A recent decision delivered by the Fair Work Commission has confirmed a South Australian shipbuilding yard can dismiss employees for failing to comply with the company’s vaccination requirements.
The Australian Submarine Corporation (ASC) introduced a COVID-19 Policy which required employees and contractors be double vaccinated against COVID-19 before entering the worksite at Osborne, South Australia.
On 3 June 2022, the Commission concluded that the ASC Policy which included mandatory COVID-19 vaccinations for its workers was lawful and reasonable[1].
The Australian Workers’ Union (AWU) and Australian Manufacturing Workers’ Union (AMWU) took the Australian Submarine Corporation (ASC) to the Fair Work Commission, arguing the mandate was illegal because it was an unlawful and unreasonable request for the submarine workers to be mandatory vaccinated to work.
The unions submitted that the mandate was not “a reasonably proportionate response to current risks created by COVID-19”. They also asserted that ASC failed to adequately consult its workers about the policy.
The ASC presented their consultation plan and argued that their vaccination policy was logical, fair and balanced as it allowed unvaccinated staff at its Osborne facility to provide a medical exemption. The ASC stated that unvaccinated workers could create risks to its client, the Royal Australian Navy, which required its crew to be double-vaccinated. The company submitted to the commission that its mandate was reasonable following the opening of state borders and the current risk of transmission in workplaces.
The Decision
The key elements of the decision by the Commission focussed on determining the following two questions:
- Had ASC met the consultation requirements prescribed by their ASC Pty Ltd Enterprise Agreement 2022 (Agreement) in respect of its COVID-19 Vaccination Policy?; and
- Would an instruction from ASC that employees covered by the Agreement comply with the COVID-19 Vaccination Policy be a reasonable and lawful instruction?
DP Anderson said that the steps taken by ASC between 23 November 2021 and 28 March 2022 met its consultation obligations under the Agreement. ASC had a predisposed view in favour of the decision it had made but was willing to, and did consider views which questioned the need for the vaccination mandate. It did so in the context of also receiving views on the other elements of the Policy which included conditions and timing. The Commission’s decision stated that:
ASC was managing health risks in a pandemic. This required leadership not just from governments but from the corporate sector meeting its obligations to proactively manage workplace risk.
Lessons for employers
The key takeaway for employers from this decision is that when faced with implementing a COVID-19 Vaccination Policy in the workplace, the Employer needs to ensure they follow a proper process for engaging with and consulting workers and other key stakeholders.
Employers in particular have to consider their consultation process in their workplace regarding the making of lawful and reasonable decisions that will affect their team.
During the consultation process, the employer should carefully consider any issues raised by workers and stakeholders.
The legal issues can be quite different depending on the source of the requirement to be vaccinated. This can relate to a public health order, issues of consultation, privacy considerations and other reasonableness of the requirement to be vaccinated that may apply.
Our Workplace Team can assist if you need advice in relation to the adequacy of the consultation process and the implementation of workplace policies for your business.
[1] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU);and Australian Workers’ Union v ASC Pty Ltd T/A Australian Submarine Corporation [2022] FWC 1198.
For further information please contact Danny Clifford, Director.
The assistance of Nicole Ferraro, Law Graduate in researching this article is gratefully acknowledged.
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