A decision to ban unvaccinated workers from a NSW mine has been ruled unlawful by the Fair Work Commission.
The decision does not necessarily pave the way to repeal all workplace vaccine mandates across the country.
But it does clear a path for individual orders to be challenged on a case-by-case basis.
In October, mining giant BHP announced it would require all workers at its Mt Arthur coal mine to have at least one dose of the Covid-19 vaccine by mid-November and be fully vaccinated by January 31.
As a result, more than 30 workers at the site were stood down after they were unable to provide evidence of their vaccination status.
The CFMEU, which represents some of the 724 mine workers, took the case to the Fair Work Commission.
The union questioned whether the mandate was a reasonable condition to entry.
On Friday, the full bench of the FWC ruled BHP did not act lawfully or reasonably.
In its judgment, the full bench said BHP failed to provided reasonable consultation with workers before imposing the mandate.
“It seems to us that the most telling factor against a finding that the site access requirement was reasonable is the failure to reasonably consult with the employees,” the judgement said.
It noted the outcome of the hearing may have been different if consultation had taken place.
“Had the respondent consulted the employees in accordance with its consultation obligations the above considerations would have provided a strong case in favour of a conclusion that the site access requirement was a reasonable direction.”
CFMEU official Peter Jordan said the decision was a win for workers, and slammed BHP for its “arrogance” in imposing the mandate.
“BHP was arrogant in imposing its mandatory vaccination policy without genuine workforce consultation or the backing of a public health order,” Mr Jordan said.
“The decision is a win for the rights of workers to be genuinely consulted about matters affecting them under state workplace health and safety laws.
“We will continue to work through the detail of this decision and represent the interests of all our workers – especially those who have been stood down without pay as a result of this unlawful direction.”
BHP said it was “assessing the implications of the decision”.
“The science is clear that vaccination saves lives,” a spokesperson said.
“BHP supports widespread vaccination as the path forward for the Australian economy.
“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.”
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