A Full Bench of the Fair Work Commission (FWC) in CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 has found that BHP's COVID-19 policy mandating vaccination, while likely lawful, was not a reasonable direction because BHP did not adequately consult with employees before implementing the mandate.
While the majority of factors were in favour of BHP's introduction of the mandate, the FWC found that affected employees should have been provided with a reasonable opportunity to persuade BHP in relation to the decision to implement the vaccine mandate. The FWC found that while the current COVID-19 vaccine mandate is not a reasonable direction, this issue can be addressed with proper consultation, which would render the mandate both lawful and reasonable.
The decision will have limited impact in jurisdictions where public health orders mandate vaccination.
This decision has significant implications for employers who have introduced, or are proposing to introduce COVID-19 vaccine mandates. The decision highlights the need for employers to properly consult with employees before introducing a COVID-19 vaccine mandate, and provides guidance as to what may constitute sufficient consultation.
Employers who already have a COVID-19 vaccine mandate in place should consider, with this decision in mind, whether they met their minimum consultation obligations pursuant to applicable Work Health and Safety (WHS) legislation and any relevant industrial...
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