Keep your coal: mandatory vaccination still lawful and reasonable; but consultation is key

On Friday 3 December 2021, the Full Bench of the Fair Work Commission handed down its decision in CFMMEU & Anor v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 (Decision).

The Decision is significant in that it is the first time a Full Bench has addressed the issue of employer mandated vaccination against COVID-19 as a condition of entry to the workplace. However, its significance should not be overstated.

While the Full Bench ultimately held the condition of entry was not reasonable, the Decision turned on the finding that the employer had not complied with its obligation to consult with workers. Had the consultation obligations been met, it seems clear a different outcome would have been reached.

The Decision serves as a timely reminder to all employers currently considering, or in the process of implementing, a mandatory vaccination policy of the fundamental importance of engaging in meaningful and genuine consultation before making any final decision.

Background

In early October, Mt Arthur Coal Pty Ltd (Mt Arthur), which operates the Mt Arthur open cut coal mine in the Hunter Valley (Mine), introduced a requirement that all of its workers must be vaccinated against COVID-19 as a condition of entry to the Mine (Site Access Requirement).

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), which represented about 700 Mt Arthur employees, challenged the Site Access Requirement and lodged a dispute under the Mt Arthur Coal Enterprise Agreement 2019 (Agreement).

The question for the Full Bench was whether the Site Access Requirement was a lawful and reasonable direction; it being a fundamental hallmark of all employment relationships that employees must follow directions given by their employers that are both:

• lawful (which includes the direction not being unlawful and falling within the scope of the employee’s employment), and

• reasonable (which is assessed objectively having regard to the circumstances).

The key point of contention between the parties related to whether Mt Arthur met its obligations to consult with workers affected by the Site Entry Requirement under the Agreement and the Work Health and Safety Act 2011 (NSW) (WHS Act), which required Mt Arthur to consult with its workers about any risk control measures it was considering introducing to eliminate or minimise the health and safety risks (including those associated with exposure to COVID-19).

Importantly, none of the relevant workers were covered by public health orders mandating vaccination and Mt Arthur was not subject to any legislative mandate to ensure that workers on its site be vaccinated. Therefore, the Decision is not relevant to those employers who are enforcing government imposed vaccine mandates, only to those who have determined it is appropriate to introduce an employer initiated mandate.

Decision

The Full Bench found that the Site Entry Requirement was not reasonable. This conclusion was based on the Full Bench’s finding that Mt Arthur had not complied with its obligations to consult with its workers under the WHS Act.

Notably, the Full Bench observed that although Mt Arthur had engaged with its workers about the Site Access Requirement, the duty to consult had not been met because:

• it had failed to involve health and safety representatives in the consultation process as required by the WHS Act

• health and safety committee meetings had not been involved in the consultation process, and

• the decision to implement the Site Access Requirement had been made prior to the consultation process being concluded (as such, any “consultation” that occurred following the decision, was not relevant “consultation” for the purposes of the WHS Act).

Helpfully, the Full Bench made clear that had Mt Arthur complied with its consultation obligations, the following factors would have made a “strong case” that the Site Access Requirement was reasonable:¹
 

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

• It has a logical and understandable basis.

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

• 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.

• Timing for the Site Access Requirement’s commencement was determined by reference to circumstances and rates of community transmission in NSW and the local area at the time.

• 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.

Key lessons

It remains our view that unless the work health and safety framework around COVID-19 changes, it will generally be lawful and reasonable for employers to introduce mandatory vaccination policies in relation to workers whose jobs inherently require that they be in positions or circumstances in which they could contract COVID-19 or, if infected with COVID-19, they could transmit the virus to someone else in the course of their work.

However, as the Decision demonstrates, it is critical that any mandatory vaccination policy is introduced and implemented carefully. To this end, employers must comply with any requirement in health and safety legislation to consult with employees and workers about any risk control measures that are being considered.
Consultation should, at a minimum, involve providing workers affected by a proposal with:

• relevant information about the risk control measure, including how it is considered the measure will assist in eliminating or minimising health and safety risks, and

• a reasonable opportunity to express their views and contribute to the decision-making process before any decision is made (including making use of existing WHS consultation mechanisms, such as health and safety committees and health and safety representatives).

Finally, we caution against a “one size fits all” approach. Consultation should be tailored to ensure that any obligations under applicable legislation and/or any industrial instruments are met (including any requirement to involve health and safety representatives or third parties in consultation) and with regard to the different circumstances and locations of workers.

^{[1] Mt Arthur Decision at [252] – [253].}