Fair Work Commission rules BHP vaccine mandate unlawful due to lack of consultation

The Fair Work Commission has ruled a Covid-19 vaccine mandate for all workers at BHP’s Mt Arthur coalmine was unlawful because the company did not consult adequately with its workers.

Approximately 50 mine workers were stood down without pay last month after they were told they would be required to have had at least one dose of a Covid-19 vaccine to enter the work site after 9 November, and that they would need to be fully vaccinated by 31 January next year.

The dispute between management of the Mt Arthur open cut coalmine in NSW’s Hunter Valley and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was escalated to a hearing by the full bench of the Fair Work Commission in November.

The commission’s president, Iain Ross, said in the ruling on Friday that the company’s vaccine mandate was not “a lawful or reasonable direction” mainly due to the mine management’s failure to consult with its employees about whether such a site access requirement was necessary.

The company’s management is obliged to consult with employees over site access requirements under the Work Health and Safety Act.

“We acknowledge that employers face a difficult task in managing the risks for their workers in such a dynamic environment [as the Covid-19 pandemic],” the ruling said.

Without a public health order or a specific provision in an employment contract or legislation, the commission found, the legal basis for a vaccine mandate as a condition of entry to work premises could only come from “the implied contractual term that employees obey the lawful and reasonable directions of their employer”.

BHP is the first Australian company to have its vaccine mandate overturned.

There were a range of reasons that were in favour of the mandate, the ruling said, including the health and safety basis for the order and the company’s investment in vaccination arrangements for its employees, including the establishment of a vaccination hub.

Had the company consulted with employees and been able to satisfy the commission that the mandate was “the outcome of a meaningful consultation process”, it would have had a strong case for a finding that it was a reasonable direction, the ruling said.

In his additional remarks, Ross also said that directions by employers to their staff that are for health and safety purposes are likely to be lawful, provided the direction was reasonable, “because it falls within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated”.

“The consultation deficiencies we have identified can be addressed by Mt Arthur consulting the employees in relation to the question of whether or not the site access requirement should be imposed at the mine. Any subsequent dispute will need to be determined having regard to the particular circumstances at the time,” the ruling said.

The mine’s management was expected to be in a position to make a decision about whether a vaccination mandate was necessary as a site access requirement by the time Covid restrictions ease in NSW on 15 December at the latest, per the current NSW state government roadmap.

The commission’s deputy president, Tony Saunders, had previously rejected an application from the CFMMEU for interim relief in which unvaccinated employees would be allowed on to the site to work while the matter was being heard, saying the risk of serious illness or death to others from contracting Covid-19 outweighed the inconvenience to those workers.

Mine management agreed not to otherwise discipline employees on the basis of their noncompliance with the vaccination order until the commission had ruled on the matter.

Approximately 1,000 people are employed at the mine under the company’s enterprise bargaining agreement, with another 1,000 working as contractors. All were subject to the mandate.

BHP said in a statement at the time of making the mandate that it was “a necessary health and safety control to help protect our people, their families and communities – including remote Indigenous communities – while continuing to safely run our operations”.

Peter Jordan, CFMEU Northern mining and NSW energy district president, said in a statement on Friday that BHP had been “arrogant” in making the mandate “without genuine workforce consultation or the backing of a public health order”.

“The decision is a win for the rights of workers to be genuinely consulted about matters affecting them under state workplace health and safety laws,” Jordan said.

“We will continue to work through the detail of this decision and represent the interests of our members – especially those who have been stood down without pay as a result of this unlawful direction.”

A spokesperson for BHP said in a statement on Friday: “We note the decision from the Fair Work Commission, which acknowledges the risks presented by COVID-19 and has outlined that further consultation should occur.

“The science is clear that vaccination saves lives. BHP supports widespread vaccination as the path forward for the Australian economy. We are assessing the implications of the decision and will work with the commission, our people and union representatives to ensure our workplace remains as safe as possible for our people, their families and the community.”

Vaccination will remain a condition of entry at the Mt Arthur coal mine while the company undertakes the necessary consultation.

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