In a significant decision, the Full Bench of the Fair Work Commission has determined that an employer has the power to mandate COVID-19 vaccinations for staff where it is acting pursuant to the implied term of all contacts of employment requiring employees to obey the lawful and reasonable directions of the employer. This applies even when there are no public health orders or terms in an enterprise agreement or employment contract that would provide the legal basis to mandate COVID vaccination. See further CFMMEU v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059.
Whether a particular direction is reasonable is not to be determined in a vacuum but requires a consideration of all the circumstances including:
- the nature of the particular employment;
- the established usages affecting the employment;
- the common practices that exist; and
- the general provisions of any legislation or enterprise agreement governing the relationship including applicable workplace safety legislation.
The assessment of reasonableness and proportionality is essentially one of fact and balance. This needs to be assessed on a case by case basis. The assessment will include, but not be determined by, where there is a logic or understandable basis for the direction.
However, the employer in this case, BHP, failed because it was held that due to a lack of consultation with its employees and the union, the requirement to be vaccinated prior to coming on site was not reasonable. The consultation requirements under the applicable New South Wales workplace safety laws were specific in relation to their consultation requirements and required the employees to have a meaningful input or influence prior to the implementation of BHP’s decision to mandate COVID vaccination for employees entering any BHP site.
Key Point for Employers
Employers implementing mandatory COVID vaccination prior to employees returning to work are advised to carefully consider any applicable consultation requirements in relation to health and safety measures and seek further advice to avoid a challenge and setting aside of a mandatory COVID-19 vaccination policy.
