BHP lose Mandatory Vaccination case – but Employers still have options

The Fair Work Commission Full Bench decision of Construction, Forestry, Mar­itime, Min­ing and Ener­gy Union & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 (BHP Case) saw BHP have their mandatory vaccination direction overturned by the Fair Work Commission.  It is a significant decision in regard to how COVID-19 vaccine policies and directions should be rolled out not so much a support for the vaccinations not going ahead or that an employer would not be allowed to direct an employee to do so.

In a nutshell

Mt Arthur is a member of the BHP Group of companies and manages a coal mine in the Hunter Valley. On 7 October 2021, Mt Arthur announced a site access requirement that employees will need to have had at least one dose of the COVID-19 vaccine by 10 November 2021 and be fully vaccinated by 31 January 2022. The CFMMEU made an application to the FWC, in accordance with the dispute resolution procedure in the Enterprise Agreement.

  1. Options phase – prior to August 31 2021
    • Commenced an education program and promoted the COVID-19 vaccination to all employees across its Australian operations
    • Regular circulation of announcements and videos regarding the COVID-19 vaccine, including benefits and misconceptions and how the employees can book a vaccine appointment
    • On August 21, options analysis was submitted to the MinAU EMT senior leadership team, which led to a recommendation that COVID-19 vaccination be a condition of entry to BHP workplaces in Australia
  2. Assessment phase from 31 August 2021 – 7 October 2021
    • BHP announced that it was actively assessing whether to make vaccination a condition of entry to BHP workplaces in Australia
    • BHP set up a central mailbox (Vaccine Mailbox) for the use of employees to ask questions and make comment regarding the proposed introduction of the Site Access Requirement. Approximately 20 inquiries were made by Mt Arthur employees
    • Correspondence was received from a number of unions regarding the proposed requirement, which BHP responded to
    • Employees provided feedback through other avenues
    • Members of BHP’s COVID-19 Vaccination Working Group assessed and collated the questions and comments received from employees and witnesses
  3. Implementation phase commenced 7 October 2021 – 10 November 2021
    • BHP announced that the vaccine requirement would be implemented at all of BHP’s workplaces across Australia

Why did BHP lose?

In a few words – lack of meaningful consultation with employees.

There was a lot of information and content provided to employees however less value or even consideration was put on:

  • Employees being able to access the information
  • Employee feedback on the direction
  • Employee feedback on the implementation phase
  • Ill consideration of workplace health and safety considerations

The Fair Work Commission also disliked:

  • The language used in the ultimate decision – namely that it was irrevocable and not amendable to further consultation
  • The question put to the employees “should the Site Access Require­ment be imposed?” without further context to back a potential decision
  • Non-provision of the following information to employees during the process:
    • Rationale
    • Reasons
    • Data supporting the proposal

However, the Fair Work Commission were careful to say that, had the employees been properly consulted the direction would have been a reasonable direction.

Had the Respon­dent con­sult­ed the Employ­ees in accor­dance with its con­sul­ta­tion oblig­a­tions − such that we could have been sat­is­fied that the deci­sion to intro­duce the Site Access Require­ment was the out­come of a mean­ing­ful con­sul­ta­tion process – the above con­sid­er­a­tions would have pro­vid­ed a strong case in favour of a con­clu­sion that the Site Access Require­ment was a rea­son­able direc­tion.”

Construction, Forestry, Mar­itime, Min­ing and Ener­gy Union & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 at 253

What does this mean for Employers?

Consultation – Consultation – Consultation.

It is going to be integral.

Most modern awards and enterprise agreements have major workplace change provisions and complying with these provisions through genuine consultation is not merely compliance with the industrial instrument but also clear by the Full Bench that it is required.

In a consultation consider the following:

  • What is the rationale and reasons behind the direction for the mandatory vaccinations?
  • What information should be provided to support this?
  • How will the information be communicated? (a “Vaccine Mailbox” is not enough)
  • Has the information reached all employees effected?
  • How will this be evidenced?
  • Is there a mechanism for feedback to be provided by employees in a genuine way?
  • How will this be considered – what is the approach and how will this be evidenced?
  • What other information needs to be provided?
  • Can the timeline for implementation be lengthened to avoid arguments of a rushed process?

Are you about to enter into a consultation process?

Need to do one?

Reach out via service@nb-lawyers.com.au or +61 (07) 3876 5111 to book an obligation free consultation.   

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Written By   

Jonathan Mamaril   

Director  

NB Lawyers – Lawyers for Employers   

jonathanm@nb-lawyers.com.au   

 +61 (07) 3876 5111 

Jonathan Mamaril, Director, NB Lawyers – lawyers for employers

Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability.  With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars.

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