The matter involved an application by 3 employees of a Melbourne Catholic School to the Fair Work Commission to hear a dispute about the COVID vaccination mandates under the dispute resolution clause in the enterprise agreement. The employees made an application under the Fair Work Act, which allows the Fair Work Commission to deal with disputes if they fall within the scope of a dispute resolution term in the employment contract, award, or enterprise agreement that applies.

The employees argued that in implementing a vaccine mandate the School had:

• made a decision about a major change in the organisation, but had not consulted with the employees in compliance with the enterprise agreement;
• unlawfully varied the terms of the employees’ contracts of employment;
• not considered the employees’ requests for leave, or for flexible work options
• required the employees to provide information about their vaccination status in contravention of the Privacy Act.

Central to the Commission’s finding that the consultation provision was not triggered, was that the School had not made a definite decision about major changes in program, organisation , curriculum, structure or technology. The Commission found that the School had not made a decision which would trigger the consultation requirement but had merely acted to ensure compliance with the Victorian Government’s health orders.

Similarly, the Commission found that the employees’ disputes about varying the employment contracts, responding to requests for leave and flexible work, and breaches of the privacy Act were not disputes about the application or interpretation of the enterprise agreement or the NES.

As a result, the decision was that the Commission had no jurisdiction to hear the dispute.

Despite this, the Commission went on to make a number of comments which made it clear that, even if the Commission had jurisdiction, the dispute would not have gone in favour of the employees.

In relation to the employees’ contention that the employer’s request was in breach of the Privacy Act, the Commission pointed out that there is an exemption in that Act for information which is required or authorised under an Australian law.

The Commission found that the employees did not make a formal request for flexible working arrangements under the Fair Work Act, but even if they had, the School would have had a valid business reason to reject the request.

The Commission drew comparisons with other, recent decisions, such as the CFMEU v Mt Arthur Coal decision (C2021/7023, FWC December 2021) involving the reasonableness of the vaccine mandate and the consultation requirement [see our article here].  The Mt Arthur case confirmed that where there were no health orders in place, it was necessary to review other factors to determine whether the mandate was lawful and reasonable. This is why the consultation provision became pivotal in that case.  However, in this case, the Commission noted that the School was complying with health orders implemented by the Victorian Government. The changes therefore did not trigger the requirement for the School to consult with employees about implementing the vaccine mandate, or making leave or flexible work arrangements available.

 

It is noteworthy that the decision in this case – which is about whether or not the Commission had the power to hear the dispute – turned on the relatively limited scope of the dispute resolution provision in the enterprise agreement. Some enterprise agreements provide for a much wider scope allowing for the FWC to determine disputes.

 

Lessons for Employers:

• recent decisions have made it clear that employers’ decisions to implement vaccine mandates will be lawful and reasonable when they are in response to Government health orders;
• now that health orders are being relaxed across Australia, it will become more difficult for employers to determine when a vaccine mandate will be a reasonable and lawful direction
• check the dispute resolution clause in your enterprise agreement. How broad is it?

 

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