BHP Mandatory COVID-19 Vaccination Policy: Reasonable, Lawful but Failed…
Last Friday 3 December 2021 the Full Bench of the Fair Work Commission handed down a decision in the case CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal C2021/7023 [2021] FWCFB 6059 (the “BHP Case”). The BHP Case decision provides a number of useful insights when considering the adoption of a COVID-19 Mandatory Vaccination Policy by a Registered Club:
(Reasonable Policy) The BHP COVID-19 Mandatory Vaccination Policy for Staff was considered reasonable because:
It was directed at ensuring the health and safety of workers
It had a logical and understandable basis.
It is a reasonably proportionate response to the risk created by COVID-19.
It was developed having regard to the circumstances at the site, including the fact that workers cannot work from home and come into contact with other workers whilst at work.
The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time.
It was only implemented after the site spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers.
(Lawful) The BHP COVID-19 Mandatory Vaccination Policy was considered a lawful direction.
In relation to reasonableness generally the Full Bench concluded that it was uncontroversial that:
i. In order to establish that a direction is reasonable, it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interest of the parties. ii. In any particular context, there may be a range of options open to an employer within the bounds of reasonableness. iii. A direction lacking an evident or intelligible justification is not a reasonable direction an employee is obliged to obey, but that is not the only basis upon which unreasonableness can be established.
The Full Bench said that the Site Access Requirement (being the COVID-19 Mandatory Vaccination Policy) was prima facie a lawful direction because:
i. it fell within the scope of the employment, and ii. there is nothing ‘illegal’ or unlawful about becoming vaccinated.
(COVID-19 Facts and COVID-19 Vaccine Facts) It is difficult to keep up with all the statistics and medical information being reported on Government websites and the media. Usefully the Full Bench, with the assistance of expert evidence have determined the general factual proposition which was uncontentious and were established on the evidence:
COVID-19 involves a high burden of disease, greater than influenza.
Any infected person is at risk of developing serious illness from the virus, which may lead to death.
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.
All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant.
All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.
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.
An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.
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.
Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.
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).
Further, the Full Bench found that it followed from proposition (g) above, as a matter of logic, that ‘higher rates of vaccination decrease the chance that an unvaccinated person will acquire COVID-19 because an unvaccinated person is less likely to acquire COVID-19 from a vaccinated person than an unvaccinated person. In this sense, higher rates of vaccination do decrease the risks to an unvaccinated person. However, [as the expert evidence made clear], higher rates of vaccination do not remove the risk of COVID-19 infection for unvaccinated workers. That is because unvaccinated workers are at risk of catching COVID-19 from other unvaccinated workers and fully vaccinated workers, who can acquire COVID-19 and efficiently transmit the disease to others. Indeed, unvaccinated people are more likely to acquire COVID-19 compared with vaccinated people. Further, unvaccinated workers on a work site increase the risk of spreading COVID-19 to vaccinated workers and other unvaccinated workers. In turn, those persons are at risk of spreading COVID-19 outside the workplace to their families and friends.’
The Full Bench was also satisfied, on the basis of the expert evidence, that the rates of infection of COVID-19, in the site region and throughout Australia, are likely to increase over time as movement restrictions ease, with the result ‘that it is inevitable that everyone who works on the [site] will come into contact with someone – probably many people – who are infected with COVID-19’ and that ‘when COVID-19 does so spread, those who remain unvaccinated are at greatest risk of acquiring COVID-19, becoming seriously ill or dying from acquiring COVID-19, and infecting other people with whom they come into contact.’
(Consultation) The Full Bench found that the BHP had not consulted as it should have. Whilst the Policy was reasonable and lawful they had not consulted as required by WH&S law. In particularly:
The Full Bench concluded that the Respondent was required to comply with s.47(1) of the WHS Act, which requires it 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’ and said: “Consultation is treated by the WHS Act as a matter of substance which is to occur prior to implementation. Section 48(2) requires that the consultation involve a HSR..”
The Full Bench states:
i. ‘The process undertaken by the Respondent and BHP in relation to the decision to implement of the Site Access Requirement has been set out above. In our view, the Employees were not given a genuine 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. In effect the Employees were only asked to comment on the ultimate question: should the Site Access Requirement be imposed? The contrast in the consultation or engagement with Employees in the implementation phase compared to the assessment phase is stark and suggests that during the assessment phase the Respondent was not consulting as far as is reasonably practicable as required by s.47 of the WHS Act. There was no real explanation provided by the Respondent as to why there was a markedly lower level of engagement during the assessment phase.
ii. We do not consider that HSRs were involved in any consultation in any meaningful way as required by s.48(2) and we note that established mechanisms such as health and safety committee meetings were not used for this purpose. We agree with the Applicants that the language used in the 31 August 2021 communication demonstrates that the Employees would not be consulted in a meaningful way prior to a decision being made by BHP about the Site Access Requirement. Accordingly, we are not satisfied that there was consultation in accordance with ss.47 and 48 of the WHS Act. In reaching this conclusion, we have taken the guidance provided by the Code into account.‘Consultation is treated by the WHS Act as a matter of substance which is to occur prior to implementation. Section 48(2) requires that the consultation involve a HSR.