Consultation Required Before Employer Mandated Vaccination

The recent Fair Work Commission decision of CFMEU & Matthew Howard v Mt Arthur Coal Pty Ltd
[2021] FWCFB 6059 illustrated the nuances pertaining to “lawful and reasonable” directions by
employers in the workplace, and the associated ramifications that can arise when there is a failure to
engage in an appropriate consultation process between employers and employees. This case dealt
with the process of directing mandatory vaccination and whether or not the direction in this case
was properly made.

This decision has affirmed many common law principles surrounding the necessity for consultation,
clear communication, and proportionality in relation to the health and safety of employees. As the
employer in the matter, Mt Arthur Coal Pty Ltd only relied upon the implied contractual term of
employees being required to follow lawful and reasonable directions of employers and did not cite
anything contained in the various Public Health Orders to provide a legal basis for the new “Site
Access Requirement”.

The CFMEU represents about 700 of the mine’s employees and put forward the application to the
FWC. Ultimately, it was held by the Full Bench that the site access requirement to be vaccinated was
not a reasonable direction and gave significant weight to the lack of consultation before
implementing such a requirement.

This decision is an early indication of the approach of the FWC regarding vaccinations and the need
for employers to hold up their end of the bargain by discussing and then implementing key changes
across workplaces. The next twelve (12) months will be an interesting time for all involved in the
employment law sector as society begins to transition back towards normality and learning to live
with the Covid-19 virus.

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