Fair Work considerations in BHP case

As you may have heard over the weekend, the Fair Work Commission (FWC) decided a major case on Friday involving BHP (Mt Arthur Coal). The CFMMEU (Union) successfully challenged Mt Arthur Coal’s commencement of its mandated COVID-19 policy. Coal mines are not legislated to mandate vaccines so the challenge was mounted on whether Mt Arthur Coal:

1. Had complied with its obligations to consult with its workforce under the requirements of work health and safety legislation; and
2. Had issued a mandate which was lawful and reasonable.

The Site Access Requirement was announced on 7 October 2021 and required all workers at the Mine  must be vaccinated against COVID-19 as a condition of site entry. The FWC ruled that BHP failed to properly consult its workforce and hence its policy was not able to be enforced. The FWC’s ruling was based on specific points and is further discussed below. It is certainly not authority for the proposition that vaccination mandates are unlawful.

Consultation on WHS matters

The key findings of the case primarily concerned BHP’s failure to adequately consult about a WHS matter. A summary of those findings are: 

1. A responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account.
2. The process of consultation is designed to assist management, by giving  it access to ideas from employees, as well as to assist employees to point out aspects of a proposal that will  produce negative consequences and suggest ways to eliminate or alleviate those consequences.
3. The consultation obligation is not concerned with a likelihood of success  of the process, only to ensure that it occurs before a decision is made to  implement a proposal.
4. The requirement to consult affected workers would not be satisfied by providing the  employees with a mere opportunity to be heard; the  requirement involves both extending to  affected workers an opportunity  to be heard and an entitlement to have their views taken into account when a decision is made.
5. Although Mt Arthur Coal argued that it had consulted with its workforce, the FWC disagreed. Mt Arthur Coal consulted as follows:
   1. Mt Arthur Coal set up a central mailbox for the use of all  employees (Vaccine  Mailbox), including those at the Mine, and expressly invited their questions  and comments regarding the proposed introduction of the Site Access Requirement. Approximately 480 inquiries to the Vaccine Mailbox were received and responded to between 31 August 2021 and 7 October 2021 across all BHP assets, with approximately 20 of that total coming from Mt Arthur’s employees.
   2. Correspondence  was  received  from  a  number  of  unions  regarding  the  proposed  Site Access Requirement, including the CFMMEU, the ETU, the AMWU and the RTBU. BHP responded to each of the union’s concerns in writing and also met with the union representatives, where requested, to further discuss the Site Access Requirement.
   3. Members of BHP’s COVID-19 Vaccination Working Group assessed and collated the questions and comments received from employees and their representatives, and briefed witnesses on the volume and themes being expressed across the various BHP entities, including Mt Arthur.
6. The FWC’s view was that although substantial  information  was  provided  about  COVID-19,  little  if  any  information  was  provided to  Employees  about  the  risk  assessment  that  was  undertaken,  such  as  an  evaluation  that  the existing  control mechanisms (such as physical distancing, hygiene protocols, PPE, occupancy limits etc) were of limited effectiveness.  The  information  that  explained  how  BHP  had  taken  into  account  and  weighed  up  matters  including  those  set  out  in the WHS Act, was relevant information and should have been part of the consultation process.
7. The required consultation occurred after a  definite  decision  had  been  made  to  implement  the  Site  Access Requirement, when it should have been before.
8. Mt Arthur Coal failed to call a critical witness which allowed the FWC to infer that his evidence would not have assisted its case.

Was the direction to mandate lawful and reasonable?

The FWC considered that the Site Access Requirement is lawful because: 

a. it falls within the scope of the employment, and

b. there is nothing ‘illegal’ or unlawful about becoming vaccinated.187

The CFMMEU also argued that the Site Access Requirement ‘at least impacts upon the choice of an individual to undergo a medical procedure’ and hence engages the common law right to personal and bodily autonomy and integrity. Ie all individuals have the right to choose what occurs with respect to their own body. The FWC found that this right is not violated by the terms of the Site Access Requirement.

The FWC summarised by reminding us all that:

1. the responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they can be taken into account; it is not a ‘mere perfunctory exercise’, and
2. had Mt Arthur Coal consulted appropriately, the below consideration would have provided a strong case in favour of a conclusion that the  Site Access Requirement was a reasonable  direction:

a. It is directed at  ensuring the health and safety of workers of the Mine.

b. It has a logical and understandable basis.

c. It is a reasonably proportionate response to the risk created by COVID-19.

d. 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.

e. The  timing  for  its  commencement  was  determined  by  reference  to  circumstances pertaining to NSW and the local area at the relevant time.

f. 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.

What now for Mt Arthur?

Practically, this is not over. The decision does not mean that Mt Arthur Coal will not enforce vaccination mandates.

The FWC found that provided Mt  Arthur commences its consultation  with the Employees (about whether or not the Site Access Requirement should be imposed at the Mine) in a timely fashion, it expects  that Mt Arthur would be in a position to make a decision about whether to impose the Site Access Requirement at the Mine prior to 15 December 2021. Mt Arthur will now need to engage in consultation as recommended by the FWC. The Site Access Requirement could be issued again in the coming weeks.

BHP’s vaccine mandates at other sites and workplaces will remain in place.

Lessons Learned

1. Employers must consult with the workforce before implementing a COVID-19 mandatory vaccination policy.
2. Mandatory vaccination policies can be reasonable and lawful if they:

a. Are developed having  regard  to  the  circumstances  at  the  actual workplace.

b. Apply to workers who cannot work from home.

c. Apply to workers who have contact with other workers while at work.

d. Transmission in the local LGA will be relevant.

e. Employers should spend time encouraging vaccination prior to bringing in to force the direction.

The policies can be bought into effect and will be lawful and reasonable if the workforce is properly consulted.

If you have any questions at all about mandatory vaccination policies, please contact our Employment Law team on (02) 4727 2900.