Jason Pintley and Ors v DP World Sydney Limited and Anor

[2024] FWC 128

[2024] FWC 128 [Note: An appeal pursuant to s.604 (C2024/687, C2024/690, C2024/691, C2024/693, C2024/695, C2024/698, C2024/697, C2024/699, C2024/702, C2024/701, C2024/703, C2024/704, C2024/708, C2024/709, C2024/710, C2024/711, C2024/712) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jason Pintley and Ors
v

DP World Sydney Limited and Anor

(U2021/10151 and Ors)

VICE PRESIDENT ASBURY BRISBANE, 16 JANUARY 2024

Applications for an unfair dismissal remedy – Whether the dismissals were harsh, unjust or unreasonable within the meaning of s. 387 of the FW Act.

Chapters				Paragraph
1.	Background and procedural history			[1]
2.	Valid Reason Decision			[11]
3.	Evidence			[16]
3.1	Common Correspondence		[16]
3.2	Sydney Applicants		[28]
3.2.1		Ryan Williams – U2021/10310	[28]
3.2.2		Matthew Tosh – U2021/10302	[34]
3.2.3		William Grace – U2021/10649	[43]
3.2.4		Nathan Severino – U2021/10300	[56]
3.2.5		Brenton Mosca – U2021/10323	[65]
3.2.6		Mathew Kinnear – U2021/10308	[76]
3.2.7		James Puhipuhi – U2021/10306	[84]
3.2.8		Vanessa Richards – U2021/10317	[89]
3.2.9		Scott Lewis – U2021/10198	[99]
3.2.10		Kitiona Tanielu – U2021/10303	[112]
3.2.11		Cain Parrott – U2021/10304	[119]
3.2.12		Teni (Danny) Tanielu – U2021/10312	[123]
3.2.13		Jacob Heath – U2021/10313	[131]
3.2.14		Fletcher Jones – U2021/10322	[137]
3.2.15		Jason Pintley – U2021/10151	[144]
3.2.16		Tom Lovas – U2021/10510	[151]
3.2.17		Mick Grujevski – U2021/10318	[158]
3.3	Brisbane Applicants		[160]
3.3.1		Kevin MacDonald – U2021/11186	[160]
3.3.2		Mickey Harriss – U2021/11089	[171]
3.3.3		Steven Orel – U2021/10690	[187]
3.3.4		Sheldon Wright – U2021/11011	[200]
3.3.5		Jamie Edwards – U2021/11013	[212]
3.3.6		Troy Williams – U2022/998	[221]
3.3.7		Richard Taylor – U2021/11394	[245]
3.3.8		Zoltan Nemeth – U2021/11191	[254]
3.4	Respondents		[260]
3.4.1		Scott Eadie – DP World Sydney	[260]
3.4.2		Benjamin Hanley – DP World Brisbane	[294]
3.5	Notification to Applicants of termination of their employment		[316]
4.	Submissions			[318]
4.1	Sydney Applicants		[318]
4.2	DP World Sydney		[339]
4.3	Brisbane Applicants		[363]
4.4	DP World Brisbane		[367]
5.	Consideration			[380]
5.1	Approach to considering and weighing matters in s. 387		[380]
5.2	Whether the Applicants were notified of the reason for dismissal – s. 387(b)		[407]
5.3	Whether the Applicants were given opportunity to respond to reasons for dismissal – s. 387(c)		[422]
5.4	Whether the Applicants were refused a support person – s. 387(d)		[479]
5.5	Whether the Applicants were warned of unsatisfactory performance – s. 387(e)		[481]
5.6	Impact of size of the Respondent’s enterprise – s. 387(f) and (g)		[482]
5.7	Other relevant matters – s. 387(h)		[483]
5.8	Conclusion in relation to s. 387 matters		[494]
6.	Remedy			[495]
6.1	Legislation		[495]
6.2	Whether reinstatement is appropriate		[498]
6.3	Compensation		[512]
7.	Next Steps			[528]

1. Background and procedural history

1. This Decision concerns applications made by 25 former employees of DP World Sydney Limited (DP World Sydney) and DP World Brisbane Pty Ltd (DP World Brisbane) (collectively, the Respondents/DP World). The Respondents are subsidiary companies wholly owned by DP World Australia Limited which operates a national container stevedoring business at shipping container terminals in Sydney, Brisbane, Melbourne and Fremantle. With effect from 21 October 2021, DP World adopted the DP World Australia COVID-19 Vaccination Mandate (Mandate) requiring that employees receive two doses of vaccination against COVID–19 by specified dates depending on their locations. Employees were also required to inform DP World of their vaccination status and provide evidence of vaccination or a medical contraindication to vaccination by the required dates. Each of the Applicants was dismissed for failing to comply with the Mandate.

1. The applications were made under s. 394 of the Fair Work Act 2009 (the FW Act) and each Applicant seeks a remedy of reinstatement for unfair dismissal. The Mandate continued to apply at DP World terminals at the time the applications were heard, although the Construction, Forestry, Maritime, Mining and Energy Union – Maritime Union of Australia Division (MUA) contends that the Respondents are maintaining their position in relation to the Mandate pending the final determination of these proceedings and that the Mandate is not being enforced at DP World’s terminals, and employees have not been required to receive boosters to maintain the currency of their COVID-19 vaccinations.

1. With the agreement of the parties, a two-part process for dealing with the applications was put in place whereby an initial hearing was conducted to deal with the question of whether there was a valid reason for each dismissal as provided in s. 387(a) and a second hearing was conducted to deal with the other matters in ss. 387(b) – (h) and if the dismissals were found to be unfair, the question of remedy.

1. At the initial hearing in relation to valid reason, the MUA represented 21 Applicants located in both Sydney and Brisbane. The case for those Applicants was conducted by the MUA’s National Legal Officer, Mr Kirk Bond. Four of the Applicants were self-represented. Mr Stephen Crilly of Seyfarth Shaw Australia was granted permission under s. 596 of the FW Act to represent the Respondents.

1. In a Decision issued on 10 January 2023[1] (the Valid Reason Decision), I determined that the introduction of the Mandate was a reasonable response to the situation the Respondents were in, not unlawful and that the Applicants’ non-compliance with the Mandate was a valid reason for their dismissals notwithstanding DP World’s failure to comply with requirements in relation to consultation with the MUA, Workplace Health and Safety Representatives (HSRs) and employees under relevant work health and safety legislation and arguably the Agreements applying to employees at the Sydney and Brisbane operations of DP World. I also indicated my view that the finding in relation to valid reason would not preclude a subsequent conclusion in the next phase of the proceedings that all or some of the dismissals were unfair for other reasons based on procedural fairness and various potentially mitigating factors which would fall for consideration under ss. 387(b) – (h) of the FW Act[2].

1. An appeal was lodged against the Valid Reason Decision by the 21 Applicants represented by the MUA and 3 of the self-represented Applicants. In a decision issued on 21 March 2023[3], a Full Bench of the Commission dismissed the appeals after concluding that the Valid Reason Decision did not determine any matters on an intermediate or final basis and no competent appeals capable of consideration under s. 604 of the FW Act, were advanced by the Appellants. Member Assisted Conciliation Conferences were also conducted which did not result in the matters being resolved.

1. Directions were issued on 4 April 2023 for a hearing to determine the outstanding matters. Directions were issued requiring the Applicants to file outlines of submissions and witness statements in support of their contentions in relation to ss. 387(b) – (h) and in relation to remedy, as provided in ss. 391 and 392. The Respondents were directed to file an outline of submissions and witness statements in response to the material filed by the Applicants. The Applicants were also afforded an opportunity to provide any material in reply.

1. At the request of the parties, an in-person hearing was conducted over 4 days on 11 and 12 July 2023 in Sydney and on 25 and 26 July 2023 in Brisbane. The hearing was conducted in both locations to enable Applicants based in those locations to attend the hearing and give evidence before the Commission. Some Applicants were unable to attend the hearing in person and gave evidence by video link. At the hearing, the MUA continued to represent 21 Applicants and in addition, represented Mr Kevin MacDonald who was self-represented in the initial hearing. Three Applicants (Mr Jason Pintley, Mr Zoltan Nemeth and Mr Richard Taylor) continued to be self-represented. Mr Crilly continued his appearance for the Respondents in accordance with permission granted in the proceedings relating to valid reason. A list of the Applicants indicating their location, their mode of attending the hearing and the material supporting their applications is set out in Annexure A to this Decision. Where necessary I have also referred to the Applicants as the Sydney Applicants and the Brisbane Applicants.

1. At the hearing Mr Bond advised that one of the represented Applicants – Mr Mick Grujevski[4] – who filed a witness statement in support of his application, did not wish to participate in the hearing or give evidence before the Commission.[5] I accepted the Respondents’ submission that Mr Grujevski’s witness statement should not be tendered into evidence on the basis that it was not sworn and his evidence was not able to be tested in cross-examination.[6] The material before the Commission in support of Mr Grujevski’s application, and to which I have had regard, comprises his Form F2 Application and the submissions made on behalf of the represented Applicants by the MUA.

1. Evidence for the Respondent was given by Mr Scott Eadie, General Manager Operations Sydney[7] and Mr Benjamin Charles Hanley, General Manager Operations Brisbane[8]. Mr Hanley and Mr Eadie also relied on their statements in the valid reason proceedings and were cross-examined in relation to those statements and their statements in the present proceedings.[9]

1. Valid Reason Decision

1. The central argument advanced in the case for the Applicants represented by the MUA in relation to valid reason was that the Mandate was not a lawful and reasonable direction because DP World did not comply with its consultation obligations under the Work Health and Safety Act 2011 (NSW) and Work Health and Safety Act 2011 (Qld) (WHS Acts) which are in identical terms, as well as obligations under the DP World Sydney Enterprise Agreement 2020 (Sydney Agreement) and the DP World Brisbane Agreement 2020 (Brisbane Agreement) (collectively the Agreements) to consult about changes to workplace health and safety matters. Accordingly, it was contended that dismissal for failure to follow a direction that was not lawful and reasonable, could not be for a valid reason. The MUA did not assert failure on the part of DP World to consult under the provisions of the Agreements dealing with consultation in relation to workplace change.

1. This argument was based on the contention that the decision of a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[10] (Mt Arthur Coal) is dispositive of the issue for determination, and that if I followed that decision, as I was required to do, “DP World loses”. In this regard, the MUA asserted that:

·  The Site Access Requirement (SAR) considered by the Full Bench in Mt Arthur Coal has the same effect as the Mandate in the present case;

·  The Full Bench in Mt Arthur Coal found that the SAR was not a lawful and reasonable direction due to a failure on the part of the employer to comply with consultation obligations under the same terms of the WHS Acts relevant in the present case;

·  The consultation engaged in by the employer in Mt Arthur Coal was comprehensive compared to a total lack of consultation engaged in by DP World; and

·  Consistent with the decision of the Full Bench in Mt Arthur Coal, I am bound to find that failure on the part of employees to comply with the Mandate is not a refusal to follow a lawful and reasonable direction and therefore does not constitute a valid reason for dismissal as encompassed in the consideration in s. 387(a) of the FW Act.

1. The self-represented Applicants raised various additional issues relating to the lawfulness and reasonableness of the Mandate. These can be broadly categorised as: medical and scientific issues, going to the efficacy, effects and the approval of various vaccinations for use; legal issues said to arise under Australian and international law; and practical issues including the necessity of implementing the Mandate and whether other control measures could have been taken to mitigate the risks of COVID – 19 to the Respondents’ workforce.

1. In the Valid Reason Decision, I concluded that the Mandate was objectively a valid, sound, and defensible response to the circumstances confronting the Respondents in September 2021 and that failure on behalf of the Respondents to consult employees as required by the terms of WHS Acts and Agreements, did not of itself necessitate a conclusion that a failure to comply with the Mandate was not a valid reason for the dismissal of the Applicants. In reaching this conclusion I considered, among other matters, the findings of the Full Bench in Mt Arthur Coal that the content of any specific requirement to consult is determined by context, including the circumstances in which it arises and that circumstances may dictate a quick result. I also concluded that the failure of each of the Applicants to comply with that direction was a valid reason for dismissal in each case. My conclusions were based on the following findings:

“[518]      Contrary to the submissions of the MUA the relevant point for considering whether there was a valid reason for dismissal is the date on which the Applicants were dismissed and not the date the Mandate was announced or implemented. In the case of the Sydney Applicants no dismissal took effect before 25 October 2021 with the majority taking effect on that date. In the case of the Brisbane Applicants no dismissal took effect before 8 November 2021 with the majority taking effect on 17 November 2022.

[519]     I accept the comprehensive evidence advanced by the witnesses for DP World about the factual scenario that existed at the time the dismissals were effected. While the MUA witnesses and the self-represented Applicants took issue with the emphasis or weight that should be placed on those facts, no fact of any significance was disputed. The overwhelming weight of the evidence, which I do not repeat, establishes that at the time the Mandate was introduced and the dismissals were effected:

·The Respondents operated 1/3 of the container terminals in Australia and its operations accounted for 42% of the National market share and 35 – 40 % in the East Coast Ports.

·The economic and social costs of DP World not operating or being impacted at this time could have been devastating in terms of supplies of goods which included essential supplies of food and medical items as well as necessary goods to keep industry working and Australians employed.

·In the second half of 2021, Sydney experienced an outbreak of COVID-19 caused by the Delta variant of the SARS-CoV-2 virus. The Delta variant was generally accepted to be more transmissible than the original (“Alpha”) form of the virus and appears to have had more severe health impacts.

·From 6 September 2021 onwards, New South Wales was subject to various iterations of the Public Health (COVID-19 Self-Isolation) Order with close contacts required to isolate for up to 14 days.

·On or around 15 September two employees at DP World Sydney tested positive for COVID – 19 which resulted in 35 employees being required to isolate at home for 14 days and another 53 employees being required to isolate until they received a negative PCR test graphically illustrating the effect on the Respondents’ operations.

·This effect was compounded by the impact of restrictions on movement for unvaccinated persons outside local government areas which comprise a significant proportion of DP World Sydney’s Workforce.

·The potential for such impact increased by the point that the Sydney dismissals took effect because of changes to the contact tracing requirements effective from 21 October which meant that unvaccinated persons were required to isolate for longer periods than those who were vaccinated.

·It was likely that cases in Queensland would increase exponentially when borders opened and similar restrictions to those applicable in New South Wales may have been imposed at any time given the fluidity of the situation.

[520]     In short compass, there were compelling reasons for DP World to introduce the Mandate and it is not to the point that other stevedoring companies did not take similar steps. It is also the case that consistent with the medical, scientific and epidemiological findings of the Full Bench in Mt Arthur Coal, vaccination was the most effective control to manage the adverse impacts of the virus.

[521] While consultation did not meet the requirements of the WHS Act and arguably the Enterprise Agreements, this is swamped by the contextual and factual circumstances demonstrated in the evidence before me. Any deficiencies in consultation are not determinative of whether there was a valid reason for the dismissal of the Applicants. This finding does not preclude a subsequent conclusion that all or some of the dismissals were unfair for other reasons based on procedural fairness and various potentially mitigating factors which will fall for consideration under ss. 387(b) – (h).”

1. I also rejected the arguments raised by the unrepresented Applicants. The MUA on behalf of the represented Applicants maintained in these proceedings that the failure of the Respondents to comply with consultation requirements meant that the dismissals were unfair because the Applicants were not given an opportunity to respond to reasons for their dismissals as provided in s. 387(c) and that there were mitigating circumstances relating to lack of consultation and the impact of dismissal on the Applicants as provided in s. 387(h). The MUA sought reinstatement of the represented Applicants contending that this would ensure that they are afforded an opportunity to consult with the Respondents in relation to workplace health and safety consistent with the Respondents’ obligations when the Mandate was introduced. The unrepresented Applicants also seek reinstatement.

1. Evidence

3.1 Common Correspondence

1. The following correspondence is common (or substantially common) to all applications or to multiple applications. All employees of the Respondent were notified on 16 September 2021, that DP World had decided to make vaccination against COVID-19 a condition of their engagement. This advice was conveyed by an announcement set out in an email from the CEO of DP World, Mr Andrew Adam, to all employees headed “DP World Australia COVID – 19 Vaccination Mandate” (Mandate announcement) which included the following information:

“Consistent with the Australian Government’s advice, COVID-19 vaccinations are a safe and effective form of protection for our people and the community to reduce transmission and associated serious health impacts. It also plays a critical role in our road map towards living with COVID-19, along with other safe measures. We have been strongly encouraging vaccination and we are pleased that so many of you have already taken up the opportunity to receive a vaccination as priority workers, along with family members.

DP World Australia has been reviewing our risk controls to ensure the ongoing safety of our People and maintaining operational continuity to keep vital supplies moving across the Australian supply chain. We have made the decision to make COVID-19 vaccination for all employees and contractors a condition of engagement. Across all DP World Australia businesses, employees and contractors are required to provide their COVID-19 digital certificate as confirmation they have received their first dose by Friday, 15 October 2021 and for their second dose by no later than Monday, 15 November 2021.”

Whilst some people will be unable to receive a vaccination due to medical contraindication, we expect these cases to be very rare. This decision has not been made lightly, however is essential in ensuring the safety of our People and ensure business continuity.

We will commence consultation with employees and health and safety representatives in the coming weeks on the details of the policy.

With your continued ongoing support, we can all stay safe together.”[11]

1. On 5 October 2021, a further email was sent to the workforce by Mr Adam including updates on the requirements of the Mandate and the dates for compliance (second Mandate announcement), as follows:

“DP World Australia COVID-19 Vaccination Mandate

Dear Colleagues,

Following on from our recent announcement to mandate COVID-19 vaccination for all employees, I would like to provide an update on our progress, along with confirming relevant updates from State Governments.

Our priority remains the safety of our People, contractors and the community as we transition to living with COVID.

The recent positive COVID-19 cases across multiple sites and Health Guidelines in New South Wales have highlighted and reinforced the key role vaccination status plays in reducing risk exposure in relation to testing and isolation requirements for employees who are exposed in the workplace. This has an impact on our ability to maintain business continuity.

In addition, both the Western Australian and Victorian governments have moved to mandate vaccination for our People through relevant State Health Orders, which is consistent with our approach.

I would like to thank all those employees who have obtained vaccination and submitted your COVID-19 digital certificates as confirmation.

Sydney

Employees and contractors are required to provide their COVID-19 digital certificate as confirmation they have received their first dose by Friday, 15 October 2021 and for their second dose by no later than Monday, 15 November 2021.

Those employees who do not provide first dose status by 9am, Friday 15 October 2021 will not be allocated to work from Saturday 16 October 2021.
…

Brisbane

Given the delays Queensland has had in moving to vaccinate people compared to NSW and Victoria, we have made the following minor adjustment to dates to finalise vaccination.

Employees and contractors are required to provide their COVID-19 digital certificate as confirmation they have received their first dose by Friday, 29 October 2021 and for their second dose by no later than Friday, 26 November 2021.

Those employees who do not provide first dose status by 9am, Friday 29 October 2021 will not be allocated to work from Saturday 30 October 2021.
…

We have already commenced consultation with employees about the implementation of our decision and health and safety representatives, which will continue across the upcoming weeks and enclose some Frequently Asked Questions for your reference.

With your continued ongoing support, we can all stay safe together.”[12]

1. A majority of the Applicants referred to these Mandate Announcements and there is no evidence that any of the Applicants did not receive them.

1. On or around 3 October 2021, some of the Sydney Applicants – Mr Tosh, Mr Lewis, Ms Richards, Mr Danny Tanielu and Mr Pintley – sent a common response to the Mandate Announcement to DP World Sydney, addressed to Mr Eadie and the HR Team, by email in the following terms:

“On 23/24 July 2021 Prime Minister Scott Morrison made a statement to the media and Australia concerning informed consent. In this statement the PM made it clear that in Australia: “We are all responsible for our own health … That in our country ‘people make their own decisions about their own health and their own bodies AND THAT IS WHY WE DON’T HAVE MANDATORY VACCINATIONS … “

Take note:

● It is a long-established principle of law that consent cannot be given in circumstances of
duress and coercion.
● If I were able to freely choose at this time I would not elect or choose to being injected with any of the currently available Covid-19 vaccines.
● You are interfering with my freedom to decline a Covid-19 vaccine by threatening me with loss of employment if I do not provide evidence to you that I have been injected with a Covid-19 vaccine.
● Your threat to me that I will lose my employment if I am not injected with a Covid-19 vaccine may amount to unconscionable and illegitimate economic duress, by you, upon me.
● In the Australian Government’s Immunisation Handbook under Section 2.1.3 Valid Consent, it states that for consent to be legally valid “It must be given voluntarily in the absence of undue pressure, coercion or manipulation.”
● Consent to a medical procedure requires the patient or recipient, after being informed of the risks and benefits of the procedure, is able to freely choose to undergo or decline the
procedure.
The threat contained within your correspondence is exerting economic duress upon me by forcing me to choose between participating in a Covid-19 vaccination clinical trial, or to lose my job
In the circumstance of economic duress being exerted upon me by you I am unable to provide consent to be injected with a Covid-19 vaccine, as duress vitiates consent.
Performing a medical procedure upon another person, absent the recipient’s consent, can amount to the criminal offence of battery, and or the tortious offence of trespass against the person.
In circumstances where consent has not, or cannot be given, the person performing the procedure may be liable both criminally and civilly. This liability is likely to extend to any individual that is exerting unconscionable and illegitimate pressure, such as economic duress, upon a person’s ability to decline a medical procedure.
The threat contained in your correspondence is also causing me an apprehension of a battery. This apprehension may constitute an assault.
Please note that the Courts offer protection for people apprehending violence against their person.
Protection includes issuing apprehended violence orders and restraining orders against individuals threatening violence. Violence can include exerting economic duress upon a person if they do not submit to a battery.
I also draw your attention to the following:
● On 22 February 2021 the Federal Minister for Health Greg Hunt MP described Australia’s Covid- 19 vaccine rollout as being part of a global clinical trial.
In ordinary circumstances I would not consent to participating in a clinical trial, the
pressure you are exerting upon me is affecting my ability to decline participation in this
clinical trial.
● The Covid -19 vaccines being trialled in Australia do not provide immunity against the SARS- CoV-2 virus or any of its variants. Nor do the vaccines prevent transmission.
I would not consent to a medical procedure that does not provide protection against
infection. This presents to me an unnecessary health risk for no perceived health benefit.
The pressure you are exerting upon me is negating my ability to decline this medical
procedure.
● There are anti- viral treatments available that provide protection against SARS-CoV-2 and that also treats the symptoms of Covid-19.
I would consider using these alternative treatments, that have proven to be safe and
effective over a long period of time, before taking any of the currently available Covid-19
vaccines.
● Covid-19 has not proven to be a significant threat to human health on a nationally significant scale. Only a very small portion of Australia’s general population is at risk of becoming seriously unwell from Covid-19; namely the elderly and the already sick. The average age of death from Covid-19 in Australia is over 80 years of age.
I am not part of the very small portion of the general population who are at serious risk
from Covid-19.
I am considering all legal protections available to me, including restraining orders, to protect my rights and to protect my person against your assault and threat of battery through the unconscionable and illegitimate economic duress contained in your correspondence, which is affecting my freedom to decline a Covid-19 vaccine.
I note the following information published by the Therapeutic Goods Administration on behalf of the Australian Government Department of Health:
● The Australian Public Health Assessment Report for BNT162b2 (mRNA), with Propriety
Product Name: Comirnaty, and Sponsor: Pfizer Australia Pty Ltd, dated January 2021.
● The Australian Product Information Sheet for the Pfizer vaccine above.
● The Australian Public Assessment Report for ChAdOx1-S, with Proprietary Product Name:
COVID 19 Vaccine AstraZeneca, and Sponsor: AstraZeneca Pty Ltd, dated February 2021.
● The Australian Product Information for the AstraZeneca Vaccine above.

The above information reveals the following:

● Approvals were given without complete safety and efficacy data being available.
● The long-term safety and efficacy of these vaccines are unknown.
● The duration and effect of vaccine protection from these vaccines are unknown.
● Vaccine efficacy against asymptomatic infection and viral transmission is unknown.
● The concomitant use of these vaccines with other drugs and vaccines is unknown.
● Vaccine data in pregnant women and lactating mothers is unknown.
● Vaccine efficacy and safety in immunocompromised individuals is unknown.
● Vaccine efficacy and safety in paediatric subjects ( < 16 years old) is unknown.
● Vaccine efficacy and safety in elderly subjects ( > 85 years old) is unknown.
● A correlation of protection has yet to be established. The vaccine immunogenicity cannot be considered and used as the surrogate for vaccine protective efficacy at this stage.
● The novelty of the mRNA technology and its possible effects are unknown.
● The real-world vaccine effectiveness when these vaccines are rolled out to a larger and more diverse population is largely unknown.
I further note that:
● The vaccine companies’ trial and study documentation and the surveillance data from
overseas reveals numerous adverse health events linked to the vaccines including
hypersensitivity, anaphylaxis, anxiety related reactions, increased triggers for autoimmune
disease, thrombocytopenia and coagulation disorders, exacerbation of neurological events,
paralysis, convulsions and death.
● The biggest risk with both vaccines is auto-immune response. From an immunology
perspective, the antibodies may be ‘tricked’ into destroying otherwise healthy cells when
encountered in future.
● Previous coronavirus vaccines have never passed the pre-clinical stage. SARS-CoV vaccines
were tested in a number of animal trials conducted which resulted in consistent auto-immune reaction outcomes. Furthermore, the m-RNA vaccines have not been used on humans before.
● The disease COVID-19 presents a 99.9% rate of full recovery for those under 70 years of age with no serious co-morbidity. Directing and/or mandating vaccines on the whole population given these statistics is a disproportionate response.
● It remains unclear if any or sufficient insurance cover will be available in the event I suffer
injury, and in the absence of a comprehensive no fault vaccine injury compensation scheme,
there is a real likelihood that I may not be compensated.
● The vaccine companies have a history of criminal conduct including charges and convictions for illegal marketing, bribery and health care fraud.
● The Australian Government has made it abundantly clear that vaccination against COVID-19 will be voluntary for the Australian public and no disincentives will apply (e.g. denial of financial benefits) to those choosing not to get vaccinated.
● Alternative controls are available to employers and occupiers to maintain occupational health and safety and public safety.

I further note that numerous laws, regulations and policies protect the right of informed consent in receiving a vaccine or any medical procedure, including but limited to:
● The Commonwealth Constitution s.51(xxiiiA) which prohibits civil conscription into medical and dental services.
● The Biosecurity Act 2015 (Cth) s.95 prohibits the use of force for vaccination.
● The Biosecurity Act 2015 (Cth) s.92 prohibits vaccination or treatment without an individual Biosecurity Control Order with stringent requirements.
● Article 6 of the UNESCO statement on Bioethics and Human Rights, Section 1, states “Any
preventative diagnostic and therapeutic medical intervention is only to be carried out with the prior free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason, without disadvantage and without prejudice”.
● Nuremberg Code, Article 1, states “The voluntary consent of the human subject is absolutely essential”.
● The Siracusa Principles, adopted by the UN Economic and Social Council in 1984 provide
authoritative guidance on government responses that restrict human rights for reasons of
public health or national emergency. These Principles state that measures taken to protect
the population that limit people’s rights and freedoms must be lawful, necessary, and
proportionate.
● Section 83.4 of the Criminal Code Act 1995 (Cth), which relates to interfering with political
liberty states “Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person of any political right or duty shall be guilty of an offence”.[13]

1. Following the general Mandate Announcement, Mr Eadie caused a letter to be sent to all Sydney Applicants on 12 October 2021, the content of which in most cases was identical, reminding employees of the requirements of the Mandate. The 12 October letter (Sydney information letter) stated:

“Important information about your employment – vaccination information is required urgently

Dear [name]

As you would be aware, DP World has initiated a range of safety measures to minimise the risk of COVID-19 to our workforce.

This includes mandating vaccinations for all employees and contractors from 15 October 2021. Andrew Adam, CEO, communicate this decision and the reasons for it, in an email to all employees on both 16 September 2021 and confirmed this again in an email on 5 October 2021. If you have any questions about this decision I would refer you to those communications, which also included an FAQ.

We have also communicated this request to you via bulletins emails, we have not yet received your vaccination confirmation.

DP World must confirm the vaccination status of all employees and where you have only had your first dose, the booking date for the second dose. The dates for compliance and the requirements are set out below.

Deadline for providing evidence of vaccination

By 9am 15 October 2021, you must provide DP World with either:

- Your full vaccination certificate OR
- A certificate demonstrating you have had one vaccine dose AND a booking for a second dose

Deadline for vaccinations

You must have had your first vaccination dose by 15 October 2021 and your second by 15 November 2021.

Medical exemptions

If you have an exemption from a medical practitioner, this must be supplied urgently to DP World and before the due date above.

Supplying your vaccination certificate and/or other information

If you have not done so, you need to submit your certificate urgently to [email protected]

If you have any questions, please send them to: [email protected]

Privacy and confidentiality of your information

DP World are collecting this information for the purposes of confirming compliance with our vaccination directive. Understanding your vaccination status is reasonably necessary. Information is stored securely and confidentially by human resources in and is only accessible to HR personnel at your site.

We have confirmed the data storage arrangements comply with our security protocols and is encrypted,
traceable and subject to strict security profiles.

This information will not be disclosed to any third parties without your consent.

Alternative work arrangements for persons who are not vaccinated

DP World will not be providing alternative work arrangements. We expect our employees to be in a position to continue to present for work after 15 October 2021 and be allocated to the full range of usual duties.

Next Steps:

We are committed to proceeding with our vaccination mandate, it is our genuine wish that you do everything possible to comply with the directive.

The direction is lawful and reasonable and is designed to ensure that we can adequately manage the safety risks and continue our operations. You will not be able to work at DP World if you fail to comply with the requirements above by the due date.

If you are experiencing genuine hardship in complying with the directive you may request one (1) additional week of annual leave (if you have an available balance) to permit you to obtain your vaccination by no later than 24 October 2021 / 21 November 2021. If you have no paid leave you may request to be placed on leave without pay for the week. Any request for Annual Leave needs to be made via Microster.

If you have not supplied information by the above date and do not make a request for approved leave, you will be required to provide reasons why your employment should not be terminated by no later than 5pm, 18 October 2021, emailed to …[email protected]

If you have any questions or need assistance in understanding how you can comply with these requirements, please email …[email protected] …”[14]

1. The Sydney information letter did not address the matters raised in the common response sent by some of the Sydney Applicants.

1. The Brisbane Applicants were sent substantially the same letter by Mr Hanley on 12 October 2021 (Brisbane information letter) with later deadlines of 29 October for a first dose of vaccine and 26 November for the second dose, and requiring information in relation to the first dose to be provided by 28 October 2021.[15] The Brisbane information letter also stated that if the Brisbane Applicants did not provide the requested information by 9.00 am on 28 October 2021 or request a week of leave, they would be required to show cause, by 5.00 pm on 1 November 2021, why their employment should not be terminated. Mr Hanley caused a follow-up email to be sent to the Brisbane Applicants on 26 October 2021 from Mr Greg Muscat (Human Resource Manager) regarding their vaccination status (second Brisbane information letter). That email appended the Brisbane information letter that had been sent to each of the Brisbane Applicants on 12 October and informed them that evidence of their COVID-19 vaccination had not been received and that any employee who did not provide evidence by 9.00 am on 28 October 2021 “will not be allocated any further (sic) including (Closed port day – Tuesday 2/11).[16]

1. On 19 October 2021, Mr Eadie caused letters to be sent to each of the Sydney Applicants on the basis that they had not complied with the direction set out in the Mandate and the Sydney information letter and inviting them to “show cause” as to why their employment should not be terminated (Sydney show cause letter). The Sydney show cause letter required that employees respond in writing by 22 October 2021. The content of the Sydney show cause letter was generic and did not include any reference to the common letter sent by some of the Sydney Applicants on or around 3 October 2021.

“Dear [name]

Re: Important information on your employment

As you will be aware, vaccination against the Covid-19 virus is now a condition of employment at DP World.

This has been communicated in various ways to all employees, including through emails sent by Andrew Adam, CEO, on both 16 September 2021 and 8 October 2021. DP World followed this with letter on 12 October 2021 which advised that the vaccination deadline was approaching.

[You responded in writing by email on [details inserted], indicating you would not comply with the vaccination requirements that have been set out to you. The email is attached.]
OR
[The Company has received no response from you to date]

Next Steps – Possible Termination of Employment

In the circumstances DP World invites you to provide reasons why it should not terminate your employment, on the basis that you are unwilling to comply with the requirement to be vaccinated and can no longer meet the requirements for performing work. You may provide this information in writing by providing a response to: [email] by 5:00pm Friday 22 October 2021.

Subsequent to this, DP World will make a determination regarding your employment based on the information available to us.

Please contact me if you wish to discuss this letter.

Yours sincerely,
[General Manager Operations]” [17]

1. The Brisbane Applicants were sent a show cause letter by Mr Hanley on or around 2 November 2021 (Brisbane show cause letter) in essentially the same terms as the letter sent to the Sydney Applicants. The Brisbane Applicants were required to respond to the show cause letter by 5 November 2021. Most Brisbane Applicants’ show cause letters additionally included the following statement:

“Please note as advised in correspondence from the Company you will are no longer being allocated to work from Saturday 30 October 2021.”[18]

1. The show cause process in relation to the Brisbane Applicants was delayed pending the outcome of an application to the Federal Court made by a group of employees, including all of the Brisbane Applicants in these proceedings, except for Mr Troy Williams,[19] in relation to the proposed termination of their employment. The Federal Court proceedings were foreshadowed by a letter sent by Green & Associates on behalf that group, on 28 October 2021, after the Brisbane information letter was sent to the Brisbane Applicants, and before 2 November 2021 when they were requested to show cause as to why their employment should not be terminated. That correspondence was in the following terms (emphasis added):

“RE: DP World COVID-19 Mandate – Employment Dispute

We act for Shaun Cox, Zoltan Nemeth, Grant Tuhakaraina, Kevin MacDonald, Sheldon Wright, Richard Taylor, Johnathan Clarke, Mickey Harris, Nicholas Wallace, Steve Orel, Carlo Fern and Jamie Edwards (“the Group”), who are all employed at the Fisherman Island Terminal (“the Terminal”). As such, kindly direct all future correspondence to the writer.

We write regarding the proposed COVID-19 vaccine mandate introduced by DP World Brisbane Pty Ltd (“the Company”). We have read, inter alia and in general terms, the following documents issued by the Company worth noting:

- Respective letters of offer / employment agreements of the Group;
- DP World media release dated 16 September 2021;
- COVID Vaccination Mandate FAQ document dated 29 September 2021;
- Correspondence sent to the Group regarding the mandate;
- COVID-19 Case Response Procedure; and
- DWPA Monthly Dashboard for July 2021.

We note an effective “show cause” deadline has been set at 5pm on 1 November 2021. You should take this correspondence as a submission in that regard on behalf of each member of the Group.

We preface this submission by making it clear at the outset that our clients’ intention is not to be adversarial or confrontational, but rather, to express their well-founded and deep, genuine concerns about the vaccine mandate (only) proposed. A number of them have their own health issues, and have experience first-hand the damage of adverse reactions, yet still wish to navigate what is arguably a grey area through to a practical and fair solution. Existing medical conditions of group members range from blood clotting, hypertension and blood pressure, right through to helicobactor pylori and other bowel and liver complications, respiratory complications and even joint problems, even before having taken a vaccine, and some have immediate family members who have suffered terribly as a direct result, to the point of hospitalisation.

In addition to this, the following are noteworthy factors regarding the particular circumstances of the employment of the Group members:

i.They have all continued to work on site through both the 2020 and 2021 lockdowns, with little to no change to their roles.

ii.The only safety measures that have been introduced for them have been hand sanitiser and the wearing of masks. The latter has not been enforced.

iii.Sometimes, but not always, they had to wait until the workers coming off shift had vacated the area before they went in.

iv.Neither rapid antigen testing, nor any other available safety measures, have been employed or proposed (which members of the Group have in fact even offered to pay for). That includes COVID-19 testing.

v.Despite mentions from the Company, and requests by members of the Group, no COVID-19 safety management plan, studies, enquiries or the result of same have been made available.

vi.Generally, all wait for a ship to arrive from international waters. The ship is berthed and the passengers do not disembark. Group members then board the vessel to unlash the bays, sometimes turn the reefers off, and discharge the containers. There is no contact between Group members and vessel staff during this process. The containers are then dropped on the port, loaded by a robot crane and taken elsewhere. Again, there is no contact with anyone outside the Group.

vii.There have been no COVID-19 positive results or issues within the group.

viii.A vaccine is not a precondition to ongoing eligibility for a MSIC card.

In light of the above, with respect and without criticism, ostensibly the situation could be managed quite easily with the introduction of mask-wearing enforcement, gloves and other PPE equipment, rapid antigen testing and regular COVID-19 testing. Instead, the Company has opted for a rather extreme, unnecessary and frankly dangerous option, whilst maintaining the following counterintuitive and inconsistent stance:

a.    The stated incident the measure is taken in response to what occurred in Botany, NSW, not even Queensland. Reading between the lines, it appears workers connected to that incident returned to work unvaccinated before the mandate was even flagged across the board.

b.   The Company has openly acknowledged that ‘despite some disruption on our Port Botany terminal, we have maintained operations and delivery’.

c.    Business performance has continued to improve, despite the COVID-19 pandemic. That has occurred now for over eighteen months, in circumstances where the vast majority of the workforce was unvaccinated.

d.   There were 3,288 interactions between people for the year to date to end-July 2021 (an increase of 1%), yet a 20% reduction in reportable injuries.

e.    The Case Response procedure allows for instances where even someone diagnosed or experiencing symptoms can remain onsite, provided they are given gloves and a mask.

f.    The Case Response procedure also does not provide for the termination of workers who have had COVID-19, but rather only workers who have not had it and who are unvaccinated (albeit at little to no identified risk of being exposed).

g.   The Company has openly stated it will continue to use unvaccinated third party contractors for services post-mandate, where their services can be provided contactless or without interaction, such as truck drivers (notwithstanding truck drivers have a higher propensity to touch cargo and interact with people than the Group does).

h.   There has been an open refusal to adopt rapid antigen testing, which is arguably the best method to eliminate risk on both sides. This is unsupported by any explanation.

i.     The Company’s position is that the risks associated with remaining unvaccinated remain far greater than for those subjected to adverse reactions, but again, this is unsupported by any evidence or reasoning.

There is a consistent theme in the materials published by the Company that its view is that the mandate is required in order to comply with workplace health and safety laws. Notwithstanding, it refuses to accept any liability for an adverse reaction suffered by an employee for what will in truth amount to, in substance, and in the present economic circumstances, economic duress or, failing which, constructive dismissal, and worst still, at a transitional period where the orders in place under the Public Health Act 2005 (QLD) cease to have effect, and vaccines will not be a legal requirement (nor are they now), but rather a conscious choice of the employer.

While we appreciate employers have a duty and legal obligation in terms of OHS and workplace laws, the following also needs to be understood, especially for people with a proven genetic disposition to adverse reactions (if only by reason of a family members sharing genetic makeup suffering an adverse reaction):

1.   Employers have a duty to provide work for their employees (see for example Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539). In this case, the proposal would have the effect of depriving the Group of work (unnecessarily).

2.   Employers have a duty to act reasonably, which has extended to refraining from the unnecessary mandating of intrusive medical interference (see for example Anderson v Sullivan (1997) 78 FCR 380).

3.   Employers have a duty of care to avoid exposing employees to unnecessary risk of injury (see for example Goldman Sachs JB Were Services Pty Ltd v Nikolich (2007) 163 FCR 62). In this case, this is the “flipside of the coin”.

4.   In circumstances where a vaccine is not necessary (as outlined above), and where no public health order or other law is in place requiring it, but rather, the common law above leans heavily against it, to terminate my employment on account of vaccination status would amount to discriminatory adverse action, contrary to s 352 of the Fair Work Act 2009 (Cth) (both on the basis of physical disability or political opinion), in addition to a number of other workplace health and safety laws.

5.   The nature and manner of the proposed mandate appears to be in contravention of section 21 of the DP World Brisbane Enterprise Agreement 2020 itself.

6.   The nature and manner of the proposed mandate also appears to constitute bullying and / or adverse action, both of which are actionable under the Fair Work Act 2009 (Cth), whether the termination occurs or is constructive. Note a successful action on the part of any Group member could include reinstatement, anti-bullying orders that reshape the approach taken across the board, the payment of uncapped damages (vis-à-vis the unfair dismissal provisions), and potential civil penalties.

7.   Finally, while these cases are being heard and some have been publicly decided in favour of the employer, the ratio or principles espoused cannot be ignored, and will not apply for the benefit of any employer at all times. Specifically, Jennifer Kimber v Saphire Coast Community Aged Care Ltd[2021] FWCFB 6015 (27 September 2021) must be distinguished from this case on the basis that the Applicant there had constant contact with vulnerable persons, a public health order was in place mandating the vaccine for her industry, and the case therefore turned on medical evidence which was insufficient on her part. It was also brought and decided at first instance (pre-appeal) when much less was known about the virus, vaccines and adverse reactions. This case is entirely different, and we now live with much less risk given vaccination rates amongst the general public, less dangerous strains, much lower infection numbers and the alternative control measures available.

It is worth noting that several members of the Group were employed during the COVID-19 period, yet none of their employment agreements mention anything about a potential vaccine mandate. Others have been working since as far back as 2000. None of them now would be likely to find alternative suitable employment until the hysteria dies down, which could be a significant period, and could result in a substantial expectation-loss claim. Having said that, all agreements do make note of the fact that there are measures readily available to the Company to test their fitness for work, including drug testing and the availability of quick medical assessments, functional assessments and medical examinations. This lends credence to the solution proposed above, at least in a practical sense, given the capacity is already readily available without the need to change any workplace practices or capabilities to any great degree.

In light of the above, we respectfully suggest the mandate be withdrawn for the Group (who would be happy to be bound by confidentiality obligations), and instead, a regime including mask-wearing enforcement, gloves and other PPE equipment being worn at all times, rapid antigen testing, regular COVID-19 testing, social distancing where possible, separation of shift workers and no-contact measures with all third parties be adopted instead. We hereby put you on notice that, in the event that such an alternative arrangement is not agreed by 10:00am 29 October 2021, or any members of the Group are either terminated or stood down without pay, we reserve the right to approach the Federal Court or the Supreme Court of QLD seeking urgent relief (including injunctive or other interlocutory relief), together with damages and costs, and that such an application may be made ex parte if the circumstances require. In circumstances where one member of the Group is currently in hospital with a medical exemption and was been told he was still too late on 27 October 2021, prior to the Company’s deadline, we are confident the Court will by sympathetic to our clients’ cause.

This offer is made in accordance with the principles stated in Calderbank v Calderbank [1975] 2 All ER 333 and applied in, for example, MT Associates Pty Ltd v Acqua-Max Pty Ltd (No 3) [2000] VSC 163 at [109]-[149] per Gillard J and Messiter v Hutchinson (1987) 10 NSWLR 525 per Rogers J. In the event that this offer is not accepted and, as we anticipate, judgment is awarded in favour of our clients on terms more favourable to the above, our clients will rely on this letter in support of an application for costs on the indemnity basis from the date of this letter. For the avoidance of doubt, those costs will include the professional fees and disbursements of this Firm, in addition to those of counsel.

We await your urgent reply.” [20]

1. In a letter dated 29 October 2021, Seyfarth Shaw Australia on behalf of DP World Brisbane, responded to this correspondence, in the following terms:

“As you know, we act for DP World Brisbane Pty Ltd.

We refer to your letter of 28 October 2021. We are instructed to respond as follows.

General observations
At a high level, your clients’ position is built on assumptions that Queensland is somehow immune from the difficulties created by COVID-19 elsewhere, and that what has occurred in the past is a reliable guide to the future. Neither is correct.

Queensland has fortunately avoided mass outbreaks of COVID-19, but this could occur at any time, and several incidents could have escalated from a small number of cases, as they did in Sydney and Melbourne. By the time this actually occurs, it is far too late to do anything about it.

Further, a large part of Queensland’s current position owes to its current border closures. That will not continue indefinitely, and when it does, COVID-9 will inevitably circulate in the community. DP World must address that issue, and it must do it before these matters become significant safety risks and threats to operational continuity.

Your Clients’ Health
At the outset, you say that members of the employees for whom you act (the Group) “have their own health issues” and experience of adverse vaccine reactions. Your letter pays no regard, however, to the fact that DP World’s vaccine mandate exempts employees who are entitled to have a vaccine exemption recorded on the Australian Immunisation Registry.

In other words, if your clients were genuinely unable to be vaccinated for medical reasons, they would not be required to be vaccinated. As the vague wording of your letter suggests, the Group are making choice not to be vaccinated, for reasons best known to themselves. They of course have that choice, but they are not immune from its consequences.

Your Clients’ Employment
In relation to your other comments about the particular features of your clients’ employment (using your numbering):

(ii) It is not correct that the only safety measures introduced have been the use of hand sanitiser and mask-wearing. DP World developed and continues to refine a comprehensive COVID Response Plan, and implemented a comprehensive suite of safety measures including, without limitation and in addition to those named:

·     social distancing;

·     staggered starts;

·     employees being allocated to the same machine for the duration of a shift to avoid cross-over;

·     reduced manning in vehicles;

·     keeping of passenger logs in vehicles;

·     cleaning products and equipment being available and used to clean all machinery prior to shift commencement;

·     increased cleaning by contract cleaners;

·     operating “continuously” so that employees do not all take breaks at the same time.

It is not correct that mask-wearing has not been enforced. As notified to employees in a bulletin on 3 August 2021, employees who cannot wear masks for medical reasons have not been able to attend the workplace.

(iii) This measure was implemented and changed a number of times, in response to Queensland Health advice.

(iv) It is not clear what “other available safety measures” are referred to. We refer in any event to (ii) above. DP World considered rapid antigen testing and did not adopt it for a range of reasons, including its cost, reliability, and the availability of a superior control in the form of vaccination.

(v) The allegation that employees have not been provided with material despite repeated requests is utterly wrong. DP World has met with health and safety representatives (HSRs) on a monthly basis, and all of them have access to relevant documentation and information.

We are further instructed that DP World is only aware of one of the Group asking for any of this documentation. The response was made by Shaun Cox at about 9:00 am on 17 October 2021. The materials requested were provided at 12:23 pm the same day.

(vi) In the first instance, vessel crews are one among many vectors by which COVID-19 might enter the terminal, the main one being employees themselves who have acquired the virus elsewhere in their lives. In any event, it is wrong that employees do not have any contact with vessel crews:

·     Employees’ names are recorded by the vessel watchman at the top of the gangway when boarding a ship.

·     Interaction with crews is required when discussing safety issues or other requests.

·     DP World employees are not permitted to turn refrigerated (reefer) containers aboard a vessel on or off. This is done by vessel crews under the instruction of employees, during which there can be interactions between the two.

·     Once vessel operations commence, if a twistlock jams, crew members may be engaged to assist the DP World foreman to free the fitting.

·     Chief Officers of vessels can and occasionally do request to leave the vessel and access the wharf to check hatch covers, or the vessel structure, for safety reasons.

(vii) The fact that none of the Group have contracted COVID-19 is not to the point. Queensland has, fortunately, largely been spared the experience of NSW and Victoria, but COVID-19 will inevitably circulate in the community once State and international borders are further opened (if not before). As Sydney has demonstrated, it only takes one seeding event that is not properly controlled to start an outbreak.

(viii)      This is irrelevant. MSIC cards are a security measure, not a safety control.

Controlling the Risk of COVID-19 Transmission
Going to the core of the matter, the notion that “the situation could be managed quite easily with the introduction of mask-wearing enforcement, gloves and other PPE equipment, rapid antigen testing and regular COVID-19 testing” is without foundation. DP World is required to ensure its own business continuity and, more importantly, “ensure, so far as is reasonably practicable, the health and safety of workers…”: Work Health and Safety Act 2011 (Qld) s 19(1) (WHS Act). It is not sufficient that it is asserted (without any proper basis) that other controls could manage the risk of COVID-19 transmission, when the obligation is to ensure that risk is eliminated “so far as is reasonably practicable”: WHS Act s 19(2).

What you describe as a “counterintuitive and inconsistent stance” is nothing of the sort. Specifically, and without any admission as to your comments not specifically traversed (adopting your lettering):

(a)It defies credulity to think that an incident of the kind that has occurred at Port Botany could never occur in Queensland. DP World is entirely prudent and within its rights to be guided by the experience of COVID-19 at a similar terminal. Your “reading between the lines” is nothing more than false speculation.

(b)It is entirely true that the Port Botany terminal continued operating. It did so under hardly ideal circumstances, and delays have resulted.

(c)This has no relevance whatsoever.

(d)There is no relevance in respect of reportable events, as your clients are aware we are not aware of any reportable injury relating to Covid-19 at the terminal, as yet.

(e)This is a gross mischaracterisation of the procedure, the employee is directed to leave site immediately or if they are unable to due to their medical condition, they are directed as an urgent interim step masks and gloves and wait in a designated room while the Company ascertain if ambulance or alternative transport is possible.

(f)The Case Response procedure is a safety document that sets out how DP World deals with management of COVID-19 suspected or actual cases on site. There is no suggestion made that it is a disciplinary issue warranting termination to contract Covid-19 and DP World has not taken any disciplinary action in other situations.

(g)All contractors have been advised of the requirement and are confirming their compliance, it is only in very low risk scenarios, being “contactless” where it is still strongly preferred but not mandatory for this group. DP World will not engage unvaccinated persons in a way that puts its workforce at risk. Contactless interactions are not possible as between DP World employees.

(h)There is zero explanation for your statement that rapid antigen testing is “arguably the best method to eliminate risk on both sides”, whatever “on both sides” might refer to.

(i)The risk of COVID-19 transmission is a known factor, albeit one that is difficult to precisely quantify. All information available from reputable sources such as State health authorities, on the other hand, confirms that adverse reactions to vaccines are extremely rare. To imply otherwise is disingenuous.

DP World’s Legal Obligations and Duties
We note at the outset that there is no substantiation of the implication that any member of the Group has “a proven genetic disposition to adverse reactions”. No member of the Group has told DP World this is the case for them. If this were medically established, the employee in question could have informed DP World and provided evidence, and if it were properly medically substantiated, they would not be required to be vaccinated.

That it was not so established simply demonstrates that again, your letter relies on broad-brush assertions about employees’ positions in circumstances where the more probable inference is that they have simply chosen not to be vaccinated.

DP World freely admits that currently, in Queensland, it is ultimately DP World’s decision to require that only vaccinated persons (or those with properly substantiated medical contraindications) can work there. That is a lawful requirement to impose. Having made careful assessments of the risks concerned, DP World has determined that going forward, vaccination will be an inherent requirement of the job unless employees legitimately cannot have a vaccine. Employees still have the choice not to be vaccinated, but need to know that a corollary of that choice is that they cannot work as a DP World stevedore.

Going to the specific issues you raise regarding DP World’s obligations and duties below (adopting your numbering):

(1)    Blackadder v Ramsay Butchering Services Pty Ltd (2005) 221 CLR 539 dealt with the obligations of an employer that was subject to a reinstatement order of the Australian Industrial Relations Commission. It has no general application establishing a duty to provide work. Indeed, most employees do not have a contractual right to be provided work, as over 150 years of well-established case law confirms.

(2)    Employees do not have a general “duty to act reasonably”. Anderson v Sullivan (1997) 78 FCR 380 does not establish that they do. It is a case about whether a member of the Australian Federal Police was validly required to provide a urine sample for drug testing, which under the authorising legislation required a “reasonable suspicion” on behalf of his superiors. It is accepted that employees’ duty to comply with directions extends only to “lawful and reasonable” directions, but that is only to re-state trite law.

(3)    This proposition is trite. DP World is not, however, requiring employees with legitimate medical contraindications which exempt them from a requirement to be vaccinated to do so.

(4) The choice of an employee not to receive a free, available and generally safe vaccine is not protected by Part 3–1 of the FW Act. Given the medical exemptions contemplated by the DP World process, this complaint is without merit. Certainly DP World’s actions are not prohibited by s 352, to which you refer, which prohibits dismissal of an employee due to a “temporary” absence from work due to illness or injury.

(5)    DP World denies any breach of Part A, clause 21 of the DP World Brisbane Enterprise Agreement 2020 (Brisbane Agreement). It has consulted as required by that clause, noting that such consultation is to be done “as far as reasonable practicable” and without it necessarily being feasible to discuss even with every HSR, let alone every employee (clause 21.4.3). Given the lack of any other particularisation, this item neither requires nor permits a further response.

(6) The allegation that the mandate constitutes bullying is totally without foundation. Bullying requires multiple elements that are not present here - repeated conduct, the creation of a risk to health and safety, that the behaviour is unreasonable - and does not include reasonable management action carried out in a reasonable way. The notion that a bullying claim could need to the outcomes you name is totally wrong. Further, without any admission, adverse action per se is not unlawful - this is only so where it is engaged in for a reason set out in s 340, 346 or 351 (or for dismissal, s 352) of the FW Act. That is denied.

(7)    This really only amounts to an assertion by you that DP World cannot assume any useful precedent is available to it. That really requires no response. It is however risible to say that there is now a better understanding of adverse vaccine reactions, or that we currently live with “less dangerous strains” of COVID-19, than in April 2021 when Kimber v Sapphire Coast Community Aged Care Ltd[2021] FWC 1818 was handed down.

Conclusions
Your clients have no viable claim to be released from DP World’s lawful requirement that in order to access or work at its premises, employees must be vaccinated. It is not obliged to change a range of controls that it has determined after careful consideration merely because the Group may assert – with no evidence - that they have valid reasons not to be vaccinated and COVID-19 risks can be adequately controlled by other means.

As set out in our letter of 28 October 2021, we require that you give us at least 24 hours’ notice of any proceedings that your clients commence. We are instructed to accept service.

On the same basis set out in your letter, we reserve the right to rely on this letter in relation to any question of costs.”

1. On 5 November 2021, following the issuing of the Brisbane show cause letter, an application was made to the Federal Court on behalf of the Brisbane Applicants (other than Mr Troy Williams) in which it was alleged that the threat of adverse action had been made in contravention of the Brisbane Agreement and that there was a threatened breach of their employment contracts. An interlocutory injunction was sought restraining DP World Brisbane from terminating any of the Federal Court Applicant’s employment because of a failure to provide evidence of vaccination against COVID-19 or not being vaccinated. DP World provided an undertaking to the Court that DP World would not dismiss those Brisbane Applicants pending trial. The Court dismissed the applications for interlocutory relief by a decision issued on 11 November 2021 and listed the substantive application for hearing in December 2021. Subsequently, the proceedings were discontinued by the Brisbane Applicants before trial and DP World was released from its undertaking on 16 November 2021.

3.2 Sydney Applicants

3.2.1 Ryan Williams – U2021/10310

1. Mr Ryan Williams commenced employment with DP World Sydney in August 2014 and had been employed for approximately seven and a-half years prior to his dismissal on 25 October 2021. Mr Ryan Williams was employed as a VSE under the Sydney Agreement. He was 37 years of age at the time he made his witness statement.[21] Mr Ryan Williams is a member of the MUA and was represented by the Union in these proceedings. In response to the 12 October 2021 Sydney information letter from Mr Eadie, Mr Ryan Williams sent an email on 18 October 2021 to DP World expressing that he held genuine concerns about COVID-19 vaccines and his hesitancy in relation to be vaccinated. That email, appended to Mr Ryan Williams’ witness statement, was addressed to HR and in the following terms:

“I am writing in response to your email regarding vaccination mandate dated 12th Oct.

I have been employed by DP world since 2014 and during that time I have always fulfilled my duties and upheld my contract of employment. This is a difficult period of time for everyone and particularly for myself. Personally the decision by DP World to bring in a “vaccine” mandate has caused me much stress. It has also caused workplace bullying and division, which is totally unnecessary in our work place.

I believe it’s a personal health decision that shouldn’t be made by anyone other than the individual. If it’s something that an individual chooses that’s their right, but the choice should be made in accordance with the Australian Governments own guidelines which state it must be given voluntarily in the absence of undue pressure, coercion or manipulation. I would like to have that choice myself and not be coerced or manipulated by DP Worlds policy and the threat of termination if I don’t get vaccinated.

I have worked the entire “pandemic” at DP World with no issues in regards to Covid-19, safe work practices and I have fulfilled my role as a Stevedore during this time as per normal. To now be told I’m unable to perform my duties at DP World, almost 2yrs later from the start of the “pandemic” makes very little sense to me.

The reasons for not terminating my employment, I’ve always been a loyal hardworking employee, never had disciplinary issues, still willing to work and don’t want to be terminated. I hope that there can be an outcome that means I can continue working for DP World.

I would also like to be given access to the accrued leave I have, including long service, sick and annual leave. In time I believe this situation can be resolved.”[22]

1. Mr Ryan Williams said that he did not receive a response to his concerns. On 22 October 2021, in response to the Sydney show cause letter, Mr Ryan Williams resent the email of 18 October 2021 to Mr Eadie as his reasons why DP World should not terminate his employment. Mr Ryan Williams did not receive a response to that correspondence and on 25 October 2021, received a letter stating that his employment had been terminated with immediate effect. Mr Williams did not tender either his show cause letter or the termination letter.

1. Under cross-examination, Mr Ryan Williams said that his letter states that he wants to have a choice to be vaccinated without his job being threatened but agreed that he had not told DP World why he might want to make a choice not to be vaccinated. Mr Ryan Williams also said that he had not received a call back from anyone at DP World and received only generic emails.[23] In response to the proposition that he had never told DP World why he did not want to be vaccinated, Mr Ryan Williams said: “they never asked”.[24] In response to a question about why he wanted to take his accrued leave and what he meant by stating that in time, the situation could be resolved, Mr Ryan Williams said that he thought that DP World would change its position in relation to the Mandate when it became clear that “it wasn’t a threat, or isn’t a threat” and there was more evidence about vaccines and whether they were working.[25]

1. Mr Ryan Williams said that his wife’s employment as a registered nurse was also terminated as a result of a government vaccine mandate[26] and that he and his wife had been living off their savings since his employment was terminated.

1. At the hearing, Mr Ryan Williams confirmed that he had been unemployed since his dismissal and said that he had not searched for other employment.[27] Mr Ryan Williams also gave evidence that at the time when he was dismissed, his annual salary was roughly $120,000 – $130,000. In cross-examination, Mr Ryan Williams accepted that other than the email of 18 October 2021, he had not provided any explanation to DP World Sydney as to why he made the choice not to be vaccinated. Mr Ryan Williams maintained that the choice of becoming vaccinated “should be voluntary…without being threatened to take my job”[28] and that before his dismissal, DP World Sydney “never spoke to me, they never had a meeting”[29].

1. In relation to remedy, Mr Ryan Williams confirmed that he is seeking reinstatement. In response to my question as to whether he would be in a position to comply with the requirements of vaccination given that the Mandate is still in place at DP World Sydney, Mr Ryan Williams’ response was “I’m not sure to be honest”[30].

3.2.2 Matthew Tosh – U2021/10302

1. Mr Tosh commenced working at DP World Sydney (formerly Container Terminals Australia Ltd) then P&O in September 1999. Prior to the termination of his employment on 25 October 2021, Mr Tosh had worked for DP World Sydney and its predecessors for 22 years. Mr Tosh was 48 years of age when he made his witness statement.[31] Mr Tosh is a member of the MUA and was represented by the Union in these proceedings. In response to the 16 September 2021 Mandate announcement, Mr Tosh emailed a letter on 3 October 2021 to DP World management, a copy of which is appended to his witness statement[32]. That email (also sent by other Applicants in these proceedings) is set out above under the heading “Common Correspondence”. Mr Tosh did not receive a response to this email.

1. In response to the 12 October 2021 Sydney information letter from Mr Eadie, Mr Tosh sent an email on 18 October 2021 to DP World Sydney expressing that his concerns about COVID-19 vaccines and his hesitancy to be vaccinated. In his email, Mr Tosh relevantly stated:

“I have been a valued employee with DP World for over 20 years in which I have fulfilled many roles from RTG and Forklift operator, to Crane and Deck Foreman and as a regular EC Controller…

…I have no issue if someone else wishes to be vaccinated and feels it is the right choice for them, but at this point in my life I don’t believe it is the right choice for my health. I have experienced severe depression and anxiety over the prospect of losing my job and perhaps my home if I don’t get vaccinated and this duress and coercion has impacted my ability to make an unbiased and informed decision. I had a serious adverse reaction to a previous flu vaccination back in 2015. I had a severe anaphylactic episode and then developed pneumonia. I was very ill for 3 months. I have tried to seek an exemption from my Doctor but unfortunately this was not considered a “valid reason”. I know my body and I am not prepared to put my health at risk again and definitely not with a vaccine that has only been authorised for emergency use and is still in its clinical trial period which doesn’t end until the end of 2022/23.

… So in closing, at this point in time and after serious consideration for my health and others and the fact the vaccines don’t stop transmission, I cannot currently commit to getting vaccinated due to my health reasons and I urge DP World to please reconsider its position on mandatory vaccination so I and many other loyal and valued employees may keep the job they love and rely upon to support their families.”[33]

1. Mr Tosh did not receive a response to this email and on 21 October 2021 sent a further email addressed to “DP World PBT HR” reiterating his objections to the Mandate, as follows:

“I am replying in response to the company’s most recent email regarding its unreasonable, unethical and unlawful vaccination mandate. I outlined my reasons for not currently being able to commit to being vaccinated in my previous correspondence so their (sic) is not much else I can say. But one thing I do know, being vaccinated was never a condition of my employment when I signed my employment contract with DP World 22 years ago and nor is it a condition of the most recent Enterprise agreement that determines the policies and procedures employees work under. I understand policies and procedures change over time but according to DP World’s own employment contract, these policies and procedures do not form the terms and conditions of our employment. Please see attached copy of an extract of DP World’s employment conditions. Lastly, if the government of Ireland can admit to serious side effects such as stroke, heart attack and sudden death from covid 19 vaccination, and the Australian prime minister saying, and I quote, “Australia does not have a mandatory vaccination policy”. Then I don’t see how any company can legally or ethically mandate it, without legal ramifications.”[34]

1. On 25 October 2021, Mr Tosh was notified in writing that the Company was terminating his employment effective immediately and that he would be paid any outstanding entitlements including 5 weeks’ pay in lieu of notice. Later the same day, Mr Tosh sent an email to DP World in the following terms:

“To Scott Eadie and PBT Human Resources,

I have been ready, willing and able to work everyday, before and after you stood me down from my duties at DP World due to your unethical and unlawful vaccination mandates. No where has DP World ever shown evidence of, or proven that a vaccine mandate would provide a safer work place for its employees. And as for your CARE PROGRAM, it would probably be the most laughable of all DP Worlds polices if it were not such a serious subject.”

1. Under cross-examination, Mr Tosh agreed that he did not draft the initial letter he sent to the Respondent and said that somebody provided him with the document, possibly a colleague. Mr Tosh denied that he had downloaded the document from a website of an organisation calling itself “Reignite Australia”.[35] Mr Tosh also agreed that he had sought an exemption from vaccination and his doctor would not provide that exemption. In relation to his assertion that he was surprised about being dismissed, Mr Tosh agreed that he received the Sydney information letter on 12 October requiring him to provide information about his vaccination status and the Sydney show cause letter on 19 October stating that if he did not comply DP World Sydney was considering terminating his employment. Mr Tosh also agreed that he knew DP World Sydney was considering terminating his employment because he had not provided evidence that he was vaccinated against COVID-19.[36] In re-examination, Mr Tosh said that he was surprised that he was dismissed because he did not think it was fair or lawful.

[79] Transcript of Hearing on 11 July 2023 at PN575 – PN577.

[80] Transcript of Hearing on 11 July 2023 at PN580 – PN584.

[81] Transcript of Hearing on 11 July 2023 at PN588.

[82] Transcript of Hearing on 11 July 2023 at PN557.

[83] Transcript of Hearing on 11 July 2023 at PN535 – PN537.

[84] Transcript of Hearing on 11 July 2023 at PN570 – PN574.

[85] Exhibit MUA9 – Witness Statement of James Puhipuhi.

[86] Exhibit MUA9 – Witness Statement of James Puhipuhi at Annexure JP-4.

[87] Transcript of Hearing on 11 July 2023 at PN633.

[88] Transcript of Hearing on 11 July 2023 at PN674.

[89] Transcript of Hearing on 11 July 2023 at PN673.

[90] Transcript of Hearing on 11 July 2023 at PN638.

[91] Exhibit MUA10 – Witness Statement of Vanessa Richards.

[92] Exhibit MUA10 – Witness Statement of Vanessa Richards at Annexure VR-3.

[93] Exhibit MUA10 – Witness Statement of Vanessa Richards at Annexure VR-5.

[94] Transcript of Hearing on 11 July 2023 at PN757 – PN760.

[95] Transcript of Hearing on 11 July 2023 at PN765.

[96] Transcript of Hearing on 11 July 2023 at PN753 – PN754.

[97] Transcript of Hearing dated 11 July 2023 at PN719 – PN720.

[98] Exhibit MUA 12 – Witness Statement of Scott Lewis.

[99] Exhibit R1 – Third Witness Statement of Scott Eadie dated 26 May 2023 at SE-28.

[100] Extracted at paragraph [29] of this Decision.

[101] Exhibit MUA 12 – Witness Statement of Scott Lewis at Annexure SL-5.

[102] Transcript of Hearing on 11 July 2023 at PN852.

[103] Transcript of Hearing on 11 July 2023 at PN861.

[104] Exhibit MUA 12 – Witness Statement of Scott Lewis at Annexure SL-7.

[105] Exhibit R1 – Witness Statement of Scott Eadie dated 26 May 2023 at SE-29.

[106] Exhibit MUA12 – Witness Statement of Scott Lewis at Annexure SL-8.

[107] Exhibit MUA13 – Witness Statement of Kitiona Tanielu.

[108] Exhibit MUA13 – Witness Statement of Kitiona Tanielu at Annexure KT-4.

[109] Exhibit MUA13 – Witness Statement of Kitiona Tanielu at at paragraph 16.

[110] Transcript of Hearing on 11 July 2023 at PN977 – PN985.

[111] Transcript of Hearing on 11 July 2023 at PN990.

[112] Exhibit MUA15 – Witness Statement of Cain Parrott.

[113] Exhibit MUA15 – Witness Statement of Cain Parrott at Annexure CP-3.

[114] Transcript of Hearing on 11 July 2023 at PN1055.

[115] Transcript of Hearing on 11 July 2023 at PN1058.

[116] Transcript of Hearing on 11 July 2023 at PN1061.

[117] Transcript of Hearing on 11 July 2023 at PN1046.

[118] Exhibit MUA16 – Witness Statement of Teni Danny Tanielu.

[119] Exhibit MUA16 – Witness Statement of Teni Danny Tanielu at Annexure TDT-3; see, paragraph [29] of this Decision.

[120] Exhibit MUA16 – Witness Statement of Teni Danny Tanielu at Annexure TDT-5.

[121] Exhibit MUA16 – Witness Statement of Teni Danny Tanielu at Annexure TDT-7.

[122] Transcript of Hearing on 11 July 2023 at PN1118 – PN1121.

[123] Transcript of Hearing on 11 July 2023 at PN1122 – PN1127.

[124] Exhibit MUA17 – Witness Statement of Jacob Heath.

[125] Exhibit MUA17 – Witness Statement of Jacob Heath at Annexure JH-4.

[126] Exhibit MUA17 – Witness Statement of Jacob Heath at Annexure JH-6.

[127] Transcript of Hearing on 11 July 2023 at PN1172 – PN1173.

[128] Transcript of Hearing on 11 July 2023 at PN1170 – PN1174.

[129] Transcript of Hearing on 11 July 2023 at PN1175 – PN1176.

[130] Transcript of Hearing on 11 July 2023 at PN1177 – PN1185.

[131] Exhibit MUA19 – Witness Statement of Fletcher Jones.

[132] Exhibit MUA19 – Witness Statement of Fletcher Jones at paragraph 16.

[133] Transcript of Hearing on 11 July 2023 at PN1229 – PN1231.

[134] Transcript of Hearing on 11 July 2023 at PN1249 – PN1251.

[135] Exhibit A21 – Witness Statement of Jason Pintley.

[136] Exhibit A21 – Witness Statement of Jason Pintley at Annexure RW-4; see, paragraph [29] of this Decision.

[137] Exhibit A21 – Witness Statement of Jason Pintley at Annexure RW-7.

[138] Transcript of Hearing on 11 July 2023 at PN1295.

[139] Transcript of Hearing on 11 July 2023 at PN1306.

[140] Exhibit MUA21 – Witness Statement of Tom Lovas.

[141] Exhibit MUA21 – Witness Statement of Tom Lovas at Annexure TL-5.

[142] Transcript of Hearing on 11 July 2023 at PN1372.

[143] Exhibit MUA23 – Tom Lovas’ ATO Income Statements.

[144] Transcript of Hearing on 11 July 2023 at PN1366.

[145] Transcript of Hearing on 11 July 2023 at PN1358.

[146] Transcript of Hearing on 11 July 2023 at PN1379 – PN1381.

[147] Transcript of Hearing on 11 July 2023 at PN1388 – PN1395.

[148] Exhibit MUA24 – Witness Statement of Kevin McDonald.

[149] Exhibit R2 – Third Witness Statement of Benjamin Charles Hanley dated 26 May 2023 at Annexure BCH-23

[150] The Brisbane Applicants consisted of: Mr Zoltan Nemeth, Mr Sheldon Wright, Mr Richard Taylor, Mr Mickey Harriss, Mr Steven Orel and Mr Jamie Edwards. Other DP World Brisbane employees also joined the claim but are not the subject of these proceedings.

[151] Transcript of Hearing on 25 July 2023 at PN2068.

[152] Transcript of Hearing on 25 July 2023 at PN2071 – PN2072.

[153] Transcript of Hearing on 25 July 2023 at PN2073.

[154] Exhibit MUA26 – Witness Statement of Mickey Harriss.

[155] Transcript of Hearing on 25 July 2023 at PN2142 – PN2143.

[156] Transcript of Hearing on 25 July 2023 at PN2145.

[157] Exhibit MUA28 – Witness Statement in Reply of Mickey Harriss.

[158] Transcript of Hearing on 26 July 2023 at PN2131.

[159] Transcript of Hearing on 26 July 2023 at PN2132.

[160] Transcript of Hearing on 25 July 2023 at PN2133.

[161] Transcript of Hearing on 25 July 2023 at PN2137.

[162] Transcript of Hearing on 25 July 2023 at PN2154 – PN2155.

[163] Transcript of Hearing on 25 July 2023 at PN2156 – PN2157.

[164] Transcript of Hearing on 25 July 2023 at PN2200.

[165] Transcript of Hearing on 25 July 2023 at PN2195.

[166] Exhibit MUA29 – Witness Statement of Steven Orel.

[167] Exhibit MUA29 – Witness Statement of Steven Orel at Annexure SMO-4.

[168] Exhibit MUA29 – Witness Statement of Steven Orel at Annexure SMO-5.

[169] Transcript of Hearing on 25 July 2023 at PN2250 – PN2255.

[170] Transcript of Hearing on 25 July 2023 at PN2250.

[171] Transcript of Hearing on 25 July 2023 at PN2260.

[172] Transcript of Hearing on 25 July 2023 at PN2256.

[173] Transcript of Hearing on 25 July 2023 at PN2273 – PN2286.

[174] Transcript of Hearing on 25 July 2023 at PN2289 – PN2291.

[175] Transcript of Hearing on 25 July 2023 at PN2287.

[176] Mr Wright’s Witness Statement indicates at paragraph 6 that he was dismissed on 25 October 2021 and at paragraph 22 that his dismissal was 17 November 2021. The letter notifying Mr Wright of his dismissal also states that the date of dismissal was 17 November 2021. I accept that the date of dismissal was 17 November 2021.

[177] Exhibit MUA32 – Witness Statement of Sheldon Wright.

[178] Exhibit MUA32 – Witness Statement of Sheldon Wright at Annexure SW-6.

[179] Exhibit MUA32 – Witness Statement of Sheldon Wright at Annexure SW-8.

[180] Exhibit MUA32 – Witness Statement of Sheldon Wright at Annexure SW-8.

[181] Transcript of Hearing on 25 July 2023 at PN2330 – PN2331.

[182] Transcript of Hearing on 25 July 2023 at PN2332.

[183] Transcript of Hearing on 25 July 2023 at PN2336 – PN2338.

[184] Exhibit MUA32 – Witness Statement of Sheldon Wright at Annexure SW-7; Transcript of Hearing on 25 July 2023 at PN2340.

[185] Exhibit MUA34 – Witness Statement of Jamie Edwards.

[186] Exhibit R5 – Second Witness Statement of Benjamin Charles Hanley dated 14 February 2022 at Annexure BCH-20, tendered during the hearing regarding valid reason.

[187] Exhibit MUA34 – Witness Statement of Jamie Edwards at Annexure JE-3.

[188] Exhibit MUA34 – Op. cit. Annexure JE-4.

[189] Exhibit MUA35 – Witness Statement in Reply of Jamie Edwards.

[190] Transcript of Hearing on 25 July 2023 at PN2459 – PN2460.

[191] Transcript of Hearing on 25 July 2023 at PN2465 – PN2468.

[192] Transcript of Hearing on 25 July 2023 at PN2436 – PN2438.

[193] Transcript of Hearing on 25 July 2023 at PN2479 – PN2481.

[194] Exhibit MUA36 – Witness Statement of Troy Williams.

[195] Exhibit MUA36 – Witness Statement of Troy Williams at Annexure TW-3.

[196] Exhibit MUA36 – Witness Statement of Troy Williams at Annexure TW-4.

[197] Exhibit MUA36 – Witness Statement of Troy Williams at Annexure TW-5.

[198] Exhibit MUA36 – Witness Statement of Troy Williams at Annexure TW-6.

[199] Exhibit MUA36 – Witness Statement of Troy Williams at Annexure TW-8

[200] Exhibit MUA36 – Witness Statement of Troy Williams at Annexure TW-8.

[201] Exhibit MUA36 – Witness Statement of Troy Williams at Annexure TW-9.

[202] Exhibit MUA36 – Witness Statement of Troy Williams at Annexure TW-10.

[203] Exhibit MUA36 – Witness Statement of Troy Williams at Annexure TW-11.

[204] Exhibit MUA36 – Witness Statement of Troy Williams at Annexure TW-11.

[205] Exhibit MUA36 – Witness Statement of Troy Williams at Annexure TW-12.

[206] Exhibit MUA36 – Witness Statement of Troy Williams at [32].

[207] Exhibit R2 – Third Witness Statement of Benjamin Charles Hanley dated 26 May 2023 at [29].

[208] Exhibit MUA36 – Witness Statement of Troy Williams at Annexure TW-16.

[209] Transcript of Hearing on 25 July 2023 at PN2566 – PN2570.

[210] Transcript of Hearing on 25 July 2023 at PN2573 – PN2575.

[211] Transcript of Hearing on 25 July 2023 at PN2538.

[212] Transcript of Hearing on 25 July 2023 at PN2541.

[213] Transcript of Hearing on 25 July 2023 at PN2544.

[214] Transcript of Hearing on 25 July 2023 at PN2545.

[215] Transcript of Hearing on 25 July 2023 at PN2564.

[216] Transcript of Hearing on 25 July 2023 at PN2566.

[217] Exhibit A39 – Witness Statement of Richard Taylor.

[218] A copy of this letter was not appended to Mr Taylor’s witness statement but was appended to his Form F2 Application at Court Book page 1018.

[219] Transcript of Hearing on 25 July 2023 at PN2605.

[220] Transcript of Hearing on 25 July 2023 at PN2605.

[221] Transcript of Hearing on 25 July 2023 at PN2606.

[222] Transcript of Hearing on 25 July 2023 at PN2622.

[223] Transcript of Hearing on 25 July 2023 at PN2669.

[224] Transcript of Hearing on 25 July 2023 at PN2616 – PN2620.

[225] Exhibit A40 – Witness Statement of Zoltan Nemeth.

[226] Exhibit R5 – Second Witness Statement of Benjamin Charles Hanley dated 14 February 2022 at Annexure BCH-20, tendered during the hearing regarding valid reason.

[227] Transcript of Hearing on 25 July 2023 at PN2732.

[228] Transcript of Hearing on 25 July 2023 at PN2740.

[229] Exhibit R1 – Third Witness Statement of Scott Eadie dated 26 May 2023.

[230] Exhibit R2 – First Witness Statement of Scott Eadie dated 31 January 2022; Exhibit R3 – Second Witness Statement of Scott Eadie dated 14 February 2022, tendered during the hearing regarding valid reason.

[231] Exhibit MUA6 – Witness Statement of Nathan Severino at [13]-[16].

[232] Exhibit MUA7 – Witness Statement of Brenton Mosca at [16]-[19].

[233] Transcript of Hearing on 12 July 2023 at PN1483 – PN1485.

[234] Transcript of Hearing on 12 July 2023 at PN1494 – PN1495.

[235] Exhibit R2 – First Witness Statement of Scott Eadie dated 31 January 2022 at Annexure SE-30, tendered during the hearing regarding valid reason.

[236] Exhibit R2 – First Witness Statement of Scott Eadie dated 31 January 2022 at Annexure SE-31, tendered during the hearing regarding valid reason.

[237] Exhibit MUA12 – Witness Statement of Scott Lewis at [22].

[238] Exhibit MUA12 – Witness Statement of Scott Lewis at [26]-[27].

[239] Transcript of Hearing on 12 July 2023 at PN1541.

[240] Transcript of Hearing on 12 July 2023 at PN1567.

[241] Transcript of Hearing on 12 July 2023 at PN1570.

[242] Transcript of Hearing on 12 July 2023 at PN1571.

[243] Transcript of Hearing on 12 July 2023 at PN1571 – PN1672.

[244] Transcript of Hearing on 12 July 2023 at PN1617 – PN1619.

[245] Transcript of Hearing on 12 July 2023 at PN1502.

[246] Transcript of Hearing on 12 July 2023 at PN1646.

[247] Transcript of Hearing on 12 July 2023 at PN1627.

[248] Transcript of Hearing on 12 July 2023 at PN1628.

[249] Transcript of Hearing on 12 July 2023 at PN1631.

[250] Transcript of Hearing on 12 July 2023 at PN1635 – PN1643.

[251] Transcript of Hearing on 12 July 2023 at PN1654 – PN1655.

[252] Transcript of Hearing on 12 July 2023 at PN1721 – PN1725.

[253] Exhibit R4 – First Witness Statement of Benjamin Charles Hanley dated 31 January 2022; Exhibit R5 – Second Witness Statement of Benjamin Charles Hanley dated 14 February 2022, tendered during the hearing regarding valid reason.

[254] Transcript of Hearing on 25 July 2023 at PN2863.

[255] Exhibit R5 – Second Witness Statement of Benjamin Charles Hanley dated 14 February 2022 at [13], tendered during the hearing regarding valid reason.

[256] Transcript of Hearing on 25 July 2023 at PN2963.

[257] Transcript of Hearing on 25 July 2023 at PN2935.

[258] Exhibit R4 – First Witness Statement of Benjamin Charles Hanley dated 31 January 2022 at [79(e)], tendered during the hearing regarding valid reason.

[259] Transcript of Hearing on 25 July 2023 at PN2797.

[260] Transcript of Hearing on 25 July 2023 at PN2802.

[261] Transcript of Hearing on 25 July 2023 at PN2815.

[262] Transcript of Hearing on 25 July 2023 at PN2817 – PN2819.

[263] Transcript of Hearing on 25 July 2023 at PN2831.

[264] Transcript of Hearing on 25 July 2023 at PN2853 – PN2857.

[265] Transcript of Hearing on 25 July 2023 at PN2880.

[266] Transcript of Hearing on 25 July 2023 at PN2936.

[267] Transcript of Hearing on 25 July 2023 at PN3000 – PN3004.

[268] Transcript of Hearing on 25 July 2023 at PN2858 – PN2859.

[269] Transcript of Hearing on 25 July 2023 at PN2858 – PN2859.

[270] Transcript of Hearing on 25 July 2023 at PN2871.

[271] Transcript of Hearing on 25 July 2023 at PN2871 – PN2874.

[272] Transcript of Hearing on 25 July 2023 at PN2983 – PN2985.

[273] Transcript of Hearing on 25 July 2023 at PN2915 – PN2924.

[274] Transcript of Hearing on 25 July 2023 at PN2960 – PN2961.

[275] Transcript of Hearing on 25 July 2023 at PN2972 – PN2977.

[276] Transcript of Hearing on 25 July 2023 at PN2998.

[277] Transcript of Hearing on 25 July 2023 at PN3000.

[278] Transcript of Hearing on 25 July 2023 at PN3002 – PN3004.

[279] Transcript of Hearing on 25 July 2023 at PN3013 – PN3015.

[280] Transcript of Hearing on 25 July 2023 at PN3034 – PN3035.

[281] Transcript of Hearing on 25 July 2023 at PN3037.

[282] Transcript of Hearing on 25 July 2023 at PN3051.

[283] Transcript of Hearing on 25 July 2023 at PN3052.

[284] Transcript of Hearing on 25 July 2023 at PN3055.

[285] Transcript of Hearing on 25 July 2023 at PN3056.

[286] Transcript of Hearing on 25 July 2023 at PN3063.

[287] Transcript of Hearing on 25 July 2023 at PN3066.

[288] Transcript of Hearing on 25 July 2023 at PN3076.

[289] Transcript of Hearing on 25 July 2023 at PN3107 – PN3109.

[290] Transcript of Hearing on 25 July 2023 at PN3114 – PN 3117.

[291] [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd[2010] FWA 8544 (Thatcher C, 5 November 2010) at [85], (2010) 204 IR 399 at p. 416.

[292] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), (2000) 98 IR 137 at [73].

[293] Transcript of Hearing on 12 July 2023 at PN1748.

[294] Transcript of Hearing on 12 July 2023 at PN1750 – PN1756, PN1773.

[295] Transcript of Hearing on 12 July 2023 at PN1791.

[296] Transcript of Hearing on 12 July 2023 at PN1756 – PN1765.

[297] Transcript of Hearing on 12 July 2023 at PN1791.

[298] Transcript of Hearing on 12 July 2023 at PN1830.

[299] Transcript of Hearing on 12 July 2023 at PN1803.

[300] Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2021] FWCFB 6059.

[301] Transcript of Hearing on 12 July 2023 at PN1803.

[302] Transcript of Hearing on 12 July 2023 at PN1813 and PN1821.

[303] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151.

[304] Dinith Jayasundera & Matthew Jenkins v Electricity Networks Corporation T/A Western Power[2023] FWC 173; Mark Lucas v Alcoa of Australia Limited[2022] FWC 979 at [101].

[305] Cf. Alexander James Marriott v Baptcare Limited[2022] FWC 300 at [41]; Dany Nekho v Rentokil Initial Pty Ltd[2022] FWC 1632 at [60].

[306] Linda Maree Rivette v Vison Australia Limited [2023] FWCFB 67 at [40]-[42].

[307] [2022] FWC 1135.

[308] Ibid at [107]. See also Zaki Benamar v Moreland City Council[2022] FWC 1273 at [49].

[309] Mariam Gharib v Dnata Airport Services Pty Ltd[2022] FWC 1015, [88]. See Alannah Little v Aldi Stores[2022] FWC 2290 for further discussion of this distinction.

[310] [2022] FWC 1823 at [46].

[311] Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Mt Arthur Coal Pty Ltd (t/a Mt Arthur Coal)[2021] FWCFB 6059, (2021) 310 IR 399 at [259]. See also decision of Coleman DP in Mr Jonathan Dugald Mitchell v University of Tasmania[2023] FWC 810.

[312] Doug Smith v BHP Billiton Petroleum Pty Ltd[2010] FWC 3349.

[313] Brett Haigh v Bradken Resources Pty Ltd T/A Bradken[2014] FWCFB 236.

[314] (1998) 88 IR 21.

[315] See Christine Inwood v Baxter & Co Pty Ltd [2022] FWC 792 at [77].

[316] [2021] FWC 6173.

[317] Transcript of Hearing on 12 July 2023 at PN1835 – PN1839.

[318] Transcript of Hearing on 12 July 2023 at PN1923.

[319] Transcript of Hearing on 12 July 2023 at PN1924.

[320] Transcript of Hearing on 12 July 2023 at PN1932.

[321] Transcript of Hearing on 12 July 2023 at PN1834, PN1840.

[322] [2015] FWCFB 1523.

[323] Transcript of Hearing on 26 July 2023 at PN3155.

[324] Transcript of Hearing on 26 July 2023 at PN3192 – PN3193.

[325] Citing Reguero-Puente v City of Rockingham [2018] FWC 3148 at [158].

[326] Exhibit R5 – Second Witness Statement of Benjamin Charles Hanley dated 14 February 2022 at Annexure BCH-20, tendered during the hearing regarding valid reason.

[327] Transcript of Hearing on 26 July 2023 at PN3207.

[328] (2005) 22 CLR 539.

[329] Transcript of Hearing on 26 July 2023 at PN3259.

[330] [2016] FWCFB 108.

[331] Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [23].

[332] Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.

[333] Selvachandran v Pteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

[334] Newton v Toll Transport Pty Ltd [2021] FWCFB 3457; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14.

[335] Raj Bista v Glad Group Pty Ltd t/a Glad Commercial Cleaning [201] FWC 3009 at [40] citing Edwards v Giudice (1999) 94 FCR 561.

[336] [2000] HCA 57.

[337] Per Gaudron and Gummow JJ, Gleeson CJ at [60] citing Deane J in Kioa v West (1985) 159 CLR 550 at 632 – 633.

[338] [2020] FWCFB 6429.

[339] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [27], [64]-[73], [75]; Chubb Security Australia Pty Ltd v Thomas[2000] AIRC 822 at [41]; Wadey v YWCA Canberra [1996] IRCA 568.

[340] [2020] FWCFB 6429 at [19].

[341] [2020] FWCFB 6429 at [24].

[342] [1996] IRCA 568.

[343] Industrial Relations Act 1988 (Cth), s. 170DC.

[344] Workplace Relations and Other Legislation Amendment Act 1996 (Cth), assented to on 25 November 1996.

[345] [2000] AIRC 822.

[346] (2000) 98 IR 137.

[347] Op. cit. at [73].

[348] (2000) 98 IR 137 at [64] – [73].

[349] [2013] FWCFB 3316.

[350] [2020] FWCFB 6429 at [25] citing by analogy Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, 204 CLR 82 at [58] per Gaudron and Gummow JJ.

[351] [2020] FWCFB 6429 at [25] citing by analogy Stead v State Government Insurance Commission [1986] HCA 54, 161 CLR 141.

[352] Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002) at [20].

[353] Williams v The Chuang Family Trust t/a Top Hair Design[2012] FWA 9517 at [40].

[354] Valid Reason Decision [2023] FWC 65 at [191].

[355] Valid Reason Decision [2023] FWC 65 at [192].

[356] Valid Reason Decision at [189].

[357] See, e.g., Aneja v Alfred Health[2022] FWC 663.

[358] See, e.g., Lucas v Alcoa of Australia Limited[2022] FWC 979.

[359] See, e.g., Lucas v Alcoa of Australia Limited[2022] FWC 979 at [78] and [102]; Dean v Regional Express Holidays Ltd[2022] FWC 1448.

[360] U2021/10301.

[361] U2021/10302.

[362] U2021/11186.

[363] U2021/11089.

[364] Exhibit R4 – First Witness Statement of Benjamin Charles Hanley dated 31 January 2022 at BCH-12, tendered during the hearing regarding valid reason.

[365] Cox v DP World Brisbane Limited [2021] FCA 1335.

[366] U2021/10690.

[367] U2021/11011.

[368] U2021/11013.

[369] U2022/998.

[370] U2021/11394.

[371] U2021/11191.

[372] Explanatory Memorandum for the Fair Work Amendment Bill 2008 at [1542].

[373] Cox v DP World Brisbane Limited [2021] FCA 1335 at [1].

[374] [2022] FWC 1931

[375] [2014] FWCFB 7198.

[376] Transcript of Hearing on 12 July 2023 at PN1874.

[377] Transcript of Hearing on 12 July 2023 at PN1881.

[378] Kable v Bozelle, Michael Keith T/A Matilda Greenbank[2015] FWCFB 3512 at [17].

[379] (1998) 88 IR 21.

[380] Tabro Meat Pty Ltd v Heffernan[2011] FWAFB 1080; Read v Golden Square Child Care Centre[2013] FWCFB 762; Bowden v Ottrey Homes Cobram[2013] FWCFB 431.

[381] Exhibit MUA29 – Witness Statement of Steven Orel at Annexure SMO-6.

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