Although many worksites of many employers are now subject to State Health Directions mandating vaccinations for onsite workers, many employers operating outside the scope of those directions have on their own discretion resolved to mandate vaccinations for their workers. The recent decision in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal [1] has provided some clarity in relation to the employer’s ability to provide employees with such a ‘lawful and reasonable’ direction requiring employees to be vaccinated against COVID-19.

Background

The case of Mt Arthur involved a dispute at the Mt Arthur coal mine and in particular the condition that all workers must be vaccinated against COVID-19 as a condition of site entry and to provide evidence of their vaccination status. No public health direction or order was in place mandating workplace vaccinations. Mt Arthur imposed the condition on the basis of a ‘lawful and reasonable’ direction.

The union (the CFMMEU) and an individual employee made an application to the Fair Work Commission challenging whether the site requirement was a ‘lawful and reasonable’ direction for employees working at Mt Arthur covered by Mt Arthur Coal Enterprise Agreement 2019 (Agreement).

Full Bench Decision

The Full Bench decided that the direction was lawful because it was within the scope of employment and there was nothing illegal or unlawful about becoming vaccinated. The Full Bench also approved the following factual propositions in relation to COVID-19 and the COVID-19 vaccination [2]:

• COVID-19 involves a high burden of disease greater than the flu;
• An infected person is at risk of developing serious illness which may lead to death;
• All available COVID-19 vaccines in Australia are:
  • Effective at preventing symptomatic infection;
  • Effective at reducing the risk of serious illness or death; and
  • Any adverse effects are usually mild – there is a much higher risk of developing serious complications and dying from acquiring COVID-19;
• An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person rather than a vaccinated person;
• Other control measures such as mask wearing and social distancing can reduce transmission but are not a substitute for the protections offered by vaccines, nor do they reduce the risk of developing serious illness caused by COVID-19;
• Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19; and
• 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).

There were a range of factors that weighed in favour of determining that the direction was reasonable including that it [3]:

• Is directed at ensuring the health and safety of workers of the mine;
• Has a logical and understandable basis;
• Is a reasonably proportionate response to the risk created by COVID-19;
• Was developed having regard to the circumstances of the mine, including the fact that mine workers cannot work from home and are require to come into contact with other workers whilst at work;
• Commenced with reference to the circumstances of community transmission in New South Wales and the local area; and
• Was implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers.

When determining reasonableness, the Courts will look at a range of factors and all the circumstances, including whether the employer complied with any relevant consultation obligations. The downfall with Mt Arthur was that it was found not to have complied with consultation obligations under the Work Health and Safety Act 2011 (NSW) (WHS).

While Mt Arthur was able to show that it did inform employees of the site requirement and had sought feedback about its implementation, the Full Bench found that the WHS legislation required consultation before the final decision was made. The language used in the communication to employees indicated that the decision in relation to the direction was ‘irrevocable’ and ‘not amenable to consultation’.

The Full Bench concluded that Mt Arthur had failed to meaningfully consult with the employees and therefore the direction was not reasonable.

What does this mean for employers wanting to issue a lawful and reasonable direction to employees in relation to the COVID-19 vaccine?

While vaccine-uptake is generally high amongst most employees, many employers are still experiencing difficulty with a small number of employees when trying to implement COVID-19 policies. While this decision specifically relates to New South Wales, there is similar workplace health and safety legislation in other States and Territories.

The key takeaway message from this decision is to ensure that employers not covered by a public health direction or order who nevertheless intend to impose a mandatory vaccination policy must meaningfully and genuinely consult with employees prior to implementing such a policy. Employers must [4]:

• Share with workers the background and context of any proposed requirement that affect their work health and safety;
• Involve any applicable work health and safety representatives and/or health and safety committees;
• Give workers a reasonable opportunity to:
  • Express their views and raise work health or safety issues in relation to the matter; and
  • Contribute to the decision-making process relating to the matter;
• Take the views of the workers into account before making a work health and safety decision such as introducing a COVID-19 vaccination policy; and
• Advise workers of the outcome in a timely manner.

Ultimately, employers should note that:

• Directions in relation to COVID-19 vaccines must be both lawful and reasonable;
• Consultation requirements may arise under relevant work health and safety legislation, employment contracts and any applicable industrial instrument such as a modern award or enterprise agreement; and
• When considering reasonableness, compliance with consultation obligations in a meaningful way is important.

Where there is a public health direction or order, this will of course strengthen the case that the direction is ‘reasonable’. However, due process including consultation may to some extent be  required.

This decision, whilst significant in the current environment, does not mean that all COVID-19 vaccine directions will be found to be unreasonable. The outcome was focused on the consultation requirements. The Full Bench clearly considered that the direction in substance was reasonable with reference to the risks presented by the pandemic and the obligation of the employer to ensure the health and safety of workers of the mine.

Since the decision, Mt Arthur has gone through a consultation process with the assistance from the Fair Work Commission who has released a statement confirming that Mt Arthur has complied with its obligations in relation to consultation.

Subsequently, Mt Arthur has re-issued the direction and have warned employees and implemented their mandatory vaccination policy. Noting the Full Bench previous comments it is unlikely that the employees and Unions supporting the employees will have much prospect with successfully arguing that the direction was not lawful or reasonable given the prevalence of the current Omicron variant.

Further information / assistance regarding the issues raised in this article is available from the authors, Louise Hogg, Special Council and Lilian Zhou, Associate or your usual contact at Moray & Agnew.

[1] [2021] FWC 6626.

[2] Ibid at [29].

[3] Ibid at [252].

[4] Ibid at [98].