The Fair Work Commission Full Bench decision of Construction, Forestry, Maritime, Mining and Energy Union & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal  FWCFB 6059 (BHP Case) saw BHP have their mandatory vaccination direction overturned by the Fair Work Commission. It is a significant decision in regard to how COVID-19 vaccine policies and directions should be rolled out not so much a support for the vaccinations not going ahead or that an employer would not be allowed to direct an employee to do so.
In a nutshell
Mt Arthur is a member of the BHP Group of companies and manages a coal mine in the Hunter Valley. On 7 October 2021, Mt Arthur announced a site access requirement that employees will need to have had at least one dose of the COVID-19 vaccine by 10 November 2021 and be fully vaccinated by 31 January 2022. The CFMMEU made an application to the FWC, in accordance with the dispute resolution procedure in the Enterprise Agreement.
- Options phase – prior to August 31 2021
- Commenced an education program and promoted the COVID-19 vaccination to all employees across its Australian operations
- Regular circulation of announcements and videos regarding the COVID-19 vaccine, including benefits and misconceptions and how the employees can book a vaccine appointment
- On August 21, options analysis was submitted to the MinAU EMT senior leadership team, which led to a recommendation that COVID-19 vaccination be a condition of entry to BHP workplaces in Australia
- Assessment phase from 31 August 2021 – 7 October 2021
- BHP announced that it was actively assessing whether to make vaccination a condition of entry to BHP workplaces in Australia
- BHP set up a central mailbox (Vaccine Mailbox) for the use of employees to ask questions and make comment regarding the proposed introduction of the Site Access Requirement. Approximately 20 inquiries were made by Mt Arthur employees
- Correspondence was received from a number of unions regarding the proposed requirement, which BHP responded to
- Employees provided feedback through other avenues
- Members of BHP’s COVID-19 Vaccination Working Group assessed and collated the questions and comments received from employees and witnesses
- Implementation phase commenced 7 October 2021 – 10 November 2021
- BHP announced that the vaccine requirement would be implemented at all of BHP’s workplaces across Australia
Why did BHP lose?
In a few words – lack of meaningful consultation with employees.
There was a lot of information and content provided to employees however less value or even consideration was put on:
- Employees being able to access the information
- Employee feedback on the direction
- Employee feedback on the implementation phase
- Ill consideration of workplace health and safety considerations
The Fair Work Commission also disliked:
- The language used in the ultimate decision – namely that it was irrevocable and not amendable to further consultation
- The question put to the employees “should the Site Access Requirement be imposed?” without further context to back a potential decision
- Non-provision of the following information to employees during the process:
- Data supporting the proposal
However, the Fair Work Commission were careful to say that, had the employees been properly consulted the direction would have been a reasonable direction.
“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.”Construction, Forestry, Maritime, Mining and Energy Union & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal  FWCFB 6059 at 253
What does this mean for Employers?
Consultation – Consultation – Consultation.
It is going to be integral.
Most modern awards and enterprise agreements have major workplace change provisions and complying with these provisions through genuine consultation is not merely compliance with the industrial instrument but also clear by the Full Bench that it is required.
In a consultation consider the following:
- What is the rationale and reasons behind the direction for the mandatory vaccinations?
- What information should be provided to support this?
- How will the information be communicated? (a “Vaccine Mailbox” is not enough)
- Has the information reached all employees effected?
- How will this be evidenced?
- Is there a mechanism for feedback to be provided by employees in a genuine way?
- How will this be considered – what is the approach and how will this be evidenced?
- What other information needs to be provided?
- Can the timeline for implementation be lengthened to avoid arguments of a rushed process?
Are you about to enter into a consultation process?
Need to do one?
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars.