Although the Fair Work Commission has seemed to take an employer friendly approach when dealing with challenges to employer vaccination mandates over the last 12 months, the recent rejection of BHP's vaccination mandate reminds us that the Commission is not willing to overlook the basic legal standards required of an enforceable employer direction. An employer direction must be lawful and reasonable to be valid.
On 3 December 2021, the full bench of the Commission found that BHP failed to adequately consult with workers at its Mount Arthur mine before it mandated vaccination deadlines as a condition of site entry. It therefore failed to make a lawful and reasonable employer direction.
According to the workplace policy announced by BHP on 7 October 2021, workers were required to have their first vaccination by 11 November 2021 and their second by January 2022. In an effort to consult with workers about the policy, BHP argued that it had circulated information about the available vaccines, advised where vaccines could be received, and on 31 August 2021, set up a mailbox for related concerns from workers and unions.
However, the Commission took a dim view of the BHP's use largely of form responses to address union enquiries, the receipt of only 20 emails from the actual workforce, the lack of engagement of a health and safety representative to assess a prospective vaccination mandate, and the lack of rationale or relevant data provided with respect to the mandate.
In clarifying its view of genuine consultation, the Commission considered sections 47-49 of the Work Health and Safety Act NSW 2011 (the Act) regarding 'Consultation with workers', which it said were enlivened by the proposed site access requirement. In this respect, it stated that consultation is "treated by the WHS Act as a matter of substance which is to occur prior to implementation". It includes (according to section 70(1) of the Act) an obligation to allow a health and safety representative to access information relating to workplace hazards affecting the relevant workplace group, in this case being the entire Mount Arthur workforce. It also includes an obligation to give affected workers the opportunity to have their views heard and genuinely considered, even if the right to make a final decision remains with management.
Crucially, the Commission asserted that "[t]he opportunity to consult must be a real opportunity, not simply an afterthought".
Although BHP produced evidence of a phased approach to consultation (options phase, assessment phase and implementation phase), the Commission made it clear that for the consultation to have been genuine, BHP ought to have asked employees to contribute ideas or suggestions in relation to the decision-making process or risk assessment or rationale that underpinned the company's decision to introduce the mandate. By its failure to do so, BHP denied employees the opportunity to genuinely influence the company's decision-making process and the genuine possibility of a different outcome.
Following the decision, the Commission commented that BHP may mandate the vaccination yet if it were to undertake further consultation in accordance with its guidance, citing the importance of not waiting for employees to die or become ill before implementing the mandate.
This time last year, the question 'Can employers mandate the COVID-19 vaccine?' was searingly hot, and we published a related article explaining the legality of this question. In short, the article explained that "employers will have to apply the 'lawful and reasonable' standard to all directions made" in respect of the COVID-19 vaccination.
The article went on to list the factors that must be considered when determining reasonableness and reminded that "[t]he question of reasonableness [must] be asked on a case-by-case basis". BHP provides a case in point that a sweeping and broad approach to consultation will not satisfy the standard required of a valid employer direction.
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