The ethos of upholding your duty of care and maintaining health and safety in the workplace amid a global pandemic is more than just a mere statement. With the nation-wide vaccination roll-out in full force and the summit of Covid-19 cases near, the Australian workforce has transformed and adapted to being almost entirely remote.

As we trudge through the peak of Covid-19 case numbers, SME’s and multi-national corporations alike are preparing a roadmap back to normality. This begs the question – how do we go back to normal with Covid-19 still looming?

 

The Law

A key consideration for employers at the moment is determining whether a mandatory vaccination policy should be implemented in their workplace. However, there are numerous ‘boxes’ that must be checked before enforcing such a policy or other change in the workplace and directing employees to comply.

Recent case law suggests that mandatory vaccination directions are likely to be lawful, provided that they are genuinely made to protect the health and safety of employees and other close contacts in the workplace.[i]  However, decisions must be lawful and reasonable. While such directions may be lawful, they may not be reasonable unless an employer has properly discharged its consultation obligations under relevant work health and safety legislation.

 

The Requirements

The degree of consultation required to be implemented varies across industries with industrial instruments, such as Modern Awards and Enterprise Agreements, imposing additional obligations for the employer to discharge.

As a rule of thumb, employers should always to any governing industrial instrument, employment contract and/or workplace policy to confirm what consultation obligations they must adhere to.

Employers also need to assess the who, how and when matrix. The Fair Work Commission has emphasised that consultation is a collaborative process that extends far beyond informing staff of proposed changes. With reference to any applicable instrument or contract, employers need to determine:

  • who they need to consult with (including, but not limited to employees, employee representatives, unions, contractors, suppliers);
  • how they will consult the relevant stakeholders about the proposed workplace change; and
  • when the intended timeline is for undertaking the process.

Ticking the above boxes alone does not steer employers into the clear. To consult “as far as reasonably practicable”, employers must equally provide employees with a reasonable opportunity to respond, express their views, raise work health and safety concerns and contribute to the decision-making process before deciding to enforce any workplace change.

 

Do’s & Don’ts

With greater guidance providing a sense of clarity, below are a few do’s and don’ts to bear in mind:

Do – Provide a timeline which provides employees ample opportunity to respond and discuss.

Don’t – Inform staff that a definite decision was determined and will be administered.

Do – Circulate an initial survey to gauge a consensus and follow-up.

Don’t – Fall into the trap of not documenting the consultation process and meeting minutes.

Do – Actively listen to employees and propose flexible working arrangements if possible.

Don’t – Withhold information regarding the reasons, rationale and data supporting the workplace change.

 

Key Take Aways

Consultation can be a multi-faceted and complex process which can expose employers to an abundance of claims ranging from anti-discrimination, general protections, work health and safety and unfair dismissals. Avoid the costly exercise and consult our Workplace Team to streamline the process.

[i] Construction, Forestry, Mar­itime, Min­ing and Ener­gy Union & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059.

 

***Assisted by Jasmin Mantoufeh***