Express law No. 302

Background

Mt Arthur Coal Pty Ltd (Employer) introduced a policy that employees would be unable to enter their workplace (a mine site) without having had a first and then second dose of a COVID-19 vaccine by particular dates (Site Access Requirement). The CFMMEU challenged the Site Access Requirement, on the basis that it was not a lawful and reasonable direction.

The direction was 'prima facie' lawful

The Commission considered that the Site Access Requirement was ‘prima facie lawful’ because it fell within the scope of the employment and there was nothing ‘illegal’ or unlawful about becoming vaccinated ([85]). However, the Commission did not reach a concluded view about this because it otherwise decided that the direction was not reasonable in the circumstances ([87]).

Properties of a reasonable direction

The Commission confirmed that assessing ‘reasonableness’ requires a broad consideration of all of the circumstances ([95]). The Commission made a number of further observations about a reasonable direction ([77–79]), including:

• a direction does not have to be the ‘preferable or most appropriate course’ or be in accordance with ‘best practice’ to be reasonable
• in any particular context there may be a range of options open to an employer which are reasonable, because they lie in an area of ‘decisional freedom’ which is co-extensive with what was once more commonly called ‘managerial prerogative’
• a direction must have an ‘evident or intelligible justification’ but the absence of such a justification is not the only basis upon which unreasonableness can be established
• it is not the case that there is a ‘high bar’ to establish a direction is unreasonable or that ‘a policy will only be unreasonable if no reasonable employer could have adopted it’.

Failure to effectively consult led to conclusion that direction was unreasonable      

It was accepted that the Employer was required to consult its employees about the Site Access Requirement under ss 47 and 48 of the Work Health and Safety Act 2011 (NSW) (WHS Act). The Commission noted that under the WHS Act, consultation is ‘a matter of substance which is to occur prior to implementation’ ([103]). In considering the WHS Act consultation obligations, the Commission considered both the industrial authorities on consultation (summarised in [106–108]), and the relevant Code of Practice ([124–125]).

The Commission considered that the Employer’s consultation process failed to satisfy section 48 of the WHS Act, due to:

• the language of communications to employees presenting the policy as fait accompli, without giving any chance to influence the decision ([146–148]). Employees only had a chance to meaningfully engage with the issue after a definite decision had already been made ([162])
• a failure to share information about the risk assessment which supported the policy ([150])
• a lack of engagement with health and safety representatives ([153], [175]).

The Commission rejected an argument that these deficiencies were of no or little consequence because it was unlikely that consultation would have changed the outcome ([199–201]).

The Commission considered that the requirement for the Employer to consult with its employees under these provisions was an important component in the decision-making process and that its failure to do so was the determinative consideration in finding that the Site Access Requirement was not a reasonable direction ([249–251]).

Significantly, the Commission noted a number of matters which did weigh in favour of a finding that the Site Access Requirement was reasonable ([252]). These included:

• it was directed at ensuring the health and safety of the workers at 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
• its timing was determined by reference to circumstances pertaining to NSW and the local area at the relevant time
• it was only implemented after the Employer spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the mine.

These factors led the Commission to note ([253)]:

• Had the Respondent consulted the Employees in accordance with its consultation obligations – such that we could have been satisfied that the decision to introduce the Site Access Requirement was the outcome of a meaningful consultation process – the above considerations would have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction.

Restrictions on workplace access triggered ‘major change’ consultation clause

The Employer’s enterprise agreement incorporated the model consultation term which required it to consult with employees if it has made a ‘definite decision’ to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees.

The Commission considered that the decision to introduce the Site Access Requirement was a major change to ‘organisation’ because it was ‘a new requirement for all workers at the mine which has the effect of excluding a category of workers from the workplace (namely, those not vaccinated by the specified dates)’. This fell within the notion of a change to how the enterprise was organised ([133–134]). However, the Commission observed (without reaching a concluded view) that the Employer had substantially met its obligation under the enterprise agreement to consult with its employee after it had made a definite decision to introduce the Site Access Requirement ([136]).

Text of the decision is available at FairWork Commission, Decision: Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (C2021/7023).