THE mining union has hit BHP and labour hire company Chandler MacLeod with a discrimination claim regarding the treatment of vulnerable workers at Muswellbrook's Mount Arthur coal mine during COVID-19.
The workers - older, Indigenous or with underlying health conditions - have gone 12 weeks without pay, according to the CFMEU Northern Mining and NSW Energy District claim to Fair Work Australia.
Vulnerable workers have been excluded from the workforce since April due to the risks of coronavirus, but have not been paid throughout the duration of that time.
Those who are 65 years of age or older, 50 or older for Aboriginal workers, and those with underlying health conditions were told that as part of a nation-wide policy they would be directed to stay home but continue to receive payment via a $6 million fund BHP set up for labour hire companies to access.
But, it is understood Chandler Macleod was only able to use the fund until June 30, and has since refused to pay their employees at Mount Arthur, essentially leaving them without pay or permission to return to work.
BHP said it acted on the advice of the World Health Organisation and the federal health department, and that it had been consistent with Australian Health Protection Principal Committee recommendations for managing vulnerable workers.
"Our high-risk workers controls were designed to put the health and safety of our people first during the COVID-19 pandemic and were reasonable and necessary to protect the health and safety of our people during the unprecedented global pandemic," a spokesperson said.
"At the onset of COVID-19, we made the decision as a company to implement work from home arrangements, or where that was not possible, remove from our workplaces employees and contractors that were at higher risk of serious illness should they contract the virus. We made the decision because above all else, our people's health and wellbeing comes first.
"BHP provided financial support to our labour hire contractors to assist them to support their high risk workers for four months between March and the end of June 2020. We encouraged our suppliers to support those impacted moving forward after 1 July.
"We are in the process of returning high risk workers to site in line with risk based assessments and medical guidance."
However, some casual workers have still gone 12 weeks without pay or any leave or entitlements to prop them up.
The union is arguing that the actions of both BHP and Chandler Macleod contravene discrimination provisions in the Fair Work Act because the workers had been excluded from the workplace and suffered loss due to due to their race, age and physical disability.
Chandler Macleod provided the following statement: "Chandler Macleod can confirm that there is a claim with Fair Work Australia about this matter; considering it is before the tribunal, it is not appropriate for Chandler Macleod to discuss specific details about the claim," said spokesperson and general manager Margo Shand.
"However, Chandler Macleod does wish to make a statement in relation to the subject generally.
"As an employment agency, Chandler Macleod provides our clients with a skilled workforce that operate onsite at our clients' locations. As such, we are required to follow the health and safety guidelines and directions at those client sites.
"During the COVID-19 pandemic a large volume of the Australian population experienced disrupted work which was disappointing and unfortunate. In this specific case the disruption was due to protecting the health and safety of the employees.
"Chandler Macleod is sorry for the disruption that occurred and took steps to minimise the impact but is pleased that all these employees are now back at work."