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Fair Work Commission Decision on Mandatory Vaccination Highlights Consultation Requirement

Weekly WHS Article 7th December 2021

A Fair Work Commission decision on the 3rd of December about vaccination includes highlighting the importance of consulting with workers on all relevant matters involved in a WHS issue in their workplace.

You may recall that in November we published an article called “When are your Workers Consulted?” which covered themust consult’ occasions and matters listed in section 49 of the WHS Act. One of the ‘must consult workers’ occurs when the PCBU is assessing risks to health and safety.

This is the “must do” that BHP apparently did not do when considering the risk of COVID-19 in their worksites. They did do a risk analysis and assessment but did not share it and consult with workers about it. They moved on and formulated the solution of mandatory vaccination and laid it out in their Site Access Requirement. They then used toolbox talks, union meetings and health and safety committee meetings to consult with their workers about implementing the proposed new requirements.

The Fair Work Commission found that the obligations in the WHS law required that employers must consult about risks and their assessment and when making decisions about what to do to handle those risks. The Health and Safety Committees and HSRs were not involved in or consulted about the decision. This flaw in fully satisfying the required consultation process and inadequate consultation meant that their Site Access Requirement of mandatory vaccination was not a lawful and reasonable direction that BHP could implement.

The consultation requirements of sections 48 and 49 are set out below.

WHS Act sections 48 and 49

Nature of consultation - section 48 WHS Act

(1) Consultation requires—

(a) that relevant information about the matter is shared with workers, and

(b) that workers be given a reasonable opportunity—

(i) to express their views and to raise work health or safety issues in relation to the matter, and

(ii) to contribute to the decision-making process relating to the matter, and

(c) that the views of workers are taken into account by the person conducting the business or undertaking, and

(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.

(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.

When consultation is required – section 49 WHS Act

Consultation is required in relation to the following health and safety matters—

(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking,

(b) when making decisions about ways to eliminate or minimise those risks,

(c) when making decisions about the adequacy of facilities for the welfare of workers,

(d) when proposing changes that may affect the health or safety of workers,

(e) when making decisions about the procedures for—

(i) consulting with workers, or

(ii) resolving work health or safety issues at the workplace, or

(iii) monitoring the health of workers, or

(iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or

(v) providing information and training for workers, or

(f) when carrying out any other activity prescribed by the regulations for the purposes of this section.

Fair Work Commission Decision on Mandatory Vaccination Highlights Consultation Requirement
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7th December 2021


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