the site.

Shortly after this announcement, the CFMMEU made an application to the FWC to deal with the dispute under the dispute resolution procedure in the Enterprise Agreement.

Decision

Joined by other unions, the CFMMEU made submissions that that the vaccination mandate was not a lawful and reasonable direction broadly on the following four grounds:

1. It was introduced without complying with the consultation requirements in the Work Health and Safety Act 2011 (NSW) (WHS Act);
2. Mt Arthur had not complied with the consultation obligations in the Enterprise Agreement;
3. Mt Arthur had not complied with its obligations under the Privacy Act 1988 (Cth) (Privacy Act); and
4. The mandate impaired the employees’ right to bodily integrity.

Submissions Regarding Consultation Obligations

In addition to the consultation obligations under the WHS Act, the Enterprise Agreement required consultation when Mt Arthur had 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”. A major change is likely to have a significant effect if it will result in termination of employment. Accordingly, the Full Bench agreed that the vaccine mandate would constitute a major change, noting that the requirement exposed employees to potential disciplinary action, including dismissal.

Mt Arthur argued that it had consulted before 7 October 2021 (when the site access requirements were notified) because it had, amongst other acts, submitted an “Options Analysis” supported by the senior leadership team which recommended vaccination as a condition of entry (but subject to preliminary steps including a risk assessment and further consultation). Mt Arthur also argued that it had then conducted a process of consultation and engagement, including engaging with unions and setting up a “Vaccine Mailbox” to collate and consider feedback (to which they only received 20 responses).

However, the Full Bench stated that despite communications which made statements as to being committed to ongoing engagement with the workforce, absent in the communications was any invitation to employees to contribute ideas and suggestions in relation to the decision-making process, the risk assessment or the rationale that underpinned the decision to impose vaccination requirements. The Full Bench noted that while a lot of information had been provided to employees about COVID-19, little to no information was provided about any risk assessment undertaken.

Accordingly Full Bench found that while Mt Arthur had met its consultation obligation “substantially” under the Enterprise Agreement (after it had made the definite decision), it had not under the WHS Act, which requires that workers need to have a reasonable opportunity to make their views known before the decision is made.

Submissions Regarding Privacy Act and Bodily Integrity

The Full Bench determined that Mt Arthur had not issued a lawful and reasonable direction on the basis of a failure to consult. Accordingly, the Full Bench considered that it was unnecessary to reach a concluded view as whether Mt Arthur had breached its privacy obligations. In relation to the matter of bodily integrity, the Full Bench noted that this was a matter which, again, underscored the importance of consultation, stating “It is common knowledge that some citizens feel very strongly about their bodily integrity and do not wish to be vaccinated. A minority of the Employees appear to hold such views. It is particularly important that these employees be heard; that they be consulted and their views be taken into account”.

Concluding Remarks

The Full Bench noted that if Mt Arthur commenced its consultation with the employees regarding whether vaccination requirements should be imposed to enter the coal mine in a timely fashion, then it was possible for Mt Arthur to be in a position to make a decision about whether to impose those requirements prior to 15 December 2021. Importantly, this is the date when NSW anticipates it will relax COVID-19 restrictions.

Take Care When Consulting

As set out above, this decision highlights the importance of treating consultation obligations in work health and safety laws seriously. While consultation is not a negotiation with workers, and there is no requirement to reach an agreement, the process itself needs to be authentic and take place before a definite decision is made to impose a change in relation to a health and safety matter (e.g. control measures). It should commence with providing workers with all relevant invitation and clearly inviting their views and feedback – rather than providing workers with the mere opportunity to be heard. If there are agreed procedures for consultation in a workplace, these need to be followed.