What are reasonable and lawful directions?
In the absence of express terms in an employment contract or a statutory requirement (e.g. public health orders), implied into every employment contract is the duty that employees must follow lawful and reasonable directions issued by their employers.
This case usefully sets out what constitutes a reasonable and lawful direction. We set out below a summary of the legal principles noted by the FWCFB.
• A lawful direction is a direction that falls within the scope of the employee’s employment.
• Directions which endanger the employee’s life or health, or which the employee reasonably believes endanger his or her life or health are not lawful directions, unless the work is inherently dangerous. In that case, the employee has agreed to undertake the risk.
• The direction must not require the employee to do something that would be unlawful.
• Reasonableness of a direction is a question of fact having regard to ‘all of the circumstances’ including, the nature of the particular employment, the common practices which exist, consultation requirements and the general provisions of the industrial instrument governing the particular employment relationship.
• A policy will only be unreasonable if no reasonable employer could have adopted it. It will not be unreasonable merely because a member of the Commission considers that a better or alternative policy may have been more appropriate.
• It is not necessary to show that the direction is the preferable or most appropriate course of action or in accordance with best practice or in the best interests of the parties.
• A direction lacking an evidence or intelligible justification is not a reasonable direction that an employee must obey. However, this is not the only basis upon which unreasonableness can be established.
Consultation Requirements
When having regard to ‘all of the circumstances’ to make a finding about the reasonableness of the Direction, the FWCFB considered whether Mt Arthur had complied with any applicable consultation obligations.
In this case, as the Direction related to ‘work health and safety’, Mt Arthur had obligations under the Work Health and Safety Act 2011 (NSW) (WHS Act) to consult, so far as reasonably practicable, with workers who are, or are likely to be, directly affected by the Direction and with health and safety representatives.
Equivalent consultation obligations exist in work health safety laws in Western Australia.
There were also consultation requirements under the relevant industrial instrument – however it was not necessary in this case for the FWCFB to express a concluded view about Mt Arthur’s compliance with the industrial instrument.
The relevant facts and circumstances
The FWCFB then applied the relevant legal principles to the following facts:
• Mt Arthur issued the Direction on 7 October 2021.
• The Direction was issued to all employees and required all employees at the mine to be partially vaccinated against COVID-19 by 10 November 2021 and be fully vaccinated by 31 January 2021.
• The mine is an open cut coal mine, located about 5 kilometres south of Muswellbrook in the Hunter Valley in NSW.
• There were no public health orders at the time or other express terms that provided a legal basis for the Direction.
• NSW was experiencing a COVID-19 outbreak at the time.
• Employees were not given a genuine opportunity to express their views and to raise work health or safety issues, or to contribute to the decision-making process relating to the decision to introduce the
Direction.
• Employees were not provided with information relating to the reasons, rationale and data supporting the proposal, nor were they given a copy of a risk assessment or informed of the analysis that informed
that assessment.
• The employees were only asked whether the direction should be imposed.
• HSRs were not involved in any consultation in any meaningful way as required by the WHS Act, nor were health and safety meetings used for this purpose.
The Findings
The FWCFB ultimately found that:
• The Direction was prima facie a lawful direction because it fell within the scope of the employment and there is nothing unlawful about being vaccinated.
• The Direction was not, in all the circumstances and on balance, reasonable.
The determinative reason for this finding was the fact that Mt Arthur had not complied with its consultation obligations pursuant to the WHS Act.
Does this mean that directions generally to be vaccinated against COVID-19 are unreasonable?
No. it is important to read this decision in the context of the particular facts.
However, it is equally important that employers are complying with all requirements prior to the implementation of a new policy or a reasonable and lawful direction, including those under:
• A modern award or enterprise agreement;
• A contract of employment;
• Any pre-existing policy; and/or
• Any applicable laws such as work health and safety laws.
1 Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal
[2021] FWCFB 6059
