Road to mandatory VAX hits consultation roadblock

The Fair Work Commission (FWC) has found BHP’s COVID-19 vaccination mandate is not reasonable and lawful, but reached this decision based on its failure to consult on whether to implement the policy, rather than consultation on how to implement.

The decision, which many expected would clear the way for mandatory COVID-19 policies, has instead delivered a road-map. That road-map includes a mandatory pathway (consulting about the decision to mandate, not just its implementation), new obstacles (the critical role of senior decision makers) and left a number of paths unexplored (including the role of privacy laws). Employers currently on the mandatory vaccination journey must therefore continue to exercise caution given the road to mandatory vaccination still has some unmapped territory.

A COVID-19 mandatory vaccination policy that minimises risk, is thoroughly developed and consulted about, remains an achievable destination.

In early October, the Construction Forestry Maritime Mining And Energy Union (CFMMEU) asked the FWC to halt the rollout of BHP’s mandatory COVID-19 vaccination policy at the Mt Arthur mine. The key question was whether the direction to require employees to be vaccinated as a condition to entry was a reasonable and lawful direction. Workers were required to obtain at least a single vaccination dose by 10 November 2021 and be fully vaccinated by 31 January 2022. 

What the FWC said

The FWC found BHP failed to consult, as required by Work Health and Safety Laws (WHS Laws), about whether to implement the mandatory vaccination requirement.  The FWC found that BHP did not consult on the decision about whether to implement the policy, it only (meaningfully) consulted on how to implement the policy.  A five-member full bench of the FWC observed:

‘Despite BHP’s communications noting that they were committed to ongoing engagement with their workforce, it does not appear that employees were asked to contribute ideas or suggestions in relation to the decision-making process or the risk assessment or rationale that underpinned the decision to introduce the Site Access Requirement. Although substantial information was provided about COVID-19, little if any information was provided to Employees about the risk assessment that was undertaken, such as an evaluation that the existing control mechanisms were of limited effectiveness.’ 

Having reviewed the early communications to employees, the FWC found that BHP’s decision was ‘irrevocable’ and ‘not amenable to consultation’.  On this basis, the FWC concluded that the failure to comply with consultation obligations under the WHS Laws led it to the conclusion the policy was not a lawful and reasonable direction. 

The senior decision maker

In assessing whether BHP’s consultation was genuine, the FWC drew an adverse inference from its failure to call the President of BHP Minerals Australia (the senior decision maker involved in the policy). The FWC accepted the failure to call evidence supported the conclusion that the decision was irrevocable and therefore any consultation would not be meaningful.

Privacy laws

The FWC explored compliance with privacy laws, with the CFMMEU asserting the policy was ‘unlawful or involves unlawfulness, or in the alternative that it is not a reasonable direction, because [BHP] has not complied with its obligations under the Privacy Act’.  Despite this being a critical issue for employers, the FWC ultimately reached no concluded view – observing that determination was ‘unnecessary’ given the findings on consultation.

Ensuring health and safety 

Fundamentally, it appears that the BHP policy was prima facie – a lawful requirement, but not reasonable because of a failure to properly consult in accordance with the WHS Laws. The full bench said:

‘In all the circumstances we find that, on balance, the Site Access Requirement was not a reasonable direction. The determinative consideration has been that we are not satisfied that there was consultation in accordance with ss.47 and 48 of the WHS Act.

We note 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.

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.’

The FWC has offered its services in facilitating this process, and said it is achievable before 15 December 2021.

Where to from here?

Whether BHP will appeal, or consult and push towards implementation (or both) remains unclear.

In the interim, the decision has a number of immediate ramifications: 

(a)          employers currently mandating COVID-19 vaccinations must re-evaluate their consultation, particularly before progressing any dismissals;

(b)          consultation under the WHS Laws and industrial instrument must both be strictly followed; and

(c)           the senior decision maker(s) implementing any policy must be open to feedback, and be prepared to give evidence to that effect.

The decision has not cleared the road, and employers must now await further test cases to obtain certainty. With border and other restrictions easing before the end of 2021, resolution of these issues before the New Year is now becoming unlikely.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.