Ruling strikes down BHP’s vaccine mandate at Mt Arthur

BHP was criticised by the Fair Works Commission for its failure to properly consult workers as part of its Covid-19 vaccine mandate.

The Fair Work Commission (FWC) has ruled that the decision made by mining giant BHP for a Covid-19 vaccine mandate at its Mt Arthur coal mine in the New South Wales Hunter Valley was not “lawful and reasonable”.

The FWC ruling stated that BHP’s decision was unlawful because it didn’t consult its workers properly before BHP enforced the mandate. It has been suggested that the mandate might have been reasonable if BHP followed a proper consultation process.

BHP is the first Australian company to have its vaccine mandate overturned. However, the FWC also made clear that Mt Arthur’s owners could be in a position to impose a vaccine mandate later this month if it consulted its employees properly ahead of time.

According to the FWC, BHP failed to properly consult workers in a number of ways.

“In our view, the employees were not given a genuine opportunity to express their views and to raise work health or safety issues, or to contribute to the decision-making process relating to the decision to introduce the Site Access Requirement,” the FWC said.

“They were not provided with information relating to the reasons, rationale, and data supporting the proposal, nor were they given a copy of the risk assessment or informed of the analysis that informed that assessment.

“In effect, the employees were only asked to comment on the ultimate question: should the Site Access Requirement be imposed?”

The FWC found that “there was no real explanation provided by [Mt Arthur’s owners] as to why there was a markedly lower level of engagement during the assessment phase”.