Whilst there have not been many wins for employees disputing the legality of COVID vaccination policies, there are 2 decisions which highlight the importance of process that should be considered when implementing policies.

The first decision involved an employer and employee in Western Australia where the State government has implemented health orders. The employee in this case argued that the employer’s decision to implement a new policy which required employees to be vaccinated was invalid because the employer had not complied with the consultation provisions in the applicable award. The dispute was brought under a provision of the Fair Work Act which allows the Commission to resolve disputes about matters arising under the award.

Referring to the consultation provision in the award, the FWC decided that it was not relevant because the company had not made any decision about “major changes in production, program, organisation, structure or technology”. Instead, the Commission found that the changes the company sought were to comply with the State health order. The FWC’s decision was simply that it had no power to hear the employee’s dispute, because it was not about a matter under the award.

The second decision involves a mine site in NSW and provides an interesting contrast to the first. This dispute was also brought under the Fair Work provision empowering the Fair Work Commission to resolve disputes. In this case, the dispute resolution clause was in an enterprise agreement.

The decision was that the vaccination policy implemented by the employer was lawful but unreasonable because the employer did not adequately consult with affected employees. The result was that the employer was not able to enforce the policy, which required employees to be vaccinated in order to work on the site, until a consultation process had been completed. The employer rectified this by completing a consultation process in accordance with guidelines recommended by the Commission.

The difference in this decision is that the FWC did not refer to consultation obligations in an award, but rather to consultation requirements in the (NSW) Work Health and Safety Act.

Under the WHS Act, there is a duty to consult with employees when identifying hazards and assessing risk to health and safety, when making decisions about ways to eliminate or minimise those risks, and when proposing changes that may affect the health or safety of workers (s.47).

There are similar provisions in WHS legislation in most other jurisdictions.

The dispute resolution clause in the enterprise agreement allowed the FWC to deal with disputes arising not only under the enterprise agreement, but also “any dispute arising in the course of the employment”. This afforded a very wide scope for the Commission to intervene in workplace disputes.

Lessons for Employers:

The difference in the results in these two decisions is in the scope of the dispute resolution powers afforded to the Fair Work Commission. In the first decision, the Commission could only hear disputes relating to the terms of the award. It had no power to deal with a dispute about the consultation provisions in the WHS Act.

It is recommended that employers follow a consultation process in implementing vaccine policies, or any changes to directions or requirements around COVID-19. Even if such consultation does not fall within the consultation provisions in the relevant award, it is likely there will be a similar requirement in the applicable WHS legislation.

Also, if you have an enterprise agreement in place, it is worthwhile reviewing the dispute resolution clause to see the scope of the issues that can be dealt with by the Fair Work Commission.

If you would like to discuss these or other workplace issues please contact Andrew Bland or call 02 9412 3077.