Mandatory COVID-19 vaccination policies still possible, if done correctly

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 [2021] 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.

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