The Full Bench of the Fair Work Commission (“FWCFB”) has found an employer’s efforts to put in place a mandatory COVID-19 vaccination requirement for entry onto its sites has fallen short of its consultation obligations under the Work Health and Safety Act 2011 (NSW) (the “WHS Act”).

While confirming the key focal points for employers considering the introduction of a mandatory vaccination policy, the decision emphasises the criticality of consultation before a decision is made with respect to its adoption and implementation, and that a failure to adequately consult is likely to render any subsequent direction, unreasonable.

What had occurred?

The Respondent’s employees work at an open cut coal mine which is operated by a member of the BHP group of companies (“BHP”). The Respondent is a wholly owned subsidiary of the mine operator and is covered by an enterprise agreement which applied to 724 of the employees at the mine.

On 7 October 2021, the Respondent made an announcement that BHP would be putting in place a mandatory COVID-19 vaccination requirement as a condition of site entry. Under this direction employees were required to receive at least a single dose of an approved COVID-19 vaccination by 10 November 2021, and to be fully vaccinated by 31 January 2021. Prior to the announcement, the Respondent submitted that it had engaged in an “options phase” and an “assessment phase” During the “options phase” the Respondent commenced an education program and promoted COVID-19 vaccination, which included “the regular circulation of announcements and videos that informed employees of the health and safety benefits of vaccination, exposed common myths about COVID-19 vaccines, and provided information about how employees could book their vaccination appointments”.

During the “assessment phase” BHP set up a central mailbox for the use of all employees, including the Respondent’s employees, expressly inviting them to ask questions and make comments regarding the proposed introduction of the mandatory COVID-19 vaccinations. During this phase BHP and the Respondent also received correspondence from a number of unions regarding the proposed mandatory COVID-19 vaccinations, which BHP responded to in writing, as well as meeting with union representatives when requested to further discuss the mandatory COVID-19 vaccinations.

Following the announcement on 7 October 2021, the CFMMEU and one of its employees made an application under section 739 of the Fair Work Act 2009 (Cth) seeking that the Fair Work Commission deal with the dispute under the dispute resolution procedure in the enterprise agreement.

The Dispute

The question before the FWCFB was whether the mandatory COVID-19 vaccination requirement was a lawful and reasonable direction in respect to employees of the Respondent covered by the enterprise agreement.

The FWCFB found that it was uncontentious that there was an implied term that employees must follow the lawful and reasonable directions of their employer, and that the Respondent was relying on this implied term in implementing the mandatory COVID-19 vaccination requirement.

The FWCFB accepted that the object and purpose of the mandatory COVID-19 vaccination requirement was to protect the health and safety at work of the Respondent’s employees and other people at the mine. This made the mandatory COVID-19 vaccination requirement, on its face, lawful as it fell within the scope of employment, and there was nothing illegal or unlawful about becoming vaccinated. However, the FWCFB considered that what was reasonable was a question of fact having regard to all of the circumstances, which may include “whether or not the employer has complied with any relevant consultation obligations”.

The FWCFB found that the Respondent had “substantially met” its obligations under the enterprise agreement as it had consulted its employees after it had made a definite decision to introduce the mandatory COVID-19 vaccination requirement.  Importantly however, it had not met its obligations to consult “as far as is reasonably practicable” as required by the WHS Act. The Respondent had not given employees a reasonable opportunity to express their views and to raise work health or safety issues, or to contribute to the decision-making process in relation to the mandatory COVID-19 vaccination requirements. The Respondent had not given employees information about the reasons, rationale and data supporting the proposed mandatory COVID-19 vaccination requirement, and did not make a genuine attempt to consult with the unions or have direct engagement with the Respondent’s Health and Safety Representatives during the “assessment period”.

The FWCFB considered that the mandatory COVID-19 vaccination requirement was not a reasonable direction, as it was not satisfied that there was consultation in accordance with the WHS Act. The FWCFB noted that if the Respondent had consulted the employees in accordance with its obligations under the WHS Act, it would have provided a “strong case in favour” of the mandatory COVID-19 vaccination requirement being a reasonable direction.

Lessons for employers

There are a number of key lessons for employers arising from the decision.

• Mandatory COVID-19 vaccination directions are likely to be lawful, provided that they are genuinely made to protect the health and safety at work of employees and other people.
• While such directions may be lawful, they may not be reasonable unless an employer has properly discharged its consultation obligations under relevant work health and safety legislation.
• Employers must ensure that when consulting with employees:
  • they share all relevant information;
  • the employees are given a reasonable opportunity:
    • to put forward their views about mandatory COVID-19 vaccinations, and to raise any WHS issues; and
    • to contribute to the decision-making process,
  • they take the employees’ views into account; and
  • they promptly advise the employees of the outcomes.
• Where employees are represented by a Health and Safety Representative, that representative must be involved in the consultation.

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