As the pandemic continues to plague us, there have been some developments in courts and tribunals over the summer that shed light on the question of the lawfulness and reasonableness of vaccination requirements introduced by employers.

The cases deal with three distinct issues:

• whether an employer must consult, and has consulted, its employees before introducing a vaccination policy;
• whether it is harsh, unjust or unreasonable to dismiss an employee for failing to be vaccinated against COVID-19; and
• what might ground an exemption from a vaccination policy.

The need to consult properly

THE BHP CASE: Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059

On 3 December 2021, the Full Bench of the Fair Work Commission handed down its long-awaited decision on BHP’s COVID-19 vaccination requirement (Requirement). The Requirement, as implemented by BHP’s subsidiary Mt Arthur Coal Pty Ltd (Mt Arthur), made vaccination a condition of worker entry to the Mt Arthur mine site from 31 January 2022.

On 7 October 2021, Mt Arthur announced to all staff members that it would be implementing the Requirement. Following this announcement, Mt Arthur:

• conducted ‘toolbox’ meetings with staff;
• provided information to staff regarding the risk assessment underpinning the Requirement; and
• held meetings with the various health and safety committees and unions about the implementation of the Requirement.

The CFMMEU challenged the Requirement for a number of reasons, including that Mt Arthur did not comply with consultation obligations under either WHS legislation or the applicable enterprise agreement.

The Full Bench ultimately concluded that the Requirement was not reasonable, primarily because Mt Arthur had not consulted adequately before making its decision to introduce the Requirement. In particular:

• employees were not provided with information relating to the reasons, rationale and data supporting the proposal to introduce the Requirement, nor given a copy of the risk assessment or informed of the analysis that informed that assessment;
• employees were not given a reasonable opportunity to express their views, or contribute suggestions, in relation to the risk assessment or rationale underpinning the Requirement; and
• Health and Safety Representatives were not involved in any meaningful way as required by WHS legislation.

However, on 17 December 2021, the Commission found that the problems had been fixed through extensive extra discussions since 3 December 2021. The Commission stated that both sides had agreed that ‘every employee and health and safety representative had received a reasonable opportunity to make every contribution to consultation that they wished to make, and to say everything that they wished to say, in a way that meant their contribution could be considered in making a decision’. In this context, BHP reinstated the Requirement.

The case is a reminder that process matters; and that employees’ views should be able to be heard, and should be considered. It is also indirectly supportive of employers’ right to implement vaccination policies – as long as they have consulted.

AND IN CONTRAST: Michael Taylor v WesTrac Pty Ltd (C2021/7918)

On the other hand, a recent decision by the Fair Work Commission indicates that an employer does not need to consult with its employees if it is merely complying with a government direction that employees be vaccinated against COVID-19 in order to work.

In this case, the Applicant claimed that WesTrac (his employer) was using coercion to make him undergo a medical procedure (i.e. vaccination) against his will and was using the threat of ending his employment to get compliance.

Accordingly, he argued that, under the Vehicle Repair, Service and Retail Award 2020 (Award), WesTrac was required to comply with:

• the consultation obligations in clause 35 of the Award, which required it to consult with him if it decided to make a major workplace change; and
• the dispute settlement procedure prescribed in clause 37 of the Award.

WesTrac, in its reply, relied on the Resources Industry Worker (Restrictions on Access) Directions (No. 2) made under the Public Health Act 2016 (WA). This direction required resource industry workers, including the Applicant, to not enter a rural or remote resources industry site or a remote operating centre if they had not been partially vaccinated against COVID-19 on and from 1 January 2022.

Ultimately, in the Commission’s view, what occurred was not a decision by the employer to make a change; rather the employer was merely seeking to comply with its obligations under the government’s public health direction. In this context, the consultation obligations in clause 35 of the Award had no application. Nor was the dispute settlement procedure in clause 37 relevant, because this particular dispute did not arise about a matter under the Award or the NES.

In light of this decision, it appears that if an employer is merely taking steps to implement and comply with a government direction that its employees be vaccinated against COVID-19 in order to attend work, then the employer is not required to comply with any consultation obligations it may otherwise have under a modern award or enterprise agreement.

Not unreasonable to dismiss an unvaccinated worker

Floors Aucamp v Association for Christian Senior Citizens Homes Inc. [2021] FWC 6669

On 22 December 2021, the Fair Work Commission accepted that the Association for Christian Senior Citizens Homes Inc had a valid reason to dismiss a maintenance manager from its nursing home because of his incapacity as an unvaccinated person to perform his job.

Mr Aucamp was subject to the Victorian COVID-19 Mandatory Vaccination (Workers) Directions (Vaccination Directions), which meant that he was required to receive a dose of a COVID-19 vaccine by 22 October 2021 in order to work. Accordingly, because he was unvaccinated and said that he would remain so, the employer dismissed him on 14 October 2021.

The Commission found that, if the employer had permitted Mr Aucamp to keep working, this would have constituted an offence under the Public Health and Wellbeing Act 2008 (Vic), rendering the employer liable for a substantial financial penalty.

While Mr Aucamp expressed concern about:

• the speed of the process that resulted in his dismissal; and
• that he had not been afforded the opportunity under the vaccination directions to make a booking to receive a COVID-19 vaccine by 22 October 2021,

his position on the requirement to be vaccinated had not changed at any point since 14 October 2021.

Finally, after considering ‘other relevant matters’ under s 387(h) of the Fair Work Act (including that he was given the opportunity to respond to the proposal that his employment would be terminated), the Commission found none of them ‘sufficient’ to render the dismissal ‘harsh, unjust or unreasonable’.

Marc Motion v Qantas Airways Limited (ACN 009 661 910) & Ors, QUD17/2022

On 24 January 2022, the Federal Court threw out an interlocutory bid to stop Qantas Group dismissing more than 20 employees who failed to meet its mid-November vaccination deadline.

The employees contended that Qantas was taking unlawful industrial action against the employees by disciplining them for failing to comply with its vaccination policy, maintaining that the vaccination direction was neither lawful nor reasonable.

In considering the purported urgency of the case, Justice Downes noted that employees knew from at least July last year that Qantas would require them to be vaccinated in order to remain employed. Further, Qantas had provided its survey results and a proposed mandatory vaccination policy to employees on 18 August and sought feedback on the policy, ahead of the airline finalising the policy on 20 September.

Accordingly, his Honour found that it was difficult to understand why an urgent application had been brought by the applicants two months after the deadline by which they were meant to have been vaccinated. The employees would suffer no harm, or urgent irremediable harm, if the injunctions were not granted.

What are lawful and reasonable exemptions to a vaccination direction?

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016

On 22 January 2022, the Queensland Industrial Relations Commission upheld a government employer’s ‘brief’ reasons for refusing a COVID-19 vaccine exemption for a worker, who contended that getting vaccinated could potentially cause tension with her family members.

The Commissioner of the Queensland Police Service issued a mandatory direction for all police officers and frontline staff members to become vaccinated against COVID-19, in September 2021. Ms Colebourne’s application for an exemption to this direction was not based on medical or religious grounds, but due to ‘other exceptional circumstances’.

The Commission found that the dozen-plus reasons she gave were speculative, did not apply to her as an individual or were not supported by adequate evidence. While Ms Colebourne asserted there were WHS strategies the employer could deploy to mitigate the risks relating to her being unvaccinated, she failed to particularise what these were apart from ‘very general matters’, like working from home and observing good hygiene practices. In this context, the Commission upheld the Police Service’s decision to suspend her without pay.

Please contact our Employment, Workplace Relations & Safety team if you need help with any issues arising from policy development or implementation – whether about COVID-19 vaccination or otherwise.