Employers who have, or are considering imposing, a mandatory COVID-19 vaccination policy have some important guidance from the Fair Work Commission on what is lawful and reasonable (Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal  FWCFB 6059).
The decision of the Full Bench largely affirms the position taken in previous decisions on mandatory vaccination, with individual considerations, unique regulatory obligations, and industry practices affecting the reasonableness of a mandatory vaccination policy.
A well drafted vaccination policy which does not breach any laws (eg. anti-discrimination or health laws) will be lawful. Whether it is reasonable and therefore able to be enforced by a reasonable and lawful direction will depend on the all the factual circumstances of the employer and the employees involved and the process undertaken, including obligations to consult.
The mandatory vaccination direction
On 7 October 2021, Mt Arthur Coal Pty Ltd announced that all employees at its Mt Arthur open-cut coal mine must be vaccinated against COVID-19 as a condition of entry to attend work at the mine. The issue for the Full Bench was whether this direction was lawful and reasonable, which turned on whether the consultation with the workforce complied with sections 47 and 48 of the Work Health and Safety Act (NSW) (WHS Act)
What is a reasonable policy or direction?
The Full Bench has indicated that the test of what is reasonable has previously been interpreted too broadly. While still acknowledging that an employer, when acting reasonably, has “a genuinely free discretion”, the Full Bench has arguably raised the threshold of reasonableness – holding that the relevant test is not that “a policy will only be unreasonable if no reasonable employer could have adopted it”. The effect of this decision will require employers to carefully consider what remains within the bounds of reasonable managerial prerogative.
Factually, the decision focused on the failure to consult adequately with employees, but the Full Bench affirmed that the test of reasonableness demands consideration of all the circumstances:
"We agree with ACCI that a range of factors will bear on whether a direction is reasonable. As we have mentioned, the reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations." [emphasis added]
A lawful direction
The Full Bench noted that the policy was implemented to address statutory and common law WHS obligations and is lawful on its face, as such a policy or direction falls within the scope of employment and "there is nothing illegal or unlawful about becoming vaccinated".
While the Full Bench refrained from expressing a concluded view on the matter, the decision tends to support the position that, in most circumstances, the question of lawfulness is primarily concerned with the action that the employee is being directed to undertake, and that the failure to comply with a consultation obligation or process does not invalidate or impact on the lawfulness of the direction.
The elements of adequate consultation with the workforce
The Full Bench found in this case that the employer's consultation was perfunctory. Some important factors to consider, in properly consulting, included that:
- Consideration must be given to the precise terms of the requirement to consult and the factual and legal issues present, including the particular circumstances of anyone who is being consulted;
- The subject, which an opinion is being sought on, should be clearly articulated to allow for meaningful input;
- There is a degree of “inherent flexibility” and what will constitute a meaningful opportunity will vary according to the nature and circumstances of the case;
- If genuine, the consultation will represent a real opportunity to provide input;
- Generally, consultation will occur during a formative stage of decision-making – it should not simply be an afterthought, or a “formal or perfunctory exercise”;
- Genuine consultation will usually not occur where a “definite or irrevocable” decision has already been made;
- Consultation is not a “mere opportunity to be heard” and requires an “entitlement to have their views taken into account” when making a decision;
- “A right to be consulted, though a valuable right, is not a right of veto.”
As highlighted above, it is critically important to note that the scope and requirements of consultation will depend upon the specific terms and construction of the legal instrument which provides the obligation. In the case of the WHS Act, the duty to consult is triggered before a decision is made to embark on a certain course of conduct. Employers might also need to comply with consultation rights in industrial instruments, and these could have different technical requirements, including who must be consulted and when, and what information must be provided.
The Full Bench also clarified that whether consultation will be adequate is impacted by the urgency in which the consultation must be undertaken.
Making your mandatory vaccination policy lawful and reasonable
This decision ultimately highlights that what is lawful and reasonable with respect to mandatory vaccination policies will depend on all of the relevant circumstances, and will vary from employer to employer, and even from workplace to workplace for those who conduct business across multiple jurisdictions and locations.
A policy or direction which addresses WHS obligations and safety in the workplace is lawful (provided it does not breach other laws such as anti-discrimination laws). In order to be enforceable the reasonableness of the policy or direction to comply with the policy must be carefully considered including the process taken to implement it (which includes any consultation obligations).
To help ensure that a policy or direction is reasonable, employers should:
- Have a policy which encourages voluntary vaccination as a first step. This will often include an anonymous survey to start the dialogue about concerns with safety and mandatory vaccinations, and to gauge the level of vaccination.
- Map out positions that require vaccination because of a health directive, but know that this is not a complete answer as health directives expire and can be ambiguous.
- Be clear on the basis upon which a vaccination policy is being implemented and if it is in order to address an identified health and safety risk, ensure it is supported by a considered risk assessment process – this is likely to require a level of consultation at this stage in accordance with usual WHS procedures.
- Document the process.
- Consider the information you will include in a consultation process – this may include a draft policy, the risk assessment previously identified, vaccination rates (aggregated); COVID-safe measures already in place, the reasons for any policy and the process in which it is intended to be implemented. Not only is consultation mandatory for an enforceable policy, it is critical to bring employees along the journey to enhance morale and to reduce claims. This is a very stressful issue for many employees and employers should remember this.
- Ensure you understand and meet all your consultation obligations – the scope and requirements of those obligations will depend on the express terms of the legal instrument which provides for the consultation. At the very least, the duty to consult under sections 47-49 of the WHS Act requires that consultation:
- occurs prior to making a decision to implement;
- must be more than a formal or perfunctory exercise;
- must give employees a real opportunity to provide opinions, information and the opportunity to impact upon both the decision and implementation.
- Develop any policy or direction having regard to the current circumstances of the workplace, including whether there are any other reasonable and proportionate measures which may be implemented – eg. social distancing, masks, working from home.
- Ensure that the policy or direction has a logical and understandable basis.
- Ensure that the policy or direction is reasonably proportionate to the risk.
- Ensure that in giving individual employees directions to comply with a policy (the consequences of which may be termination) you have a have a process to take into account their individual circumstances (eg. medical exemptions). If you include an exemption request/ and or disputes process in the policy it may reduce the risk of successful claims.