The Full Bench of the Fair Work Commission has found that BHP’s direction to workers, requiring COVID-19 vaccinations as a condition of entry to BHP workplaces, was not lawful and reasonable. What does this ruling mean for other workplaces that are considering to mandate vaccinations?
Lawful and Reasonable Directions
Where there is no public health order or an employment contract term requiring vaccinations, an employer has an implied right to mandate vaccination (only) where that is “lawful and reasonable”.
Was the Direction Lawful?
The Full Bench was prepared to accept that the direction could be lawful because it was to protect the health and safety of workers at site, for which employers have duties under WH&S legislation.
Was the Direction Reasonable?
The Full Bench accepted that there were considerations in favour of a finding that the direction was reasonable, including that it was for ensuring the health and safety of workers, and that it was a reasonably proportionate response to the risk created by COVID-19.
The Full Bench concluded however that the direction was unreasonable because the employer’s consultation – required by its enterprise agreement and WH&S legislation – was inadequate, because BHP did not:
- Give its employees reasonable opportunity to express their views, contribute ideas in relation to the decision-making process, or raise work health and safety issues;
- Give its employees information about the reasons, rationale and data supporting the direction;
- Directly engage with health and safety representatives; and
- Meetings that occurred after the announcement of the direction were mainly about how and why the direction would be implemented, not whether it would be implemented.
Significantly the Full Bench observed that if the consultation deficiencies are rectified, BHP would have a ‘strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction’.
Implications for Workplaces
The decision emphasises the need for employers to properly consult so that employees have a genuine opportunity to persuade their employer about whether to introduce mandatory vaccination policies.
Where an employer has properly consulted, however, then its direction for vaccinations may be upheld if it was for ensuring the health and safety of workers and was a reasonably proportionate response to the risk created by COVID-19.