The Fair Work Commission (FWC) has ruled against the vaccine mandate of mining giant BHP at the Mt Arthur coal mine in New South Wales, stating that the company failed to “reasonably consult” with their employees.
However, despite the FWC ruling against BHP, the Full Bench have made it clear that if there had have been proper consultation with staff, then the mandatory vaccination policy would have been valid and in doing so have paved the way for BHP to implement a Mandatory Vaccination policy.
In its Decision the FWC stated “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,” the FWC said in its decision. “It seems to us 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.”
The Full Bench went on to say “Had the Respondent consulted the employees in accordance with its consultation obligations the above considerations would have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction”
The lessons to be learnt from this case, taking into account the determination of the FWC, is that employers should ensure that prior to implementing any mandatory vaccination requirement:
- A risk assessment is undertaken at the workplace to determine the risks involved with COVID-19 to staff, customers and contractors;
- is directed at ensuring the health and safety of workers at the workplace;
- meaningfully consultation with the employees on any risk assessments and vaccination requirement proposals;
- has a logical and understandable basis;
- is reasonably proportionate response to the risk created by COVID-19;
- is developed having regard to the circumstances of the workplace;
- is implemented only after encouraging and facilitating vaccination for workers as much as practicable.
If you would like further information on the introduction of a mandatory vaccination policy, please do not hesitate to contact us.
Greg Arnold – Director & Principal Consultant.
Disclaimer: This article provides a summary only of the subject matter without the assumption of a duty of care by Effective Workplace Solutions. No person should rely on the contents as a substitute for legal of other professional advice.