COVID-19 | Fair Work Commission finds lack of consultation means Mt Arthur Mine vaccine mandate unreasonable

A recent decision of the Full Bench of the Fair Work Commission has found that a failure by BHP to adequately consult with its workforce before requiring workers to have received a COVID-19 vaccination as a condition of entry to the Mt Arthur open cut coal mine (Mt Arthur Mine) was unreasonable. The case, (Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd trading as Mt Arthur Coal [2021] FWCFB 6059) provides useful and important guidance for employers mandating COVID-19 vaccination requirements in the workplace.

Background to the decision 

On 7 October 2021, Mt Arthur Coal Pty Ltd (Mt Arthur), a member of BHP group of companies (BHP), announced a direction that all workers on the Mt Arthur Mine were required to be vaccinated against COVID-19 as a condition of site entry (Site Access Requirement) including that workers:

• must have a single dose of a COVID-19 vaccination by 10 November 2021; and
• be fully vaccinated against COVID-19 by 31 January 2022.

Workers were directed to provide evidence of their vaccination status and in the event they could not meet this requirement, they would not be permitted access to the Mt Arthur Mine.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Mr Howard brought an application asking the Full Bench to decide whether the direction to be vaccinated against COVID-19 as a condition of entry was a lawful and reasonable direction in respect of those workers covered by the Mt Arthur Coal Enterprise Agreement 2019.

We note that mining workers in New South Wales were not (and are not currently) subject to a government public health order or direction which required COVID-19 vaccination in order to attend the workplace.

What did the Full Bench decide? 

The Full Bench found that the Site Access Requirement was lawful because:

• it fell within the scope of the employment; and
• there is nothing ‘illegal’ or unlawful about becoming vaccinated.

It also considered that there were a range of factors that weighed in favour of determining the Site Access Requirement was reasonable:

• it was directed at the health and safety of workers;
• it had a logical and understandable basis;
• it was a reasonably proportionate response to the risk of COVID-19;
• it was developed having regard to the circumstances at the Mt Arthur Mine including that workers could not work from home and would come into regular contact with others while working;
• the time for commencement was determined by reference to circumstances in New South Wales and the local area; and
• it was implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers.

However, the Full Bench also found that the Site Access Requirement enlivened consultation obligations under the Work Health and Safety Act 2011 (NSW) (WHS Act) and that the Mt Arthur Mine was within the scope of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW). As such, Mt Arthur was required, so far as reasonably practicable, to consult with workers who carry out work at the site, or who are likely to be directly affected by the requirement and any mine health and safety representative.

The Full Bench found that workers were not given a reasonable opportunity to express their views, raise work health and safety issues, or contribute to the decision making process relating to the Site Access Requirement and as such, found it was unreasonable.

The Full Bench commented that had Mt Arthur consulted with workers in accordance with its consultation obligations, the range of factors provided a strong case in favour of the Site Access Requirement being a reasonable direction.

Interestingly, the Full Bench further stated that Mt Arthur could cure its failure to comply with its consultation obligations, and if it did so prior to 15 December 2021 (in line with the New South Wales roadmap when the state is set to relax various COVID-19 restrictions for unvaccinated persons), Mt Arthur could properly impose the Site Access Requirement.

What does this mean for employers?

Whilst the decision was decided based on New South Wales legislation, similar legislative provisions apply in other states and territories. As such, where employers seek to introduce a policy or procedure making COVID-19 vaccination a condition of entry to the workplace and the employers are not subject to a public health order or direction, employers should ensure compliance with their legislative consultation obligations in the following way:

• setting out the background and context of any proposed requirement as to why a certain policy or procedure may be introduced (including any legal basis for such);
• involving applicable work health and safety representatives and/or health and safety committees;
• providing workers with an opportunity to consult in a meaningful way prior to the implementation of such a policy or procedure, including by giving workers a reasonable opportunity to:
  • express their views and raise work health or safety issues; and
  • contribute to the decision making process;
• ensure that the views of such workers are taken into account; and
• ensure workers involved in consultation are advised of any outcome in a timely manner.

For employers subject to a public health order or direction which requires workers to be vaccinated against COVID-19 in order to attend the workplace, it is still considered best practice to consult with workers prior to any COVID-19 vaccination deadlines.

Gadens is able to assist you with any queries you have in respect of vaccination policies or procedures, or any relevant obligations under public health orders, directions or legislation.

For details of all our COVID-19 tips and updates, visit the Gadens COVID-19 Hub.

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Authored by:

Deivina Peethamparam, Partner
Nakita Rose, Lawyer