Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA

In the case of Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA, the Fair Work Commission was asked to determine the validity of a Site Access Requirement (SAR) implemented by BHP Coal, which mandated that employees be vaccinated against COVID-19 and provide evidence of their vaccination status, including the type of vaccine and the date it was administered. The dispute arose as the Union contested the SAR on several grounds, including its compliance with the Privacy Act and the right to bodily integrity.

The primary legal issues before the Commission were whether the SAR was a lawful and reasonable direction, given the requirements of the Privacy Act, particularly Australian Privacy Principle 3.3, and whether the employees' consent to provide their vaccination status information could be considered valid if coerced or under duress due to the potential termination of their employment. Additionally, the Commission needed to decide if the information verifying vaccination status was reasonably necessary for BHP Coal's functions and activities, and whether the SAR violated the right to bodily integrity.

In its decision, the Commission found that the SAR was not unreasonable because it did not violate the right to bodily integrity. Regarding the Privacy Act, the Commission held that the SAR was not unlawful as it did not breach the Act. The requirement for employees to provide sensitive health information was considered reasonable given the context of a pandemic and the necessity to protect the health and safety of employees and the community. The Commission also determined that the employees' consent to provide their vaccination status was not vitiated by coercion or duress, as the SAR was lawful and the consequences of non-compliance were clearly communicated. Furthermore, the Commission concluded that the information verifying vaccination status was reasonably necessary for BHP Coal's functions and activities, particularly in maintaining a safe and healthy workplace during the pandemic.

The Commission ultimately ruled that the Site Access Requirement was lawful and reasonable, having regard to the Privacy Act and the right to bodily integrity, and dismissed the Union's application.