BHP Vaccine Mandate Held Unreasonable

BHP Vaccine Mandate Held Unreasonable, was this a COVID-19 vaccine for the worker? or a loss?

In Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal,[1] the Full Bench of the Fair Work Commission has ruled that BHP’s decision to mandate COVID-19 vaccines mandatory at its Mt Arthur coal mine in the New South Wales Hunter Valley was not “lawful and reasonable“. This decision was made by the largest sitting of the Full Bench, which comprised of five Fair Work Commission Members, Justice Ross (President), Vice President Catanzariti, Deputy President Saunders, Commissioner O’Neill and Commissioner Matheson. However, this decision does not invalidate or render vaccine mandates unlawful or unreasonable in other Australian workplaces. The Full Bench’s decision was based on a very specific point. Consultation.

This case concerned the Mt Arthur Coal Enterprise Agreement 2019, which was approved by the Fair Work Commission under the relevant terms of the Fair Work Act 2009 (Cth). The enterprise agreement applies to production and engineering employees who work at the Mt Arthur open cut coal mine. Mt Arthur and Hunter Valley Energy Coal Pty Ltd are members of the BHP group of companies. Mt Arthur employs about 724 employees who work at the Mine and who are covered by the Agreement; it also employs about 256 employees who work at the Mine but are not covered by the Agreement. In addition to Mt Arthur employees who work at the Mine, there are about 1,000 other workers at the Mine who are employed or engaged by other entities. The dispute in this case only concerned the 724 employees who work at the Mine, are employed by Mt Arthur and who are covered by the Agreement.

The dispute concerns an announcement by Mt Arthur on 7 October 2021, of a requirement or direction that all workers at the Mine must be vaccinated against COVID-19 as a condition of site entry (Site Access Requirement). The Site Access Requirement requires the Employees to: (a) have at least a single dose of an approved COVID-19 vaccine by 10 November 2021, and (b) be fully vaccinated by 31 January 2022. Mt Arthur has also directed that the Employees provide it with evidence of their compliance with the Site Access Requirement by those dates.

The CFMMEU, on behalf of the majority of the employees, and Mr Howard (Applicants) made an application under s.739 of the Fair Work Act 2009 (Cth) seeking that the Commission deal with the dispute under the dispute resolution procedure in the Agreement.

In making their decision, the Full Bench stated that the following factual propositions were uncontentious and have been established as evidence:

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 are effective at preventing symptomatic infection, including from the Delta variant.
5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.
6. All COVID-19 vaccines currently available in Australia 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.
7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.
8. 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.
9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.
10. 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.

 

The question before the Full Bench was ultimately whether the Site Access Requirement was a “lawful and reasonable” direction.

 

What is a “Lawful and Reasonable Direction”?

It is readily established that an employer may direct an employee to be vaccinated against COVID-19, if it is considered a lawful and reasonable directive. The right of an employer to direct their employee is implied at common law, stemming from the ability of an employer to exert control over their employees.[2] Employees have a duty of obedience which requires an employee to comply with any lawful and reasonable direction given by a superior,[3] or otherwise contained in an employer’s policies and procedures.[4] A breach of this implied duty constitutes a breach of contract; this misconduct can provide the basis of a valid reason for dismissal.[5]

For a direction to be deemed lawful, there is no requirement for a positive statement of law endorsing an action.[6] If a direction  relates to the subject matter of the employment and involves no illegality, the obligation of the employee to obey it depends at common law upon its being reasonable.[7] As per Glover,[8] it is not unlawful for an employer to direct an employee to be vaccinated against the flu or face termination if they refuse.[9]

In order to direct an employee to be vaccinated against COVID-19, the direction must also be reasonable, which is a question of fact and balance.[10] Employers face potential liability arising from their common law duty of care to their employees and to members of the public.[11] Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints.[12] For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties.[13]

What is reasonable will depend upon all the circumstances relevant to the employment relationship[14] and it is insignificant whether a better or different policy may have been more appropriate.[15] Thus, what can be considered reasonable will likely differ for each individual employer and it is not the role of external bodies, such as the Fair Work Commission, to interfere with the right of an employer to manager their own business.[16] The choice of the employer need not be the most reasonable decision, but simply fall within the realm of reasonableness.[17]

 

Is BHP’s “Site Access Requirement” a lawful and reasonable direction?

In regards to whether the direction was lawful, the Full Bench determined that it was given it falls within the scope of the employment, and there is nothing ‘illegal’ or unlawful about becoming vaccinated.[18]

In regards to whether this direction was unreasonable, the Full Bench denied the Applicant’s submissions on all but one ground. The need for consultation where statutorily required.

While the ultimate decision as to whether to introduce the Site Access Requirement was a decision for the Respondent, consultation is an important component in that decision-making process.[19] The Full Bench held that the most telling factor against a finding that the Site Access Requirement was reasonable is the failure by the Respondent to reasonably consult with the Employees.[20] The Full Bench observed that consultation does not require that those consulted agree to the direction, or give them a power of veto, but in the context of this matter it should have provided the Employees with a reasonable opportunity to persuade the decision-maker in relation to the decision to introduce the Site Access Requirement.[21] Thus, the Full Bench ultimately held that the Site Access Requirement was not a reasonable direction and the determinative consideration has been that they were not satisfied that there was consultation in accordance with ss.47 and 48 of the WHS Act.[22]

 

Vaccine Mandate Ruled Unreasonable Solely Based on Lack of Consultation

In their conclusion, the Full Bench highlights that there were a range of considerations which otherwise weighed in favour of a finding that the Site Access Requirement was reasonable, including that:

1. It is directed at ensuring the health and safety of workers of the Mine.
2. It has a logical and understandable basis.
3. It is 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.
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.

Thus, had the Respondent consulted the Employees in accordance with its consultation obligations − such that we could have been satisfied that the decision to introduce the Site Access Requirement 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.

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Related Reading:

[1] [2021] FWCFB 6059.

[2] Barber v Goodstart Early Learning [2021] FWC 2156, [303].

[3] R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan (1938) 60 CLR 601, at 621.

[4] Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633; 218 FLR 268; [2008] NSWSC 159, at [342].

[5] Barber v Goodstart Early Learning [2021] FWC 2156, [303].

[6] Grant v BHP Coal Pty Ltd [2017] FCAFC 42, [94]; citing R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) CLR 601, 621-62 (Dixon J).

[7] Ibid.

[8] Glover v Ozcare [2021] FWC 2989.

[9] Ibid 242.

[10] CFMEU v Glencore Mt Owen Pty Ltd [2015] FWC 7752, [11]; citing McManus v Scott-Charlton (1996) 70 FCR 16, 30C.

[11] Woolworths Ltd v Brown (2005) 145 IR 285, [24].

[12] Ibid.

[13] Woolworths Ltd v Brown (2005) 145 IR 285, [24].

[14] Ibid [35].

[15] Ibid.

[16] Barber v Goodstart Early Learning [2021] FWC 2156, [309].

[17] Ibid.

[18] In Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 at [179].

[19] Ibid at [249].

[20] Ibid.

[21] Ibid at [250].

[22] Ibid at [251].