New Fair Work Statement on BHP’s Mandatory Vaccination Policy
On 3 December 2021 the Fair Work Commission (“FWC”) ruled that BHP’s mandatory Covid-19 vaccination policy at their Mt Arthur coal mine was unreasonable and consequently unenforceable, due to their failure to consult with their employees when deciding to implement the policy.
Following this ruling, BHP revoked their original policy and underwent an extensive consultation process before introducing a new vaccination policy. On 17 December 2021, the FWC issued a statement declaring BHP’s new policy was reasonable and enforceable in light of their consultations. This statement clarifies what kind of employee consultation is required by an employer when introducing a mandatory Covid-19 vaccination policy.
What did the FWC initially say?
In their original ruling, the FWC stated that the consultation process must be directed at whether a mandatory vaccination process should be adopted and, if so, the terms of such a requirement.
The Commission offered to help BHP meet this requirement by facilitating discussions with their employees, noting that engaging a third-party facilitator is an effective means of consultation.
How did BHP respond?
Following the FWC ruling on 3 December 2021, BHP withdrew their mandatory vaccination policy and asked the FWC to facilitate discussion with their employees about whether a new mandatory vaccination policy should be introduced.
On 6 December, BHP held “toolbox talks” with their employees to confirm that further consultation would occur and to encourage their employees to engage in the process. They provided a Consultation Plan to their employees and emailed all employees with a letter announcing a proposed mandatory vaccination policy. They proposed that all employees must be vaccinated by 31 January 2022.
BHP subsequently held four conferences with their Mt Arthur employees, on 8, 10, 13 and 15 December. Employees were invited to play an active part in these conferences. The FWC were also involved and were invited to express their opinions and make recommendations in relation to BHP’s vaccination policy.
Other steps taken by BHP included:
- circulating a safety and health rationale summary document outlining their reasons for wanting to implement a vaccination policy;
- creating a ‘Mt Arthur Coal Consultation’ hub – an online platform which contained all information relevant to the proposed policy;
- continuous toolbox talks with their employees;
- providing individual written responses for discussion in consultation meetings; and
- listening to the employee’s requests for meetings and their acceptance of the proposed policy.
Once the formal consultation process concluded, only after the employees stated that they did not require any further meetings, BHP proceeded to decide whether to implement the proposed policy based on all the evidence and opinions provided by their employees. BHP advised their employees that they had transitioned to a decision-making stage.
BHP ultimately decided that the mandatory vaccination policy should be implemented and advised their employees of this decision on 14 December 2021.
The FWC determined that the steps taken by BHP, notably the four conferences held with employees and the involvement of the Commission in the process as a third-party, constitute a “significant endeavor” in the process of consultation.
They noted that BHP consulted with their employees in a variety of forums and that the consultations were genuine. Partaking in this process meant that BHP could identify and resolve any issues pertaining to the process of consultation and the vaccination policy.
This ultimately satisfied the consultation requirement the FWC set out in their original ruling, so BHP’s new vaccination policy is valid and enforceable.
Key Takeaways
Following this statement, it is clear that in order to satisfy the consultation requirements when implementing a mandatory vaccination policy, and other potentially divisive policies, an employer must:
- engage in continuous and meaningful discussion with your employees;
- develop a Consultation Plan;
- consult on a range of different platforms to reach the largest number of your employees and make the process accessible;
- allow for continuous feedback from your employees and take this feedback into account;
- communicate all decisions and reasons for taking them to your employees; and
- ideally engage a third party (such as the FWC or Morgan + English) to facilitate discussion with your employees.
If these steps are followed, you will have provided your employees with a reasonable opportunity to contribute to the decision-making process and will demonstrate that their contributions will be considered in your ultimate decision.
Should you have any queries please contact Daniel Morgan at 0412 425 568 or by email at daniel@morganenglish.com.au.
