Full Bench delays introduction of mandatory COVID vaccinations at Mine site

Full Bench delays introduction of mandatory COVID vaccinations at Mine site

A Full Bench of the Fair Work Commission has rejected an employer’s desire to mandate compulsory COVID-19 vaccinations as part of the access requirements to a mine site. However, the Full Bench’s decision was based around concerns as to the lack of adequate consultation provided to workers, safety representatives and relevant unions rather than the initiative itself.

The Full Bench’s decision was in response to a dispute lodged by the CFMMEU concerning the Mt Arthur open cut coal mine (the Mine) in the NSW Hunter Valley. Mt Arthur is a wholly-owned subsidiary of Hunter Valley Energy Coal Pty Ltd, which operates the Mine. Mt Arthur and Hunter Valley Energy Coal Pty Ltd are members of the BHP group of companies (BHP).

On 7 October 2021, mine management advised workers of a new direction that all workers at the Mine must be vaccinated against COVID-19 as a condition of site entry (Site Access Requirements). Employees were advised that the Site Access Requirements deemed that they must have had at least a single dose of an approved COVID-19 vaccine by 10 November 2021 and must be fully vaccinated by 31 January 2022. Failure to provide the necessary confirmation of their inoculation status would mean an employee would be denied access to the Mine.

The CFMMEU supported their members who opposed the new policy on several grounds. Due to the potential significance of the case, the Full Bench granted leave to appear to several other unions (AMWU, CEPU, ACTU) as well as employer bodies (AIG, ACCI).

The full bench identified the following ten (10) propositions that were established on 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.

In assessing this medical evidence to support the new requirements, the Full Bench did note,

“Importantly, unvaccinated workers on a work site will increase the risk of spreading COVID-19 to vaccinated workers and other unvaccinated workers. Even one unvaccinated person still poses a significantly higher risk of acquiring the infection and transmitting it to other vaccinated people”.

However, the Full Bench was less supportive of the consultation process undertaken by the employer. The full bench referenced the below s47 of the Workplace Health and Safety Act 2011 in s88, regarding how the employers are obliged to consult with employees on each occasion when it is proposed to introduce matters relating to work health and safety. Similar legislative provisions exist in all Australian jurisdictions except Victoria and Western Australia.

s47   Duty to consult workers

(1)  The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

Maximum penalty—

(a)  in the case of an individual—230 penalty units, or

(b)  in the case of a body corporate—1,155 penalty units.

(2)  If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

(3)  The agreed procedures must not be inconsistent with section 48.

The Mine attempted to argue that they had effectively consulted with workers by adopting three phases, being the options phase (prior to 31 August 2021), the assessment phase (from 31 August 2021 until 7 October 2021), and the implementation phase (from 7 October to 10 November 2021). However, the Full Bench did not agree.

As they noted,

“Despite BHP’s communication noting that they were committed to ongoing engagement with their workforce, it does not appear that employees were asked to contribute ideas or suggestions in relation to the decision-making process or the risk assessment or rationale that underpinned the decision to introduce the Site Access Requirement. Although substantial information was provided about COVID-19, little if any information was provided to Employees about the risk assessment that was undertaken, such as an evaluation that the existing control mechanisms were of limited effectiveness…we consider that information that explained how the Respondent had taken into account and weighed up matters including those set out in s.18 of the WHS Act, was relevant information”.

The Full Bench also noted,

“there does not appear to have been a genuine attempt to consult with the unions during the assessment periods”. Perhaps as equally important, they noted, “There also appears to have been no direct engagement with health and safety representatives during the assessment phase. There was no discussion of mandatory vaccination at any health and safety meetings held before the announcement of the Site Access Requirements on 7 October 2021”.

With regard to the workforce, the Full Bench noted,

“In our view, the Employees were not given a reasonable opportunity to express their views and to raise work health or safety issues, or to contribute to the decision-making process relating to the decision to introduce the Site Access Requirement. They were not provided with information relating to the reasons, rationale and data supporting the proposal, nor were they given a copy of the risk assessment or informed of the analysis that informed that assessment”.

Ultimately,

“Mt Arthur’s failure to meaningfully consult with the employees denied the Employees the opportunity to influence the Respondent in its decision-making process and the possibility of a different outcome. We are not persuaded that further consultation could not possibly have produced a different result”.

Despite ruling in favour of the union and its members in the dispute, based upon Mt Arthur’s failure to adequately consult, the Full Bench did not totally oppose the introduction of the new Site Access Requirements in the future.

They acknowledged the range of factors that the Mine had considered when formulating the required mandatory vaccination policy.

These included that the Site Access Requirements were:

  1. Directed at ensuring the health and safety of workers at the Mine.

  2. Developed on a logical and understandable basis.

  3. A reasonably proportionate response to the risk created by COVID-19.

  4. Developed having regard to the circumstances at the Mine, including the fact that Mine workers do not have the option of working from home, and hence can come into contact with other workers at the site.

  5. Timed to commence with reference to circumstances pertaining to NSW and the local area at the relevant time.

  6. Only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the Mine.

Indeed, their final comments are telling in this regard. As they noted,

“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 (points 1-6) 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 (C2021/7023)

For questions about COVID-19, consultation, mandatory vaccinations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 925 529 or via email at dean@workforceadvisory.com.au.

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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