[LINK to full judgment]
[My highlighted PDF version is at bottom of page]
I have to say I am both impressed and dismayed by this critically important case heard before the full board of the Fair Work Commission, especially given the significant legal losses in Kassam v Hazzard, Larter v Hazzard, Can v NSW and Davis vs Sapphire Aged Care (leave a comment if you want links to any of those cases).
It is critically important because this is the first Australian case to my knowledge that has successfully overturned a work vaccination mandate, even if only temporarily. The grounds are curious, bordering on bizarre. Basically, Mt. Arthur Coal Mine near Muswellbrook, NSW, operated by BHP Billiton, failed to consider their obligations to consult employees in a meaningful way, as per both sections 47-49 of the Work Health and Safety Act 2011 (NSW) and the Industrial Agreement that BHP/Mt Arthur had with its workers, regarding both the decision-making process, and the implementation of the final decision to restrict mine access to vaccinated employees only.
The CFMEU challenged the decision on two grounds with four aspects: that the direction was unlawful and unreasonable. Unlawful, because it failed to follow the statuatory requirement to consult under the WHS Act ss.47-49 & 70; it failed to follow the Award requirement to consult; it failed to consider the Privacy Act 1988 (Commonwealth); and it failed to consider individual employee’s rights to bodily integrity. It was argued unreasonable on the same grounds, in addition to other grounds (you can read the other reasons in paragraphs 236 and following). Mt Arthur attempted to argue they followed an adequate consulting process, and other grounds.
Ultimately the panel found at 249 that
While the ultimate decision as to whether to introduce the Site Access Requirement was a decision for the [Mine/Employer], consultation is an important component in that decision-making process. It seems to us that the most telling factor against a finding that the Site Access Requirement was reasonable is the failure by the Respondent to reasonably consult with the Employees.CFMEU v Mt Arthur at 249.
So what did the Commissioners mean when they said “reasonably consult”? Quite simply at 250:
adequate consultation does not require that those consulted agree to the direction, or give them a power of veto, but in the context of this matter it should have provided the Employees with a reasonable opportunity to persuade the decision-maker in relation to the decision to introduce the Site Access Requirement.CFMEU v Mt Arthur at 250
During the process of “consultation”, BHP and Mt Arthur merely “went through the motions” of pretending that they were consulting with employees, but it was a trite and meaningless process to simply arrive at their predetermined conclusion: vaccines required for site access. The Full Board found their process deficient, and consequently found that of the many factors that need to be considered for “reasonableness” of a decision worthy of compliance in the workplace, the Employers obligation to undergo a meaningful consultation process must allow workers the possibility of persuading management to implement alternative policies. This never happened at BHP, and I suspect never happened at many other workplaces with vax mandates for site access. In this regard, this outcome has massive positive consequences for legal challenges to work mandates.
The negatives are as follows. Firstly, this was a case where an employer went out on a limb to enforce mandates for site access where no health orders exist to justify them. The Commission mention this at several places and I suspect that workplaces with mandates looming over them, like Education and Health Care, will sadly remain on the short shrift without legal remedy for an employer’s failure to consult about mandatory vax policy.
Secondly, the agreed-to list of assumptions not in dispute at 29 are just horrendous. Here they are:
1. COVID-19 involves a high burden of disease, greater than influenza. [FALSE – the burden of disease is equal to or lower than influenza]
2. Any infected person is at risk of developing serious illness from the virus, which may lead to death. [UNPROVEN – it has never been scientifically demonstrated that the SARS-CoV-2 virus 1. exists in humans, 2. is transferred by humans, 3. causes Coronavirus Disease (COVID-19) in humans or animals]
3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants. [FALSE – comparison with factual statistics from Alpha ‘wave’ required]
4. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant. [FALSE]
5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant. [FALSE]
6. All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19. [ABSOLUTELY FALSE]
7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person. [FALSE – ignores potential natural immunity]
8. While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection. [FALSE – ivermectin/HCQ + Vits C, D, zinc, etc, ignored]
9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19. [FALSE – as above]
10. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The Mine is clearly such a workplace. [FALSE]
There are 8 more to these the subsidiary propositions accepted at 60, adduced from Mt. Arthur’ retainer of a NSW Uni epidemiology professor, and you have the complete absurdity that is “COVID”:
1. Herd immunity will never be achieved. [FALSE – achieved in Sweden, Belarus and probably various places in Central Asia (Afghanistan), Africa (Tanzania, Madagascar) and USA (Florida, Texas, South Dakota)]
2. A vaccinated person can be infected with COVID-19. [TRUE – often as a consequence of vaccination]
3. A vaccinated person who is infected can efficiently transmit the virus. [TRUE?]
4. Vaccination shortens the period when a person is infectious, for which reason vaccination reduces the overall risk of infection. [FALSE – evidence?]
5. Notwithstanding that vaccination reduces the overall risk of infection, there is still a risk that an unvaccinated person will be infected. [There is always a “could” for any possible risk – it’s a tautology]
6. Once a vaccinated person is infected, there is a substantially reduced risk of serious illness or death. [UNVERIFIED?]
7. Once an unvaccinated person is infected, there is no such control against the risk of serious infection or death. Vaccination is the only protection against serious illness or death, the only control that protects against serious illness or death once a person is infected. [ABSOLUTELY FALSE – ivermectin, HCQ + Vits C, D, zinc, doxycycline etc]
8. Vaccination is the most effective control measure currently available. [FALSE]
Now we cannot expect CFMEU lawyers to care about disputing all these points as we might, but these are major flaws of evidence uncontested in the determination of this case that must come under massive scrutiny going forward.
In addition to the above, I will highlight four other flaws in the reasoning of the full panel.
1. They assume a universal, blanket risk assessment for the dangers of COVID-19 disease. This is not the case; COVID-19 is far more dangerous to specific kinds of individuals, namely: the elderly, those with multiple comorbities [examples – obesity, cancer, pneumonia, etc], and immunocompromised individuals. Children and healthy individuals represent a lower risk profile than the assumed “general” risk category assessed by the commissioners. I believe this observation plays out especially in my personal experience: I have never been ill with anything close to COVID-19 disease in more than 20 months of the pandemic – if COVID is so contagious, so easily spread, and so deadly, why hasn’t it affected me yet?
2. They assume a universal, blanket benefit for COVID-19 vaccines. Abundant evidence exists to suggest that these products may exhibit usefulness in the most at-risk population cohorts, such as the elderly and those with comorbidities, but are demonstrably harmful in others, such as children, young adults and healthy persons under 50, where vaccine side-effects clearly outweigh any benefits.
3. The assumption of the prima facie assessment at 85 that vaccination, by definition, is lawful (and thus they dispensed of all the arguments against the “unlawfulness” of the Site Restriction direction) only applies if the medicines in question may fairly be judged as “vaccines”. The only way that these products can be defined as “vaccines” is after the alteration of the definition of “vaccine” by the WHO; earlier definitions exclude products that do not confer immunity to the disease as well as prevention of transmission. Additionally, the use of genetic technologies to insert synthetic mRNA or DNA instructions into human cells in order to cause them to produce a protein intended to provoke an immune response means that these products are better characterised and understood as genetic therapeutics, not vaccines.
4. Lastly, abundant evidence exists to suggest that the ultimate product manufactured by human cells as a consequence of the injected mRNA or DNA technology, the COVID-19 Spike Protein, can easily be classified as a biological weapon of a type prohibited by multiple biological weapons treaties and the Crimes (Biological Weapons) Act 1976. Peter Dazsak’s NIH- and DOD-funded research into gain-of-function capabilities of coronaviruses, specifically the patented modification of coronavirus spike protein specifically intended to result in human infectivity constitutes a scathing refutation of the idea that these “vaccinations” can possibly be lawful.
In all, it is nice to have a positive outcome for relief of workplace mandates. I hope other industrial lawyers and unions will take up this challenge for their determined unvaccinated workers and members. But employers everywhere ought now be aware that lack of meaningful industrial consultation as a loophole remedy to mandates can be easily closed by simply doing as the Commission suggests at 266:
Provided Mt Arthur commences its consultation with the Employees [about whether or not the Site Access Requirement should be imposed at the Mine] in a timely fashion, we expect 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 consultation with the Employees is directed at whether a site access requirement should be adopted and if so the terms of such a requirement.CFMEU v Mt Arthur at 266
At some point, someone needs to run the biological weapons argument and destroy the illusion that governments and employers are requiring employees to be injected with a “vaccine”. They simply aren’t.