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Following the ongoing spread of covid-19 in the community, many employers have found themselves needing to either follow mandated  government public health orders or implement mandatory vaccination in the workplace as a workplace health and safety measure.

The Fair Work Ombudsman (FWO) has determined that consultation is crucial before you implement a mandatory covid-19 vaccination policy. 

In early October, BHP announced its decision to issue a COVID-19 vaccine mandate for all employees at its Mount Arthur coal mine in NSW. 

Under the Site Access Requirement, employees would need to have at least a single vaccine dose by 10 November 2021, and be fully vaccinated by 31 January 2022. 

The FWC determined that “there is nothing illegal or unlawful about becoming vaccinated”.

“If the object and purpose of such a direction is to protect the health and safety… of employees and other persons frequenting the premises then such a direction is likely to be lawful,” the FWC ruling read. 

The Site Access Requirement was also deemed reasonable for a range of reasons, including that it’s directed at ensuring the health and safety of workers, it’s a proportionate response to the COVID-19 risk, it considered relevant circumstances such as miners being unable to work from home, and it was only implemented after BHP had encouraged vaccination and set up a vaccination hub on its Mount Arthur site. 

The Commission’s full bench noted that while introducing a Site Access Requirement was reasonable, consultation is “an important component in that decision-making process”. 

In its ruling, the FWC advised BHP that the way forward would be to engage in genuine consultation with employees about the vaccination mandate and Site Access Requirement.

“Provided Mount Arthur commences its consultation with the employees in a timely fashion, we expect that [it] would be in a position to make a decision about whether to impose the Site Access Requirement at the Mine prior to 15 December 2021 [the date COVID-19 restrictions in NSW are expected to ease],” the judgment reads. 

Consultations are necessary when implementing any major workplace change that could reasonably impact an employee’s job security, promotion opportunities, hours of work or safety, among other factors. Determining whether a change is ‘major’ isn’t only based on the proportion of employees that are affected – a change that impacts a smaller number of essential or senior employees could be deemed major, and consultation therefore is necessary.

Conducting an effective consultation process involves three key steps:

1. Inform employees about the change:

This includes outlining the nature of the proposal (in this case, to mandate the vaccine) and the reasons why the proposal has been put forward.

If a company isn’t subject to a public health order, it is relying on the obligation to provide a safe workplace under WHS laws. 

2. Give employees the opportunity for input

This means communicating not just with employees, but to their health and safety representatives and unions if applicable. 

Feedback can be sought in written form or could be attained through focus groups or meetings with relevant persons.

3. Consider the feedback before arriving at a decision

Employers need to approach consultation without a preconceived objective in mind.

“In this case, the Commission focused on the fact that employees weren’t given [an adequate] opportunity to provide data or information that might suggest that mandatory vaccination as a control measure wasn’t practical. 

That said, a decision to issue a vaccine mandate may be deemed reasonable even if it becomes apparent, through consultation, that the majority of employees oppose the direction. The key is in seeking their genuine input before making your final decision.

BetterHR is able to assist you with information on the consultation requirements to implement a mandatory vaccination policy in your workplace. 

Written by Julienne Nurse