This is an AI Group podcast. In this podcast, we'll be discussing the most significant workplace relations issues of the month of November 2021. The full member's only report is available on our website at aigroup.com.au. It's in the news section under reports and policies.
On that page select workplace relations and you'll find this report. With me today, as usual to discuss the key aspects of this latest report is Stephen Smith. AI Group's head of national workplace relations policy. Hi Stephen.
Mark Taney. So we'll talk about three of the issues. There's more than that in the full report. But the three we'll focus on today are the case, the BHP case, religious freedom, religious discrimination and same job, same paper puzzle from the Labour Party nationally.
Okay. So the first case is a five member full bench of the Fair Work Commissions hearing a union challenge to a BHP requirement that its employees and not other coal mine are vaccinated. So what's the background of that story and a reason for our involvement in that soon? This is a very important case where the unions are challenging BHP's vaccination requirement on the Mount Arthur coal mine site in the Hunter Valley in New South Wales.
So the Commission has decided to schedule a test case if you like in the sense that there's a five member full bench looking at the issue. AI Group and a few other peak councils have been invited to intervene and the case has been heard on the 24th and the 25th of November. And as of today, the decision is still reserved, but it will set some important parameters around vaccination mandates and what perhaps employers can and can't do in this space. It'll certainly provide some guidance.
This case seems a little bit unusual in that it's not an employer say with a factory saying that if you want to work in this place, you need to be vaccinated. They're saying if you want to enter this place, you need to be vaccinated. Does that change any of the requirements that the FWA would outline about when you can and when you can't really order mandate, which sort of workplace is good? Well, as you've identified, this is really a direction that has been issued not only to employees, but to contractors and suppliers that people can't enter that workplace, in this case a coal mine without being vaccinated.
So it's not a direct mandate about vaccination. It's actually a site entry requirement. The case itself is only about BHP's employees on that site. So it doesn't deal with the issues of contractors, but it will set some important guidance more than likely on things like, well, what are the roles and duties and rights not only of employers, but employees under work health and safety law in this space?
What are the common rights and duties of employers and employees around these sorts of issues? There's some employers struggling because they, for example, see a hospital and they can understand a hospital being able to mandate their doctors and their nurses and stuff to get vaccinated because they're very close to other people and patients. Whereas in a mind, you may be well separated. So is there is there an argument?
Is that sort of argument that's being put against the mandate that it's not necessarily what is it reasonable and legal? Yeah, well, there are a number of key aspects to this case. One is the issues around work health and safety law and under work health and safety law, an employer has a duty to protect the work health and safety of its employees and others in the workplace. And to do that, they must assess risks and control risks and implement those controls.
And there's a concept about reasonable, practicality under work health and safety law. Now, the unions are arguing, well, there are other ways to control risks like rapid antigen testing and other mechanisms that BHP doesn't have to be able to do. BHP doesn't have to rely on vaccination. But BHP is argument supported by all the employer interests in the case, including our group is that no, an employer, yes, has to act reasonably, but is entitled to make a reasonable decision on what controls to implement to protect work health and safety.
And the other part of the case is around industrial law about what are the rights under employment laws to issue a lawful and reasonable direction to employees, in this case, about work health and safety matters. So let's assume that the Commission comes down on the side of employers. You mentioned that it's some people saying it's a test case. What would be the implications for the rest of the economy if BHP won in this instance?
Well, it will be a decision that only relates to BHP's Mount Arthur operation, because that's what the case is about. But given that the Commission has convened a five-member full bench, which is more than the usual three-member full bench and has actively invited people to pick councils to make submissions, it's likely that this will set some guidance about what sorts of things are coming to play in looking at what is a lawful and reasonable direction in the context of vaccination mandates and site entry requirements. The other very big bit of this case relates to consultation requirements. The unions are arguing that there wasn't sufficient consultation, even though BHP went through quite a lengthy consultation process.
So that will also be important in a broader context. Typically, how long is it likely to be before we hear an outcome from that case? When the hearings concluded on the 25th of November, the President of the Commission that's heading the full bench said that he understands the urgency of handing down this decision, so the decision is expected very quickly, most likely within the next several days. Okay, the second of the three issues we're talking about today, the Religious Discrimination Bill on 25 November, the Federal Government introduced its Religious Discrimination Bill 2021.
It's got political ramifications, but also ramifications of the workplace as well. So how did the bill itself in its final form look from an employer's perspective? Did they take on some of our concerns? Are there other groups concerns?
This has been a very long process, the development of this bill leading up to the introduction of the bill into parliament on 25 November. There were just two religious freedom, religious freedom initially, wasn't it? Yeah, well, the package was about religious freedoms, and then there was a religious discrimination bill as part of that and various other measures. But the earlier exposure drafts, AI group and a lot of others were very concerned about, and it got a bit mixed up in the issues surrounding Israel for now and the public debate about the rights to make statements a belief, because the earlier versions of the bill gave a positive point to people, including employees in a workplace, to make a statement of belief.
It had to be a genuine statement of belief. And the bill seriously constrained the ability of employers to take action against someone that might make a statement of belief that was inconsistent with the company's codes of conduct or it might have been quite offensive to certain groups and, you know, colloquially, those provisions became known as the FALAO clause. But very pleasingly, that concept has been taken out of the final version of the bill, and the bill now doesn't restrict employers in maintaining appropriate standards of conduct in the workplace. So it's a bill that outlaws discrimination on the basis of religion as is entirely appropriate, but it is a lot more workable than the earlier versions.
More workable, but there are still things in there that will be difficult for employers, are they? Well, we need to have a close look at this latest draft as part of the parliamentary inquiry that is coming up. But the thing that we were most concerned about in the bill has been removed. There are some other provisions around how this anti-discrimination law interacts with others at the federal and state level that need some very careful thought.
But, you know, after a lot of hard work, the government has decided that the earlier versions of this bill were not appropriate, which we weren't very hard to achieve. So that's not going to be referred to a parliamentary inquiry and further dot within February next year on the very few sitting days of the final sitting of this parliament and the election. So potentially, we won't see the side of the election, but it all depends on the parliamentary. Yes.
Okay. Now, the third item and final item today is the Australian Labor Party's Fair Work Amendment, same job, same pay bill. This was introduced from opposition into the federal parliament as a private members bill. It would require Labor firms to provide pay and conditions for employees that are at least as favorable as those paid by client businesses to their own employees.
So what's the view of that bill, Steve? This proposal has been floating around for quite a few years. Members might remember prior to the last federal election, Bill Shorten announced this idea of same job, same pay. And it was really just a broad proposal.
But now the opposition's introduced a detailed bill and it's got lots of problems. It's obviously aimed in the debate around Labor hire firms having to pay their own employees the same as the employees of the client. But the definition of Labor hire is extremely broad in the bill and will capture lots of contracting arrangements where there's a Labor component. So that's one very significant problem.
And this is not only about Labor rates, it's about conditions as well. There would need to be a matching of the conditions as well as the pay rates by the provider of Labor to another business. And so one of the tricky situations there is if you're perhaps giving things to your staff that you can give your staff like an airline giving travel to staff, how could a Labor hire company do that? Is that one of the big issues?
Yes, there are lots of examples like that. You know, if it's an airline, often airlines give their employees access to very cheap airfares, but how could a Labor hire provider match that without being enormously costly? You know, a major retailer may give its employees access to significant discounts on groceries or a fast food company might give its employees access to fast food for very reasonable prices. So there are a lot of things that a company is able to offer its own employees, the Labor hire provider or other contractor can't hope to match because they're not in the business of providing those products or services.
Okay, well that's a bill from opposition. So we'll need to wait to the outcome of the next federal election to see what that one goes. I think I might wrap it up there. Thanks a lot for that.
Stephen Smith from AI Group and our members only report is available at the AI Group website at AI Group.com.au, it's in the news section under reports and policies. That's all for now. Thanks a lot, Steve. See you next time.