On 3 December 2021, the Fair Work Commission handed down its very first decision on employers mandating the COVID-19 vaccination ruling against the employer in finding that the deadlines for vaccination were not lawful and reasonable.[1]

The decision is considered a seminal decision as it has the potential to be influential in terms of vaccine mandates in the workplace.

However, whilst the decision is a significant one, the decision did not focus or rule on the “validity” of the vaccine mandate. Rather, the focus surrounded the failure of the employer to comply with its consultation obligations under work health and safety laws.


Background

On 7 October 2021, Mt Arthur Pty Ltd issued a direction requiring all workers to have the COVID-19 vaccine as a condition of entry to the Mt Arthur mine. The direction specified that all employees must have at least one dose of the vaccine before attending work on 10 November 2021 and be fully vaccinated by 31 January 2022.

Following this direction, on 10 November 2021 approximately 50 of the 1,700 employees working at the Mr Arthur mine were stood down as they could not provide evidence of their vaccination status.


Facts in issue

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) argued that the direction was unlawful and unreasonable as the employer did not comply with consultation requirements under the Work Health and Safety Act 2011 (NSW) in respect of employees covered by the Mt Arthur Coal Enterprise Agreement 2019.

In reply, Mt Arthur Pty Ltd argued that the direction was lawful and reasonable as it was required to comply with safety requirements under the Work Health and Safety (Mines And Petroleum Sites) Act 2013 (NSW) and the Work Health and Safety Act 2011 (NSW) to ensure the community and family members associated with the workforce were protected.


Decision and Commentary Provided by the Commission

On 3 December 2021, the Commission ruled that the direction was not one which was covered by the Mt Arthur Coal Enterprise Agreement 2019 and the full bench agreed that Mt Arthur Pty Ltd had failed to consult with its employees on the introduction of the vaccination mandate.

In handing down the judgment, the Commission affirmed two general principles:

  1. Employers are entitled to ask employees to be vaccinated in the absence of a public health order or express term in their employment contract, provided that the direction is lawful and reasonable; and
  2. Whether a direction is lawful and reasonable will depend on several factors, including the nature of the workplace, industrial instruments and consultation requirements.

The Commission noted that it was not appropriate to make general statements about whether a direction to be vaccinated would be lawful or reasonable as it would depend on the circumstances, however, the Commission provided several broad observations, including:

  • A direction will likely be lawful if its purpose is to safeguard work health and safety, given this fall within the scope of the employment contract;
  • The reasonableness and proportionality of a direction is essentially a question of “fact and balance”, assessed on a case by case basis;
  • There may be a range of options open to a particular employer that satisfy reasonableness, and it is not necessary to show a policy accords with ‘best practice’.

Ultimately, the Commission did state that if Mt Arthur Pty Ltd had consulted with its employees and fulfilled its consultation obligations to the extent that the Commission could have been satisfied that the mandate was the outcome of a meaningful consultation process, there would have been a strong case in favour of Mt Arthur Pty Ltd to conclude that the direction was reasonable.

As such, the decision leaves it open for Mt Arthur Pty Ltd to undergo an adequate consultation process to reintroduce the policy which could then be considered lawful and reasonable.

[1] Construction, Forestry, Maritime, Mining and Energy Union (105N) & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6039.