Consultation COVID 19 vaccine

Issued: 14 December 2021

Consultation is essential to a successful COVID-19 vaccine mandate

CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059

The Full Bench of the Fair Work Commission (FWC) recently held that a direction which required workers at the Mt Arthur coal mine to be vaccinated against COVID-19 was not a lawful and reasonable direction as the Employer, Mt Arthur Coal Pty Ltd, had not complied with its consultation obligations in the Work Health and Safety Act 2011 (WHS Act). The decision emphasises the importance of engaging in meaningful consultation with workers, health and safety representatives and industrial organisations prior to deciding to impose a COVID-19 vaccine mandate. 

Key points

• Prior to deciding to introduce a COVID-19 vaccine mandate, employers must comply with their consultation obligations in ss. 47-49 of the WHS Act and any other consultation requirements in applicable industrial instruments.

• To enable genuine consultation to occur, employers should provide workers with all relevant information about a proposed change and invite employees to contribute ideas or suggestions about the decision-making process and the rationale underpinning the proposed change.

• Failure to properly consult could give rise to industrial disputes (as in this case). However, it could also be relevant to an industrial tribunal’s assessment of whether a direction to be vaccinated is lawful and reasonable in proceedings which challenge disciplinary action taken in relation to an employee for failing to be vaccinated.

Background

In November 2021, the Construction, Forestry, Maritime, Mining and Energy Union applied to the FWC under s. 739 of the Fair Work Act 2009 (FW Act) for it to deal with a dispute about a site access requirement that was to be implemented at the Mt Arthur coal mine. The site access requirement provided that, to enter the worksite, employees must have had one dose of a COVID-19 vaccine by 10 November 2021 and must be fully vaccinated by 31 January 2022 (Direction).

The subject of dispute was whether the Direction, which was understood to be a vaccination mandate, was a lawful and reasonable direction.

The decision

The FWC found that the Direction was lawful, but not reasonable. In considering whether the direction was reasonable, the FWC had particular regard to whether the Employer complied with its consultation obligations under both the WHS Act and the applicable Enterprise Agreement: [191].

Consultation under WHS Act

The FWC observed that consultation under the WHS Act is to occur prior to implementation of a change and that genuine consultation cannot occur if the offer to consult is made after an employer has already decided to make the change or if the change has already been implemented: [103], [108] and [113]. *Citing Consultation clause in modern awards [2013] FWCFB 10165 at [35] and Construction, Forestry, Mining and Energy Union v The Newcastle Wallsend Coal Company Pty (1998) 88 IR 202 at 218.

The FWC found that the steps taken by the Employer prior to the Direction being issued were not sufficient to discharge its obligation under the WHS Act to consult with workers as far as is reasonably practicable: [174]. Relevantly, prior to the Direction being issued, the Employer had provided employees with substantial information about COVID-19 and vaccines; it had invited employees to provide questions and comments on the Proposed Direction to a specific email address; and had corresponded with unions about the proposed Direction: [147], [149], and [152].

Despite this, the FWC found that genuine consultation did not occur as employees were not provided with the reasons, rationale and data supporting the proposal ([174]) nor were they asked "to contribute ideas or suggestions in relation to the decision-making process or the risk assessment or rationale that underpinned the decision to introduce the [Direction]": [150]. The FWC also found that there was no meaningful consultation with health and safety representatives as is required by s. 48(2) of the WHS Act: [175].

Factors which suggest that the Direction is reasonable

The FWC identified several considerations which it considered weighed in favour of a finding that the Direction was reasonable. These considerations relevantly included that: the Direction was a reasonably proportionate response to the risk created by COVID-19; it was developed having regard to the fact that workers cannot work from home and come into contact with other workers whilst at work; and, the timing for its commencement was determined by reference to circumstances pertaining in NSW and the local area at the relevant time: [252].

Conclusion

The FWC ultimately found that the Direction was not reasonable as the Employer had not complied with its consultation obligations under the WHS Act: [265]. As a result of this conclusion, the FWC did not need to form definitive views on whether the Employer had complied with its obligations under the Enterprise Agreement and the Privacy Act 1988 (Cth): [136], [214].

Importantly, it noted that, but for its failure to comply with its consultation obligations, the Employer had a strong case in favour of a conclusion that the Direction was reasonable: [251], [253].  

Implications for employers

The decision highlights the significance of an employer's consultation obligations under the WHS Act and any applicable industrial instrument. Employers seeking to implement a COVID-19 vaccine mandate should ensure that they properly consult with workers prior to determining to implement such a mandate. The consultation should provide employees a genuine opportunity to persuade the employer about whether the mandate should be introduced. To enable this to occur, employees should be provided with sufficient information about the rational underlying the proposed decision. The reasonableness of any particular direction (and the nature of any consultation) will depend significantly on the particular employer and the circumstances of the direction in question.

Whilst this decision is particularly relevant for national systems employers, the reasoning process is also likely to be persuasive in disputes or unfair dismissal proceedings in the NSW Industrial Relations Commission.

Contacts

Marina Rizzo, Director
marina.rizzo@cso.nsw.gov.au
02 9474 9156

Sophie Roden, Senior Solicitor
sophie.roden@cso.nsw.gov.au
02 9474 9546

Last updated:

16 Nov 2022

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