Manda­to­ry Work­place Vac­ci­na­tion: A Major Test Case Is Imminent

A dis­pute that is shap­ing up to be a sig­nif­i­cant test case deal­ing with the right of employ­ers to direct employ­ees to be vac­ci­nat­ed against COVID-19 is to be heard lat­er this month by the Fair Work Commission.

The case, Con­struc­tion, Forestry, Mar­itime, Min­ing and Ener­gy Union (105N) & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6039, is 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 to be arbi­trat­ed is:

“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 is the sub­ject of the ques­tion is 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.

The Com­mis­sion has giv­en a sig­nal that it con­sid­ers this to be an impor­tant case by con­ven­ing a five-mem­ber Full Bench to hear the mat­ter. That five-mem­ber bench com­pris­es Jus­tice Ross Pres­i­dent, Vice Pres­i­dent Catan­zari­ti, Deputy Pres­i­dent Saun­ders, Com­mis­sion­er Math­e­son and Com­mis­sion­er O’Neill.

The Com­mis­sion also 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.”

The arbi­tra­tion of the dis­pute has been set down for 24 Novem­ber 2021. The Full Bench has indi­cat­ed it hopes to hand down its deci­sion with­in 10 days of hearing.

On 9 Novem­ber 2021 in an inter­locu­to­ry judg­ment, Con­struc­tion, Forestry, Mar­itime, Min­ing and Ener­gy Union, Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWC 6309, Deputy Pres­i­dent Saun­ders declined to grant the fol­low­ing relief:

“Until the deter­mi­na­tion of the Full Bench by arbi­tra­tion of dis­pute C2021/7023, it is ordered that Mt Arthur Coal Pty Ltd take no steps to dis­miss, dis­ci­pline or oth­er­wise prej­u­dice the employ­ment of any pro­duc­tion and engi­neer­ing employ­ees who fail to present to Mt Arthur Coal Pty Ltd evi­dence of being vac­ci­nat­ed against COVID-19.”

Inter­est­ing­ly, while Deputy Pres­i­dent Saun­ders did not grant the inter­im relief (hav­ing regard to the bal­ance of con­ve­nience, a fun­da­men­tal con­sid­er­a­tion in such mat­ters), his Hon­our did note that there were seri­ous ques­tions to be tried in rela­tion to whether the employ­er com­plied with its con­sul­ta­tion oblig­a­tions and whether the con­di­tion of entry to the site (requir­ing COVID-19 vac­ci­na­tion) is tai­lored to, and is for­mu­lat­ed hav­ing regard to, the par­tic­u­lar cir­cum­stances of the mine and the employ­ees who work on it.

All employ­ers grap­pling with the vexed issue of manda­to­ry vac­ci­na­tion should keep an eye on devel­op­ments in this case.