Manda­to­ry Work­place Vac­ci­na­tion: Full Bench of the FWC Decides Test Case

The Full Bench of the Fair Work Com­mis­sion has hand­ed down its deci­sion in a sig­nif­i­cant test case deal­ing with the right of employ­ers to direct employ­ees to be vac­ci­nat­ed against COVID-19.

The case, Con­struc­tion, Forestry, Mar­itime, Min­ing and Ener­gy Union & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059, was an arbi­tra­tion pur­suant to sec­tion 739 of the Fair Work Act. That pro­vi­sion allows the Com­mis­sion to deal with cer­tain indus­tri­al dis­putes, includ­ing by arbi­tra­tion (with the out­come bind­ing on the parties).

The ques­tion arbi­trat­ed was:

“Whether the direc­tion as set out in attach­ments 1 and 2 to the appli­ca­tion filed by the CFM­MEU in pro­ceed­ings C2021/7023 is a law­ful and rea­son­able direc­tion in respect to employ­ees at the Mt Arthur mine who are cov­ered by the Mt Arthur Coal Enter­prise Agree­ment 2019”

The direc­tion that was the sub­ject of the ques­tion was that all work­ers at the Mt Arthur mine must be vac­ci­nat­ed against COVID-19 as a con­di­tion of entry to the site, with work­ers need­ing to have had at least a sin­gle dose of an approved COVID-19 vac­cine by 10 Novem­ber 2021 and be ful­ly vac­ci­nat­ed by 31 Jan­u­ary 2022. This require­ment was referred to as the ​“Site Access Require­ment” in the decision. 

The Com­mis­sion gave a sig­nal that it con­sid­ered this to be an impor­tant case by con­ven­ing a five-mem­ber Full Bench to hear the mat­ter. That five-mem­ber bench com­prised Jus­tice Ross (Pres­i­dent of the Com­mis­sion), Vice Pres­i­dent Catan­zari­ti, Deputy Pres­i­dent Saun­ders, Com­mis­sion­er Math­e­son and Com­mis­sion­er O’Neill.

In set­ting the mat­ter down for arbi­tra­tion, the Com­mis­sion noted:

“Giv­en the poten­tial sig­nif­i­cance of this mat­ter, we pro­pose to draw this appli­ca­tion to the atten­tion of peak union and employ­er bod­ies and the Min­is­ter, and to grant them leave to inter­vene if they wish to do so. Any union inter­venor is required to file and serve full writ­ten sub­mis­sions and any evi­dence it wish­es to rely upon in accor­dance with Direc­tions 1 and 3 above. Any employ­er inter­venor is required to file and serve full writ­ten sub­mis­sions and any evi­dence it wish­es to rely upon in accor­dance with Direc­tion 2 above.”

Pur­suant to this invi­ta­tion the pro­ceed­ings had inter­ven­ers includ­ing, on the union side, the ACTU, CEPU and AMWU, and from the employ­er side, the Ai Group and ACCI. 

The mat­ter was heard on 24 and 25 Novem­ber 2021, with a deci­sion hand­ed down on 3 Decem­ber 2021.

The Deci­sion

The Full Bench of the Com­mis­sion held the direc­tion that was the sub­ject of the ques­tion arbi­trat­ed, that all work­ers at the Mt Arthur mine must be vac­ci­nat­ed against COVID-19 as a con­di­tion of entry to the site, was not a rea­son­able direc­tion. The deter­mi­na­tive con­sid­er­a­tion was that the Com­mis­sion was not sat­is­fied that there was con­sul­ta­tion in accor­dance with sec­tions 47 and 48 of the Work Health and Safe­ty Act 2011 (NSW) (WHS Act). Obvi­ous­ly, this find­ing heav­i­ly turns on the cir­cum­stances of the par­tic­u­lar case before the Commission.

A Blow for Manda­to­ry Work­place Vaccination?

The out­come in the case, that the direc­tion by the employ­er to be vac­ci­nat­ed against COVID-19 was not rea­son­able, will like­ly be cit­ed by those who have a gen­er­al philo­soph­i­cal oppo­si­tion to manda­to­ry work­place vac­ci­na­tion. Notwith­stand­ing the final out­come, there is lit­tle in the deci­sion that sup­ports that stance.

As stat­ed above, the deter­mi­na­tive con­sid­er­a­tion in this case was that there had been inad­e­quate con­sul­ta­tion. The Com­mis­sion specif­i­cal­ly not­ed (at 252):

“…that there are a range of con­sid­er­a­tions which oth­er­wise weighed in favour of a find­ing that the Site Access Require­ment was rea­son­able, includ­ing that:

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

2. It has a log­i­cal and under­stand­able basis.

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

4. 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.

5. The tim­ing for its com­mence­ment was deter­mined by ref­er­ence to cir­cum­stances per­tain­ing to NSW and the local area at the rel­e­vant time.

6. 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 Com­mis­sion went on to observe (at 253):

“Had the Respon­dent con­sult­ed the Employ­ees in accor­dance with its con­sul­ta­tion oblig­a­tions − such that we could have been sat­is­fied that the deci­sion to intro­duce the Site Access Require­ment was the out­come of a mean­ing­ful con­sul­ta­tion process – the above con­sid­er­a­tions would have pro­vid­ed a strong case in favour of a con­clu­sion that the Site Access Require­ment was a rea­son­able direc­tion.”

As such, even though the spe­cif­ic direc­tion in this case was found not to be rea­son­able, the deci­sion lends sup­port to the notion that a prop­er­ly imple­ment­ed manda­to­ry work­place COVID-19 vac­ci­na­tion require­ment can be enforce­able. In this regard it is broad­ly con­sis­tent with the con­clu­sion reached by the Com­mis­sion in var­i­ous recent influen­za vac­ci­na­tion cas­es (albeit in the con­text of unfair dis­missal rather than an arbi­trat­ed indus­tri­al dis­pute), which have offered guid­ance on this issue to date. 

The deci­sion is most cer­tain­ly not a repeat or endorse­ment of the posi­tion advanced by Deputy Pres­i­dent Dean in her emphat­ic dis­sent in Jen­nifer Kim­ber v Sap­phire Coast Com­mu­ni­ty Aged Care Ltd [2021] FWCFB 6015. Fur­ther, the judg­ment makes no ref­er­ence to some of the favoured argu­ments of the anti-vac­ci­na­tion move­ment, such as the Nurem­berg Code, Magna Car­ta or Aus­tralian Con­sti­tu­tion. (That said, one like­ly con­se­quence of giv­ing sig­nif­i­cant weight to con­sul­ta­tion in deter­min­ing whether a direc­tion is rea­son­able, as can­vassed below, is that employ­ers will need to invite and con­sid­er views from employ­ees that will include some of these eso­teric argu­ments. It is almost inevitable that inter­net sourced, pro for­ma, qua­si-legal anti-vac­ci­na­tion doc­u­ments will be served up to employ­ers as part of a con­sul­ta­tion process.)

The Impor­tance of Consultation

While the con­cept of manda­to­ry work­place COVID-19 vac­ci­na­tion was endorsed, employ­ers may need to revis­it the process of imple­ment­ing such a pol­i­cy to ensure they are com­ply­ing with con­sul­ta­tion oblig­a­tions in WHS leg­is­la­tion and indus­tri­al instru­ments. Con­sul­ta­tion has been giv­en pri­ma­cy by the Com­mis­sion in this decision.

In reach­ing its con­clu­sion on the issue of con­sul­ta­tion in this deci­sion, the Com­mis­sion focused on sec­tions 47 and 48 of the WHS Act. 

Sec­tion 47 provides:

“47 Duty to con­sult workers

(1) The per­son con­duct­ing a busi­ness or under­tak­ing must, so far as is rea­son­ably prac­ti­ca­ble, con­sult, in accor­dance with this Divi­sion and the reg­u­la­tions, with work­ers who car­ry out work for the busi­ness or under­tak­ing who are, or are like­ly to be, direct­ly affect­ed by a mat­ter relat­ing to work health or safety.

Max­i­mum penalty—

• (a) in the case of an indi­vid­ual — 230 penal­ty units, or
• (b) in the case of a body cor­po­rate — 1,155 penal­ty units.

(2) If the per­son con­duct­ing the busi­ness or under­tak­ing and the work­ers have agreed to pro­ce­dures for con­sul­ta­tion, the con­sul­ta­tion must be in accor­dance with those procedures.

(3) The agreed pro­ce­dures must not be incon­sis­tent with sec­tion 48.”

Sec­tion 48 provides:

“48 Nature of consultation 

(1) Con­sul­ta­tion under this Divi­sion requires—

(a) that rel­e­vant infor­ma­tion about the mat­ter is shared with work­ers, and

(b) that work­ers be giv­en a rea­son­able opportunity—

• (i) to express their views and to raise work health or safe­ty issues in rela­tion to the mat­ter, and
• (ii) to con­tribute to the deci­sion-mak­ing process relat­ing to the mat­ter, and

(c) that the views of work­ers are tak­en into account by the per­son con­duct­ing the busi­ness or under­tak­ing, and

(d) that the work­ers con­sult­ed are advised of the out­come of the con­sul­ta­tion in a time­ly manner.

(2) If the work­ers are rep­re­sent­ed by a health and safe­ty rep­re­sen­ta­tive, the con­sul­ta­tion must involve that rep­re­sen­ta­tive.”

Sec­tion 49, which estab­lish­es when the oblig­a­tions in sec­tion 47 and 48 above are enlivened, provides:

“49 When con­sul­ta­tion is required

Con­sul­ta­tion under this Divi­sion is required in rela­tion to the fol­low­ing health and safe­ty matters—

(a) when iden­ti­fy­ing haz­ards and assess­ing risks to health and safe­ty aris­ing from the work car­ried out or to be car­ried out by the busi­ness or undertaking,

(b) when mak­ing deci­sions about ways to elim­i­nate or min­imise those risks,

(c) when mak­ing deci­sions about the ade­qua­cy of facil­i­ties for the wel­fare of workers,

(d) when propos­ing changes that may affect the health or safe­ty of workers,

(e) when mak­ing deci­sions about the pro­ce­dures for—

• (i) con­sult­ing with work­ers, or
• (ii) resolv­ing work health or safe­ty issues at the work­place, or
• (iii) mon­i­tor­ing the health of work­ers, or
• (iv) mon­i­tor­ing the con­di­tions at any work­place under the man­age­ment or con­trol of the per­son con­duct­ing the busi­ness or under­tak­ing, or
• (v) pro­vid­ing infor­ma­tion and train­ing for work­ers, or

(f) when car­ry­ing out any oth­er activ­i­ty pre­scribed by the reg­u­la­tions for the pur­pos­es of this section.”

The Com­mis­sion set out its rea­son­ing for find­ing the employ­er had not com­plied with the con­sul­ta­tion oblig­a­tions in the WHS Act (at 174):

“The process under­tak­en by the Respon­dent and BHP in rela­tion to the deci­sion to imple­ment of the Site Access Require­ment has been set out above. In our view, the Employ­ees were not giv­en a rea­son­able oppor­tu­ni­ty to express their views and to raise work health or safe­ty issues, or to con­tribute to the deci­sion-mak­ing process relat­ing to the deci­sion to intro­duce the Site Access Require­ment. They were not pro­vid­ed with infor­ma­tion relat­ing to the rea­sons, ratio­nale and data sup­port­ing the pro­pos­al, nor were they giv­en a copy of the risk assess­ment or informed of the analy­sis that informed that assess­ment. In effect the Employ­ees were only asked to com­ment on the ulti­mate ques­tion: should the Site Access Require­ment be imposed? The con­trast in the con­sul­ta­tion or engage­ment with Employ­ees in the imple­men­ta­tion phase com­pared to the assess­ment phase is stark and sug­gests that dur­ing the assess­ment phase the Respon­dent was not con­sult­ing as far as is rea­son­ably prac­ti­ca­ble as required by s.47 of the WHS Act. There was no real expla­na­tion pro­vid­ed by the Respon­dent as to why there was a marked­ly low­er lev­el of engage­ment dur­ing the assess­ment phase.”

The Com­mis­sion con­tin­ued (at 175):

“We do not con­sid­er that HSRs were involved in any con­sul­ta­tion in any mean­ing­ful way as required by s.48(2) and we note that estab­lished mech­a­nisms such as health and safe­ty com­mit­tee meet­ings were not used for this pur­pose. We agree with the Appli­cants that the lan­guage used in the 31 August 2021 com­mu­ni­ca­tion demon­strates that the Employ­ees would not be con­sult­ed in a mean­ing­ful way pri­or to a deci­sion being made by BHP about the Site Access Require­ment. Accord­ing­ly, we are not sat­is­fied that there was con­sul­ta­tion in accor­dance with ss.47 and 48 of the WHS Act. In reach­ing this con­clu­sion, we have tak­en the guid­ance pro­vid­ed by the Code into account.”

The HSRs in this con­text were Mine Safe­ty and Health Rep­re­sen­ta­tives. (In most oth­er work­places, they will be Health and Safe­ty Rep­re­sen­ta­tives.) The Code is the NSW Work Health and Safe­ty Con­sul­ta­tion, Coop­er­a­tion and Coor­di­na­tion Code of Prac­tice, to which the Com­mis­sion referred for rel­e­vant guid­ance in deter­min­ing whether the employ­er com­plied with its con­sul­ta­tion obligations. 

While the Com­mis­sion focused on the con­sul­ta­tion pro­vi­sions of the WHS Act, it did not lose sight of the ulti­mate ques­tion under con­sid­er­a­tion: the rea­son­able­ness of the direc­tion. In that regard, the Com­mis­sion not­ed (at 176):

“Even if we are wrong in our con­clu­sion that there has been a fail­ure to mean­ing­ful­ly con­sult as required by s.48, we con­sid­er that the inad­e­qua­cy of the con­sul­ta­tions under­tak­en with the Employ­ees pri­or to the announce­ment of the Site Access Require­ment on 7 Octo­ber 2021 is rel­e­vant to the rea­son­able­ness of the Site Access Requirement.”

Fol­low­ing this deci­sion, in imple­ment­ing a manda­to­ry work­place COVID-19 vac­ci­na­tion pol­i­cy, employ­ers should con­sid­er their oblig­a­tions to con­sult under the WHS Act and/​or any applic­a­ble indus­tri­al instru­ments and take active steps to com­ply with them. A fail­ure to do so could lead the Com­mis­sion to find, on the basis of inad­e­quate con­sul­ta­tion alone, that a manda­to­ry vac­ci­na­tion direc­tion is unreasonable. 

This is an impor­tant case – the most sig­nif­i­cant in Aus­tralia on the issue of manda­to­ry work­place COVID-19 vac­ci­na­tion to date. It will be inter­est­ing to see the way in which the prin­ci­ples set out in the deci­sion are applied in future Com­mis­sion cas­es, par­tic­u­lar­ly those deal­ing with claims of unfair dis­missal aris­ing from a fail­ure to com­ply with a direc­tion to be vaccinated.