Update on mandatory vaccination policies - Fair Work Commission weighs in on the issue

19 JAN 2022

 

The decision of the Full Bench of the Fair Work Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Mathew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 has raised questions about whether employers are entitled to introduce mandatory vaccination policies. 

The Commission’s ruling provides some guidance on how employers should approach the issue of mandatory vaccinations with their employees. 

What was the dispute?

Mining company, BHP, announced on 7 October 2021 that all employees at the Mt Arthur coal mine in the Hunter Valley had until 9 November 2021 to show that they had received at least one dose of a COVID-19 vaccine. Additionally, all employees had until 31 January 2022 to be fully vaccinated. 

Once the 9 November 2021 deadline passed, approximately 50 workers at the Mt Arthur site were stood down without pay because they had failed to produce evidence of their vaccination status. 

The Construction, Forestry, Maritime, Mining and Energy Union, who represent approximately 700 employees working at the Mt Arthur site, sought to have the Commission rule on whether the vaccination direction issued by Mt Arthur’s management was lawful and reasonable. 

Fair Work Commission’s Decision

The Commission noted that there were several factors in the dispute that may have supported the reasonableness of Mt Arthur’s vaccination mandate, including that the direction was understandable and intended to maintain the health and safety of Mt Arthur’s employees.

However, the Commission ultimately ruled that the mandatory vaccination policy at Mt Arthur was not lawful nor reasonable. Reason being, it was found that Mt Arthur’s management had not sufficiently consulted with their employees prior to implementing the mandatory vaccination policy in the workplace. 

Why is this case important? 

The Commission’s ruling specifies that an employer’s obligation to consult with employees is a crucial element that must be fulfilled before vaccination mandates can be introduced in the workplace. 

This is a timely reminder that employers must consult with employees before issuing major workplace directions. 

How can Marsdens help?

Ensuring a mandatory vaccination policy meets the prescribed requirement to be ‘lawful and reasonable’ is a difficult task. Businesses should seek specialised advice prior to implementing any mandatory vaccination policy.

If you need advice on potential vaccination mandates in your workplace, contact Aaran Johnson or Simon Kumar on (02) 4626 5077 to discuss how Marsdens can assist you and your business.  

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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