A surprise decision on a vaccine mandate at one of Australia’s biggest employers could have huge implications for others.
The decision to ban non-vaccinated workers from a NSW mine has been ruled illegal by the Fair Work Commission.
The decision does not necessarily pave the way for the repeal of all workplace vaccine mandates across the country.
But it does clear the way for individual orders to be challenged on a case-by-case basis.
In October, mining giant BHP announced that it would require all workers at its Mount Arthur coal mine to have at least one dose of the COVID-19 vaccine by mid-November and be fully vaccinated by January 31.
As a result, more than 30 workers at the site were grounded for being unable to provide proof of their vaccination status.
The CFMEU, which represents some of the 724 mine workers, took the matter to the Fair Work Commission.
The Sangh questioned whether the mandate was a reasonable condition for admission.
On Friday, a full bench of the FWC-ruled BHP did not take legal or reasonable action.
In its judgment, the full bench observed that the BHP failed to provide proper consultation with the activists before implementing the mandate.
“We feel that the most important factor against justifying the need for site access is the failure to conduct proper consultation with employees,” the decision said.
It noted that had there been consultation, the outcome of the hearing could have been different.
“If the defendant had consulted with the staff in accordance with their consulting obligations, the above considerations would have provided a strong case in favor of the conclusion that the site access requirement was an appropriate direction.”
CFMEU official Peter Jordan said the decision was a victory for the workers, and slammed the BHP for “arrogance” in implementing the mandate.
“BHP was arrogant in implementing its mandatory vaccination policy without actual workforce consultation or the support of a public health order,” Mr Jordan said.
“This decision is a victory for the rights of workers under state workplace health and safety laws to be truly consulted about matters affecting them.
“We will continue to work through the details of this decision and represent the interests of all of our workers – particularly those who have been left without pay as a result of this unlawful directive.”
The BHP said it was “assessing the implications of the decision”.
“The science is clear that vaccination saves lives,” a spokesman said.
“BHP supports widespread vaccination as the way forward for the Australian economy.
“We are assessing the impacts of the decision and will work with the Commission, our people and union representatives to ensure that our workplace remains as safe as possible for our people, their families and community.”