Angus Macinnis, Director of Dispute Resolution at StevensVuaran Lawyers, discusses the importance of consultation with employees when creating workplace vaccination mandates, and why failure to do so can be detrimental to the business.
If we had a dollar for every enquiry we have received about the entitlement of employers to require their employees to be fully vaccinated against COVID-19, a quick tally-up around the office indicates that we would currently have $3,764. If we had a dollar for every time we have advised that consultation with employees was a critical part of the answer to these enquires, we would, as it turns out, also have $3,764.
Last week, the Full Bench of the Fair Work Commission emphasised the importance of consultation, by finding that a vaccination requirement imposed by Mt Arthur Coal could not be described as a lawful and reasonable direction (because Mt Arthur Coal had failed to discharge the consultation obligations required by the Work Health and Safety Act 2011 (NSW) (the WHS Act)). Understanding the difference between the “consultation” Mt Arthur Coal did, and the consultation Mt Arthur Coal was required to do, is crucial for any employer seeking to impose vaccine requirements for employees.
The issue – “lawful and reasonable direction”
In a number of industries and industry segments, different State governments have imposed specific vaccine requirements as a matter of legislation. However, it was common ground that none of these were applicable to Mt Arthur Coal (and also common ground that there were no relevant provisions in either any collective industrial agreement, or any individual contracts of employment). Accordingly, the entitlement of Mt Arthur Coal to impose what was described as the “Site Access Requirement” (an obligation for workers to have a single dose of vaccine by 10 November 2021, and to be fully vaccinated by 31 January 2022) depended upon whether or not the Site Access Requirement was a “lawful and reasonable” direction.
Where a direction satisfies the requirements of being lawful and reasonable, there is an implied contractual obligation on the part of an employee to follow that direction – but as the Full Bench noted, employees are only obliged to comply with employer directions which are “lawful and reasonable”.
The objection to the Site Access Requirement
The union parties which challenged the imposition of the Site Access Requirement did so on the basis of an argument that Mt Arthur Coal had failed to comply with the worker consultation requirements in sections 47 and 48 of the WHS Act. The evidence did show that there had been consultation concerning how and why the Site Access Requirement would be implemented, but not about whether the Site Access Requirement would be implemented. The unions’ argument was accepted by the Full Bench, which found that the way in which the decision to introduce the Site Access Requirement was communicated demonstrated that the decision was “irrevocable”, and that consultation occurred only “after a definite decision had been made to implement the Site Access Requirement”.
So, did a failure to comply with WHS legislation make the decision unlawful, or unreasonable, or both? The Full Bench expressly found that the Site Access requirement was prima facie lawful, because “it fell within the scope of the employment”, and “there is nothing illegal or unlawful about becoming vaccinated”. In particular, the Full Bench found that a failure to consult under the WHS Act does not have the effect of invalidating a decision made by an employer.
However, the failure to comply with the WHS Act consultation requirements did make the direction unreasonable. The Full Bench did note that even taking the consultation obligations into account, there were a number of factors demonstrating the reasonableness of the Site Access Requirement, namely:
- It was directed at ensuring the health and safety of workers of the Mine.
- It had a logical and understandable basis.
- It was a reasonably proportionate response to the risk created by COVID-19.
- It was developed having regard to the circumstances at the Mine, including the fact that Mine 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 Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the Mine.
However, although these factors provided, in the view of the Full Bench, “a strong case in favour of the conclusion that the Site Access Requirement was a reasonable direction”, they could not produce that result in the absence of a meaningful consultation process.
Lessons for employers
Although the employer did not succeed in this case, the decision is plainly no win for “anti-vaxxers”. In particular, the Full Bench expressly accepted a number of “general factual propositions which are uncontentious”, including that, “vaccination is the most effective and efficient control available to combat the risks posed by COVID-19” and that, “even with high vaccine rates in the community, Covid 19 will remain a significant hazard in the workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times)”.
What the decision shows is that employees should be given a real opportunity to contribute to decisions about work health and safety matters. That opportunity does not involve a right of veto on the part of employees, and consultation does not require the employees to agree with every step the employer proposes to take. However, the problem for Mt Arthur Coal may have come from the fact that according to a news report, evidence given by Mt Arthur Coal’s witnesses was that the “consultation process” was based on a set of “talking points”. If you are trying to engage in genuine consultation, talking less and listening more is always a good start; “information exchange points”, or more simply “listening points”, are likely to be more helpful than “talking points”.
Once that consultation has occurred, however, the decision provides support for the imposition of vaccine requirements. In particular, the Full Bench expressly rejected the unions’ argument that employers would be justified in adopting a “wait and see” approach to the management of WHS risks. Further, the Full Bench expressly recognised that, “if there was a surge in COVID-19 cases such that the risk of transmission substantially increased or if a new, more transmissible or virulent, COVID-19 variant became prevalent then such circumstances may warrant a truncated consultation process”. That may be an important guide as more becomes known about the transmissibility of the Omicron, or newer, variants of COVID-19.
Angus Macinnis has a broad commercial practice with a focus on dispute resolution, and in particular, on employment and work health and safety law, and intellectual property law. He advises employers and employees on all aspects of employment law, from drafting contracts and employment policies, to dealing with employment related disputes, to dealing with employment and safety regulators. He has a particular interest in the employment law aspects of social media use and has published in this area in publications including the Law Society Journal, The New Lawyer, and the Internet Law Bulletin, as well as providing regular contributions to AHRI’s HRM Online website. He is a regular speaker at conferences for MCLE providers including Legalwise Seminars, and also provides training to employer clients in areas including anti-discrimination law. In the intellectual property area, Angus advises in relation to copyright and trade mark disputes, as well as “trade dress” and passing off disputes.