FWC Full Bench rules against BHP COVID-19 vaccine direction

A Fair Work Commission (FWC) Full Bench has ruled against a coronavirus (COVID-19) vaccine direction at BHP’s Mt Arthur open cut coalmine, which is approximately five kilometres south of Muswellbrook in the Hunter Valley in New South Wales, because the company failed to “reasonably consult” with their employees. On 7 October 2021, the Mt Arthur mine announced that all workers at the mine must be vaccinated against COVID-19 as a condition of site entry; the mine stipulated that all employees must have at least a single dose of an approved COVID-19 vaccine by 10 November 2021 and be fully vaccinated by 31 January 2022. Employees at the Mt Arthur mine were also directed to provide evidence of their compliance with the Site Access Requirement by those dates.

In response, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) brought the case to the FWC, questioning if the direction was reasonable. In its decision, the FWC Full Bench stated that BHP had not sufficiently consulted with workers over its announcement of deadlines for vaccinations. The Full Bench also determined that the Site Access Requirement was “not a lawful and reasonable direction” for Mt Arthur to give an employee.

The FWC Full Bench added that Mt Arthur’s failure to comply with its consultation obligations was the major consideration that led to the conclusion that the Site Access Requirement was not a lawful and reasonable direction. The decision noted that the consultation deficiencies 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. The FWC Full Bench also noted that any subsequent disputes will need to be determined with regard to the particular circumstances at the time.

The FWC Full Bench did find that there was a range of considerations that weighed in favour of the Site Access Requirement at the Mt Arthur mine, including that it was directed at ensuring the health and safety of the workers at the mine; it had a logical and understandable basis; it was a reasonably proportional response to the risk created by COVID-19; and that it was developed with regard to the circumstances at the mine, including the fact that mine workers cannot work from home and come into contact with other workers while at work. It was also noted by the FWC Full Bench that the timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time. The FWC Full Bench also acknowledged that the Site Access Requirement was only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the mine.

In response to the decision, President of the Northern Mining and NSW Energy District of CFMEU Mining & Energy Peter Jordan said that BHP has taken an arrogant and heavy-handed approach to imposing the vaccine direction. “We are pleased the full bench of the Fair Work Commission has determined that the site access requirement at Mt Arthur was not a lawful or reasonable direction,” Jordan said. “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. We will continue to work through the detail of this decision and represent the interests of all our members — especially those who have been stood down without pay as a result of this unlawful direction.”

Source: NSCA Foundation

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