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BHP can’t enforce vaccine mandate: Fair Work Commission

Workers at NSW’s Mt Arthur BHP coal mine have won in the Fair Work Commission (FWC), which ruled on 3rd December that BHP can not enforce a vaccine mandate at the site until it undertakes genuine consultation with workers. This marks the first time a company has had its vaccine mandate overturned by the FWC.

Employees are required to follow any lawful and reasonable direction by their employer (for more information see Guardian #1979 “Explainer: Can employers mandate vaccinations?”). Employers have used this rule to justify company-specific vaccine mandates in states where there is no government mandate.

Given the circumstances, BHP’s mandate was clearly lawful. However, in the FWC’s opinion, BHP’s failure to consult with its workers over the mandate meant that while lawful, it was not a reasonable direction. The FWC directed BHP that the mandate could be made lawful and reasonable through implementing a meaningful consultation process with workers, stating:

“The consultation deficiencies we have identified 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.”

BHP states that vaccination is essential for workers at the Mt Arthur site to protect workers and their families, as well as vulnerable remote Indigenous communities in the area. However, the correctness of their position was not the point of the claim. Workers have a right to be genuinely consulted on issues affecting their working conditions. The BHP mandate seriously undermines this right.

Under the BHP mandate, employees would not be able to access the site to work unless they had had one dose of COVID vaccine by 9 November, with all employees expected to be fully vaccinated by the 31st of January 2022. Approximately fifty workers were stood down without pay in November when they failed to meet the deadline.

CFMEU Northern mining and NSW energy district president Peter Jordan described the ruling as “a win for the rights of workers to be genuinely consulted about matters affecting them under state workplace health and safety laws.” BHP will undertake the required consultation in the coming month. Meanwhile, vaccination continues to be a condition of entry to the site.

The Communist Party of Australia maintains its strong support for mass vaccination against COVID-19. Every person should get vaccinated if it is safe for them to do so. In many high-risk industries, including mining and construction, getting vaccinated is the safe and responsible thing to do.

However, vaccine mandates ought to be enforced by public health authorities and informed by science, not by employers’ whims without consultation with workers. In a statement on this issue earlier this year, the party central committee stated:

“The best and most effective outcomes [for overcoming COVID-19] should be mandated across the community and enforced through national and state safety regulators … The Communist Party of Australia strongly opposes the employer drive for compulsory vaccination as an industrial weapon. We condemn the attempt to distract from the need for vaccine choice and immediate vaccination rights for all with more choice of vaccines made available from the international market.”

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