FWC Full Bench finds BHP vaccine mandate unreasonable due to lack of consultation

By Karl Rozenbergs 

The Fair Work Commission Full Bench has held that a decision by BHP requiring all workers to be vaccinated against COVID-19 as a condition of site entry to its Mt Arthur coal mine in New South Wales (Site Access Requirement) was not a lawful and reasonable direction because BHP failed to properly consult with its workforce.

Background to the decision

In October 2021, BHP announced that its workforce would have to be fully vaccinated against COVID-19 by the end of January 2022. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged a dispute under the Mt Arthur Coal Enterprise Agreement 2019 (Agreement) on behalf of the some 30 miners who disputed the Site Access Requirement.

Following the decision last Friday^[1], BHP has become the first Australian company to have its vaccine mandate overturned.

The decision by the Full Bench

Was it a lawful and reasonable direction?

The Fair Work Commission Full Bench (FWCFB) outlined that in the absence of a public health order or express contractual terms to require its employees to be vaccinated to gain entry to the workplace, the legal basis for the direction could only come from the implied contractual term that employees obey the lawful and reasonable directions of their employer.

The FWCFB accepted that the object and purpose of the Site Access Requirement was to protect the health and safety of BHP’s Mt Arthur employees. Therefore, the FWCFB found the Site Access Requirement was a lawful direction because:

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

However, when considering whether the direction was reasonable, the FWCFB found that BHP failed to comply with its consultation obligations in accordance with sections 47 and 48 of the Work Health and Safety Act 2011 (NSW) (WHS Act).

The FWCFB ultimately held that BHP’s communication with its workers fell short of its consultation obligations, finding that BHP had merely asked employees whether the mandate should be imposed and did not provide information relating to the reasons, rationale and data supporting the proposal.

While there was some discussion regarding whether BHP complied with its consultation obligations under the Agreement, the FWCFB noted that, given it had made a finding that BHP failed to comply with its duty to consult under the WHS Act, it was not necessary for it to express a ‘concluded view’ on the issue.

Key lessons for employers

The FWCFB has provided clarity as to the minimum expectations in relation to a workplace vaccination mandate in circumstances where there is no applicable public health direction or expressed contract term, stating that if BHP had consulted mine workers in a reasonable way before it introduced the mandate, this would have ‘provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction’.

Importantly, the FWCFB noted that a range of factors weighed in favour of the Site Access Requirement being reasonable, including the following:

1. It is directed at ensuring the health and safety of workers.
2. It has a logical and understandable basis.
3. It is a reasonably proportionate response to the risk created by COVID-19.
4. It was developed having regard to the circumstances at the workplace, including the fact that workers cannot work from home and come into contact with other workers at the workplace.
5. The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time.
6. 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.

The decision is a timely reminder for employers that absent any State Government directions, public health orders or expressed contract terms, the requirement that an employee be vaccinated as a condition of site access must be a lawful and reasonable direction. Generally when the purpose of the direction is focused on ensuring the health and safety of the workforce it will be lawful. However, when determining whether a direction is reasonable, all relevant circumstances will be taken into account, including whether an employer has complied with consultation obligations under work, health and safety legislation.

This article was written with the assistance of Imogen Feder, Seasonal Clerk.

[1] Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059.