Fair Work Commission (FWC) shows support for employers imposing mandatory vaccination

Whilst the vexed question of whether employers may insist on mandatory vaccination remains and is dependent on the circumstances and type of business involved, the FWC has shown support to the concept, where reasonable to do so.

On Friday, 3 December 2021, the full bench of the Fair Work Commission (FWC) handed down its much awaited decision on mandatory vaccination. In Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059, the primary issue under consideration was the need for consultation and what constituted consultation for organisations operating under enterprise agreement.

However, the FWC took the opportunity to make some broad remarks in relation to employer workplace health and safety (WHS) duties and the mandating of vaccinations, clearly supporting an employer’s right to mandate vaccinations where it is reasonable on an assessment of the facts.

Challenges for employers

The FWC acknowledged that “employers face a difficult task in managing the risks for their workers in such a dynamic environment”[1] but that where there is no government mandate in place, there is a basis for employers to require employees to be vaccinated, arising from the contractual term that an employee must “obey the lawful and reasonable directions of their employer.”[2]

The Full Bench went on to say:

“The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.”[3]

and,

“If the object and purpose of such a direction is to protect the health and safety at work of employees and other persons frequenting the premises then such a direction is likely to be lawful. This is so because it falls within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated. But such a direction must also be reasonable.”[4]

Reasonable directions

Whether a decision is reasonable will come down to an assessment of the facts of a situation and will vary from employer to employer, and to “roll out” a decision based on another employer’s decision may result in an unreasonable decision. Whilst there may be a range of reasonable decisions available in a particular situation, in coming to a “reasonable” decision, “it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interest of the parties.”[5]

Managing risk

When considering the facts of this case, the FWC considered that a suggestion that the employer should wait to assess the risk of COVID infections after movement restrictions had been lifted was in itself unreasonable and would increase the risk of the spread of illness in the workplace, particularly for unvaccinated people, which would be a breach of the employers WHS obligations.

Whilst the vaccination topic is dividing the community, employers must consider their lawful obligations when making decisions about whether they will require workers to be vaccinated and whether they will refuse entry to unvaccinated customers.

Clearly, consultation is an essential and obligatory component under WHS obligations and will go a long way to smoothing the way for the implementation of mandatory vaccinations.

Should you mandate vaccinations?

The vaccination mandate topic has been clouded with a range of other issues and opinions that have left some employers afraid to make firm decisions to comply with their most immediate obligations to protect the health and safety of their workers and clientele. There are other legitimate issues that may affect decisions, but the best approach is to seek professional legal advice to form decisions and processes to comply with WHS obligations.

If you need assistance to determine if you need to implement a vaccination policy in your workplace, NFP Lawyers can assist you. You can contact or workplace relations team at 07 3160 0010 or at reception@nfplawyers.com.au.

[1] Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 [257].

[2] Ibid, [258].

[3] Ibid, [259].

[4] Ibid, [261].

[5] Ibid, [264].

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