On Friday, 3 December 2021 an extended full bench of the Fair Work Commission handed down a decision in a dispute involving the CFMMEU and Mt Arthur Coal Pty Ltd. The full bench consisted of five members and included President Iain Ross.
It was asked to arbitrate a dispute between the Union and Mt Arthur Coal concerning a requirement that workers who attended the Mt Arthur site had at least a single dose of an approved COVID-19 vaccine by 10 November 2021 and would be fully vaccinated by 31 January 2022.
The decision focused on whether Mt Arthur Coal had complied with its obligations under the Enterprise Agreement to consult with its workers. The full bench concluded that Mt Arthur failed to meaningfully consult with the employees and that this denied the employees the opportunity to influence the policy. The full bench was not convinced that the policy introduced was a reasonable direction.
The decision goes on to summarise some general propositions at paragraph 257 – 264. It acknowledges that it is a difficult task faced by the employer and that absent of a public health order or express term in the contract of employment or Industrial Agreement, a requirement to be vaccinated must be based on a lawful and reasonable direction.
The Commission summarises that the reasonableness of a direction is a question of fact having regard to all the circumstances which includes consultation obligations, the nature of the employment, the established usage affecting the employment, common practices, and the general provisions of any instrument governing their relationship. Importantly the Commissions says:
If the object and purpose of such a direction is to protect the health and safety at work of the employees and other persons frequenting the premises, then such a direction is likely to be lawful. This is so because it falls within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated, but such a direction must be reasonable.
Reasonableness can only be determined in context. It needs to be assessed on a case-by-case basis. Like all decisions, this decision turns on its particular facts. This decision related to consultation obligations under an Enterprise Agreement and the Work Health and Safety Act.
It is not authority for the proposition that vaccination mandates are not reasonable but rather it is authority for the proposition that employers need to make sure that consultation obligations are observed. Mt Arthur coal may be able to implement a vaccination policy if they engage in further consultation.
It should remind all employers that a blanket rule imposed without any discussion may not be lawful. A carefully considered and appropriately implemented agreement will be.
Here is the link to that decision  FWCFB 6059
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