Overview
The risk of infection with COVID-19 is a risk to the health and safety of workers, which all employers need to consider in the context of their business.
Receiving a vaccination against COVID-19 is one of the ways that the risk of infection and serious illness can be reduced, both for employees and members of the public.
Should employers therefore be considering mandating vaccines for workers?
What does the Fair Work Commission say?
There have been several decisions out of the Fair Work Commission which demonstrate that failure to comply with a Government mandated vaccine requirement (such as an applicable Public Health Order) can be a valid reason for the termination of employment, where a failure to comply means an employee cannot undertake the inherent requirements of their role.
What about businesses that are not covered by a Government mandate?
Chances are, that if the correct steps are observed, a mandatory vaccination policy will be a “lawful and reasonable direction”.
In CFMEU v Mount Arthur Coal Pty Ltd the Full Bench of the Fair Work Commission (FBFWC) provided strong guidance that a mandatory vaccine policy can be a lawful and reasonable direction in the absence of a Government mandate or Public Health Order but:
- consultation is key; given the statutory obligations on employers to consult with workers on matters relating to health and safety under work health and safety legislation; and
- where consultation obligations are not met, an otherwise “lawful” policy may not be “reasonable” due to the failure to properly consult.
What happened in CFMEU v Mount Arthur Coal Pty Ltd?
In early October 2021, Mt Arthur Coal Pty Ltd (Mt Arthur) mandated that all of its employees working in the Hunter Valley mine be vaccinated against COVID-19, as a condition of entry to the mine. The CFMEU (representing about 700 employees) challenged the vaccine requirement and commenced dispute settlement procedures pursuant to the Mt Arthur Coal Enterprise Agreement 2019 (EA).
The issue for determination was whether Mt Arthur’s mandatory vaccination direction was lawful and reasonable in respect to Mt Arthur employees who were covered by the terms of the EA.
The FBFWC decided that the policy was lawful because it did not create any illegality.
However, the CFMEU successfully argued that Mt Arthur had not consulted with its employees in accordance with its obligations under the Work Health and Safety 2011 (NSW) (WHS Act) and was thus not reasonable. As a result, the FBFWC held that the policy was not reasonable because Mt Arthur had failed to consult with its employees in accordance with its obligations under the WHS Act.
Conclusion
An employer that wants to introduce a mandatory vaccination policy must ensure that the policy is ‘lawful and reasonable’.
Whether a given policy is lawful and reasonable will depend on:
- whether the direction is within the scope of employment and does not create any illegality. Everything else being equal, it is likely that a mandatory vaccination policy would be “lawful”.
- whether the direction is reasonable, having regard to all the circumstances including relevant employment contracts, enterprise agreements or other workplace instruments. A key consideration is whether there has been compliance with the consultation requirements under applicable WHS legislation.
Meaningful consultation with employees means giving an employee the opportunity to express their views and considering those views prior to making a policy decision. Further, the opportunity to consult must be genuine and not simply an ‘after thought’. However, consultation does not require ‘decision making by committee’ and there is no requirement that all (or even any) feedback be adopted.
Failing to consult as required under WHS laws may render an otherwise ‘lawful’ (and objectively sensible) mandatory vaccination policy ‘unreasonable’ and thereby unenforceable.
More information
If you have any queries or would like further information regarding this article, please contact:
Joe Mullavey
Principal
M: 0416 794 061
E: jmullavey@pageseager.com.au
Audrey Clarkson
Lawyer
T: (03) 6235 5125
E: aclarkson@pageseager.com.au
Published: 17 March 2022
