BHP’s COVID-19 vaccine mandate was not reasonable according to the Fair Work Commission, as a failure to properly consult with staff became BHP’s undoing.
BHP was one of a handful of high-profile employers that elected to make full vaccination a condition of entry at its sites, including its Mt Arthur coal mine in the Hunter Valley. BHP considered the vaccine mandate an appropriate step to mitigate the risk of COVID. The CFMMEU disagreed, challenging the mandate at the Mt Arthur coal mine on the basis that it was not a lawful and reasonable direction.
The FWC first confirmed that there is nothing unlawful about vaccine mandates. In other words, they don’t break any laws.
When it came to reasonableness, the FWC considered the mandate to be a logical and proportionate response to the risk created by COVID-19. However, work health and safety laws contain consultation obligations and by not doing enough to meet those obligations, BHP’s otherwise reasonable direction fell apart.
The FWC was particularly critical of BHP’s failure to provide employees with sufficient information, such as data, risk assessments, or other matters BHP was considering at the time it was assessing the introduction of the mandate. The FWC held that staff were not given a genuine opportunity to express their views and contribute to the decision-making process.
The FWC’s decision has come at a shock to some. However, the FWC also expressed strong support for vaccine mandates, providing much needed clarity on the issue. The FWC even went so far as offering to broker consultation between BHP and its staff, helping BHP to correct its past mistakes, likely leading to a reasonable vaccine mandate by BHP in the near future.
All employers are subject to consultation obligations under WHS laws. BHP was held to an especially high bar given its size and resources. However, any business that is proposing to adopt a vaccine mandate will be wise to first engage in genuine and meaningful consultation. For businesses that have already adopted a vaccine mandate without first consulting with staff, they should think about reopening the matter for consideration and consultation.
