Fair Work Commission to decide mandatory vaccination case

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Fair Work Commission to Decide Whether COVID-19 Mandatory Vaccination Direction Lawful and Reasonable

18 November 2021

Next week the Fair Work Commission will hear an application made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Matthew Howard as to whether a direction requiring employees of the Mt Arthur open cut coal mine be vaccinated is reasonable and lawful. 

Mt Arthur announced a requirement or direction requiring workers, as a condition of site entry:

(a) have at least a single dose of a COVID-19 vaccine by 10 November 2021; and

(b) be fully vaccinated by 30 January 2022.

Interim Relief Dismissed

Last week, Deputy Saunders dismissed an application by CFMMEU for interim relief in which, in essence, it sought orders permitting unvaccinated workers to work at the mine without satisfying the requirement they have a single dose of vaccine, between 10 November 2021 and when the Full Bench delivers its final decision (Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mount Arthur Coal Mine Pty Ltd T/A Mt Arthur Coal [2021] FWC 6309).

In coming to this decision, the following considerations were relevant: 

  • there is a prima facie case on whether the direction is a reasonable direction because there are serious questions as to whether:
    •  the mine complied with its consultation requirements before implementing the site access requirements; and
    • the site access requirements are tailored to and formulated having regard to the particular circumstances of the mine and the workers who work on it.
  • the financial inconvenience to the workers who will not earn income from the mine in the period from 10 November 2021 until at least the date the Full Bench hands down its decisions (expected to be early December 2021).  Notwithstanding that, the financial inconvenience is limited because it is a relatively short period of time and the mine has provided an undertaking it will compensate the workers for any unpaid wages in the relevant period if the mine is ultimately successful;
  • the workers who refuse to comply with the site access requirements will be required to show cause why their employment should not be terminated.  This will be a stressful situation for the employees but is somewhat eased by a further undertaking given by the mine it will not implement the outcome of any disciplinary process associated with the workers refusal to comply with the site access requirement until the decision of the Full Bench is delivered and the worker has had an opportunity to consider their position in light of that decision;
  • the making of the interim order would expose persons who attend the mine to increased risk to their health and safety by removing a control measure the mine wishes to put in place to reduce the risk of serious illness or death.  The Fair Work Commission accepted the risk is small because of factors such as the mine is an open cut coal mine where workers are often working on their own or a reasonable distance from other workers, a range of measures have already been put in place to address the risk associated with COVID-19, there have been no cases of COVID-19 detected in the mine, and the rates of vaccination in the community generally and specifically in the areas where the workers reside are high and continue to increase.  But the consequence of the health and safety risk is very serious for the workers and visitors who attend the mine, their families and all persons with whom they come into contact.
In having regard to the above considerations, the Fair Work Commission concluded the risks of granting the interim relief and allowing unvaccinated workers to work at the mine in the period between 10 November 2021 and when the decision is handed down outweighed the inconveniences that will be encountered if he did not make the order.

The hearing

The Fair Work Commission has recognised the potential significance of the decision and proposed to draw the application to the attention of peak union and employer bodies and the Minister, and grant them leave to intervene in the proceedings (Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mount Arthur Coal Mine Pty Ltd T/A Mt Arthur Coal [2021] FWC 6309).

The hearing is scheduled for 24 and 25 November 2021 with a decision expected within 10 days after that.

If you have any questions about employer obligations surrounding work health and safety considerations with respect to COVID-19, book a free consultation now!

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