One of the issues raised by, and on behalf of, employees who object to complying with mandatory vaccination requirements is that the employer has failed to comply with obligations to consult with the affected employees about occupational health and safety (OHS).
In Beydoun & Ors v Northern Health & Ors (2021), the Fair Work Commission (FWC) considered an argument that the employer had not met its obligation under the applicable enterprise agreement to consult about OHS risk management. The employers were health services that were directing nursing staff to comply with the vaccination requirements imposed by Chief Health Officer (CHO) Directions in Victoria.
The FWC distinguished between the enterprise agreement consultation obligation, which was concerned with the work environment and the performance of work, and the CHO Directions, which required the employer to take all reasonable steps to ensure an unvaccinated worker does not enter or remain on its premises for the purpose of working.
The FWC observed that the requirement to receive a vaccine outside of the workplace (while not performing work) did not give rise to an obligation for the employer to consult with its employees pursuant to an enterprise agreement. Therefore, the employer was free to initiate disciplinary action in respect of a failure of an employee to carry out instructions arising from the CHO Directions.
The CHO Directions are concerned with managing the risk associated with COVID-19. The statutory duty of the employer to consult in relation to the OHS matters is limited by reasonable practicability. The duty does not require an employer to take every possible step that could be taken. Moreover, it requires the employer to consult when controlling risks, hazards, issues and conditions under the employer’s management and control. This duty is distinguishable from the CHO Directions, which impose obligations with which the employer simply must comply.
The FWC concluded that the CHO Directions are not stated to operate subject to consultation obligations under OHS laws. The enterprise agreement does not incorporate OHS laws.
The FWC also observed that the obligation under the dispute resolution clause in the enterprise agreement to ensure work will continue normally according to the usual practice that existed before the dispute, until the dispute is resolved, only limited the application of the status quo to the performance of work, not the entire state of affairs. Therefore, it did not prevent the employer from dismissing employees who did not meet the requirements.