Fair Work Commission agrees that ‘green tick’ was unworkable as vaccination evidence under workplace policy

In the recent case of CFMEU v BHP Coal Pty Ltd [2022] FWC 81, a senior member of the Fair Work Commission (Commission) has decided that employers can require workers to provide documentary evidence of their vaccination status without breaching the Privacy Act 1988 (Cth).

In doing so, the Commission determined that just because sighting the ‘green tick’ on the Check In Qld app is good enough for the Blackwater Pub, does not mean it is good enough for the Blackwater coal mine.

Consent to collecting sensitive information

Following on from last year’s landmark case of CFMEU v Mt Arthur Coal Pty Ltd,[1] this case centred around the issue of consent to the collection of vaccination status evidence under the employer’s mandatory vaccination ‘Site Access Requirements’ policy.

Official documentation showing vaccination status is considered ‘sensitive information’ under the Privacy Act 1988 (Cth) (Privacy Act). Such documentation includes Commonwealth Government COVID-19 Digital Certificates and Immunisation History Statements or medical certificates for exemptions. Under the ‘Australian Privacy Principle 3’, an employer must not collect sensitive information about an individual unless:

• the individual consents to the collection, and
• the information is reasonably necessary for, or directly related to, one of the employer’s functions or activities.[2]

The question for the Commission to determine in this matter was whether employees validly consented to BHP collecting their vaccination status.

Was valid consent given?

The Unions argued that since employees were threatened with losing their jobs, any consent they gave to the collection of their information was legally invalid because it was the result of coercion or duress.

Rejecting this argument, the Deputy President applied the reasoning of the Full Bench in the Mt Arthur Coal decision regarding consent in relation to bodily integrity. She held that while employees faced with the ‘economic and social pressure’ of termination had ‘a difficult decision to make’, this pressure ‘did not amount to economic duress of the kind that could vitiate consent.’[3]

Did the employer have to accept the ‘green tick’?

The Unions further argued that consent was invalid because no alternative was provided to the collection of sensitive information. They proposed that the employer should have given employees the option of showing the ‘green tick’ on the Check In Qld app, which would be sighted each time they entered the mine site but would not be recorded anywhere.

This argument was negated by the finding that, despite facing termination, employees still had the alternative of choosing not to provide the information. But the Deputy President also found that sighting the ‘green tick’ would be ‘unworkable’ since it was impractical given the nature of the mine site workplaces, susceptible to human error, and left no means of verifying compliance with the site access requirements.[4]

In view of the employer’s risk assessment and the ‘safety critical justification’ of the vaccination measures, the Deputy President said, the proposal would make the policy ineffective in managing the risks of COVID-19 and turn it into ‘an exercise in putting out bushfires’.[5] In essence this was a determination that the proposal would not be a reasonably practicable control measure.

The decision confirms that a mandatory vaccination workplace policy will not breach the Privacy Act in directing employees to provide documentary evidence of their vaccination status.

If you require assistance in respect of any of the matters raised above, please contact the NRA Legal team on 1800 572 679.

[1] CFMEU v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 (3 December 2021) (‘Mt Arthur Coal’).

[2] Privacy Act 1988 (Cth) (‘Privacy Act’) sch 1, s 3.3.

[3] CFMEU v BHP Coal Pty Ltd [2022] FWC 81 (21 January 2022), [171] (‘BHP Coal’).

[4] BHP Coal (n 3) [199]-[209].

[5] Ibid [207].