Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal
[2021] FWCFB 6059
•3 DECEMBER 2021
| [2021] FWCFB 6059 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Application to deal with a dispute
Construction, Forestry, Maritime, Mining and Energy Union,
Mr Matthew Howard
v
Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal
(C2021/7023)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 3 DECEMBER 2021 |
Application for Commission to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement – Mt Arthur Coal Enterprise Agreement 2019 – Site Access Requirement – COVID-19 vaccination requirement – arbitration to determine dispute – whether direction is lawful and reasonable – consultation obligations under ss.47–49 of the Work Health and Safety Act 2011 (NSW) – failure to reasonably consult with employees – Site Access Requirement not a lawful and reasonable direction – Commission available to facilitate discussion re consultation process.
Chapters | Paragraph | |
1 | Introduction | [1] |
2 | The Proceedings | [18] |
3 | The Evidence | [29] |
4 | The Duty to Obey Lawful and Reasonable Directions | [64] |
4.1 The duty | [64] | |
4.2 Some general observations | [68] | |
5 | Is the Site Access Requirement a lawful and reasonable direction? | [82] |
5.1 The Submissions: general consideration | [82] | |
5.2 Mt Arthur’s consultation obligations | [98] | |
5.3 The Privacy Act | [202] | |
5.4 Bodily Integrity | [215] | |
5.5 Other relevant considerations | [225] | |
6 | Determination of the Dispute | [254] |
7 | Concluding Remarks | [256] |
1 Introduction
[1] This decision concerns a dispute at the Mt Arthur open cut coal mine (Mine) which is about 5 kilometres south of Muswellbrook in the Hunter Valley in New South Wales. Mt Arthur Coal Pty Ltd (Respondent or Mt Arthur) employs the employees who work at the Mine. Mt Arthur is a wholly owned subsidiary of Hunter Valley Energy Coal Pty Ltd, which operates the Mine. Mt Arthur and Hunter Valley Energy Coal Pty Ltd are members of the BHP group of companies (BHP).
[2] The Mt Arthur Coal Enterprise Agreement 2019 (Agreement), which was approved by the Fair Work Commission (Commission) under the relevant terms of the Fair Work Act 2009 (FW Act), applies to production and engineering employees who work at the Mine. Mt Arthur employs about 724 employees who work at the Mine and who are covered by the Agreement; it also employs about 256 employees who work at the Mine but are not covered by the Agreement. In addition to Mt Arthur employees who work at the Mine, there are about 1,000 other workers at the Mine who are employed or engaged by other entities. The dispute before us only concerns the 724 employees who work at the Mine, are employed by Mt Arthur and who are covered by the Agreement (Employees).
[3] Mt Arthur manages the Mine and controls who is permitted to enter, and the conditions on which they do so.1
[4] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) represents about 700 of the Employees. Mr Matthew John Howard, one of the Applicants, is the secretary of the Bayswater Lodge of the CFMMEU. The Bayswater Lodge is the name of the local group of members of the CFMMEU who are employed by Mt Arthur to work at the Mine.
[5] The dispute concerns an announcement by Mt Arthur on 7 October 2021, of a requirement or direction that all workers at the Mine must be vaccinated against COVID-19 as a condition of site entry (Site Access Requirement). The Site Access Requirement requires the Employees to:
(a) have at least a single dose of an approved COVID-19 vaccine by 10 November 2021, and
(b) be fully vaccinated by 31 January 2022.
[6] Mt Arthur has also directed that the Employees provide it with evidence of their compliance with the Site Access Requirement by those dates. 2
[7] The Employees were informed that if they attend the Mine after midnight on 9 November 2021 they will not be permitted access to the Mine unless they have provided Mt Arthur with evidence that they have had at least a single dose of an approved COVID-19 vaccine.
[8] The CFMMEU and Mr Howard (Applicants) have made an application under s.739 of the FW Act seeking that the Commission deal with the dispute under the dispute resolution procedure in the Agreement (Application).
[9] The dispute resolution procedure in the Agreement is located in clauses 22.1–22.3. Clause 22.2(e) provides that, ‘as a last resort’, a dispute may be referred to the ‘appropriate industrial authority for conciliation and if the matter remains unresolved arbitration’.
[10] It is uncontentious that the Commission is the ‘appropriate industrial authority’ referred to in clause 22.2(e); that conciliation has not resolved the dispute; and that the Commission has jurisdiction to determine the dispute.
[11] The Applicants proposed, and the Respondent agreed that, the following question be arbitrated by the Commission:
‘Whether the direction as set out in attachments 1 and 2 to the application filed by the CFMMEU in proceedings C2021/7023 is a lawful and reasonable direction in respect to employees at the Mt Arthur mine who are covered by the Mt Arthur Coal Enterprise Agreement 2019.’
[12] Accordingly we have proceeded to arbitrate that question.
[13] On 2 November 2021, the Applicants applied to the Commission for interim relief in the following terms:
‘Until the determination of the Full Bench by arbitration of dispute C2021/7023, it is ordered that Mt Arthur Coal Pty Ltd take no steps to dismiss, discipline or otherwise prejudice the employment of any production and engineering employees who fail to present to Mt Arthur Coal Pty Ltd evidence of being vaccinated against COVID-19.’
[14] Although not expressly stated, the Applicants sought to permit unvaccinated Employees from working at the Mine without satisfying the Site Access Requirement, until the Full Bench delivered its decision.
[15] Mt Arthur gave undertakings in the following terms to the Commission in support of its opposition to the application for interim relief:
• In the event that an employee to whom the Agreement 2019 applies (Employee) refuses to comply with the requirement that they have at least a single dose of an approved COVID-19 vaccine by 10 November 2021 (Site Access Requirement), Mt Arthur will not implement the outcome of any disciplinary process associated with the Employee’s refusal to comply with the Site Access Requirement until:
(a) the decision of the Full Bench in this matter is delivered; and
(b) the relevant Employee who is subject to the disciplinary process has had an opportunity to consider their position in light of the decision of the Full Bench.
• If the outcome of the present dispute, whether determined by the Full Bench or, if an application is made for judicial review of the decision of the Full Bench, the court to which the application for judicial review is made, is that the Site Access Requirement was not a lawful and reasonable direction for Mt Arthur to give an Employee, then Mt Arthur will, in respect of each Employee who has refused to comply with the Site Access Requirement and not worked for Mt Arthur in the period between 10 November 2021 and the date on which the Full Bench delivers its decision in this matter (Interim Period), compensate the Employee for any unpaid wages that the Employee would have been paid if the Site Access Requirement had not been imposed on them and they worked for Mt Arthur in their usual position during the Interim Period. For the avoidance of doubt, this obligation to compensate an Employee for lost wages does not apply to any part of the Interim Period during which the Employee was paid annual leave or long service leave.’
[16] The application for interim relief was heard by Deputy President Saunders on 9 November 2021. The Deputy President issued a decision dismissing the application for interim relief on the same day.3
[17] We are conscious of the need to determine the dispute quickly. For that reason, while we have taken all submissions into account we have not canvassed a number of matters raised in the submissions, as it was not necessary to do so in order to determine the dispute.
2 The Proceedings
[18] On 1 November 2021, we issued a Statement 4 which set out directions for the filing of submissions and evidence and noted that given the potential significance of this matter we proposed to draw the Application to the attention of peak union and employer bodies and the Minister, and to grant them leave to intervene if they wished to do so.
[19] The following unions and employer bodies were granted leave to intervene:
• The Australian Manufacturing Workers’ Union (AMWU)
• The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)
• The Australian Council of Trade Unions (ACTU)
• Australian Industry Group (Ai Group), and
• The Australian Chamber of Commerce and Industry (ACCI).
[20] The directions were amended on 9 November 2021. Initial submissions were received from the following parties:
• the Applicants (9 November 2021)
• AMWU and CEPU (Union Interveners) (9 November 2021)
• ACTU (11 November 2021)
• Ai Group (16 November 2021)
• ACCI (16 November 2021), and
• Mt Arthur (16 November 2021).
[21] Submissions in reply, and submissions responding to questions posed by the Full Bench in the Background Paper were received from the following parties:
• Applicants (reply submissions 23 November 2021; submissions responding to Background Paper 23 November 2021)
• AMWU and CEPU (23 November 2021)
• ACTU (23 November 2021)
• Ai Group (23 November 2021)
• ACCI (supplementary submissions 19 November 2021; further supplementary submissions 23 November 2021), and
• Mt Arthur (reply submissions 23 November 2021; submissions responding to Background Paper 23 November 2021).
[22] The Applicants filed witness statements by:
• Applicant Witness 1 (A1) 5 (Production Operator)
• Matthew Howard 6 (Production Operator), and
• Peter Colley 7 (National Research Director of the Mining and Energy Division).
[23] The Union Interveners filed a witness statement by Samantha Angela Boardman. 8
[24] The Respondent filed witness statements by:
• Respondent Witness 1 (R1) 9 with annexures (Vice President of HSE Minerals Australia for BHP)
• Respondent Witness 2 (R2) 10 (Principal Employee Relations within the Minerals Australia Employee Relations team)
• Respondent Witness 3 (R3) 11 (Principal Operations Performance, Mt Arthur)
• Respondent Witness 4 (R4) 12 (General Manager, Mt Arthur Coal)
• Respondent Witness 5 (R5) 13 (registered specialist in occupational and environmental medicine engaged by BHP Group Limited as a full-time consultant)
• Respondent Witness 6 (R6) 14 (Mining Engineering Manager, Mt Arthur), and
• Professor Marylouise McLaws 15 (Professor of Epidemiology, Hospital Infection and Infectious Diseases Control, University of New South Wales (UNSW)).
[25] The Respondent also filed a:
• Guide to Medical Evidence in support of its written submissions dated 16 November 2021, and
• Note as to the Admissibility of the evidence of Witness R5 and Professor McLaws dated 15 November 2021.
[26] A Background Paper prepared by Commission staff was provided to the parties. The Background Paper included a summary of the submissions filed up to 19 November 2021, and a consultation timeline prepared on the basis of the Applicants’ and Respondent’s evidence and submissions addressing the duty to consult in the Work Health and Safety Act 2011 (NSW) (WHS Act). Parties were invited to comment on any inaccuracies in the submissions summary or the Timeline. We have taken the comments received into account.
[27] We are unable to publish the Background Paper at this point in time as to do so would be inconsistent with the terms of the Confidentiality Order made in these proceedings. In accordance with that Order the names of certain individuals have been anonymised in this decision.
[28] We begin by dealing with some evidentiary matters before considering an employee’s obligation to comply with a direction by their employer.
3 The Evidence
[29] There are a number of general factual propositions which are uncontentious and which we accept have been established on the evidence before us: 16
1. COVID-19 involves a high burden of disease, greater than influenza.
2. Any infected person is at risk of developing serious illness from the virus, which may lead to death.
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.
4. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant.
5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.
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.
7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.
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.
9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.
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.17
[30] The Applicants challenged the admissibility of the evidence of Professor McLaws and aspects of the evidence of Witness R5. It is convenient to deal first with the challenge to Witness R5’s evidence.
[31] In reply, the Respondent submits that the Applicants’ contention that the evidence of Witness R5 is inadmissible because he is not independent ‘seems [to be] an invocation of the bias rule’. 18 It does not dispute that Witness R5 is engaged by it or that he was involved in giving advice that led to the imposition of the Site Access Requirement, but submits that: 19
• The Commission is not bound by the bias rule, which is a rule of evidence, but in any event, the possibility that expert evidence may be tainted by bias goes to the weight the evidence should be given, not its admissibility.
• Relevant considerations in deciding whether to admit and rely on the evidence are that the evidence is unchallenged and is supported by the unchallenged evidence of Professor McLaws and is consonant with orthodox scientific and medical consensus.
• Witness R5’s evidence is substantially about the fact and content of the advice that he contributed to the decision to introduce the Site Access Requirement, which is not strictly opinion evidence and therefore outside the scope of the bias rule.
• Witness R5’s opinions were not subject to challenge in cross-examination. 20
[32] We begin with the last point set out above. The argument advanced by the Respondent invokes the rule in Browne v Dunn 21which was described in MWJ v The Queen22in the following way:
‘The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit.’ 23
[33] In their Outline of Submissions in Reply the Applicants submit (at [27]) ‘the Commission should not accept… that the views of Witness R5 in his statement as expert opinions because he is employed by BHP and therefore is not impartial’. The Applicants’ Outline of Submissions in Reply was filed before the Respondent’s evidentiary case closed. In our view the requisite notice was given and hence the issue of fairness does not arise.
[34] Section 591 of the FW Act provides that the Commission is not bound by the rules of evidence and procedure and, pursuant to s.590, the Commission ‘may inform itself in relation to any matter before it in such manner as it considers appropriate’. Further, s.577(a) provides that the Commission must perform its functions and exercise its powers in a manner that ‘is fair and just’.
[35] While the Commission is not bound by the rules of evidence, those rules, including the rules relating to expert evidence, are not irrelevant 24 and they provide general guidance as to the manner in which the Commission chooses to inform itself.25 Further, it is uncontroversial that we are not bound to accept expert evidence even if there is no contrary expert evidence.26
[36] The Applicants submit that Witness R5 is not impartial, 27 and that he was an actor integral in the advice given to Mr Basto to introduce the Site Access Requirement. The Applicants contend that the circumstances here are analogous to those in McMartin v Newcastle Wallsend Coal Company Pty Ltd (McMartin).28
[37] While there is some divergence in the authorities, we think a fair summary of the basis on which expert evidence is admitted at common law is that: 29
• the expert has specialist knowledge or expertise
• the evidence given is within the expert’s field of specialist knowledge or expertise
• the evidence given is something about which the tribunal of fact needs assistance from a third party, as opposed to relying upon its general knowledge and common sense
• the expert’s contribution should not have the effect of supplanting the function of the tribunal deciding the issue before it, and
• the admissibility of the evidence depends upon proof of the factual basis of the opinion.
[38] The Evidence Act 1995 (Cth) (Evidence Act)provides that opinion evidence tendered to prove the existence of a fact is not admissible, 30 although there are exceptions.31 Section 79 provides that a person’s opinion evidence is admissible if the person has specialised knowledge (based on their training, study or experience), and their opinion is wholly or substantially based on that knowledge.
[39] The Evidence Act provides other grounds for excluding evidence, including a general discretion under s.135 to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
[40] The Applicants submit that we should follow the approach in McMartin and exclude the evidence of Witness R5. In our view the circumstances in McMartin are distinguishable from the matter before us.
[41] McMartin concerned the admissibility of an expert witness’s statements in a criminal prosecution for contraventions of the Occupational Health and Safety Act 1983 (NSW) following the Gretley Colliery disaster. The expert witness gave evidence and was cross-examined during a voir dire. He was an employee of the Department of Mineral Resources (DMR) and had made recommendations in relation to the granting of a mining-related ‘s.138 application’ by the defendants. His evidence was that the DMR’s failure to effectively review and consider the s.138 application was a secondary but substantial cause of the disaster. Although the DMR was not a defendant, Staunton J observed that she would be required to consider the role of the DMR and its officers in determining the culpability of the defendants. Her Honour observed that to be admissible, the witness’ evidence had to pass the tests in both ss 79 and 135 of the Evidence Act, and alsos.137, which provides that in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 32 Her Honour found that the expert’s evidence was ‘tainted by real perceptions both as to partiality and advocacy of his own and the DMR’s cause’,33 concluding at [80]:
‘Even if Mr Anderson’s evidence was otherwise strictly admissible, taking into account the background and contextual circumstances in which his opinions are based, I am of the view that there is a real danger of unfair prejudice to the defendants that outweighs its likely probative value. Accordingly, I would exclude Mr Anderson’s statements under s137 of the Evidence Act.’ [Emphasis added]
[42] The circumstances in the matter before us are quite different. In particular, even if the Evidence Act did apply to the Commission, s.137 only applies to criminal proceedings and hence has no application in the present context.
[43] There is no rule of law that an expert’s opinion evidence is automatically inadmissible because they are an employee of a party or otherwise have an interest in the outcome of a case. In our view, such matters go to the weight to be given to the expert’s evidence, as May LJ observed in Field v Leeds City Council:
‘…there is no overriding objection to a properly qualified person giving opinion evidence because he is employed by one of the parties. The fact of his employment may affect its weight but that is another matter.’ 34
[44] A similar view was expressed by Ormiston J in FGT Custodians Pty Ltd v Fagenblat:
‘In my opinion, to the extent that it is desirable that expert witnesses should be under a duty to assist the Court, that has not been held and should not be held as disqualifying, in itself, an “interested” witness from being competent to give expert evidence.’ 35
[45] We are not persuaded that the evidence of Witness R5 is inadmissible on grounds of impartiality, but we accept that Witness R5’s relationship with the Respondent is relevant to the weight we give to his opinion.
[46] As to the evidence of Professor McLaws, the Applicants submit that the Professor was only asked by the Respondent’s solicitors to give evidence of the reasonableness of their decision and that instruction invited a lack of impartiality, 36 and, further, the Respondent’s solicitors did not explain the requirement for opinions of experts to set out the reasons, assumptions and material facts on which they are based.
[47] The Respondent submits that the Applicants’ contention that the evidence of Professor McLaws is inadmissible focuses on the basis rule. It submits that:
• the Commission is not bound by the basis rule, having regard to ss 590(1) and 591 of the FW Act, ands.79 of the Evidence Act does not incorporate the common law basis rule
• Professor McLaws’ statement meets thes.79 requirement that evidence is presented so that it is possible for the Commission to determine the opinions based on her specialist knowledge
• relevant considerations in deciding whether to be informed by the evidence are that the evidence is unchallenged and is supported by the unchallenged evidence of Witness R5, and is consonant with orthodox scientific and medical consensus
• the Professor is a Professor of Epidemiology, Healthcare, Infection and Infectious Diseases Control at the University of New South Wales, whose extensive experience and qualifications are set out in her statement, and who has read and agreed to be bound by the Expert Witness Code of Conduct, and
• the Professor’s opinions about the nature of the COVID-19 virus and its transmissibility and morbidity are directly relevant to the question of the nature and extent to which vaccination might be a practicable health and safety control.
[48] The instructions given to Professor McLaws are set out in a letter dated 8 November 2021 37 which, under the heading ‘Instructions for expert report’ states:
‘You are being engaged to provide confidential and privileged expert services for the purpose described above in connection with the Proceedings.
Your retainer will involve you providing an expert witness statement, which will be prepared following conferences with HSF and Counsel. Your retainer also involves you appearing at the hearing of the Proceedings to give evidence if required. Your statement will provide evidence in relation to the risks of COVID-19 infection and transmission, the effectiveness of the COVID-19 vaccine as a control to reduce those risks and the reasonableness of BHP’s decision to implement the Site Access Requirement at the Mt Arthur Mine in light of those risks and controls.’ 38
[49] The point advanced by the Applicants is that the instruction to ‘provide evidence in relation to … the reasonableness of BHP’s decision to implement the Site Access Requirement at the Mt Arthur Mine’ taints Professor McLaws’ evidence.
[50] As can be seen from the terms of the engagement letter, Professor McLaws’ ‘expert witness statement’ was not confined to the ‘reasonableness of BHP’s decision to implement the Site Access Requirement at the Mt Arthur Mine’; it was also to provide evidence in relation to:
• the risks of COVID-19 infection and transmission; and
• the effectiveness of the COVID-19 vaccine as a control to reduce those risks.
[51] In the course of oral argument, counsel for the Applicants raised no problem with Professor McLaws’ evidence in respect of these two areas because the Professor’s evidence in respect of those matters was uncontroversial. 39
[52] The engagement letter is inelegantly drafted and could be construed to give the impression that the instruction was to provide evidence in support of the reasonableness of the Site Access Requirement. However, the Applicants elected not to cross examine Professor McLaws in relation to this or any other issue. In the result, we consider that it is appropriate to give some weight to Professor McLaws’ opinion evidence in relation to the reasonableness of the Site Access Requirement. But our determination of that question will be assessed on the basis of all the circumstances of the case. The other deficiency in the engagement letter concerns the absence of any express instruction that the opinions expressed are to set out the basis for that opinion.
[53] In a recent decision, 40 a Full Bench attached little weight to particular opinions in an expert report where the basis of the opinion was not expressed, noting that:
‘A bare expression of opinion, absent any sufficient explanation of the basis of that opinion, is normally given little weight. As observed in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh: 41
‘the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’ 42 at [172]. This extract was cited with approval in Re Horticulture Award 2020 [2021] FWCFB 5554 at [153].
[54] We propose to adopt the same course in these proceedings. We will give little weight to opinions expressed in Professor McLaws’ witness statement where the basis of the opinion is not expressed.
[55] The practical application of the observations we have made about the evidence of Witness R5 and Professor McLaws presents some difficulty. The scope of the evidentiary challenge and the matters in contest are far from clear.
[56] The Applicants advanced a global submission which did not sufficiently particularise the aspects of Witness R5’s evidence that were challenged. The Applicants accept that Witness R5’s evidence regarding the factual matrix, including the advice he gave and his involvement in BHP’s decision-making process is not tainted by the challenge to his impartiality – it is only his expert opinion evidence which is challenged. 43 But the dividing line between these two aspects of Witness R5’s evidence is unclear. There is also a lack of clarity about the actual factual matters in dispute.
[57] Ultimately, we do not need to resolve these general issues in relation to the expert evidence because the Respondent only seeks to rely on ten propositions which it says are supported by the evidence adduced from Witness R5 and Professor McLaws, and only one part of those ten propositions is contested by the Applicants. The uncontested propositions are set out in [27] above. The Applicants contend that the following part of proposition 10 is not supported by the expert evidence relied on by the Respondent:
‘The idea that higher rates of vaccination decrease the risks to an unvaccinated person inform the submissions of the CFMMEU, the AMWU and the CEPU. This idea is a dangerous fallacy that, if accepted, would put everyone at risk.’
[58] The Respondent contends that the above proposition is supported by Professor McLaws’ evidence and, in particular, [9], [59], [60], [69] and [70] of her first statement; and by Witness R5’s evidence, in particular, [2], [11a] and [18] of his first statement. The relevant parts of Professor McLaws’ first statement are in the following terms (references omitted):
‘9. 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). Mt Arthur Mine is clearly such a workplace…
59. In my opinion there is misguided belief amongst certain parts of the population that when the community reaches a certain level of vaccination, the unvaccinated will be protected from infection. Emphatically, that is not the case with COVID-19. Recent studies have demonstrated that fully vaccinated people have breakthrough infections and have a peak viral load similar to unvaccinated cases, although vaccination does accelerate viral clearance. But those vaccinated can efficiently transmit the disease among themselves and to unvaccinated people.
60. Despite this, the evidence still demonstrates that there is a greater likelihood that unvaccinated people acquire COVID-19 compared with vaccinated people. This is because even though the viral load is the same in both the vaccinated and unvaccinated upon acquiring the infection, there is massive accelerated clearance of the viral load in the vaccinated because of the antibodies from the vaccine.
69. As such, in the case of the Mt Arthur Coal Mine the risk of infection for unvaccinated workers will not disappear because they are still at risk of catching COVID-19 from fully vaccinated and unvaccinated workers. Importantly, unvaccinated workers on a work site will increase the risk of spreading COVID-19 to vaccinated workers and other unvaccinated workers. Even one unvaccinated person still poses a significantly higher risk or acquiring the infection and transmitting it to other vaccinated people.
70. I have been shown a table that sets out a summary of the issues contained in the submissions of the Unions filed in these proceedings. A copy of this table is attached to this statement and marked MLM-34. I make the following observation in respect of the issues identified in that table:
a. At point 3: Direction should have regard to the circumstances of a particular workplace rather than a particular employer. As set out above, Delta is highly transmissible and as the first case of Delta in NSW demonstrates (the driver) one only need have ‘fleeting’ exposure to the next generation of cases. This has also been reported in the UK. Therefore, if staff are required to work in a similar geographic location the risk is still present. Even if staff are working in different areas but who may walk past, share a lunchroom, transportation etc can be at risk of acquiring infection from the unvaccinated staff. The unvaccinated staff too can be at risk of acquiring infection at work from ‘fleeting’ exposure to a vaccinated staff with infection.
b. At point 4: Higher rates of vaccination take-up decrease the risk of COVID-19 spreading in the workplace, making mandated vaccination less necessary. Unvaccinated people at the workplace or places of mass gatherings are still at risk of acquiring infection from an asymptomatic but infected vaccinated person. The risk is lower than acquiring infection from another unvaccinated staff but household outbreaks report that unvaccinated people are at higher risk of infection (in a mixed household) than vaccinated people. The unvaccinated worker also has a risk of transmitting infection to the vaccinated staff. While the majority of vaccinated staff will have a mild infection there is a risk of the vaccinated and now infected staff from the unvaccinated staff taking the infection home and causing severe infection in unvaccinated persons.
c. At point 5: The level of community transmission in the geographic area of the workplace and in the community in which the workforce is located in. Unvaccinated people at the workplace or places of mass gatherings are still at risk of acquiring infection from an asymptomatic but infected vaccinated person. The risk is lower than acquiring infection from another unvaccinated staff member but household outbreaks report that unvaccinated people are at higher risk of infection (in a mixed household) than vaccinated people. The unvaccinated worker also has a risk of transmitting infection to the vaccinated staff. While the majority of vaccinated staff will have a mild infection there is a risk of an infected vaccinated staff, infected from an unvaccinated staff, taking the infection home and causing severe infection in unvaccinated persons.
d. At point 6: Use of alternative control measures. My opinion in respect of each widely accepted control measure are set out below.’
[59] Paragraphs [2], [11a] and [18] of Witness R5’s first statement are as follows:
‘2. I make this statement on the basis of my knowledge, experience and belief except where otherwise indicated. Where I make statements based on information provided by others, I identify the source of that information and believe such information to be true and correct…
11a. First, following the rollout of COVID-19 vaccines globally, I studied reports of fully vaccinated individuals contracting COVID-19. An example of one such report that I reviewed, published in the Centers for Disease Control and Prevention’s Morbidity and Mortality Weekly Report, is attached to this statement and marked AMD-3. Another article I reviewed, published by Owen Dyer in the peer-reviewed medical journal, The BMJ, is Attachment 2b of Annexure AMD-6 to this statement. The identification of fully vaccinated individuals contracting COVID-19, otherwise known as “breakthrough infections”, indicated that it is unlikely that it would be possible to attain herd immunity through vaccination. Herd immunity occurs when a significant proportion of the population becomes immune to a disease (in this case, COVID-19), such that the spread of the disease from person to person is unlikely. I formed the opinion that, in the absence of herd immunity, there was a significant risk that unvaccinated and vaccinated workers in a BHP workplace would encounter COVID-19 even if the vast majority of workers were vaccinated. I thought this was especially so given the intent of the nation to reopen (see (c) below), which will lead to widespread infection…
18. These risks were not new, and had been present since the beginning of the pandemic in Australia in March 2020. However, the other members of the HSE Team and I were of the view that these risks were heightened by the factors I have outlined above at paragraph 11, including the emergency of the Delta strain of the virus. I advised the HSE Team that, in my view, COVID-19 posed a substantial risk to health and safety, and would continue to do so for unvaccinated people even after it became endemic and vaccination rates became high.’
[60] The Respondent also contends that the contested proposition is supported by the following subsidiary propositions, which the Respondent submits are supported by the evidence given by Professor McLaws and Witness R5:
1. Herd immunity will never be achieved.
2. A vaccinated person can be infected with COVID-19.
3. A vaccinated person who is infected can efficiently transmit the virus.
4. Vaccination shortens the period when a person is infectious, for which reason vaccination reduces the overall risk of infection.
5. Notwithstanding that vaccination reduces the overall risk of infection, there is still a risk that an unvaccinated person will be infected.
6. Once a vaccinated person is infected, there is a substantially reduced risk of serious illness or death.
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.
8. Vaccination is the most effective control measure currently available.
[61] We accept that these subsidiary propositions are supported by the expert evidence given by Professor McLaws and Witness R5. However, we do not accept that the contested proposition is supported by the expert evidence or the subsidiary propositions. The starting point in this analysis is proposition 7 at [29]above (which is not contested): an unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person. It follows, as a matter of logic, from this proposition that higher rates of vaccination decrease the chance that an unvaccinated person will acquire COVID-19 because an unvaccinated person is less likely to acquire COVID-19 from a vaccinated person than an unvaccinated person. 44 In this sense, higher rates of vaccination do decrease the risks to an unvaccinated person. However, as Professor McLaws and Witness R5 made clear in their evidence, higher rates of vaccination do not remove the risk of COVID-19 infection for unvaccinated workers. That is because unvaccinated workers are at risk of catching COVID-19 from other unvaccinated workers and fully vaccinated workers, who can acquire COVID-19 and efficiently transmit the disease to others. Indeed, unvaccinated people are more likely to acquire COVID-19 compared with vaccinated people. Further, unvaccinated workers on a work site increase the risk of spreading COVID-19 to vaccinated workers and other unvaccinated workers. In turn, those persons are at risk of spreading COVID-19 outside the workplace to their families and friends.
[62] We are also satisfied on the basis of the expert evidence given by Professor McLaws and Witness R5 that the rates of infection of COVID-19, in the Hunter Region and throughout Australia, are likely to increase over time as movement restrictions ease, with the result that it is inevitable that everyone who works on the Mine will come into contact with someone – probably many people – who are infected with COVID-19. 45 Witness R5 went on to express his opinion that ‘with reopening the virus will spread through Australia, and [although] the timing in the given locations [is] not exact, but in time it will spread to all locations, and be present in all work places’.46 When COVID-19 does so spread, those who remain unvaccinated are at greatest risk of acquiring COVID-19, becoming seriously ill or dying from acquiring COVID-19, and infecting other people with whom they come into contact.47
[63] We deal with other aspects of the evidence later in this decision.
4 The Duty to Obey Lawful and Reasonable Directions
4.1 The duty
[64] None of the Parties submit that there is anything in public health orders, the Agreement or the express terms in the Employees’ contracts that would provide the legal basis for the Site Access Requirement. It follows that the basis for the Site Access Requirement must derive from the term implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of their employer.48 Such a term is implied, by law, in the absence of a contrary intention by the parties. 49
[65] The seminal decision concerning the requirement of employees to follow their employer’s lawful and reasonable directions is R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday 50 (Darling) in which Dixon J summarised the common law position as follows:
‘Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable.
In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.’
[66] Recently the Full Federal Court in One Key Workforce Pty Ltd v CFMEU 51 adopted a slightly different formulation of the implied term:
‘the duty of the employee at common law is to obey lawful orders. The “standard or test” by which the common law determines whether the order is lawful is one of reasonableness: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621. Dixon J explained at 621–2:
If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.
As Finn J observed in McManus v Scott-Charlton (1996) 70 FCR 16 at 21:
The need for some such limitation is patent: employment does not entail the total subordination of an employee’s autonomy to the commands of the employer. As was said by the President in Australian Tramway Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42:
A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.
There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case.’ 52
[67] Whether expressed as a ‘lawful and reasonable’ direction or a ‘lawful’ direction in which the test for determining lawfulness is whether the direction is reasonable, may simply be a matter of semantics. In each case the direction must be ‘lawful’ and ‘reasonable’. The weight of authority supports the use of the expression ‘lawful and reasonable’; 53 it is the expression used in the arbitral question posed by the Applicants and acceded to by the Respondent; and it is the formulation we have decided to adopt.
4.2 Some general observations
[68] It is uncontentious that a lawful direction is one which falls within the scope of the employee’s employment. There is no obligation to obey a direction which goes beyond the nature of the work the employee has contracted to perform, 54though an employee is expected to obey instructions which are incidental to that work.55
[69] Further, employer directions which endanger the employee’s life or health, or which the employee reasonably believes endanger his or her life or health, are not lawful orders; 56unless the nature of the work itself is inherently dangerous, in which case the employee has contracted to undertake the risk.57
[70] The order or direction must also be ‘lawful’ in the sense that an employee cannot be instructed to do something that would be unlawful; such as a direction to drive an unregistered and unroadworthy vehicle. 58
[71] Employees are only obliged to comply with employer directions which are lawful and reasonable.
[72] Reasonableness is ‘a question of fact having regard to all the circumstances’ 59 and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment.60 The approach to the task of assessing the reasonableness of a direction to an employee was identified by Dixon J in Darling, as follows:
‘But what is reasonable is not to be determined so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service.’ 61
[73] It is convenient to deal here with Ai Group’s reliance on the passage below from Woolworths Ltd (t/as Safeway) v Brown (Woolworths) 62 in support of its submission that ‘[a] high bar exists for a finding that a direction is unreasonable’63:
‘What is reasonable will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate. As the Full Bench observed in the XPT case, albeit in a somewhat different context, its not the role of the Commission “to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.’ (Emphasis added)
[74] The Applicants, the ACTU and the Union Interveners submit that the emphasised part of the passage from Woolworths should not be followed.
[75] There are cogent reasons to depart from the emphasised passage in the extract from Woolworths. We begin by observing that the posited test of reasonableness - ‘if a reasonable employer, in the position of actual employer and acting reasonably, could have [made the direction]’ - raises more questions than it answers. How does one discern what a ‘reasonable employer’ ‘acting reasonably’ could do? The posited test does not shed any light on the issue to be determined and, as the Union Interveners put it, ‘places a gloss on the question of reasonableness without helping to answer the question’. 64
[76] In our view, the emphasised extract from Woolworths, set out above, is plainly wrong. No authority is cited in support of the formulation adopted by the Full Bench; it travels well beyond the observations of Dixon J in Darling; and it does not sit conformably with a similarly expressed test in the administrative law context. As to the last point, the High Court plurality in Minister for Immigration and Citizenship v Li (Li)held:
‘The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it ...’ 65
[77] It appears uncontroversial that in order to establish that a direction is reasonable, it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interest of the parties. It is also uncontentious that in any particular context, there may be a range of options open to an employer within the bounds of reasonableness. As the Respondent submits:
‘In assessing whether any direction is reasonable, it is necessary to bear in mind that within the boundaries of an employer’s power of direction there is an area of ‘decisional freedom’ within which the employer has a genuinely free discretion. That area is co-extensive with what was once more commonly called ‘managerial prerogative’. Within that area, reasonable minds might differ as to what decision is best or most desirable, but any decision or outcome within that area is within the bounds of reasonableness.’ 66
[78] The availability of a range of reasonable directions in response to a particular set of circumstances sits conformably with the following observation of the plurality in Li, 67 albeit the point arose in different context:
‘… there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker.’ 68 (Footnotes omitted)
[79] Nor is it seriously contested that a direction lacking an evident or intelligible justification is not a reasonable direction an employee is obliged to obey, but that is not the only basis upon which unreasonableness can be established. 69 As we have said, reasonableness is a question of fact having regard to all of the circumstances. Contrary to Ai Group’s submission, there is no ‘high bar’, or any other type of bar or gloss to be put on the requisite assessment. It is an objective assessment of the reasonableness of the direction, having regard to all of the circumstances.
[80] We observe that the approach we have adopted in this matter is consistent with the following observation of the Full Bench in Briggs v AWH Pty Ltd: 70
‘The determination of whether an employer’s direction was a reasonable one (there being, as earlier stated, no contest in this case that AWH’s direction was lawful) does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan in the following terms:
But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.’ 71
[81] We would also observe that courts and tribunals have taken a broad view of what might constitute a lawful and reasonable direction in particular circumstances, including but not limited to:
• a direction that an employee refrain from wearing a caftan while performing duties (and so being visible to co-workers and the public) 72;
• a direction to remove an eyebrow ring whilst at work 73
• where there is a genuine indication of need for it, requiring an employee, on reasonable terms, to attend a medical examination in order to determine their fitness for work; 74
• requiring an employee to provide a medical report indicating diagnosis and likely capacity and time to return to ordinary duties (rather than just providing a medical certificate) 75
• an order that a senior employee not make public comments about decisions the employer has made in relation to its business 76
• a direction that an employee not privately contact a co-worker, after the employee had been counselled in relation to sexual harassment of the co-worker, 77 and
• a direction to an employee to maintain the confidentiality of information gathered and recorded during disciplinary processes. 78
5 Is the Site Access Requirement a lawful and reasonable direction?
5.1 The Submissions: general consideration
[82] The Applicants, the ACTU and Union Interveners advance 4 broad lines of argument in support of their contention that the Site Access Requirement is not a lawful direction:
• its introduction was announced without complying with the consultation requirements in the WHS Act
• the Respondent has not complied with the consultation obligations in the Agreement
• the Respondent has not complied with its obligations under the Privacy Act 1988 (Cth) (Privacy Act), and
• the Site Access Requirement impairs the Employees’ right to bodily integrity.
[83] The Applicants, the ACTU and Union Interveners also rely on these and other grounds in support of the contention that the Site Access Requirement is not reasonable.
[84] The Respondent’s primary contention is that it has a duty under the WHS Act and at common law to ensure, so far as is reasonably practicable, the health and safety of its employees and other persons. A direction that has as its object and purpose protecting the health and safety at work of Mt Arthur’s employees and other people at the Mine is lawful, as it is within the scope of the Employees’ employment, and ‘axiomatically… [is] reasonable, substantially for the same reasons’: 79
‘That is, a direction will always be reasonable when, as in this case, the object and purpose of the direction is compliance with the employer’s statutory and common law duties.’ 80
[85] We accept that the object and purpose of the Site Access Requirement is to protect the health and safety at work of Mt Arthur’s employees and other people at the Mine. On that basis, the Site Access Requirement is prima facie ‘lawful’ because:
• it falls within the scope of the employment, and
• there is nothing ‘illegal’ or unlawful about becoming vaccinated. 81
[86] It is convenient to note here that the ACTU contends that ‘[t]he lawfulness of a direction is not exhausted by considering whether the subject matter of the direction falls within the scope or subject matter of the employment, but extends further to a consideration of the employment (and other) laws that bear upon that subject.’ 82 A similar point is made by the Applicants and the Union Interveners.83
[87] We note that there appears to be no judicial authority directly on the point. We will discuss what is required for a direction to be lawful at Chapter 5.2.3 of this decision, in the context of our consideration of the Respondent’s compliance with the consultation requirements in the WHS Act. For reasons which will become apparent, we do not feel it necessary to express a concluded view on this point.
[88] On the question of whether a direction is reasonable, the Respondent submits that this depends upon the content and effect of the direction. 84 The application of this proposition in the context of the present matter is, so the Respondent contends, that the requirement that a direction be reasonable does not include as an incident:
• an obligation to consult under s.47 of the WHS Act about a direction that relates to work health and safety matters, or
• an obligation to consult (if there be any) that has as its source other than under the WHS Act.
[89] This is said to be so ‘because the reasonableness of a direction is determined having regard to its effect, not by the process by which it was made’. 85
[90] The Respondent acknowledges that the outcome of consultation unders.47 of the WHS Act may inform an inquiry into the reasonableness of a direction, but that ‘the fact of consultation will never be determinative’. 86
[91] ACCI takes a more nuanced approach. It submits that no one external factor is determinative of whether the direction in a particular case is reasonable:
‘A range of factors will be considered when assessing the reasonableness of a direction, one of which may be the extent of consultation undertaken. The greater consultation afforded to employees, the more likely consultation is to become a factor supportive [of] the reasonableness of the direction.’ 87
[92] The obligation on an employee to obey a direction depends on it not only being lawful, but also reasonable. As Dixon J observed in Darling:
‘the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.’ 88 [Emphasis added]
[93] The duty of an employee to obey a direction by his or her employer does not arise simply because a direction might be within the scope of employment and involves no illegality.
[94] We do not accept the submission put by the Respondent. It proceeds as a false legal premise and seeks to give determinative weight to the asserted purpose and object of a direction to the exclusion of any other consideration, including the impact of the direction on the rights and interests of the Employees.
[95] We agree with ACCI that a range of factors will bear on whether a direction is reasonable. As we have mentioned, the reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations.
[96] Whether a particular direction is reasonable is not to be determined in a vacuum, it requires consideration of all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship. 89 In NSW, this would include consideration of obligations in the WHS Act, which governs employment relationships in that jurisdiction. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis.90 The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction.91
[97] In considering whether the Site Access Requirement is a lawful and reasonable direction, we turn first to consider Mt Arthur’s consultation obligations in the WHS Act and under the Agreement, before turning to the arguments concerning compliance with privacy obligations and the right to bodily integrity.
5.2 Mt Arthur’s Consultation Obligations
5.2.1 WHS consultation requirements
[98] It is uncontentious that the introduction of the Site Access Requirement and its implementation enlivened the consultation obligations in the WHS Act. 92 Sections 47 to 49 of the WHS Act are set out below:
47 Duty to consult workers
(1) The person conducting a business or undertaking must, so far as is reasonably practicable,consult, in accordance with this Division and the regulations, 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.
Maximum penalty—
(a) in the case of an individual—230 penalty units, or
(b) in the case of a body corporate—1,155 penalty units.
(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.
(3) The agreed procedures must not be inconsistent with section 48.
48 Nature of consultation
(1) Consultation under this Division requires—
(a) that relevant information about the matter is shared with workers, and
(b) that workers be given a reasonable opportunity—
(i) to express their views and to raise work health or safety issues in relation to the matter, and
(ii) to contribute to the decision-making process relating to the matter, and
(c) that the views of workers are taken into account by the person conducting the business or undertaking, and
(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.
(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.
49 When consultation is required
Consultation under this Division is required in relation to the following health and safety matters—
(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking,
(b) when making decisions about ways to eliminate or minimise those risks,
(c) when making decisions about the adequacy of facilities for the welfare of workers,
(d) when proposing changes that may affect the health or safety of workers,
(e) when making decisions about the procedures for—
(i) consulting with workers, or
(ii) resolving work health or safety issues at the workplace, or
(iii) monitoring the health of workers, or
(iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or
(v) providing information and training for workers, or
(f) when carrying out any other activity prescribed by the regulations for the purposes of this section.
[99] The WHS Act is based on the work health and safety model laws, which have been enacted in all jurisdictions except Victoria and Western Australia. 93
[100] The Work Health and Safety Bill 2011 (Cth) Explanatory Memorandum provides some limited guidance on the content of the duty to consult in s.48, as follows:
‘153. Subclause 48(1) establishes the requirements for meaningful consultation. It requires PCBUs to: share relevant information about work health or safety matters (listed in clause 49) with their workers; give workers a reasonable opportunity to express their views; and contribute to the decision processes relating to those matters. It also requires PCBUs to take workers’ views into account and advise workers of relevant outcomes in a timely manner.
154. Subclause 48(2) provides that consultation must involve any HSR that represents the workers.
155. Consulting with HSRs alone may be sufficient to meet the consultation duty, depending on the work health or safety issue in question.’ [Emphasis added]
[101] The Mine is a ‘mine’ within the meaning of s.6(1) of the Work Health and Safety (Mines And Petroleum Sites) Act 2013 (NSW) (the Mine Safety Act). Section 4(1) of the Mine Safety Act stipulates that the Act is to be construed with and as if it formed part of the WHS Act. A ‘mine safety and health representative’ elected pursuant to s.38 of the Mine Safety Act has all the functions of a health and safety representative (HSR) under the WHS Act for the workgroup at the mine ‘as if the workgroup comprised all the workers at the mine:’ s.42(1). 94
[102] The Respondent must comply with s.47(1) of the WHS Act, which requires it 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’. 95
[103] Consultation is treated by the WHS Act as a matter of substance which is to occur prior to implementation. Section 48(2) requires that the consultation involve a HSR, who in the context relevant here is a ‘mine safety and health representative’. 96
[104] This consultation requirement is extended by s.70(1) of the WHS Act. This includes an obligation under s.70(1)(c) on the Respondent to allow a HSR access to information ‘relating to’ hazards (including associated risks) at the workplace affecting workers in the workgroup (which having regard to the definition of a ‘mine safety and health representative’ in the Mine Safety Act, extends to all the workers at the Mine) and the health and safety of the workers in the workgroup (again, all the workers at the Mine). 97
[105] There appears to be limited authority directly relating to the consultation requirements in ss.47-49 of the WHS Act. 98
[106] Many cases on consultation arise in the context of consultation obligations under industrial instruments. The Parties’ submissions refer to the following cases in respect of the obligation to consult and what that entails:
• Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited(2010) 198 IR 382; (2010) 268 ALR 514
• Consultation clause in modern awards [2013] FWCFB 10165
• Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd(2016) 262 IR 176; [2016] FCA 1009
• Construction, Forestry, Mining and Energy Union v The Newcastle Wallsend Coal Company Pty(1998) 88 IR 202
• CPSU v Vodafone Network Pty Ltd [2001] AIRC 1189; PR911257 (14 November 2001)
• Felton v BHP Billiton Pty Ltd[2015] FWC 1838
• Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union (2016) 248 FCR 18
• QR Limited v Communications Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150
• Sinfield v London Transport Executive[1970] Ch 550.
[107] Some additional cases have been identified that deal with the meaning of consultation:
• Brasell-Dellow v Queensland (Queensland Police Service)[2021] QIRC 356
• Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd[2012] FWA 3945
• Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FCA 1431
• Tomvald v Toll Transport Pty Ltd[2017] FCA 1208
• TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172
• TVW Enterprises Ltd v Duffy (No 3)(1985) 8 FCR 93.
[108] The following propositions may be drawn from these cases about what constitutes consultation:
• the content of any specific requirement to consult is necessarily dictated by the precise terms in which such a requirement is expressed; the nature of the factual or legal issues the subject of the requirement; and the factual context in which the requirement is exercised, including the particular circumstances of the persons with whom there must be consultation 99
• a responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account 100
• the consultation needs to be real; it must not be a merely formal or perfunctory exercise 101
• even though management retained the right to make the final decision, it is not to be assumed that the required consultation was to be a formality. Management has no monopoly of knowledge and understanding of how a business operates, or of the wisdom to make the right decisions about it. The process of consultation is designed to assist management, by giving it access to ideas from employees, as well as to assist employees to point out aspects of a proposal that will produce negative consequences and suggest ways to eliminate or alleviate those consequences 102
• the party to be consulted [must] be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon 103
• while the word ‘consultation’ always carries with it a consequential requirement for the affording of a meaningful opportunity to the party being consulted to present those views, what will constitute such an opportunity will vary according [to] the nature and circumstances of the case. In other words, what will amount to ‘consultation’ has about it an inherent flexibility 104
• a right to be consulted, though a valuable right, is not a right of veto 105
• the consultation obligation is not concerned with a likelihood of success of the process, only to ensure that it occurs before a decision is made to implement a proposal 106
• an ordinary understanding of the word “consult” would suggest that the obligation to consult does not carry with it any obligation either to seek or to reach agreement on the subject for consultation. Consultation is not an exercise in collaborative decision-making. All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made 107
• the requirement to consult affected workers would … not be satisfied by providing the employees with a mere opportunity to be heard; the requirement involves both extending to affected workers an opportunity to be heard and an entitlement to have their views taken into account when a decision is made 108
• genuine consultation would generally take place where a process of decision-making is still at a formative stage 109
• the opportunity to consult must be a real opportunity not simply an after thought 110
• consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal 111
• there is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, ‘this is what is going to be done’ and saying to that person ‘I’m thinking of doing this; what have you got to say about that?’. Only in the latter case is there ‘consultation’ 112
• it is implicit in the obligation to consult that a genuine opportunity be provided for the affected party to attempt to persuade the decision-maker to adopt a different course of action. If a change has already been implemented or if the employer has already made a definite or irrevocable decision to implement a change then subsequent ‘consultation’ is robbed of this essential characteristic 113
• any offer to consult in relation to the matter was in the context that the respondent had already made an irrevocable decision, then the party had not, to use his Honour's words, consulted about the decision in any meaningful way. 114
[109] The list set out above does not purport to be an exhaustive statement of the elements underpinning the content of an obligation to consult. We also observe that some industrial instruments and the model consultation term provide that the trigger for an obligation to consult is the making of a definite decision. As we note below, the specific requirement to consult is determined by the context.
[110] The Background Paper asked the Parties whether they consider the above propositions to be an accurate reflection of the case law and whether they are relevant to the Commission’s task in considering whether the Respondent’s consultation process was conducted in accordance with ss.47-49 of the WHS Act.
[111] While generally observing that the Commission must start with the words of the statute itself in considering the content of the WHS Act consultation requirements, the Applicants, ACTU and AMWU/CEPU agree that the propositions are accurate and relevant to the Commission’s task. 115 While ACCI expresses caution in generalising the nature of consultation obligations - given the obligation to consult is first and foremost determined by the terms in the relevant instrument that gives rise to the obligation116 – it agrees that the propositions were relevant to the Commission’s task here.117
[112] The Respondent submits that the propositions are accurate insofar as they relate to consultation under industrial instruments, but having regard to the purpose and text of Division 2 of Part 5 of the WHS Act, they are only of incidental relevance to the question of compliance with ss.47-49 of the WHS Act. 118 Ai Group submits that it cannot be assumed that all of the propositions are entirely relevant to the consultation requirements in the WHS Act, and urges caution so as not to read into the obligation to consult in the WHS Act any additional requirement that is either not consistent with, or which expands upon, the requirements of s.47.119
[113] While we accept that the metes and bounds of the Respondent’s obligation to consult is delineated by the terms of the WHS Act, we consider that the propositions outlined above contain contextual material that is relevant to an understanding of ss.48 and 49 of the WHS Act and will have regard to them on that limited basis. 120 Of course, we recognise that the content of any specific requirement to consult is determined by the context, including:
• the precise terms in which such a requirement is expressed in the applicable industrial instrument, contract or legislation, including the circumstances in which the obligation is enlivened, 121
• the factual context in which the requirement arises, including the size and nature of the business and the nature of the change which is the subject of the consultation and the impact of that change on the persons who are required to be consulted, and
• whether the factual circumstances dictate a quick response.
[114] As to the last point, if there was a surge in COVID-19 cases such that the risk of transmission substantially increased or if a new, more transmissible or virulent, COVID-19 variant became prevalent then such circumstances may warrant a truncated consultation process. This is recognised in the qualification in s.47 of the WHS Act that consultation take place ‘so far as is reasonably practicable’.
[115] The NSW Government Code of Practice Work Health and Safety Consultation, Cooperation and Coordination (the Code, 122 which is based on a national model code of practice developed by Safe Work Australia) was approved in August 2019 under s.274 of the WHS Act. The Code is at Attachment PJC-13 to the Witness Statement of Peter John Colley. Section 3, titled ‘What is effective consultation?’, discusses each of the elements in s.48 of the WHS Act.
[116] The Foreword to the Code explains that:
• the Code is intended to be read by a PCBU, and provides practical guidance for PCBUs on how to effectively consult with workers who carry out work for the business or undertaking and who are (or are likely to be) directly affected by a health and safety matter,
• following an approved code of practice will assist the duty holder to achieve compliance with the health and safety duties in the WHS Act and Work Health and Safety Regulation (WHS Regulation), but compliance with those duties may be achieved by following another method if it provides an equivalent or higher standard of work health and safety than the code, and
• codes of practice are admissible in court proceedings under the WHS Act and WHS Regulation, and courts may rely on the code in determining what is reasonably practicable in the circumstances to which the code of practice relates.
[117] Section 275 of the WHS Act provides that codes of practice approved under s.274 are admissible in proceedings for an offence against the WHS Act. It provides:
275 Use of codes of practice in proceedings
(1) This section applies in a proceeding for an offence against this Act.
(2) An approved code of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with.
(3) The court may—
(a) have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates, and
(b) rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.
Note—
See section 18 for the meaning of reasonably practicable.
(4) Nothing in this section prevents a person from introducing evidence of compliance with this Act in a manner that is different from the code but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code.
[118] The Background Paper included two questions for the parties about the Code:
• What is the status of the NSW Code of Practice in these proceedings, since this is not a ‘proceeding for an offence against this Act’ (s.275)?
• Should the Commission take into account the content from the NSW Code of Practice, and in particular in Section 3 of the Code, in informing itself about the content of the duty in s.48 of the WHS Act and whether the Respondent has complied with the duty to consult?
[119] In responses to these questions, there was no dispute between the Parties about whether the Commission can consider the Code. The Applicants submit that the Commission should take the Code into account, in informing itself about whether the duty to consult applies and whether the Respondent complied with that duty.
[120] The Respondent submits that s 275 of the WHS Act does not, in terms, apply to this arbitration, but accepts that the Commission is entitled to form a view about Mt Arthur’s compliance withs.47 and says it would be artificial for it to do so without having any regard to the Code. However, it submits that the Code should be used with great circumspection, and not as a substitute for the language of Division 2 of Part 5 of the WHS Act. 123
[121] There is similarly no dispute between the ACTU, the Union Interveners, and ACCI that, while the Code does not create a separate source of obligations and the Commission is not bound to consider it, the Commission can take it into account in determining whether consultation requirements have been complied with. The ACTU further submits that s.275(4) of the WHS Act appears to view the Code as a minima.
[122] Ai Group’s primary contention is that failure to engage in consultation as required by the WHS Act would not render the direction unlawful or unreasonable, and by extension any assessment of whether the Respondent has undertaken consultation in accordance with the Code is not determinative of the question before the Commission, or indeed necessary. However, Ai Group accepts that it is open to the Commission to have regard to the Code, noting the Commission’s broad powers under s.590 of the FW Act.
[123] Section 275 is clearly not directly applicable in the present context, these not being proceedings for offences under the WHS Act and WHS Regulation. However, nothing in the terms of s.275 precludes the use or admissibility of codes of practice in other contexts. In any event, the Commission is not bound by the rules of evidence and can inform itself in relation to a matter in such manner as it considers appropriate. 124
[124] We consider that the Code does not create separate consultation obligations and a PCBU could comply with its WHS consultation obligations without following the Code. Section 275(4) plainly recognises that a PCBU could comply with the WHS Act in a way that is different to the standard required in the Code. Noting, however, that codes of practice are intended to provide practical guidance to assist duty holders to meet the requirements of the WHS Act, 125 we consider that the Code is relevant to our consideration of whether the Respondent met its consultation obligations under the WHS Act.
[125] Relevantly and in summary, the Code explains that:
• consultation is required when identifying hazards, assessing risks and deciding on measures to eliminate or minimise those risks, and is a two-way process between the PCBU and its workers
• consultation requires that relevant information is shared with workers to enable informed and constructive discussions. This information should be provided early on so workers and HSRs have enough time to consider matters and provide feedback. Relevant information may include health and safety policies and procedures, technical guidance about hazards, risks and risk control measures, and risk assessments. The information should be presented in a way that can easily be understood by the workers
• consultation requires that workers are given a reasonable opportunity to express their views, raise health and safety issues, and contribute to the decision-making process relating to the health and safety matter. The time the consultation process takes will depend on the complexity of the health and safety matter, how many people are being consulted, the accessibility of workers and the methods of consultation
• consultation requires that the views of workers are taken into account. This does not require consensus or agreement, but PCBUs must allow workers to contribute to health and safety decisions. Workers should be advised of the outcome of any consultation in a timely manner
• if workers are represented by an HSR, consultation must include that HSR, and if the PCBU and workers have agreed to consultation procedures, the consultation must be in accordance with those procedures, and
[260] We note that, absent a consideration of all the relevant circumstances it is not appropriate to make general statements about whether a direction of a particular character is a lawful and reasonable direction. That said; we think there is some utility in making some broad observations.
[261] If the object and purpose of such a direction is to protect the health and safety at work of employees and other persons frequenting the premises then such a direction is likely to be lawful. This is so because it falls within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated. But such a direction must also be reasonable.
[262] As Flick J observed in NSW Trains v Australian Rail, Tram and Bus Industry Union 274 the determination of whether an employer direction is lawful and reasonable can only be made by reference to the subject matter and context; it cannot be made ‘in vacuo’.275 The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis.276 The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction.277
[263] A direction lacking an evident or intelligible justification is not a reasonable direction but that is not the only basis upon which unreasonableness can be established. It is an objective assessment of the reasonableness of the direction, having regard to all of the circumstances.
[264] In any particular context there may be a range of directions open to an employer within the bounds of reasonableness. Further, to establish that a direction is reasonable it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interest of the parties.
Mt Arthur: The Way Forward
[265] Mt Arthur’s failure to comply with its consultation obligations under the WHS Act is the major consideration which led us to conclude that the Site Access Requirement was not a lawful and reasonable direction. The consultation deficiencies we have identified can be addressed by Mt Arthur consulting the Employees in relation to the question of whether or not the Site Access Requirement should be imposed at the Mine. Any subsequent dispute will need to be determined having regard to the particular circumstances at the time.
[266] The current New South Wales roadmap proposes the relaxation of various COVID-19 related restrictions on the earlier of 15 December 2021 or when New South Wales reaches 95% double vaccination. 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. That is particularly so in circumstances where Mt Arthur has already engaged in extensive consultation with the Employees in relation to the implementation of the Site Access Requirement.
[267] In this context we note that during the course of oral argument counsel for the Applicants responded to the Respondent’s contention that the relaxation of movement restrictions will mean that the virus will become endemic and the level of risk for unvaccinated persons will increase as follows:
‘The more reasonable position in relation to this matter, if opening up is a factor, is for the Commission to at least stay the site access requirement until the new year to see whether the dire forecast of BHP, the respondent or Witness R5 are in any way borne out?’ 278
[268] For completeness we note that the proposition advanced lacks merit. As we mention at [62] above, the rates of COVID infection are likely to increase over time, as movement restrictions cease, with a consequent increase in risk, particularly for the unvaccinated. The WHS Act framework is concerned with the assessment and reduction of risk. The approach proposed by counsel for the Applicants is to wait and see if infection rates actually increase and, presumably, whether significant numbers of the unvaccinated become seriously ill or die. In our view, this is not an appropriate approach to take to the issue.
[269] The Commission is available to facilitate any discussion between the Applicants and Mt Arthur regarding the consultation process to be undertaken.
PRESIDENT
Appearances:
S Crawshaw SC with P Bates for the Construction, Forestry, Maritime, Mining and Energy Union and Mr Howard.
I Neil SC with J Alderson for Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal.
M Harding SC for the Australian Council of Trade Unions.
M Gibian SC with C Tran for the Australian Manufacturing Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
B Ferguson for Ai Group.
L Izzo for the Australian Chamber of Commerce and Industry.
Hearing details:
2021.
24 and 25 November.
Melbourne (via Microsoft Teams)
Printed by authority of the Commonwealth Government Printer
<PR736376>
1 Respondent Submissions, 16 November 2021 at [14], citing Exhibit R6, Witness Statement of Witness R4 dated 16 November 2021 at [5].
2 Respondent Submissions, 16 November 2021 at [7].
3 [2021] FWC 6309.
4 [2021] FWCFB 6039.
5 Exhibit A4, Witness Statement of Witness A1 dated 3 November 2021; Exhibit A5, Second Witness Statement of Witness A1 dated 23 November 2021.
6 Exhibit A2, Witness Statement of Matthew John Howard dated 3 November 2021; Exhibit A3, Second Witness Statement of Matthew John Howard dated 23 November 2021.
7 Exhibit A1, Witness Statement of Peter John Colley dated 3 November 2021; Exhibit A12, Second Witness Statement of Peter John Colley dated 22 November 2021.
8 Exhibit AMWU/CEPU 1, Witness Statement of Samantha Angela Boardman dated 23 November 2021.
9 Exhibit R2, Witness Statement of Witness R1 dated 16 November 2021.
10 Exhibit R3, Witness Statement of Witness R2 dated 16 November 2021.
11 Exhibit R4, Witness Statement of Witness R3 dated 16 November 2021.
12 Exhibit R6, Witness Statement of Witness R4 dated 16 November 2021.
13 Exhibit R10, Witness Statement of Witness R5 dated 16 November 2021; Exhibit R11, Second Witness Statement of Witness R5 dated 23 November 2021.
14 Exhibit R14, Witness Statement of Witness R6 dated 16 November 2021.
15 Exhibits R12, Witness Statement of Professor Marylouise McLaws dated 16 November 2021; Exhibit R13, Supplementary Statement of Professor Marylouise McLaws dated 23 November 2021.
16 The hearing was conducted on 24 and 25 November 2021, prior to the World Health Organisation designating variant B.1.1.529 (the Omicron variant of COVID-19) as a variant of concern.
17
18 Respondent Note as to the Admissibility of the Evidence of Witness R5 and Professor McLaws at p 1.
19 Respondent Note as to the Admissibility of the Evidence of Witness R5 and Professor McLaws.
20 Transcript, 25 November 2021 at PN1730.
21 (1893) 6 R 67.
22 [2005] HCA 74.
23 [2005] HCA 74 at [38].
24 Hail Creek Coal Pty Ltd and CFMEU re Hail Creek Preference of Employment Order 2003 (2004) 143 IR 354 at [48]-[50]; Four yearly review of modern awards [2015] FWCFB 6509 at [ 8 ]-[13] .
25 Hail Creek Coal Pty Ltd and CFMEU re Hail Creek Preference of Employment Order 2003 (2004) 143 IR 354.
26
27 Applicant submissions in reply, 23 November 2021 at [2].
28
29 See Australian Law Reform Commission, Uniform Evidence Law (ALRC Report 102) at 9.25, citing I Freckelton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy (2nd ed, 2002) at p 2.
30 Evidence Act1995 (Cth), s.76.
31 Evidence Act1995 (Cth), Part 3.3.
32 McMartin v Newcastle Wallsend Coal Company Pty Ltd [2003] NSWIRComm 292 at [76].
33 McMartin v Newcastle Wallsend Coal Company Pty Ltd [2003] NSWIRComm 292 at [60].
34 Field v Leeds City Council [1999] EWCA Civ 3013 at [31].
35 FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [26].
36 Transcript, 25 November 2021 at PN1562 and PN157.
37 Exhibit A10, Letter to Professor McLaws dated 8 November 2021.
38 Exhibit A10, Letter to Professor McLaws dated 8 November 2021 at 2.2.
39 Transcript, 25 November 2021 at PN1630-1638.
40 4 yearly review of modern awards – Social, Community, Home Care and Disability Services Award 2010 [2021] FWCFB 2383.
41 [1953] SC 34 at [40] (Lord President Cooper) cited in 4 yearly review of modern awards – Social, Community, Home Care and Disability Services Award 2010 [2021] FWCFB 2383 at [172].
42 [2021] FWCFB 2383
43 Transcript, 25 November 2021 at PN1562.
44 Transcript, 24 November 2021 at PN1365-1366.
45 Exhibit R12 at [58]-[69]; Exhibit R10 at [11], [18], [24], [30]; Transcript, 24 November 2021 at PN1367-1389 & PN1415-1418.
46 Transcript, 24 November 2021 at PN1417.
47 Exhibit R12 at [58]-[69]; Exhibit R10 at [11], [18], [24], [30]; Transcript, 24 November 2021 at PN1367-1389 & PN1415-1418.
48 Thompson v IGT (Australia) Pty Limited [2008] FCA 994 at [48]; McManus v Scott-Charlton [1996] FCA 1820 at [21]; King v Catholic Education Office Diocese of Parramatta [2014] FWCFB 2194 at [26]-[29].
49 Concut Pty Ltd v Worrell (2000) 75 ALJR 312 at 317 at [23].
50 (1938) 60 CLR 601.
51 [2018] FCAFC 77; (2018) 262 FCR 527; (2018) 277 IR 23 at [187].
52 (1938) 60 CLR 601 at 621–2.
53 See, for example, McManus v Scott-Charlton (1996) 70 FCR 16; Australian Telecommunications Commission v Hart (1982) 43 ALR 165 at 170 per Fox J, with whom Sheppard J agreed (Northrop J not deciding); Bayley v Osborne (1984) 10 IR 5 at 8 per Davies J; Izdes v L.G. Bennett & Co. Pty Ltd t/as Alba Industries (1995) 61 IR 439 at 449 per Beazley J; King v Catholic Education Office Diocese of Parramatta[2014] FWCFB 2194 (2014) 242 IR 249 at [24]; Austal Ships Pty Ltd Print P3975 (AIRC Full Bench 13 August 1997) at [7].
54 Price v Mouat (1862) 11 CBNS 508; 142 ER 895(employee hired as lace buyer not bound to obey orders to perform work of lace carder); Bampton v Viterra Ltd (2015) 123 SASR 80; 251 IR 261; [2015] SASCFC 87; BC201505246; Mackie v Wienholt (1880) 5 QSCR 211(cook not bound to obey order to work in dairy); McCarthy v Windeyer (1925) 26 SR (NSW) 29; 42 WN (NSW) 175 (sub-editor not bound to obey orders to do work of a lower grade); Truth & Sportsman Ltd v Moldsworth [1956] AR (NSW) 924 (B-grade journalist not bound to obey order to work at a lower grade); Commissioner for Government Transport v Royall (1966) 116 CLR 314; [1967] ALR 313 (employee incapacitated by injury and entitled to salary during the period of incapacity does not lose the right to receive salary because of his refusal to perform duties within his residual capacity but not within the duties of his pre-injury classification). See also Hackshall’s Ltd v McDowell [1930] AR (NSW) 620 (where the court had to consider whether an order to a bread cart deliverer to work outside the normal area was outside the scope of the contract).
55 Such as to work reasonable overtime: Anthony v NSW Fresh Food & Ice Co Ltd [1946] AR (NSW) 64 (the determination of ‘reasonable overtime’ was to be made by reference to the particular industry).
56 Turner v Mason (1845) 14 M & W 112 at 118; 153 ER 411per Alderson and Rolfe B; Bouzourou v Ottoman Bank [1930] AC 271, PC; Ottoman Bank v Chakharian [1930] AC 277; (1929) 99 LJPC 97; 142 LT 465, PC; Robson v Sykes [1938] 2 All ER 612, KB; Re Dismissal of Fitters by BHP 1969 AR (NSW) 399.
57 McDonald v Moller Line (UK) Ltd [1953] 2 Lloyd’s Rep 662.
58 Kelly v Alford [1988] 1 Qd R 404; Gregory v Ford (1951) 1 All E.R. 121, see also Morrish v Henlys (Folkestone) Ltd [1973] 2 All E.R. 137.
59 R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 at 616 (Starke J), 623-624 (McTiernan J); NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [208], [214] (Flick J).
60 See for example, Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159 at [423]-[429].
61 (1938) 60 CLR 601 at 622. See also NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [217] (Flick J).
62 (2005) 145 IR 285 at [35].
63 Ai Group submission in reply, 16 November 2021 at [31].
64 AMWU/CEPU submission in reply, 23 November 2021 at [9].
65 Minister for Immigration and Citizenship v Li [2013] HCA 18 at [68] per Hayne, Kiefel and Bell JJ.
66 Respondent’s Answers to the Background Paper, 23 November 2021, Question 10, p 8. Also see the oral submissions of the ACTU: Transcript, 25 November 2021 at PN1685; and the Union Interveners: Transcript, 24 November 2021 at PN1490-1493.
67 (2013) 249 CLR 332.
68 (2013) 249 CLR 332 at [66].
69 Mac v Bank of Queensland Limited [2015] FWC 774 at [90]; applying Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76].
70 [2013] FWCFB 3316. See too, in the discrimination law context concerning whether a requirement or condition is ‘reasonable’; Sklavos v Australiasian College of Dermatologies (2017) 256 FCR 247 at [80]; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 87 at 112-113.
71 [2013] FWCFB 3316 at [8].
72 Australian Telecommunications Commission v Hart (1982) 43 ALR 165. Although Fox J at 172 expressed doubt that, as a general proposition, employees could be directed to dress to a standard acceptable to the employer and confined his decision to the particular direction and circumstances concerned.
73 Woolworths v Brown (2005) 145 IR 285.
74 Blackadder v Ramsey Butchering [2002] 118 FCR 395.
75 AIPIA v Qantas (2014) 240 IR 342; but compare Wildman v IMCD [2021] FCCA 1161, where a direction was found to be unreasonable in the circumstances.
76 Lane v Fasciale [1993] VicSC 311 (10 June 1993) (direction to principal to stop campaigning against the decision to close his school).
77 McManus v Scott-Charlton (1996) 70 FCR 16.
78 James Cook University v Ridd (2020) 298 IR 50.
79 Respondent Submissions, 16 November 2021 at [117].
80 Respondent Submissions, 16 November 2021 at [117]. Also see [78] and [87].
81 ACCI Submissions, 16 November 2021 at 3.12.
82 ACTU Outline of Submissions, 11 November 2021 at [8].
83 See, for example, Applicants Submissions, 9 November 2021 at [18]-[19]; Reply Submissions of the AMWU and CEPU, 23 November 2021 at [54]-[55].
84 Transcript, 24 November 2021 at PN1517.
85 Respondent’s Answers to the Full Bench’s Questions, 23 November 2021, p7.
86 Ibid. Similarly, Ai Group contends that a failure to engage in consultation in accordance with the requirements of the WHS Act would not render the direction unlawful or unreasonable, see Ai Group’s submission in response to the Background Paper, 23 November 2021 at [9].
87 Further Supplementary Submissions of ACCI, 23 November 2021 at [10.5]
88 (1938) 601 at 621–622. See also Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 73-78 (Hungerford J); McManus v Scott-Charlton (1996) 70 FCR 16 at 21 (Finn J); Thompson v IGT (Australia) Pty ltd (2008) 173 IR 408–409 at [49]-[51] (Goldberg J).
89 R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday & Sullivan (1938) 60 CLR 601 at 622 (Dixon J).
90 McManus v Scott-Charlson (1996) 70 FCR 16 at 30 (Finn J)
91 Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 112.
92 Applicant Submissions, 9 November 2021 at [38]-[39]; Ai Group Submission at [88]; ACCI Submission at [3.2] and [3.4]; Respondent Submission, 16 November 2021 at [97]-[98]; ACTU Outline of Submissions, 11 November 2021 at [10] and [14].
93 Section 35 of the Victorian Occupational Health and Safety Act 2004 is in similar terms to s.48 of the WHS Act. Western Australia has enacted new legislation based on the model laws, which is due to commence in early 2022.
94 ACTU Outline of Submissions, 11 November 2021 at [9].
95 ACTU Outline of Submissions, 11 November 2021 at [10]-[11].
96 ACTU Outline of Submissions, 11 November 2021 at [12].
97 Ibid.
98 Two cases which discuss the consultation obligation in s.48 of the WHS Act are: Felton v BHP Billiton Pty Ltd[2015] FWC 1838, at [53]-[78] and Brasell-Dellow v Queensland (Queensland Police Service) [2021] QIRC 356, at [123]–[131]. See also Nazih Beydoun & Ors v Northern Health & Ors[2021] FWC 6341.
99 Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 at [212].
100 TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 178–179.
101 TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93 at 101.
102 QR Limited v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150, [81].
103 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 at [44].
104 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 at [44].
105 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 at [44].
106 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FCA 1431 at [60].
107 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 1009 at [60].
108 Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 at [211].
109 Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 at [211].
110 Construction, Forestry, Mining and Energy Union v The Newcastle Wallsend Coal Company Pty (1998) 88 IR 202, 217.
111 Sinfield v London Transport Executive [1970] 1 Ch 550, 558.
112 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 at [45].
113 Consultation clause in modern awards [2013] FWCFB 10165 at [35].
114 Construction, Forestry, Mining and Energy Union v The Newcastle Wallsend Coal Company Pty (1998) 88 IR 202 at 218.
115 See, for example, the submissions of the Applicants at [11]-[12], ACTU at [44]-[48] and AMWU and CEPU at [13].
116 ACCI Further Supplementary Submissions. 23 November 2021 at [4.1]-[4.16].
117 ACCI Further Supplementary Submissions. 23 November 2021 at [5.1]-[5.2].
118 Respondent’s Answers to the Full Bench’s Questions at pp.3-5 (responses to questions 4 and 5).
119 Ai Group Submission in response to the background paper, 23 November 2021 at [4]-[7] (responses to questions 4 and 5).
120 See ACTU Submissions in response to the Full Bench’s questions and in reply, 23 November 2021 at [46].
121 For example, under the model consultation term in Schedule 2.3 to the FW Regulations, the consultation obligation arises where the employer ‘has made a definite decision to introduce a major change …’
122 Available at:
123 Respondent’s Answers to the Full Bench’s Questions, 23 November 2021 at p 5 (response to question 6).
124 FW Act ss.590 and 591.
125 See the Explanatory Memorandum to the Work Health and Safety Bill 2011 (Cth) at 902. Sections 275 of the WHS Act and the Work Health and Safety Act 2011 (Cth) are in the same terms, and were enacted to achieve harmonization of work, health and safety laws across Australia.
126 Termination, Change and Redundancy Case [1984] 8 IR.
127 Termination, Change and Redundancy Case [1984] 8 IR at [52].
128 See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Jemena Asset Management Pty Ltd[2016] FWC 6494 (Gostencnik DP, 7 October 2016) at [30].
129 (2016) 248 FCR 18.
130 Ibidat 386.
131 Ibid at 186.
132 Ibid at 498.
133 Ai Group Reply Submission, 16 November 2021 at [103].
134 ACTU Submissions in response to the Full Bench’s questions and in reply, 23 November 2021 at [30].
135 ACTU Submissions in response to the Full Bench’s questions and in reply, 23 November 2021 at [34]-[38].
136 Respondent’s Submissions, 16 November 2021 at [109]-[111].
137 In Ai Group’s Reply Submission, 16 November 2021 at [95]-[106], Ai Group submits that clause 30 of the Agreement does not apply to the direction to vaccinate and any failure to comply with the clause does not remove an employer’s capacity to issue a lawful and reasonable direction.
138 Respondent Submissions, 16 November 2021 at [28].
139 Respondent Submissions, 16 November 2021 at [29].
140 Respondent Submissions, 16 November 2021 at [35]-[36].
141 Respondent Submissions, 16 November 2021 at [37].
142 Respondent Submissions, 16 November 2021 at [39].
143 Respondent Submissions, 16 November 2021 at [40].
144 Respondent Submissions, 16 November 2021 at [41].
145 Respondent Submissions, 16 November 2021 at [45].
146 Respondent Submissions, 16 November 2021 at [48].
147 Respondent Submissions, 16 November 2021 at [49].
148 Respondent Submissions, 16 November 2021 at [102].
149 Respondent Submissions, 16 November 2021 at [103].
150 Respondent Submissions, 16 November 2021 at [25].
151 Respondent Submissions, 16 November 2021 at [29].
152 Respondent Submissions, 16 November 2021 at [31]-[32]. This was current as at the date of the submission.
153 Respondent Submissions, 16 November 2021 at [36].
154 Respondent Submissions, 16 November 2021 at [38]-[43].
155 Respondent Submissions, 16 November 2021 at [104(d)].
156 Respondent Submissions, 16 November 2021 at [48].
157 Statement of Witness R3 at PT-33.
158 Transcript, 25 November 2021 at PN1652.
159 Respondent Submissions, 16 November 2021 at [39].
160 Respondent Submissions, 16 November 2021 at [104(B)(i)].
161 Respondent Submissions, 16 November 2021 at [40].
162 See for example MM-5 to the Statement of Witness R2.
163 Applicant Submissions at [47], citing Statement of Witness A1 dated 3 November 2021 at [21].
164 Applicant Submissions at [48], citing Howard Statement dated [48] to [61] Witness Statement A1 at [27] to [66].
165 Statement of Witness R1 at [66].
166 Statement of Witness R1 at [69].
167 Transcript, 25 November 2021 at PN1649.
168 Ai Group Submission in response to the background paper, 23 November 2021 at [18] - [27].
169 AMWU and CEPU Reply Submissions, 23 November 2021 at [27] - [31].
170 (1959) 101 CLR 298.
171 Transcript, 25 November 2021 at PN1651.
172 Reply Submissions of AMWU and the CEPU, 23 November 2021 at [28].
173 Xiu Zhen Huang v Rheem Australia Pty Ltd Print 954993, 9 February 2005 per Lawler VP, Leary DP and Deegan C at [33]; applied in Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989.
174 See decision of the Full Bench in Tamayo v Alsco Linen Service Pty Ltd, Print P1859, 25 February 1997.
175 Print P1859, 4 November 1997 per Ross VP, Drake DP and Cargill C. Also see Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited[2018] FWCFB 3989.
176 Brandi v Mingot (1976) 12 ALR 551 at 559-560 per Gibbs ACJ, Stephen, Mason and Aickin JJ; R v Buckland [1977] 2 NSWLR 452 at 457.
177 Earle v. Castlemaine District Community Hospital (1974) VR 722 at 728 and 734.
178 Dilosa v. Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582.
179 Respondent Submissions, 16 November 2021 at [104(d)].
180 Transcript, 24 November 2021 at PN1225.
181 Transcript, 24 November 2021 at PN438-439.
182 Transcript, 25 November 2021 at PN1650.
183 Exhibit R6 at pp 103-4.
184 Exhibit R3 at [16].
185 Respondent Submissions, 16 November 2021 at [104(d)].
186 Ai Group Submission in response to the background paper, 23 November 2021 at [21]-[22].
187 ACCI Submissions, 16 November 2021 at [3.12].
188 ACTU Outline of Submissions, 11 November 2021 at [8].
189 Respondent Submissions, 16 November 2021 at [107].
190 Applicants’ Outline of Submissions in Response to Background Paper, 23 November 2021 at [31]; Reply Submissions of the AMWU and CEPU, 23 November 2021 at [39]; ACTU Submissions in response to the Full Bench’s questions and in reply, 23 November 2021 at [42].
191 See, for example, Respondent Submissions, 16 November 2021 at [106]; ACCI Submissions, 16 November 2021 at [3.6]; Ai Group Submission in response to the background paper, 23 November 2021 at [34].
192 Ai Group Submission in response to the background paper, 23 November 2021 at [36].
193 Ai Group Submissions, 16 November 2021 at [91]-[93] and Further supplementary submissions of ACCI , 23 November 2021 at [12.9].
194 Respondent Answers to the Full Bench’s Questions, 23 November 2021 at pp.14-15.
195 (1998) 194 CLR 355.
196 Reply submissions of the AMWU and CEPU at [41].
197 Under questions 11 and 12 of the Background Paper, in addition to Saunders DP’s decision on the application for interim relief, to the extent considered relevant, the parties were requested to consider the decisions of TVW Enterprises Ltd v Duffy [1985] FCA 525, (1985) 8 FCR 93, Kutlu v Director of Professional Services Review [2011] FCAFC 94 and Project Blue Sky v Australian Broadcasting Authority (S41-1997) [1998] HCA 28 (and any other authorities).
198 Such as the exercises of power addressed, with differing outcomes, in TVW Enterprises Ltd v Duffy (1985) 8 FCR 93 and Kutlu v Director of Professional Services Review (2011) 197 FCR 177.
199 ACCI submission, 16 November 2021 at 3.16-3.21.
200 (1998) 194 CLR 355 at [100] (McHugh, Gummow, Kirby and Hayne JJ).
201 Respondent Submissions, 16 November 2021 at [122].
202 (1986) 161 CLR 141.
203 Ibid at p 147. Also see Re Refugee Review Tribunal and Another Ex parte AALA (2000-2001) 204 CLR 82 at 116 per Gaudron and Gummow JJ.
204 [2010] FCAFC 150; (2010) 204 IR 142.
205 Ibid at [31]–[32]; Gray J, at [67], generally agreed with their Honours’ reasons.
206 Ibid at [14].
207 (1984) 154 CLR 472.
208 Ibid at 493-494, cited in QR Ltd at [14].
209 Applicants Outline of Submissions in reply, 23 November 2021 at [30].
210 Respondent Submissions, 16 November 2021 at [113].
211 Ai Group Reply Submission, 16 November 2021 at [110]-[111].
212 ACCI Submission, 16 November 2021 at [4.1]-[4.7]; Respondent Submissions, 16 November 2021 at [113].
213 Transcript of 25 November 2021 at PN 1984.
214 Privacy Act, s.6.
215 Privacy Act, s.15.
216 Privacy Act, s.6.
217 Ibid.
218 Privacy Act, APP 3.5.
219 Privacy Act, s.6.
220 Privacy Act, APP 3.4(a)
221 See Coronavirus (COVID-19) Vaccinations: Understanding your privacy obligations to your staff, available at
222 Privacy Act, APP 3.4(b)
223 Privacy Act, s.16A.
224 Privacy Act, s.6.
225 Australian Information Commissioner, Australian Privacy Principles Guidelines, available at at B.35.
226 Coronavirus (COVID-19) Vaccinations: Understanding your privacy obligations to your staff, available at
227 Lee v Superior Wood Pty Ltd [2019] FWCFB 2946.
228 Ibid at [58].
229 Privacy Act, APP 5.1.
230 AMWU/CEPU submissions at [11].
231 (1992) 175 CLR 218 (Marion’s case).
232 Ibid at 233.
233 Ibid.
234 [2021] NSWSC 1320.
235 Submission of the AMWU and CEPU at [15].
236 Ibid.
237 Quinn v Overland [2010] FCA 799 at [101]; approved in Maritime Union of Australia v Fair Work Ombudsman [2016] FCAFC 102 at [22] per Tracey and Buchanan JJ. Also see ZZ v Secretary to the Department of Justice [2013] VSC 267 at [87] per Bell J.
238 Transcript, 25 November 2021 at PN1891.
239 Transcript, 25 November 2021 at PN1891.
240 Four Aviation Security Service Employees v Minister of COVID-19 Response [2021] NZHC 3012
241 Transcript, 25 November 2021 at PN1889. We note that Mt Arthur goes on to submit that a worker’s right to bodily integrity does not ‘trump’ Mt Arthurs right to discharge its statutory and common law obligations.
242 Applicants Submission, 9 November 2021 at [58].
243 Applicants Submission, 9 November 2021 at [59].
244 Applicants Submission, 9 November 2021 at [62].
245 Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at [52].
246 R v Commercial Industrial Construction Group Ltd (2006) 14 VR 321 at [30].
247 Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at [52].
248 Respondent’s submissions, 19 October 2021 at [68] to [73].
249 Application, 19 October 2021, Question 2.1 at [17].
250 Application, 19 October 2021, Question 2.1 at [17].
251 Submissions of the AMWU and CEPU, 9 November 2021 at [18]-[21].
252 Submissions of the AMWU and CEPU, 9 November 2021 at [22].
253 Submissions of the AMWU and CEPU, 9 November 2021 at [24]-[25].
254 Submissions of the AMWU and CEPU, 9 November 2021 at [26]-[28].
255 Submissions of the AMWU and CEPU, 9 November 2021 at [29]-[30].
256 Submissions of the AMWU and CEPU, 9 November 2021 at [31].
257 Submissions of the AMWU and CEPU, 9 November 2021 at [33].
258 Respondent Submissions, 16 November 2021 at [15] and [69].
259 Respondent Submissions, 16 November 2021 at [17].
260 Respondent Submissions, 16 November 2021 at [21].
261 Respondent Submissions, 16 November 2021 at [23].
262 ACCI Submissions, 16 November 2021 at [10.13]-[10.14].
263 Ai Group Reply Submissions, 16 November 2021 at [41].
264 Ai Group Reply Submissions, 16 November 2021 at [76].
265 Supplementary Statement of Peter Colley at [7].
266 Supplementary Statement of Peter Colley at [6].
267 Exhibit R12 at [58]-[69]; Exhibit R10 at [11], [18], [24], [30]; Transcript, 24 November 2021 at PN1367-1389 & PN1415-1418.
268 Exhibit R12 at [58]-[69]; Exhibit R10 at [11], [18], [24], [30]; Transcript, 24 November 2021 at PN1367-1389 & PN1415-1418.
269 Exhibit R2 at TD-28; PN1851.
270 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 1009 at [60].
271 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 at [44].
272 Consultation clause in modern awards [2013] FWCFB 10165, [35].The Work Health and Safety Bill 2011 (Cth) Explanatory Memorandum explains that clause 48(1) establishes the requirements for meaningful consultation. It requires PCBUs to: share relevant information about work health or safety matters (listed in clause 49) with their workers; give workers a reasonable opportunity to express their views; and contribute to the decision processes relating to those matters. It also requires PCBUs to take workers’ views into account and advise workers of relevant outcomes in a timely manner.
273 R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday & Sullivan (1938) 60 CLR 601 at 622 (Dixon J).
274 [2021] FCA 883.
275 Ibid at [218].
276 McManus v Scott-Charlson (1996) 70 FCR 16 at 30 (Finn J).
277 Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 112.
278 Transcript, 25 November 2021 at PN1669.
24