Fair Work Commission finds BHP's COVID vaccine mandate at NSW mine ‘unreasonable’

The Full Bench of the Fair Work Commission (FWC) has found that the decision made by mining giant BHP to mandate COVID-19 vaccinations at its Hunter Valley mine was not lawful and reasonable.

Facts

Last month, more than 30 employees of Mt Arthur Coal Pty Ltd (the Respondent), a member of the BHP group of companies, were stood down after they could not provide evidence of their COVID-19 vaccination status. The dispute concerned an announcement by the Respondent released on 7 October 2021, requiring all workers to be vaccinated against COVID-19 as a condition of entry to the mine site (Site Access Requirement).

The main union representing coal miners, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) opposed the mandate, primarily arguing that it was unlawful and unreasonable. The premise of their argument was based on the fact that the Site Access Requirement was announced without complying with the consultation requirements in the Work Health and Safety Act 2011 (NSW) (WHS Act) and the Mt Arthur Coal Enterprise Agreement 2019 (Agreement).

The Respondent’s primary contention was that it had the duty of care under WHS Act and at common law to ensure the health and safety of its employees and other persons. Therefore, a direction that has, as its object and purpose to protect the health and safety at work of the Respondent’s employees and other people at the mine, was arguably lawful and reasonable.

This decision dealt with the implications of an employee’s obligation to comply with a direction by their employer, and whether the Site Access Requirement was lawful and reasonable in light of the Respondent’s statutory obligations.

Decision

The statutory proposition was that employees are required to comply with employer directions which are lawful and reasonable. Thus, the basis for the Site Access Requirement must derive from the term implied into all contracts of employment. The Full Bench of the FWC accepted that the requirement to be vaccinated was, prima facie, lawful, primarily because there was nothing ‘illegal’ or unlawful about getting vaccinated. On the question of whether a direction was reasonable, the decision turned on whether the Respondent discharged its consultation obligations under the WHS Act and the Agreement.

Sections 47 to 49 of the WHS Act requires employers to consult with workers (and their health and safety representatives, if applicable) who are likely to be directly affected by a matter relating to work health or safety when making decisions or proposing changes that may affect the health or safety of workers. Workers need to be given a reasonable opportunity to express their views in relation to the matter and to contribute to the decision-making process relating to the matter.

It was acknowledged that the Respondent kept employees well-informed of the health and safety benefits of the vaccination, and that it commenced a risk-assessment of the proposed Site Access Requirement. This also included correspondence with a number of unions and avenues for employees to provide feedback.

However, the final announcement on 7 October 2021 “was not that BHP ‘may’, ‘proposed to’ or ‘intended to’ introduce the requirement”. Instead, the announcement was that the requirement “will be introduced” [emphasis added]. The Full Bench of the FWC found that the employees were not given a reasonable opportunity to express their views, nor were they given any opportunity to access the risk assessment or the analysis that informed that assessment. The language of the announcement demonstrated that the decision was ‘irrevocable’ and therefore not open for reconsideration. In effect, the employees were only asked to comment on the ultimate question: should the Site Access Requirement be imposed?

In the event that there had been a failure to consult, the Respondent argued that compliance with its obligations was not determinative of the objective reasonableness of the direction given. The Full Bench of the FWC held that a requirement to consult carries a responsibility to give those consulted an opportunity to be heard and for any views expressed to be taken into account; it is not a mere perfunctory exercise. Thus, the deficiencies outlined above came to a telling conclusion that the Site Access Requirement was not a reasonable direction.

Had the Respondent consulted the employees in accordance with its consultation obligations under the Enterprise Agreement and the WHS Act, the considerations that the requirement was directed at ensuring the health and safety of workers, its proportionate response to the risk created by COVID-19, and its efforts in encouraging vaccination, would have provided a strong case in favour of a conclusion that the requirement was a reasonable direction.

Take Home Messages

It is acknowledged that some employers may face a difficult task in managing the risks for their workers in such a dynamic environment. Absent a public health order or an industrial instrument, the basis for an employee to be vaccinated as a condition of entry to their work premises must derive from the implied contractual term that employees ought to obey the lawful and reasonable directions of their employer.

Should employers wish to implement a policy relating to work health and safety, they must be aware of their consultation requirements under the WHS Act and their relevant enterprise agreement. This decision reinforces an employer’s duty to consult with their workers and health and safety representatives, and to document the consultation process. Importantly, the South Australian Work Health and Safety Act 2012 (SA) has identical provisions to those considered in this decision.

For such a direction to be reasonable, the consultation process must address the question of whether the requirement should be imposed. There should be an avenue for employees to express their views and raise work health and safety issues, or to contribute to the decision-making process to introduce the requirement. Employees should also be provided with information relating to reasons, rationale and data supporting the proposal. These are factors that make a consultation process reasonably practicable as required by sections 47, 48 and 49 of the WHS Act.

Should you have any queries in relation to this article, please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Virginia Liu on +61 8 8210 1279 or vliu@normans.com.au or Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au.