Consultation with employees always plays an important part when introducing changes in the workplace. Under work health and safety legislation, employers have a duty to consult with their workers as far as reasonably practicable in relation to health and safety matters.
Consultation with employees always plays an important part when introducing changes in the workplace. Under work health and safety (WHS) legislation, employers have a duty to consult with their workers as far as reasonably practicable in relation to health and safety matters.
In Construction, Forestry, Maritime, Mining and Energy Union & Anor v Mt Arthur Coal Pty Ltd T/A Mt Arthur  FWCFB 6059, the Full Bench of the Fair Work Commission (FWC) emphasised the importance of the requirement to consult in accordance with WHS legislation when determining whether the employer’s COVID-19 vaccination requirements were reasonable and lawful.
The employer operates an open cut coal mine and is a member of the BHP Group of companies.
On 7 October 2021, the employer introduced a“Site Access Requirement” (SAR) which directed all workers at the mine to:
(a) be fully vaccinated against COVID-19 as a condition of entry.
(b) provide evidence of their compliance.
Workers were provided until 10 November 2021 to receive at least one dose and 31 January 2022 to receive their full two-doses of a COVID-19 vaccine. The SAR gave effect to the decision by BHP to make COVID-19 vaccination a condition of entry to BHP workplaces in Australia.
The SAR applied to nearly 2,000 workers at the time. About 724 workers were employed by the employer and were covered by the Mt Arthur Coal Enterprise Agreement 2019 (the Agreement).
The Construction Forestry Maritime Mining Energy Union (CFMMEU) and Mr Howard, a worker at the mine (the Applicants) lodged an application under the Fair Work Act 2009 (Cth) for the FWC to deal with a dispute in accordance with the dispute resolution procedure in the Agreement.
The question before the Full Bench was whether the direction was a lawful and reasonable direction for employees at the mine who were covered by the Agreement. Given the significance of the potential outcome of the matter, other industrial associations, employer bodies and the Minister for Industrial Relations were granted leave to intervene and provide submissions if they wished.
Reasonable and lawful direction
The Applicants submitted that the SAR was not a reasonable and lawful direction on a number of grounds, including:
- that the employer did not comply with the consultation requirements under the Work Health and Safety Act 2011 (NSW) (WHS Act) before implementing the SAR;
- the employer did not comply with its obligations under the Privacy Act 1988 (Cth) (Privacy Act); and
- the SAR impaired the employee’s right to bodily integrity.
The employer submitted that it had a duty under the WHS Act and common law to ensure, as far as reasonably practicable, the health and safety of its employees and others. It argued that a direction whose object and purpose was to protect health and safety of persons at the mine was lawful as it was within the employee’s employment and for the same reasons, was reasonable. The employer also argued that whether a direction was reasonable depended on the content and effect of the direction, rather than how the direction was made.
The Full Bench did not agree with this approach and submitted that to determine whether a direction was reasonable was not to be done in a “vacuum”. For the Full Bench, whether a direction was reasonable required consideration of all of the circumstances including the nature of the employment, common practices and provisions of any instrument governing the employment relationship, and that the assessment needed to be done on a case-by-case basis. This meant that the obligations under the WHS Act needed to be considered.
Consultation under the WHS Act and the SAR
Turning to the consultation obligations under the WHS Act, the Full Bench noted that under the WHS Act, the employer was required to consult, as far as reasonably practicable, with workers and that this consultation was to occur prior to implementation. The Full Bench in particular noted that obligation to consult under the WHS Act meant that an employer must give workers a real opportunity to be heard and express their views before a decision is made and that it was not to be a formality or afterthought. It also noted that consultation did not mean that there had to be agreement or provided a power of veto, it was an opportunity for employees to express and have their views considered.
The employer submitted that it complied with the consultation requirements under the WHS Act. It relied upon its three-phase approach which it submitted consisted of the following:
- promotion of vaccination by BHP through an education program;
- preparation of an options analysis report for BHP’s senior leadership team which included are commendation that a COVID-19 vaccination was a condition of entry to BHP workplaces;
- consultation and engagement with unions and the creation of a BHP central mailbox in which employees could ask questions and provide comment about the proposed SAR; and
- continued consultation between the announcement of the SAR on 7 October 2021 and the first dose deadline on 10 November 2021.
The Applicants submitted that there was no real consultation and that when the SAR was announced, the decision had already been made.
The Full Bench considered the steps taken by BHP and the employer and was not satisfied that there had been consultation in accordance with the duty under the WHS Act. The Full Bench found that:
- The employer and BHP proceeded on the basis that consultation was not required before implementing the SAR;
- Employees were not given an opportunity to provide their views, to raise WHS issues or contribute to the decision-making process about the SAR;
- Employees were not provided with information about the SAR proposal or given a copy of the risk assessment; and
- The Health and Safety Representatives were not involved in a meaningful consultation including by way of health and safety committee meetings.
The employer submitted in the alternative, that the lack of compliance with the WHS Act was a relevant consideration but did not determine whether, objectively, the direction was or was not reasonable.The employer submitted that there was no evidence to indicate that consultation would have resulted in a decision not to direct employees to comply with the SAR.
The Full Bench dismissed this argument and did not accept that further consultation could not have produced a different result. It noted that the likelihood of the success of consultation was irrelevant to whether the direction was reasonable and failure to consult denied employees the possibility that there would be a different outcome.
Given the deficiencies in the consultation process, the Full Bench was not able to conclude that the SAR was a reasonable direction.
Privacy Act and Bodily Integrity
As the conclusion above was reached, the Full Bench refrained from make any findings in relation to whether the SAR was not a lawful or reasonable direction because the employer did not comply with obligations under the Privacy Act or whether the SAR impacted on the right to bodily integrity and individual choice not to undergo a medical procedure.
As the Full Bench was not satisfied that there had been consultation with workers in accordance with the WHS Act, it found that the SAR was not a reasonable direction.
However, the Full Bench did express that but for the lack of consultation, there were factors which supported a finding that the SAR was reasonable, such that it would have found that it was a reasonable direction.
Lessons for employers
Many employers may have implemented or are contemplating implementing mandatory COVID-19 vaccinations policies. Such policies are usually grounded in minimising the risk of exposure to or transmission of COVID-19 in the workplace. If a mandatory COVID-19 vaccine policy is adopted, it will be crucial that employers consult with their employees in accordance with WHS legislation.
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