Recent Developments in the area of mandatory vaccines - Part 1
Status of vaccines in the workplace
The current discussion and status of the availability of COVID-19 vaccinations has posed significant challenges for employers around the requirement of how to manage broader workplace risks.
As it currently stands in most cases, specifically in health and aged care and the public service, public health orders or government directions apply.
Over the course of 2021, many employers announced decisions and internal directions to ‘mandate’ vaccination for their workforce.
Many employers applied a holding pattern or ‘wait and see’ approach. By this, we mean they wanted to be guided by how government would respond and whether the decision could be deferred because of the imposition of public health orders and government directions. Also, each state has applied their own model but largely with the same principles.
The following three-part article will examine recent approaches that the Fair Work Commission (FWC) has taken in relation to vaccine mandates by employers.
Part 1 – Consultation in relation to mandatory vaccines
Towards the end of 2021, the FWC provided guidance on the importance of consultation requirements across the issue of vaccinations.
This issue was addressed in the matter of Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059. In October 2021, BHP directed that its workforce would have to be fully vaccinated against COVID-19 by the end of January 2022 (the BHP Direction). The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged a dispute under the Mt Arthur Coal Enterprise Agreement 2019 (Agreement) on behalf of the some 30 miners who disputed the Site Access Requirement. The FWC has now overturned the BHP Direction.
That is a major development? What happened?
The Fair Work Commission Full Bench (FWCFB) outlined that in the absence of a public health order or express contractual terms to require its employees to be vaccinated to gain entry to the workplace, the legal basis for the direction could only come from the implied contractual term that employees obey the lawful and reasonable directions of their employer.
The FWCFB accepted that the object and purpose of the Site Access Requirement was to protect the health and safety of BHP’s Mt Arthur employees. Therefore, the FWCFB found the Site Access Requirement was a lawful direction because:
it fell within the scope of employment, and
there is nothing ‘illegal’ or unlawful about an employer’s direction to an employee to become vaccinated.
However, when considering whether the direction was reasonable, the FWCFB found that BHP failed to comply with its consultation obligations in accordance with sections 47 and 48 of the Work Health and Safety Act 2011 (NSW) (WHS Act).
The FWCFB ultimately held that BHP’s communication with its workers fell short of its consultation obligations, finding that BHP had merely asked employees whether the mandate should be imposed and did not provide information relating to the reasons, rationale and data supporting the proposal.
While there was some discussion regarding whether BHP complied with its consultation obligations under the Agreement, the FWCFB noted that, given it had made a finding that BHP failed to comply with its duty to consult under the WHS Act, it was not necessary for it to express a ‘concluded view’ on the issue.
This case has had media exposure. Why?
Yes, for several reasons.
Principally, the FWCFB has provided clarity as to the minimum expectations in relation to a workplace vaccination mandate in circumstances where there is no applicable public health direction or expressed contract term, stating that if BHP had consulted mine workers in a reasonable way before it introduced the mandate, this would have ‘provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction’.
Importantly, the FWCFB noted that a range of factors weighed in favour of the Site Access Requirement being reasonable, including the following:
It is directed at ensuring the health and safety of workers.
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 workplace, including the fact that workers cannot work from home and meet other workers at the workplace.
The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant 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.
The decision is a reminder for employers that absent any State Government directions, public health orders or expressed contract terms, the requirement that an employee be vaccinated as a condition of site access must be a lawful and reasonable direction.
Generally, when the purpose of the direction is focused on ensuring the health and safety of the workforce it will be lawful. However, when determining whether a direction is reasonable, all relevant circumstances will be considered, including whether an employer has complied with consultation obligations under work, health and safety legislation.
So, the obligations to ensure full compliance with WHS is important as the duty to the employee is paramount.
Can this decision be used to repeal the mandatory vaccines?
No, this is very unlikely as the decision has in no way invalidated the mandates.
But it is possible that the ruling could help individual challenges to compulsory vaccinations.
Takeaway points
Employers who are bound by public health directions do not have an obligation to consult in relation to the introduction of a mandatory vaccination policy, to the extent that they are bound to comply with the public health directions.
However, employers who are not bound by public health directions who do not have express contractual terms regarding vaccination mandates in their employment agreements, must consult and use the consultation provisions of the respective EBAs moving forward. This is analogous to say redundancy matters.
Overall, consultation is key, and the following checklist will be important:
What is the rationale and reasons behind the direction for the mandatory vaccinations?
What information should be provided to support this?
How will the information be communicated?
Has the information reached all employees effected?
How will this be evidenced?
Is there a mechanism for feedback to be provided by employees in a genuine way?
How will this be considered – what is the approach and how will this be evidenced?
What other information needs to be provided?
Can the timeline for implementation be lengthened to avoid arguments of a rushed process?
For further information please contact:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal
