BHP COVID-19 vaccine mandate overturned

A recent decision from the Fair Work Commission overturned a COVID-19 vaccination mandate by BHP, with important lessons for businesses.

Late on Friday 3 December 2021, a Full Bench of the Fair Work Commission (FWC) handed down a decision that overturned BHP's COVID-19 vaccine mandate at the Mt Arthur open cut coal mine, in CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059.

While BHP was unsuccessful, the Commission has set a pathway to be followed by businesses to achieve the introduction of mandatory vaccination. In this article we explore why this occurred and what this means for employers who are in the process of implementing, or have already implemented, policies mandating COVID-19 vaccines.

Note: For clarity, the Mt Arthur mine is operated by Hunter Valley Energy Coal Pty Ltd, and employees are employed by Mt Arthur Coal Pty Ltd, both of which are members of the BHP group of companies. For ease of reference, the respondent in the case is referred to as BHP.

What was the vaccine direction in question?

On 7 October 2021, BHP announced a requirement that all workers at the Mt Arthur mine must be vaccinated against COVID-19 as a condition of entry to the site. The mandate required that:

a) by 10 November 2021, employees must have a single dose of an approved COVID-19 vaccine; and
b) by 31 January 2022, employees must be fully vaccinated.

Employees were informed that if they attended the mine after midnight on 9 November 2021, they would not be permitted access to the mine unless they provided BHP with evidence of at least a single dose of an approved COVID-19 vaccine.

The issue in dispute

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) filed an industrial dispute in the Fair Work Commission questioning whether this direction was a lawful and reasonable direction with respect to employees at the Mt Arthur mine who are covered by the Mt Arthur Coal Enterprise Agreement 2019.

Given the significance of the issue in question, other parties were given leave to intervene in the proceedings including the Australian Manufacturing Workers' Union (AMWU), the CEPU, the Australian Council of Trade Unions (ACTU), Ai Group and the Australian Chamber of Commerce and Industry (ACCI).

What did the Full Bench of the FWC say?

A five-member bench¹ of the Fair Work Commission held that the vaccine mandate was, on the face of it, a lawful direction, but it was not reasonable and therefore was not enforceable. Any direction from an employer must be both lawful and reasonable.

Critically, this was a result of BHP's failure to satisfy consultation obligations under the Work Health and Safety Act 2011 (WHS Act).

Importantly, the FWC recognised that, despite the consultation shortcomings, there were factors weighing in favour of finding that the vaccine mandate was reasonable, which should provide some comfort to employers who have introduced vaccine mandates, including that:²

1. it was directed at ensuring the health and safety of workers of the mine;
2. it had a logical and understandable basis;
3. it was a reasonably proportionate response to the risk created by COVID-19;
4. 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;
5. the timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time; and
6. 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.

If the consultation defects were cured, it is quite possible there might have been a different result. Indeed, the FWC said that if BHP had consulted with employees in accordance with its consultation obligations, so that the FWC could be satisfied that the decision to introduce the vaccine mandate "was the outcome of a meaningful consultation process - the above considerations would have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction".³

So where did BHP go wrong with consultation?

The problems identified with BHP's consultation relate to a lack of opportunities given to employees to express their views, limited information shared with employees and a lack of involvement of health and safety representatives (HSRs).

The Full Bench concluded that employees were not given a genuine opportunity to express their views and to raise work health and safety issues, or to contribute to the decision-making process relating to the decision to introduce the vaccine mandate.

Employees were not provided with information relating to the reasons, rationale and data supporting the proposal, nor were they given a copy of the risk assessment or informed of the analysis that informed that assessment. In effect, the employees were only asked to comment on the ultimate question of whether the mandate should be imposed.

Issues were also identified to the extent that HSRs were not involved in any consultation in any meaningful way and that established mechanisms such as health and safety committee meetings were not used for this purpose.

What is a reasonable direction?

The FWC provided a helpful summary of the test of what constitutes a reasonable direction:

"Whether a particular direction is reasonable is not to be determined in a vacuum, it requires consideration of all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship. In NSW, this would include consideration of obligations in the WHS Act, which governs employment relationships in that jurisdiction. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis. The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction."⁴

Acceptance of evidence about COVID-19

Helpfully, there were several factual findings about the risks posed by COVID-19 that were made by the Full Bench based on the evidence before it.

1. COVID-19 involves a high burden of disease, greater than influenza.
2. Any infected person is at risk of developing serious illness from the virus, which may lead to death.
3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant, which is more infectious and has more severe health effects than previous variants.
4. All COVID-19 vaccines currently available in Australia:

• (i) Are effective at preventing symptomatic infection, including from the Delta variant.
• (ii) substantially reduce the risk of serious illness or death, including from the Delta variant.
• (iii) are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.

5. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.
6. While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection.
7. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.
8. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The mine is clearly such a workplace.⁵

Lessons for employers

There are numerous lessons employers can take from the decision.

• A policy containing a COVID-19 vaccine mandate must be both lawful and reasonable.
• What is reasonable will depend on all the circumstances and includes complying with an employer's consultation obligations in a meaningful way.
• If employers are considering introducing COVID-19 vaccine mandates they must comply with their consultation obligations under WHS legislation, which in NSW is contained in sections 47 to 49 of the Work Health and Safety Act 2011 (WHS Act).
• Many employers have additional consultation obligations by virtue of other legislative obligations, contracts of employment or industrial instruments such as enterprise agreements, and must also comply with those.
• This decision does not mean that all COVID-19 vaccine mandates are unreasonable as this decision is focussed on BHP's consultation shortcomings.
• There was no public health order in place that required BHP to direct its employees to be vaccinated. If there had been such a public health order, it would have strengthened the case for the vaccine direction being 'reasonable'.
• While keeping the lessons of this case in mind, employers should continue to prioritise consideration of any potentially appropriate vaccination mandates, as vaccination is a high order control which, as recognised by the FWC, can significantly reduce the opportunities for employees to catch and transmit COVID-19 and reduces the severity of symptoms in cases of infection. This is particularly important given the new and unknown Omicron variant that has arisen since BHP enacted its vaccine mandate.

For more information about this decision and how it might apply to your organisation, contact a member of our Workplace Relations & Safety team.

¹ Justice Ross, President, Vice President Catanzariti, Deputy President Saunders, Commissioner O'Neill and Commissioner Matheson
² CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 at [252]
³ Ibid at [253]
⁴ Ibid at [96]
⁵ Ibid at [29]