08 December 2021
In the absence of a public health order that mandates vaccinations in a workplace, the question arises whether a workplace policy for mandatory vaccination is a lawful and reasonable direction.
In Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (C2021/7023), the Fair Work Commission (FWC) dealt with a dispute raised by mining workers and their union regarding a policy that all workers at the mine were to be vaccinated against COVID-19 as a condition of site entry. To enter the mine, employees needed to have at least a single dose of an approved COVID-19 vaccine by 10 November 2021, and be fully vaccinated by 31 January 2022. In addition, employees were directed to provide evidence of their compliance with these requirements by those dates.
There was nothing in public health orders, the enterprise agreements or the express terms of the employment contracts which permitted the employer to impose these requirements. The legal basis for the vaccination requirement was an implied term obliging employees to follow their employer’s lawful and reasonable directions.
In the absence of any contrary intention of an employer and employee, there is an implied term in each and every employment contract to the effect that employees must follow the lawful and reasonable directions of their employer.
A direction is lawful if it relates to the subject matter of the employment and involves no illegality. The direction must fall within the scope of the employment contract. An employee does not have to obey a direction that goes beyond the nature of the work the employee was contracted to perform, although an employee is expected to obey instructions that are incidental to that work.
Whether a lawful direction is reasonable “is a question of fact having regard to all the circumstances” and will depend amongst other things on the nature of the employment, whether it is usual for such directions to be issued in the workplace, and the terms of any applicable industrial law, award or enterprise agreement.
It was further noted that an employer has a degree of “decisional freedom” or “managerial prerogative” when it exercises its power to issue directions to employees. Accordingly, a court or tribunal will not seek to second-guess the employer’s exercise of that discretion unless it lacks evident or intelligible justification.
The FWC ruled that Mr Arthur Coal’s policy or direction fell within the scope of the employment, and there was nothing ‘illegal’ or unlawful about a requirement to be vaccinated. However, while the employer’s decision to impose the vaccination requirement was lawful, the employer’s failure to reasonably consult with the affected employees made the direction unreasonable.
In this case, the consultation obligation arose under applicable work health and safety legislation. The obligation on employers to consult about decisions to implement risk control measures, such as mandatory vaccination policies, was qualified by “so far as is reasonably practicable”. The FWC observed that if there was a surge in COVID-19 cases such that the risk of transmission substantially increased, or if a new, more transmissible or virulent COVID-19 variant became prevalent, then such circumstances may warrant a truncated consultation process.
Importantly, the FWC also observed that adequate consultation does not require those consulted to agree to the direction or to give them a power of veto. However, it does require that the affected employees have a reasonable opportunity to persuade the employer to revoke or modify the decision to introduce the requirement.
In this case, employees were not asked to contribute their views at all. No genuine attempt was made to consult with the unions or to directly engage with health and safety representatives during the assessment phase. Employees were not invited to contribute scientific, medical or safety data. They were also not informed that such information may influence the employer’s assessment and recommendation for COVID-19 vaccination as a workplace entry requirement.
Despite ultimately finding the vaccination requirement to be unreasonable, the FWC considered the following factors to be in favour of the employer, which pointed towards a finding that the direction may have been reasonable:
Further, its implementation timing was calibrated with circumstances pertaining to NSW and the local area at the relevant time, and was only implemented after the employer spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the mine.
The FWC observed that if the decision to introduce the requirement was the outcome of a meaningful consultation process, there would have been a strong case in favour of a conclusion that the requirement was a reasonable direction.
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Authors: Charles Power & Ashleigh Warren
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