Failing to properly consult employees led the FWC to rule against BHP’s recent COVID-19 vaccine mandate. How can your organisation avoid a similar outcome?

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. Vaccination as a condition of entry at BHP workplaces was first flagged by the company in August this year.

The FWC determined these steps to be lawful, since they fell within the scope of the workers’ employment, and “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. 

“There’s no doubt that the sentiments expressed in this decision will be recycled and circulated amongst various organisations.” – Charles Power, Partner at Holding Redlich.

So far, BHP’s decision ticked all the legal boxes, but where the mining company fell short was in its consultation with employees. 

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”. 

Interpreting the judgment, Charles Power, Partner at Holding Redlich, says the full bench “formed the view that the employer entered this whole process without fully appreciating its obligation to engage in a genuine consultation process”.

“That said, the Commission recognised the company’s considerable efforts to make information available to encourage employees to get vaccines. But when it came down to the essence of the policy, the requirement that you must have the first dose by 10 November and the second by 31 January, that was set in stone from the outset and there wasn’t [a proper] opportunity given to the employees or to their representatives, to argue that the requirement be changed, revoked or varied in some way.”

In the wake of the FWC’s finding, companies that are considering issuing a vaccine mandate without properly consulting its employees may be inclined to think twice.

“The Commission was upfront about a vaccine mandate being a legitimate measure for employers to implement. It was the process that they fell down on and that will probably cause a lot of employers to gasp,” says Power.

“There’s no doubt that the sentiments expressed in this decision will be recycled and circulated amongst various organisations.”

Consultation for vaccine mandate

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. 

A BHP spokesperson told HRM: “BHP welcomes the opportunity to build on the foundation of robust consultation already undertaken with employees regarding the implementation of our vaccination policy at Mt Arthur required to keep our workplaces, workforce and the communities we interact with COVID safe. We welcome and are progressing in a timely manner the offer by the Fair Work Commission to work with us, and the other parties in this matter, to fulfil whatever further consultation is required.”

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, says Power:

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 OHS law and needs to minimise safety risks as they arise, says Power.

“The organisation should say, for example, ‘For these three safety reasons, we think mandating vaccinations is appropriate. What do you think?’

2. Give employees the opportunity for input

“In a collective unionised environment, this means communicating not just with employees, but to their health and safety representatives and the unions,” says Power.

Based on the Commission’s findings, Power’s observation is that BHP might have treated the vaccine mandate as seriously as any other  safety measure, but felt it was such a critical step to take that consultation wasn’t necessary.

For a vaccine mandate to be considered reasonable, employers might also need to consult other duty holders, beyond employees.

“There is an obligation to consult with suppliers to the extent that the supplier’s employees come into your workplace,” says Power. “For example, if drivers need to enter a warehouse to deliver a product, the operator of the warehouse has a duty to ensure a safe workplace for the drivers.”

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.

“Companies need to understand what the process is all about, and that doesn’t mean employers can’t have a strong view that the right thing to do is mandatory vaccination, but it has to be able to defer the ultimate decision until after a reasonable opportunity for feedback has been given,” says Power.

Approaching consultation with an open mind requires employers to use language in their communication that indicates employees are being invited to have their say.

“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. 

“Mandatory vaccination was a response to a risk and the employees could have said there are other ways of addressing this risk which are less intrusive on our personal self, and which avoids those particular employees that have a problem with it from losing their jobs or being denied access.”

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 input.

“The Commission made it clear – and it’s well-recognised in any event – that the obligation to consult isn’t about giving employees the right to veto a decision,” says Power.

“It’s simply an opportunity to give employees a chance to suggest that there might be a different way. The employer has to consider that response and then determine whether or not the proposal needs to be modified or whether it needs to be implemented in its originally conceived form.”

Need some guidance on how to issue a vaccine mandate in your workplace? AHRI’s COVID-19 resources hub may be able to help. It offers templates, guides and additional information to help HR professions navigate COVID-19.