Despite numerous activities which could well be described as consultation, a major employer has failed to convince the FWC that it fully consulted with its workforce on the implementation of mandatory vaccination. Because of those shortcomings, the employer had failed to comply with WHS obligations. Therefore the FWC found the directive was unreasonable.
When the employer first considered implementing mandatory vaccination at its mine sites, as part of the process it advised employees that it was “actively assessing whether to make vaccination a condition of entry to … workplaces”. As part of that, it established a central mailbox for employees to contribute to that process. Hundreds of replies were received and in addition, the employer had numerous meetings and correspondence with unions as well as other interactions with employees.
But it was to no avail as the FWC found the consultation the employer provided evidence of was not good enough. More importantly the FWC highlighted management correspondence which had the flavour of advice about how the directive would be implemented rather than if it would be.
The tension between the employer’s WHS consultation obligations and the same duties required under the enterprise agreement were also relevant in this case. And the distinction is important. In the case of the former, consultation must take place before a decision is made that would have significant effects. Whereas consultation under the agreement takes place after a definite decision has been made about a significant change or requirement.
So the case focussed on the consultation obligations the employer had under WHS legislation rather than the lawfulness or reasonableness of the directive itself. As far as it went on that subject, the FWC appeared to give a cautionary OK to it, although its views were qualified, stressing that since the process was compromised, the FWC did not need to resolve that issue.
But it did say this about the employer’s directive: “If the object and purpose of such a direction is to protect the health and safety at work of employees and other persons frequenting the premises then such a direction is likely to be lawful. This is so because it falls within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated. But such a direction must also be reasonable.”
In this case, analysis shows that the unreasonableness arose from the flawed consultation and not in the nature of the directive itself. And on the subject of reasonableness the FWC said: “A direction lacking an evident or intelligible justification is not a reasonable direction but that is not the only basis upon which unreasonableness can be established. It is an objective assessment of the reasonableness of the direction, having regard to all of the circumstances.”
This case turned on its own facts in the end, but its use lies in the key considerations of full and open consultation before any decision is made, with employees given the opportunity to contribute to the debate genuinely. Then the end result (say, mandatory vaccination for all employees) has to be proportionate and justifiable in the particular setting.
By Ross Clarke & Shane Coyne