A recent decision of the Full Bench of the Fair Work Commission has found that a failure by BHP to adequately consult with its workforce before requiring workers to have received a COVID-19 vaccination as a condition of entry to the Mt Arthur open cut coal mine (Mt Arthur Mine) was unreasonable. The case, (Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd trading as Mt Arthur Coal  FWCFB 6059) provides useful and important guidance for employers mandating COVID-19 vaccination requirements in the workplace.
On 7 October 2021, Mt Arthur Coal Pty Ltd (Mt Arthur), a member of BHP group of companies (BHP), announced a direction that all workers on the Mt Arthur Mine were required to be vaccinated against COVID-19 as a condition of site entry (Site Access Requirement) including that workers:
Workers were directed to provide evidence of their vaccination status and in the event they could not meet this requirement, they would not be permitted access to the Mt Arthur Mine.
The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Mr Howard brought an application asking the Full Bench to decide whether the direction to be vaccinated against COVID-19 as a condition of entry was a lawful and reasonable direction in respect of those workers covered by the Mt Arthur Coal Enterprise Agreement 2019.
We note that mining workers in New South Wales were not (and are not currently) subject to a government public health order or direction which required COVID-19 vaccination in order to attend the workplace.
The Full Bench found that the Site Access Requirement was lawful because:
It also considered that there were a range of factors that weighed in favour of determining the Site Access Requirement was reasonable:
However, the Full Bench also found that the Site Access Requirement enlivened consultation obligations under the Work Health and Safety Act 2011 (NSW) (WHS Act) and that the Mt Arthur Mine was within the scope of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW). As such, Mt Arthur was required, so far as reasonably practicable, to consult with workers who carry out work at the site, or who are likely to be directly affected by the requirement and any mine health and safety representative.
The Full Bench found that workers were not given a reasonable opportunity to express their views, raise work health and safety issues, or contribute to the decision making process relating to the Site Access Requirement and as such, found it was unreasonable.
The Full Bench commented that had Mt Arthur consulted with workers in accordance with its consultation obligations, the range of factors provided a strong case in favour of the Site Access Requirement being a reasonable direction.
Interestingly, the Full Bench further stated that Mt Arthur could cure its failure to comply with its consultation obligations, and if it did so prior to 15 December 2021 (in line with the New South Wales roadmap when the state is set to relax various COVID-19 restrictions for unvaccinated persons), Mt Arthur could properly impose the Site Access Requirement.
Whilst the decision was decided based on New South Wales legislation, similar legislative provisions apply in other states and territories. As such, where employers seek to introduce a policy or procedure making COVID-19 vaccination a condition of entry to the workplace and the employers are not subject to a public health order or direction, employers should ensure compliance with their legislative consultation obligations in the following way:
For employers subject to a public health order or direction which requires workers to be vaccinated against COVID-19 in order to attend the workplace, it is still considered best practice to consult with workers prior to any COVID-19 vaccination deadlines.
Gadens is able to assist you with any queries you have in respect of vaccination policies or procedures, or any relevant obligations under public health orders, directions or legislation.
For details of all our COVID-19 tips and updates, visit the Gadens COVID-19 Hub.
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Deivina Peethamparam, Partner
Nakita Rose, Lawyer