2021 was a challenging year for business as the Covid-19 pandemic continued to run rampant throughout Australia. Lockdowns and strict business restrictions led many businesses to close their doors, furlough their employees, or to temporarily cease trading until such time that it was safe to resume doing so.
In response to the perceived lack of guidance and protections from State and Federal Government, employers began introducing mandatory vaccination policies as part of an effort to protect their employees and customers from infection and to ensure compliance with their work health and safety obligations.
However, many of these workplace policies have been subject to significant backlash and challenge by employees, who contend that employers did not have the authority to direct them to become vaccinated. Such challenges have led to a significant rise in employee disputes, dismissals and unfair dismissal claims.
In response, the Fair Work Ombudsman (FWO) provided some general guidance for determining whether an employer’s requirement that its employees become vaccinated is likely to be reasonable.
This guidance consisted of a system of 4 ‘tiers’ of work, as follows:
- Tier 1 – where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (for example, employees working in quarantine or border control).
- Tier 2 – where employees are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19 (for example, employees working in health care or aged care).
- Tier 3 – where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment.
- Tier 4 – where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).
The FWO further clarified that where employees perform duties at a lower tier (e.g. tier 1 or 2), the more likely that a direction requiring the employee to be vaccinated was likely to be reasonable.
Further clarity was provided to employers in December 2021 a Full Bench of the Fair Work Commission handed down its decision in CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021].
In that case, the CFMMEU lodged a dispute against BHP in response to its Covid-19 vaccination policy which directed all employees at its Mt Arthur coal mine to be fully vaccinated by the end of January 2022 in order to enter the worksite.
The Fair Work Commission determined that BHP had a reasonable and proportionate basis for introducing the policy, but determined that the policy (and the vaccination direction contained within it) was not reasonable and lawful on the grounds that BHP had not consulted with the employees prior to introducing the policy.
Action Items
In order to introduce enforceable mandatory vaccination policies, employers MUST:
- ensure that a mandatory vaccination policy is proportionate and necessary having regard to all of the circumstances (e.g. the nature of the workplace, the nature of the duties performed, and the potential risk of infection for employees and customers);
- provide employees with all relevant information about the proposed vaccination policy;
- consult with employees about the proposed vaccination policy and provide them with a reasonable and meaningful opportunity to express their views and concerns about the policy before it is implemented (and taking these views on board where appropriate); and
- ensure that health and safety representatives and unions (where applicable) are involved in the consultation process.
