Mining unions have launched a new legal challenge to BHP’s vaccination mandate on grounds that it infringes workers’ rights to privacy, after the company caught miners faking proof that they had got the jab.
The Queensland branches of the Construction, Forestry, Maritime, Mining and Energy Union and other unions have taken BHP to the Fair Work Commission to deal with a dispute over employees refusing to hand over their COVID-19 vaccination details because of concerns the mining giant is collecting their sensitive information.
At least two workers from BHP have been caught faking their vaccination certificates, with four more suspected.
If workers don’t agree to hand over the information by January 31, even if they are vaccinated, they will be presumed unvaccinated and likely lose their jobs.
As of late December, up to 40 per cent of BHP’s 11,000 workforce in Queensland had uploaded their information.
The company says it needs all COVID-19 vaccination information, including type, dates and individual reference numbers, to ensure workers aren’t faking their certificates.
However, the CFMEU argues the Privacy Act only requires workers to show their vaccination certificates, not provide them for collection.
BHP has already confirmed that two workers gave it fraudulent vaccinationinformation, and suspects another four.
The giveaway for one sacked worker was that he recorded too short an interval between AstraZeneca jabs, the commission heard. Another certificate had irregular font and the arrangement of its information showed it had been pieced together.
But the CFMEU argued that if the company doubted authenticity, workers could provide other evidence, such as a statutory declaration from the person who administered the jab. Or, evidence from the worker’s wife if she was present at the jab.
“[BHP] takes a sledgehammer to a nut,” the union’s lawyer, Luke Tiley, told the commission.
“Not only am I presuming that you are a liar and a fraud, and requiring you to waive your right to withhold your sensitive information and give that to me, I’m also requiring you to give me all of it.”
BHP countered that the union’s proposal for workers’ vaccination status to be sighted was unreasonable.
“The impracticability of that rises to impossibility when one considers that not only would that involve physically covering every mode of ingress to the site … [but it also] involves arranging for and carrying out a forensic examination of every employee’s vaccination information as it is presented,” BHP counsel Ian Neil, SC, said.
The commission has reserved its decision, with less than two weeks to go before the deadline for a double dose.
The dispute follows the CFMEU successfully challenging BHP’s Mount Arthur vaccine mandate in NSW on the basis that it had not consulted unions enough first. However, BHP reintroduced the mandate after a period of consultation.
A BHP spokesman said it was requiring workers to either upload their immunisation history statement or COVID-19 digital certificate.
However, he insisted the company’s data storage was secure and the information only accessible to members of BHP’s health and medical teams.
“Subject to local laws such as public health directions, vaccination or immunisation certificates submitted by the workforce into the Vaccine Data Capture Portal, are disposed of once it has been reviewed by a qualified health, safety and environment professional and vaccination status recorded,” the spokesman said.
CFMEU Queensland mining and energy president Stephen Smyth said “the union had raised a number of concerns held by our members about the way BHP is implementing site access requirements in Queensland, including privacy issues around the collection of personal information”.
“Our broader concern is the decline of COVID control measures across the Queensland coal industry,” he said.
“Mining companies can’t just insist on vaccination and then drop the ball on all the other COVID control measures like hygiene, providing the required N95 masks and social distancing – especially with the highly contagious omicron variant