Compulsory vaccination in the workplace: A major test case is imminent – Emploi et RH


Australia: Compulsory vaccination in the workplace: a major test case is imminent

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A dispute shaping up to be an important test case over employers’ right to order employees to be vaccinated against COVID-19 is due to be heard later this month by the Fair Work Commission.

The case, Union of Construction, Forestry, Marine, Mines and Energy (105N) and Mr. Matthew Howard v Mt Arthur Coal Pty Ltd T / A Mt Arthur Coal [2021] FWCFB 6039, is an arbitration under section 739 of the Fair Work Act. This provision allows the Commission to deal with certain labor disputes, including by arbitration (the outcome of which is binding on the parties).

The question to be arbitrated is:

“If the instruction in attachments 1 and 2 of the application filed by the CFMMEU in the context of the C2021 / 7023 procedure is a legal and reasonable instruction with regard to the employees of the Mt Arthur mine who are covered by Mt Arthur Coal 2019 corporate agreement? “

The direction that is the subject of the question is that all workers at the Mt Arthur mine must be vaccinated against COVID-19 as a condition of entry to the site, with workers being required to have received at least a single dose of a COVID. -19 approved. 19 by November 10, 2021 and be fully immunized by January 31, 2022.

The Commission has made it known that it considers this an important case by convening a plenary panel of five members to hear the case. This five-member bench includes Judge Ross’ President, Vice President Catanzariti, Vice President Saunders, Commissioner Matheson and Commissioner O’Neill.

The Commission also noted:

“Given the potential importance of this case, we propose to bring this request to the attention of leading union and employer bodies and the Minister, and to grant them authorization to intervene if they so wish. All union representatives are required to file and serve full written submissions and any evidence they wish to rely on in accordance with instructions 1 and 3 above. Any intervening employer is required to file and serve full written observations and any evidence it wishes to rely on in accordance with instruction 2 above. “

Arbitration of the dispute has been set for November 24, 2021. The Plenary Chamber said it expects to render its decision within 10 days of the hearing.

November 9, 2021 in an interlocutory judgment, Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mt Arthur Coal Pty Ltd T / A Mt Arthur Coal [2021] FWC 6309, Vice President Saunders refused to grant the following exemption:

“Until the decision of the full judiciary by arbitration of Dispute C2021 / 7023, it is ordered that Mt Arthur Coal Pty Ltd take no action to terminate, discipline or otherwise interfere with the employment of any production and production employee. engineering that does not show Mt Arthur Coal Pty Ltd proof of being vaccinated against COVID-19. “

Interestingly, while Vice President Saunders did not grant the interim measure (given the balance of convenience, a fundamental consideration in such cases), His Honor noted that there were serious issues to be decided. to find out whether the employer had complied with its consultation obligations and whether the condition for entering the site (requiring COVID-19 vaccination) is appropriate and formulated taking into account the specific circumstances of the mine and the employees who working there.

All employers grappling with the controversial issue of compulsory vaccination should keep an eye on the progress of this matter.

For more information, please contact:

Michael Byrnes, partner
Telephone: +61 2 9233 5544
Email: [email protected]

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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