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A recent decision by the Fair Work Commission is a significant win for the rights of workers and their union representatives to be consulted about workplace health and safety measures before they are introduced.

BHP’s attempt to impose a COVID-19 vaccine mandate at its Mt Arthur coal mine in New South Wales has been successfully challenged before a five-member Full Bench of the Fair Work Commission.

This is the first Full Bench decision to consider a COVID-19 vaccine mandate that is:

  • Imposed by an employer in the absence of a public health order
  • Relies on the implied term in employment contracts that employees must comply with lawful and reasonable directions. 
     

Our employment and industrial team acted for the Australian Manufacturing Workers Union (AMWU) and the Communications Electrical Plumbing Union (CEPU), the union intervenors, in this important decision.

The facts

On 7 October 2021, Mt Arthur Coal Pty Ltd, a wholly-owned subsidiary of BHP which manages the Mt Arthur Coal mine in the Hunter Valley in New South Wales, announced a new Site Access Requirement that all workers at the mine must be vaccinated against COVID-19.

Specifically, the workers were required to have a single dose by 10 November 2021, and to be fully vaccinated by 31 January 2021. Any worker who had not provided evidence of their vaccination status would not be permitted to enter the site.

At the time, there was:

  • No public health order requiring these workers to be vaccinated against COVID-19
  • No express term of their contract or Enterprise Agreement to that effect.

 

The challenge

On behalf of a large number of Mt Arthur workers, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) notified an industrial dispute. This means that the disagreement between the workers and the employer is formally raised so the Commission can try to resolve the issue, or refer for hearing and decision.

The question to be decided was whether Mt Arthur’s direction to its workers to be vaccinated was a lawful and reasonable one.

The CFMMEU, the union intervenors and the Australian Council of Trade Unions (ACTU), claimed that the direction was not lawful and reasonable because BHP did not adequately consult with employees and their representatives before making the decision to impose the Site Access Requirement.

The decision

The Full Bench ultimately decided that the Site Access Requirement (requiring all workers to be vaccinated), was not a reasonable direction due to a failure to adequately consult.

In reaching that view, the Full Bench also noted a number of factors which weighed in favour of a finding that the requirement was reasonable.

They included:

  • That the direction was directed at ensuring the health and safety of workers at the Mt Arthur mine
  • It had a “logical and understandable basis”
  • It was a reasonably proportionate response to the risk created by the COVID-19 pandemic.

However, in concluding that Mt Arthur had failed to fulfil its consultation obligations, the Full Bench noted:

  • employees were not asked to contribute ideas or suggestions, or scientific, medical or safety data, to the decision-making process;
  • employees were not provided with information about the risk assessment undertaken by the employer;
  • the employer did not make a “genuine attempt” to consult with the respective unions;
  • the employer did not directly engage with health and safety representatives until after the decision to implement the Requirement had been made; and,
  • the language of the Site Access Requirement made it clear that it was “not open for reconsideration”.

 

The Full Bench emphasised that for a direction to be considered reasonable, it needs to consider all the circumstances, which may include consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship. 

Decision: Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059

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