In a significant decision handed down last Friday (CFMMEU v Mt Arthur Coal [2021] FWCFB 6059), the Fair Work Commission held that a requirement or direction to comply with a mandatory vaccination policy at a BHP workplace was not a lawful and reasonable direction because the employer had not complied with its WHS consultation obligation. The Commission did indicate that, but for this, there was a strong case to support the policy. The requirement regarding mandatory vaccination at the site was found not to be reasonable because of the failure to consult with employees prior to its introduction.

The decision is also important for employers who have or plan to introduce their own mandatory vaccination policies (as distinct from compliance with relevant public health directions) because the Commission adopted a number of propositions about COVID-19, safety measures and vaccination.

Background

The dispute before the Full Bench of the Commission involved the CFMMEU, and a policy instituted at the Mt Arthur mine requiring employees to be vaccinated in order to enter the site (the Site Access Requirement). The Commission found that the employer had provided information to the relevant employees about vaccination but had not engaged with health and safety representatives nor had the employer asked employees to provide feedback or have input into the decision-making process.

The law

It is uncontroversial that employer vaccination policies can be enforced if the direction is both a lawful and reasonable direction. The Commission provided an analysis of the law in this area, noting that a lawful direction is one where an employee cannot be required to do something that is unlawful (such as driving an unregistered vehicle). For a direction to be reasonable it must ‘reasonable in all the circumstances’. This does not require that it is best practice. The Commission noted a range of ‘reasonable directions’ demonstrating their reach (these included a requirement that an employee attend an independent medical examination, and that an employee refrain from making public comments about the employer’s business).

The Commission decided that, on its face, the Site Access Requirement was lawful as it had the purpose of protecting the health and safety of those at work.

However, the Requirement was not reasonable because the employer did not comply with obligations under the Work Health and Safety Act 2011 (NSW) (and replicated in the same or similar form in other jurisdictions) to consult with relevant workers before the decision was made.

The consultation provisions in WHS and OHS legislation are broad, and whilst rarely the subject of a safety prosecution, this decision underlines the importance of compliance. Most employers will have Health & Safety Committees and/or Health & Safety Representatives and policies that require consultation through these bodies.

The Commission found that the employer in this case had proceeded on the basis that consultation was not required prior to a decision being made. It noted that an employer must provide an opportunity for workers to be heard and then take those views into account, and be open to changing the decision. Consultation does not involve a right to veto but it must happen before an employer has already made a definite decision. The employer in this case was not required to share its risk assessment with employees, but it did need to share information about what matters it had taken into account.

Importantly the Commission hypothesised that consultation may be truncated in some circumstances, ‘so far as reasonably practicable’, for example if there was a surge in cases, an increase in the risk of transmission or a new variant.

The Commission noted the different nature of consultation obligations under the applicable enterprise agreement (on its effects after a 'definite decision' has been made) but given its decision on WHS legislative obligations about consultation, it did not find it necessary to express a concluded view. Importantly though, the Commission did consider that the introduction of such a policy would be a 'major change' having a 'significant effect' on employees.

Bodily integrity

The Commission, consistent with the recent decision of the Supreme Court of New South Wales in Kassam v Hazzard [2021] NSWSC 1320, determined that a requirement to be vaccinated did not infringe the right to bodily autonomy and integrity because employees had a choice as to whether or not be vaccinated.

Will the Commission uphold a mandatory vaccination policy?

The Commission indicated to the parties that it would be possible for the employer to now consult with a view to adopting the Site Access Requirement from 15 December 2021, and that the Commission was willing to facilitate a discussion about consultation in this case.

The Commission did not indicate one way or the other that the Site Access Requirement would have been reasonable if consultation had occurred. It did say that there were a range of factors that weighed in favour of such a finding including:

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.

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.

This reasoning suggests that if an employer has conducted a proper risk assessment, has a reasonable basis for requiring employees to work in or return to a shared workplace and has consulted pursuant to both the WHS/OHS legislation and any relevant industrial agreements, their mandatory vaccination policy will be found to be a lawful and reasonable direction.

What did the Commission say about COVID-19 and vaccinations?

Of particular interest for most employers will be the propositions accepted by the Commission. These may be of use when talking about vaccination with employees and to address those who cite the minority decision in Kimber v Sapphire Coast [2021] FWCFB 6015 as authority for the proposition that the Commission has determined that mandatory vaccination policies are unlawful and/or discriminatory. We’ve cited these in full as they may be useful as part of any safety communication and messaging.

The Commission accepted the following factual propositions (at [29]):

1. COVID-19 involves a high burden of disease, greater than influenza.

2. Any infected person is at risk of developing serious illness from the virus, which may lead to death.

3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants.

4. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant.

5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.

6. All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.

7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.

8. While other measures, such as mask wearing and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection.

9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.

10. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times).

And at [60]:

1. Herd immunity will never be achieved.

2. A vaccinated person can be infected with COVID-19.

3. A vaccinated person who is infected can efficiently transmit the virus.

4. Vaccination shortens the period when a person is infectious, for which reason vaccination reduces the overall risk of infection.

5. Notwithstanding that vaccination reduces the overall risk of infection, there is still a risk that an unvaccinated person will be infected.

6. Once a vaccinated person is infected, there is a substantially reduced risk of serious illness or death.

7. Once an unvaccinated person is infected, there is no such control against the risk of serious infection or death. Vaccination is the only protection against serious illness or death, the only control that protects against serious illness or death once a person is infected.

8. Vaccination is the most effective control measure currently available.

In response at [61] to the argument that higher rates of vaccination decrease the risks to an unvaccinated person (hence making the requirement for mandatory vaccination less necessary), the Commission noted:

It follows, as a matter of logic, from this proposition that higher rates of vaccination decrease the chance that an unvaccinated person will acquire COVID-19 because an unvaccinated person is less likely to acquire COVID-19 from a vaccinated person than an unvaccinated person. In this sense, higher rates of vaccination do decrease the risks to an unvaccinated person. However…higher rates of vaccination do not remove the risk of COVID-19 infection for unvaccinated workers. That is because unvaccinated workers are at risk of catching COVID-19 from other unvaccinated workers and fully vaccinated workers, who can acquire COVID-19 and efficiently transmit the disease to others. Indeed, unvaccinated people are more likely to acquire COVID-19 compared with vaccinated people. Further, unvaccinated workers on a work site increase the risk of spreading COVID-19 to vaccinated workers and other unvaccinated workers. In turn, those persons are at risk of spreading COVID-19 outside the workplace to their families and friends.

Lastly, the Commission noted at [245] that:

We have earlier accepted that the rates of infection of COVID-19, in the Hunter Region and throughout Australia, will increase over time. It is inevitable that everyone who works on the Mine will come into contact with someone – probably many people – who are infected …When COVID-19 does so spread, those who remain unvaccinated are at greatest risk of acquiring COVID-19, becoming seriously ill or dying from acquiring COVID-19, and infecting other people with whom they come into contact.

Takeaways for employers

Our advice to employers considering a mandatory vaccination policy has been consistent and is line with the Commission’s reasoning. Employers must:

• Undertake a risk assessment
• Consult (under both WHS/OHS law and in accordance with any industrial agreements) prior to the adoption of a policy
• Carefully consider exemptions, including whether you would ever permit any employees to work from home on a permanent basis (noting that this may mean they do not attend training or social events, and considering the psychosocial and other risks of such an arrangement and the impact on workplace culture)
• Support affected employees who may be very anxious about the adoption of such a policy
• Undertake any disciplinary action for a failure to comply with a mandatory vaccination policy as you would for any disciplinary action, ensuring procedural fairness and ensuring there is a valid basis for your decision.