Finlay v Commissioner of Police as the Chief Executive Officer of the Department Known as the Police Service (Department of Police) - [2022] WASC 272

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   FINLAY -v- COMMISSIONER OF POLICE AS THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT KNOWN AS THE POLICE SERVICE (DEPARTMENT OF POLICE) [2022] WASC 272
CORAM:   ALLANSON J
HEARD:   13 JULY 2022
DELIVERED          :   23 AUGUST 2022
FILE NO/S:   CIV 1081 of 2022
BETWEEN:   LESLIE HENRY FINLAY
Applicant
AND
COMMISSIONER OF POLICE AS THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT KNOWN AS THE POLICE SERVICE (DEPARTMENT OF POLICE)
Respondent

Catchwords:

Administrative law - Judicial review - Where applicant is a public sector employee - Where CEO of department issued order requiring all employees to be vaccinated against COVID-19 - Where applicant faced statutory discipline procedures for disobeying lawful order - Whether order requiring vaccination lawful exercise of power of CEO

Legislation:

Public Health Act 2016 (WA)
Public Sector Management Act 1994 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	S E J Prince SC & B J Tomasi
Respondent	:	K M Pettit SC & J F Bennett

Solicitors:

Applicant	:	Hotchkin Hanly
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Barber v Goodstart Early Learning [2021] FWC 2156
Bropho v Western Australia (1990) 171 CLR 1
CFMMEU v BHP Coal Pty Ltd [2022] FWC 81
Coco v The Queen (1994) 179 CLR 427
Falconer v Chief Health Officer [No 3] [2022] WASC 270
Falconer v Commissioner of Police [No 4] [2022] WASC 271
Kassam v Hazzard [2021] 106 NSWLR 520
Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818
McManus v Scott‑Charlton (1996) 70 FCR 16
One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2018] FCAFC 77; (2018) 262 FCR 527
R v Darling Island Stevedoring and Lighterage Co; Ex parte Halliday v Sullivan (1938) 60 CLR 601

ALLANSON J:

Introduction

The applicant, Leslie Henry Finlay, is a public service officer employed in the Police Department. The Commissioner of Police issued an Employer Direction requiring all Police Force employees to be vaccinated against COVID‑19. The applicant is not vaccinated and does not intend to be vaccinated.
Under the Public Sector Management Act 1994 (WA), it is a breach of discipline to disobey or disregard a lawful order. The question in this action is whether the Employer Direction is a lawful order.
In these reasons, unless stated otherwise, references to legislation are to the Public Sector Management Act.

The applicant's employment

The applicant is employed in the Police Department as a call taker/radio operator.
The Commissioner of Police is deemed to be the Chief Executive Officer and the 'employing authority' of public service officers employed in the Police Department.[1]
[1] See Public Sector Management Act (WA) s 4(3), s 5(1)(c)(i).

The making of the Employer Direction

On 12 November 2021, the Western Australian Chief Health Officer published directions under the Public Health Act 2016 (WA), the effect of which was to prohibit police officers, and others, from attending for work at any WA Police Facility unless vaccinated against COVID‑19.
On 24 November 2021, following several earlier announcements, the Commissioner of Police issued an Employer Direction to all Western Australia Police Force employees, including sworn officers and those employed under the Public Sector Management Act. The Employer Direction was effective from 1 December 2021. Relevantly it stated:
You are directed to:
·Be vaccinated against COVID-19 in accordance with Part 1 of the Schedule to this direction unless you are exempt from the requirements of the Directions;[2] and
·Provide evidence of your vaccination, or of any exemption applying to you, in accordance with Part 2 of the Schedule to this direction.
[2] The Directions referred to those issued earlier by the Chief Health Officer.
Part 1 of the Schedule provided:
All employees, as part of their employment, must be vaccinated against COVID-19, as follows
·Before 12:01 am on 1 December 2021 - Partially vaccinated (first dose); and
·Before 12:01 am on 1 January 2022 - Fully vaccinated (two doses).
It further provided that failure to comply was a breach of discipline which may result in disciplinary action, the outcome of which may vary from a reprimand to dismissal.
The direction was consistent with a document issued to public sector employers and entitled 'COVID‑19 mandatory vaccination requirements: Information for public sector employers'.[3]
[3] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 59.
The Employer Direction has since been withdrawn.

The Public Sector Management Act

The Act is, by its long title, 'to provide for the administration of the Public Sector of Western Australia and the management of the Public Service and other public sector employment'.
Part 2 of the Act sets out Public Sector principles including public administration and management principles, human resource management principles, and principles of conduct. The human resource management principles include in s 8(1)(c), that employees are not to be subject to arbitrary or capricious administrative acts.
It is a function of the Commissioner, as CEO, under s 29(1)(g) of the Act to manage and direct employees employed in the Police department and to be responsible for the recruitment, selection, appointment, deployment and termination of employment of those employees.
The provisions of pt 5 of the Public Sector Management Act apply to the applicant in relation to any suspected breach of discipline for disobeying or disregarding a lawful order.[4] By s 80, an employee who disobeys or disregards a lawful order commits a breach of discipline,[5] and is liable to disciplinary action. Disciplinary action may be limited to 'improvement action, but may also include a reprimand, fine, transfer, reduction in remuneration or classification, or dismissal.[6]
[4] Section 76(3).
[5] Section 80.
[6] Section 80A.
Section 81 sets out options for the employing authority, which include dealing with the matter as a disciplinary matter. Section 82A sets out the manner of dealing with a disciplinary matter.
Section 78 of the Public Sector Management Act provides an appeal to the Public Service Appeal Board to an employee aggrieved by a decision to take disciplinary action. The Public Service Appeal Board exercises jurisdiction under the Industrial Relations Act 1979 (WA), as a constituent authority of the Western Australian Industrial Relations Commission.
In contrast to the Police Force Regulations, by which failure to obey a lawful order is an offence against the discipline of the Force, the Public Sector Management Act does not speak in terms of a charge or offence of breach of discipline, or findings of guilt.[7]
[7] Provisions for dealing with a 'charge' of breach of discipline were removed by amendment in 2010.

The power to direct vaccination

This action was heard at the same time as Falconer v Chief Health Officer,[8] a challenge to Directions issued by the Chief Health Officer, and Falconer v Commissioner of Police,[9] a challenge to the Employer Direction by a member of the Police Force. These reasons should be read with the reasons in those actions. But there are important differences.
[8] Falconer v Chief Health Officer [No 3] [2022] WASC 270.
[9] Falconer v Commissioner of Police [No 4] [2022] WASC 271.
I am not aware of any authority directly dealing with whether an order by an employer which requires a person to undergo vaccination or face a disciplinary process and possible disciplinary action, including dismissal from employment, is unlawful for infringing the right of bodily integrity. There are several cases, relied on by the respondent, where employees have faced termination of employment for wilful disobedience of a requirement to vaccinate: for example, where being vaccinated against influenza or COVID-19 has been regarded as an inherent requirement of their continued employment.[10] While, for example, the requirement to be vaccinated in CFMMEU v BHP Coal Pty Ltd was expressed as a site access requirement, it further provided that workers 'who cannot comply without reasonable excuse will be asked to show cause why their employment should not be terminated'.[11]
[10] See Barber v Goodstart Early Learning [2021] FWC 2156 [343] - [359]; Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 [56] ‑ [57]; CFMMEU v BHP Coal Pty Ltd [2022] FWC 81.
[11] CFMMEU v BHP Coal Pty Ltd [30].
It is a fundamental term implied by law into all employment contracts that employees are contractually obliged to follow the lawful and reasonable directions of their employer. At common law, an employee's obligation of obedience is to lawful commands - commands which involve no illegality, which fall within the scope of the contract of service, and are reasonable.[12] Reasonableness is not a separate requirement, but is the standard or test by which the common law determines whether an order is lawful.[13] Reasonableness is not determined in a vacuum, but rather by reference to '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…'[14]
[12] R v Darling Island Stevedoring and Lighterage Co; Ex parte Halliday v Sullivan (1938) 60 CLR 601, 621 ‑ 622.
[13] One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2018] FCAFC 77; (2018) 262 FCR 527, 564; McManus v Scott‑Charlton (1996) 70 FCR 16, 21.
[14] R v Darling Island Stevedoring and Lighterage, 622.
The Commissioner submitted that, in construing the Public Sector Management Act, the only test is lawfulness. The court should presume that the legislature appreciated the common law and should hold that it deliberately did not include the requirement that a lawful order also be reasonable. The respondent submitted that the applicant was attempting, through introducing that qualification that a lawful order also be reasonable, to achieve merits review of the exercise of a statutory power.
I accept that the issue on review is not whether the power to direct employees has been correctly exercised. That would be determined in any appeal process pursuant to s 78. But some content must be given to the statutory term 'lawful order'. The Act does not separately provide for the issuing of orders to employees, but to the employing authority's function to manage and direct employees. Where, at common law, reasonableness is not a separate requirement, but has long been held to be part of the test by which an order is to be judged as lawful, I do not agree that the Act should be construed as evincing an intention to exclude that test. That is particularly so, having regard to the principle in s 8(1)(c) that employees are not to be subjected to arbitrary or capricious administrative acts. The authority of the employing authority under the Public Sector Management Act to issue lawful orders should be understood as having the same content of the common law rule, and to authorise orders which involve no illegality, which fall within the scope of the contract of service, and are reasonable.
It is, however, an issue of no consequence. In my opinion, the direction is both reasonable and lawful.
First, I make the following findings, which summarise those made in Falconer v Chief Health Officer:
(1)The Commissioner first issued broadcasts to employees in which he advised the availability of vaccination, and that it was voluntary but strongly encouraged.[15]
(2)On 3 August 2021, a broadcast authorised by the Commissioner advised a policy that all unvaccinated employees would be required to wear facemasks while at work.[16]
(3)At the same time, the Commissioner sought advice from the Chief Health Officer in respect of vaccinating WA Police Force personnel. The Commissioner expressed concern at the attrition attributed to the Delta variant, and the consequences for police staff, their families and colleagues, and the capacity for the police to perform their duty.
(4)In seeking that advice, the Commissioner referred specifically to his expectation that some personnel may elect not to receive a vaccination on medical or philosophical grounds, and on that basis sought advice as to a 'venue and/or function specific priority'.[17]
(5)The Commissioner sought advice again on 20 August 2021, referring specifically to his obligations regarding the health and safety of WA Police Force staff, and the requirement to maintain the continuity of essential policing services throughout the pandemic.[18]
(6)The Commissioner was advised, throughout this process, that vaccination was safe, effective, and the recommended measure to meet the risks of COVID-19.
(7)On 12 November 2021, the Chief Health Officer issued the Directions under the Public Health Act.
[15] See Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 1 - KMW 6.
[16] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 17.
[17] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 19.
[18] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 27.
In summary, I am satisfied that the Commissioner was advised throughout the process and, in making the Employer Directions, acted consistently with that advice.
Second, the Employer Direction was directly related to the applicant's employment. It was supported by the Commissioner's statutory obligation to provide safe and healthy working conditions. And while the Chief Health Officer Directions were in force, the applicant could not carry out his duties as an employee, and the Commissioner could not lawfully permit him or other unvaccinated employees to work in a WA Police facility.
The applicant's primary argument was that the Employer Direction violated his right to bodily integrity. The right to bodily integrity has been established as an important common law right. Important common law rights can only be abrogated by clear legislative intention, either by express words or by necessary implication.[19] The test of whether rights have been excluded by necessary implication is a stringent one.
[19] Coco v The Queen (1994) 179 CLR 427; Bropho v Western Australia (1990) 171 CLR 1.
It may be accepted that the Public Sector Management Act does not address the right of an employing authority to abrogate an employee's right to bodily integrity. The critical question is where the line should be drawn between those acts or commands which attach consequences to the choice to remain unvaccinated, and those which violate bodily integrity.
There are various ways in which an employer or other authority may require vaccination. An order under s 157(1)(j) of the Public Health Act may authorise the vaccination of a person against their will. Such an order clearly interferes with the bodily integrity of the person vaccinated. In contrast, directions or orders which limit certain activities, including attendance at a place of work, to those who are vaccinated have been held to not infringe that right. The Employer Direction issued by the Commissioner took another course. The Commissioner ordered that all WA Police employees must be vaccinated. The consequence of failure by a public sector employee to obey a lawful order may be disciplinary action under pt 5 of the Public Sector Management Act.[20]
[20] Public Sector Management Act, s 80A.
The Employer Direction did not directly infringe the right of bodily integrity. It did not purport to authorise involuntary vaccination or any act that interfered with the applicant's body without his consent.
The Employer direction did not, however, simply limit activities of those who were not vaccinated. In Kassam v Hazzard, Bell P emphasised that the orders held to be valid in that case, which limited movement or attendance at work, did not require or coerce anyone to be vaccinated and contained no sanction for anyone who exercised their own free will in deciding whether or not to be vaccinated.[21] Similarly, Leeming JA recognised that the practical effect of an order on rights and freedoms might 'loom large' for orders differently framed from those then being considered.[22]
[21] Kassam v Hazzard [2021] 106 NSWLR 520 [95] - [96].
[22] Kassam v Hazzard [174] - [175].
Arguably, an order which required vaccination and attached a legal sanction, such as liability for an offence, would require specific statutory authority. The principle of legality would be engaged in determining whether that authority had been given.
The line is not clear between such a case and that now before the court.
The Public Sector Management Act governs employment of officers and employees across State agencies and organisations. It operates in conjunction with industrial agreements and awards. Employees are appointed under the Public Sector Management Act, but also enter an employment relationship which has a basis in contract. Part of that relationship is that the employing authority may issue reasonable orders in relation to matters within the scope of the employment and with which an employee must comply. Disobeying or disregarding an order might result in the applicant facing disciplinary action. But the Act does not provide for an offence of breach of discipline, or for a finding of guilt. The disciplinary action is different in nature and kind from the enforcement of an order imposing liability for an offence.
Ultimately, I agree with the approach in the decisions in the Fair Work Commission referred to by the respondent. An employer seeking to manage their statutory responsibilities for health and safety, and to implement a proper response to the risks of the pandemic for the workforce and others who may be affected, may reasonably issue an order requiring vaccination for employees. While that may result in dismissal for those who choose not to comply, that is not itself an abrogation of the right of bodily integrity and is not itself reason to hold the order unlawful.
The balance of the application repeats grounds which I have considered and rejected in the two related cases. The Employer Direction is not beyond power for any misconstruction of the Public Health Act or the Chief Health Officer Directions. It is not legally irrational.
The application will be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TB
Associate to the Honourable Justice Allanson
23 AUGUST 2022