Friday, 10 December 2021

FWC finds BHP COVID-19 vaccination policy unreasonable due to failure to consult

On 7 October 2021, BHP announced that the workforce at its Mt Arthur coal mine in the NSW Hunter region would have to be partially vaccinated against COVID-19 by 10 November 2021 and fully vaccinated by the end of January 2022 as a condition of entry to its worksite. At the time, the NSW government had not implemented workplace mandatory vaccination requirements which impacted BHP.

The Construction, Forestry, Maritime, Mining and Energy Union on behalf of its members at the site, as well as other workers brought a dispute to the Fair Work Commission (FWC) stating that this vaccination requirement was not a lawful direction, because BHP had not consulted with its workforce prior to the introduction of the policy in breach of consultation requirements under work health and safety (WHS) laws and the applicable Enterprise Agreement.  It was claimed that the introduction of the vaccination requirement was made without any real consultation, and was presented to employees as a “fait accompli”.

BHP’s position was that it had a duty under WHS laws and at common law to ensure, so far as is reasonably practicable, for the health and safety of its employees and other persons.  In introducing its policy, BHP submitted it:

  1. Took steps to educate its workforce and promote vaccination when it became available.
  2. Employs COVID-19 controls at the mine.
  3. Conducted a risk assessment which led to a recommendation that COVID-19 vaccination be a condition of entry to BHP workplaces.
  4. Began a process of consultation between 31 August 2021 and 7 October 2021 with employees and their representatives, which included engaging with unions and setting up a ‘vaccine mailbox’.
  5. Continued to consult during the ‘implementation phase’ between 7 October 2021 and 10 November 2021.

It is important to note that while the parties had different views regarding consultation, it was not disputed that COVID-19 is a significant hazard in the workplace and the COVID-19 vaccine is safe, and the most effective and efficient control available to combat the risks of COVID-19.

The Decision

The Full Bench held employees were not given a reasonable opportunity to express their views and to raise work health and/or safety issues, or to contribute to the decision-making process relating to BHP’s decision to introduce the vaccination requirement. Further, it held that little, if any, information was provided to employees about the risk assessment that was undertaken, unions and health and safety representatives were not involved in consultation in any meaningful way and established mechanisms such as health and safety committee meetings were not used.

As such, the Full Bench was not satisfied that BHP had met its consultation obligations under WHS laws prior to the announcement of the site access requirement on 7 October 2021, and considered the inadequacy of the consultation was relevant to the reasonableness of the vaccination requirement.

It is important to emphasise that the Full Bench considered the vaccination requirement on its face was lawful taking into account a range of factors including those pertaining to the COVID-19 pandemic. However, the deficiencies in the consultation rendered the vaccination requirement an unreasonable direction.  The Full Bench indicated that had BHP consulted adequately with employees, there would have been a strong case in favour of the vaccine mandate being a lawful and reasonable direction.

An important factor in this decision was that at the time the policy was introduced, there was no public health order in place requiring BHP to ensure its employees are vaccinated against COVID-19.  If this was the case, the vaccination requirement would likely have been reasonable despite consultation shortcomings.

As a result of this decision, BHP has released a statement confirming it is working with the FWC and unions on further workplace consultation to enable the introduction of the COVID-19 mandate at the McArthur coal mine.

Lessons for Employers:

While BHP was unsuccessful in this case, the Full Bench’s decision clearly demonstrates that employers can implement lawful COVID-19 vaccination mandates within their workplace beyond government requirements provided that any consultation obligations under WHS laws or industrial instruments (enterprise agreements, employment contracts etc) are properly met.

Helpfully, the Full Bench outlined its preferred approach to be adopted by employers in introducing a lawful and reasonable vaccination policy as follows:

  1. Providing employees with reasonable opportunities to express their views and contribute to the decision-making process relating to a decision to introduce such a policy.
  2. Sharing adequate information with employees about the proposed policy, prior to any definite decision being made to introduce the policy.
  3. Taking care with the language used in correspondence with employees during the consultation phase to ensure it does not allude to a definite decision having already been made to introduce the policy.
  4. Involving health and safety representatives and unions (where applicable) in the consultation process.

Please contact HR Legal if you would like to discuss your consultation obligations or would like further advice on mandatory vaccination.

Link to decision: Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.