The Fair Work Commission ruled that a decision by BHP to make COVID-19 vaccinations mandatory at its Mt Arthur coal mine in the NSW Hunter Valley was not “lawful and reasonable” because it didn’t consult its workers properly before it introduced the mandate.
The decision is already having repercussions with the Australian Licensed Aircraft Engineers’ Association and the Flight Attendants’ Association of Australia having issued the warning to Qantas.
Australian Chamber of Commerce and Industry chief executive Andrew McKellar said the Fair Work ruling shows there is a simple path for employers that seek to implement mandatory vaccinations in the workplace.
“Undertaking an appropriate risk assessment under work health and safety law, ensuring proper consultation with employees, and taking specialist advice, such as that from an employer association, are all instrumental if employers are to mandate compulsory vaccinations,” he said.
“In forming its judgement, the Fair Work Commission appears to have provided guidance on the processes that need to be followed. What is clear today is that if businesses don’t take the necessary steps to get this right, their mandate will not stand.
“ACCI and its members will continue to analyse the Fair Work Commission’s decision in further detail and provide advice to the hundreds of thousands of employers across the country that are having to confront the practical and pressing issues posed by managing COVID-19 in the workplace.”
The Australian Industry Group also said the ruling showed that consultation with workers is essential for any mandates to be implemented.
“The key message from the Fair Work Commission’s CFMMEU v Mt Arthur decision is the importance of employers consulting with employees before implementing mandatory vaccination requirements for site access,” Innes Willox, Australian Industry Group CEO said.
“The FWC Full Bench held that had the BHP Site Access Requirement been the outcome of a meaningful consultation process, BHP would have had a strong case that the site access requirement was a reasonable direction.
“The Full Bench determined that, in all the circumstances and on balance, the Site Access Requirement was not a reasonable direction stating that ‘The determinative consideration was that the Full Bench was not satisfied that the Respondent had consulted the Employees as required by ss.47 and 48 of the WHS Act’.
“The decision is not a repudiation of vaccine mandates by businesses.”
