Queensland site access requirement lawful and reasonable

In brief 2 min read

In a decision following the Mt Arthur Coal case,¹ the Fair Work Commission (the FWC) has decided that a vaccination site access requirement for BHP's coal mines in Queensland was a lawful and reasonable direction, having regard to privacy laws and the right to bodily integrity.²

Key takeaways

• This decision lends support to the ability of employers in high-risk industries to direct employees to be vaccinated against COVID-19 and disclose evidence of their vaccination status as a condition of entry to work sites.
• Privacy law concerns and the right to bodily integrity are not solely determinative of whether an employer's direction is lawful and reasonable.

Background

On 7 October 2021, BHP-owned-or-operated coal mines in Queensland introduced a new condition of entry for their work sites. By 31 January 2022, to enter a work site employees must have:

• been fully vaccinated against COVID-19; and
• provided evidence of their vaccination status, including the type of vaccination and the date received (the Site Access Requirement).

Employees who did not comply would be stood down on unpaid leave and asked to show cause as to why their employment should not be terminated. Ultimately, a recommendation was sought from the FWC on whether the Site Access Requirement was a lawful and reasonable direction, having regard to privacy laws and the right to bodily integrity.

The decision

In following the Full Bench decision of Mt Arthur Coal and distinguishing Lee,³ the FWC concluded that the Site Access Requirement was lawful and reasonable. It was recognised that the repercussions of an unvaccinated employee infected by COVID-19 'slipping through the net' could be catastrophic.

Although the existence of a right to bodily integrity is uncontroversial, the Site Access Requirement did not violate this right. The FWC accepted that the implications of non-compliance with the Site Access Requirement created social and economic pressures for affected employees, but found this should be weighed against other considerations, such as the risk to the health and safety of others at work and in the community.

The FWC also disagreed with the union's argument that any consent given by the affected employees for privacy law purposes was not voluntary, or was the result of coercion or duress. Employees had a choice to provide the vaccination information and, although it was difficult and pressured, that did not invalidate consent, nor did it alone make the direction to provide the information unreasonable.