Mandatory Covid vaccinations: Challenge at Mt Arthur and legal state of play
A challenge to BHP’s mandatory vaccination policy is underway in NSW, but legal options vary from state to state due to public health orders.
Our Union is challenging BHP’s Covid vaccine mandate at its Mt Arthur coalmine in the Hunter Valley, lodging a dispute in the Fair Work Commission arguing it is not a lawful and reasonable direction.
Mt Arthur is set to be the first BHP mine affected by company’s mandatory vaccination policy, with everyone who works at or visits the site required to receive their first jab by November 10. The policy will affect all BHP sites by January 2022.
In a conciliation hearing on 28 October, Deputy President Saunders referred the matter to arbitration, likely to be heard by a full bench of the Commission. This hearing is yet to be scheduled but represents a good first step. If arbitration is not complete before November 10, the union may seek interim orders to prevent the mandatory vaccination policy being implemented at Mt Arthur.
Northern Mining and NSW Energy District President Peter Jordan said that BHP’s approach was heavy-handed and counterproductive, given there are no public health orders in NSW requiring mineworkers to be vaccinated.
“High rates of Covid vaccination among mineworkers would be better achieved through education, access and incentives rather than threatening people’s livelihoods,” he said.
“An open-cut coalmine is not the same as a hospital or aged care facility. We are calling on BHP to take a reasonable approach and work with employees and contractors to achieve high rates of vaccination while maintaining the full range of Covid safety measures on site.”
Our Queensland District is currently consulting with BHP over its Covid policy as a major workplace change and disputes may be lodged in the Fair Work Commission over the policy’s implementation at Queensland coal mines, depending on the outcome in NSW.
If BHP is successful in implementing its mandatory vaccination policy it’s considered likely other mining companies will follow suit.
General President Tony Maher wrote to BHP’s Head of Minerals Edgar Basto about the Union’s concerns in August, when BHP initially flagged it was looking at mandatory vaccination. Read the letter here.
Our Union’s position is that industry-based mandatory vaccination is a matter for government to determine through public health orders. (link to policy) There are no public health orders in NSW or Queensland requiring mineworkers to be mandatorily vaccinated.
In Western Australia, the Chief Health Officer has mandated vaccinations in the mining and resources sector based on the need to protect the remote and regional communities and to prevent industry closures. All mineworkers in WA must be fully vaccinated by 1 January 2022. The written Public Health orders have not yet been issued and the union will seek advice on the final orders when they are available.
In Victoria, the state government has issued orders requiring all ‘authorised workers’, which include coal mining and power station workers, to be fully vaccinated by the end of November in order to continue working.
Legal advice obtained by the Union regarding the Victorian health orders reaffirmed that the state government does have the legal authority to mandate Covid vaccinations for groups of workers through public health orders; and that employers are required to implement them. There have been no successful legal challenges to public health orders to date.
In all jurisdictions, members can be assured that union representatives will work hard to make sure jobs, rights and working conditions are protected to the fullest extent possible.
The Union continues to encourage members to get vaccinated to protect their own health and to seek qualified medical advice to address any concerns.