A dispute that is shaping up to be a significant test case dealing with the right of employers to direct employees to be vaccinated against COVID-19 is to be heard later this month by the Fair Work Commission.

The case, Construction, Forestry, Maritime, Mining and Energy Union (105N) & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6039, is 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 to be arbitrated is:

"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 is the subject of the question is 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.

The Commission has given a signal that it considers this to be an important case by convening a five-member Full Bench to hear the matter. That five-member bench comprises Justice Ross President, Vice President Catanzariti, Deputy President Saunders, Commissioner Matheson and Commissioner O'Neill.

The Commission also 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."

The arbitration of the dispute has been set down for 24 November 2021. The Full Bench has indicated it hopes to hand down its decision within 10 days of hearing.

On 9 November 2021 in an interlocutory judgment, Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWC 6309, Deputy President Saunders declined to grant the following relief:

"Until the determination of the Full Bench by arbitration of dispute C2021/7023, it is ordered that Mt Arthur Coal Pty Ltd take no steps to dismiss, discipline or otherwise prejudice the employment of any production and engineering employees who fail to present to Mt Arthur Coal Pty Ltd evidence of being vaccinated against COVID-19."

Interestingly, while Deputy President Saunders did not grant the interim relief (having regard to the balance of convenience, a fundamental consideration in such matters), his Honour did note that there were serious questions to be tried in relation to whether the employer complied with its consultation obligations and whether the condition of entry to the site (requiring COVID-19 vaccination) is tailored to, and is formulated having regard to, the particular circumstances of the mine and the employees who work on it.

All employers grappling with the vexed issue of mandatory vaccination should keep an eye on developments in this case.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au

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