On Friday, 3 December 2021, a five-member Full Bench of the Fair Work Commission ruled that a BHP subsidiary’s exclusion of employees who did not provide evidence of COVID vaccination from its coal mine was unreasonable. This was because it had not complied with the consultation requirements under work health and safety legislation before deciding on its compulsory vaccination policy. The ruling makes clear that WHS consultation obligations are much more extensive than award (and usually agreement) obligations and are triggered when the decision to impose the vaccine requirement is a company safety decision. The decision does not affect exclusions based on public health orders.
The decision In Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal, the FWC had been asked to settle a dispute under an enterprise agreement. The question to be arbitrated was:
‘Whether the direction … is a lawful and reasonable direction in respect to employees at the Mt Arthur mine who are covered by the Mt Arthur Coal Enterprise Agreement 2019.’
The FWC found that:
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.
Mt Arthur coal is now required to further consult its workforce, although the exclusion can remain in place during that process:
Mt Arthur’s failure to comply with its consultation obligations under the WHS Act is the major consideration which led us to conclude that the Site Access Requirement was not a lawful and reasonable direction. The consultation deficiencies we have identified can be addressed by Mt Arthur consulting the Employees in relation to the question of whether or not the Site Access Requirement should be imposed at the Mine. [emphasis added]
Key takeaways The case was complex and there was a lot of evidence about the risk-based nature of the decision, issues around privacy of vaccination information, and whether the requirement constituted unlawful coercion. There are some key points employers should be aware of.
The ruling has no relevance to exclusions arising from government orders.
If the decision is based on an organisation’s health or safety risk management, genuine consultation must occur before making the decision to have a mandatory vaccination policy.
Risk assessments will need to be objective and shared with employees as appropriate to their roles.
There are Privacy Act requirements around the collection and retention of employees’ vaccination status.
Next steps We urge any employer contemplating a mandatory vaccination policy for reasons other than a government direction to take advice on the learnings from this case. If you require further information or advice, please contact your Consultant.
  FWCFB 6059.
 para 251.
EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.