BHP reimposes vaccine mandates in national test case

The industrial tribunal has effectively approved resource giant BHP’s consultation with workers at its massive Hunter Valley coal mine about mandating vaccines, removing the last obstacle for it to require jabs.

A commission statement on the dispute, which was seen as a national test case, creates a template for other employers to follow if they are looking to require their staff to be vaccinated without the protection of a public health order.

A full bench of the Fair Work Commission rejected BHP's last attempt to mandate vaccines at the Mt Arthur mine on December 3, ruling that there had not been the proper consultation required by health and safety laws.

BHP has again told staff at the mine that they must be vaccinated.Credit:Alex Ellinghausen

But in a statement issued over objections from the Construction, Forestry, Maritime, Mining and Energy Union late on Friday, commission deputy president Tony Saunders, found that problem had been fixed through extensive extra discussions over the last fortnight.

Both sides had agreed that "Every employee and health and safety representative had received a reasonable opportunity to make every contribution to consultation that they wished to make, and to say everything that they wished to say, in a way that meant their contribution could be considered in making a decision," Mr Saunders said.

BHP, which had withdrawn its direction to employees to stay out of the mine if they were unvaccinated on December 3, has now reinstated its mandate. Its policy required staff to have received one dose of a COVID-19 vaccine by November 10 and two by January 31 next year, resulting in dozens of miners who refused to comply being stood down.

“We welcome the statement from the Fair Work Commission that provides clarity around our vaccination policy,” a BHP spokesman said on Friday. “The Fair Work Commission recognised that vaccination is the most effective and efficient control available to combat the risks posed by COVID-19 and that employees can be directed to comply with a vaccination requirement as a condition of site entry.”

Mr Saunders’ statement does not mean that every employer is free to mandate jabs because work health and safety rules depend on each workplace’s circumstances, such as whether staff can work from home and the risk of COVID-19 in their area.

Yet the decision paves the way for other employers to follow BHP’s consultation plan, which was overseen by the commission and makes it less likely vaccination orders will be overturned for a lack of employee input.

BHP’s Mt Arthur mine is one of Australia’s biggest thermal coal mines.Credit:Janie Barrett

It included a week of daily discussions with employees, meetings with the miners' union, the publication of the company's health and safety rationale for mandating vaccines and genuine consideration by the company of all the material.

The CFMMEU, which represents coal miners, had argued that Mr Saunders should not issue his statement because the commission’s role had ended when it knocked back the vaccine mandate.

Mr Saunders disagreed, noting that there was a significant public interest in other parties knowing about the steps that had been taken in the improved consultation.

In the first decision, the commission found that while BHP had taken some steps to consult, it did not influence the largely predetermined outcome and rejected the mandate for that reason.

However, as Mr Saunders emphasised in its statement, it otherwise backed the mandate as a reasonable and proportionate way of protecting miners’ health from the severe risk of the coronavirus.

“Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19,” the commission said.

The CFMMEU’s mining and energy division was contacted for comment. It encourages members to be vaccinated if they are able to be but opposes mandates and believes they should only be made by public health officials.

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