Consultation is King When Mandating Vaccinations (or making any changes at all)

If there is one constant theme of the last couple of years, that theme is change. We’ve needed to adapt to constantly changing ‘rules’ and ‘health orders’, be resilient enough to navigate changes in where, when and how we work, and all of this for many businesses has resulted in internal changes to structure, operations and expectations of our team.

Whether it be about changing work location, mandating vaccination, or using Rapid Antigen Tests, things just keep changing.

So how do we as business owners get through all of this change, and how can we effectively, and legally, implement the changes that we need to in order to keep operations going, and our workplace safe?

There is one single thing that is absolutely king when it comes to implementing this kind of change that effects our team, and that is consultation.

Why is consultation so important?

Recent cases heard by The Fair Work Commission have demonstrated the importance of consultation. Each and every Modern Award features a consultation clause, which requires employers to consult with employees before making any significant workplace changes, it’s a fundamental part of our industrial relations laws.

And one big business learnt the hard way just how important consultation is.

In early October, BHP Australia announced it had made a decision to mandate COVID-19 vaccinations for all employees at it’s mine sites across the country. They had flagged this decision with their staff back in August 2021, but in October 2021 they activated the mandate.

They put in place dates by which employees would need to have had their first and second doses of the vaccine, and staff members who did not comply were stood down.

When challenged at the Fair Work Commission it was found that that whilst broadly the decision to mandate vaccination was lawful and reasonable on a number of levels, the failure to consult with their staff meant that the Commission would not uphold the mandate and allow BHP to stand unvaccinated staff down.

After returning to their staff, and conducting a robust consultation process, BHP have now been able to enforce their vaccine mandate.

What does consultation look like?

There are 3 critical steps in consulting in a genuine and appropriate way to meet the requirements of the Fair Work Act. Put simply they are:

Step 1: Inform the employees of the proposed change you are looking to implement. Most often this looks like having a meeting with the effected team members, discussing what your proposed changes are, why you are looking to implement them, and asking for their feedback on this proposed change.

Step 2: Provide the employees with an opportunity to give feedback, challenge the proposal, give input and ideas, or suggest alternatives. This can be achieve by giving the employees some time to consider your proposed changes and come to you with any feedback and input by a certain date.

Step 3: Genuinely consider the feedback received before arriving at a final decision. This might mean holding further meetings and discussions, or simply reviewing input that has been received and considering the employees views, the impact the change is likely to have on them, and any alternatives that they have put forward.

When should you be consulting?

Consultation is not only required when mandating vaccinations. Consultation should take place any time you are looking to implement a major workplace change that will impact the employee. This type of change could be a change in hours, change in location, change in roles and structure or a change to the terms and conditions of their employment.  

Whilst for many employers this may seem a frustrating and time consuming process, the BHP example shows us just how seriously the Fair Work Commission treat consultation and the important role it plays in our Industrial Relations laws.