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.

Any PCBU (business, organisation, corporation) must consult workers when 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 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.

Business owners, company directors and CEOs must ensure that the requirements of the WHS law for their business are met. Consulting with workers must be done before decisions are made.

This was not done.

7th December 2021