Unlawful and Unreasonable Vaccination Mandate - The FairWork Commission’s Recent Decision on BHP’s Vaccination Policy
October 29, 2026
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Last week, the Fair Work Commission Full Bench handed down the much anticipated decision of CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal.
BHP COVID-19 Vaccination Policy
Mt Arthur is an open cut coal mine in NSW owned by Hunter Valley Energy Coal Pty Ltd, which is a member of the BHP group of companies. The dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Hunter Valley Energy Coal arose when Mt Arthur announced that all workers at the Mine must be vaccinated against COVID-19 as a condition of site entry. Under the Site Access Requirement that was announced, workers would have had to have at least a single dose of an approved COIVD-19 vaccine by 10 November 2021, and be fully vaccinated by 31 January 2022.
The Fair Work Commission Decision
After expressing concerns about the lawfulness of the Site Access Requirement, the CFMMEU who represent 700 of the employers at the mine, made an application to the Fair Work Commission seeking a determination. The issue before the Full Bench was whether the Site Access Requirement was a “lawful and reasonable direction” in respect of employees at the Mt Arthur mine who are covered by the Mt Arthur Coal Enterprise Agreement 2019.
The Full Bench observed that a lawful direction is one which falls within the scope of an employee’s employment and there is no obligation to obey a direction which goes beyond the nature of the work the employee has been contracted to perform. Accordingly, employees are obliged to comply with employer directions which are lawful and reasonable. The Full Bench recognised that reasonableness is a question of fact having regard to all the circumstances and the nature of the particular employment.
To assess the lawfulness and reasonableness of the Site Access Requirement, the Full Bench considered whether Mt Arthur had an obligation under the current Work Health and Safety Act 2011 (WHS Act). Under s 47(1) of the WHS Act there is an obligation on employers to consult, so far as reasonably practicable, with “workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety”.
The Full Bench reached the conclusion that the Mt Arthur did not given the employees a “genuine opportunity to express their views and to raise work health and safety issues, or to contribute to the decision-making process relating to the decision to introduce the Site Access Requirement.” The Full Bench said that due to the lack of information relating to the reasons, rationale and data supporting the proposal, the engagement with employees in the assessment phase was not “consulting” as far as reasonably practicable to comply with s 47 of the WHS Act.
Reasons for the Decision
The Full Bench determined that the Site Access Requirement was a lawful direction because it fell within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated. However, when it came to the question of reasonableness the Full Bench determined that the Site Access Requirement was not a reasonable direction because Mt Arthur had not consulted with its employees as required by ss 47 and 48 of the WHS Act.
The Full Bench noted that had Mt Arthur consulted the employees in accordance with its consultation obligations under the WHS Act and Enterprise Agreement, such that the Commission could be satisfied that the decision to introduce the Site Access Requirements was the outcome of a meaningful consultation process, the Site Access Requirements would have been a reasonable direction.
What does this decision mean for other employers?
The decision provides some clarity as to the minimum expectations in relation to COVID-19 vaccination policies and directions introduced by employers. The Site Access Requirement would have been lawful and reasonable, if the consultation process had been engaged before implementation by Mt Arthur.
BHP currently has other vaccine mandates in place across Victoria and Western Australia which will remain in place. Provided that Mt Arthur commences its consultation with the employees in a timely fashion, the Full Bench expects that Mt Arthur would be in a position to make a decision about whether to impose the Site Access Requirement at the Mine prior to 15 December 2021.
The decision will have little impact where public health orders mandate vaccination.
Until then if you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au.
By Matilda Lloyd (Paralegal)
For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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