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A major employer's vaccination direction has been ruled lawful but unreasonable, after it failed to properly consult with its workforce.

In October, BHP announced it was requiring all workers accessing its Mt Arthur coal mine site to have received their first COVID-19 vaccination by 10 November, and the second by January 2022.

The CFMMEU then lodged a dispute on behalf of about 700 workers, asking the Fair Work Commission to determine whether the direction was lawful and reasonable. (Due to the potential significance of the matter, the FWC also granted a number of unions and employer associations leave to intervene.)

The workers claimed that the direction was neither lawful nor reasonable because it was announced without consultation (as required by both the EA and WHS Act), among other arguments.

The FWC's five-member bench, led by President Justice Iain Ross, accepted the object and purpose of the direction was to protect the health and safety of workers at the site, and on that basis, it was prima facie lawful...