Unlawful and Unreasonable Vaccination Mandate - The FairWork Commission’s Recent Decision on BHP’s Vaccination Policy
April 19, 2023
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Last week, the Fair Work Commission Full Bench handed down the much anticipated decision of CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal.
BHP COVID-19 Vaccination Policy
Mt Arthur is an open cut coal mine in NSW owned by Hunter Valley Energy Coal Pty Ltd, which is a member of the BHP group of companies. The dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Hunter Valley Energy Coal arose when Mt Arthur announced that all workers at the Mine must be vaccinated against COVID-19 as a condition of site entry. Under the Site Access Requirement that was announced, workers would have had to have at least a single dose of an approved COIVD-19 vaccine by 10 November 2021, and be fully vaccinated by 31 January 2022.
The Fair Work Commission Decision
After expressing concerns about the lawfulness of the Site Access Requirement, the CFMMEU who represent 700 of the employers at the mine, made an application to the Fair Work Commission seeking a determination. The issue before the Full Bench was whether the Site Access Requirement was a “lawful and reasonable direction” in respect of employees at the Mt Arthur mine who are covered by the Mt Arthur Coal Enterprise Agreement 2019.
The Full Bench observed that a lawful direction is one which falls within the scope of an employee’s employment and there is no obligation to obey a direction which goes beyond the nature of the work the employee has been contracted to perform. Accordingly, employees are obliged to comply with employer directions which are lawful and reasonable. The Full Bench recognised that reasonableness is a question of fact having regard to all the circumstances and the nature of the particular employment.
To assess the lawfulness and reasonableness of the Site Access Requirement, the Full Bench considered whether Mt Arthur had an obligation under the current Work Health and Safety Act 2011 (WHS Act). Under s 47(1) of the WHS Act there is an obligation on employers to consult, so far as reasonably practicable, 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”.
The Full Bench reached the conclusion that the Mt Arthur did not given the employees a “genuine opportunity to express their views and to raise work health and safety issues, or to contribute to the decision-making process relating to the decision to introduce the Site Access Requirement.” The Full Bench said that due to the lack of information relating to the reasons, rationale and data supporting the proposal, the engagement with employees in the assessment phase was not “consulting” as far as reasonably practicable to comply with s 47 of the WHS Act.
Reasons for the Decision
The Full Bench determined that the Site Access Requirement was a lawful direction because it fell within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated. However, when it came to the question of reasonableness the Full Bench determined that the Site Access Requirement was not a reasonable direction because Mt Arthur had not consulted with its employees as required by ss 47 and 48 of the WHS Act.
The Full Bench noted that had Mt Arthur consulted the employees in accordance with its consultation obligations under the WHS Act and Enterprise Agreement, such that the Commission could be satisfied that the decision to introduce the Site Access Requirements was the outcome of a meaningful consultation process, the Site Access Requirements would have been a reasonable direction.
What does this decision mean for other employers?
The decision provides some clarity as to the minimum expectations in relation to COVID-19 vaccination policies and directions introduced by employers. The Site Access Requirement would have been lawful and reasonable, if the consultation process had been engaged before implementation by Mt Arthur.
BHP currently has other vaccine mandates in place across Victoria and Western Australia which will remain in place. Provided that Mt Arthur commences its consultation with the employees in a timely fashion, the Full Bench expects that Mt Arthur would be in a position to make a decision about whether to impose the Site Access Requirement at the Mine prior to 15 December 2021.
The decision will have little impact where public health orders mandate vaccination.
Until then if you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au.
By Matilda Lloyd (Paralegal)
For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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The International Sustainability and Carbon Certification (ISCC) System has come to the attention of many Western Australian farmers recently, as the scheme has changed one of its policies regarding aerial spraying. What is the ISCC? The ISCC is one of the world’s largest voluntary sustainability certification schemes enabling participants to demonstrate they are producing materials in a sustainable way that meets or exceeds community expectations. In Australia it is widely used in the canola industry, enabling Australian canola growers to access the European biofuel market. CBH Marketing and Trading holds certification for the ISCC EU and ISCC PLUS programs, that cover canola, barley, oats, wheat and lupin, allowing WA growers to participate in both programs. Participating in the ISCC program can result in a premium on grain, however participants are subject to more stringent measures to satisfy sustainability accreditation requirements. Recent decision on aerial spraying ISCC Principle 2.6.2 prevents aerial spraying from taking place within 500 metres of a body of water. CBH has successfully lobbied for an exemption to this Principle, for farm dams and salt lakes of low ecological value. As part of its lobbying, CBH provided expert reports to the ISCC on the hydrology and ecology of WA farm systems. For farmers who are signed up to the ISCC program, this removes an obstacle during the season for weed management. The Principle does still require a 500 metre buffer for other bodies of water, including freshwater lakes, rivers, ponds or creeks. However, for those who farm yabbies and marron, this change may not be welcome. Marron and yabby farmers have noticed impacts on their populations where aerial spraying has taken place close to their properties, and aerial spraying can unintentionally damage natural vegetation, including young and old growth trees. For growers, it’s always prudent to follow best practice guidelines for aerial spraying to avoid spray drift – including monitoring weather conditions and the effect of water added to the chemical. For some farmers, this decision may prompt an examination of whether signing up to the ISCC program might be best for their business. In this circumstance, it is important to weigh up the potential benefits of the program compared to the sustainability accreditation requirements. For others, this decision is a timely reminder to stay up to date with best practice guidelines when it comes to spraying, particularly during the seeding season. For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
How does the Annual Wage Review affect workers and small business owners? Each year, the Fair Work Commission reviews the National Minimum Wage and the minimum wages set out in awards. Cost of living and inflation are front of mind for both employers and employees, and this year’s Annual Wage Review is likely to see an increase in the minimum wage and award rates. The Annual Wage Review is conducted by an Expert Panel, which takes submissions from interested groups, including the Federal Government, unions, and business lobby groups. The Federal Government’s submission to the Wage Review this year called for an increase to the minimum wage, though not specifying an amount. The Australian Chamber of Commerce and Industry has advocated for an increase of 2 per cent, at most. The announcement will likely take place in early June and any increase to the national minimum wage will take effect in the first full pay period on or after 1 July 2024. Failure to pay employees at least the minimum rate that is set out in an applicable award can result in penalties, including requirements for back pay and fines. The Fair Work Ombudsman uses its enforcement powers to issue compliance notices to employers, and recovered $14.8 million in unpaid wages in 2022-23. Small and medium businesses are subject to the same scrutiny as large businesses. For business owners, this is a timely reminder to review employment agreements and payments to staff. You should be conscious of which awards cover your staff members, as award rates for each level increase commensurate with the national minimum wage increase. It is also important to be aware of employee entitlements and set-offs, to ensure you are paying employees what they’re entitled to and avoiding future claims. If you are not sure what award your employee is covered by, have a question about employment conditions or require any other assistance with employment and workplace matters contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au . By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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