What exactly is an 'adequate' consultation process?
Under Australian laws, employers must take reasonable steps to consult with their employees or their representatives before enforcing a new policy or making changes to an existing policy.
It’s an important part of ensuring that employees are given the opportunity to share their views and provide feedback and can facilitate a meaningful dialogue between the employer and employees.
In this case before the Fair Work Commission, a worker was dismissed after non-compliance with an employer’s vaccination policy, arguing that it did not have a “thorough and adequate” consultation process.
Background of the case
In September 2021, as a response to the COVID-19 pandemic, the employer introduced a policy which required certain employees (without medical exemption) to receive their jabs by certain dates.
The worker was employed as a constructor operative. The role required him to complete on-site work, and interact with employees, customers, and members of the public. The employer said early on that his role fell within the policy’s scope.
The worker did not comply with the employer’s direction and argued the policy was unlawful and unreasonable. He said the direction’s enforcement was “coercion,” adding that he was “not adequately consulted” about the policy.
He also argued the word “vaccine” refers to “a complete immunity from a disease,” so he said “it was impossible to comply” with the policy.
Meanwhile, the employer said it was lawful and the policy was “reasonable” given the nature of their work. It also said they had a thorough consultation process.
During the first week of September 2021, the employer started telling its staff and their unions about a proposed COVID-19 vaccination policy. The employees’ feedback was posted on the COVID-19 Yammer Group, email and Microsoft Teams messages. And the employer said that some changes were made to the policy from the feedback it received.
The process went on for weeks with extensions, and on 20 September 2021, the employer announced that the consultation period ended, and the policy would be introduced.
The employee was issued a copy of the policy on 11 October 2021. Later, he requested information about the risk assessment underlying the policy. He also questioned the efficacy of vaccinations against COVID-19.
Aside from arguing that the policy did not undergo “adequate consultation,” he also said that it was “internally inconsistent.”
“In some areas, the policy states that ‘it encourages all employees to be vaccinated,’ [while] in other areas, the policy uses the language ‘requiring employees to be vaccinated’,” worker said, saying it was “contradictory on this basis, and therefore cannot be lawful and reasonable.”
HRD previously reported on a decision that sided with an employer who terminated a worker who refused to comply with the state government’s COVID-19 vaccination mandate. In another dismissal dispute, a worker claimed he was unfairly dismissed when his employer refused to roster him for work. The employer asked the worker to provide proof of his COVID-19 vaccine, but he failed to show his vaccination card or any medical exemption evidence. The employer stopped offering him shifts after that.
Did the employer comply with the consultation process?
The Fair Work Commission (FWC) explained the requirements for a fair and adequate consultation process:
- Consultation must give employees an opportunity to be heard and express their views such that they may be taken into account.
- Consultation needs to be real, not merely formal or perfunctory or an afterthought.
- The right to be consulted is not a right of veto.
- Management has the right to make the final decision.
It said the employer’s approach to the development and consultation of the policy was compliant. It also that the worker was consulted and he was “not coerced.”
The FWC reminded employees that management can direct them to comply with their policies, especially if it’s a reasonable direction.
Thus, the commission said the worker was not unfairly dismissed.
