FWC: BHP's vaccine mandate unlawful due to lack of consultation

The decision could help future individual challenges to workplace vaccinations

FWC: BHP's vaccine mandate unlawful due to lack of consultation

The Fair Work Commission (FWC) has ruled against the vaccine mandate of mining giant BHP at a mine in New South Wales, stating that the company failed to "reasonably consult" with their employees.

"While the ultimate decision as to whether to introduce the Site Access Requirement was a decision for the Respondent, consultation is an important component in that decision-making process," the FWC said in its decision. "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.”

The verdict comes after the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) brought the case to the FWC, questioning if the mandate was reasonable. BHP's vaccine mandate states that workers at Mt. Arthur coal mine need to get their first dose of the COVID-19 vaccine by mid-November and be fully vaccinated by January 31. Those who fail to comply, and are unable to provide vaccination status, will be stood down. However, the FWC's bench agreed that BHP's mandate was unlawful due to a lack of consultation with workers.

"Had the Respondent consulted the employees in accordance with its consultation obligations the above considerations would have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction," they ruled.

Read more: BHP to open NSW's first workplace-based vaccine site

According to local reports, while the decision could not set a precedent to repeal all workplace vaccination mandates, the ruling could help individual challenges to compulsory vaccinations. CFMEU Northern Mining and NSW Energy District president Peter Jordan welcomed the decision, saying that it was a win for workers' rights.

"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 as quoted by ABC. "BHP was arrogant in imposing its mandatory vaccination policy without genuine workforce consultation or the backing of a public health order.”

The mining giant, however, reiterated in a statement their firm support for widespread vaccination, adding that it they’re "addressing the implications of the decision."

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