A multinational resources company cannot lawfully lock-out employees based on individual medical decisions, a judge ruled.
BHP has been ordered to stop banning unvaccinated workers from entering the Mount Arthur Coal Mine in Muswellbrook, 127km northwest of Newcastle.
The Fair Work Commission (FWC) criticised the employer for unlawfully, unreasonably, and inadequately consulting with employees before forcing them to take the jab.
“It seems to us that the most telling factor against a finding that the site access requirement was reasonable, is the failure by the respondent to reasonably consult with the employees,” Justice Iain Ross said in the FWC’s final decision. “The site access requirement was not a reasonable direction … [and] the determinative consideration has been that we are not satisfied that there was consultation in accordance with subsections 47 and 48 of the Work Health and Safety Act.”
“[Consultation would] have provided the employees with a reasonable opportunity to persuade the decision maker in relation to the decision to introduce the site access requirement,” he added.
The remarks came about two months after BHP made COVID-19 vaccination a condition of entry to mine sites and offices, starting from 31 January 2022. The mandate resulted in up to 50 workers being stood down without pay at the Mt Arthur mine.
The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) successfully argued the current enterprise bargaining agreement contains no legal, or reasonable requirement, for workers to be immunised as a condition of entry.
“[This ruling] is a win for the rights of workers to be genuinely consulted about matters affecting them,” CFMEU northern mining president Peter Jordan said according to the Australian Associated Press. “BHP was arrogant in imposing its mandatory vaccination policy without genuine workforce consultation, or the backing of a public health order.”
BHP acknowledged “further consultation should occur” but made no apologies for trying to save employee lives.
“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,” a company representative said according to the newswire agency.
“The science is clear that vaccination saves lives. BHP supports widespread vaccination as the path forward for the Australian economy.”