Australian Workplace Tribunal Rules Vaccine Mandate Unlawful

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The mandate affected workers at the Mt Arthur thermal coal mine in the Hunter Valley, New South Wales. So far, 50 workers have been stood down over the issue.

The full bench of Fair Work Commission ruled Dec. 3 that the direction clashed with the workers’ enterprise agreement, citing a legal technicality.

The case was led by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), who have opposed mandates.

The action was deemed a “seminal case” because of its potential ramifications across the country, which has seen several major businesses and organisations hand down vaccine mandates on staff—affecting hundreds of thousands of employees.

The CFMMEU argued that the mandate was unlawful because it did not comply with consultation requirements in their workplace agreement.

BHP in turn argued that staff feedback was sought when an email was sent out to employees.

Some workers gave evidence saying there were issues around accessing company emails. BHP health and safety officials admitted the word “consultation” was not used in the email, nor was the word “mandatory” present in the company’s formal announcement of the vaccine mandate.

On Oct. 6, BHP announced the mandate would require all workers to be vaccinated by Jan. 31, 2022, otherwise they would be denied access to the worksite.

“The science is clear that widespread vaccination saves lives. In line with government guidance, we recognise the path forward is through widespread vaccination in Australia,” said Edgar Basto, president of BHP Minerals Australia, in the statement.

“We know this will raise questions for some, and we will work closely with our workforce as we go through the process of implementing these controls at our workplaces.”

A CFMMEU spokesperson warned that the victory could be short-lived because there was room for further consultation—which could overcome the technicality identified by the FWC.

By Daniel Y. Teng

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