Union launches legal challenge to COVID-19 vaccine mandate at coal mine

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The coal miners’ union has gone to the national industrial commission in an attempt to force one of the country’s largest companies to withdraw its vaccination mandate for workers at a Hunter Valley coal mine.

It is the first time a mainstream trade union has publicly launched a legal challenge to a vaccine mandate during the coronavirus pandemic, following several failed challenges by individuals and an effort by some anti-vaccination groups to get unions to take a stronger line against jab mandates.

BHP has told workers at its huge Mt Arthur mine in the Hunter they will have to be vaccinated.Credit:Janie Barrett

The union, which is a division of the Construction, Forestry, Maritime, Mining and Energy Union, supports vaccination but is against BHP’s decision to require workers at its Mt Arthur coal mine to have their first jab by November 10 and a second by January 31 in the absence of a public health order.

“BHP’s approach at Mt Arthur is heavy-handed and counter-productive,” said the union’s district president, Peter Jordan. “High rates of COVID vaccination among mine workers would be better achieved through education, access and incentives rather than threatening people’s livelihoods.”

In documents lodged with the Fair Work Commission, which will decide the dispute, the union claims the mandate goes beyond what BHP can require of its workers because there are other ways of preventing COVID-19 transmission and the mandate has not been properly tailored to the mine’s conditions.

CFMMEU Mining and Energy Northern District president Peter Jordan argues BHP’s approach has been heavy-handed.Credit:James Brickood

It says its members are afraid they will lose their jobs if they don’t comply with the vaccination mandate.

However, in its communications with workers, the company has described how it conducted an extensive five-week review of scientific information and public health advice before settling on a mandate. It also consulted with workers and their union and opened vaccination clinics at its worksites.

Ultimately, BHP’s Australian minerals boss Edgar Basto, told staff in an email that coronavirus infections would spread among the unvaccinated as governments ease restrictions. A vaccination mandate would help protect the company’s staff and visitors as well as their families and communities.

“The science is clear that widespread vaccination saves lives,” Mr Basto wrote.

Under the company’s policies, staff with one of the very rare documented medical exemptions to coronavirus vaccines specified by the government’s advisers may be accommodated but those who choose not to be vaccinated face disciplinary measures up to dismissal.

According to the union’s documents, the Mt Arthur mandate alone covers about 2000 people who work at the site but the dispute’s implications are larger because other groups may try to seize on the union’s strategy.

Steve Knott, the chief executive of the Australian Resources and Energy Group, also known as AMMA, said many firms in the industry were mandating vaccines on the basis it was necessary to comply with health and safety laws given mines are often remote but close to local communities.

Other unions, such as the Australian Manufacturing Workers Union, have opposed jabs mandated by employers outside health orders but have not tried to wind back vaccine requirements in courts or tribunals.

So far, courts and tribunals have consistently dismissed challenges from staff who either said they were unfairly sacked for refusing vaccines or that those requirements should not exist in the first place. In many of those cases, there was a public health order in place.

BHP was contacted for comment.

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