Has the BHP decision regarding mandatory COVID Vaccinations provided clarity?

FWC Full Bench Speaks

A 5 member FWC Full Bench on Friday 3 December 2021 handed down its eagerly anticipated decision finding that BHP’s Mt Arthur mine’s Site Access Requirements for mandatory COVID-19 vaccinations was NOT reasonable because it had failed to comply with the WHS obligations to consult. You can find a copy of the full decision here (http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWCFB//2021/6059.html)

Has the decision finally provided clarity as to whether business can introduce its own mandatory COVID-19 vaccination policy? 

Sort of . . . but it depends on who you ask.

Some union friendly commentators are touting the decision as the ‘death knell’ for mandatory vaccination. The ‘other side’ of the IR fence has considered the decision to be a ‘mere setback’ pointing out that the Full Bench actually held that, but for a few minor consultation failures, BHP had a strong case in favour for introduction of a mandatory COVID-19 vaccination policy.

Assessment of the Decision

We think the decision was ‘a little cautious’ but agree that, with a slight change in approach, business definitely has a strong case for the introduction of a mandatory COVID-19 vaccination policy. 

In summary that slight change approach is really about changing the language of policy introduction from:

a)    fait accompli – this is definitely going to happen; to

b)    seriously considering – you have an opportunity to potentially influence the outcome so let’s meaningfully talk and we can make changes if we need to.

Arguments regarding the illegality of the introduction of such policies once again ‘fell flat’ with FWC like they have done with the various public health direction cases in Supreme Courts in NSW, VIC and TAS.

10 Key Factual FWC Findings that Support Considering the Introduction of a COVID response

1.     The COVID risk is higher than that of influenza;

2.     COVID infections expose people to serious illness which may lead to death;

3.     variants such as Delta and Omicron have increased risk profiles;

4.     current vaccines are effective at preventing symptomatic infection;

5.     current vaccines substantially reduce the risk of serious illness or death;

6.     current vaccines are safe and any adverse effects are usually mild;

7.     an unvaccinated person is more likely to acquire COVID infection from another unvaccinated person rather than unvaccinated person;

8.     while other control measures (e.g. mask wearing, social distancing etc) can reduce the transmission of COVID the effectiveness of such measures depends on people applying them consistently or correctly and do not provide a substitute for the constant protection offered by vaccines;

9.     vaccination is the most effective and efficient control measure available to combat the risk posed by COVID; and

10.  even with high vaccination rates in the community, COVID will remain a significant hazard in any workplace where people interact or use the same common space regularly or intermittently.

Pathway to compulsory vaccinations

Flowing on from the BHP decision if you are wanting to implement a compulsory vaccination process, we recommend you:

(a)   Do an updated COVID-19 Risk Assessment – COVID-19 is a known risk but the circumstances quickly change. The risk must be managed like any other risk in your business.

(b)   Consider a Voluntary Employee Survey – commence early consultation by finding out what your workers ‘really think’.

(c)   Prepare a Policy – draft a policy which is clearly the initial proposal (ie not a fait accompli) and subject to consultation. 

(d)   Consult – share your draft policy, risk assessment information, survey results and provide FAQs and other suitable information regarding COVID-19 through multiple channels and document all meetings on the topic. Involve all relevant duty holders (ie employees, Unions, HSRs, health and safety committees etc) and be prepared take on feedback.  Review and be prepared to recalibrate based on good information you were unaware of or didn’t think of.

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