Workplace consultation crucial when mandating vaccination
Many employees wonder whether their employer can lawfully direct them to obtain a vaccination. Complexities including vaccine aversion and the rapidly evolving nature of the COVID-19 pandemic have influenced the approach taken by Australian courts and tribunals in response to employer mandated COVID-19 vaccination. A recent decision of the Full Bench of the Fair Work Commission has again considered the lawfulness of an employer’s vaccine mandate.
CFMMEU v Mt Arthur Coal Pty Ltd
In October 2021, Mt Arthur Coal Pty Ltd announced that in order for its employees to enter its Hunter Valley coal mine, they would need to:
- have at least one dose of a COVID-19 vaccine by 10 November 2021; and
- be fully vaccinated by 31 January 2022.
The CFMMEU, who represents most of Mt Arthur Coal Pty Ltd’s employees, challenged the direction on the basis that it:
- did not comply with consultation obligations under the Work Health and Safety Act 2011 (NSW) (“the WHS Act”) and the applicable enterprise agreement;
- contravened the Privacy Act 1988 (Cth); and
- was not lawful/reasonable and interfered with the rights of employees in relation to medical procedures.
Mandating vaccination must be lawful and reasonable
The Full Bench observed that employers can mandate vaccinations when such a direction is lawful and reasonable, even in the absence of a public health order or express term in an employment contract contemplating such measures.
Whether a direction is lawful and reasonable depends, the Full Bench stated, on a variety of circumstances, including:
- the nature of the employment;
- common employment practices;
- any instruments and laws governing the employment relationship; and
- whether there is a logical and understandable basis for the direction.
Several factors indicated that the Mt Arthur Coal mandate was lawful and reasonable, in the eyes of the Full Bench, including that it aimed to ensure the health and safety of workers, had a logical and understandable basis and was reasonably proportionate to the risks created by COVID-19. There was also seemingly no dispute about the effectiveness of the vaccines or the serious risks posed by COVID-19.
Despite this, the Full Bench gave significant weight to obligations under the WHS Act which, being a law governing the employment relationship, obliged Mt Arthur Coal Pty Ltd to provide employees with a genuine opportunity to express their views on matters involving their health and safety.
The Full Bench found that as this consultation had not occurred, the vaccine mandate was not lawful or reasonable. If Mt Arthur Coal Pty Ltd complied with its consultation obligations, the Full Bench held that it was possible for it to institute the mandate in the future, lawfully and reasonably.
Full Bench generally supportive of the mandate save for the lack of consultation
At first glance, the Full Bench’s decision is a victory for those who oppose vaccine mandates. Arguably, the decision opens an avenue for employees to claim that their employer’s vaccine mandates are unlawful and unreasonable.
A closer analysis of the decision shows, however, that the Full Bench was generally supportive of Mt Arthur Coal Pty Ltd’s vaccine mandate. Barring consultation deficiencies, it is likely that the Full Bench would have concluded that the vaccine mandate was lawful and reasonable.
The Full Bench’s decision confirms that employers must follow certain processes, including complying with consultation obligations, before mandating vaccination.
The decision is an example of the case-by-case analysis that will be undertaken by courts and tribunals in assessing the lawfulness and reasonableness of any direction, including those seeking to impose vaccine mandates.
Employees should consider whether their employer has followed obligations, including in relation to consultation, if they receive such a direction which causes them concern.
You can contact Hall Payne Lawyers by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.
This article relates to Australian law; either at a State or Federal level.
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.