The dispute

Like many Australian businesses, to protect the health and safety of its workers, BHP introduced a policy requiring all workers to be fully vaccinated (or exempt) from COVID-19.  BHP considered the policy was reasonable given the circumstances and noting a sustained pattern of community transmission in and around the local government areas where the work site was situated.

The policy required workers to have received their first dose by 10 November 2021 and be fully vaccinated by 31 January 2022.

The CFMMEU issued an application under s.739 of the Fair Work Act 2009 (Cth) requiring the Commission to deal with a dispute under the dispute settlement procedure in the Mt Arthur Coal Enterprise Agreement 2019.  The dispute concerned whether or not a vaccine mandate was unlawful and unreasonable.  The matter was allocated to a Full Bench to determine.

As an interim measure the CFMMEU also made an application asking the Commission to permit unvaccinated workers to work at the worksite until the Full Bench delivers it decision.

Interim decision

The Commission accepted there were a number of questions to be asked as to the reasonableness of the requirement and whether BHP had complied with its consultation requirements.  However, the Commission noted, “The consequence of the risk eventuating is very serious for the Employer, all other workers and visitors who attend the Mine, and all their families and persons with whom they come into contact.  The risks include serious illness and death.” 

The Commission dismissed the application and refused to grant interim relief meaning those workers who were not vaccinated could not attend the worksite.

Background

On 31 August 2021, BHP announced to all workers that it would be assessing whether vaccination should be a condition of entry for all of its workplaces in Australia.

On 7 October 2021, BHP announced mandatory vaccination would be a requirement and that it would implement a Site Access Requirement.

Between 7 October 2021 and 4 November 2021, BHP sent a number of communications including question and answers concerning the Site Access Requirement. The communications made it clear consideration would be given to individual circumstances.

On 9 November 2021, BHP confirmed workers would not be permitted access to the work site unless they have provided evidence of vaccination.

CFMMEU’s case

The CFMMEU argue the Site Access Requirement was not lawful because BHP failed to comply with the consultation requirement set on in s.47 of the Work Health and Safety Act 2011 (NSW) (“WHS Act”).

The CFMMEU also argued the Site Access Requirement was not reasonable because it wasn’t specifically formulated with a mine site in mind, rather it applied to a range of different work sites across Australia. The CFMMEU also argued the Site Access Requirement was not reasonable because it didn’t take in to account other measures in place including social distancing, or the circumstances of workers including for example that many workers worked alone, and there were no public facing roles. 

Was the mandatory vaccination requirement lawful and reasonable?

The case was heard by the Full Bench on 24 and 25 November 2021.  Evidence was provided by a number of workers.  Evidence included: it was standard practice for issues to be communicated via company emails; workers rarely accessed their company email accounts; and one worker explained he became aware of the issue via an email sent to his personal email address.

A health and safety representative also gave evidence.  His evidence indicated a decision to impose a vaccine mandate was made on 25 September 2021, before the “consultation” commenced.  The representative also explained the communications and discussions invited feedback but did not explicitly use the term ‘consultation’ or ‘mandatory’.

Workers provided evidence that there was little discussion about the issue.

The Commission acknowledged COVID-19 posed a serious danger; however, was not satisfied BHP conducted a consultation in accordance with the requirements set out in the WHS Act. As a consequence, the Commission upheld the CFMMEU’s application and rendered the mandatory vaccination requirement unreasonable and unlawful.

For BHP, it’s back to the drawing board to plan and implement a genuine consultation process.

What does this mean for employers?

Importantly, the Commission did not say employers cannot introduce mandatory vaccination policies.  However, if a policy is to be lawful and reasonable employers must take advice and ensure they understand the steps they must take to comply with consultation requirements.

An employer must be able to demonstrate the steps taken and ensure the communication methods use enabled all workers have an opportunity to be heard.  The methods used to consult will need to ensure all concerned have a genuine ability to engage.  This may mean different methods for different workers.

The language used in communications must be carefully constructed to ensure a clear unambiguous message is communicated.

Given the clear need for thorough consultation, for many businesses a mandatory vaccination policy isn’t going to be a quick fix.  Businesses need to consider both their short and medium-term response to the pandemic.  This includes understanding the measures to take now to comply with government-imposed vaccine mandates as well as other safety measures to protect and respond to risks. 

Need more information?

Our expert Workplace Relations Advisors and Consultants continue to work with businesses to understand vaccination requirements.  If your business is contemplating introducing a mandatory vaccination policy, get in touch.  As we have seen getting consultation right is essential. Call the Victorian Chamber’s Workplace Relations Advice Line for more information.