Lack of Consultation Leads BHP Vaccine Mandate to be Deemed Unlawful

Dec 6th, 2021

 On Friday, a full bench of the Fair Work Commission (FWC) determined that BHP’s COVID-19 vaccination mandate was unlawful.

A quick read of this sentence can imply this spells trouble for other workplaces mandating COVID-19, but it does not.

The FWC’s problem with their mandate (labelled by BHP its Site Access Requirement)was based on one particular detail. Under Work Health and Safety legislation, when a business is assessing risks to health and safety in the workplace and looking to implement policies and procedures in response, they need to engage in consultation.

When a business is conducting a risk assessment for each type of worker and each aspect of the workplace they should also consult directly with the workers affected, as well as the impact of any control measures they may decide to implement.

While BHP did engage in consultation, and this included extensive “toolbox meetings”, health and safety committee meetings, union meetings, and information behind the reasoning for the vaccine mandate, this all took place after the vaccine mandate was announced.

As a result, their failure to adequately consult with their employees prior to implementing the mandate meant that it was not a lawful and reasonable direction for their employees to be vaccinated in line with the Site Access Requirement.

However, beyond this one contravention of WHS legislation, the FWC did make clear that there were many reasons why a vaccine mandate might be considered reasonable. The mandate was directed at ensuring the health and safety of its workers, it is currently the most effective control to prevent the risks and hazards associated with COVID-19 and thus granting a protection beyond other control measures, reducing the risk of transmission and the risk someone will develop a serious illness from COVID-19.

The ruling by the FWC outlined that therefore if BHP had properly consulted with their employees prior to introducing the Site Access Requirement there was a strong chance that the mandate would have been considered lawful and reasonable.

What does this mean moving forward?

It provides guidance as to how the FWC will treat vaccine mandates enacted at a workplace level, without the backing of a state public health order.

If a business can follow the correct consultation requirements and justify the implementation of a vaccine mandate from a WHS perspective and their duty of care towards their workers, there is indeed scope to implement COVID-19 vaccination requirements in their workplace.

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