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The Fair Work Commission (FWC) recently decided against an employer mandating COVID-19 vaccinations when it ruled that a BHP group company, Mt Arthur Coal Pty Ltd (Mt Arthur), had not met its consultation obligations. The decision provides useful insight into consultation considerations when implementing a vaccine mandate, and highlights the importance of consultation as a crucial step to avoid potential litigation.

bhp vaccine mandate challenged

In October 2021, Mt Arthur mandated that all workers at its Mt Arthur coal mine in NSW must be vaccinated against COVID-19 by certain deadlines to attend the site. At the time, there were no public health orders in place in NSW which required mandatory vaccinations for workers attending the site. The timeframe given allowed employees just over a month to receive a first vaccination dose and required them to be fully vaccinated by the end of January 2022.

In November, a group of employees were stood down (without pay) as they had not provided Mt Arthur with the necessary vaccination information in accordance with the direction. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application to the FWC on behalf of employees covered by the relevant enterprise agreement to determine if the direction was “lawful and reasonable”.

was bhp’s vaccine mandate “lawful and reasonable”?

Broadly, the FWC found that the vaccination mandate satisfied the lawfulness requirement, but it was not reasonable, and therefore not a “lawful and reasonable” direction.

In reaching this conclusion, the FWC stated that “the reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant 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”.

bhp’s consultation process did not meet whs obligations

Although it was acknowledged that Mt Arthur had substantially met any relevant consultation obligations under the enterprise agreement (once a definite decision had been made to introduce the mandate), the FWC found that it had not met its consultation obligations under the Work Health and Safety Act 2011 (NSW).

In particular, the affected employees had not been provided with a meaningful opportunity to persuade the employer in relation to the proposed mandate during the assessment phase. Mt Arthur also failed to adequately consult with health and safety representatives and did not provide the employees with the reason, rationale and data supporting the proposed mandate, or give them any information about the risk assessment, which informed the decision to mandate vaccinations. The employees were only asked to comment on the ultimate question of whether the mandate should be imposed. The wording used in some of the consultation communications also weighed against Mt Arthur.

Notwithstanding the determination, the FWC stated that there were many factors that supported the mandate, including that it was a proportionate measure in relation to the risk created by COVID-19, the fact that miners cannot work from home and that it was implemented to ensure the health and safety of those attending the mine. It indicated that a vaccination mandate could still be implemented in a timely manner following a more adequate consultation process.

lessons for employers when introducing mandatory vaccinations

This decision provides guidance regarding the process and extent to which employers should consult with their workforce when considering vaccination mandates, in a way that will not undermine an otherwise lawful direction. As seen in this decision, a failure to adequately consult may be regarded as a key feature in determining the reasonableness of such a direction, particularly in the absence of public health orders or express terms in employment contracts or enterprise agreements that require vaccinations as a term of employment.

Irrespective of the impact on the reasonableness of a direction, employers must meet their consultation obligations under work health and safety laws and relevant industrial instruments.

If you are considering implementing a mandatory vaccination policy or would otherwise like advice in relation to this issue, please contact our Employment, Safety and Migration team for further advice.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.