Home - Another FWC ruling confirms that compliance with public health orders doesn’t require consultation

UpdatesJan 20, 2022

Another FWC ruling confirms that compliance with public health orders doesn’t require consultation

All modern awards contain a dispute-settlement procedure to be followed if a dispute arises between an award-covered employee and their employer about a matter under the award or in relation to the National Employment Standards (NES).

The parties to a workplace dispute can apply to the Fair Work Commission (FWC) for the FWC to deal with the dispute in accordance with the dispute-resolution procedure.

In Taylor v WesTrac Pty Ltd (2021), a vehicle industry employee tried to have a dispute regarding compliance with his employer’s mandatory vaccination requirements dealt with under the relevant award dispute-resolution procedure. The employer was subject to a public health order requiring full vaccination of employees from 1 January 2022 and provision of evidence of their vaccination status.

The employee characterised the dispute as about protection of his private medical information and the right to a safe workplace, including a risk assessment for what is being asked of him in relation to undergoing a medical procedure. The employee also asserted his employer was using coercion to make him undergo a medical procedure against his will and using the threat of ending his employment to obtain compliance.

The employee also argued the employer had failed to follow the award consultation process in relation to changes in the workplace and/or the conditions of his employment. The award consultation clause provided that if an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must take certain steps to consult with affected employees before proceeding to make the change.

The FWC ruled that the mandatory vaccination requirement was not the result of the employer deciding to introduce a change to employment conditions. Rather, it flowed from a decision to seek to comply with its obligations under the public health direction. In the alternative, if the employer did decide to make a change, it was not a major change in production, program, organisation, structure or technology.

Therefore, according to the FWC, the award consultation had no application to the dispute raised by the employee. Given that the award’s dispute-resolution procedure only deals with disputes that arise about a matter either under the award or in relation to the NES, the FWC could not deal with it.

Explore the issues in this case further in the Employment Law Practical Handbook:

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