In the decision of Construction, Forestry, Maritime, Mining and Energy Union & Mr Matthew Howard -v-Mt Arthur Coal Pty Ltd  FWCFB 6059, on 3 December 2021, the Full Bench of the Fair Work Commission found that the employer had not appropriately consulted with employees before introducing a mandatory vaccination policy.
On 7 October 2021, the employer announced that all workers at the Mount Arthur coal mine must be vaccinated against COVID-19 as a condition of site entry. The new site access requirement prevented access unless they provided evidence that they have had at least one dose of an approved COVID-19 vaccine (Site Access Requirement). The applicants, the CFMEU and Mr Howard challenged this requirement.
The Full Bench found that whilst high rates of vaccination do not remove the risk of COVID-19 infection for unvaccinated workers, unvaccinated workers on any worksite increase the risk of spread of COVID-19. It was satisfied based on expert evidence that the rates of infection in the relevant region and throughout Australia were likely to increase over time as movement restrictions ease, with the result that it was inevitable that everyone who works on the mine would come into contact with someone infected with COVID-19.
Given there were no public health orders, legislation or anything in the Certified Agreement or the employees’ contracts that provided a legal basis for the Site Access Requirement, the decision turned on whether the requirement was a lawful and reasonable direction.
The applicants argued the Site Access Requirement was unreasonable because it was made without any real consultation and was presented to the employees as a “fait accompli” on the basis that the announcement on 7 October 2021 was not that the employer ‘may’, ‘proposed to’ or ‘intended to’ introduce the Site Access Requirement but that the announcement was that the requirement ‘will be introduced’.
The Commission found the employer had consultation obligations under the Work Health and Safety Act 2011 (NSW) (WHS Act) which carried 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 Commission also found that consultation requires that relevant information is shared with workers to enable informed and constructive discussions. It was not satisfied 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. Whilst it agreed that the employer was not obliged to provide the particular risk assessment document, it considered that information that explained how the employer had taken into account and weighed up matters under the WHS Act was relevant information.
The Commission accepted the applicants’ submission that the language of the employer’s announcement on 7 October 2021, which said the company ‘will introduce a requirement for COVID-19 vaccination as a condition of entry’ demonstrated the decision was irrevocable and not amenable to consultation. Consideration was also given to the fact that the decision-maker did not give evidence at the hearing.
Whilst the requirement was considered lawful because it fell within the scope of employment and there was nothing illegal or unlawful about the direction to be vaccinated, it was ultimately found to be unreasonable due to the failure to consult under ss 47 and 48 of the WHS Act.
Otherwise, there were a range of factors which weighed in favour of a finding that it was reasonable, including that:
- 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 circumstances at the mine, including the fact that mine workers cannot work from home and come in to contact with the workers whilst at work
- the timing for its commencement was determined by reference to circumstances pertaining to New South Wales and the local area at the time
- it was only implemented after the employer spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the mine.
It found that had the employer-consulted employees such they could have been satisfied that the decision was the outcome of a meaningful consultation process, the above considerations could have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction.
The Commission made some general observations that if the object and purpose of such a direction is to protect the health and safety at work of employees and other persons at the workplace, then such direction is likely to be lawful, but a direction must also be reasonable. The assessment of reasonableness and proportionality is one of fact and balance and needs to be assessed on a case-by-case basis. A direction lacking clear justification is not a reasonable direction.
This decision emphasises the risks employers face when introducing a vaccination policy and the importance of having a documented, well-reasoned rationale, including a risk assessment.
This publication has been carefully prepared, but it has been written in brief and general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.