1 Fair Work Act 2009 s.739 - Application to deal with a dispute Construction, Forestry, Maritime, Mining and Energy Union & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (C2021/7023) JUSTICE ROSS PRESIDENT VICE PRESIDENT CATANZARITI DEPUTY PRESIDENT SAUNDERS COMMISSIONER MATHESON COMMISSONER O’NEILL MELBOURNE, 19 NOVEMBER 2021 Application for Commission to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement [1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Mr Matthew John Howard (the Applicants) have made an application under s. 739 of the Fair Work Act 2009 (Cth) (the FW Act) seeking that the Commission deal with a dispute arising under a dispute resolution procedure in the Mt Arthur Coal Enterprise Agreement 2019 (the Agreement) (the Application). [2] On 1 November 2021, a Full Bench of the Commission issued a Statement which set out directions for the filing of submissions and evidence. [3] Following the filing of submissions by the Parties, a background paper has been prepared by Commission staff to facilitate the hearing on 24 November 2021. The background paper does not represent the concluded view of the Full Bench on any matter or issue. [4] The background paper poses the following 13 questions to the Parties: Q.1. Are any of the matters referred to in Section 2 above contested? Q.2. Is Attachment 1 [of the background paper] an accurate summary of the submissions? Q.3. Is the […] extract from the interlocutory decision [in the background paper] generally accepted by the Parties? [2021] FWCFB 6051 STATEMENT f_p_n_1_ [2021] FWCFB 6051 2 Q.4. Do the parties agree that the propositions listed above regarding consultation are an accurate reflection of the case law? Q.5. If yes, are these propositions relevant to the Commission’s task in considering whether the Respondent’s consultation process was conducted in accordance with ss.47-49 of the WHS Act? Q.6. What is the status of the NSW Code of Practice in these proceedings, since this matter is not a ‘proceeding for an offence against this Act’ (s.275)? Q.7. Should the Commission take into account the content from the NSW Code of Practice, and in particular in Section 3 of the Code, in informing itself about the content of the duty in s.48 of the WHS Act and whether the Respondent has complied with the duty to consult? Q.8. Is the consultation timeline at Attachment 2 [of the background paper] accurate? Q.9. In view of this evidence, do the parties consider that the Respondent, so far as is reasonably practicable, has in accordance with the duty to consult in ss.47 and 48 of the WHS Act: shared relevant information about relevant work health or safety matters with the Employees given the Employees a reasonable opportunity to express their views and contribute to the decision processes relating to the Requirement taken the Employees’ views into account advised the Employees of the outcome of the consultation in a timely manner, and involved the Employees’ health and safety representative(s) (HSRs) in the consultations? Q.10. Separate to the statutory duty to consult, do the parties agree that an incident of the requirement that a direction be reasonable is that an employer must consult with employees who will be affected by a direction that relates to work health or safety matters? Q.11. Is the Respondent correct in its characterisation of s.47 of the WHS Act as a code, such that any decision taken by a PCBU in the absence of compliance with that duty is not invalidated? Q.12. The alternative submission put is that any non-compliance with the statutory obligation to consult renders an employer’s direction unlawful. If this is correct, does this necessarily extend to any non-compliance with obligations at law, including a PCBU’s obligations with respect to HSRs in s.70 of the WHS Act? f_p_n_2_ [2021] FWCFB 6051 3 Q.13. Is any issue taken in respect of the summary of the Parties’ submissions at [41] – [117] [of the background paper]? [5] Parties are to file a short submission responding to each of the questions to chambers.ross.j@fwc.gov.au by no later than 4.00pm Tuesday 23 November 2021. PRESIDENT Printed by authority of the Commonwealth Government Printer <PR735975> f_p_n_3_ 4 Fair Work Act 2009 s.739—Dispute resolution Construction, Forestry, Maritime, Mining and Energy Union and Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal MELBOURNE, 19 NOVEMBER 2021 Note: This document has been prepared to facilitate the proceedings on 24 November 2021. It does not represent the concluded view of the Full Bench on any matter or issue. 1. Introduction [1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Mr Matthew John Howard (the Applicants) have made an application under s. 739 of the Fair Work Act 2009 (Cth) (the FW Act) seeking that the Commission deal with a dispute arising under a dispute resolution procedure in the Mt Arthur Coal Enterprise Agreement 2019 (the Agreement) (the Application). [2] The Application was listed for conciliation before Deputy President Saunders on 28 October 2021, but the matter did not resolve. [3] On 1 November 2021, a Full Bench of the Commission issued a Statement which set out directions for the filing of submissions and evidence and noted that, given the potential significance of this matter, the Full Bench proposed to draw the Application to the attention of peak union and employer bodies and the Minister, and to grant them leave to intervene if they wish to do so. [4] The following unions and employer bodies were granted leave to intervene:  The Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU);  The Australian Council of Trade Unions (ACTU);  Australian Industry Group (Ai Group); and The Australian Chamber of Commerce and Industry (ACCI). [5] On 2 November 2021, the Applicants applied to the Commission for interim relief in the following terms: BACKGROUND PAPER 1 f_p_n_4_ [2021] FWCFB 6051 5 ‘“Until the determination of the Full Bench by arbitration of dispute C2021/7023, it is ordered that Mt Arthur Coal Pty Ltd take no steps to dismiss, discipline or otherwise prejudice the employment of any production and engineering employees who fail to present to Mt Arthur Coal Pty Ltd evidence of being vaccinated against COVID-19.’” [6] The application for interim relief was heard by Deputy President Saunders on 9 November 2021. Although not expressly stated, the Applicants sought to permit unvaccinated Employees to work at the Mine without satisfying the Site Access Requirement until the Full Bench delivered its decision. The Deputy President issued a decision dismissing the application for interim relief on the same day.1 [7] The Deputy President rejected the Applicants’ submission that the disputes procedure in the Agreement requires that unvaccinated Employees not be prevented from working at the Mine while the dispute is being dealt with. The Deputy President concluded that there is no suggestion on the evidence that the imposition of the Site Access Requirement would lead to a stoppage of work, only that Employees who refuse to comply with the Requirement will not be permitted to attend the Mine.2 [8] The Deputy President accepted the Applicants’ submission that there are serious questions as to whether the Respondent complied with its consultation obligations under s.47 of the Work Health and Safety Act 2011 (NSW) (WHS Act), and whether the Site Access Requirement was formulated with regard to the particular circumstances of the Mine and Employees. Therefore, the Deputy President concluded there was a prima facie case as to whether the Site Access Requirement was a reasonable direction, but that it was not appropriate to forecast the likely decision on those issues.3 [9] Mt Arthur gave undertakings in the following terms to the Commission in support of its opposition to the application for interim relief: 1. In the event that an employee to whom the Agreement 2019 applies (Employee) refuses to comply with the requirement that they have at least a single dose of an approved COVID-19 vaccine by 10 November 2021 (Site Access Requirement), Mt Arthur will not implement the outcome of any disciplinary process associated with the Employee’s refusal to comply with the Site Access Requirement until: a. the decision of the Full Bench in this matter is delivered; and b. the relevant Employee who is subject to the disciplinary process has had an opportunity to consider their position in light of the decision of the Full Bench. 2. If the outcome of the present dispute, whether determined by the Full Bench or, if an application is made for judicial review of the decision of the Full Bench, the court to which the application for judicial review is made, is that the Site Access Requirement was not a lawful and reasonable direction for Mt Arthur to give an Employee, then Mt Arthur will, in respect of each Employee who has refused to comply with the Site Access Requirement and not worked for Mt Arthur in the period between 10 November 2021 1 [2021] FWC 6309. 2 [2021] FWC 6309 at [22]. 3 [2021] FWC 6309 at [42]. f_p_n_5_ [2021] FWCFB 6051 6 and the date on which the Full Bench delivers its decision in this matter (Interim Period), compensate the Employee for any unpaid wages that the Employee would have been paid if the Site Access Requirement had not been imposed on them and they worked for Mt Arthur in their usual position during the Interim Period. For the avoidance of doubt, this obligation to compensate an Employee for lost wages does not apply to any part of the Interim Period during which the Employee was paid annual leave or long service leave. [10] The Application is made under s.739 of the FW Act, which provides: ‘739 Disputes dealt with by the FWC (1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute. (2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless: (a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or (b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter. Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)). (3) In dealing with a dispute, the FWC must not exercise any powers limited by the term. (4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so. Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). (5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties. (6) The FWC may deal with a dispute only on application by a party to the dispute.’ [11] Section 738 provides, relevantly, that s.739 applies if ‘an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6)’ (see s.738(b)). [12] The dispute resolution procedure in the Agreement is located in clauses 22.1–22.3. Clause 22.2 and provides: ‘22.2 GRIEVANCE PROCEDURE f_p_n_6_ [2021] FWCFB 6051 7 a) When a grievance arises the matter shall in the first instance be discussed between the employee (and the employee’s representative at the mine if the employee(s) chooses) and the immediate supervisor involved. If the matter remains unresolved; b) it shall be referred for discussion between the employee's representatives at the mine and the Department Superintendent or their representative. If the matter remains unresolved; c) It shall be referred in writing by the employee(s) raising the grievance for discussion between the employee's representatives at the mine and the Company’s department Manager or their representative. If the matter remains unresolved; d) It shall be referred for discussion between the employee’s representatives which may include a district official of the employee's union (if the employee(s) chooses) and the nominated senior Company officials. If the matter remains unresolved; e) It shall be referred as a last resort by either party to the appropriate industrial authority for conciliation and if the matter remains unresolved arbitration. The parties involved in the dispute or grievance will accept the result. By agreement between the parties involved in the dispute or grievance any or all of the Steps above may be by-passed in the interest of speedy resolution of the grievance.’ (Emphasis added) [13] It is uncontentious that the Commission is the ‘appropriate industrial authority referred to in clause 22.2(e) and that the Commission has the requisite jurisdiction to determine the dispute. [14] The Applicants have requested that the following question be arbitrated by the Commission: ‘“Whether the direction as set out in attachments 1 and 2 to the application filed by the CFMMEU in proceedings C2021/7023 is a lawful and reasonable direction in respect to employees at the Mt Arthur mine who are covered by the Mt Arthur Coal Enterprise Agreement 2019”.’ [15] The Respondent consents to this question being arbitrated by the Commission. [16] Submissions and evidence were filed in accordance with the directions issued on 1 November 2021 by the following parties:  CFMMEU and Matthew Howard (the Applicants);  AMWU and CEPU;  The ACTU;  Ai Group;  ACCI; and  Mt Arthur. f_p_n_7_ [2021] FWCFB 6051 8 [17] The Applicants and union intervenors are due to file reply submissions by 2.00pm on Tuesday 23 November 2021. [18] The Applicants filed their written submissions in chief on 9 November 2021, attaching the following evidence to be relied upon:  Witness statement of Ian Johnson (Production Operator);  Witness statement of Matthew Howard (Production Operator); and  Witness statement of Peter Colley (National Research Director of the Mining and Energy Division). [19] The Respondent filed their written submissions on 16 November 2021, attaching the following evidence to be relied upon:  Witness statement of Adam Lancey (General Manager, Mt Arthur Coal);  Witness statement of Dr Michael Donoghue (registered specialist in occupational and environmental medicine);  Witness statement of Melissa Mason (Principal Employee Relations within Minerals Australia Employee Relations team);  Witness statement of Phoebe Thomas (Principal Operations Performance, Mt Arthur Coal);  Witness statement of Ross Carlson (Mining Engineering Manager, Mt Arthur Coal);  Witness statement of Tim Dalheimer, with annexures (Vice President of HSE Minerals Australia for BHP); and  Witness statement of Professor Marylouise McLaws (Professor of Epidemiology, Hospital Infection and Infectious Diseases Control, UNSW). [20] A mention will be held at 4pm on Tuesday 23 November 2021 at which interested parties will indicate whether any of the witnesses are required for cross-examination. 2. Background [21] Much of the background to the dispute is uncontentious. [22] Mt Arthur Coal Pty Ltd (Mt Arthur) employs the employees who work at the Mt Arthur open cut coal mine (the Mine), which is located approximately 5 kilometres south of Muswellbrook in the Hunter Valley of New South Wales. Mt Arthur is a wholly owned subsidiary of Hunter Valley Energy Coal Pty Ltd, which operates the Mine. Mt Arthur and Hunter Valley Energy Coal Pty Ltd are members of the BHP group of companies (BHP). f_p_n_8_ [2021] FWCFB 6051 9 [23] Mt Arthur employs about 724 employees who work at the Mine and are covered by the Agreement (the Employees). It also employs about 256 employees who work at the Mine but are not covered by the Agreement. In addition to the workers employed by Mt Arthur to work at the Mine, there are about 1,000 workers who work at the Mine but are employed or engaged by other entities. [24] Mt Arthur manages the Mine and controls who is permitted to enter, and the conditions on which they do so.4 [25] The CFMMEU represents about 700 of the Employees. Mr Howard is the secretary of the Bayswater Lodge of the CFMMEU. The Bayswater Lodge is the name of the local group of members of the CFMMEU who are employed by Mt Arthur to work at the Mine. [26] In response to the emergence and prevalence of the Delta variant in NSW the Employees were (and are still) required to return a negative rapid antigen test as a condition of entry to the Mine.5 [27] Mt Arthur has announced a requirement or direction that all workers at the Mine, including the Employees, must be vaccinated against COVID-19 as a condition of site entry (Site Access Requirement). The Site Access Requirement requires the Employees: a) to have at least a single dose of an approved COVID-19 vaccine by 10 November 2021; and b) be fully vaccinated by 31 January 2022. [28] Mt Arthur has announced that if Employees attend the Mine after midnight on 9 November 2021 they will not be permitted access to the Mine unless they have provided Mt Arthur with evidence that they have had at least a single dose of an approved COVID- 19 vaccine. [29] Mt Arthur has also directed that workers provide it with evidence of their compliance with the Site Access Requirement by those dates.6 [30] The Site Access Requirement does not directly compel employees to be vaccinated against their will, 7 but it is accepted that an Employee’s refusal or failure to comply with the Site Access Requirement may have consequences for the Employee,8 which may include dismissal.9 Q.1: Are any of the matters referred to in Section 2 above contested? 3. The Submissions [31] A summary of the submissions filed is set out at Attachment 1. Q.2: Is Attachment 1 an accurate summary of the submissions? 4 Respondent’s Submissions at [14], citing Statement Lancey, 16 November 2021, at [5]. 5 Respondent’s Submissions at [32]. 6 Respondent’s Submissions at [7]. 7 Respondent’s Submissions at [54]. 8 Respondent’s Submissions at [55], citing Adami v Maison de Luxe Ltd (1924) 35 CLR 143 at 151. 9 Respondent’s Submissions at [55], citing Statement, Lancey, 16 November 2021, at [55]. f_p_n_9_ [2021] FWCFB 6051 10 [32] There are a number of common issues addressed in the parties’ submissions, some which are considered below. Is the Site Access Requirement a lawful and reasonable direction? [33] None of the Parties submit that there is anything in public health orders, the Agreement or express terms in the Employees’ contracts that would provide the basis for the Site Access Requirement. [34] The Parties agree that it is an implied term of the contract of employment that an employer can give to its employees a lawful and reasonable direction.10 [35] The seminal decision pertaining to the requirement of employees to follow lawful and reasonable directions of their employer is R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday11 in which Dixon J summarised the common law position as follows: ‘Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable… But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.’ [36] It is uncontroversial that:  a term is implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of their employer; 12  the standard or test to be adopted in applying the implied term is as set out in Darling;13  the giving of the direction must not be unlawful. [37] The principles in Darling have been developed and clarified over time. In McMannus v Scott Charlton14 the Federal Court noted that, as legislation has emerged affording greater protections for employees and obligations on employers, the matters that may be subject to directions by an employer within “the scope of the contract of service” has broadened. 10 Ai Group submission at [11]; ACCI submission at 2.3; Applicants’ submission at [18]; AMWU and CEPU joint submission at [6]; ACTU submission at [7]; Respondent’s submission at [93], citing R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601. 11 (1938) 60 CLR 601 12 Thompson v IGT (Australia) Pty Limited [2008] FCA 994 at [48], McManus v Scott-Charlton [1996] FCA 1820 at 21, King v Catholic Education Office Diocese of Parramatta [2014] FWCFB 2194 at [26] - [29] 13 McManus v Scott-Charlton (1996) 70 FCR 16 at [15] 14 (1996) 70 FCR 16 f_p_n_10_ [2021] FWCFB 6051 11 Where legitimately based, there will be justifications for employers to issue directions that are not strictly connected with the discharge of duties and that might affect private conduct.15 [38] This was further reinforced in Woolworths Ltd v Brown16 where a Full Bench of the Australian Industrial Relations Commission held as follows: ‘In the modern era employers face an often bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the most obvious examples. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties.’17 [39] Recently, the Full Federal Court said in One Key Workforce Pty Ltd v CFMEU18: ‘the duty of the employee at common law is to obey lawful orders. The “standard or test” by which the common law determines whether the order is lawful is one of reasonableness: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621. Dixon J explained at 621–2: If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. As Finn J observed in McManus v Scott-Charlton (1996) 70 FCR 16 at 21: The need for some such limitation is patent: employment does not entail the total subordination of an employee’s autonomy to the commands of the employer. As was said by the President in Australian Tramway Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42: A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work. There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case.’ [40] In its submission the Respondent adopts as correct the following passage from the interlocutory decision of Deputy President Saunders: 15 McManus v Scott-Charlton (1996) 70 FCR 16 at [29] 16 (2005) 145 IR 285 17 At 293 18 [2018] FCAFC 77; (2018) 262 FCR 527; (2018) 277 IR 23 at [187] f_p_n_11_ [2021] FWCFB 6051 12 ‘Whether a direction is reasonable is essentially a question of fact and balance19…It does not need to be demonstrated by the employer that the direction issued by it was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties.20 It has been held that a policy or direction will be reasonable if a reasonable employer, in the position of the actual employer and acting reasonably, could have adopted the policy.21 Unreasonableness may also be applied to a decision which lacks an evident and intelligible justification.’22 Q.3: Is the above extract from the interlocutory decision generally accepted by the Parties? [41] The Applicants and union parties submit that the Site Access Requirement is not lawful or, alternatively, not reasonable in relation to the Employees.23 [42] The Applicants submit that the Site Access Requirement is unlawful as its introduction was announced without complying with the consultation requirements of the WHS Act.24 [43] The ACTU submits that: ‘The usual source of an employer’s authority to direct its employees is contractual (there is no suggestion in this case of another applicable source of this power). The law implies a term that obliges an employee to obey his or her employer’s lawful and reasonable direction.25 The criterion of lawfulness and reasonableness are alternatives and words of limitation26 that govern the reach of the contractual power. Expressed contractually, an unlawful or unreasonable direction does not engage the implied term or the corresponding obligation of an employee to obey it.27 Such a direction necessarily stands outside the scope of the employment. It is only lawful commands within the scope of the agreed employment that are capable of carrying employment consequences for the relationship.’28 [44] The ACTU submits that an employer’s compliance with its obligations under statute bears directly on the legality (and reasonableness) of a direction it gives to its employees,29 and that if the Commission finds that the Respondent has not complied with its obligations to consult about the health and safety needs that the Site Access Requirement purports to address, then its implementation via the direction necessarily ‘involves illegality’.30 [45] The AMWU and CEPU submit that in circumstances where no public health order requires an employee to be vaccinated to undertake the work associated with the employment, and in the absence of an express provision in an award, agreement or the contract of employment, an employer will need to establish that a direction to be vaccinated 19 McManus v Scott-Charlton (1996) 70 FCR 16 at 30C. 20 Briggs v AWH (2013) IR 231 159 at [8]. 21 Woolworths Ltd v Brown (2005) 145 IR 285 22 Amie Mac v Bank of Queensland Limited [2015] FWC 774 at [90], applying Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]. 23 Applicants’ submissions at [66]. 24 Applicants’ submission at [37]. 25 Bayley v Osborne (1984) 4 FCR 141 at 145 (Davies J). 26 Darling Island Stevedoring Co Ltd; ex parte Halliday (1938) 60 CLR 601 at 621-622 (Dixon J); McManus v Scott - Charlton (1996) 70 FCR 16 at 22 (Finn J). 27 McManus v Scott -Charlton at 22 citing Australian Tramways Employees Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35. 28 ACTU submission at [7]. 29 ACTU submission at [8]. 30 ACTU submission at [17]. f_p_n_12_ [2021] FWCFB 6051 13 constitutes a lawful and reasonable direction to an employee.31 For an employee to be required to comply with a direction given by their employer, that direction must be both lawful and reasonable.32 [46] The Respondent submits that the direction is both lawful and reasonable.33 [47] The Respondent submits that whether a direction is lawful has both a positive and negative dimension.34 In respect of the positive dimension, it says that a lawful direction is one which falls within the scope of the employment,35 and in the present case:  the Site Access Requirement is within the scope of employment of all of its employees  the Site Access Requirement is consonant with the Respondent’s statutory and common law obligations for work health and safety  its object and purpose is to protect the health and safety at work of all its employees and other people at the mine.36 [48] The Respondent submits that the WHS Act governs every employment relationship in NSW.37 It imposes “significant and onerous obligations on employers with respect to the health and safety of their employees”,38 and s.28 of the WHS Act imposes duties on every employee.39 The Mine Safety Act also imposes obligations on the Respondent in relation to the health and safety of persons at work at mines.40 It follows that a direction that has as its object and purpose protecting the health and safety at work of the Respondent’s employees and other people on the Mine is one that is within the scope of employment of all its’ employees.41 [49] In most employment situations, the inherent requirements of employment will also require the employee to be able to work in a way that does not pose a risk to the health and safety of fellow employees.42 [50] On the negative dimension of lawfulness, the Respondent submits that a lawful direction is one that is not unlawful, in that it does not require the employee to do something unlawful. Vaccination, at least by an approved vaccine, is not unlawful.43 Further, the giving of the direction must not be unlawful.44 On this further point, the Respondent submits that the 31 AMWU and CEPU submission at [5]. 32 AMWU and CEPU submission at [6] citing R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 at 621-622. 33 Respondent’s submission at 138. 34 Respondent’s submission at 58. 35 Respondent’s submission at 60. 36 Respondent’s submission at 59. 37 Respondent’s submission at 63. 38 Respondent’s submission at 70. 39 Respondent’s submission at 74. 40 Respondent’s submission at 75. 41 Respondent’s submission at 78 and 87. 42 Respondent’s submission at 83, citing McHugh J in X v Commonwealth (1999) 200 CLR 177. 43 Respondent’s submission at 93. 44 Respondent’s submission at 94. f_p_n_13_ [2021] FWCFB 6051 14 giving of the direction was not unlawful, contrary to other parties’ submissions that it was unlawful because it was introduced without meeting the consultation requirements in s.47 of the WHS Act or clause 30 of the Agreement, or was otherwise outside the limits of the Respondent’s managerial prerogative or contravenes the Privacy Act. [51] Ai Group submits that the Site Access Requirement is a lawful and reasonable direction in respect to employees at the Mine who are covered by the Agreement.45 Ai Group submits that it is uncontroversial that the law will ordinarily imply a term into an employment contract requiring an employee to comply with ‘lawful and reasonable’ directions given by their employer.46 Ai Group also note that the FW Act and the Fair Work Regulations 2009 recognise the obligation of an employee to comply with a lawful and reasonable direction. Division 11 of Part 2-2 of the FW Act – Notice of Termination and Redundancy Pay is expressed not to apply to employees whose employment is terminated because of serious misconduct.47 [52] In relation to whether the Site Access Requirement is a lawful direction, Ai Group submits:  A failure by the Respondent to undertake relevant consultation in accordance with the requirements of the WHS Act would not render the direction unlawful and/or unreasonable. It would merely mean that there has been a separate contravention of such legislation that may expose the Respondent to sanction. It does not invalidate a direction to address a work health and safety risk.  The direction would not attract the application of the consultation provisions of the Agreement and any failure to comply with a consultation provision in an enterprise agreement does not remove an employer’s capacity to issue a lawful and reasonable direction.48  The direction would not give rise to any contravention of the Privacy Act because the direction does not require the employer to “collect” vaccination status information as contemplated under Australian Privacy Principle 3.49 [53] ACCI submits that the Site Access Requirement is a lawful and reasonable direction.50 It submits that:  a term is implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of the employer,  the standard or test to be adopted in applying the implied term is as set out in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601,51 45 Ai Group submission at [10]. 46 Ai Group submission at [23]. 47 Ai Group submission at [38]. 48 Ai Group submission at 95. 49 Ai Group submission at [13]. 50 ACCI submission at 1.6 and 14.1. 51 ACCI submission at 2.3. f_p_n_14_ [2021] FWCFB 6051 15  where legitimately based, a direction that affects private conduct or is not strictly connected with the discharge of duties may be within the scope of the contract of service.52 [54] ACCI submits that a direction is lawful if it falls within the scope of the employment and does not require the employee to do anything illegal.53 In this case, it submits that the Site Access Requirement is lawful because:  it falls within the scope of the employment, and  there is clearly nothing illegal about becoming vaccinated.54 [55] ACCI acknowledges that the WHS Act imposes consultation obligations and does not make submissions as to the consultation actually undertaken by the Respondent, but it submits that a failure to consult would not render the Site Access Requirement unlawful. ACCI submits:  statutory provisions do not automatically become incorporated into the contract  the implied contractual term (to comply with a lawful and reasonable direction) was well established in employment contracts before the emergence of the WHS Act and operates independently of the WHS Act  neither the WHS Act nor the FW Act render the conduct the employee is engaging in (ie becoming vaccinated) unlawful. The WHS Act does not prohibit employer directions because consultation has not been engaged in. It merely creates a separate statutory obligation, which may or may not be complied with, and  the authority to issue the direction is not derived from the WHS Act nor any industrial instrument.55 Is the Site Access Requirement ‘reasonable’? [56] In relation to the question of whether the Site Access Requirement is reasonable, the Applicants submit:  A reasonable direction for mandatory vaccination should have regard to the circumstances of the particular workplace. However, the Site Access Requirement is not directed at the circumstances of the Mine. It applies at a variety of workplaces across Australia and does not take into account the different circumstances at each of these workplaces.56  As discussed at [26] to [36] of the Applicants’ submission, the BHP Rationale did not have regard to all factors that Safe Work Australia identifies in its guidance on 52 ACCI submission at 2.5 – 2.7, citing McManus v Scott-Charlton (1996) 70 FCR 16 and Woolworths ltd v Brown (2005) 145 IR 285. 53 ACCI submission at 3.7-3.11. 54 ACCI submission at 3.12. 55 ACCI submission at 3.16-3.21. 56 Applicants’ submission at [59]. f_p_n_15_ [2021] FWCFB 6051 16 whether a requirement for workers to be vaccinated is reasonably practicable, and the specific circumstances at the Mine demonstrate that the Site Access Requirement is not reasonable.57  There is nothing in BHP’s announcement of the vaccination requirement and the BHP Rationale to support the conclusion that the ‘opening up’ by governments provides a reason for introducing mandatory vaccination.58  Neither the Commonwealth Government nor the NSW Government has seen fit through legislation, regulation or any public health order to require mandatory vaccination as a condition of employment at workplaces like the Mine. Indeed, there are no other coal mines in NSW that have a mandatory vaccination policy.59 [57] The ACTU submits that, if the vaccination direction was lawful, if the Commission finds that the Respondent ‘refused to provide health and safety representatives with the information they are entitled to have in order to perform their functions, this is more likely to expose the Vaccination Direction as unreasonable unilateral action by the Respondent’.60 [58] The AMWU and CEPU set out the following general principles in relation to whether an employer direction is ‘reasonable’:  Reasonableness is ‘a question of fact having regard to all the circumstances’.61  Whether a particular direction is reasonable cannot be determined in a vacuum and requires consideration of all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis.62  It may sometimes be a lawful and reasonable direction to require an employee to have a medical assessment, although that is a different thing from requiring them to have a vaccine. Citing Blackadder v Ramsey Butchering Services Pty Ltd,63 the Unions submit that the question of whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact.64 [59] The AMWU and CEPU note that they accept that increasing vaccination levels throughout the country is likely to reduce the transmission of COVID-19. However, they submit that achievement of community objectives in relation to vaccination against 57 Applicants’ submission at [62]. 58 Applicant’s submission at ]63]. 59 Applicants’ submission at [64]. 60 ACTU submission at [22]. 61 AMWU and CEPU submission at [8] citing R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 at 616 (Starke J), 623-624 (McTiernan J); NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [208], [214] (Flick J). 62 AMWU and CEPU submission at [9] 63 (2002) 118 FCR 395 at 411 [68]-[70]. 64 AMWU and CEPU submission at [11]. f_p_n_16_ [2021] FWCFB 6051 17 COVID-19 is primarily a matter for government action, through encouragement and incentives for people to become vaccinated or, where thought necessary, through the promulgation of public health orders mandating vaccination for particular purposes.65 [60] The AMWU and CEPU submit that the assessment of whether a vaccination direction by a particular employer is reasonable must depend on the circumstances of, and risks associated with, the particular employment. They submit that the following matters will be relevant to the Full Bench’s assessment of the vaccination mandate in issue in this case, and in any other case:  The health objective(s) that are sought to be achieved by introducing the vaccination mandate, and the cogency of the concerns and the risks. This should include consideration of the nature of the employment, the proportion of employees in the workplace who are unvaccinated and the level of community transmission in the relevant area.66  Whether the health objectives of the employer can be achieved through alternative, less invasive, means. This could include, for example, physical distancing arrangements, changes to rostering practices, improving ventilation, implementation of good hygiene practices or altering the duties of employees. These are practical control measures that could reduce any risk of contracting or transmitting the COVID-19 virus to a reasonable level. If alternative measures are considered to be less efficacious than a vaccination mandate, the Full Bench should consider the extent of the marginal difference.67  The views of those with public health expertise. This should include consideration of whether there are any public health orders in place that require vaccination, as well as advice, guidance or evidence from peak medical bodies or regulators.68  The actions taken by comparable employers and the advice of relevant industry associations (for example NSW Mining).69  The process undertaken by the employer including: consideration of the information the employer is acting upon, the risk assessments carried out, the alternatives considered, the consultation process and the transparency of the decision-making process.70  The tailoring of the mandate including whether it permits consideration of individual cases or differentiates between different groups of employees (if this is warranted).71 65 AMWU and CEPU submission at [16]. 66 AMWU and CEPU submission at [18]-[21]. 67 AMWU and CEPU submission at [22]. 68 AMWU and CEPU submission at [24]-[25]. 69 AMWU and CEPU submission at [26]-[28]. 70 AMWU and CEPU submission at [29]-[30]. 71 AMWU and CEPU submission at [31]. f_p_n_17_ [2021] FWCFB 6051 18  The impact on individuals. The effect of the Site Access Requirement is that an employee who fails to become vaccinated faces disciplinary action up to and including the likely loss of employment.72 [61] The Respondent submits that the Site Access Requirement is reasonable. It says:  once a direction to be vaccinated satisfies the test posed by the positive dimension of lawfulness, it will axiomatically be reasonable, substantially for the same reasons.73  the element of reasonableness authorises a choice between alternatives that are reasonable – it is not material that a better direction may exist. The existing WHS risk controls at the Mine are not sufficient, either individually or in combination, to effectively minimise the identified risks.74 [62] The Respondent submits that:  It has the statutory responsibilities of a mine operator under the Mine Safety Act, and of a PCBU under the WHS Act75  It is a ‘residential mining operation’ in that its workforce primarily resides in surrounding communities. As a consequence, its workforce has regular daily contact with their families and other members of the surrounding communities, and the Respondent cannot prevent workers from contracting COVID-19 outside work and bringing it with them when they are next on site.76  BHP applies a single, group-wide approach to risk management. The Site Access Requirement was promulgated in accordance with the Respondent’s safety management system, which informs the Respondent’s decision-making process about all WHS matters.77  COVID-19 can cause serious illness and is potentially fatal, and the Delta variant is more infections and has more severe health effects than previous variants. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, with vaccination the most effective and efficient control available to combat the risks posed by COVID-19, but even with higher community rates of vaccination, COVID-19 remains a significant workplace hazard.78 72 AMWU and CEPU submission at [33]. 73 Respondent’s submission at 117, citing Barber v Goodstart Early Learning [2021] FWC 2156 in relation to influenza vaccines. 74 Respondent’s submission at 121. 75 Respondent’s submission at 15 and 69. 76 Respondent’s submission at 17. 77 Respondent’s submission at 21. 78 Respondent’s submission at 23. f_p_n_18_ [2021] FWCFB 6051 19 [63] The Respondent accepts that any non-compliance with s.47 of the WHS Act is a relevant consideration in assessing the reasonableness of a direction but submits that it is not, in this case, determinative of the objective reasonableness of the direction.79 [64] On whether the direction to comply with the Site Access Requirement is outside the limits of the Respondent’s managerial prerogative, the Respondent submits that the ACTU does not identify what those limits are, but that the Commission will not interfere with the right of an employer to manage his own business unless it is seeking from the employees something which is unjust or unreasonable.80 The Respondent cites Australian Federated Union of Locomotive Enginemen v State Rail Authority (NSW) (1984) 295 CAR 188, saying: ‘the test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable’. [65] Ai Group submits that a high bar exists for finding that a direction is unreasonable.81 [66] Ai Group submits that employers have obligations under both statute and the common law to protect the health and safety of employees at work.82 The Site Access Requirement is reasonable because it is underpinned or justified by the obligation upon the Respondent under s.19 of the WHS Act and the common law obligation upon employers to take reasonable care for the health and safety of employees at work. It is also consistent with an employee’s obligations under s.28 of the WHS Act. Ai Group further submits that an employer’s duty to take reasonable care for the work health and safety of its employees is also derived from an implied contractual term.83 It is submitted that this implied contractual term presents an additional point in favour of a finding that the direction of the Respondent was a lawful and reasonable direction. [67] Ai Group submits that the Site Access Requirement is a proportionate response to the gravity and nature of the risk posed by the pandemic to the work health and safety of the Employees and others working on the employer’s site and is appropriate given the utility of vaccination as a measure for protecting persons from serious illness and death, as well as in limiting the transmission of the virus. [68] In response to the Applicants’ submissions in relation to the reasonableness of the direction, Ai Group submits that the determination of whether an employer’s direction was a reasonable one has been considered by a Full Bench of the Commission in Briggs v AWH Pty Ltd to ‘not involve an abstract or unconfined assessment as to the justice or merit of the direction’. It was further observed that it does not need to be demonstrated that a direction issued was ‘the preferable or most appropriate course of action, or in accordance with best practice, or in the best interests of the parties’. 84 Ai Group submits that in the current context, the Full Bench should be primarily concerned with an assessment of whether the direction gave rise to any unlawfulness or whether it was with the scope or subject matter 79 Respondent’s submission at 122. 80 Respondent’s submission at 112. 81 Ai Group submission at 31 citing Woolworths Limited (t/as Safeway) v Cameron Brown (2005) 145 IR 285 82 Ai Group submissions at [41]. 83 Ai Group submission at [55] and [56] citing Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120. 84 Ai Group submission at [67]. f_p_n_19_ [2021] FWCFB 6051 20 of the employment, and not broader considerations as to the merits of the Respondent’s direction. It further submits:  The material published by public regulators is not binding upon the Commission. 85  In circumstances where an employer issues a direction for the purposes of ensuring the employer meets the requirements of s.19 of the WHS Act or its common law obligations pertaining to work health and safety and imposes requirements upon employees that are not inconsistent with the obligations upon employees under s.28 of the WHS Act and is being proportionate and reflective of the circumstances in which the employment is occurring, it will be a ‘reasonable’ direction. 86  the Applicants’ contention that the ‘the extent of community transmission of COVID-19 in the locality of the Mine and the locality of the residences of the workers is minor’ and that ‘taking account of the local situation, the ever increasing vaccination rates and the history of rapid antigen testing demonstrate that it is unlikely that the workers at the Mine will be exposed to the COVID-19 virus’ ignores the demonstrated capacity of the virus, particularly the Delta strain, to spread across geographic locations very quickly. 87  The Applicants’ submissions fail to properly account for the capacity of the ‘local situation’ to change, and to change rapidly, or of the seriousness of the threat that the virus presents to the health and safety of the workers at the Mine. 88  The Applicants’ observation that SafeWork NSW has not intervened in the absence of a mandatory vaccination regime, to impose such a requirement, does not weigh substantially in favour of any contention that the imposition of the requirement is not warranted. 89  The Applicants’ contention that there is less need for such intervention now than when vaccination rates were lower does not negate the need to protect employees at work through the imposition of a vaccination requirement. 90 [69] Ai Group also submits that the unions’ argument that it is not reasonable for the Respondent to mandate vaccinations because there is no public health order in New South Wales for the relevant industry or type of worker is not sustainable. 91 [70] ACCI submits that the protective measures in place at the Mine, such as rapid antigen testing, physical distancing, cleaning and maintenance, should reduce in a substantive way the prospect of COVID-19 transmission, but that they will not eliminate the transmission of the virus on site.92 ACCI contends that the Commission can comfortably conclude that it is 85 Ai Group submission at [69]. 86 Ai Group submission at [70]. 87 Ai Group submission at [73]. 88 Ai Group submission at [74]. 89 Ai Group submission at [75]. 90 Ai Group submission at [76]. 91 Ai Group submission at [77]. 92 ACCI submission at 7.33 to 7.35. f_p_n_20_ [2021] FWCFB 6051 21 likely that vaccination of workers will reduce transmission at the Worksite in a substantive way.93 The Respondent has an WHS duty to ensure the health and safety of ‘other persons’ is not put at risk by its undertaking, and the Site Access Requirement will help protect vulnerable groups of persons who may come into contact with Mt Arthur workers, such as children and remote and Indigenous communities.94 [71] On reasonableness, ACCI submits that:  what is reasonable will depend upon all the circumstances of the relevant case, but that an employer does not need to demonstrate that its direction is the most preferable or most appropriate course of action in order for the direction to be reasonable.95  where an employer direction is issued for the purpose of eliminating or reducing the risk of harm from a particular hazard, in assessing the reasonableness of any such direction, an assessment must be made as to whether: o whether or not the risk exists; o the probability of the risk event occurring (but not the fact that the risk event has never occurred at the particular workplace); and o the impact/consequences associated with the risk event occurring.96 [72] On whether public health directions are relevant to determining whether the Site Access Requirement is reasonable, ACCI submits they are relevant:  because the lifting of public health restrictions means that COVID-19 in the community and workplaces could well increase, but  not for the reasons that the Applicants’ submit (i.e. that the Commonwealth Government and NSW Government have not mandated vaccination as a condition of employment at a mine site, and the Australian Health Protection Principal Committee has not recommended mandatory vaccinations at mine sites).97 [73] COVID-19 has been and continues to be present through Australia, NSW and the geographical regions surrounding the Mine.98 Although employers always had obligations under the WHS Act, the Government’s former intervention by way of health orders and quarantine restrictions took the lead in protecting employees, but with this intervention now largely at an end in NSW, employers more directly bear the burden of responsibility to minimise risks to harm arising from COVID-19 in their worksite and local community.99 93 ACCI submission at 9.12. 94 ACCI submission at 5.1-5.16. 95 ACCI submission at 2.9. 96 ACCI submission at 10.13-10.14. 97 ACCI submission at 11.1-11.5. 98 ACCI submission at 10.30. 99 ACCI submission at 11/7-11.8. f_p_n_21_ [2021] FWCFB 6051 22 [74] In WA, the NT and Victoria, workers at a mine site are required to be vaccinated to enter the site pursuant to public health directions.100 [75] While ACCI does not make submissions about whether the Site Access Requirement is tailored to the Mine, it does not accept that issuing a policy or direction with general application or to a broad range of workers automatically or intuitively renders the direction unreasonable.101 If the Site Access Requirement does have some particularly adverse impact on an individual that needs to be taken into account, the individual can challenge the requirement pursuant to the dispute resolution procedures in the Agreement and have their circumstances considered.102 Was there an obligation on the Respondent to consult under the WHS Act and if yes, did the Respondent consult with the Employees in accordance with the WHS Act? [76] The content of the duty to consult with workers under work health and safety legislation is set out in the Table below: Legislation Extract Cth Work Health and Safety Act 2011 (Cth); Work Health and Safety Act 2011 (NSW); Work Health and Safety Act 2011 (Qld); Work Health and Safety Act 2012 (SA); Work Health and Safety Act 2012 (Tas); Work Health and Safety Act 2011 (ACT); Work Health and Safety (National Uniform Legislation) Act 2011 (NT) 48 Nature of consultation (1) Consultation under this Division 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. VIC Occupational Health and Safety Act 2004 35 Duty of employers to consult with employees … (3) An employer who is required to consult with employees under subsection (1) must do so by— (a) sharing with the employees information about the matter on which the employer is required to consult; and (b) giving the employees a reasonable opportunity to express their views about the matter; and (c) taking into account those views. 100 ACCI submission at 11.10. 101 ACCI submission at 12.3. 102 ACCI submission at 12.7. f_p_n_22_ [2021] FWCFB 6051 23 (4) If the employees are represented by a health and safety representative, the consultation must involve that representative (with or without the involvement of the employees directly). (5) Subject to subsections (3) and (4), if the employer and the employees have agreed to procedures for undertaking consultations, the consultation must be undertaken in accordance with those procedures. WA Occupational Safety and Health Act 1984 There is currently no equivalent provision in the WA Act. Note however that WA is due to adopt the WHS Model Laws commencing next year. [77] The current form of s.35 of the Victorian Act is a product of an amendment introduced in 2018 (see Treasury and Finance Legislation Amendment Act 2018, s.19). The Treasury and Finance Legislation Amendment Bill 2018 Explanatory Memorandum states: Clause 19 combines the matters set out in current sections 35 and 36 of the Occupational Health and Safety Act 2004 into a single new section 35. Current section 35 pertains to the duty of employers to consult with employees. Current section 36 pertains to the required method of consultation. The amendments clarify and confirm that any failure to undertake consultation in accordance with the required method of consultation amounts to a failure to comply with the duty to consult. The combining of these matters into a single new section does not change the operation of the amended provisions. [78] The Work Health and Safety Bill 2011 (Cth) Explanatory Memorandum provides some limited guidance on s.48, as follows: 153. Subclause 48(1) establishes the requirements for meaningful consultation. It requires PCBUs to: share relevant information about work health or safety matters (listed in clause 49) with their workers; give workers a reasonable opportunity to express their views; and contribute to the decision processes relating to those matters. It also requires PCBUs to take workers’ views into account and advise workers of relevant outcomes in a timely manner. 154. Subclause 48(2) provides that consultation must involve any HSR that represents the workers. 155. Consulting with HSRs alone may be sufficient to meet the consultation duty, depending on the work health or safety issue in question. [emphasis added] Case law on workplace consultation f_p_n_23_ [2021] FWCFB 6051 24 [79] There appears to be limited authority directly relating to the consultation requirements in ss.47-49 of the WHS Act.103 [80] Many cases on consultation arise in the context of consultation obligations under industrial instruments. The parties’ submissions refer to the following cases in respect of the obligation to consult and what that entails:  Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (2010) 198 IR 382; (2010) 268 ALR 514  Consultation clause in modern awards [2013] FWCFB 10165  Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2016) 262 IR 176; [2016] FCA 1009  Construction, Forestry, Mining and Energy Union v The Newcastle Wallsend Coal Company Pty (1998) 88 IR 202  CPSU v Vodafone Network Pty Ltd [2001] AIRC 1189; PR911257 (14 November 2001)  Felton v BHP Billiton Pty Ltd [2015] FWC 1838  Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union (2016) 248 FCR 18  QR Limited v Communications Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150  Sinfield v London Transport Executive [1970] Ch 550. [81] Some additional cases have been identified that deal with the meaning of consultation:  Brasell-Dellow v Queensland (Queensland Police Service) [2021] QIRC 356, at paras. 123 – 131.  Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FWA 3945  Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FCA 1431  Tomvald v Toll Transport Pty Ltd [2017] FCA 1208  TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172 103 Two cases which discuss the consultation obligation in s.48 of the WHS Act are: Felton v BHP Billiton Pty Ltd [2015] FWC 1838, at paras. 53-78 and Brasell-Dellow v Queensland (Queensland Police Service) [2021] QIRC 356, at paras.123 – 131. See also Nazih Beydoun & Ors v Northern Health & Ors [2021] FWC 6341. f_p_n_24_ [2021] FWCFB 6051 25  TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93. [82] The following propositions may be drawn from these cases about what constitutes consultation:  the content of any specific requirement to consult is necessarily dictated by the precise terms in which such a requirement is expressed; the nature of the factual or legal issues the subject of the requirement; and the factual context in which the requirement is exercised, including the particular circumstances of the persons with whom there must be consultation104  a responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account105  the consultation needs to be real; it must not be a merely formal or perfunctory exercise106  even though management retained the right to make the final decision, it is not to be assumed that the required consultation was to be a formality. Management has no monopoly of knowledge and understanding of how a business operates, or of the wisdom to make the right decisions about it. The process of consultation is designed to assist management, by giving it access to ideas from employees, as well as to assist employees to point out aspects of a proposal that will produce negative consequences and suggest ways to eliminate or alleviate those consequences.107  the party to be consulted [must] be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon.108  while the word ‘consultation’ always carries with it a consequential requirement for the affording of a meaningful opportunity to the party being consulted to present those views, what will constitute such an opportunity will vary according [to] the nature and circumstances of the case. In other words, what will amount to ‘consultation’ has about it an inherent flexibility109  a right to be consulted, though a valuable right, is not a right of veto110 104 Tomvald v Toll Transport Pty Ltd [2017] FCA 1208, [212]. 105 TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172 at 178. 106 TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93 at 101. 107 QR Limited v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150, [81]. 108 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591, [44]. 109 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591, [44]. 110 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591, [44]. f_p_n_25_ [2021] FWCFB 6051 26  the consultation obligation is not concerned with a likelihood of success of the process, only to ensure that it occurs before a decision is made to implement a proposal111  an ordinary understanding of the word “consult” would suggest that the obligation to consult does not carry with it any obligation either to seek or to reach agreement on the subject for consultation. Consultation is not an exercise in collaborative decision-making. All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made112  the requirement to consult affected workers would … not be satisfied by providing the employees with a mere opportunity to be heard; the requirement involves both extending to affected workers an opportunity to be heard and an entitlement to have their views taken into account when a decision is made113  genuine consultation would generally take place where a process of decision- making is still at a formative stage114  the opportunity to consult must be a real opportunity not simply an after thought115  consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal116  there is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, ‘this is what is going to be done’ and saying to that person ‘I’m thinking of doing this; what have you got to say about that?’. Only in the latter case is there ‘consultation’117  it is implicit in the obligation to consult that a genuine opportunity be provided for the affected party to attempt to persuade the decision maker to adopt a different course of action. If a change has already been implemented or if the employer has already made a definite or irrevocable decision to implement a change then subsequent ‘consultation’ is robbed of this essential characteristic118  any offer to consult in relation to the matter was in the context that the respondent had already made an irrevocable decision, then the party had not, to use his Honour's words, consulted about the decision in any meaningful way.119 111 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FCA 1341, [60]. 112 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 1009 at [60]. 113 Tomvald v Toll Transport Pty Ltd [2017] FCA 1208, [211]. 114 Tomvald v Toll Transport Pty Ltd [2017] FCA 1208, [211]. 115 Construction, Forestry, Mining and Energy Union v The Newcastle Wallsend Coal Company Pty (1998) 88 IR 202, 217. 116 Sinfield v London Transport Executive [1970] 1 Ch 550, 558. 117 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591, [45]. 118 Consultation clause in modern awards [2013] FWCFB 10165, [35]. 119 Construction, Forestry, Mining and Energy Union v The Newcastle Wallsend Coal Company Pty (1998) 88 IR 202, 218. f_p_n_26_ [2021] FWCFB 6051 27 [83] The list set out above does not purport to be an exhaustive statement of the elements underpinning the content of an obligation to consult. Q.4: Do the parties agree that the propositions listed above regarding consultation are an accurate reflection of the case law? Q.5: If yes, are these propositions relevant to the Commission’s task in considering whether the Respondent’s consultation process was conducted in accordance with ss.47-49 of the WHS Act? [84] The NSW Government Code of Practice Work Health and Safety Consultation, Cooperation and Coordination (based on a national model code of practice developed by Safe Work Australia) was approved in August 2019 under s.274 of the WHS Act. The Code of Practice is at Attachment PJC-13 to the Witness Statement of Peter John Colley. Section 3, titled ‘What is effective consultation?’, discusses each of the elements in s.48 of the WHS Act. Q.6: What is the status of the NSW Code of Practice in these proceedings, since this matter is not a ‘proceeding for an offence against this Act’ (s.275)? Q.7: Should the Commission take into account the content from the NSW Code of Practice, and in particular in Section 3 of the Code, in informing itself about the content of the duty in s.48 of the WHS Act and whether the Respondent has complied with the duty to consult? [85] The Parties agree that the introduction of the Site Access Requirement and its implementation enlivened the consultation obligations in the WHS Act. 120 Sections 47 to 49 of the WHS Act are set out below: 47 Duty to consult workers (1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. 48 Nature of consultation (1) Consultation under this Division 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 120 Applicants’ submission at [38]; Ai Group submission at [88]; ACCI submission at 3.2 and 3.4; Applicants’ submission at [37]; Respondent’s submission at [97]-[98]; ACTU submission at [10] and [14]. f_p_n_27_ [2021] FWCFB 6051 28 (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. 49 When consultation is required Consultation under this Division 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. [86] The Applicants submit that the Respondent has failed to comply with the obligations to consult in accordance with the WHS Act and set out the following matters in support of that submission:  The announcement of the introduction of the Site Access Requirement was made without any real consultation and was presented to the employees of Mt Arthur as a fait accompli. The announcement on 7 October 2021 was not that BHP ‘may’, f_p_n_28_ [2021] FWCFB 6051 29 ‘proposed to’ or ‘intended to’ introduce the Requirement. The announcement was that the Site Access Requirement ‘will be introduced’.121  No meetings were held prior to the announcement of the Site Access Requirement on 7 October 2021. The meetings that occurred after that date were not about whether the Site Access Requirement would be introduced but rather about how and why it would be implemented.122  If there was any consultation, it was by BHP not by Mt Arthur who as the person conducting the business or undertaking was required to carry out the consultation.123  No risk assessments or expert advice to justify the Site Access Requirement or the BHP Rationale have been given to the employees.124 [87] The ACTU submits that it appears uncontroversial that the basis relied on by the Respondent for the Site Access Requirement is health and safety.125 In relation to the relevant health and safety requirements they submit that:  The Mine is a ‘mine’ within the meaning of s.6(1) of the Work Health and Safety (Mines And Petroleum Sites) Act 2013 (NSW) (the Mine Safety Act). Section 4(1) of the Mine Safety Act stipulates that the Act is to be construed with and as if it formed part of the WHS Act. A ‘mine safety and health representative’ elected pursuant to s.38 of the Mine Safety Act has all the functions of a health and safety representative under the WHS Act for the workgroup at the mine ‘as if the workgroup comprised all the workers at the mine:’ s.42(1).126  The Respondent must comply with s.47(1) of the WHS Act, which requires it to consult, so far as reasonably practicable ‘with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety’.127  Consultation is treated by the WHS Act as a matter of substance which is to occur prior to implementation. Section 48(2) requires that the consultation involve a health and safety representative, who in the context relevant here is a ‘mine safety and health representative’. 128  This consultation requirement is extended by s.70(1) of the WHS Act. This includes an obligation under s.70(1)(c) on the Respondent to allow a health and safety representative access to information ‘relating to’ hazards (including associated risks) at the workplace affecting workers in the workgroup (which having regard to the definition of a ‘mine safety and health representative’ in the 121 Applicants’ submission at [47]. 122 Applicants’ submission at [48]. 123 Applicants’ submission at [49]. 124 Applicants’ submission at [50]. 125 ACTU submission at [14]. 126 ACTU submission at [9]. 127 ACTU submission at [10]-[11]. 128 ACTU submission at [12]. f_p_n_29_ [2021] FWCFB 6051 30 Mine Safety Act, extends to all the workers at the Mine) and the health and safety of the workers in the workgroup (again, all the workers at the Mine).129 [88] The Respondent identifies three distinct phases in relation to the Site Access Requirement. These are characterised in the Respondent’s submissions as:  the options phase which was prior to 31 August 2021  the assessment phase from 31 August 2021 until 7 October 2021, and  the implementation phase from 7 October 2021 until 10 November 2021. [89] The respondent submits that during the ‘options phase’, it commenced a program of educating and promoting COVID-19 vaccination to all of its employees across its Australian operations, including those employed by Mt Arthur Coal.130 This included the regular circulation of announcements and videos that informed employee of the health and safety benefits of vaccination, exposed common myths about COVID-19 vaccines, and provided information about how employees could book their vaccination appointments.131 [90] On 21 August 2021, an “Options Analysis” was submitted to the MinAu senior leadership team (of which Edgar Basto, President of Minerals Australia, was a member), which lead to a recommendation that COVID-19 vaccination be a condition of entry to BHP workplaces in Australia. The recommendations in the Options Analysis, including the proposal that COVID-19 vaccination be a condition of entry to BHP workplaces in Australia, were supported by Mr Basto and the rest of the senior leadership team, subject to preliminary steps that included: the completion of a risk assessment to inform the implementation plan; the processes for considering those with genuine medical contraindications to COVID-19 vaccines; and undertaking further workforce engagement and consultation.132 [91] The ‘assessment phase’ commenced on 31 August 2021 with BHP’s announcement that it was “actively assessing whether to make vaccination a condition of entry to BHP workplaces in Australia”, and that a risk based assessment would be commenced into the proposed Site Access Requirement.133 The Respondent submits that, during the assessment phase:  BHP set up a central mailbox for the use of all employees (Vaccine Mailbox), including those at the Mine, and expressly invited their questions and comments regarding the proposed introduction of the Site Access Requirement.134 Approximately 480 inquiries to the Vaccine Mailbox were received and responded to between 31 August 2021 and 7 October 2021 across all BHP assets, with approximately 20 of that total coming from Mt Arthur Coal’s employees 129 Ibid. 130 Respondent’s submission at [28]. 131 Respondent’s submission at [29]. 132 Respondent’s submission at [35]-[36]. 133 Respondent’s submission at [37]. 134 Respondent’s submission at [39]. f_p_n_30_ [2021] FWCFB 6051 31  Correspondence was received from a number of unions regarding the proposed Site Access Requirement, including the CFMMEU, the ETU, the AMWU, and the RTBU. BHP responded to each of the union’s concerns in writing and also met with union representatives where requested to further discuss the Site Access Requirement.135  Employees provided feedback through other avenues.  Members of BHP’s COVID-19 Vaccination Working Group assessed and collated the questions and comments received from employees and their representatives, and briefed Mr Tim Dahlheimer (Vice President HSE for Minerals Australia) on the volume and themes being expressed across the various BHP entities, including at Mt Arthur Coal.136 [92] The implementation phase commenced on 7 October 2021 with the announcement from BHP that the Site Access Requirement would be implemented at all of BHP’s workplaces across Australia (including at the Mine).137 [93] The Respondent submits that during the implementation phase: ‘BHP and Mt Arthur Coal then continued its process of consultation and engagement with workers under the WHS Act, now focusing on the implementation of the Site Access Requirement (which was not due to commence operating at Mt Arthur Coal until 10 November 2021).’ [94] It is submitted that this process was ‘substantially the same as that which occurred between 31 August 2021 and 7 October 2021. However, it was focused on the application of the Site Access Requirement at BHP’s assets, including the Mine, rather than whether it should be introduced at all.’138 [95] As to whether there has been compliance with s.47, the Respondent submits that this is partly a legal issue as to the location and content of the duty to consult under s.47, and partly factual issues as to what relevantly happened and whether it met the requirements of s.47.139 The content of the duty is comprehensively set out in s.48 of the WHS Act and does not confer any ‘right of veto’ on employees.140 [96] The Respondent submits that:  The response to and management of COVID-19 by BHPs assets, including the Respondent, has been led and co-ordinated by BHP.141 135 Respondent’s submission at [40]. 136 Respondent’s submissions at [41]. 137 Respondent’s submissions at [45]. 138 Respondent’s submissions at [49]. 139 Respondent’s submission at 102. 140 Respondent’s submission at 103. 141 Respondent’s submission at 25. f_p_n_31_ [2021] FWCFB 6051 32  BHP took steps to educate its workforce and promote vaccination when it became available, including by providing a COVID-19 Vaccine Information Hub on its intranet, available to all employees.142  At the Mine, the Respondent currently employs the following COVID-19 controls: o physical distancing protocols o hygiene protocols, including hand hygiene, cough etiquette, cleaning and disinfection and working in split teams o personal protective equipment o screening questionnaire for workplace entry including return to work criteria o occupancy limits o the requirement to return a negative rapid antigen test as a condition of entry to the Mine.143  An ‘Options Analysis’ submitted on 21 August 2021 lead to a recommendation that COVID-19 be a condition of entry to BHP workplaces in Australia. This was supported by BHPs senior leadership team, subject to preliminary steps including: o Completion of a risk assessment to inform the implementation plan o The processes for considering those with genuine medical contra-indications to COVID-19 vaccines, o Undertaking further workforce engagement and consultation.144  Between 31 August 2021 and 7 October 2021, BHP and the Respondent began a process of consultation and engagement with employees and their representatives under the WHS Act about the proposed Site Access Requirement. This process included engaging with unions, and setting up a vaccine mailbox that employees could send questions and comments to. Approximately 20 of the Respondent’s employees sent emails to the vaccine mailbox, with all feedback collated and considered.145 The feedback was considered by Mr Dahlheimer (Vice President HSW for Minerals Australia), who should be taken to have been the agent of BHP and the Respondent for the purposes of compliance with s.48 of the WHS Act.146  The Site Access Requirement announced on 7 October 2021 explicitly addressed the circumstances of employees who could not be vaccinated, stating: 142 Respondent’s submission at 29. 143 Respondent’s submission at 31-32. 144 Respondent’s submission at 36. 145 Respondent’s submission at 38-43. 146 Respondent’s submission at 104(d). f_p_n_32_ [2021] FWCFB 6051 33 ‘People with medical concerns or those with conditions listed as contraindications or precautions in the ATAGI Clinical Guidance on COVID- 19 Vaccination will be asked to follow a medical review process. If through this process the person is confirmed to have a condition which prevents the person from being vaccinated, BHP will review their individual circumstances on a case-by-case basis, and BHP will consider accommodating such circumstances.’  BHP and the Respondent continued consultation during the ‘implementation phase’ between 7 October and 10 November 2021.147 [97] On compliance with the consultation requirements in s.47 of the WHS Act, the Respondent submits:  there has been compliance, and  alternatively, if there has not been compliance, the consequences of any non- compliance do not include the invalidation of the decision to implement the Site Access Requirement. This is said to be so because there is no basis in the evidence to conclude that any further consultation might have resulted in a decision not to direct compliance with the Site Access Requirement. Neither the CFMMEU nor any of the intervenors point to any thought, idea or suggestion pertaining to the Site Access Requirement that has a factual basis and was not in fact taken into account during the decision-making process. .148 [98] In relation to the obligation to consult under the WHS Act, Ai Group and ACCI do not address whether, as a matter of fact, the Respondent engaged in consultation that would satisfy the obligations contained within the WHS Act.149 Compliance with the duty to consult [99] The Applicants’ and the Respondent’s evidence and submissions address the content of the duty to consult in the WHS Act and the Respondent’s compliance with that duty in relation to the introduction and implementation of the Site Access Requirement. A consultation timeline prepared by on the basis of this material is at Attachment 2. Q.8: Is the consultation timeline at Attachment 2 accurate? Q.9: In view of this evidence, do the parties consider that the Respondent, so far as is reasonably practicable, has in accordance with the duty to consult in ss.47 and 48 of the WHS Act:  shared relevant information about relevant work health or safety matters with the Employees 147 Respondent’s submission at 48. 148 Respondent’s submission at 96. 149 Ai Group submission at [90] and ACCI submission at 3.7-3.11. f_p_n_33_ [2021] FWCFB 6051 34  given the Employees a reasonable opportunity to express their views and contribute to the decision processes relating to the Requirement  taken the Employees’ views into account  advised the Employees of the outcome of the consultation in a timely manner, and  involved the Employees’ health and safety representative(s) (HSRs) in the consultations? Q.10: Separate to the statutory duty to consult, do the parties agree that an incident of the requirement that a direction be reasonable is that an employer must consult with employees who will be affected by a direction that relates to work health or safety matters? Effect of non-compliance with the duty in s.47 of the WHS Act [100] The Respondent submits: ‘It is an offence not to comply with section 47 of the WHS Act. Section 47 prescribes that the consequence of a failure to discharge the duty that it prescribes is liability for a civil penalty to the stipulated maximum amount. In this respect, section 47 should be taken to be a code, and the fact that it does not say anything about the invalidation of a decision taken in the absence of compliance with the duty it creates should be taken to be deliberate. This is particularly so given that any failure to meet the requirements of section 47 would result in the unwinding of the implementation of a safety control, exposing both the employer and employees to the very risk that the employer seeks to manage in compliance with its lawful obligations. That would be contrary to the purposes of the WHS Act.’ Q.11: Is the Respondent correct in its characterisation of s.47 of the WHS Act as a code, such that any decision taken by a PCBU in the absence of compliance with that duty is not invalidated? Q.12: The alternative submission put is that any non-compliance with the statutory obligation to consult renders an employer’s direction unlawful. If this is correct, does this necessarily extend to any non-compliance with obligations at law, including a PCBU’s obligations with respect to HSRs in s.70 of the WHS Act? Note: In addition to Saunders DP’s decision on the application for interim relief150, to the extent considered relevant, the parties are requested to consider the decisions of TVW Enterprises Ltd v Duffy [1985] FCA 525, (1985) 8 FCR 93, Kutlu v Director of Professional Services Review [2011] FCAFC 94 and Project Blue Sky v Australian Broadcasting Authority (S41-1997) [1998] HCA 28 (and any other authorities) in addressing these points. Was there an obligation to consult under clause 30 of the Agreement and if yes, did the Respondent comply with that clause? 150 Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWC 6309 at para. 39. f_p_n_34_ [2021] FWCFB 6051 35 [101] The ACTU notes that the Agreement incorporates by reference the model consultation term provided for in Schedule 2.3 of the Fair Work Regulations 2009 (see clause 30). It submits that the obligation to consult under this term is engaged if the employer has made a ‘definite decision’ to introduce a ‘major change’ to ‘production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees’.151 [102] The Respondent submits that the Site Access Requirement is not a major change that requires consultation under clause 30 of the Agreement, and that even if it was, the Respondent has met those requirements.152 [103] Ai Group submits that the consultation term in clause 30 of the Agreement does not encompass the direction to vaccinate against COVID-19.153 [104] No other parties made submissions on this point. Is the Site Access Requirement also a reasonable instruction for the purposes of s.19(3) of the WHS Act (that triggers the obligation on workers to comply in s.28)? [105] Section 19(3)(f) of the WHS Act provides that a person conducting a business or undertaking must ensure, so far as is reasonably practicable, the provision of any instruction that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking. [106] The Applicants submit that the there is nothing in the BHP Rationale to suggest that BHP or Mt Arthur had regard to the matters set out in s.19 of the WHS Act or conducted the balancing exercise required by the qualification of reasonable practicability in s.19 of the WHS Act. 154 [107] The Applicants seek to rely on advice published by Safe Work Australia (SWA)155 which sets out a range of factors that must be taken into account in relation to mandatory vaccination.156 They submit that the only matters addressed in the BHP Rationale are: (i) Vaccine availability for the workers; and (ii) Whether the vaccines are effective at reducing the serious health effects of COVID-19, taking into account the circulating virus variant.157 151 ACTU submission at [13]. 152 Respondent’s submission at 109-111. 153 Ai Group submission at 95. 154 Applicants’ submission at [23]. 155 The Applicants note at [19] of their submission that the following regulators have published guidance which has the consistent message that as assessment has to be made of the particular workplace where it is proposed to introduce a mandatory vaccine requirement: Fair Work Ombudsman (PJC-8), Australian Human Rights Commission (PJC-9), Office of the Australian Information Commissioner (PJC-10), Safe Work Australia advice (PJC-11), SafeWork NSW (PJC-12), NSW Government Code of Practice Work Health and Safety Consultation, Cooperation and Coordination (PJC-13). 156 Applicants’ submission at [26]. 157 Applicants’ submission at [27]. f_p_n_35_ [2021] FWCFB 6051 36 [108] The Applicants submit that the matters raised by SWA which were not addressed by the BHP Rationale all demonstrate that the Site Access Requirement is not reasonably practicable. In particular:  ‘The Australian Health Protection Principal Committee has not recommended COVID-19 vaccinations for all workers in the coal mining industry;  The relevant employees have no public facing roles, social distancing is possible, and the business is not an essential service;  There are adequate protective measures in place at the Mine including workplace rapid antigen testing regimes, physical distancing, good hygiene, regular cleaning and maintenance and even on-site sewage testing for traces of the COVID-19 virus;  Given that there have never been any COVID-19 cases at the Mine and that adequate protective measures are in place, including rapid antigen testing, it is unlikely that mandatory vaccination will reduce transmission or improve health outcomes for the workers at the Mine;  Many of the production and engineering employees of Mt Arthur work alone on equipment above ground and other employees work above ground in large and well-ventilated areas;  The workers are not likely to be exposed to COVID-19 as part of their work and their work duties do not place them in contact with people who may be infected with the COVID-19 virus;  The workers do not work with people who would be vulnerable to severe disease if they contract COVID-19;  The workers do not interact with large numbers of other people in the course of their work that could contribute to a ‘super-spreading’ event if the workers contract COVID-19;  These employees do not interact with people with an elevated risk of being infected with COVID-19 such as medical professionals, flight crew, border control or hotel quarantine workers;  There are no fly in/fly out employees and there is no camp to cater for them;  The likelihood is that COVID-19 will not spread in the workplace because there are adequate protective measures, including rapid antigen testing and the work tasks do not require workers to work in close proximity to each other, to customers or members of the public; and  The control measures minimise the risks of COVID-19, so far as is reasonably practicable as is demonstrated by the fact that there have been no COVID-19 cases at the Mine.”158 (footnotes omitted) 158 Applicants’ submission at [30]. f_p_n_36_ [2021] FWCFB 6051 37 [109] The Applicants submit that the application of the SWA advice clearly would not lead to the conclusion that mandatory vaccination is required or justified by work health and safety legislation at the Mine.159 They submit further that SafeWork NSW could have intervened by way of an improvement notice160 or a prohibition notice161 if it thought that the WHS Act was not being complied with.162 [110] Ai Group submits that, separate to the operation of any implied contractual term, the relevant employees are required to comply with the direction pursuant to s.28 of the WHS Act.163 [111] In response to the Applicants’ submission that s.19 of the WHS Act does not provide a proper basis for the introduction of a vaccination mandate, Ai Group submits:164  Given the undeniable potential for circumstances associated with the pandemic to evolve in unpredictable ways, s.19 of the WHS Act does not permit an employer to ignore risks which may be unlikely but are nonetheless foreseeable.  The Unions have not established a persuasive argument as to why the direction would not be a reasonably practicable measure directed at ensuring the provision of a work environment without risks to health and safety. [112] In particular, Ai Group submits:165  The advice from SWA is not a substitute for a consideration of the terms of the legislation.  s.19 requires that a PCBU must ensure certain things ‘so far as reasonably practicable’. The focus is on what is able to be done by the PCBU. This is reflected in the wording of s.18.  The factors raised by the Applicants at [30] of their submission do not suggest that the Respondent is unable to eliminate or minimise the risk of transmission of COVID-19 at the workplace through the implementation of the direction. They do not reveal any impracticality in its application so as to establish that the burden of implementing the policy would need to be weighed against other considerations. They do not suggest that there is a significant, let alone a “grossly disproportionate” cost to its implementation. At its highest, the list appears to identify factors that moderate the risk of COVID-19 at the workplace or the negative consequences of transmission.  It is sufficient that the direction is targeted towards achieving compliance with the requirements of s.19 and, more broadly the health and safety of the employees, in 159 Applicants’ submission at [33]. 160 WHS Act s 191 161 WHS Act s 195 162 Applicants’ submission at [34]. 163 Ai Group submission at [21]. 164 Ai Group submission at [18]. 165 Ai Group submission at [49]-[54]. f_p_n_37_ [2021] FWCFB 6051 38 a manner that is proportionate to the risk that COVID-19 transmission presents to workers.  the words “so far as is reasonably practicable” in s.19 temper or limit the breadth of the obligation otherwise arising from s.19. They do not (notwithstanding the operation of s.18) compel the conduct of any ‘balancing exercise’ by a PCBU in order to discharge its obligation, as appears to be suggested by the Applicants.[1] An employer is able to implement a measure that ensures the various outcomes contemplated by s.19 are achieved without undertaking any specific assessment as to whether this is ‘reasonably practicable’, within the meaning of s.18. [113] Ai Group notes that vaccination is widely recognised as an effective means of reducing the risk of COVID-19 infections. It is submitted that, taking into account the health benefits of vaccinations, the danger of infection and the degree of severity of the virus, the Respondent’s decision to issue a direction mandating vaccination should be considered a measure that is ‘reasonably practicable’ for the purposes of s.19 of the WHS Act and a ‘lawful and reasonable’ direction.166 Is the Site Access Requirement consistent with the Privacy Act and if not, what is the effect of this on the Site Access Requirement? [114] The Applicants submit that either BHP or the Respondent has responsibilities under the Privacy Act 1988 (Cth) (Privacy Act).167 The Applicants question whether BHP or the Respondent has complied with privacy legislation as a result of requiring employees to provide them with their COVID-19 vaccination status, and particularly the requirements in Australian Privacy Principle 3, which relates to the collection of personal and sensitive information.168 [115] The Respondent submits that the direction does not contravene s.15 of the Privacy Act, but that even if it did, that would not invalidate the direction.169 The direction does not require any employee to provide information about their vaccination status without their consent, and the information is reasonably necessary for the Respondent’s functions and activities as an employer and occupier of the Mine. [116] Ai Group submits that the provisions of the Privacy Act have no relevance to whether the Respondent’s direction is lawful and reasonable because it does not deal with the collection of vaccination status information.170 [117] While ACCI does not dispute that the Respondent has obligations under the Privacy Act, it submits that it is unclear how the Site Access Requirement engages the Privacy Act provisions. If any employee does not provide information about their vaccination status to the Respondent (a choice they may exercise), then no such information is collected by the Respondent. As a consequence, the Respondent will not likely provide employees with access to the worksite, but this is not a Privacy Act breach.171 166 Ai Group submission at [65]. 167 Applicants’ submission at [52]. 168 Applicants’ submission at [51]. 169 Respondent’s submission at 113. 170 Ai Group submission at 110-1. 171 ACCI submission at 4.1-4.7. f_p_n_38_ [2021] FWCFB 6051 39 Q.13: Is any issue taken in respect of the summary of the Parties’ submissions at [41] – [117] above? f_p_n_39_ 40 Attachment 1 – Summary of submissions [118] The following parties have filed submissions and evidence in accordance with the directions:  Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Matthew John Howard (the Applicants)  the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)  the Australian Council of Trade Unions (ACTU)  the Australian Industry Group (Ai Group)  the Australian Chamber of Commerce and Industry (ACCI)  Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (the Respondent or Mt Arthur). Applicants’ submission [119] The Applicants submit that the Site Access Requirement is not lawful or, alternatively, not reasonable in relation to employees of Mt Arthur who are covered by the Agreement, and that the agreed question for arbitration should be answered as follows: ‘The direction as set out in attachments 1 and 2 to the application filed by the CFMMEU in proceedings C2021/7023 is not a lawful and reasonable direction in respect to employees at the Mt Arthur mine who are covered by the Mt Arthur Coal Enterprise Agreement 2019.’172 [120] The Applicants submit that there is nothing in the Agreement that would provide the basis for the Site Access Requirement. However, they submit that it is well established that it is an implied term of the contract of employment that an employer can give an employee a lawful and reasonable direction in relation to safety.173 [121] The Applicants submit that there is no provision in legislation or regulation that provides for mandatory vaccination in New South Wales (NSW) and that there is no public health order that requires vaccination at coal mines in NSW.174 The Applicants distinguish the Site Access Requirement from two recent cases175 involving mandatory vaccinations, as those cases were both determined in circumstances where a public health order applied. [122] The Applicants submit that a document issued by BHP setting out the basis and rationale for introducing the Site Access Requirement (the BHP Rationale) is based on obligations under 172 Applicants’ submission at [66] and [67]. 173 Applicants’ submission at [18] citing R v Darling Island Stevedoring & Lighterage Co Ltd [1938] HCA 44; (1938) 60 CLR 601 . 174 Applicants’ submission at [13] 175 Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, this decision was upheld by the majority in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015; Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 f_p_n_40_ [2021] FWCFB 6051 41 work health and safety (WHS) legislation, relevantly the Work Health and Safety Act 2011 (NSW) (WHS Act). The Applicant’s primary submission is that: ‘the BHP Rationale demonstrates that the Requirement was not introduced by Mt Arthur at all and certainly without regard to the WHS Act. All Mt Arthur did was follow BHP which had made no decision under the WHS Act. BHP has no employees at Mt Arthur covered by the Agreement.’176 [123] The Applicants raise 3 issues in support of their primary submission. Firstly, they submit that there is nothing in the BHP Rationale to suggest that BHP or Mt Arthur had regard to the matters set out in s.19 of the WHS Act or conducted the balancing exercise required by the qualification of reasonable practicability in s.19 of the WHS Act.177 Secondly, the Applicants submit that the Respondent has failed to comply with the obligations to consult in accordance with the WHS Act.178 Their third submission in relation to lawfulness is that the Respondent has not complied with its obligations under the Privacy Act 1988 (Cth) (Privacy Act).179 Section 19 of the WHS Act [124] The Applicants note that the primary duty of care under the WHS Act is found in s.19 and submit that there is nothing in the BHP Rationale to suggest that BHP or Mt Arthur had regard to the matters set out in s.19 of the WHS Act or conducted the balancing exercise required by the qualification of reasonable practicability in s.19 of the WHS Act. In any event, they submit that s.19 of the WHS Act does not provide a proper basis for the introduction of the Site Access Requirement.180 [125] The Applicants seek to rely on advice published by Safe Work Australia (SWA)181 which sets out a range of factors that must be taken into account in relation to mandatory vaccination.182 They submit that the only matters addressed in the BHP Rationale are: (i) Vaccine availability for the workers; and (ii) Whether the vaccines are effective at reducing the serious health effects of COVID-19, taking into account the circulating virus variant.183 [126] The Applicants submit that the matters raised by SWA which were not addressed by the BHP Rationale all demonstrate that the Site Access Requirement is not reasonably practicable. In particular: ‘The Australian Health Protection Principal Committee has not recommended COVID-19 vaccinations for all workers in the coal mining industry; 176 Applicants’ submission at [22]. 177 Applicants’ submission at [23]. 178 Applicants’ submission at [37]. 179 Applicants’ submission at [51]-[56]. 180 Applicants’ submission at [23]-[24]. 181 The Applicants note at [19] of their submission that the following regulators have published guidance which has the consistent message that as assessment has to be made of the particular workplace where it is proposed to introduce a mandatory vaccine requirement: Fair Work Ombudsman (PJC-8), Australian Human Rights Commission (PJC-9), Office of the Australian Information Commissioner (PJC-10), Safe Work Australia advice (PJC-11), SafeWork NSW (PJC-12), NSW Government Code of Practice Work Health and Safety Consultation, Cooperation and Coordination (PJC-13). 182 Applicants’ submission at [26]. 183 Applicants’ submission at [27]. f_p_n_41_ [2021] FWCFB 6051 42 The relevant employees have no public facing roles, social distancing is possible, and the business is not an essential service; There are adequate protective measures in place at the Mine including workplace rapid antigen testing regimes, physical distancing, good hygiene, regular cleaning and maintenance and even on-site sewage testing for traces of the COVID-19 virus; Given that there have never been any COVID-19 cases at the Mine and that adequate protective measures are in place, including rapid antigen testing, it is unlikely that mandatory vaccination will reduce transmission or improve health outcomes for the workers at the Mine; Many of the production and engineering employees of Mt Arthur work alone on equipment above ground and other employees work above ground in large and well- ventilated areas; The workers are not likely to be exposed to COVID-19 as part of their work and their work duties do not place them in contact with people who may be infected with the COVID-19 virus; The workers do not work with people who would be vulnerable to severe disease if they contract COVID-19; The workers do not interact with large numbers of other people in the course of their work that could contribute to a ‘super-spreading’ event if the workers contract COVID-19; These employees do not interact with people with an elevated risk of being infected with COVID-19 such as medical professionals, flight crew, border control or hotel quarantine workers; There are no fly in/fly out employees and there is no camp to cater for them; The likelihood is that COVID-19 will not spread in the workplace because there are adequate protective measures, including rapid antigen testing and the work tasks do not require workers to work in close proximity to each other, to customers or members of the public; and The control measures minimise the risks of COVID-19, so far as is reasonably practicable as is demonstrated by the fact that there have been no COVID-19 cases at the Mine.”184 (footnotes omitted) [127] The Applicants submit that the application of the SWA advice clearly would not lead to the conclusion that mandatory vaccination is required or justified by WHS legislation at the Mine.185 They submit further that SafeWork NSW could have intervened by way of an 184 Applicants’ submission at [30]. 185 Applicants’ submission at [33]. f_p_n_42_ [2021] FWCFB 6051 43 improvement notice186 or a prohibition notice187 if it thought that the WHS Act was not being complied with.188 Consultation requirements [128] The Applicants further submit that the Site Access Requirement is unlawful as its introduction was announced without complying with the consultation requirements of the WHS Act.189 They say that s.47 of the WHS Act imposes a duty on Mt Arthur as a person conducting a business or undertaking to consult with its workers.190 Sections 47 and 48 (which deals with the nature of the consultation) are set out below: 47 Duty to consult workers (1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. 48 Nature of consultation (1) Consultation under this Division 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. [129] The Applicants submit that consultation did not take place as required by the WHS Act and say in support of that submission: The announcement of the introduction of the Site Access Requirement was made without any real consultation and was presented to the employees of Mt Arthur as a fait accompli. The announcement on 7 October 2021 was not that BHP ‘may’’, 186 WHS Act s 191 187 WHS Act s 195 188 Applicants’ submission at [34]. 189 Applicants’ submission at [37]. 190 Applicants’ submission at [38]. f_p_n_43_ [2021] FWCFB 6051 44 ‘proposed to’ or ‘intended to’ introduce the Requirement. The announcement was that the Site Access Requirement ‘will be introduced’.191 No meetings were held prior to the announcement of the Site Access Requirement on 7 October 2021. The meetings that occurred after that date were not about whether the Site Access Requirement would be introduced but rather about how and why it would be implemented.192 If there was any consultation, it was by BHP not by Mt Arthur who as the person conducting the business or undertaking was required to carry out the consultation.193 No risk assessments or expert advice to justify the Site Access Requirement or the BHP Rationale have been given to the employees.194 Privacy Act [130] The Applicants’ final submission in relation to the lawfulness of the Site Access Requirement is that there is a question about whether BHP or Mt Arthur have complied with privacy legislation as a result of requiring employees to provide them with their COVID-19 vaccination status.195 It is submitted that either BHP or Mt Arthur have responsibilities under the Privacy Act.196 Reasonableness [131] On whether the Site Access Requirement is reasonable, the Applicants submit: A reasonable direction for mandatory vaccination should have regard to the circumstances of the particular workplace. However, the Site Access Requirement is not directed at the circumstances of the Mine. It applies at a variety of workplaces across Australia and does not take into account the different circumstances at each of these workplaces.197 For the reasons discussed at paragraphs 26 to 36 of the Applicants’ submission, the specific circumstances at the Mine demonstrate that the Site Access Requirement is not reasonable.198 There is nothing in BHP’s announcement of the vaccination requirement and the BHP Rationale to support the conclusion that the ‘opening up’ by governments provides a reason for introducing mandatory vaccination.199 Neither the Commonwealth Government nor the NSW Government has seen fit through legislation, regulation or any public health order to require mandatory 191 Applicants’ submission at [47]. 192 Applicants’ submission at [48]. 193 Applicants’ submission at [49]. 194 Applicants’ submission at [50]. 195 Applicants’ submission at [51]. 196 Applicants’ submission at [52]. 197 Applicants’ submission at [59]. 198 Applicants’ submission at [62]. 199 Applicant’s submission at [63]. f_p_n_44_ [2021] FWCFB 6051 45 vaccination as a condition of employment at workplaces like the Mine. Indeed, there are no other coal mines in NSW that have a mandatory vaccination policy.200 ACTU submission [132] The focus of the ACTU’s submission is the Respondent’s legal obligations to consult with its Mt Arthur workforce and the effect on the Site Access Requirement of a finding that it failed to do so. It submits that the answer to the question posed for arbitration should be ‘no’ if the Commission finds the Respondent did not consult about the direction as required by the WHS Act or clause 30 of the Agreement.201 The ACTU does not make a submission on any of the factual issues before the Full Bench. [133] The ACTU submits that: ‘The usual source of an employer’s authority to direct its employees is contractual (there is no suggestion in this case of another applicable source of this power). The law implies a term that obliges an employee to obey his or her employer’s lawful and reasonable direction.202 The criterion of lawfulness and reasonableness are alternatives and words of limitation203 that govern the reach of the contractual power. Expressed contractually, an unlawful or unreasonable direction does not engage the implied term or the corresponding obligation of an employee to obey it.204 Such a direction necessarily stands outside the scope of the employment. It is only lawful commands within the scope of the agreed employment that are capable of carrying employment consequences for the relationship.’205 [134] The ACTU submits that it appears uncontroversial that the basis relied on by the Respondent for the Site Access Requirement is health and safety. In relation to the relevant health and safety requirements it says:  The Mine is a ‘mine’ within the meaning of s.6(1) of the Work Health and Safety (Mines And Petroleum Sites) Act 2013 (NSW) (the Mine Safety Act). Section 4(1) of the Mine Safety Act stipulates that the Act is to be construed with and as if it formed part of the WHS Act. A ‘mine safety and health representative’ elected pursuant to s.38 of the Mine Safety Act has all the functions of a health and safety representative under the WHS Act for the workgroup at the mine ‘as if the workgroup comprised all the workers at the mine:’ s.42(1).206  The Respondent must comply with s.47(1) of the WHS Act, which requires it to consult, so far as reasonably practicable ‘with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety’.207 200 Applicants’ submission at [64]. 201 ACTU submission at [23]. Clause 30 of the Agreement applies the consultation term contained in Schedule 2.3 to the Fair Work Regulations 2009 (Cth) as a term of the Agreement. 202 Bayley v Osborne (1984) 4 FCR 141 at 145 (Davies J). 203 Darling Island Stevedoring Co Ltd; ex parte Halliday (1938) 60 CLR 601 at 621-622 (Dixon J); McManus v Scott - Charlton (1996) 70 FCR 16 at 22 (Finn J). 204 McManus v Scott -Charlton at 22 citing Australian Tramways Employees Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35. 205 ACTU submission at [7]. 206 ACTU submission at [9]. 207 ACTU submission at [10]-[11]. f_p_n_45_ [2021] FWCFB 6051 46  Consultation is treated by the WHS Act as a matter of substance which is to occur prior to implementation. Section 48(2) requires that the consultation involve a health and safety representative, who in the context relevant here is a ‘mine safety and health representative’. 208  This consultation requirement is extended by s.70(1) of the WHS Act. This includes an obligation under s.70(1)(c) on the Respondent to allow a health and safety representative access to information ‘relating to’ hazards (including associated risks) at the workplace affecting workers in the workgroup (which having regard to the definition of a ‘mine safety and health representative’ in the Mine Safety Act, extends to all the workers at the Mine) and the health and safety of the workers in the workgroup (again, all the workers at the Mine).209 [135] The ACTU also notes that the Agreement incorporates by reference the model consultation term provided for in Schedule 2.3 of the Fair Work Regulations 2009 (see clause 30). It submits that the obligation to consult under this term is engaged if the employer has made a ‘definite decision’ to introduce a ‘major change’ to ‘production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees’.210 [136] The ACTU submits that an employer’s compliance with its obligations under statute bears directly on the legality (and reasonableness) of a direction it gives to its employees,211 and that if the Commission finds that the Respondent has not complied with its obligations to consult about the health and safety needs that the Site Access Requirement purports to address, then its implementation via the direction necessarily ‘involves illegality’.212 [137] The ACTU also submits that, if the vaccination direction was lawful, if the Commission finds that the Respondent ‘refused to provide health and safety representatives with the information they are entitled to have in order to perform their functions, this is more likely to expose the Vaccination Direction as unreasonable unilateral action by the Respondent’.213 AMWU and CEPU joint submission [138] The AMWU and CEPU filed a joint submission seeking to intervene in this matter. The AMWU and the CEPU submit that they are entitled to represent the industrial interests of employees covered by the Agreement and have many members who will be subject to the vaccination mandate at other BHP coal operations across Australia. They note that the submissions are made on matters of principle and, in particular, the proper approach to assessing reasonableness, because none of their members are presently employed at the Mine and the AMWU and the CEPU are not covered by the Agreement.214 208 ACTU submission at [12]. 209 Ibid. 210 ACTU submission at [13]. 211 ACTU submission at [8]. 212 ACTU submission at [17]. 213 ACTU submission at [22]. 214 AMWU and CEPU submission at [4]. f_p_n_46_ [2021] FWCFB 6051 47 [139] The AMWU and CEPU set out the following general principles in relation to an employer’s authority to direct an employee:  In circumstances where no public health order requires an employee to be vaccinated to undertake the work associated with the employment, and in the absence of an express provision in an award, agreement or the contract of employment, an employer will need to establish that a direction to be vaccinated constitutes a lawful and reasonable direction to an employee.215  For an employee to be required to comply with a direction given by their employer, that direction must be both lawful and reasonable.216  Reasonableness is ‘a question of fact having regard to all the circumstances’.217  Whether a particular direction is reasonable cannot be determined in a vacuum and requires consideration of all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis.218  It may sometimes be a lawful and reasonable direction to require an employee to have a medical assessment, although that is a different thing from requiring them to have a vaccine. Citing Blackadder v Ramsey Butchering Services Pty Ltd,219 the Unions submit that the question of whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact.220 [140] The AMWU and CEPU submit that the Site Access Requirement does not, itself, force any employee to undergo vaccination and that it remains open to employees to decline to become vaccinated. However, they submit that the failure of an employee to become vaccinated will have consequences for their employment, most likely termination, and that this is a relevant factor in considering the reasonableness of the vaccination direction. The direction imposes a practical compulsion to get vaccinated in order for an employee to retain employment.221 [141] The AMWU and CEPU note that they accept that increasing vaccination levels throughout the country is likely to reduce the transmission of COVID-19. However, they submit that achievement of community objectives in relation to vaccination against COVID-19 is primarily a matter for government action, through encouragement and incentives for people to 215 AMWU and CEPU submission at [5]. 216 AMWU and CEPU submission at [6] citing R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 at 621-622. 217 AMWU and CEPU submission at [8] citing R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 at 616 (Starke J), 623-624 (McTiernan J); NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [208], [214] (Flick J). 218 AMWU and CEPU submission at [9]. 219 (2002) 118 FCR 395 at 411 [68]-[70]. 220 AMWU and CEPU submission at [11]. 221 AMWU and CEPU submission at [15]. f_p_n_47_ [2021] FWCFB 6051 48 become vaccinated or, where thought necessary, through the promulgation of public health orders mandating vaccination for particular purposes.222 [142] The AMWU and CEPU submit that the assessment of whether a vaccination direction by a particular employer is reasonable must depend on the circumstances of, and risks associated with, the particular employment.223 They submit that the following matters will be relevant to the Full Bench’s assessment of the vaccination mandate in issue in this case, and in any other case:  The health objective(s) that are sought to be achieved by introducing the vaccination mandate, and the cogency of the concerns and the risks. This should include consideration of the nature of the employment, the proportion of employees in the workplace who are unvaccinated and the level of community transmission in the relevant area.224  Whether the health objectives of the employer can be achieved through alternative, less invasive, means. This could include, for example, physical distancing arrangements, changes to rostering practices, improving ventilation, implementation of good hygiene practices or altering the duties of employees. These are practical control measures that could reduce any risk of contracting or transmitting the COVID-19 virus to a reasonable level. If alternative measures are considered to be less efficacious than a vaccination mandate, the Full Bench should consider the extent of the marginal difference.225  The views of those with public health expertise. This should include consideration of whether there are any public health orders in place that require vaccination, as well as advice, guidance or evidence from peak medical bodies or regulators.226  The actions taken by comparable employers and the advice of relevant industry associations (for example NSW Mining).227  The process undertaken by the employer including: consideration of the information the employer is acting upon, the risk assessments carried out, the alternatives considered, the consultation process and the transparency of the decision-making process.228  The tailoring of the mandate including whether it permits consideration of individual cases or differentiates between different groups of employees (if this is warranted).229 222 AMWU and CEPU submission at [16]. 223 Ibid. 224 AMWU and CEPU submission at [18]-[21]. 225 AMWU and CEPU submission at [22]. 226 AMWU and CEPU submission at [24]-[25]. 227 AMWU and CEPU submission at [26]-[28]. 228 AMWU and CEPU submission at [29]-[30]. 229 AMWU and CEPU submission at [31]. f_p_n_48_ [2021] FWCFB 6051 49  The impact on individuals. The effect of the Site Access Requirement is that an employee who fails to become vaccinated faces disciplinary action up to and including the likely loss of employment.230 Ai Group submission [143] Ai Group submits that the Site Access Requirement is a lawful and reasonable direction in respect to employees at the Mine who are covered by the Enterprise Agreement.231 [144] In relation to whether the Site Access Requirement is a lawful direction, Ai Group submits:  A failure by the Respondent to undertake relevant consultation in accordance with the requirements of the WHS Act would not render the direction unlawful and/or unreasonable. It would merely mean that there has been a separate contravention of such legislation that may expose the Respondent to sanction. It does not invalidate a direction to address a WHS risk.  The direction would not attract the application of the consultation provisions of the Agreement.  The direction would not give rise to any contravention of the Privacy Act because the direction does not require the employer to “collect” vaccination status information as contemplated under Australian Privacy Principle 3.232 [145] Ai Group submits that the Site Access Requirement is reasonable because it is underpinned or justified by the obligation upon the Respondent under s.19 of the WHS Act and the common law obligation upon employers to take reasonable care for the health and safety of employees at work. It is also consistent with an employee’s obligations under s.28 of the WHS Act.233 Ai Group submit further that it is a proportionate response to the gravity and nature of the risk posed by the pandemic to the work health and safety of employees covered by the Enterprise Agreement and others working on the employer’s site, and is appropriate given the utility of vaccination as a measure for protecting persons from serious illness and death, as well as in limiting the transmission of the virus.234 [146] In response to the Applicants’ submission that s.19 of the WHS Act does not provide a proper basis for the introduction of a vaccination mandate, Ai Group submits:  Given the undeniable potential for circumstances associated with the pandemic to evolve in unpredictable ways, s.19 of the WHS Act does not permit an employer to ignore risks which may be unlikely but are nonetheless foreseeable. 230 AMWU and CEPU submission at [33]. 231 Ai Group submission at [10]. 232 Ai Group submission at [13]. 233 Ai Group submission at [14]. 234 Ai Group submission at [15]. f_p_n_49_ [2021] FWCFB 6051 50  The Unions have not established a persuasive argument as to why the direction would not be a reasonably practicable measure directed at ensuring the provision of a work environment without risks to health and safety.235 [147] Ai Group submits that, separate to the operation of any implied contractual term, the relevant employees are required to comply with the direction pursuant to s.28 of the WHS Act.236 [148] Ai Group submits that it is uncontroversial that the law will ordinarily imply a term into an employment contract requiring an employee to comply with ‘lawful and reasonable’ directions given by their employer.237 Ai Group submits that a high bar exists for finding that a direction is unreasonable.238 Ai Group also note that the FW Act and the Fair Work Regulations 2009 recognise the obligation of an employee to comply with a lawful and reasonable direction. Division 11 of Part 2-2 of the FW Act – Notice of Termination and Redundancy Pay is expressed not to apply to employees whose employment is terminated because of serious misconduct, which includes ‘the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment’.239 [149] Ai Groups submits that Employers have obligations under both statute and the common law to protect the health and safety of employees at work.240 They note that the relevant legislation applying to coal mines in NSW includes the WHS Act and the Mine Safety Act. In response to the Applicant’s submissions in relation to whether s.19 provides a proper basis for the introduction of the Site Access Requirement, Ai Group submits:241  The advice from Safe Work Australia is not a substitute for a consideration of the terms of the legislation.  s.19 requires that a PCBU must ensure certain things ‘so far as reasonably practicable’. The focus is on what is able to be done by the PCBU. This is reflected in the wording of s.18.  The factors raised by the Applicants at [30] of their submission do not suggest that the Respondent is unable to eliminate or minimise the risk of transmission of COVID-19 at the workplace through the implementation of the direction. They do not reveal any impracticality in its application so as to establish that the burden of implementing the policy would need to be weighed against other considerations. They do not suggest that there is a significant, let alone a “grossly disproportionate” cost to its implementation. At its highest, the list appears to identify factors that moderate the risk of COVID-19 at the workplace or the negative consequences of transmission.  It is sufficient that the direction is targeted towards achieving compliance with the requirements of s.19 and, more broadly the health and safety of the employees, in 235 Ai Group submission at [18]. 236 Ai Group submission at [21]. 237 Ai Group submission at [23]. 238 Ai Group submission at 31 citing Woolworths Limited (t/as Safeway) v Cameron Brown (2005) 145 IR 285 239 Ai Group submission at [38]. 240 Ai Group submissions at [41]. 241 Ai Group submission at [49]-[54]. f_p_n_50_ [2021] FWCFB 6051 51 a manner that is proportionate to the risk that COVID-19 transmission presents to workers.  the words “so far as is reasonably practicable” in s.19 temper or limit the breadth of the obligation otherwise arising from s.19. They do not (notwithstanding the operation of s.18) compel the conduct of any ‘balancing exercise’ by a PCBU in order to discharge its obligation, as appears to be suggested by the Applicants. An employer is able to implement a measure that ensures the various outcomes contemplated by s.19 are achieved without undertaking any specific assessment as to whether this is ‘reasonably practicable’, within the meaning of s.18. [150] Ai Group further submits that an employer’s duty to take reasonable care for the work health and safety of its employees is also derived from an implied contractual term.242 It is submitted that this implied contractual term presents an additional point in favour of a finding that the direction of the Respondent was a lawful and reasonable direction. [151] Ai Group notes that vaccination is widely recognised as an effective means of reducing the risk of COVID-19 infections. It is submitted that, taking into account the health benefits of vaccinations, the danger of infection and the degree of severity of the virus, the Respondent’s decision to issue a direction mandating vaccination should be considered a measure that is ‘reasonably practicable’ for the purposes of s.19 of the WHS Act and a ‘lawful and reasonable’ direction.243 [152] In response to the Applicants’ submissions in relation to the reasonableness of the direction, Ai Group submits that the determination of whether an employer’s direction was a reasonable one has been considered by a Full Bench of the Commission in Briggs v AWH Pty Ltd to “not involve an abstract or unconfined assessment as to the justice or merit of the direction”. It was further observed that it does not need to be demonstrated that a direction issued was “the preferable or most appropriate course of action, or in accordance with best practice, or in the best interests of the parties”.244 Ai Group submits that in the current context, the Full Bench should be primarily concerned with an assessment of whether the direction gave rise to any unlawfulness or whether it was with the scope or subject matter of the employment, and not broader considerations as to the merits of the Respondent’s direction. They further submit:  The material published by public regulators is not binding upon the Commission.245  In circumstances where an employer issues a direction for the purposes of ensuring the employer meets the requirements of s.19 of the WHS Act or its common law obligations pertaining to WHS, and imposes requirements upon employees that are not inconsistent with the obligations upon employees under s.28 of the WHS Act, and is being proportionate and reflective of the circumstances in which the employment is occurring, it will be a ‘reasonable’ direction.246 242 Ai Group submission at [55] and [56] citing Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120. 243 Ai Group submission at [65]. 244 Ai Group submission at [67]. 245 Ai Group submission at [69]. 246 Ai Group submission at [70]. f_p_n_51_ [2021] FWCFB 6051 52  the Applicants contention that the “the extent of community transmission of COVID-19 in the locality of the Mine and the locality of the residences of the workers is minor” and that “taking account of the local situation, the ever increasing vaccination rates and the history of rapid antigen testing demonstrate that it is unlikely that the workers at the Mine will be exposed to the COVID-19 virus” ignores the demonstrated capacity of the virus, particularly the Delta strain, to spread across geographic locations very quickly.247  The Applicant’s submissions fail to properly account for the capacity of the ‘local situation’ to change, and to change rapidly, or of the seriousness of the threat that the virus presents to the health and safety of the workers at the mine.248  The Applicants’ observation that SafeWork NSW has not intervened in the absence of a mandatory vaccination regime, to impose such a requirement, does not weigh substantially in favour of any contention that the imposition of the requirement is not warranted.249  the Applicants’ contention that there is less need for such intervention now than when vaccination rates were lower does not negate the need to protect employees at work through the imposition of a vaccination requirement.250 [153] Ai Group submits that the Unions’ argument that it is not reasonable for the Respondent to mandate vaccinations because there is no public health order in New South Wales for the relevant industry or type of worker is not sustainable.251 [154] On the obligation to consult under the WHS Act, Ai Group does not address whether, as a matter of fact, the Respondent engaged in consultation that would satisfy the obligations contained within the WHS Act. However, Ai Group submits that a failure by the Respondent to undertake relevant consultation in accordance with the requirements of the WHS Act would not render the direction unlawful and/or unreasonable. It would instead mean there has been a separate contravention of the Act that may expose the Respondent to sanction.252 [155] In relation to the obligation to consult in the Agreement, Ai Group submits that:  The consultation term in clause 30 of the Agreement does not encompass the direction to vaccinate against COVID-19; and  Any failure to comply with a consultation provision in an enterprise agreement does not remove an employer’s capacity to issue a lawful and reasonable direction.253 247 Ai Group submission at [73]. 248 Ai Group submission at [74]. 249 Ai Group submission at [75]. 250 Ai Group submission at [76]. 251 Ai Group submission at [77]. 252 Ai Group submission at [90]. 253 Ai Group submission at [95]. f_p_n_52_ [2021] FWCFB 6051 53 [156] Ai Group submits that the provisions of the Privacy Act have no relevance to whether the Respondent’s direction is lawful and reasonable because it does not deal with the collection of vaccination status information.254 ACCI submission [157] ACCI submits that the Site Access Requirement is a lawful and reasonable direction.255 It submits that:  a term is implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of the employer,  the standard or test to be adopted in applying the implied term is as set out in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601,256  where legitimately based, a direction that affects private conduct or not strictly connected with the discharge of duties may be within the scope of the contract of service.257 [158] ACCI acknowledges that the WHS Act imposes consultation obligations and does not make submissions as to the consultation actually undertaken by the Respondent, but it submits that a failure to consult would not render the Site Access Requirement unlawful. It submits that a direction is lawful if it falls within the scope of the employment, and does not require the employee to do anything illegal.258 In this case, it submits that the Site Access Requirement is lawful because:  it falls within the scope of the employment, and  there is clearly nothing illegal about becoming vaccinated.259 [159] ACCI disagrees with the submissions of the Applicants and the ACTU that failure to comply with WHS Act consultation obligations renders the direction itself unlawful, and submits:  statutory provisions do not automatically become incorporated into the contract  the implied contractual term (to comply with a lawful and reasonable direction) was well established in employment contracts before the emergence of the WHS Act and operates independently of the WHS Act 254 Ai Group submission at 110-1. 255 ACCI submission at 1.6 and 14.1. 256 ACCI submission at 2.3. 257 ACCI submission at 2.5 – 2.7, citing McManus v Scott-Charlton (1996) 70 FCR 16 and Woolworths ltd v Brown (2005) 145 IR 285. 258 ACCI submission at 3.7-3.11. 259 ACCI submission at 3.12. f_p_n_53_ [2021] FWCFB 6051 54  neither the WHS Act nor the FW Act render the conduct the employee is engaging in (i.e. becoming vaccinated) unlawful. The WHS Act does not prohibit employer directions because consultation has not been engaged in. It merely creates a separate statutory obligation, which may or may not be complied with, and  the authority to issue the direction is not derived from the WHS Act nor any industrial instrument.260 [160] While ACCI does not dispute that the Respondent has obligations under the Privacy Act, it submits that it is unclear how the Site Access Requirement engages the Privacy Act provisions. If any employee does not provide information about their vaccination status to the Respondent (a choice they may exercise), then no such information is collected by the Respondent. As a consequence, the Respondent will not likely provide employees with access to the Worksite, but this is not a Privacy Act breach.261 [161] The Respondent has a WHS duty to ensure the health and safety of ‘other persons’ is not put at risk by its undertaking, and the Site Access Requirement will help protect vulnerable groups of persons who may come into contact with Mt Arthur workers, such as children and remote and Indigenous communities.262 [162] ACCI submits that the protective measures in place at the Mine, such as rapid antigen testing, physical distancing, cleaning and maintenance, should reduce in a substantive way the prospect of COVID-19 transmission, but they will not eliminate the transmission of the virus on site,263 and that the Commission can comfortably conclude that it is likely that vaccination of workers will reduce transmission at the Worksite in a substantive way.264 [163] On reasonableness, ACCI submits that:  what is reasonable will depend upon all the circumstances of the relevant case, but that an employer does not need to demonstrate that its direction is the most preferable or most appropriate course of action in order for the direction to be reasonable.265  where an employer direction is issued for the purpose of eliminating or reducing the risk of harm from a particular hazard, in assessing the reasonableness of any such direction, an assessment must be made as to whether: o whether or not the risk exists; o the probability of the risk event occurring (but not the fact that the risk event has never occurred at the particular workplace); and o the impact/consequences associated with the risk event occurring.266 260 ACCI submission at 3.16-3.21. 261 ACCI submission at 4.1-4.7. 262 ACCI submission at 5.1-5.16. 263 ACCI submission at 7.33 to 7.35. 264 ACCI submission at 9.12. 265 ACCI submission at 2.9. 266 ACCI submission at 10.13-10.14. f_p_n_54_ [2021] FWCFB 6051 55 [164] COVID-19 has been and continues to be present through Australia, NSW and the geographical regions surrounding the Mine.267 [165] On whether public health directions are relevant to determining whether the Site Access Requirement is reasonable, ACCI submits they are relevant because the lifting of public health restrictions means that COVID-19 in the community and workplaces could well increase. They say public health directions are not relevant for the reasons that the Applicants submit (i.e. that the Commonwealth Government and NSW Government have not mandated vaccination as a condition of employment at a mine site, and the Australian Health Protection Principal Committee has not recommended mandatory vaccinations at mine sites).268 [166] Although employers always had obligations under the WHS Act, the Government’s former intervention in daily life by way of health orders and quarantine restrictions took the lead in protecting employees, but with this intervention now largely at an end in NSW, employers more directly bear the burden of responsibility to minimise risks to harm arising from COVID-19 in their worksite and local community.269 [167] In WA, the NT and Victoria, workers at a mine site are required to be vaccinated to enter the site pursuant to public health directions.270 [168] While ACCI does not make submissions about whether the Site Access Requirement is tailored to the Mine, it does not accept that issuing a policy or direction with general application or to a broad range of workers automatically or intuitively renders the direction unreasonable.271 If the Site Access Requirement does have some particularly adverse impact on an individual that needs to be taken into account, the individual can challenge the requirement pursuant to the dispute resolution procedures in the Agreement and have their circumstances considered.272 Respondent’s submission [169] The Respondent submits that it has directed that workers must be vaccinated against COVID-19 as a condition of entry to the Mine, and that direction does not compel employees to be vaccinated against their will,273 has no other object or purpose than to protect the health and safety of people who work at the Mine.274 It submits that the direction is both lawful and reasonable.275 [170] The Respondent submits that: BHP Group Plc (BHP) is the ultimate holding company for the Respondent and the Respondent’s owner, Hunter Valley Energy Coal Pty Ltd276 267 ACCI submission at 10.30. 268 ACCI submission at 11.1-11.5. 269 ACCI submission at 11/7-11.8. 270 ACCI submission at 11.10. 271 ACCI submission at 12.3. 272 ACCI submission at 12.7. 273 Respondent’s submission at 54. 274 Respondent’s submission at 1. 275 Respondent’s submission at 138. 276 Respondent’s submission at 8-9. f_p_n_55_ [2021] FWCFB 6051 56 It has the statutory responsibilities of a mine operator under the Mine Safety Act, and of a PCBU under the WHS Act277 It is a ‘residential mining operation’ in that its workforce primarily resides in surrounding communities. As a consequence, its workforce has regular daily contact with their families and other members of the surrounding communities, and the Respondent cannot prevent workers from contracting COVID-19 outside work and bringing it with them when they are next on site.278 BHP applies a single, group-wide approach to risk management. The Site Access Requirement was promulgated in accordance with the Respondent’s safety management system, which informs the Respondent’s decision-making process about all WHS matters.279 COVID-19 can cause serious illness and is potentially fatal, and the Delta variant is more infections and has more severe health effects than previous variants. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, with vaccination the most effective and efficient control available to combat the risks posed by COVID-19, but even with higher community rates of vaccination, COVID-19 remains a significant workplace hazard.280 [171] On whether consultation about the direction occurred, the Respondent submits that:  The response to and management of COVID-19 by BHPs assets, including the Respondent, has been led and co-ordinated by BHP.281 BHP took steps to educate its workforce and promote vaccination when it became available, including by providing a COVID-19 Vaccine Information Hub on its intranet, available to all employees.282  At the Mine, the Respondent currently employs the following COVID-19 controls: o physical distancing protocols o hygiene protocols, including hand hygiene, cough etiquette, cleaning and disinfection and working in split teams o personal protective equipment o screening questionnaire for workplace entry including return to work criteria o occupancy limits 277 Respondent’s submission at 15 and 69. 278 Respondent’s submission at 17. 279 Respondent’s submission at 21. 280 Respondent’s submission at 23. 281 Respondent’s submission at 25. 282 Respondent’s submission at 29. f_p_n_56_ [2021] FWCFB 6051 57 o the requirement to return a negative rapid antigen test as a condition of entry to the Mine.283  An ‘Options Analysis’ submitted on 21 August 2021 lead to a recommendation that COVID-19 be a condition of entry to BHP workplaces in Australia. This was supported by BHPs senior leadership team, subject to preliminary steps including: o Completion of a risk assessment to inform the implementation plan o The processes for considering those with genuine medical contra-indications to COVID-19 vaccines, o Undertaking further workforce engagement and consultation.284  Between 31 August 2021 and 7 October 2021, BHP and the Respondent began a process of consultation and engagement with employees and their representatives under the WHS Act about the proposed Site Access Requirement. This process included engaging with unions, and setting up a vaccine mailbox that employees could send questions and comments to. Approximately 20 of the Respondent’s employees sent emails to the vaccine mailbox, with all feedback collated and considered.285  The Site Access Requirement announced on 7 October 2021 explicitly addressed the circumstances of employees who could not be vaccinated, stating: ‘People with medical concerns or those with conditions listed as contraindications or precautions in the ATAGI Clinical Guidance on COVID-19 Vaccination will be asked to follow a medical review process. If through this process the person is confirmed to have a condition which prevents the person from being vaccinated, BHP will review their individual circumstances on a case-by-case basis, and BHP will consider accommodating such circumstances.’  BHP and the Respondent continued consultation during the ‘implementation phase’ between 7 October and 10 November 2021.286 On whether the Site Access Requirement is lawful [172] The Respondent submits that whether a direction is lawful has both a positive and negative dimension.287 In respect of the positive dimension, it says that a lawful direction is one which falls within the scope of the employment,288 and in the present case:  the Site Access Requirement is within the scope of employment of all of its employees 283 Respondent’s submission at 31-32. 284 Respondent’s submission at 36. 285 Respondent’s submission at 38-43. 286 Respondent’s submission at 48. 287 Respondent’s submission at 58. 288 Respondent’s submission at 60. f_p_n_57_ [2021] FWCFB 6051 58  the Site Access Requirement is consonant with the Respondent’s statutory and common law obligations for work health and safety  its object and purpose is to protect the health and safety at work of all its employees and other people at the mine.289 [173] The WHS Act governs every employment relationship in NSW.290 It imposes “significant and onerous obligations on employers with respect to the health and safety of their employees”,291 and s.28 of the WHS Act imposes duties on every employee.292 The Mine Safety Act also imposes obligations on the Respondent in relation to the health and safety of persons at work at mines.293 It follows that a direction that has as its object and purpose protecting the health and safety at work of the Respondent’s employees and other people on the Mine is one that is within the scope of employment of all its’ employees.294 [174] In most employment situations, the inherent requirements of employment will also require the employee to be able to work in a way that does not pose a risk to the health and safety of fellow employees.295 [175] On the negative dimension of lawfulness, a lawful direction is one that is not unlawful, in that it does not require the employee to do something unlawful. Vaccination, at least by an approved vaccine, is not unlawful.296 Further, the giving of the direction must not be unlawful.297 On this further point, the Respondent submits that the giving of the direction was not unlawful, contrary to other parties’ submissions that it was unlawful because it was introduced without meeting the consultation requirements in s.47 of the WHS Act or clause 30 of the Agreement, or was otherwise outside the limits of the Respondent’s managerial prerogative or contravenes the Privacy Act. [176] On compliance with the consultation requirements in s.47 of the WHS Act, the Respondent submits:  there has been compliance, and  alternatively, if there has not been compliance, the consequences of any non- compliance do not include the invalidation of the decision to implement the Site Access Requirement.298 [177] As to whether there has been compliance with s.47, the Respondent submits that this is partly a legal issue as to the location and content of the duty to consult under s.47, and partly factual issues as to what relevantly happened and whether it met the requirements of s.47.299 289 Respondent’s submission at 59. 290 Respondent’s submission at 63. 291 Respondent’s submission at 70. 292 Respondent’s submission at 74. 293 Respondent’s submission at 75. 294 Respondent’s submission at 78 and 87. 295 Respondent’s submission at 83, citing McHugh J in X v Commonwealth (1999) 200 CLR 177. 296 Respondent’s submission at 93. 297 Respondent’s submission at 94. 298 Respondent’s submission at 96. 299 Respondent’s submission at 102. f_p_n_58_ [2021] FWCFB 6051 59 The content of the duty is comprehensively set out in s.48 of the WHS Act, and does not confer any ‘right of veto’ on employees.300 [178] On compliance with the consultation term in clause 30 of the Agreement, the Respondent submits that the Site Access Requirement is not a major change that requires consultation, and that even if it was, the Respondent has met the consultation requirements in clause 30.301 [179] On whether the direction to comply with the Site Access Requirement is outside the limits of the Respondent’s managerial prerogative, the Respondent submits that the ACTU does not identify what those limits are, but that the Commission will not interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.302 The Respondent cites Australian Federated Union of Locomotive Enginemen v State Rail Authority (NSW) (1984) 295 CAR 188, saying: ‘the test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable’. [180] On whether the direction is contrary to the Privacy Act, the Respondent submits that the direction does not contravene s.15 of the Privacy Act, but that even if it did, that would not invalidate the direction.303 The direction does not require any employee to provide information about their vaccination status without their consent, and the information is reasonably necessary for the Respondent’s functions and activities as an employer and occupier of the Mine. [181] The Respondent also submits that the Site Access Requirement is reasonable. It says:  once a direction to be vaccinated satisfies the test posed by the positive dimension of lawfulness, it will axiomatically be reasonable, substantially for the same reasons.304  the element of reasonableness authorises a choice between alternatives that are reasonable – it is not material that a better direction may exist. The existing WHS risk controls at the Mine are not sufficient, either individually or in combination, to effectively minimise the identified risks.305 [182] The Respondent accepts that non-compliance with s.47 of the WHS Act is a relevant consideration in assessing the reasonableness of a direction, but submits that it is not necessarily determinative of the objective reasonableness of a direction.306 300 Respondent’s submission at 103. 301 Respondent’s submission at 109-111. 302 Respondent’s submission at 112. 303 Respondent’s submission at 113. 304 Respondent’s submission at 117, citing Barber v Goodstart Early Learning [2021] FWC 2156 in relation to influenza vaccines. 305 Respondent’s submission at 121. 306 Respondent’s submission at 122. f_p_n_59_ [2021] FWCFB 6051 60 [183] On the AMWU and CEPU submissions that the direction impacts upon an individual’s right to personal liberty and bodily integrity, the Respondent submits that the common law accepts that the employer relationship necessarily entails some infringement of employees’ personal liberty.307 The Federal Court has held that the right to personal liberty is not absolute, and must be balanced against other interests, including health and safety. In support of this argument, the Respondent cites Full Court decisions in relation to medical examinations.308 307 Respondent’s submission at 127. 308 Respondent’s submission at 129-131. f_p_n_60_ 61 Attachment 2 – Consultation Timeline Witness statements filed by the Applicants 1. Matthew John Howard – Production Operator at Mt Arthur Coal Mine, CFMMEU Site Lodge Secretary 2. Ian Johnson – Production Operator at Mt Arthur Coal Mine, CFMMEU Site Lodge VP and Site Safety and Health Representative 3. Peter John Colley –National Research Director of the CFMMEU – does not include any information about consultation. Witness statements filed by the Respondents 1. Ross Carlson Mining–Engineering Manager at Mt Arthur Coal Pty Ltd Note that this witness statement deals mostly with interactions with the NSW Resources Regulator. I have included one item which may be relevant but have not included the other 2. 2. Adam Lancey– General Manager of Mt Arthur Mine. 3. Dr Alan Michael Donoghue– qualified, registered specialist in occupational and environmental medicine. engaged by BHP Group Limited (BHP) as a full-time consultant in the role of Head of Group HSE Pandemic Response. 4. Melissa Mason– Principal Employee Relations within the Minerals Australia Employee, responsible for meeting and communicating with union representatives to discuss employment matters impacting on coal mining operations in Minerals Australia Relations (ER) team. 5. Phoebe Thomas- Principal Operations Performance at Mt Arthur Coal Mine, holds “the accountabilities, responsibilities and duties of the ‘Pandemic Lead’ responsible for leading the COVID-19 response at NSW Energy Coal (NSWEC), of which Mt Arthur is the only mining asset.” Reports to Adam Lancey. 6. Professor Mary-Louise McLaws- epidemiologist with expertise in hospital infection and infectious diseases prevention and control– No relevant information included in this statement. 7. Tim Dahlheimer- President Health, Safety and Environment (HSE), Minerals Australia, BHP Group Ltd. f_p_n_61_ 62 DATE ACTION SOURCE NOTES Early August 2021 Members of the Health, Safety and Environment Team were asked to prepare a formal risk-based options analysis document in relation to BHP’s approach to vaccination for workers (this team was Dr Donoghue, Dr Rob McDonald, Mr Dahlheimer and Fiona Rosenberg) Statement of Dr Michael Donoghue at [12] and AMD-6. The purpose of the Risk Analysis was to assess, on health and safety grounds, the options in relation to COVID-19 vaccination as a condition of entry to BHP workplaces in Australia. This was a nation-wide project, and considered all Australian BHP workplaces including BHP’s Mt Arthur Coal Mine located in Muswellbrook, in the Hunter Region of New South Wales (Mt Arthur Mine). The HSE Team was led by Tim Dahlheimer, who is the Vice President of HSE for Minerals Australia. Minerals Australia is a term used by BHP to collectively refer to all of BHP’s Australian assets and operations. Mt Arthur Mine is one of the assets within Minerals Australia. 4 August 2021 Text message from Iain Ayrne to Phoebe Thomas asking to catch up “about covid” no other context provided Statement of Phoebe Thomas at [75n] and PT-63 Other text messages on 12 August, 29 September, 8 October and 5 November ask for call backs or catch ups without any context. Message on 31 August “quick chat re vaccination” Message on 30 August deals with the on site vaccination booking system. Series of text messages on 30 August, 31 August, 28 September to Matt Howard deal with onsite vaccination bookings only. 6 August 2021 Rapid Antigen Testing commenced from 6 August 2021 and onwards at the Mr Arthur Mine Statement of Adam Lancey at [20] ‘…Testing has also been introduced as a control, with rapid antigen testing being used from 6 August 2021 onwards. …’ 18 August 2021 BHP ran a survey which asked various questions about vaccination to the workforce. They had 499 responses by 18 August 2021. Statement of Phoebe Thomas at [75m] and PT-62A. No start or end date is given. Not clear if survey BHP wide or just Mt Arthur, question 4 specifies Mt Arthur, however. 21 August 2021 Memo to Edgar Basto from the Health, Safety and Environment Team with input from:  Fiona Rosenberg – Principal Health and Hygiene  Rob McDonald – Vice President Health and Hygiene Statement of Tim Dahlheimer at [40] and TD-16 Given the risk-based options analysis it is recommended, on health and safety grounds, that COVID-19 vaccination be made a condition of entry for all BHP managed workplaces across Australia and that it be reflected as a new critical control in the BHP COVID-19 risk management framework. f_p_n_62_ [2021] FWCFB 6051 63 DATE ACTION SOURCE NOTES  Michael Donoghue – Consultant Occupational Physician  Sarah Slater – Specialist Legal  Asher Lindsay – Principal Legal, Safety  Emmet Fay – Principal Government Relations  James Pregnell – Pandemic Lead BMA  David Loth – Pandemic Lead NiW  Phoebe Thomas – Principal Business Performance, NSWEC  Petra Rak – Practice Lead Improvement Projects  Brett Reimers – Principal Employees Relations The following next steps will be undertaken following approval of the recommendation: 1. Risk assessment to inform the implementation plan, considerate of all other impact types (e.g. legal, employee relations, security) including a robust communication and consultation plan. This would encompass supporting processes for those identified as genuinely unable to receive the vaccine on recognised grounds. 2. Informed by the implementation risk assessment, confirm timing for announcement (likely late August early September) and likely effective date for the site entry conditions (between end of Q2 and Q3 FY22). Note that the effective date needs to enable time for people to have an opportunity to be vaccinated, which is currently not in place for many Australians due to vaccine supply constraints. 3. Commence implementation of the plan, including workforce consultation. 4. Continue securing options to improve workforce access to COVID-19 vaccinations. 25 August 2021 Recommendation from the HSE Team dated 21 August received conditional approval from Edgar Basto Statement of Tim Dahlheimer at [41] and TD-16 Conditions were: a. completing a further risk assessment which included consideration of all impact types and not only health and safety (e.g. legal, reputation, employee relations, security); b. preparation of a communication and engagement plan, along with a process for considering the circumstances for those with genuine medical contraindications to COVID-19 vaccines; c. informed by the further risk assessment and other relevant factors (e.g. Public Health Directions), determining the: i. ‘Required by’ dates (i.e. timing) for when vaccination would be required to access BHP f_p_n_63_ [2021] FWCFB 6051 64 DATE ACTION SOURCE NOTES managed workplaces; ii. timing for announcing the requirement to the workforce and other relevant stakeholders; and iii. approach for workforce engagement and consultation d. announcing the requirement and commencing implementation of the plan, including workforce engagement and consultation. 25 August 2021 First project team meeting of the “MinAu COVID-19 Vaccination Working Group” Statement of Tim Dahlheimer at [42]- [46] Members of the Project Team include asset Pandemic Leads and functional representatives, including health, safety and medical subject matter experts. Around this time a Steering Committee was set up to oversee the activities of the Project Team. Members of the Steering Committee included Tim Dahlheimer, Edgar Basto and other senior leaders of BHP. From at least 29 August 2021 Communication tools developed to support BHP operations in conducting site based consultation with workers. Statement of Tim Dahlheimer at [48] and TD-18 A copy of talking points provided to senior leaders regarding the announcement that BHP was actively assessing COVID-19 vaccination as a potential control dated 29 August 2021. 31 August 2021 Email from Edgar Basto (President Minerals Australia) to all staff announcing an on-site vaccination trial and that BHP were ‘actively assessing vaccination as a condition of workplace entry’ 1. Statement of Adam Lancey at [24] and AL-7 2. Statement of Phoebe Thomas at [70] 3. Statement of Tim Dahlheimer at [47] “The risk-based assessment will use the latest health science and expert advice, and if the decision is taken to make vaccination a condition of workplace entry, it will come into effect once people have had an opportunity to be fully vaccinated – likely early 2022 – based on federal government vaccine supply and distribution forecast. We understand that this will generate a lot questions, and potentially some concern, and are committed to ongoing discussion and engagement with you about the details of the finalised policy should a decision be made to introduce such a requirement. We are moving quickly with the assessment process and you will be f_p_n_64_ [2021] FWCFB 6051 65 DATE ACTION SOURCE NOTES updated when we reach an informed decision over the coming weeks. …. If you have further questions or comments please direct them to the below email minaucovidvaccination@bhp.com.” 31 August 2021 Email from the Mt Arthur Leadership Team (Adam Lancey), which stated that BHP was actively assessing the concept of a vaccination mandate 1. Statement of Matthew John Howard at [44] and MJH-6 2. Statement of Adam Lancey at [25] and AL-8 3. Statement of Phoebe Thomas at [71] and PT- 34. The email includes the following: ‘When will BHP make a decision on vaccination as a condition of workplace entry? Our risk-based assessment will use the latest health science and expert advice, and if the decision is taken to make vaccination a condition of workplace entry, it will come into effect once people have had an opportunity to be fully vaccinated – likely early 2022 – based on federal government vaccine supply and distribution forecast. We understand that this will generate a lot questions, and potentially some concern, and are committed to ongoing discussion and engagement with you about the details of the finalised policy should a decision be made to introduce such a requirement. We are moving quickly with the assessment process and you will be updated when we reach an informed decision over the coming weeks.’ 31 August 2021 Email address established for feedback during the assessment phase 1. Statement of Tim Dahlheimer at [49]-[52] 2. Statement of Phoebe Thomas at [75c]-[75g] 3. Statement of Adam Lancey at [26] This consultation mechanism was established to ensure that workers could directly contribute to the work that BHP was undertaking in considering the vaccination workplace entry control and ensure a co-ordinated and consistent approach to responding to worker communications, including by ensuring that workers received responses that were consistent with the scientific and medical advice that BHP had received on vaccination. f_p_n_65_ [2021] FWCFB 6051 66 DATE ACTION SOURCE NOTES The established central mailbox was publicised widely through communications and a team was established to be responsible for responding to queries received. This team was directed to ensure that every communication received from a worker was given a clear and specific response. Pandemic Leads and asset management were provided with regular updates on the thoughts, ideas, suggestions and questions received through the vaccine mailbox. b. In total, as at the date of this statement, over 1200 emails have been received to the inbox, and over 1200 responses have been provided to those emails. i. The emails received to the central mailbox and the responses provided to those emails were recorded in a register. The register was maintained in order to allow emails to be tracked and responded to. The register enabled emails to be filtered by a range of data, including the operation of the worker sending the email. Attached and marked TD-19 is an extract from the register filtered by emails received to the inbox from Mt Arthur workers. ii. Of the emails received to the central mailbox, approximately 480 were received between 31 August 2021 and 7 October 2021 across all BHP assets, with approximately 20 of that total coming from Mt Arthur employees. iii. Of the emails received to the mailbox, approximately 722 emails were received between 7 October 2021 and 10 November 2021 (being the date the Site Access Requirement took effect at Mt Arthur) across all BHP assets, with approximately 34 of that total coming from Mt Arthur employees. f_p_n_66_ [2021] FWCFB 6051 67 DATE ACTION SOURCE NOTES Examples of the types of emails received and the responses are set out at PT-53-PT-59. 31 August 2021 Vaccination Data Capture Portal established Statement of Tim Dahlheimer at [54] This enabled workers to record their vaccination status securely. 31 August 2021 Tony Maher (General President – CFMMEU Mining and Energy Division) wrote to Edgar Basto (President of Minerals Australia) stating that the CFMMEU did not “support mining industry employers requiring vaccination imposing mandatory vaccination on their employees”. Statement of Melissa Mason at [12a] and MM-1 “Implementing mandatory vaccination as a condition of entry to the workplace raises many issues which include but are not limited to:  Applicability to contractors and others who attend BHP sites  Treatment of workers with medical exemptions  Employment rights of non- vaccinated workers  Reasonable access to vaccinations, including leave provisions. We would consider any move towards implementing mandatory vaccination at your worksites as a major change requiring genuine consultation pursuant to BHP’s obligations under the Fair Work Act, relevant awards and enterprise agreements. In addition, BHP have a responsibility to consult with the safety and health representatives of workers in relation to any possible impact on safety and health of the implementation of the announced vaccination policy.” From 31 August 2021 Process undertaken by BHP to gather and consider feedback Statement of Adam Lancey at [26]-[33] “That process included gathering and considering feedback and suggestions provided by employees, unions and others. A team led by Tim Dahlheimer, Vice President HSE of Minerals Australia, was centrally collating all feedback and suggestions received across the business, including from the dedicated minaucovidvaccination@bhp.com email address that had been established to provide a single point of contact for our workers. The purpose of centrally collating all feedback and suggestions was so that it could be considered in making a decision about the matter. I also f_p_n_67_ [2021] FWCFB 6051 68 DATE ACTION SOURCE NOTES understand that Melissa Mason, Principal Employee Relations, was also leading consultation with unions about the proposed site entry requirement so that union feedback and suggestions could also be taken into account.” “From 31 August 2021 onwards, I spoke regularly with employees at the mine about the possibility that vaccination would be made a condition of entry. My practice was to respond to questions and suggestions if I was able to do so, and otherwise refer individuals to the methods for providing feedback that had been identified. This included referring employees to the minaucovidvaccination@bhp.com email address and to Phoebe Thomas, Principal Operations Performance and Pandemic Lead for Mt Arthur Coal who is based at the mine. I did this because Ms Thomas was working closely with Mr Dahlheimer in collating suggestions and feedback received, as mentioned above. Where employees asked medical queries concerning COVID- 19 vaccinations, my practice was to direct them to BHP’s medical support hotline, a member of the health and safety team or Dr Donoghue.” “Other than feedback from employees holding anti-vaccination views or concerned about potential complications or adverse reaction to vaccines (which would be referred to BHP’s expert safety and medical team supported by Dr Donoghue), the suggestions and feedback received throughout the process after 31 August did not actually address the key issue of whether vaccination would be of overall benefit in terms of meeting our health and safety obligations. Most negative feedback was based on a view that, as a matter of principle about our rights as an f_p_n_68_ [2021] FWCFB 6051 69 DATE ACTION SOURCE NOTES employer, we could not or should not introduce a site entry condition that people entering site be vaccinated. I appreciate that some workers have this opinion. I took this into account when thinking about the introduction of the site access requirement. However, I did not consider that it outweighed the safety case for the requirement. That is still my firm view, notwithstanding everything that I have become aware of in the course of this dispute. I was aware one position put forward was that a voluntary policy of encouraging vaccination rather than making it a site entry requirement would be more effective in convincing people reluctant to be vaccinated of the efficacy of vaccination. However, we were already encouraging vaccination (including through the incentive program referred to above) and asking people to share their vaccination status with us and a significant part of the workforce hadn’t done so. In any case, as a safety control for a specific workplace, having a general policy of encouraging vaccination is not comparable to introducing a vaccination site entry requirement. It isn’t comparable because encouragement of vaccination alone does not have any certain or predictable impact on the level of risk faced by every worker at the mine. At best, a policy of encouraging vaccination might (if successful) give some confidence that some workers at the mine have a lower level of risk of death or serious illness than others. However, it’s the risk faced by every worker at the mine that Mt Arthur Coal has to consider f_p_n_69_ [2021] FWCFB 6051 70 DATE ACTION SOURCE NOTES as part of its statutory safety duties. Those duties aren’t complied with just because we have confidence that some of our workers are safer than others. Prior to the introduction of the Delta strain with New South Wales, Dr Donoghue had provided some advice of the possibility on utilising herd immunity at BHP workplaces. However, once the Delta strain was introduced within the New South Wales community, it became apparent that herd immunity was no longer a viable strategy. The idea that higher vaccination rates would reduce risk for the unvaccinated was no longer correct. Therefore, the need for complete vaccination at the mine substantially increased.” From 31 August 2021 The Project Team undertook the further risk assessment and considered the thoughts, ideas and suggestions received from workforce consultation. Statement of Tim Dahlheimer at [55] As a result of consultation, the decision on whether to introduce the vaccination entry requirement was delayed to allow further risk assessment and consultation with leaders and the workforce by the Project Team. 1 September 2021 Allen Hicks (National Secretary – ETU) letter to Stacey Scaffardi (Employee Relations Manager - BHP) Statement of Melissa Mason at [12d] and MM-4 “Further, the imposition of any employer mandate would be a significant departure from current workplace practices. To date, there has been no consultation by BHP with employees, HSRs, unions or subcontractors. Any imposition of a vaccination policy without active engagement would be manifestly unfair and potentially in breach of obligations under various industrial instruments.” 2 September 2021 and on Email updates provided by Adam Lancey to Mr Arthur Coal Mine staff about on- site vaccinations commencing at Mt Arthur Coal Mine Statement of Adam Lancey at [22], AL- 5 (6 September 2021 email) and AL-6 (earlier emails commencing from 2 September 2021 about on-site vaccination clinic commencement) ‘ … I have sent frequent updates to staff about vaccinations, and encouraged this to occur. For example, one update of 6 September 2021 …’ f_p_n_70_ [2021] FWCFB 6051 71 DATE ACTION SOURCE NOTES 6 September 2021 Series of communications by email, text and posts these are characterised in the witness statement of Phoebe Thomas as “These communications provided details on the assessment phase, vaccine information resources, communication pathways to raise questions and concerns.” Dates given are: 6 September, 9 September, 14 September, 30 September, 1 October and 5 October 1. Statement of Phoebe Thomas at [72] and PT- 35 to PT-43 2. Statement of Tim Dahlheimer at [58] (states “Communication related to the Mt Arthur on-site vaccination trial clinic Attached and marked TD- 21” (appears to be same material as PT-35 of Statement of Pheobe Thomas). PT-35 (6 Sep) does not contain any information about the risk assessment but does include the email address for “questions or comments in relation to our COVID- 19 response, including stepping up support for vaccinations”. PT-36 (9 Sep) advises “call to be vaccinated against COVID-19 is urgent” and provides information about an incentive program for vaccinations. PT-37 (14 Sep) is a general COVID- 19 news bulletin, informs employees that ‘An active assessment of vaccination being a condition of entry to the workplace is currently taking place and you’re invited to email comments or feedback to minaucovidvaccination@bhp.com’. PT-38 is missing PT-39 (14 Sep) is a profile of a vaccinated worker PT-39 (there are 2 PT-39s)(14 Sep) is about the portal for employees to register their vaccination status PT-40 is missing PT-41 (30 Sep) is a message from Edgar Basto which includes information about the COVID-19 support line and the vaccination incentive scheme, notes Minerals Australia have been “rigorously undertaking” assessment “including ongoing engagement with our workforce and key stakeholders … we are taking your feedback and comments into account as we work through this assessment period” to determine whether to make vaccination a condition of entry. PT-41 (1 Oct) (there are 2 PT-41s) is another communication about the support line. This includes the email address for queries and feedback. PT-42 (5 Oct) is a bulletin about a pilot who tested positive to COVID- 19 PT-43 (5 Oct) is also a bulletin about a pilot who tested positive to COVID-19 7 September 2021 Rohan Webb (State Secretary – AMWU) wrote to Edgar Basto and Statement of Melissa Mason at [12f] and MM-6 The Australian Manufacturing Workers’ Union (“the Union”) write to you to remind you of f_p_n_71_ [2021] FWCFB 6051 72 DATE ACTION SOURCE NOTES requested an outline of proposed consultation with workers including a timetable and further requesting a meeting. your obligations to consult coal mine workers affected by a major change in the workplace or workers affected by the introduction of a hazard management plan. Accordingly, the Union requests that the Company immediately issue to the Union an outline of proposed consultation with workers, including a timetable and details of how they intend to engage in meaningful consultation with workers. The Union would be prepared to make Officials available to meet with yourself and any other Company representatives as a matter of priority and at a time and place convenient for the Company. Please advise your preferred time and place. Alternatively, we invite you to meet with us at our office (Brisbane) on Friday, 10 September 2021 at 1pm. Your written response is requested in respect of this matter by Thursday, 9 September 2021 at 1pm. 9 September 2021 Letter from Melissa Mason to Rohan Webb (AMWU) proposing a meeting on 13 September 2021 Statement of Melissa Mason at [12g] and MM-7 This does not include the consultation plan and timetable requested by the union but does suggest a meeting: “I am happy to meet with you on Monday 13 September 2021 to listen to any other matters you wish to raise and am available at 2:00pm. At this point in time, no decision has been made as to whether vaccination will be a condition of entry to BHP workplaces. If a decision is made to make vaccination a condition of workplace entry, we will consult with you about the implementation of that decision.” 9 September 2021 Letter from Mark Diamond (RTBU) to Edgar Basto Statement of Melissa Mason at [12j] and MM-10 The letter urges BHP to “maintain a voluntary stance and adopt measures which promote and provide incentives to get vaccinated.” 9 September 2021 Meeting of Production Health and Safety Committee Statement of Ian Johnson at [17] “At no time during the meeting did representatives of the Respondent f_p_n_72_ [2021] FWCFB 6051 73 DATE ACTION SOURCE NOTES raise the issue of vaccination as a Mine entry requirement.” 9 September 2021 Announcement of Mt Arthur vaccination incentive. Statement of Tim Dahlheimer at [59] As a result of feedback obtained through the centralised inbox, a vaccination incentive program was introduced. This incentive provided employees with 200 ‘Big Thanks points’ and an equivalent value voucher for full-time equivalent contractors (for Mt Arthur Coal Mine contractors) should they confirm full vaccination status by 1 December 2021 using the secure Vaccination Data Capture Portal. Big Thanks Points are BHP reward points that can be used to redeem certain items, such as electronic goods, watches and appliances (1 point is equivalent to $1). 10 September 2021 Letter from Melissa Mason to Tony Maher (CFMMEU) Statement of Melissa Mason at [12b] and MM-2 “BHP is currently actively assessing vaccination as a condition of entry to BHP workplaces in Australia and has been listening to feedback and sentiment from our workforce as part of this process. We note the concerns raised in your letter and understand that this will generate a lot questions, and potentially some concern, from our workforce. We are committed to ongoing discussion and engagement with our workforce about the details of the finalised policy should a decision be made to introduce such a requirement. At this point in time, no decision has been made as to whether vaccination will be a condition of entry to BHP workplaces. If a decision is made to make vaccination a condition of workplace entry, we will consult with you about the implementation of that decision” 10 September 2021 Letter from Melissa Mason to Allen Hicks (ETU) Statement of Melissa Mason at [12e] and MM-5 “BHP is currently actively assessing vaccination as a condition of entry to BHP workplaces in Australia. We have been listening to feedback and sentiment from our workforce as part of this process. If the decision is taken to make vaccination a condition of workplace entry, it will come into effect once people have had an opportunity to be fully f_p_n_73_ [2021] FWCFB 6051 74 DATE ACTION SOURCE NOTES vaccinated – likely early 2022 – based on Federal government vaccine supply and distribution forecast. We note the concerns raised in your letter and understand that this will generate a lot questions, and potentially some concern, from our workforce. We are committed to ongoing discussion and engagement with our workforce about the details of the finalised policy should a decision be made to introduce such a requirement. At this point in time, no decision has been made as to whether vaccination will be a condition of entry to BHP workplaces. If a decision is made to make vaccination a condition of workplace entry, we will consult with you about the implementation of that decision.” 14 September 2021 Letter from Melissa Mason responding to Mark Diamond (RTBU) Statement of Melissa Mason at [12k] and MM-11 This appears to be the same as the letters sent to the other unions: BHP is currently actively assessing vaccination as a condition of entry to BHP workplaces in Australia. We have considered the approach taken by other industries and have also been listening to feedback and sentiment from our workforce as part of this process. We note the concerns raised in your letter and understand that this will generate a lot questions, and potentially some concern, f rom our workforce. We are committed to ongoing discussion and engagement with our workforce about the details of the finalised policy should a decision be made to introduce such a requirement. At this point in time, no decision has been made as to whether vaccination will be a condition of entry to BHP workplaces. If a decision is made to make vaccination a condition of workplace entry, we will consult with you about the implementation of that decision. f_p_n_74_ [2021] FWCFB 6051 75 DATE ACTION SOURCE NOTES 15 September 2021 Meeting of Maintenance Health and Safety Committee Statement of Ian Johnson at [18] “At no time during the meeting did representatives of the Respondent raise the issue of vaccination as a Mine entry requirement.” 15 September 2021 Memorandum for BHP’s Executive Leadership Team prepared to recommend the approval of a proposed COVID-19 vaccination policy for BHP in Australia Statement of Tim Dahlheimer at [63] and TD-28 At [64] Statement of Tim Dahlheimer states: “The ELT Memorandum provided a brief outline of the heightened risk posed by the highly contagious Delta strain of COVID-19 and proposed the adoption of vaccination as a condition of entry to BHP’s workplaces, including on the basis that as Government imposed restrictions on people movements were eased the virus would start to circulate more freely in the community resulting increased spread and risk, particularly to the unvaccinated.” Workforce communication and engagement Anticipating approval of the proposed Policy, development of a communication and engagement plan has commenced that will include specific considerations for contracting partners and Indigenous Australians, including Traditional Owners. The final plan will go through a cross-functional review to support stakeholder alignment and requisite quality. The workforce engagement and communications plan will, among other engagements, outline specific workforce consultation activities as required under State workplace health and safety legislation. This plan adds to existing engagement activities, including the continued use of a dedicated email inbox established when the assessment was announced for members of the workforce to send enquiries to. As of 15th September, there have been close to 300 enquiries to the inbox with each to receive an individualised response. Of the emails received, approximately 15% are positive, expressing support of requiring vaccination as a condition f_p_n_75_ [2021] FWCFB 6051 76 DATE ACTION SOURCE NOTES of site entry along with suggestions on how to encourage workforce vaccination. Of note, and consistent with feedback from line leaders, many people state they would feel safer knowing that everyone is vaccinated and that they feel duty bound to protect others, including vulnerable communities. The remaining ~85% of responses and enquiries have been of a negative nature – as expected with a feedback mechanism of this nature. Key themes of questions and comments include:  Freedom of choice / individual rights and encroachment on human rights.  Clarification on consequences if an employee chooses not to get vaccinated.  Questioning BHP’s right to know an individual’s vaccination history, along with data privacy concerns.  Questions on compensation arrangements if an individual has an adverse reaction to the vaccine.  Requests for leave entitlements that do not consume personal leave.  Statements of alternative “facts” and/or recommended information sources other than those recognised by health authorities in Australia and our HSE team. Given the above and in line with the implementation risk assessment, workforce engagement will be further enhanced with both the provision of support arrangements to help people that may be struggling with the choice to be vaccinated and the use of positive incentives. 16 September 2021 Planned Inspection by the NSW Resources Regulator on Mt Arthur Coal’s COVID-19 Controls. The Inspection was conducted by way of a virtual meeting with Charles Spence Statement of Ross Carlson at [4]-[6] and RC1 Q12 – Discussed the proposed condition of entry requirements being discussed for vaccination. Covered the proactive measures from MAC implementing on site vaccination clinics to maximize opportunity for workers to become f_p_n_76_ [2021] FWCFB 6051 77 DATE ACTION SOURCE NOTES (Inspector, NSW Resources Regulator). Ian Johnson (Site Health and Safety Representative, Mt Arthur Coal) also attended this meeting. vaccinated. Was provided feedback from the regulator that it seemed like this was the way things were going with vaccination and it was expected that other businesses would follow the same path” 19 and 21 September 2021 Emails from Adam Lancey re Mt Arthur monthly site business performance, featuring a video announcing and explaining WRAC and reason for assessment of vaccination as a condition of entry. Statement of Phoebe Thomas at [75h] and PT-60A From Phoebe Thomas [75h]: “At Mt Arthur monthly site business performance summary videos are created to share up to date business information with the workforce, during these videos the vaccination WRAC was announced and explained, including what was the reason for BHP undertaking an assessment of vaccination as a condition of workplace entry. These took place on the 19 September (reporting on September) and 21 September 2021 (reporting on August) were also emailed out to workers. Attached and marked PT- 60A are copies of these communications.” 20 September 2021 Meeting between AMWU and BHP AMWU Attendees: Kegan Scherf, Samantha Boardman and Darly Piper. BHP Attendees: Melissa Mason. Statement of Melissa Mason at [12.h] and [15] and meeting notes at MM-8 “The position put forward by Mr Scherf was that the AMWU did not consider the risk on site was as great as for front line health workers and vaccination should not be made an entry requirement without a public health order requiring it. Mr Scherf also said that he wanted BHP to engage with its workforce before announcing any decision.” Melissa’s meeting notes are a little difficult to follow but do include the following: “Make it known – doesn’t constitute consultation – Mel agrees” There are also the following notes at the end but it’s difficult to discern what they mean: “3- rolling consultation 2 Eas with “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) f_p_n_77_ [2021] FWCFB 6051 78 DATE ACTION SOURCE NOTES Timeline on a decision- worth spending time Good consultation Sending emails” 22 September 2021 Meeting of CHPP Health and Safety Committee Statement of Ian Johnson at [19] “At no time during the meeting did representatives of the Respondent raise the issue of vaccination as a Mine entry requirement.” 23 September 2021 Meeting of all general managers across BHP and Mr Dahlheimer. The purpose of those meetings was to discuss feedback, suggestions and questions gathered from workers and unions, and to provide an opportunity for general managers of various sites to raise points of their own. 1. Statement of Adam Lancey at [28] 2. Statement of Melissa Mason at [12h] 3. Statement of Adam Lancey at [28] “I recall at the meeting on 23 September 2021 I was asked by Mr Dahlheimer to give an update on status and feedback from Mt Arthur and I provided that update to the group. In an earlier meeting with general managers and Mr Dahlheimer on 30 August 2021, I asked a question around the consideration of incentives for people to share their vaccination status, as other companies were providing $200 vouchers. I was considering this as at the time because we were lagging in our disclosure of vaccination status rates at the mine. Ultimately BHP did introduce a program of offering incentives to staff who disclose their vaccination status. Melissa Mason notes that she relayed the feedback from the AMWU received at the 20 September 2021 meeting, to the Working Group at this meeting Adam Lancey: ‘ … On 23 September 2021 and 30 September 2021 I attended meetings with all general managers across BHP and Mr Dahlheimer. The purpose of those meetings was to discuss feedback, suggestions and questions gathered from workers and unions, and to provide an opportunity for general managers of various sites to raise points of their own. I recall at the meeting on 23 September 2021 I was asked by Mr Dahlheimer to give an update on status and feedback from Mt Arthur and I provided that update to the group. …’ f_p_n_78_ [2021] FWCFB 6051 79 DATE ACTION SOURCE NOTES 29 September 2021 COVID-19 vaccination support phone line was introduced to enable workers to receive confidential health information and advice from qualified health and medical professionals. Note that this is inconsistent with the Statement of Phoebe Thomas at [75g] re date of introduction. Statement of Tim Dahlheimer at [60] and TD-25 and TD- 26. The vaccine support line was initially staffed by Baseline Onsite with doctors, nurses and allied health professionals. In response to an influx of concerns about the effect of COVID-19 vaccines on pregnancy and fertility, an obstetrician was added to the staff. 30 September 2021 Meeting of all general managers across BHP and Mr Dahlheimer. The purpose of those meetings was to discuss feedback, suggestions and questions gathered from workers and unions, and to provide an opportunity for general managers of various sites to raise points of their own. Statement of Adam Lancey at [28] Adam Lancey: ‘On 23 September 2021 and 30 September 2021 I attended meetings with all general managers across BHP and Mr Dahlheimer. The purpose of those meetings was to discuss feedback, suggestions and questions gathered from workers and unions, and to provide an opportunity for general managers of various sites to raise points of their own. …’ No further information about this meeting is provided. 30 September 2021 Talking points provided to senior leaders on the COVID-19 vaccination approach. The managers endorsed the recommendation to introduce COVID-19 vaccination as a condition of workplace entry to BHP managed workplaces Statement of Tim Dahlheimer at [62]- [66] and TD-27 “Based on the findings of our assessment, BHP will introduce a requirement for COVID-19 vaccination as a condition of entry to workplaces in Australia for all workers and visitors. ….. Next Tuesday you will receive an email from Edgar confirming the announcement and providing you with a full set of FAQs, Leader Talking Points and a Leader Toolbox Talk. 30 September 2021 Communication from Edgar Basto 1. Statement of Phoebe Thomas [72] and PT-41 2. Statement of Tim Dahlheimer [59] and TD-25 Notes that assessment is being undertaken “including ongoing engagement with our workforce and key stakeholders and will provide you with an update on the outcome of the assessment in the coming weeks.” 30 September 2021 COVID-19 vaccination support line implemented Statement of Phoebe Thomas at [75g] and PT-60. To enable workers to receive confidential health information and f_p_n_79_ [2021] FWCFB 6051 80 DATE ACTION SOURCE NOTES advice from qualified medical professionals. On or about 30 September 2021 BHP provided the COVID- 19 Management Plan to the Health and Safety Committee Workforce Representatives Statement of Ian Johnson at [20] – [21] and IJ-4 ‘On 30 September 2020 or thereabouts, the Respondent provided to the H&S Committee Workforce Representatives entitled ‘Infectious Disease – COVID-19 Management Plan’ … At no time prior to 14 October 2021, was vaccination as a Mine entry requirement raised as an issue at any of the H&S Committee meetings I attended.’ 1 October 2021 Steven Smyth (District President, CFMMEU Mining & Energy Queensland) letter to Melissa Mason Statement of Melissa Mason at [12c] and [20] and MM-3 This letter relates to the direction as it applies in QLD and requests information and to participate in the QLD risk assessment. Among other things, the letter said: “The union movement believes that, unless a public health order is in place, medical decisions are a matter for individual’s acting on the advice of their doctor, not a mandate by an employer to gain employment or keep a job. Such decisions should be made by individuals and public health experts, based on the best scientific evidence and ethical considerations, and not by employers.” 1 October 2021 Communication about new COVID -19 Vaccine Support Line for employees and contractors to discuss vaccine questions with a nurse or doctor Statement of Phoebe Thomas [72] and PT-41 (note that there are 2 PT-41) 1 October 2021 Email from Melissa Mason to Samantha Boardman (AMWU OHS Organising Advocate) Statement of Melissa Mason at [12i] and MM-9 Further to my letter dated 9 September 2021 and our follow up meeting, BHP continues to assess vaccination as a condition of entry to BHP workplaces in Australia and engage with our workforce as part of this process. To support our workforce and encourage an increased uptake in vaccinations, this week BHP launched a new COVID‐19 Vaccine Support Line. The Support Line is open to BHP employees and contractors across f_p_n_80_ [2021] FWCFB 6051 81 DATE ACTION SOURCE NOTES Australia, 7 days a week between the hours of 0600‐2100hrs AEST. The Support Line will provide our workforce with the opportunity to discuss vaccine questions or concerns with a clinical nurse and doctor. We are actively encouraging our workforce to use this service if they have any questions or concerns about COVID‐19 vaccinations. 6 October 2021 Email from Samantha Boardman (AMWU OHS Organising Advocate) to Melissa Mason asking Melissa to outline the workforce engagement process that BHP was engaging in. Statement of Melissa Mason at [12i], [19] and MM-9 We refer your email correspondence dated 1 October 2021 and ask that you outline how you “continue to…engage with [y]our workforce as a part of this process [the process of assessing vaccination as a condition of entry to BHP workplaces in Australia]”. 6 October 2021 Email from Edgar Basto, the President of BHP Minerals Australia, to BHP Senior Leaders announcing the introduction of mandatory vaccination for Covid-19 as a condition for entry to any BHP workplace, with a requirement that the first vaccination occur in NSW by 10 November 2021. Statement of Tim Dahlheimer at [70] and TD-27 7 October 2021 Email from Edgar Basto, the President of BHP Minerals Australia to all Minerals Australia employees, announcing the introduction of mandatory vaccination for Covid-19 as a condition for entry to any BHP workplace, with a requirement that the first vaccination occur in NSW by 10 November 2021. 1. Statement of Matthew John Howard at [45] and MJH-7 2. Statement of Adam Lancey at [37]-[38] and AL-9 and AL-10. See also [40] and AL-13 (transcript of video) 3. Statement of Phoebe Thomas at [73] and PT-44 4. Statement of Tim Dahlheimer at [71] (states that announcement was made via email and video message) Based on the findings of our assessment, the Company will introduce a requirement for COVID- 19 vaccination as a condition of entry to BHP workplaces in Australia for all workers and visitors. We expect this requirement to come into effect fully from 31 January 2022. The requirement will come into effect on earlier dates where needed due to government public health orders or because of other risk factors such as the status of any local COVID-19 outbreaks and government re-opening plans. The 31 January 2022 date is intended to provide a fair and reasonable timeframe (where the risk profile and government health orders allow) for continued engagement and consultation, and for people to f_p_n_81_ [2021] FWCFB 6051 82 DATE ACTION SOURCE NOTES consider their position leveraging available support. NSW: Considering the current COVID-19 outbreak in NSW and the State Government plan to ease restrictions, workers and visitors to BHP workplaces in NSW will be required to have their first vaccination dose by 10 November 2021 and be fully vaccinated by 31 January 2022. Statement of Tim Dahlheimer at [73] states “Mr Basto’s emails encouraged workers to continue to submit questions, thoughts and feedback to the centralised email inbox described above.” 7 October 2021 Email from Adam Lancey, Mt Arthur General Manager repeating the introduction of the vaccine mandate on 10 November 2021 at the Mt Arthur coal mine. 1. Statement of Matthew John Howard at [46] and MJH-8 2. Statement of Adam Lancey at [39] and AL-12 We know this will generate a lot of questions and concern among some people in our workforce. We will continue to engage over the coming weeks and months as we work through the details of how this control will be implemented at our workplaces and continue to take our workers’ views into account. Please continue to share the COVID-19 Vaccine Support Line number with your teams. The support line is for BHP employees and contractors across Australia, available 7 days a week, and you can speak with health experts regarding COVID-19 vaccinations. The phone number for the support line is 02 9312 5163. In addition, please encourage team members to submit feedback or queries to the mailbox minaucovidvaccination@bhp.com. 7 October 2021 Melissa Mason made calls to each of the unions to let them know about the mandatory vaccination decision (the statement does not identify who the calls were made by) After the calls Melissa Mason sent an invitation to the CFMMEU, AMWU, ETU, and RTBU proposing a meeting on 12 October Statement of Melissa Mason at [17] f_p_n_82_ [2021] FWCFB 6051 83 DATE ACTION SOURCE NOTES 2021 as an opportunity for the unions to provide feedback and ask questions about the Site Access Requirement. On or about 7 October 2021 Meeting between Adam Lancey and Jeff Drayton of the CFMMEU where the vaccination requirement was discussed Statement of Adam Lancey at [46] “I had a meeting with Jeff Drayton of the CFMMEU on or about 7 October 2021 where we discussed the vaccination site entry requirement. Jeff said that the union wasn’t surprised with BHP’s announcement, but confirmed that the union disagreed with excluding people from the workplace if not vaccinated. I understood from him that the union’s position was an issue of principle about our rights as an employer and operator of a mine, rather than being against vaccination as such, or based on a view that it isn’t effective. Our discussion focused on consultation about implementation and what I would be doing on site to make it as easy as possible for access to the vaccine.” 8 October 2021 (or after the 7 October announcement) Video message from Mr Edgar Basto, Mr Adam Lancey and Dr Michael Donoghue about the vaccination mandate played at pre-shift meetings 1. Statement of Ian Johnson at [24]- [25] 2. Statement of Adam Lancey at [40] and AL-13 3. Statement of Phoebe Thomas at [74] From Phoebe Thomas, [74]: “Also on 7 October 2021, we played a video pre-start which included Mr Basto’s announcement, a video from Adam Lancey, and a video of Dr Donoghue explaining the safety rationale for NSW and reminding workers about use of the MinAus vaccine mailbox. Afterwards, workers were given the opportunity to ask questions to managers and superintendents. All managers who were at the pre-start received materials prior to this time which could be used to engage in discussions with workers. Copies of the toolbox talk materials provided to leaders on 6 October 2021 and a copy of the updated FAQs dated 15 October 2021 are attached and marked PT-45, PT-46 and PT-47. 8 October 2021 Email from Mr Adam Lancey including link to FAQ’s re BHP’s vaccination position including the Site Access Requirement announced the day before Statement of Phoebe Thomas at [75b] and PT-48. f_p_n_83_ [2021] FWCFB 6051 84 DATE ACTION SOURCE NOTES 8 October 2021 Letter from Robert Coluccio (Senior Legal Officer – Collieries’ Staff and Officials Association) to Melissa Mason Statement of Melissa Mason at [36b] and MM-21 The letter includes 26 questions about the Site Access Requirement and does not suggest alternative options 11 October 2021 Letter from Mr Smyth of the CFMMEU to Melissa Mason asking 22 questions about the Site Access Requirement, as it applied to mines in Queensland Statement of Melissa Mason at [18] and MM-12 “The CFMMEU (“the Union”) considers that this decision is a major workplace change, and requires BHP to consult with employees and their representatives at each BHP workplace and in accordance with the relevant workplace agreement. The Union does not agree with the proposed structure for tomorrow’s meeting which limits the number of employee representatives to three, when there are 9 mines, a coal port and offices that also need to be consulted to ensure that BHP is fulfilling its obligations and giving genuine consideration to any feedback received from representatives and employees. We again request that tomorrow’s meeting is used to discuss the logistics of how future meetings will be conducted across all BP workplaces.” 12 October 2021 Meeting convened by BHP with Unions concerning its decision to introduce Covid-19 vaccinations as a condition of entry to its workplaces. Meeting attended by CFMMEU (both the NSW and Queensland branches), AMWU, ETU and RTBU 1. Statement of Matthew John Howard at [47]- [55], Rationale document at MJH9, Record of meeting MJH-10. 2. Statement of Melissa Mason at [19]-[21]; [23], record of meeting at MM-13, notes taken at meeting MM-14. 3. Statement of Dr Donoghue at [31]. 4. Statement of Phoebe Thomas at [75o] although note that she did not attend Note that this email says: “Over the last five weeks we have been rigorously undertaking this assessment including ongoing engagement with our workforce. The assessment has included a review of the latest health science, expert advice, and feedback from many stakeholders, including our employees and contract partners. The feedback and views you have provided have been greatly appreciated and have been considered through the assessment process.” Note that the Rationale document was referred to in this meeting. The Rationale document says: f_p_n_84_ [2021] FWCFB 6051 85 DATE ACTION SOURCE NOTES “Over the last five weeks we have been rigorously undertaking this assessment including ongoing engagement with our workforce.” The record of meeting includes the following: “The scope of this consultation process BHP representatives and employee representatives (the ‘Group’) discussed the scope of consultation. • BHP representative provided that this was not consultation under industrial instruments as the decision to introduce vaccination as a condition of entry to a BHP managed workplace or site was a safety decision and not a major workplace change. • Employee representatives for the CFMEU, ETU, AMWU and RTBU put forward their position that they considered this a major workplace change. • BHP representative advised the Group that whether or not there was agreement on the description of this meeting, it did not change the fact that BHP had called the meeting to listen to representatives and genuinely hear feedback. Engagement by BHP regarding the control A representative from the AMWU put to BHP that it had refused to listen to the concerns of the workforce and their union representatives: • BHP representatives did not agree with this statement in light of the fact that BHP had been actively responding to all union correspondence and had met with them when requested, which f_p_n_85_ [2021] FWCFB 6051 86 DATE ACTION SOURCE NOTES included taking on all of your feedback. • BHP have also engaged all of the workforce through multiple avenues since August. BHP has an inbox and a hotline to help employees get reliable information.” Appendix 1 to the record of meeting is a document which includes a series of questions from the CFMMEU with answers from BHP. This includes: 1. Do BHP recognise that this decision is considered a major workplace change for the purposes of consultation? No, BHP does not consider this to be a major change triggering consultation under industrial instruments. The decision involves the implementation of a safety control, similar to other safety controls that are introduced and required to be complied with at our sites and workplaces. However, BHP recognises that engagement with our workforce and their representatives is the right thing to do in the current environment. Whether or not we agree, we have recognised the need to listen to you, and the workforce. We want to genuinely hear your feedback. 3. On the 7th of October 2021, in Edgar Basto’s announcement, he refers to an assessment that has taken place over the last 5 weeks. What was the assessment undertaken by BHP and what did the assessment involve? Who was involved in the assessment? The assessment involved a review of: f_p_n_86_ [2021] FWCFB 6051 87 DATE ACTION SOURCE NOTES • the current scientific, medical and health and safety information, • government guidance and re- opening plans, and • local factors (such as case numbers and outbreaks). It involved input from subject matter experts, including health and safety and medical experts. The primary driver, as always, was health and safety. 12. BHP have stated that unvaccinated workers will not be able to attend BHP sites after the 31st of January 2022. Does that mean that BHP will be terminating the employment of those workers? If not, what do BHP propose to do in those circumstances? Employees will be required to be fully vaccinated against COVID-19 to enter a BHP managed workplace. This is to help ensure the health and safety of our workers and visitors. If they cannot comply with the condition then they cannot safely enter. BHP will follow a just, fair and reasonable process with each employee who does not meet the workplace access requirement to be vaccinated. This is going to occur on a case by case basis. However, as stated during the discussion, we are here to talk to our workforce about their concerns and here to listen to their reasons and reservations through a number of avenues. We have opened the forum for a meaningful discussion with employee and state representatives by actively responding to queries, attending requests to meet and initiating engagement sessions such as the meeting held on 12 October 2021. We have been taking employee and stakeholder views and feedback on f_p_n_87_ [2021] FWCFB 6051 88 DATE ACTION SOURCE NOTES board, which have been provided via the vaccine mailbox and through line leaders. We will continue listening to and engaging with our workforce as we work through the implementation process. We are also helping employees make an informed decision about the vaccination by setting up the COVID-19 Vaccine Support Line which is open to BHP employees and contractors across Australia, 7 days a week. The COVID-19 Vaccine Support Line, managed by an independent third party, and allows our workforce the opportunity to discuss vaccine questions or concerns with a clinical nurse and doctor. 16. Will BHP consult directly with employees of other Companies who will be impacted by this decision? (e.g., Employees of contractor and labour hire companies who work on BHP sites) BHP is currently undertaking a process of engaging with the entire workforce. We have had a dedicated email set up since the company started its analysis and will continue to engage up until implementation. Line leaders and managers are also engaging with their teams.” 14 October 2021 Production Health and Safety Committee meeting Statement of Ian Johnson at [27] “Management representatives at the meeting did not raise the new Mine entry requirement. In turn, Mr Ryan Cummings, C Crew Health & Safety Representative asked for the minutes to note that consultation had not occurred in relation to the new Mine entry requirement at the meeting. One of the management representatives responded by explaining the matter would not be resolved at the committee meeting. I said words to the effect of: - “We have a process to follow. We want it noted in the minutes that consultation has not happened here f_p_n_88_ [2021] FWCFB 6051 89 DATE ACTION SOURCE NOTES in the Department Committee meeting so we can escalate the matter to the site health and safety committee”.” 15 October 2021 Email from Darren Pisters 1. Statement of Ian Johnson at [28]- [29] and at IJ-5 2. Statement of Phoebe Thomas at [63]-[64] “Following the communication of BHPS intent to introduce vaccination as a condition of entry to Minerals Australia, consultation regarding the implementation of COVID-19 vaccination condition of entry as a critical control into our WHS management system is schedule for the Site Health and Safety Meeting next Wednesday 20th October at 1pm. The condition of entry control will form part of the sites Infectious Disease COVID-19 Management Plan and in particular the controls within the COVID-19 TARP. Prior to the meeting can you please discuss with the relevant representatives of your workgroups and collate relevant feedback for consideration by the management team regarding the implementation of the condition of entry control to Mt Arthur Coal.” From Phoebe Thomas: “Approximately a week prior to the meeting, on 15 October 2021, an email was sent to all SHSC representatives inviting them to the SHSC Engagement Meeting. This email contained context regarding the intent of the consultation. The email distributing the SCHC Engagement Meeting invite requested all representatives to discuss with relevant workgroup representatives and collate feedback. A copy of this communication is attached and marked PT-32.” 18 October 2021 Letter from Peter Bauer (South Australia State Secretary – AMWU) to Edgar Basto Statement of Melissa Mason at [36a], MM-19 Letter requesting that BHP withdraw the Site Access Requirement 18 October 2021 COVID-19 update communication published noting previous week’s announcement that Statement of Phoebe Thomas [75b] and PT-50 f_p_n_89_ [2021] FWCFB 6051 90 DATE ACTION SOURCE NOTES vaccination will be a condition of entry to BHP workplaces from 31 January 2022. 18 October 2021 Letter from Melissa Mason responding to Robert Coluccio (Senior Legal Officer – Collieries’ Staff and Officials Association) Statement of Melissa Mason at [36b] and MM-22 The letter does not make any reference to consultation 19 October 2021 COVID-19 update communication published noting previous week’s announcement that vaccination will be a condition of entry to BHP workplaces from 31 January 2022, but noting Mt Arthur team members need their first dose by 10 November 2021. Statement of Phoebe Thomas at [75b] and PT-51 19 October 2021 Separate meeting between the CFMMEU and BHP to discuss the vaccine mandate as it applied to the Mt Arthur mine Attendees for the CFMMEU lodge: Jennifer Short, Matthew Howard and Ian Ayres. Attendees for BHP: Melissa Mason, Callum Baxter-Walters, Nicole Gregory, Stella Kazoullis and Phoebe Thomas 1. Statement of Matthew John Howard at [55]- [60] and record of meeting at MJH-11 2. Statement of Melissa Mason at [23]-[29]; [32], MM-15 organisation emails, MM-16 record of meeting and MM-17 handwritten notes 3. Statement of Phoebe Thomas at [75p] and PT- 64 The record of meeting relevantly includes: Risk assessment Employee Representatives for the CFMMEU (Employee Representatives) asked BHP representatives whether or not a risk assessment had been undertaken at Mt Arthur Coal (MAC): • BHP representatives provided that, yes a number of assessments had occurred • It was further asked who had been involved in that process. BHP representatives advised that there had been a number of stakeholders had been involved and that there was not going to be any further discussion around who had been involved in that process · Employee Representatives inquired as to why the risk assessment was not going to be provided to the group. Advice from BHP representatives was that assessments that had occurred is not something that would ordinarily be provided and that the health and safety rationale was what BHP is willing to provide given it f_p_n_90_ [2021] FWCFB 6051 91 DATE ACTION SOURCE NOTES underpins the assessments undertaken In seeking further detail about risk assessments at MAC, the Employee Representatives asked whether or not it identified the workers who work within close proximity to each other: • BHP representatives advised that whilst it may not have been framed in that matter, assessments take into account many factors. From Phoebe Thomas at [75p]: “On 19 October 2021, a further engagement meeting between Mt Arthur Coal, Mr Howard and the CFMMEU NSW Branch took place. I attended that follow up meeting. A copy of the meeting minutes is attached and marked PT-64. I attended this meeting in my role in Principal Operations Performance to give site specific information about Mt Arthur, as BHP’s only NSW site. During this meeting, myself and my colleagues answered questions on the implementation of vaccination as a condition of workplace entry. There were no feasible suggestions put forward by the CFMMEU NSW Branch during the meeting in regards to how the COVID-19 risk could otherwise be managed with alternative controls.” 19 October 2021 Rationale document provided to Ian Johnson Statement of Ian Johnson at [30] and IJ-8 ‘On 19 October 2021, Mr Cummings provided me with a document entitled “Rationale” which he explained he had received in response to his requires for a copy of the Risk Assessment that set out the vaccination Mine entry requirement at the Mine.’ 19 October 2021 Email sent from Ian Johnson to vaccination email address Statement of Ian Johnson at [31]-[32] and IJ-6 ‘On even date [19 October 2021], I sent an email to an email address the Respondent had set up for employees to make enquiries about the vaccination Mine entry requirement. In my email, I listed questions I had received from employees regarding the matter. I f_p_n_91_ [2021] FWCFB 6051 92 DATE ACTION SOURCE NOTES asked to be provided with a copy of the risk management/assessment. To date, I have not received a response to my email of 19 October 2021.’ 19 October 2021 Field Leadership Program ‘placeholder invitations’ sent for ‘take time talks’ Statement of Phoebe Thomas at [75i-k] and PT-61, PT-62 and confidential attachment PT-01 Dates in the extracts in Confidential attachment PT-01 range from 5 August 2021 to 12 November 2021. They do not identify any consultation with HSRs. Around 20 October 2021 BHP provided workers with a health and safety basis and rationale document to further explain the rationale for the vaccination requirement as a condition of entry to BHP managed workplaces in Australia. Statement of Tim Dahlheimer at [74] and TD-41 From mid-late October 2021 Tim Dahlheimer prepared a COVID-19 Vaccination as Condition of Workplace Entry Health and Safety Basis and Rationale setting out the result of the assessment undertaken by the Vaccination Working Group Statement of Tim Dahlheimer at [74] and TD-41 The Safety Rationale was prepared to provide workers and their representatives an explanation of the reasoning behind the decision to introduce vaccination as a safety critical control and was provided to works around 20 October 2021. This is included in the FAQs. 20 October 2021 Overarching Health and Safety Committee meeting / SHSC Engagement Meeting (‘Site Health and Safety Committee’) 1. Statement of Ian Johnson at [28] – [29] and IJ-5 ‘email notifying of meeting’, as well as at [33]- [64] and IJ-7 ‘meeting notes’ (very difficult to read) and IH-8 ‘Workforce Consultation Condition of Entry’ and minutes taken by a company representative 2. Statement of Adam Lancey at [47]-[51], AL-14 ‘Raionale’ document and AL-15 ‘email with summary of From Ian Johnson: “The meeting commenced with management showing a slide show presentation about updating the TARP to include the vaccination Mine entry requirement. Management also provided a pre- filled TARP that included amendments to the existing TARP to include the vaccination Mine entry requirement. This was unusual, in that we had previously amended TARPs together by way of an overhead projector/tv which had the existing TARP and changes were made to the document during the meeting after consultation.” See [33]-[64] for Ian Johnson’s full account of the meeting, including words to the effect. From Adam Lancey: “At the beginning of the meeting, Mr Darren Earnshaw and Mr Ian f_p_n_92_ [2021] FWCFB 6051 93 DATE ACTION SOURCE NOTES meeting and documents’ 3. Statement of Phoebe Thomas at [60]-[62], [65]- [68] and PT-30 and PT-31 4. Statement of Melissa Mason at [35] and MM-18 Johnson made comments questioning whether Mt Arthur Coal was able to legally enforce the site access requirement. There was general agreement and comments were made by a number of attendees including Mr Earnshaw, Mr Johnson, myself and others that because this was before the courts, the courts would deal with that issue. As a result, there was no substantial discussion at the meeting on 20 October about whether the site access requirement should be introduced or not. All of the feedback and suggestions were focused on issues of implementation. An updated draft TARP incorporating the site entry requirement was also provided for discussion. When changes to complex documents are proposed it is more efficient to have these already prepared before a meeting, to serve as the basis for discussion. My team went into that meeting genuinely seeking feedback on the TARP, which is why a draft document was prepared in advance to inform the discussion.” From Phoebe Thomas [61]-[62], [65]-[68]: “On 20 October 2021, an engagement meeting with the SHSC occurred in relation to the introduction of the Site Access Requirement and updated Mt Arthur TARP (SHSC Engagement Meeting). Copies of the record and minutes of this meeting are attached and marked PT-30 and PT-31. I attended this SHSC Engagement Meeting.” … “The SHSC Engagement Meeting was attended by 16 members in person and online. On the day of the meeting, attendees were provided f_p_n_93_ [2021] FWCFB 6051 94 DATE ACTION SOURCE NOTES with a print-out of the FAQs and a safety rationale to further explain reasoning behind the selection of vaccination as a condition of entry to BHP managed workplaces in Australia. During the SHSC Engagement Meeting, Darren Pisters led the SHSC through the changes to the Mt Arthur TARP and presentation pack, including the addition of Phases 5 and 6 and the vaccination requirement. Following this, everyone had an opportunity to provide feedback and ask questions. I myself answered questions on COVID-19 booster shots, illness classification for COVID-19 infection, the medical exemption process, and what will happen to unvaccinated workers with no medical exemption come 10 November 2021. There was limited feedback provided during the SHSC Meeting and no issues were raised from the health and safety representatives, including from Ian Johnson (Site Safety & Health Representative) about the TARP itself. After the SHSC Engagement Meeting, a record of the consultation was shared back with attendees so they could distribute this with the workforce.” On or just before 27 October 2021 Meeting to update the TARP / WRAC meeting (‘workplace risk assessment and control’) 1.Statement of Ian Johnson at [65]- [66] 2.Statement of Adam Lancey at [52] but note that he did not attend 3.Statement of Phoebe Thomas at [47] and PT-19 “The meeting was in relation to including vaccination as a control measure in the TARP. The only change that was made to the existing TARP was the inclusion of the column in blue. The blue column was presented as a pre-filled TARP. We discussed making changes and the Respondent agreed to make one change in the TARP in relation to trending/escalating case numbers the TARP as opposed ‘high numbers’. The amended TARP did not incorporate that agreed change, (see attachment IJ-3).” f_p_n_94_ [2021] FWCFB 6051 95 DATE ACTION SOURCE NOTES From Phoebe Thomas: “On 27 October 2021, a WRAC of the TARP was conducted on the changes to the TARP associated with adding Phases 5 and 6. The meeting was attended by me. Attached and marked PT-19 is a copy of the completed WRAC which was signed off by workers present during that risk assessment.” 28 October 2021 Letter from Melissa Mason responding to Peter Bauer (South Australia State Secretary – AMWU) Statement of Melissa Mason at [36a] and MM-20 The letter makes no reference to consultation 1 November 2021 COVID-19 ‘Myth-buster’ communication published, featuring Dr Michael Donoghue answering questions received from COVID-19 vaccination inbox re vaccination health concerns. Statement of Phoebe Thomas at [75b] and PT-52 1 – 3 November Emails attaching a letter sent to employees who had not already provided their vaccination details, requesting disclosing of vaccination status Statement of Adam Lancey at [54], AL- 16 ‘Leading into the implementation of the site entry requirement on 10 November, there were a number of emails to all workers at Mt Arthur sent from my email and individual communications with workers to reiterate what would occur and remind them of the importance of disclosing their vaccination status. Between 1 and 3 November employees who had not already provided their vaccination details were issued a letter directing them to do so.’ 2 November 2021 Following the WRAC, version 3 of the TARP was formally uploaded Statement of Phoebe Thomas at [48] 4 and 8 November 2021 Notices were handed to non-compliant employees (employees who had not provided proof of vaccination status as yet) on 4 November 2021 when entering site or through line leader Further emails attaching a letter were sent on 4 and 8 November 2021 to employees who had not Statement of Adam Lancey at [54] and AL-17 ‘Further communications of 4 and 8 November 2021 … On 4 November 2021, noncompliant employees were handed a copy of a notice when entering site or through their line leader.’ f_p_n_95_ [2021] FWCFB 6051 96 DATE ACTION SOURCE NOTES already provided their vaccination details, requesting disclosure of vaccination status 10 November 2021 Commencement of the vaccine mandate Statement of Adam Lancey at [35] ‘The individual circumstances of the mine were taken into account when making the decision to put in place the site entry requirement at the mine. In particular, the date of 10 November 2021 – earlier than some other locations – was selected having regard to the location of the mine in New South Wales and the level of risk present in the State. Specifically, in my discussions with Tim Dahlheimer and Dr Donoghue on 29 September 2021 we were aware that COVID-19 transmission rates were expected to increase within the Hunter Valley region as the NSW Government prepared to reduce COVID-19 restrictions and permit regional travel as the state reached 80 – 90% vaccination rates. The 10 November 2021 date was determined to be the most appropriate date for the mine, as this appeared to be the earliest opportunity at which Mt Arthur could implement a site access requirement, whilst the risk of community transmission remained low. This date would also enable employees to have maximum opportunities to obtain a COVID-19 vaccine, in light of previous vaccine supply issues in the Hunter Valley region. The 10 November date was selected after weighing up those factors. 11 November 2021 Mt Arthur escalated to Phase 5 of the Mt Arthur TARP, v.3. This change in 5 was triggered by the requirement of one dose of COVID-19 vaccination as a condition to enter the Mt Arthur site. 1. Statement of Phoebe Thomas at [49] 2. Statement of Adam Lancey at [15] and AL-3 (current version of the TARP) f_p_n_96_