The Full Bench of the Fair Work Commission has handed down its decision in a significant test case dealing with the right of employers to direct employees to be vaccinated against COVID-19.

The case, Construction, Forestry, Maritime, Mining and Energy Union & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059, was an arbitration pursuant to section 739 of the Fair Work Act. That provision allows the Commission to deal with certain industrial disputes, including by arbitration (with the outcome binding on the parties).

The question arbitrated was:

"Whether the direction as set out in attachments 1 and 2 to the application filed by the CFMMEU in proceedings C2021/7023 is a lawful and reasonable direction in respect to employees at the Mt Arthur mine who are covered by the Mt Arthur Coal Enterprise Agreement 2019"

The direction that was the subject of the question was that all workers at the Mt Arthur mine must be vaccinated against COVID-19 as a condition of entry to the site, with workers needing to have had at least a single dose of an approved COVID-19 vaccine by 10 November 2021 and be fully vaccinated by 31 January 2022. This requirement was referred to as the "Site Access Requirement" in the decision.

The Commission gave a signal that it considered this to be an important case by convening a five-member Full Bench to hear the matter. That five-member bench comprised Justice Ross (President of the Commission), Vice President Catanzariti, Deputy President Saunders, Commissioner Matheson and Commissioner O'Neill.

In setting the matter down for arbitration, the Commission noted:

"Given the potential significance of this matter, we propose to draw this application to the attention of peak union and employer bodies and the Minister, and to grant them leave to intervene if they wish to do so. Any union intervenor is required to file and serve full written submissions and any evidence it wishes to rely upon in accordance with Directions 1 and 3 above. Any employer intervenor is required to file and serve full written submissions and any evidence it wishes to rely upon in accordance with Direction 2 above."

Pursuant to this invitation the proceedings had interveners including, on the union side, the ACTU, CEPU and AMWU, and from the employer side, the Ai Group and ACCI.

The matter was heard on 24 and 25 November 2021, with a decision handed down on 3 December 2021.

The Decision

The Full Bench of the Commission held the direction that was the subject of the question arbitrated, that all workers at the Mt Arthur mine must be vaccinated against COVID-19 as a condition of entry to the site, was not a reasonable direction. The determinative consideration was that the Commission was not satisfied that there was consultation in accordance with sections 47 and 48 of the Work Health and Safety Act 2011 (NSW) (WHS Act). Obviously, this finding heavily turns on the circumstances of the particular case before the Commission.

A Blow for Mandatory Workplace Vaccination?

The outcome in the case, that the direction by the employer to be vaccinated against COVID-19 was not reasonable, will likely be cited by those who have a general philosophical opposition to mandatory workplace vaccination. Notwithstanding the final outcome, there is little in the decision that supports that stance.

As stated above, the determinative consideration in this case was that there had been inadequate consultation. The Commission specifically noted (at 252):

"...that there are a range of considerations which otherwise weighed in favour of a finding that the Site Access Requirement was reasonable, including that:

1. It is direct­ed at ensur­ing the health and safe­ty of work­ers of the Mine.

2. It has a log­i­cal and under­stand­able basis.

3. It is a rea­son­ably pro­por­tion­ate response to the risk cre­at­ed by COVID-19.

4. It was devel­oped hav­ing regard to the cir­cum­stances at the Mine, includ­ing the fact that Mine work­ers can­not work from home and come into con­tact with oth­er work­ers whilst at work.

5. The tim­ing for its com­mence­ment was deter­mined by ref­er­ence to cir­cum­stances per­tain­ing to NSW and the local area at the rel­e­vant time.

6. 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 Mine."

The Commission went on to observe (at 253):

"Had the Respondent consulted the Employees in accordance with its consultation obligations - such that we could have been satisfied that the decision to introduce the Site Access Requirement was the outcome of a meaningful consultation process - the above considerations would have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction."

As such, even though the specific direction in this case was found not to be reasonable, the decision lends support to the notion that a properly implemented mandatory workplace COVID-19 vaccination requirement can be enforceable. In this regard it is broadly consistent with the conclusion reached by the Commission in various recent influenza vaccination cases (albeit in the context of unfair dismissal rather than an arbitrated industrial dispute), which have offered guidance on this issue to date.

The decision is most certainly not a repeat or endorsement of the position advanced by Deputy President Dean in her emphatic dissent in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd[2021] FWCFB 6015. Further, the judgment makes no reference to some of the favoured arguments of the anti-vaccination movement, such as the Nuremberg Code, Magna Carta or Australian Constitution. (That said, one likely consequence of giving significant weight to consultation in determining whether a direction is reasonable, as canvassed below, is that employers will need to invite and consider views from employees that will include some of these esoteric arguments. It is almost inevitable that internet sourced, pro forma, quasi-legal anti-vaccination documents will be served up to employers as part of a consultation process.)

The Importance of Consultation

While the concept of mandatory workplace COVID-19 vaccination was endorsed, employers may need to revisit the process of implementing such a policy to ensure they are complying with consultation obligations in WHS legislation and industrial instruments. Consultation has been given primacy by the Commission in this decision.

In reaching its conclusion on the issue of consultation in this decision, the Commission focused on sections 47 and 48 of the WHS Act.

Section 47 provides:

"47 Duty to consult workers

(1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

Maximum penalty-

- (a) in the case of an individual - 230 penalty units, or

- (b) in the case of a body corporate - 1,155 penalty units.

(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

(3) The agreed procedures must not be inconsistent with section 48."

Section 48 provides:

"48 Nature of consultation

(1)Consultation under this Division requires-

(a) that relevant information about the matter is shared with workers, and

(b) that workers be given a reasonable opportunity-

- (i) to express their views and to raise work health or safety issues in relation to the matter, and

- (ii) to contribute to the decision-making process relating to the matter, and

(c) that the views of workers are taken into account by the person conducting the business or undertaking, and

(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.

(2) If the workers are represented by a health and safety representative, the consultation must involve that representative."

Section 49, which establishes when the obligations in section 47 and 48 above are enlivened, provides:

"49 When consultation is required

Consultation under this Division is required in relation to the following health and safety matters-

(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking,

(b) when making decisions about ways to eliminate or minimise those risks,

(c) when making decisions about the adequacy of facilities for the welfare of workers,

(d) when proposing changes that may affect the health or safety of workers,

(e) when making decisions about the procedures for-

- (i) consulting with workers, or

- (ii) resolving work health or safety issues at the workplace, or

- (iii) monitoring the health of workers, or

- (iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or

- (v) providing information and training for workers, or

(f) when carrying out any other activity prescribed by the regulations for the purposes of this section."

The Commission set out its reasoning for finding the employer had not complied with the consultation obligations in the WHS Act (at 174):

"The process undertaken by the Respondent and BHP in relation to the decision to implement of the Site Access Requirement has been set out above. In our view, the Employees were not given a reasonable opportunity to express their views and to raise work health or safety issues, or to contribute to the decision-making process relating to the decision to introduce the Site Access Requirement. They were not provided with information relating to the reasons, rationale and data supporting the proposal, nor were they given a copy of the risk assessment or informed of the analysis that informed that assessment. In effect the Employees were only asked to comment on the ultimate question: should the Site Access Requirement be imposed? The contrast in the consultation or engagement with Employees in the implementation phase compared to the assessment phase is stark and suggests that during the assessment phase the Respondent was not consulting as far as is reasonably practicable as required by s.47 of the WHS Act. There was no real explanation provided by the Respondent as to why there was a markedly lower level of engagement during the assessment phase."

The Commission continued (at 175):

"We do not consider that HSRs were involved in any consultation in any meaningful way as required by s.48(2) and we note that established mechanisms such as health and safety committee meetings were not used for this purpose. We agree with the Applicants that the language used in the 31 August 2021 communication demonstrates that the Employees would not be consulted in a meaningful way prior to a decision being made by BHP about the Site Access Requirement. Accordingly, we are not satisfied that there was consultation in accordance with ss.47 and 48 of the WHS Act. In reaching this conclusion, we have taken the guidance provided by the Code into account."

The HSRs in this context were Mine Safety and Health Representatives. (In most other workplaces, they will be Health and Safety Representatives.) The Code is the NSW Work Health and Safety Consultation, Cooperation and Coordination Code of Practice, to which the Commission referred for relevant guidance in determining whether the employer complied with its consultation obligations.

While the Commission focused on the consultation provisions of the WHS Act, it did not lose sight of the ultimate question under consideration: the reasonableness of the direction. In that regard, the Commission noted (at 176):

"Even if we are wrong in our conclusion that there has been a failure to meaningfully consult as required by s.48, we consider that the inadequacy of the consultations undertaken with the Employees prior to the announcement of the Site Access Requirement on 7 October 2021 is relevant to the reasonableness of the Site Access Requirement."

Following this decision, in implementing a mandatory workplace COVID-19 vaccination policy, employers should consider their obligations to consult under the WHS Act and/or any applicable industrial instruments and take active steps to comply with them. A failure to do so could lead the Commission to find, on the basis of inadequate consultation alone, that a mandatory vaccination direction is unreasonable.

This is an important case - the most significant in Australia on the issue of mandatory workplace COVID-19 vaccination to date. It will be interesting to see the way in which the principles set out in the decision are applied in future Commission cases, particularly those dealing with claims of unfair dismissal arising from a failure to comply with a direction to be vaccinated.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.