The full bench of the Fair Work Commission has found a decision by mining giant BHP to make COVID-19 vaccinations at a Hunter Valley mine mandatory was not lawful or reasonable.
More than 30 workers at BHP Billiton's Mt Arthur coal mine were stood down after being unable to provide evidence of their vaccination status.
Lawyers for union officials fought against the mandate, arguing there was a lack of consultation.
Today the commission's full bench said the direction was not covered by the mine's enterprise agreement for workers.
The CFMEU, which spearheaded the court action, says the decision is a "win for the rights of workers" and slammed BHP as "arrogant" in the way it went about imposing the mandate.
The dispute had been deemed a '"seminal case" because of its potential ramifications for workplace vaccination rules.
But in its judgement, the commission said the outcome might have been different if BHP had handled things differently:
"Had the respondent consulted the employees in accordance with its consultation obligations – such that we could have been satisfied that the decision to introduce the site access requirement was the outcome of a meaningful consultation process – the above considerations would have provided a strong case in favour of a conclusion that the site access requirement was a reasonable direction."
'BHP was arrogant', union says
CFMEU Northern Mining and NSW Energy District president Peter Jordan said the company had acted without seeking feedback from its employees.
"BHP was arrogant in imposing its mandatory vaccination policy without genuine workforce consultation or the backing of a public health order," he said.
"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.
"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."
'Consultation' and 'mandatory' missing from documents
Before the decision today BHP's legal team told the commission that "the status quo" was "that health and safety controls must be complied with" and said it was was obliged to protect its workforce.
But at an earlier hearing the workers argued that the mandate was unlawful because it did not comply with consultation requirements in their employment agreement.
BHP rejected that claim and told the court it sought feedback from staff via company emails sent to employees.
But workers who gave evidence said there had been issues around accessing company emails.
BHP's health and safety representative was questioned in depth about consultation and acknowledged that prior to the mandate being announced the word "consultation" was not used.
The health and safety representative also agreed that in advice issued three days before the October 7 announcement company documents did not include the word "mandatory".
Source : https://www.msn.com/en-au/news/australia/bhps-covid-vaccine-mandate-at-nsw-mine-unlawful-fair-work-commission-finds/ar-AARpBB3559