COVID Vaccination Mandates: Consultation is key in BHP Case

On 3 December 2021, the Full Bench[1] of the Fair Work Commission handed down its long-awaited decision[2]  about whether BHP’s Site Access Requirement, as implemented by a member of the BHP Group, Mt Arthur Coal Pty Ltd (Mt Arthur), was a lawful and reasonable direction. While the Full Bench noted that the vaccination mandate could have been a lawful and reasonable direction, it was ultimately not a reasonable direction for the primary reason that Mt Arthur had not complied with its work health and safety (WHS) consultation obligations.

The BHP case concerns vaccination requirements imposed by reason of company policy rather than by public health orders. Mandatory vaccination requirements imposed by public health orders are not subject to the same issues as considered in this case and employers should seek specific advice regarding their circumstances.

Key Takeaways

• Vaccine mandates can amount to lawful and reasonable directions.  It is not necessary to show that the relevant direction is preferable, most appropriate or ‘best practice’.
• Whether vaccine mandates are reasonable directions, depends on whether the specific mandate is reasonable, which is a question of fact having regard to all of the circumstances. Relevant factors include the nature of the employment, the established usages affecting it, the common practices which exist and the provisions of the industrial instrument governing the relationship.
• It is key that employers comply with consultation obligations under WHS legislation and any applicable industrial instruments, which is likely to involve meaningful consultation prior to making a decision to implement a mandate.

Background

Prior to 31 August 2021, Mt Arthur commenced an education program promoting COVID-19 vaccination to all of its employees. From 31 August 2021, BHP commenced an ‘assessment phase’ where it invited questions and comments about the introduction of the Site Access Requirement via a central mailbox and other avenues.

On 7 October 2021, BHP announced that it would be implementing the Site Access Requirement, which mandated that all workers at its Mt Arthur mine be fully vaccinated against COVID-19 by 31 January 2022 as a condition of entry to the site (Requirement). After 7 October 2021 and during implementation, there were toolbox meetings with employees, meetings of the various health and safety committees, provision of information regarding the risk assessment underpinning the Requirement, and meetings between the unions and BHP about the implementation.

The matter came before the Full Bench following an application by the CFMMEU for the Fair Work Commission to deal with the dispute pursuant to the applicable industrial instrument, the Mt Arthur Coal Enterprise Agreement 2019 (Agreement). Pursuant to the dispute resolution process in the Agreement, the matter was conciliated (unsuccessfully) and referred for arbitration by the Fair Work Commission.

Full Bench decision

The CFMMEU challenged the Requirement on the basis that it was not lawful or reasonable for reasons including that:

• Mt Arthur did not comply with consultation obligations under WHS legislation;
• Mt Arthur did not comply with consultation obligations under the applicable enterprise agreement;
• Mt Arthur did not comply with obligations under privacy legislation; and
• the Requirement was inconsistent with employees’ rights to bodily integrity.

Mt Arthur argued that the Requirement was both lawful and reasonable in the circumstances (for example, because of the risks associated with the removal of movement restrictions and reopening), and it had fulfilled its consultation obligations including through its education program, the ‘assessment phase’ and consultation during the implementation of the Requirement. It further submitted that even if the consultation obligations in the WHS legislation had not been complied with, that would not have the effect of invalidating the Requirement.

As to whether the Requirement was reasonable, the Full Bench concluded that it was not. Despite Mt Arthur’s submissions that reasonableness depends on the content and effect of the direction, not by the process by which it was made, the ‘major consideration’ was a deficiency in the consultation process undertaken by Mt Arthur.

Mt Arthur’s consultation process was found to be deficient on the basis that it did not meet WHS obligations to consult prior to making a decision to introduce the Requirement.  In particular, the Full Bench found that:

• employees were not provided with information relating to the reasons, rationale and data supporting the proposal to introduce the Requirement, nor given a copy of the risk assessment or informed of the analysis that informed that assessment;
• employees were not given a reasonable opportunity to express their views, or contribute ideas or suggestions in relation to the decision-making process or the risk assessment or rationale that underpinned the decision to introduce the Requirement; and
• Health and Safety Representatives were not involved in any meaningful way as required by WHS legislation, noting that mechanisms such as health and safety committees were not used.

The Full Bench concluded that because Mt Arthur had not consulted in a meaningful way as required by WHS legislation, or at the very least had not consulted in an adequate way, the Requirement was not a reasonable direction.

As to whether the Requirement was lawful, the Full Bench accepted that the object and purpose of the requirement was to protect the health and safety of employees and other people at the Mt Arthur mine. While the Full Bench accepted that the requirement was prima facie lawful, because it fell within the scope of employment and there is nothing illegal or unlawful about becoming vaccinated, the CFMMEU, ACTU and union interveners argued that noncompliance with the consultation obligation in WHS legislation resulted in the direction also being unlawful.  The Full Bench declined to finally determine the issue of lawfulness of the direction given its finding the Requirement was not reasonable.

The Full Bench also declined to make findings about whether Mt Arthur had breached its privacy obligations, and found the Requirement did not violate the right to bodily integrity. The practical effect of the Requirement, which was to apply pressure to employees to surrender their bodily integrity, was a factor which told against the reasonableness of the Requirement, albeit not a determinative one.

In respect of Mt Arthur’s obligation to consult under its enterprise agreement (which contained the model consultation clause), the Full Bench concluded that the Requirement was:

• a change to ‘organisation’ within the meaning of the model consultation clause given that the Requirement had the effect of excluding unvaccinated workers from the workplace; and
• was a ‘major change to…organisation’ that was ‘likely to have a significant effect on employees’ given the potential for dismissal of unvaccinated employees.

In these circumstances, the consultation requirements in the Agreement had been triggered.  While the Full Bench declined to finally determine the matter, it considered Mt Arthur had substantially met its obligations in this respect, noting that Mt Arthur had consulted after the decision was made to introduce the Requirement (as required by the model clause).

The Full Bench was at pains to highlight considerations which otherwise weighed in favour of the Requirement, including:

• that it is a reasonably proportionate response to the risk created by COVID-19;
• was developed having regard to the circumstances at the Mt Arthur mine; and
• was only implemented after a considerable amount of time had been spent encouraging and facilitating vaccination at the mine.

The Full Bench expressly noted that if Mt Arthur had complied with its consultation obligations such that the Full Bench could have been satisfied that the Requirement was the outcome of a meaningful consultation process, there would have been a strong case in favour of concluding that the Requirement was a reasonable direction.

The Full Bench expressed the view that, provided the consultation process commenced in a timely way, Mt Arthur could still be in a position to make a decision about whether to impose the Requirement prior to 15 December 2021.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).