General Takeaways

• Employers should ensure that all applicable consultation obligations have been complied with when implementing a workplace policy.
• Genuine consultation requires that affected employees are provided a reasonable opportunity to:
  • Question and raise concerns about issues connected to the proposed policy.
  • Persuade the employer the proposed policy is wrong and that a different course of action should be pursued.
• Unless a clear legal obligation requires otherwise, employers:
  • Do not have to compel employees to engage in a consultation process to ensure that the implementation of a workplace policy is a lawful and reasonable direction.
  • Can invite employee participation in a consultation process, and do not need to 'check off' that employees have participated in the process.
  • Do not need to provide paid time for consultation, particularly if a significant proportion of the employer’s workforce is part-time or casual.

The decision: Nightingale v Woolworths [2022] FWC 2848

In April 2022, Mr Nightingale challenged his dismissal from Woolworths as unfair on the basis that he did not need to comply with Woolworths’ Vaccination Policy (Policy). Relevantly, Mr Nightingale argued Woolworths’ consultation process prior to implementation of the Policy was inadequate, and therefore, the Policy was not a lawful and reasonable direction.

Reflecting on the decision of the Full Bench of the Fair Work Commission in CFMMEU v Mt Arthur Coal Pty Ltd (find our previous article here), Deputy President Easton acknowledged that deficiencies in an occupational health and safety consultation process prior to the implementation of a workplace policy can result in the policy failing to constitute a lawful and reasonable direction of an employer. However, DP Easton found that no such deficiency existed in respect of Woolworths’ consultation process, and ultimately, the termination of Mr Nightingale’s employment was considered fair.

In summary, DP Easton found:

• Despite Mr Nightingale’s argument to the contrary, there was no obligation on Woolworths to compel employees to participate in the consultation process
• it was not necessary that Woolworths provide Mr Nightingale with paid time for consultation
• Mr Nightingale had been provided ample opportunity to engage in the consultation process, which had been conducted through
  • 'WorkJam', a platform which provides broadcast posting, surveying and direct messaging functions
  • 'Townhall' meetings whereby staff were invited to submit questions to be put to a panel with the video being made available to the whole workforce
  • listening sessions with health and safety representatives and other nominated team members
  • correspondence with relevant unions
  • the provision of medical information relating to COVID-19 (in digestible form), the risks associated with contracting COVID-19, vaccination and the risks associated with vaccination, which included links and references to more detailed publicly available material (such as those provided by government health authorities).

Knowing what is required in order to satisfy consultation obligations under a modern award, enterprise agreement or under relevant workplace health and safety laws can be difficult, and will change depending on the nature of the policy you are looking to implement, the makeup of your workforce and the impact that the policy will have on your workplace.