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The Mount Arthur coal mine. Image: BHP

BHP has had its vaccine mandate overturned by the Fair Work Commission (FWC) at the Mt Arthur coal mine in New South Wales, with a recommendation to consult the workforce before reconsidering.

On October 6, the major miner announced its decision to enforce an Australia-wide site access requirement to receive at least one dose of a COVID-19 vaccine by November 10 and to be fully vaccinated by the end of January.

BHP workplaces in New South Wales, such as Mount Arthur, were said to be introducing the controls sooner in response to local risk factors at the time, as the state endured a spike in COVID-19 cases and restrictions.

This decision followed suggestions from the company in September that a vaccine mandate was on the table, and BHP Minerals Australia president Edgar Basto said the company would undertake a sufficient consultation process with its workforce.

“We have an obligation to ensure our people are safe when they are at work, and to support the health of the regional communities where we operate. We respect individual choice and we will engage closely with our people as we move forward with this work,” he said.

But on December 3, a decision was made by the Federal Government’s Fair Work Commission that the site access requirement at Mount Arthur coal mine was not carried out in a reasonable manner.

“The Full Bench determined that, in all the circumstances and on balance, the Site Access Requirement was not a reasonable direction,” the FWC stated.

“The determinative consideration was that the Full Bench was not satisfied that the respondent had consulted the employees as required by ss.47 and 48 of the WHS Act (Work Health and Safety Act 2011).”

The FWC found that while mandating the vaccine as a condition of entry to mount Arthur was indeed lawful and reasonable, the manner in which BHP had imposed it was not.

Moving forward, the FWC recommended that Mount Arthur undertake a comprehensive consultation process to avoid this case reoccurring.

“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,” the FWC stated.

The FWC case came about after the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application to the FWC seeking clarification over the vaccine mandate.

More than 1700 people work at Mount Arthur coal mine for various entities, but the case against the mandate concerned only the 724 production and engineering employees who were employed under the Mount Arthur Coal Enterprise Agreement.