Consultation is essential when issuing a mandatory vaccination policy

NATIONAL

Fair Work Commission finding.

A recent case involving BHP is a reminder to all members of the importance of consulting with staff prior to implementing a mandatory vaccination policy. Members are reminded that a mandatory vaccination policy may be advisable in some circumstances but may not be suitable for all employers. Members are encouraged to seek legal advice prior to implementing any mandatory vaccination policy.

In this particular case, BHP implemented a mandatory vaccination policy that would come into effect in one month’s time from the date of announcement of the policy, in order to give employees time to comply with the policy. Once the policy came into effect, 80 employees were stood down for failing to provide evidence of their vaccination, or for failing to provide evidence of a lawful reason for being exempt from the mandatory vaccination policy. In response, the CFMMEU Union lodged an application to the Fair Work Commission challenging BHP’s mandatory vaccination policy.

The Fair Work Commission found that there was nothing unlawful about individuals being vaccinated, and the policy was reasonable in many respects, including the following:

• The policy was proportionate to the risks associated with the worldwide pandemic that is COVID-19;

• It was developed based on the contact that workers have with other workers and the public; • It sought to ensure the health and safety of the workers and the public;

• The implementation coincided with the risks that were in the particular state (NSW) and the local area; and

• It was implemented after a significant period of encouraging staff to receive the COVID-19 vaccination.

However, despite the above, the Fair Work Commission determined that preventing access to the workplace for unvaccinated employees was unreasonable due to the level of consultation that BHP engaged in with their workers, prior to standing them down due to the policy. It was found that BHP did not consult with their workers “as far as reasonably practicable” pursuant to their obligations under the Work Health and Safety Act 2011 (NSW). In order to fulfil their consultation requirements, BHP should have undertaken the following actions:

• Provided employees with information relating to the reasons, rationale and data supporting the mandatory vaccination policy; and • Provided employees with a copy of the risk assessment or information relating to the analysis that informed the company’s decision to implement the policy.

This case serves as an important reminder that when members implement new policies, they must engage in genuine and meaningful consultation with staff, particularly where a failure to follow the policy can result in an employee’s inability to perform work, or disciplinary action including but not limited to termination of employment.

Members that are considering implementing a mandatory vaccination policy are also further reminded of consultation requirements, which may necessitate provision of supporting information, such as risk assessments, to employees.

Please contact the Employment Law team on 1800 888 479 option 1 or legal@mga.asn.au for further information in relation to mandatory vaccination policies and how they can be lawfully implemented.