Mandatory vaccinations have become popular in the workplace as Australia continues to recover from the COVID-19 pandemic. A recent decision by the Fair Work Commission Full Bench (FWCFB) held that BHP’s mandatory vaccination requirement for workers entering its NSW Mount Arthur coal mine was unreasonable due to a failure to consult employees beforehand. This article sets out the Commission’s decision and key takeaways for employers in implementing and enforcing vaccine mandates.
When can I require an employee to receive a mandatory vaccination?
Employers can lawfully require an employee to be vaccinated as a condition of entry into the workplace where:
- there is a State Government direction or public health order to do so;
- mandatory vaccination forms part of the express terms of the employment contract; or
- the direction is lawful and reasonable.
In many industries across Australia, there is currently a State Government direction or public health order for employees to be vaccinated to return on site. Employers should ensure they are regularly checking their relevant State Government Health directions to stay informed of these directions.
Where there is no State Government direction, public health order or express contract term to be vaccinated, employers must ensure that any mandatory vaccination requirements for employees are lawful and reasonable. In the BHP case, the vaccine mandate was held to be lawful but unreasonable because the company failed to consult employees before introducing the direction.
When is it lawful and reasonable to mandate vaccines?
Whether a vaccine mandate is lawful and reasonable will depend on the circumstances. Relevant considerations may include:
- the relevant industry;
- the health and safety risk of not imposing a vaccine mandate;
- the extent to which employees deal with vulnerable members of the community;
- the current circulation of COVID-19 and its variants; and
- the availability of the vaccine.
In the recent BHP case, the FWCFB found that the vaccine mandate was lawful because:
- it was within the scope of employment;
- the direction was made to protect the health and safety of employees and other persons; and
- there is nothing illegal about becoming vaccinated.
However, the FWCFB found that the vaccine mandate was unreasonable because BHP failed to adequately consult with its employees, as required by the Work Health and Safety Act 2011 (NSW). BHP had only asked employees whether the mandate should be imposed, and failed to:
- provide additional information about risk assessment that underpinned the decision;
- give employees reasonable opportunities to express their opinions and raise issues; and
- contribute to the decision-making process before the mandate was imposed.
Key takeaways for employers
- Any State Government direction or public health order to impose mandatory vaccinations in the workplace must be complied with.
- Where there is no State Government direction, public health order or express contract term mandating vaccines, any direction requiring employees to be vaccinated must be lawful and reasonable.
- All relevant circumstances are considered in determining whether a vaccine mandate is lawful and reasonable, especially the risk to health and safety.
- Employers must ensure they comply with any consultation requirements under the law.
- Generally, consultation requirements will require employees to be adequately informed, given opportunity to express their views in relation to the decision, and be consulted before the decision is made and not merely as a formality.
Gladwin Legal are experts in employment and retail law. We have extensive experience in advising businesses and have helped many to navigate the challenges of COVID-19 and the workplace. If you would like to know how we can help, please contact us at or 1300 033 934.