Workplace Mandatory COVID-19 Vaccination Policies

Josh Abbott | Partner

Sophie Kermeen | Solicitor

Last week in the Fair Work Commission (FWC), the CFMMEU (Union) made an application to set aside a mandatory COVID-19 vaccination Site Access Requirement (Policy) introduced by Mt Arthur Coal (BHP) to its employees in NSW.

The Union sought an interim order for unvaccinated employees to enter the mine site and work on the basis that the Policy is:

  • Unlawful because Mt Arthur Coal did not comply with the consultation processes under the Work Health and Safety Act; and
  • Unreasonable because it is not specifically directed at or formulated with regard to the circumstances of the mine, but applies to BHP across Australia.

The FWC dismissed the Union’s application but found
that the issues raised by the Union are serious and involve disputed facts which requires a hearing.

The application has been referred to an arbitration hearing before the Full Bench of the FWC with a decision expected to be handed down by 7 December 2021.

While the Full Bench decision will deal specifically with the validity of the Policy we expect that the decision will also have wider reaching effect on:

  • The reasonableness and lawfulness of such a policy;
  • The authority employers have to introduce such a policy; and
  • The authority of employers to stand down or terminate the employment of unvaccinated employees who do not comply with such a policy.

...Employers should take note of the pending FWC decision and if implementing a mandatory Covid-19 vaccination policy, ensure they comply with the consultation process under the Work Health and Safety Act and that the terms of the policy are reasonable and specifically tailored to their business..

If you require any advice, please contact a member of O'Loughlins' Workplace and Insurance Tea


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