"The science is clear that vaccination saves lives. BHP supports widespread vaccination as the path forward for the Australian economy," a BHP spokesperson said.

"We are assessing the implications of the decision and will work with the commission, our people and union representatives to ensure our workplace remains as safe as possible for our people, their families and the community."

Despite the setback, the company is operating under the basis that the decision applies only to Mount Arthur. It says consultation was the issue, not the conditions of the policy themselves, and that its national policy on vaccinated entry to worksites remains in place.

A spokesperson said the company was still working on what would happen with the workers who have been stood down as unvaccinated.

BHP has confirmed its policy of vaccination as a condition of entry remains in place.

A FULL bench of the Fair Work Commission has found BHP's Mount Arthur mandatory COVID vaccination policy is neither lawful nor reasonable.

The case brought by the CFMMEU had been seen as a test case for Australian employers, with other companies including Qantas expressing interest in the outcome.

In a 64-page decision published late yesterday the commission found that BHP had not consulted the workforce in accordance with the Work Health and Safety Act and this outweighed six other considerations that "otherwise weighed in favour" of it being reasonable.

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In "finding a way forward" the commission said NSW proposed relaxing COVID restrictions once the state hit 95 per cent vaccination. At the same time, it said the union's position, that BHP should "wait and see if infection rates actually increase", was not "an appropriate approach".

BHP said this week that at least 35 of some 2000 workers had been stood down for refusing to be vaccinated. The number had originally been as high as 80 or more and began last month.

The union has applauded the decision.

A COVID-19 statement on its website says: "The Mining and Energy Union encourages members to get vaccinated when they are able, subject to medical advice from their doctor.

"We do not support mandatory vaccination in mining and energy workplaces; nor is it reasonably practicable to expect these workers, not on the front line of fighting COVID to be compulsorily required to be fully vaccinated.

"Decisions about mandatory vaccination for any group of workers are made by health authorities and not by individual employers or employer associations."

In the judgement, the commission says BHP argued it had consulted with employees in compliance with Section 47 of the WHS Act during three phases of the program that began with an "options phase" before August 31.

An assessment phase followed until October 7 with implementation from October 7 to November 10.

Its plan was for COVID vaccination to be a requirement of entry to all BHP workplaces in Australia.

The company said that during the assessment phase it set up a central e-mailbox for the use of all employees (Vaccine Mailbox), including those at the mine and invited their questions and comments.

It said it it received 480 inquiries including 20 from Mount Arthur.

It said correspondence was received from various unions including the CFMMEU, the ETU, the AMWU and the RBTU.

BHP said it continued to consult during the implementation phase but that this was on how the policy should be implemented ratther than "whether it should be introduced at all".

The CFMMEU said that despite the company's claims of consultation, the mandatory vaccination policy was presented to Mount Arthur as a fait accompli.

"The announcement on 7 October 2021 was not that BHP 'may', 'proposed to' or 'intended to' introduce the requirement," the union submitted.

"The announcement was that the requirement 'will be introduced'."

The commission said it was It is clear that BHP and Mt Arthur provided employees with a substantial amount of information about COVID-19 both prior to and during the assessment phase.

It said despite BHP's claims, there was no direct engagement with health and safety representatives during the assessment phase and that employees were not invited to contribute scientific, medical or safety data that might influence the company decision.

It said the things BHP did after October were "much more closely aligned with what would be expected during a consultation process".

"Employees were provided with an opportunity to meaningfully engage with the relevant issues and their feedback was sought and considered," the commission said.

"However, this was in relation to implementation and occurred after a definite decision had been made to implement the site access requirement.

The commission said Mount Arthur's failure to meaningfully consult with the employees denied them the opportunity to influence the outcome and "the possibility of a different outcome".

"We are not persuaded that further consultation could not possibly have produced a different result," the commission said.

READ THE FULL DECISION HERE

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