On Friday 3 December 2021 a Full Bench of the Fair Work Commission (FWC) handed down the most significant decision to date on employer-mandated COVID-19 vaccination requirements.

In CFMMEU v Mt Arthur Coal, the FWC found BHP’s policy to restrict site access for unvaccinated employees did not meet consultation requirements and therefore was not reasonable.

Despite this, the Full Bench provided clear guidance for employers on how to effectively consult prior to implementing a COVID-19 vaccine policy, that would likely see it be considered both lawful and reasonable.

In that regard, the decision reaffirmed AMMA’s long-held view that employers have a clear pathway to mandate vaccines under Workplace Health and Safety (WHS) laws, irrespective of whether any public health order / direction is applicable, provided all legal procedures and requirements are met.

This article explores the key findings and lessons with respect to employee consultation from the Full Bench decision in Mt Arthur Coal.

Background Facts

Around 2000 workers are employed at the BHP-owned Mt Arthur open cut coal mine in the New South Wales Hunter Valley.

On 7 October 2021, the employer, Mt Arthur Coal Pty Ltd (‘Mt Arthur Coal’), announced the requirement that all workers at the mine would require vaccination against COVID-19 as a condition of site entry (‘Site Access Requirement’).

The requirement was that employees have at least one dose of an approved COVID vaccine by 10 November, and be fully vaccinated by 31 January 2022, and that evidence of vaccine status was required by those dates.

On 28 October the CFMMEU, representing 724 employees who were covered by the Mt Arthur Coal enterprise agreement, made an application for the FWC to deal with a dispute under that agreement.

The CFMMEU’s application contended that the Site Entry Requirement was not a lawful direction on the basis Mt Arthur Coal has introduced it without complying with consultation requirements under the Work Health and Safety Act 2011 (NSW) (WHS Act); consultation obligations in the agreement; obligations under the Privacy Act 1988 (Cth); and that the direction impaired the employees’ right to “bodily integrity”.

The Full Bench focused predominately on the WHS consultation obligations, with only passing findings and observations issued on the other matters.

(Note: while not included as relevant facts in the Full Bench decision, on November 11 it was widely reported in the media that anywhere between 50-80 employees had been stood down without pay at the mine due to their failure to comply with the requirement.)

What are the consultation requirements within WHS laws?

The NSW WHS Act contains, at sections 47 to 49, broad duties for a person conducting a business or undertaking (PCBU) to consult “so far as is reasonably practical” with workers who are likely to be affected by a matter relating to work health or safety.

The consultation provisions cover almost all conceivable WHS activities including when identifying hazards, assessing risks, making decisions to eliminate those risks and when proposing changes that may affect the health or safety of workers.

The nature of consultation requires PCBUs to provide relevant information to their workers, give them reasonable opportunity to provide their views, take their views into account and advise them of the outcome in a timely manner.

Where workers are represented by a health and safety representative, the consultation must include that representative.

Following efforts to nationally harmonise Australia’s WHS laws, the consultation provisions in the NSW WHS Act are near-identical to those in every other state and territory (even in Western Australia and Victoria, which are yet to fully adopt the model WHS laws).

How did BHP attempt to meet its consultation obligations?

BHP argued to the Full Bench that it did comply with its requirements under the WHS Act.

It submitted that during the early “options phase” (prior to 31 August), it commenced an education program and promoted the benefits of COVID-19 vaccination to all of its employees across its Australian operations.

In the second “assessment” phase (31 August to 7 October), BHP submitted that it set up a central mailbox for all its employees (including those at Mt Arthur Coal) to ask questions and express their views.

Members of BHP’s COVID-19 Vaccination Working Group collated, assessed and responded to questions and comments from employees and their representatives which included several unions.

On this period before the policy was announced, the Full Bench observed that it was “clear that BHP and Mt Arthur provided employees with a substantial amount of information about COVID-19 both prior to and during the assessment phase”.

“This information included updates on the local COVID-19 situation, local vaccination rates and various communications and measures to encourage employees to get vaccinated,” the Full Bench said.

However the Full Bench viewed the language used by BHP’s leadership as indicating the company did not consider consultation was required prior to the decision being made. By way of example it highlighted the following email announcement by BHP’s Minerals President Edgar Basto:

“We understand that this will generate a lot of questions, and potentially some concern, and are committed to ongoing discussion and engagement with you about the details of the finalised policy should a decision be made to introduce such a requirement.”

The Full Bench also observed there was no evidence that direct engagement with HSRs took place during the assessment phase. This could have included some discussion about the possibility of mandating COVID-19 vaccines during earlier health and safety meetings.

From October 7 (“implementation phase”), BHP said consultation and engagement continued through the same channels but with focus turning to the implementation of the Site Access Requirement.

The Full Bench viewed more favourably the activities utilised during the implementation phase, which included:

  • toolbox meetings with employees
  • meetings of the various health and safety committees
  • the provision of some information about the risk assessment underpinning the Site Access Requirement (the BHP Rationale document), and
  • meetings between the unions and BHP to discuss concerns about implementation of the Site Access Requirement.

“These meetings and interactions which occurred after the announcement of the Site Access Requirement on 7 October 2021 are much more closely aligned with what would be expected during a consultation process pursuant to ss. 47 and 48 of the WHS Act in that Employees were provided with an opportunity to meaningfully engage with the relevant issues and their feedback was sought and considered,” the Full Bench said.

However, the Full Bench noted these activities occurred after a definite decision had been made to implement the Site Access Requirement.

Why did BHP’s consultation fail the FWC?

The Full Bench ultimately agreed with the CFMMEU’s characterisation of BHP’s actions prior to and when announcing the policy – that it was made without any real consultation and presented to employees as a fait accompli.

“In our view, the employees were not given a reasonable opportunity to express their views and to raise work health or safety issues, or to contribute to the decision-making process relating to the decision to introduce the Site Access Requirement,” the Full Bench said.

“They were not provided with information relating to the reasons, rationale and data supporting the proposal… Although substantial information was provided about COVID-19, little if any information was provided to employees about the risk assessment that was undertaken, such as an evaluation that the existing control mechanisms were of limited effectiveness.”

The Full Bench found that in effect, the employees at Mt Arthur Coal were only asked to comment on the ultimate question: “should the Site Access Requirement be imposed?”

It found there was no real explanation provided as to why BHP’s level of engagement during the assessment phase was “stark” in comparison to that during the implementation phase.

The Full Bench inferred employees should or could have been asked to contribute ideas or suggestions in relation to the decision-making process or the risk assessment or rationale that underpinned the decision.

It was also somewhat critical of BHP’s argument that “no new scientific, medical or safety data” was provided during the consultation process that might alter the risk assessment, given employees were not invited to offer such data or information nor told that it may influence the process.

Does ‘consultation’ mean gaining approval?

Importantly, the Full Bench was clear that the requirements to consult under WHS laws was not “an exercise in collaborative decision-making” and did not provide a right of veto to those affected.

Rather, it is important simply to demonstrate that meaningful consultation occurred:

“An ordinary understanding of the word “consult” would suggest that the obligation to consult does not carry with it any obligation either to seek or to reach agreement on the subject for consultation,” the Full Bench said.

“All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made.”

Some important principles were, however, reinforced from relevant case law, including:

  • consultation needs to be real; it must not be a merely formal or perfunctory exercise;
  • the requirement to consult affected workers would not be satisfied by providing the employees with a mere opportunity to be heard;
  • the requirement involves both extending to affected workers an opportunity to be heard and an entitlement to have their views taken into account when a decision is made; and
  • it is implicit in the obligation to consult that a genuine opportunity be provided for the affected party to attempt to persuade the decision-maker to adopt a different course of action. If a change has already been implemented or if the employer has already made a definite or irrevocable decision to implement a change then subsequent ‘consultation’ is robbed of this essential characteristic

Was BHP’s vaccine direction otherwise lawful?

Outside of the consultation issues, it is highly encouraging for employers that the Full Bench found BHP’s Site Entry Requirement would otherwise have been both lawful and reasonable.

The matter involved significant evidence provided by BHP on the risks and hazards of COVID-19 to its workplaces, focusing in particular on Mt Arthur Coal with NSW soon to relax or completely remove pandemic related restrictions in the community broadly.

The Full Bench found there was nothing unlawful about requiring employees to be vaccinated in order to access a particular worksite, and that there were “a range of directions open to an employer within the bounds of reasonableness” when it comes to exercising its WHS obligations.

“To establish that a direction is reasonable it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interest of the parties,” the Full Bench found.

Further, the Full Bench found “a range of considerations” that weighed in favour of a finding that the Site Access Requirement was reasonable, namely:

  • It is directed at ensuring the health and safety of workers of the Mine;
  • It has a logical and understandable basis;
  • It is a reasonably proportionate response to the risk created by COVID-19;
  • It was developed having regard to the circumstances at the Mine, including the fact that Mine workers cannot work from home and come into contact with other workers whilst at work;
  • The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time; and
  • It was only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the Mine.

“Had the Respondent consulted the employees in accordance with its consultation obligations… the above considerations would have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction,” the Full Bench said.

AMMA’s workplace relations experts are assisting members nationally with COVID-19 risk mitigation and all related policies and procedures.

To understand the implications of this significant case and/or for all other matters in relation to COVID-19 management, contact [email protected] or phone your local AMMA office.