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To Consult Does Not Mean To Mandate

by | Dec 22, 2021 | Workplace & Employment

The decision in CFMMEU v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 shows the importance of consultation before a direction to employees will be deemed lawful and reasonable.

The full bench of the Fair Work Commission undertook an exhaustive review of the facts and arguments relating to the issue on 7 October 2021 of a site access requirement that employees and others not enter the Mt Arthur open cut coal mine at Muswellbrook in New South Wales after 9 November 2021 unless they could demonstrate that they had had at least a first dose of an approved COVID-19 vaccine.

The case was significant because, unlike in Victoria, there was no public health order in New South Wales mandating vaccination generally let alone for coalminers, which provided a legal basis for the site access requirement.

Apart from that there was nothing in the operative enterprise agreement or the mine employees’ contracts, which provided an explicit legal basis for the site access requirement.

Therefore for the full bench to uphold the site access requirement it had to be satisfied that it was a lawful and reasonable direction that employees were required to follow.

It is an accepted proposition that implied into all contracts of employment is a requirement that employees follow the lawful and reasonable directions of their employer.

Although the full bench found that Mt Arthur, and its parent company, BHP, had been educating the workforce since August 2021 on the benefits of vaccination and was prepared to assist in answering questions, through an email letterbox, it was not satisfied that genuine consultation had taken place with the employees and their unions before the announcement of the site access requirement.

The telling point appears to have been that there was a failure of Mt Arthur to comply with its obligations under the Workplace Health and Safety Act of New South Wales in deciding whether consultation had in fact taken place.

Another factor that may have persuaded the full bench to rule against the site access requirement being lawful and reasonable was that the Muswellbrook local government area in which the mine was located had high vaccination rates without mandatory vaccination needing  to occur.

In the broader context, the full bench adopted or accepted a number of propositions concerning consultation in a general sense.

For example, a right to be consulted does not equal a right to veto a decision that an employer may make. Nor is consultation an exercise in collaborative decision making but a genuine opportunity to be heard about subjects before any final decision is made. Implicit in the consultation process is the opportunity to persuade the decision maker to adopt a different course of action.

As the site access requirement was presented as a fait accompli, affected employees and their unions had no opportunity to persuade Mr Arthur to another decision that may have achieved the same objective as the site access requirement.

If you have any questions about consultation in the workplace, please contact our experienced Workplace Relations Lawyers on (03) 9614 7111 or melbourne@nevettford.com.au.