[2021] FWC 6626

STATEMENT

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)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 17 DECEMBER 2021

Application for Commission to deal with a dispute in accordance with a dispute settlement
procedure in an enterprise agreement

Background

[1] On 7 October 2021, Mt Arthur Coal Pty Ltd (Mt Arthur) issued a direction to employees
that as a condition of site entry employees are required to:

(a) 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.

(the Site Access Requirement)

[2] Following the direction to comply with the Site Access Requirement, the Applicants
raised a dispute under the Mt Arthur Enterprise Agreement 2019 (EA) in relation to the Site
Access Requirement.

[3] The dispute was referred to the Fair Work Commission for arbitration and the
Commission was asked the question:

“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.”

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[4] The Commission convened a five member Full Bench to determine the question and on
24 and 25 November 2021, the Commission heard the matter.

[5] On 3 December 2021, the Commission delivered its decision1 which determined that the
answer to the question was “no”.

[6] The Commission held that the Site Access Requirement was prima facie lawful:

“[85] We accept that the object and purpose of the Site Access Requirement is to protect
the health and safety at work of Mt Arthur’s employees and other people at the Mine.
On that basis, the Site Access Requirement is prima facie ‘lawful’ because:

 it falls within the scope of the employment, and

 there is nothing ‘illegal’ or unlawful about becoming vaccinated.”

[7] The Commission also held that the Site Access Requirement was not reasonable. The
major and determinative factor that led to the conclusion that the Site Access Requirement was
not reasonable was due to deficiencies in consultation:

“[251] In all the circumstances we find that, on balance, the Site Access Requirement
was not a reasonable direction. The determinative consideration has been that we are
not satisfied that there was consultation in accordance with ss.47 and 48 of the WHS
Act.
[…]

[253] Had Mt Arthur consulted the Employees in accordance with its consultation
obligations − such that we could have been satisfied that the decision to introduce the
Site Access Requirement was the outcome of a meaningful consultation process – the
above considerations would have provided a strong case in favour of a conclusion that
the Site Access Requirement was a reasonable direction.
[…]

[265] Mt Arthur’s failure to comply with its consultation obligations under the WHS Act
is the major consideration which led us to conclude that the Site Access Requirement
was not a lawful and reasonable direction. The consultation deficiencies we have
identified can be addressed by Mt Arthur consulting the Employees in relation to the
question of whether or not the Site Access Requirement should be imposed at the Mine.
Any subsequent dispute will need to be determined having regard to the particular
circumstances at the time.”

[8] The Commission found that the scientific and medical evidence supported the Site
Access Requirement:

1 Construction, Forestry, Maritime, Mining and Energy Union & Anor v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059
(Decision)

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“[29] There are a number of general factual propositions which are uncontentious and
which we accept have been established on the evidence before us:

1. COVID-19 involves a high burden of disease, greater than influenza.

2. Any infected person is at risk of developing serious illness from the virus, which may
lead to death.

3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant
which is more infectious and has more severe health effects than previous variants.

4. All COVID-19 vaccines currently available in Australia are effective at preventing

symptomatic infection, including from the Delta variant.

5. All COVID-19 vaccines currently available in Australia substantially reduce the risk
of serious illness or death, including from the Delta variant.

6. All COVID-19 vaccines currently available in Australia are safe and any adverse
effects are usually mild. There is a much higher risk of developing serious
complications and dying from acquiring COVID-19.

7. An unvaccinated person is more likely to acquire COVID-19 from another

unvaccinated person, rather than a vaccinated person.

8. While other measures, such as mask wearing, and social distancing, are
demonstrated to reduce the transmission of COVID-19, the effectiveness of these
measures depends on people applying them consistently or correctly. They do not
provide a substitute for the constant protection offered by vaccines, nor do they
reduce the risk of developing serious illness once somebody acquires an infection.

9. Vaccination is the most effective and efficient control available to combat the risks
posed by COVID-19.

10. Even with high vaccine rates in the community, COVID-19 will remain a significant
hazard in any workplace in which there is a possibility that people will interact or
use the same common spaces (even at separate times). The Mine is clearly such a
workplace.
[…]

[61]…higher rates of vaccination do decrease the risks to an unvaccinated person.

However, as Professor McLaws and Witness R5 made clear in their evidence, higher
rates of vaccination do not remove the risk of COVID-19 infection for unvaccinated
workers. That is because unvaccinated workers are at risk of catching COVID-19 from
other unvaccinated workers and fully vaccinated workers, who can acquire COVID-19
and efficiently transmit the disease to others. Indeed, unvaccinated people are more
likely to acquire COVID-19 compared with vaccinated people. Further, unvaccinated
workers on a work site increase the risk of spreading COVID-19 to vaccinated workers

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and other unvaccinated workers. In turn, those persons are at risk of spreading COVID-
19 outside the workplace to their families and friends.

[62] We are also satisfied on the basis of the expert evidence given by Professor McLaws
and Witness R5 that the rates of infection of COVID-19, in the Hunter Region and
throughout Australia, are likely to increase over time as movement restrictions ease,
with the result that it is inevitable that everyone who works on the Mine will come into
contact with someone – probably many people – who are infected with COVID-19.
Witness R5 went on to express his opinion that ‘with reopening the virus will spread
through Australia, and [although] the timing in the given locations [is] not exact, but in
time it will spread to all locations, and be present in all work places’. When COVID-19
does so spread, those who remain unvaccinated are at greatest risk of acquiring COVID-
19, becoming seriously ill or dying from acquiring COVID-19, and infecting other
people with whom they come into contact.”

[9] Notwithstanding the deficiencies with consultation, there were a number of

considerations that supported a finding that the Site Access Requirement was otherwise
reasonable:

“[252] We note that there are a range of considerations which otherwise weighed in
favour of a finding that the Site Access Requirement was reasonable, including that:

1. It is directed at ensuring the health and safety of workers of the Mine.

2. It has a logical and understandable basis.

3. It is a reasonably proportionate response to the risk created by COVID-19.

4. It was developed having regard to the circumstances at the Mine, including the fact
that Mine workers cannot work from home and come into contact with other workers
whilst at work.

5. The timing for its commencement was determined by reference to circumstances

pertaining to NSW and the local area at the relevant time.

6. It was only implemented after Mt Arthur spent a considerable amount of time

encouraging vaccination and setting up a vaccination hub for workers at the Mine.”

[10] The Commission suggested a process for further consultation that would enable a
decision about whether to adopt a site access requirement and if so, the terms of such a
requirement:

“[265] Mt Arthur’s failure to comply with its consultation obligations under the WHS
Act is the major consideration which led us to conclude that the Site Access Requirement
was not a lawful and reasonable direction. The consultation deficiencies we have
identified can be addressed by Mt Arthur consulting the Employees in relation to the
question of whether or not the Site Access Requirement should be imposed at the Mine.

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Any subsequent dispute will need to be determined having regard to the particular
circumstances at the time.

[266] The current New South Wales roadmap proposes the relaxation of various
COVID-19 related restrictions on the earlier of 15 December 2021 or when New South
Wales reaches 95% double vaccination. Provided Mt Arthur commences its consultation
with the Employees [about whether or not the Site Access Requirement should be
imposed at the Mine] in a timely fashion, we expect that Mt Arthur would be in a position
to make a decision about whether to impose the Site Access Requirement at the Mine
prior to 15 December 2021. The consultation with the Employees is directed at whether
a site access requirement should be adopted and if so the terms of such a requirement.
That is particularly so in circumstances where Mt Arthur has already engaged in
extensive consultation with the Employees in relation to the implementation of the Site
Access Requirement.”

[11] The Commission offered its assistance to the parties to facilitate discussions between
them regarding the consultation process to be undertaken.2

Jurisdiction

[12] The Applicants contend that there is no jurisdiction for the Commission to issue this
Statement. They submit that the proceedings in C2021/7023 are functus officio; the question
posed for arbitration has been determined, and there has been no further directions or
consequential orders issued by the Full Bench relating to the consultation process to be followed
at Mt Arthur following the determination of the question for arbitration.

[13] Mt Arthur contends that while the Commission answered the question for arbitration in
the negative, it made itself available to facilitate further discussions between the parties
regarding the consultation process to be undertaken. Mt Arthur accepted that invitation and the
Applicants have played an active part in consultation generally and in four conferences before
me on 8, 10, 13 and 15 December 2021 regarding that process. Those conferences were held in
the context of the existing dispute, as evidenced by the Notice of Listing dated 6 December
2021, and did not represent a “further, or consequential arbitration process” as alleged by the
Applicants.

[14] Mt Arthur also submits that the Commission has broad powers under sections 592 and
595 of the Fair Work Act 2009 (Cth) to conduct conferences and deal with disputes as it
considers appropriate. It can and does express opinions and make recommendations, and
routinely issues statements in relation to proceedings before it as a matter of course. The
exercise of those powers is conventional.

[15] I do not accept the Applicants’ submission that the Commission does not have
jurisdiction to issue this Statement. The Full Bench pointed out in the Decision, the deficiencies
in the consultation process undertaken by Mt Arthur and then offered the Commission’s
assistance to facilitate discussions concerning further consultation. That offer was made in
connection with the dispute which is the subject of these proceedings. Such disputes often

2 Decision at [269].

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evolve during proceedings in the Commission.3 This dispute has evolved. Mt Arthur accepted
the Commission’s offer of assistance and the Applicants participated, without objection, in four
conferences convened by the Commission. Even now, the Commission’s file in relation to this
matter has not been closed because issues may arise between the parties in the context of the
dispute. For example, the CFMMEU has raised a concern about whether any employees who
are stood down in connection with their decision not to be vaccinated and their subsequent non-
compliance with the Site Access Requirement, will be paid for the balance of their period of
being stood down. The Commission has offered its assistance to conciliate any such issue if it
cannot be resolved by the parties in the coming days. Further, I accept that the Commission has
broad powers to conduct conferences and deal with disputes as it considers appropriate. I have
used those powers to convene and conduct four conferences with the parties since the Decision
was published.

Reasons for issuing this Statement

[16] The Applicants have been given an opportunity to comment on a draft version of this
Statement (save for the sections dealing with jurisdiction and the reasons for issuing the
Statement). They have not made any specific suggestions in relation to the draft Statement,
other than to say the Commission does not have jurisdiction to issue it and to submit that there
is no public interest that requires consultation that takes place at one work site be the subject of
a Statement by the Commission.

[17] I am of the view that issuing this Statement is permissible and appropriate, and would
have significant utility, for the following reasons:

 The consultation process commenced by Mt Arthur on 6 December 2021 was a

significant endeavour undertaken with employees and their representatives, including
the Applicants. The Commission played a key role in that process.

 The process of consultation is significant for all of the parties, and for Mt Arthur’s
employees.

 There has been considerable interest in this matter from third parties, including the
interveners and the interests that they represent. It would serve the public interest if they
were to have access to the Statement, which sets out the steps that have been taken by
the parties to consult regarding the site access requirement in light of the Full Bench’s
Decision.

 The Statement is a factually accurate record of the context of the discussions facilitated
by the Commission, the steps that have been undertaken by Mt Arthur in the
consultation process, and statements about the resolution of that process that were
acknowledged and agreed to by the Applicants during the conferences.

 It is a matter of importance to the parties and Mt Arthur’s employees that there be a

record of this kind.

3 MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 at [19]-[23]

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How did the parties progress with consultation in light of the Decision?

[18] On 3 December 2021, Mt Arthur withdrew the direction to employees covered by the
EA to comply with the Site Access Requirement.

[19] On 3 December 2021, Mt Arthur requested the assistance of the Commission to facilitate
an urgent discussion regarding the process of consultation with its employees to determine
whether a site access requirement should be adopted for its employees and if so, the terms of
such a requirement.

[20] On 6 December 2021, Mt Arthur held toolbox talks with employees and confirmed that
further consultation would occur regarding a proposed site access requirement and encouraged
employees to participate in that consultation process.

[21] On 6 December 2021, Mt Arthur provided a proposed Consultation Plan to the

Applicants. The Consultation Plan addressed areas that the Commission considered needed to
be met in order for a decision to be made about whether a site access requirement should be
adopted at the Mine for Mt Arthur’s employees, and if so, the terms of such a requirement.

[22] On 6 December 2021, the Commission held a conference during which the Consultation
Plan was discussed.

[23] On 6 December 2021, Mt Arthur emailed all of its employees, enclosing a letter,
announcing the further consultation that would occur in relation to a proposed site access
requirement that would require employees to:

 have at least a single dose of an approved COVID-19 vaccine by 15 December 2021;

and

 be fully vaccinated by 31 January 2022,

(the Proposed Site Access Requirement).

[24] On 7 December 2021, Mt Arthur held further toolbox talks with employees and in
relation to the Proposed Site Access Requirement.

[25] On 7 December 2021, Mt Arthur sent an email to all employees enclosing the
consultation plan, the Decision and its summary of that decision, a FAQ document, and a safety
and health rationale summary document.

[26] On 7 December 2021, the “Mt Arthur Coal Consultation” hub went live, which was a
central hub on Mt Arthur’s intranet that contained all of the materials relevant to the Proposed
Site Access Requirement.

[27] On 7 December 2021, the Applicants confirmed that they agreed with the proposed
Consultation Plan and advised that they considered that the question of whether Mt Arthur
meets its obligations to consult will depend on the quality and genuineness of the consultation
itself.

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[28] A copy of the Consultation Plan is at Appendix A to this Statement.

[29] On 8 December 2021, Mt Arthur held further toolbox talks with employees and in
relation to the Proposed Site Access Requirement.

[30] On 8 December 2021, Mt Arthur and the Applicants met to discuss the Proposed Site
Access Requirement. The Applicants provided materials for the consideration of Mt Arthur.

[31] On 8 December 2021, Mt Arthur undertook consultation meetings with employees who
had been stood down due to their non-compliance with the Site Access Requirement.

[32] On 8 December 2021, Mt Arthur and the Applicants participated in a report back
conference before me in relation to the consultation that had so far occurred regarding the
Proposed Site Access Requirement.

[33] On 8 December 2021, Mt Arthur held further toolbox talks with employees and in
relation to the Proposed Site Access Requirement.

[34] On 9 December 2021, Mt Arthur held further toolbox talks with employees and in
relation to the Proposed Site Access Requirement.

[35] On 9 December 2021, Mt Arthur held consultation meetings with Department and Site
HSE Committees.

[36] On 9 December 2021, Mt Arthur provided the Applicants with a record of the meeting
that took place on 8 December 2021.

[37] On 10 December 2021, Mt Arthur held further toolbox talks with employees and in
relation to the Proposed Site Access Requirement.

[38] On 10 December 2021, Mt Arthur provided the Applicants a written response to the
specific matters raised by the Applicants for further consideration during their meeting on 8
December 2021.

[39] On 10 December 2021, Mt Arthur provided the attendees at the various Department and
Site HSE Committee meetings with records of those meetings containing responses to each of
the matters raised for further consideration during those meetings.

[40] On 10 December 2021, Mt Arthur and the Applicants participated in a second report
back conference before me in relation to the consultation that had so far occurred regarding the
Proposed Site Access Requirement.

[41] Between 10 and 12 December 2021, where appropriate, Mt Arthur provided individual
written responses to consultation contributions provided by individual employees in relation to
the Proposed Site Access Requirement.

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[42] On 12 December 2021, the Applicants confirmed that they did not require a further
meeting with Mt Arthur.

[43] On 12 December 2021 at 8:00pm, the further consultation process formally concluded
and Mt Arthur proceeded to make a decision on the proposal.

[44] On 13 December 2021, Mt Arthur confirmed the conclusion of the consultation process,
and the commencement of the decision making phase of the process, with the Applicants.

[45] On 13 December 2021, Mt Arthur and the Applicants participated in a third report back
conference before me in relation to the consultation that had so far occurred regarding the
Proposed Site Access Requirement.

[46] On 13 December 2021, Mt Arthur sent an email to all employees providing an update
on the status of the consultation and that Mt Arthur had now transitioned to the decision-making
phase of the process.

[47] On 14 December 2021, Mt Arthur, taking into account all material available to it, made
a decision that a site entry requirement should be adopted and that it should take the form of
the Proposed Site Access Requirement.

[48] On 14 December 2021, Mt Arthur announced to all employees that it had made the
decision to introduce the Proposed Site Access Requirement. Shortly thereafter, Mt Arthur
separately forwarded this announcement to all Health and Safety Committees and the
Applicants.

[49] On 14 December 2021, Mt Arthur issued letters to stood down employees regarding the
decision to introduce a site access requirement and the next steps for those employees, which
included providing the stood down employees with a period of seven days to consider whether
they would comply with the new site access requirement.

[50] On 15 December 2021, Mt Arthur and the Applicants participated in a final listed report
back conference before me in relation to the decision made by Mt Arthur regarding the
Proposed Site Access Requirement.

Observations

[51] The Decision provided a pathway for the parties to move forward through consultation
conducted through a variety of appropriate forums.

[52] Mt Arthur responded to the Decision by withdrawing the direction to employees to

comply with the Site Access Requirement and commencing a period of further consultation
with its employees in relation to the Proposed Site Access Requirement.

[53] The Consultation Plan was agreed following a discussion facilitated by the Commission.

[54] The Applicants maintained the view that whether Mt Arthur meets its obligations to
consult would depend on the quality and genuineness of the consultation itself.

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[55] The CFMMEU also maintained its position that it:

 encourages members to get vaccinated when they are able, subject to medical advice
from their doctor;

 does not support mandatory vaccination in mining and energy workplaces; and

 considers decisions about mandatory vaccination for any group of workers should be
made by health authorities and not by individual employers or employer associations.

[56] Notwithstanding the difference of views, through conferences in the Commission the
parties worked together to ensure that the further consultation progressed in accordance with
the Consultation Plan and were able to promptly identify and resolve any issues pertaining to
the process of consultation.

[57] The parties have actively participated in the consultation process and in conferences in
the Commission during the period of consultation.

[58] The Applicants requested a final meeting after the time fixed by the Consultation Plan
in the event there were matters raised by members which needed to be discussed. Mt Arthur
agreed to this on the basis that it would not result in the time for decision under the Consultation
Plan being extended. Mt Arthur considered that this was important in light of the NSW
Government’s proposal to relax COVID-19 related restrictions from 15 December 2021.

[59] As a result of the conferences held by the Commission, the parties reached the agreed
position that:

 the Consultation Plan had been followed and completed; and

 every employee and health and safety representative had received a reasonable
opportunity to make every contribution to consultation that they wished to make, and to
say everything that they wished to say, in a way that meant their contribution could be
considered in making a decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR736894>

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Appendix A

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