Court decision

In this case alert, Partner Andrew Tobin and Special Counsel Damon King discuss the outcome of two recent related decisions by the Fair Work Commission concerning employer-mandated COVID-19 vaccination requirements. Both decisions, involving BHP Coal’s site access requirements, provide incredibly useful guidance for organisations seeking – by imposing mandatory vaccination rules – to protect the health and safety of their workforce and ensure the continuity of their business operations in the absence of an applicable public health order. 

First BHP Coal Vaccination Case¹ 

Background

Mt Arthur Coal Pty Ltd (the respondent employer) employs workers at the Mt Arthur open cut coal mine in New South Wales (Mine). The respondent employer is a member of the BHP group of companies.

On 7 October 2021, the respondent employer announced a site access requirement (SAR) whereby all workers at the Mine were required to receive a single dose of COVID-19 vaccine by 10 November 2021 and be fully vaccinated by 31 January 2022.

The applicant union applied for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the Mt Arthur Coal Enterprise Agreement 2019 (Enterprise Agreement). 

On arbitration of the dispute, the question to be determined by the Commission was as follows: 

‘Whether the respondent employer’s direction was a lawful and reasonable direction in respect to employees at the Mine who are covered by the Enterprise Agreement’. 

Union’s case

The applicant union argued that the SAR was not a lawful direction because:

• consultation requirements in the Work Health and Safety Act 2011 (NSW) (WHS Act) and Enterprise Agreement were not complied with;
• the respondent had not complied with the Privacy Act 1988 (Cth) (Privacy Act); and
• the SAR impaired an individual employee’s right to bodily integrity.

Employer’s case

The respondent employer submitted that it had: 

• statutory and common law duties to ensure, so far as reasonably practicable, the health and safety of employees and other persons entering the Mine site; and
• properly engaged with unions as well as employees in accordance with its consultation obligations.

Findings of fact 

A Full Bench of the Commission made the following findings of fact of general importance to the adoption of mandatory vaccination policies:

• any person infected with COVID-19 is at risk of serious illness which may lead to death;
• all COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection and substantially reducing risk of serious illness or death;
• the vaccines are safe, any adverse effects are usually mild, and there is a much higher risk of becoming ill and dying from COVID-19 than from being vaccinated;
• an unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person rather than a vaccinated person;
• other measures such as masks and social distancing reduce transmission, but do not reduce risk of serious illness once infected;
• vaccination is the best control available to combat risks posed by COVID-19; and
• even with high vaccination rates in the community, COVID-19 remains a significant hazard in any workplace where people may interact or use the same common spaces, and the Mine is such a workplace.

The Full Bench noted that there was no legal basis for the SAR in any public health orders, the Enterprise Agreement, or the express terms of the contracts of employment of the employees. 

The law

Given the above findings, the Full Bench observed that the basis for the SAR must derive from the term implied by law into all employment contracts that employees must follow lawful and reasonable directions of their employer. 

It was accepted that the object of the SAR was to protect the health and safety of employees and others at the Mine, and on that basis, it was prima facie lawful because it fell within the scope of the employment relationship and there was nothing otherwise illegal or unlawful about being vaccinated. 

More importantly, the Full Bench noted that a direction must also be reasonable. In that regard, it is unnecessary to show that the direction is the preferable or most appropriate course of action or is best practice or is in the best interests of the parties. Whether a direction is reasonable requires the consideration of all circumstances and this includes consultation obligations under occupational health and safety legislation.

In considering the respondent employer’s consultation obligations under ss.47–49 of the WHS Act, the Full Bench noted the following relevant propositions from case law:

• a right to be consulted is not a right of veto;
• consultation must occur before a decision is made to implement a health and safety proposal;
• consultation is not collaborative decision-making, and all that is necessary is to give those required to be consulted a genuine opportunity to be heard before any final decision is made; and
• the affected party must be given a genuine opportunity to attempt to persuade the decision-maker to adopt a different course of action.

Outcome

The Full Bench determined that the SAR, while lawful, was not reasonable, because the respondent employer had failed to discharge its related consultation obligations under the WHS Act.

Critical to that outcome the Full Bench found that there had been no genuine attempt by the respondent employer to consult with the unions, noting that it had informed the unions in correspondence that: ‘If a decision is made to make vaccination a condition of workplace entry, we will consult with you about the implementation of that decision’. 

The Full Bench additionally found, in support of finding that there had been a failure to consult, that:

• there had been no direct engagement with health and safety representatives, as there was no discussion of mandatory vaccination at health and safety meetings before the site access requirement was announced, and, meetings that occurred after that date were not about whether the site access requirement would be introduced, but how and why it would be implemented;
• employees were not asked to contribute ideas or suggestions about the decision-making process, risk assessment or rationale that underpinned the decision to introduce the site access requirement. 

The Full Bench otherwise held it was unnecessary to express any concluded views on whether the respondent employer had not separately complied with the Enterprise Agreement’s consultation obligations or the alleged contraventions of the Privacy Act, given its conclusion regarding the reasonableness of the respondent employer’s direction.

Lastly, the Full Bench concluded that the site access requirement did not violate the right to bodily integrity, because people may choose to be vaccinated in response to various pressures, including to avoid resentment from family or society or due to an employment requirement, but that does not ultimately vitiate a person’s consent to vaccination and their right to bodily integrity. 

Second BHP Coal Vaccination Case² 

Background

Also in October 2021 BHP Coal (respondent employer) implemented a mandatory vaccination policy in the same material terms as the policy sought to be implemented at the Mt Arthur mine in NSW, which required all persons entering their 14 mine sites in Queensland (employees and contractors), as a condition of entry, to provide evidence of their vaccination by 31 January 2022 (SAR).

Once again, the CFMMEU (and other unions) applied to the Commission to deal with a dispute in accordance with the resolution procedures found in various industrial instruments, seeking to agitate a challenge to the SAR on grounds not determined by the Full Bench in the First BHP Coal Decision.

The challenge

The applicants primarily argued that the SAR was not a lawful direction because the respondent employer had not complied with the Privacy Act 1988 (Cth) (Privacy Act).

The challenge relied on an earlier precedent as supporting the proposition that the consent obtained to collection of a person’s vaccination status (required by the Privacy Act through the Australian Privacy Principles) under the SAR was invalid. More specifically, the unions argued that the dire employment consequences of non-compliance with the SAR in failure to produce evidence of vaccination – which included being stood down from duties and being asked to show cause why employment should not be terminated – vitiated any consent obtained by BHP through duress, coercion and undue pressure. 

The policy requirements

Under the SAR, satisfactory proof of vaccination included production of either the Federal Government issued COVID-19 digital certificate or an immunisation history statement. 

Critical to the applicants’ challenge, under the SAR employees were asked to provide consent to supply that proof of vaccination status through the following notice (BHP Collection Notice):

Declaration and Consent

To keep you and our workforce safe and healthy BHP wishes to collect and process information about your COVID-19 vaccination status. This will assist us to plan for the future and escalate or de-escalate our COVID-19 controls and enable us to make decisions about workplace and site access in order to protect you and other BHP workers against COVID-19 infection risk.

By [checking the box], you consent to BHP:

1. collecting and processing information about your COVID-19 vaccination status for the purposes described above; and
2. where necessary, disclosing this information to third parties (health, security, site access and travel service providers); and
3. storing this information in BHP systems in line with our Global Privacy Notice for BHP Workers.

Giving your consent is voluntary and you are free to withdraw, alter or restrict your consent at any time by notifying BHP in writing. However, it would be helpful for you to share your vaccination status with us, as it will assist BHP to identify controls to continue to keep our workers as safe and healthy as possible. Without access to this information, we may assume that you have not received the COVID-19 vaccine for the purpose of our controls, including workplace entry controls.

We will manage all of your information in accordance with privacy laws. Your information will be stored securely and only accessible by the BHP Health Team. For more about BHP privacy management practices, and about your rights in relation to information held by BHP, please see the Global Privacy Notice for BHP Workers and Our Requirements for Information Governance and Controlled Documents.

The law

Section 15 of the Privacy Act and Australian Privacy Principle (APP) number three apply to the collection by an employer of information about a person’s vaccination status, being – as personal information about a person’s health – ‘sensitive information’. 

Under APP 3.3 sensitive information may only be collected if: 

• the person validly consents to that collection; and 
• it is “reasonably necessary” to the functions or activities of the employer.

Recommendation

The parties to the challenge agreed to accept the Commission’s recommendation for the resolution of the dispute. 

First, on the question of valid consent, the Commission distinguished the earlier precedent relied upon by the applicant unions on its facts, because, amongst other things, the employer in that earlier case had not complied with the Privacy Act’s requirements and applicable APPs (it did not have a privacy policy or sensitive information collection notice) when collecting employee biometric data obtained by fingerprint scanning. 

The Commission otherwise adopted the reasoning of the Full Bench in the First BHP Coal Vaccination Case in relation to not accepting the applicants’ arguments that consent was legally vitiated or invalidated by coercion and breach of the common law right to bodily integrity. 

Second, the Commission found that the collection of evidence in the manner proposed was reasonably necessary for one or more of BHP’s functions or activities, for multiple reasons, including that:

• it enabled BHP to fulfil its statutory and common law functions in respect of the safety of its employees, because the SAR was implemented to lessen or prevent a serious threat to the life, health and safety of individuals on BHP’s sites;
• the information collected (which included the types of vaccination administered) operated as part of BHP’s COVID-19 Controls Framework both now and in the future which will assist in future planning regarding the escalation or de-escalation of COVID-19 controls and decision-making to protect employee safety, bearing in mind things like the efficacy of different vaccines vis-à-vis new virus variants which might evolve overtime such as Omicron;
• it enabled BHP to manage fraud, both actual and potential, where employees falsely declare their vaccination status;
• it enabled BHP to reduce the risk of an infected and unvaccinated person entering the workplace with COVID-19 who then may infect others in the workplace as well as other accommodation facilities and facilities in local communities where workers gather and interact with others; and
• it enabled all duty holders to comply with their obligations under s 6 of the Coal Mining Safety and Health Act 1999 (Qld), under which risks must be as low as is reasonably achievable.

Useful takeaways for employers from both decisions

The Fair Work Commission has essentially provided a checklist of considerations which, if established, will weigh considerably in favour of finding that a mandatory vaccination policy requirement is reasonable:

• Is it directed at ensuring the health and safety of workers at the workplace?
• Does it have a logical and understandable basis?
• Is it a reasonably proportionate response to the risk created by COVID-19?
• Is it developed having regard to the particular circumstances at the workplace, including, for example, where the workers cannot work from home and will encounter other workers whilst at work?
• Is the timing of its commencement determined by reference to factual circumstances relevant to transmission pertaining to the state and locality at the relevant time? 
• Is it implemented after spending considerable time encouraging voluntary vaccination?

To implement a mandatory workplace vaccination policy, it is fundamentally important for the employer to be able to demonstrate that genuine workplace consultation has occurred, prior to implementation, to prove such a requirement is reasonable and therefore legally enforceable in nature. 

To properly understand and discharge your organisation’s consultation obligations, consult our step by step guide to effective employee consultation. 

Another key consideration is that the collection and retention of vaccination status data requires most business enterprises to comply with Privacy Act requirements relating to sensitive personal information, including (but not limited to) the development of privacy policies and collection notices. Notably, the BHP Collection Notice provides a tried and tested template to adopt for the purposes of ensuring key aspects of compliance in relation to the collection of proof of vaccination information.

Our Workplace and Employment team has assisted numerous organisations in successfully developing and implementing voluntary and mandatory workplace vaccination policies tailored to specific business enterprises and industries throughout the COVID-19 pandemic. We have also assisted many of our business clients to navigate the complexities of workforce management in relation to vaccination issues.

Please contact any member of the team for further information or assistance.

Footnotes

¹ Construction, Forestry, Maritime, Mining and Energy Union and Another v Mt Arthur Coal Pty Ltd trading as Mt Arthur Coal [2021] FWCFB 6059 (3 December 2021).
² Construction, Forestry, Maritime, Mining and Energy Union & Ors v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA & Ors [2022] FWC 81 (21 January 2022)