Landmark FWC decision sets roadmap for mandatory vaccination

FWC decision highlights importance of consulting with employees

BY Luis Izzo 09 Dec 2021

On 3 December, a five-member Full Bench of the Fair Work Commission (FWC) delivered its decision regarding whether BHP’s mandatory requirement that employees be vaccinated to enter worksites was lawful and reasonable.

In summary, the FWC decision:

Highlights the critical importance of consulting with workers when assessing whether to implement mandatory vaccination requirements; and
otherwise suggests that requirements for employees to be vaccinated will be lawful and reasonable, provided they are directed at protecting health and safety, have a logical basis and are proportionate to the risks posed by COVID-19.

ABLA acted for the Australian Chamber of Commerce and Industry (ACCI), as intervener, throughout the proceedings and we share insights from our involvement below.

BHP's Site Access Requirement

On 7 October 2021, BHP announced that all persons accessing its sites Australia-wide would be required to be vaccinated to access worksites (the Site Access Requirement) as part of BHP’s response to the risks posed by COVID-19.

The Site Access Requirement was introduced after a risk assessment was conducted by BHP, but which had not been shared with employees. The decision was not discussed with health and safety committees or heath and safety representatives. Instead BHP had mainly operated a ‘vaccine mailbox’ to take on board feedback about whether it should introduce the Site Access Requirement.

After announcing the introduction of the Site Access Requirement, BHP consulted its workforce extensively, conducting toolbox talks, numerous health and safety committee meetings, union meetings and providing the rationale for the Site Access Requirement.

Key insight: Consultation must be undertaken when assessing whether to introduce vaccination requirements

The model WHS laws in each State contain prescriptive obligations to consult when assessing risks to health and safety and when making decisions about how to minimise those risks.

The FWC unsurprisingly found that these WHS obligations mean that employers must consult before making a decision to introduce vaccination requirements, not once the decision has been made.

The FWC found that BHP had engaged in ‘scant consultation’ in its risk assessment phase regarding whether to introduce its Site Access Requirement, even though there was extensive consultation during the implementation phase.

The failure to adequately consult meant that the Site Access Requirement was not a lawful and reasonable direction that BHP could implement for existing employees.

Provided consultation takes place, FWC gives implicit support to vaccination requirements

Significantly, the FWC was otherwise supportive of BHP’s Site Access Requirement.

The FWC accepted as uncontroversial that:

An unvaccinated person is more likely to acquire the COVID-19 related virus from another unvaccinated person, rather than a vaccinated person.
While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of the COVID-19 related virus, they do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness (form the COVID-19 disease) once somebody acquires an infection.
Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.

Having regard to the ongoing risk of COVID-19 in NSW, the FWC held that there would have been a “strong case” for introducing the Site Access Requirement, had BHP consulted properly.

Factors to ensure vaccination requirements are reasonable

The FWC held that a number of factors gave rise to the “strong case” in favour of the Site Access Requirement.
Taking these factors from the decision, employers should ensure that any vaccination requirement:

is directed at ensuring the health and safety of workers of the sit
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 site
is timed having regard to the spread of COVID-19 in the local area at the relevant time
is implemented only after encouraging and facilitating vaccination for workers as much as practicable.

Where to from here: Can businesses move to implement vaccination requirements?

For new employees, employers remain largely able to introduce vaccination requirements as a condition of becoming employed (subject to the disability discrimination considerations we have previously outlined in our Vaccination Guide).

For existing employees, in many cases vaccination requirements will be lawful and reasonable, however, they should only be introduced:

after conducting a risk assessment tailored to each category of worker to determine whether vaccination is a necessary and proportionate control to protect the health and safety of employees; and
after meaningfully consulting with the workforce on any risk assessments and vaccination requirement proposals.

Clients should be careful to not simply mandate mandatory vaccinations as a policy at a ‘Head Office’ level and then seek to consult with employees generally on the implementation of such a policy.

The basis must be a proper risk assessment relevant to the risk profile of the categories of employees in the workplace and meaningful consultation on the risk assessments at that level as well as any ultimate implementation of risk controls.

Failing to do this could result in a successful challenge to any directions being lawful and reasonable.

Clients should also ensure that a full range of controls are considered, not simply vaccinations.

We are assisting clients daily in navigating these issues as companies look to protect their workers and their business from the ongoing threats posed by COVID-19.