The Fair Work Commission has sent mining giant BHP back to the drawing board to reassess its COVID-19 ‘Site Access Requirement’ for its Mt Arthur Coal Mine in New South Wales’ Hunter Valley. This comes despite BHP actually being one of the first private businesses to apply for mandatory vaccinations in their workplace.
So, why was the policy overturned?
In short, the Fair Work Commission found that BHP failed to comply with its obligation under the New South Wales work health and safety legislation to undergo proper consultation with its employees before the introduction of the Site Access Requirement.
The New South Wales’ Work Health and Safety Act 2011 (WHS Act) sets out the obligation for an employer to be “reasonably practicable” and to consult with workers “. . . who are, or are likely to be, directly affected by a matter relating to health and safety.”
So, whilst BHP’s Policy was likely lawful, it was determined that – without proper consultation – the directions under the Policy were not reasonable.
However, the impact of this judgment extends beyond the New South Wales WHS Act, as almost identical consultation provisions are in place in harmonised WHS Acts across each state. Similar consultation provisions are also contained in most Modern Awards and Enterprise Agreements.
what does this mean going forward?
Put simply, if an employer wishes to implement a mandatory vaccination policy or requirement outside or above that mandated in a Public Health Order, then it must consult with its employees first. Doing so will assist in seeing the policy’s implementation deemed reasonable and, therefore, enforceable.
In this case, the Full Bench considered that genuine consultation should have included employees being provided with:
- A reasonable opportunity to express their views and raise workplace health and safety issues;
- An ability to contribute to the decision-making process; and
- Information relating to the reasons, rationale and data supporting the proposed mandate, including a copy of the risk assessment to be relied upon.
if BHP had consulted its employees, would the mandate have been lawful and reasonable?
While not expressly determined, the Full Bench acknowledged that the mining magnate would likely have had a strong argument that the direction was reasonable.
In giving its conclusion, the Full Bench found a number of other factors which weighed in favour of the direction being reasonable, including that the direction:
- Was directed at ensuring health and safety of the workers;
- Had a logical and understandable basis;
- Was reasonably proportionate to the risk created by COVID-19;
- Was developed having regard to the site’s circumstances (considering that the Mine’s workers cannot work from home and inevitably come into contact with others);
- Was introduced at a time where the region had a considerable number of COVID-19 cases compared to other areas in NSW; and
- Was implemented after BHP spent a ‘considerable’ amount of time encouraging the employees to become vaccinated (and even set up a vaccination hub at the Mine).
how can we help?
If you are an employer seeking to introduce a workplace vaccination policy, our specialist Employment and Industrial Relations team can assist you with both preparing your policy as well as planning for the consultation process.
For any assistance or further information, please fill out the enquiry form below for an obligation-free appointment.