Jason Pintley v DP World Sydney Limited
[2023] FWC 65
•10 JANUARY 2023
| [2023] FWC 65 [Note: a further correction has been issued to this document; the changes arising have been incorporated in this version] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Pintley & Ors
v
DP World Sydney Limited & Ors
(U2021/10151 & Ors)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 10 JANUARY 2023 |
Applications for an unfair dismissal remedy – Whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees), within the meaning of s. 387(a) of the Fair Work Act 2009.
Overview
This decision concerns applications to the Fair Work Commission (Commission) 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/Company). The applications were made under s. 394 of the Fair Work Act 2009 (the FW Act) and each of the Applicants seeks a remedy for unfair dismissal.
The Respondents are subsidiary companies wholly owned by DP World Australia Limited (DP World). DP World is the holding company of a national container stevedoring business which operates at four different shipping container terminals in Sydney, Brisbane, Melbourne and Fremantle with each terminal operated by a separate and wholly owned subsidiary. The Respondents respectively operate the Sydney Terminal located at Port Botany and the Brisbane Terminal located on Fisherman Island.
From 21 October 2021, the DP World Australia COVID – 19 Vaccination Mandate (Mandate) was adopted, requiring that employees be vaccinated against COVID – 19 by dates specified in the Mandate, which varied, depending on their location. Employees were also required to inform DP World of their vaccination status and provide evidence of this. Each of the Applicants was dismissed for non-compliance with the Mandate. The information set out in the Form F2 Applications filed by each Applicant indicates that dismissals of those employed in New South Wales mostly took effect on or around 25 October 2021, while most of the Applicants employed in Queensland were notified and dismissed with effect from 17 November 2021.
The Construction, Forestry, Maritime, Mining and Energy Union – Maritime Union of Australia Division (MUA) represented 22 Applicants. The case for those Applicants was conducted by the MUA’s National Legal Officer, Mr Kirk Bond. Four of the Applicants were self-represented. The names of each Applicant, the matter numbers for each application and details of representation, are set out in Appendix A to this Decision. For reasons set out in the procedural history below, permission was granted pursuant to s. 596 of the FW Act for the Respondent to be legally represented and Mr Steven Crilly of Seyfarth Shaw Australia represented the Respondents. Also as detailed in the procedural history, only the question of whether there was a valid reason for the dismissals within the provisions of s. 387(a) is determined in this decision.
In summary, the Applicants represented by the MUA contended that the Mandate was not reasonable direction because the Respondents failed to comply with consultation requirements in the Work Health and Safety Act 2011 (NSW) and the Work Health and Safety Act 2011 (Qld) (collectively the WHS Acts). The MUA also contended on behalf of those it represented that the Respondents failed to comply with consultation requirements in relevant enterprise agreements concerning changes to workplace health and safety matters and that the Mandate was inconsistent with the intent of the Agreements. The MUA did not contend that the Respondents failed to meet obligations to consult under the general consultation provisions in the Agreements. This omission is a matter to which I will return later in this decision.
Further, the MUA contended that the Mandate was inconsistent with the provisions of the Privacy Act 1988 (Cth) and that it infringed the rights of the represented Applicants to bodily integrity. These matters were said to “buttress” the MUA’s submission that the Mandate was not a reasonable direction. Accordingly, a refusal on the part of the Applicants to comply with the Mandate was not a valid reason for dismissal.
Central to that contention was the proposition 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[1] (Mt Arthur Coal) is dispositive of the issue for determination, and that if I follow that decision, as I am required to do, “DP World loses”. This proposition was founded on the following assertions:
· 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.
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.
Section 396 of the FW Act requires that I be satisfied of specified matters before considering the merits of the application. In relation to each of the applications subject of this Decision, I am satisfied that:
a)the applications were made within the time required in s. 394(2);
b)other than Mr Clarke in matter U2021/11009, it is not in dispute that the Applicants are persons protected from unfair dismissal;
c)the Respondents are not small businesses and the Small Business Fair Dismissal Code does not apply; and
d)the Applicants were not dismissed on the ground of redundancy.
Before considering the question for determination, it is necessary to set out some of the procedural history of the applications.
Procedural history
Legal Representation
Section 596(2) of the FW Act allows the Commission discretion to grant permission for a person to be represented by a lawyer, in a matter where the Commission is satisfied that any of three circumstances set out in the section is present, and provides as follows:
“596 Representation by lawyers and paid agents
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”
As previously noted, the Respondents sought permission to be represented in the proceedings by lawyer. In support of permission being granted, the Respondents relied on s. 596(2)(a) and submitted that legal representation would allow the matter to be dealt with more efficiently, having regard to its complexity and other features and pointed to the following matters in issue in these proceedings, in support of this submission:
“(a)The root question of whether the impugned vaccine mandate was lawful and reasonable, which is an issue subject to a lengthy and at times complex corpus of authorities.
(b)Whether DP World complied with unspecified consultation obligations, which is a mixed question of fact and law dependent on the construction of the relevant enterprise agreement and/or legislation, and any relevant authorities called in aid by the parties.
(c)Whether the mandate was inconsistent with the intent of the DP World Sydney Enterprise Agreement 2020 and the DP World Brisbane Enterprise Agreement 2020 each of which contain specific provisions dealing with policies inconsistent with the intention. This issue was the subject of separate (now discontinued) proceedings in matter C2021/6927, in which DP World’s present solicitors also acted.
(d)A range of matters raised in applications by unrepresented parties, which raise a range of legal issues including, without limitation, the relevance of the Commonwealth Criminal Code, the construction of the Australian Constitution section 51(xxiiiA), and recourse to international law.”
This was said to be more than an arbitral decision being applied to a simple factual contest and to call for the Commission to form opinions in relation to significant questions of law. The Respondents also submitted that while the present matter is complex, this is not a requirement. Further, the Respondents submitted that in the present case there are a large number of applications and there is a continued dispute about how those applications are to be case managed and heard so that the assistance of legal practitioners experienced in conducting larger scale litigation will assist in dealing with the matters efficiently.
The MUA filed a detailed submission in opposition to the Respondents being granted permission to be legally represented. The MEU referred to qualifications of various in-house industrial relations and human resource management specialists employed by the Respondent and contended that the Commission should find that:
“It is disingenuous and arbitrary to claim that the Respondents are not large companies, and that their experienced internal staff are incapable of representing the Respondents due to other commitments. It is unreasonable to suggest that the Respondents’ experienced internal advocates “cannot be expected to dedicate all of their time to running litigation” whilst the MUA’s internal legal officer is expected to.”
The MUA also submitted that it is the Respondents who created this cumbersome situation by dismissing employees “en masse” and that the Respondents knew, or should have known, that a large number of those employees would lodge unfair dismissal applications and that the Company would have to represent itself in those proceedings unless it could obtain permission from the Commission to be represented by lawyers. The Company cannot say that it would be burdensome for it to self-represent when both the Commission and the MUA are burdened by the Company’s decisions.
It was also submitted that the MUA’s legal officer has about 4 months of Australian legal practice experience compared to the Respondents’ internal human resources and legal advocate resources being extensive and well-experienced and that on this basis it could not be reasonably suggested that denying permission for external legal representation would manifest any unfairness between the parties. Further, it was submitted that whilst the Applicants may be represented by an MUA legal officer, s 596(3) does not require permission for representation be made by the MUA. For this reason, any comparison between representation for the Respondents and for the MUA’s members is irrelevant in any consideration of fairness between the parties.
After considering the submissions of the parties I granted permission for the Respondent to be represented by a lawyer on the basis that I was satisfied that it would enable the matter to be dealt with more efficiently having regard to its complexity. In reaching this conclusion I had regard to the central question in dispute as to whether the Mandate was lawful and reasonable, and the competing submissions of the parties in relation to the relevance and application of Full Bench authority. I also had regard to the duty of legal practitioners to assist justice being done according to law and to the fact that the MUA members were represented by the Union’s National Legal Officer, who is legally qualified. Further, I noted that the Applicants who were not represented by the MUA initially sought to be represented by lawyers who then withdrew from the proceedings. Further, I had regard to the plethora of matters raised by the self-represented Applicants, many of which had been determined in proceedings before Courts and the Commission, in a manner that is binding on me, and the need to ensure that this did not disrupt and extend the proceedings. Four Applicants, namely, Mr Jason Pintley, Mr Kevin MacDonald, Mr Zoltan Nemeth and Mr Richard Taylor, are self-represented.
Hearing of applications
After the applications were allocated to me for determination, I conducted a case management hearing for all matters on the basis that they involve common factual circumstances. At the case management hearing conducted on 22 December 2021, it was agreed between the parties that, before listing each matter for a hearing to determine whether each individual Applicant was unfairly dismissed, an initial hearing would be conducted for the purpose of determining whether there was a valid reason for the dismissals related to the employees’ capacity or conduct (including its effect on the safety and welfare of other employees), as provided in s. 387(a) of the FW Act (valid reason).
I expressed a provisional view that the most efficient and cost-effective manner for the initial hearing in relation to valid reason to be conducted would be for all matters to be heard concurrently at a single hearing so that evidence could be given at a single hearing, rather than at multiple hearings. While the Respondent and some of the self-represented Applicants agreed with this approach, it was opposed by the MUA. Given the disagreement between the parties as to the form of the initial hearing, Directions were issued on 24 December 2021 requiring any party who opposed the initial hearing of the matters being held concurrently to file an outline of submissions setting out the basis of their opposition. Parties were also given the opportunity to provide any written submissions in response.
The MUA contended that the applications brought against DP World Sydney should be heard separately from those brought against DP World Brisbane and that self-represented Applicants or those represented by outside lawyers or paid agents should have their matters dealt with separately. The MUA maintained that combining all matters into a single hearing would be unfair to the Applicants represented by the MUA. In this regard, the MUA submitted that it was relying on narrow and specific grounds within the jurisdiction of the Commission to challenge the dismissals while at least some of the other Applicants intended to challenge the termination of their employment on a wide range of grounds.
The MUA submitted that it intended to show that the Respondents did not have a valid reason for terminating the employment of its members for reasons including lack of consultation with the MUA pursuant to the health and safety provisions of relevant enterprise agreements. The MUA and its members should not have to participate in proceedings dealing with evidence that is irrelevant to their applications and the Union’s National Legal Officer should not have to spend his time participating in lengthy proceedings involving persons who are not union members and are pursuing arguments that the Union believes are baseless. Further, it was submitted that MUA members who have paid Union fees should not have their cases joined with persons who have not paid union fees or have ceased to do so because they were unhappy with the way the Union had dealt with the Respondents in relation to the Mandate.
The Respondents supported a concurrent hearing of the applications, submitting that the Commission has a broad discretion to inform itself in relation to any matter before it in such manner as it considers appropriate, including in relation to the taking of evidence and holding of hearings. Reference was also made to the objects of the FW Act and equity, good conscience, and the merits of the matter and to s. 577 which requires the Commission to perform its function in a way that is fair and just, quick and informal and avoids unnecessary technicalities. The Respondents also submitted that the issue before the Commission is not whether there should be a joinder of parties to a proceeding, but rather whether separate proceedings should be heard together. Regardless, the overall principle is to achieve a just resolution of the dispute having regard to the desirability of limiting costs and delay.[2]
In response to specific issues identified by the MUA, it was submitted that the decisions made by each Respondent are not unconnected and there is no reason why the hearing of evidence germane to the cases against each Respondent separately is more cost-effective than a common hearing, relevant provisions of the enterprise agreements are common and it will be more efficient and cost-effective to have a single hearing, as conceded by the Union. The wide range of matters that may be agitated by the unrepresented parties will not necessarily delay proceedings given that many of these issues have been rejected by courts in an overwhelmingly persuasive way or dealt with by the Commission and are self-evidently wrong and can be dealt with briefly in written submissions.
The submission that Union members should not have to contend with the presence of parties who are hostile to them was said to be irrelevant and contrary to the realities of the Australian waterfront, a notoriously robust environment. The MUA submission objecting to “free riders” should not be countenanced based on freedom of association provisions in the FW Act. Further, the Respondent submitted that the question of whether there was a valid reason for the dismissals will turn on common issues and should not have a different answer depending on who is representing an Applicant. Like cases should be treated alike and the Commission should have the opportunity to consider all arguments relating to valid reason together. Otherwise, either those cases considered first are in a lesser position, or the Commission must delay the resolution of their applications. According to the Respondent, there is no compelling reason for the Commission adopting a course other than hearing the applications together.
On 6 January 2022, Mr Jason Pintley, one of the self-represented Applicants, set out in his email correspondence that he disagreed with the initial hearing of the matters being held concurrently. Mr Pintley contended that the fact that his employment was terminated based on his non-compliance with the Mandate, while he was on a period of absence on workers’ compensation, meant that his individual circumstances raised different issues from the other applications and thus his matter should be separately heard.
At a second case management hearing conducted on 25 February 2022, Mr Crilly submitted that, while the individual circumstance of Mr Pintley may be a matter that Mr Pintley may wish to raise and would no doubt form part of the assessment of the individual circumstances of his dismissal, the issue of whether the non-compliance with the Mandate provided a valid reason for the dismissals remains a core question that requires determination and is equally relevant to Mr Pintley’s case as to the cases of all other Applicants in these proceedings.
Having considered the submissions and material, I indicated to the parties that I was satisfied that conducting a hearing of the matters concurrently to determine the issue of valid reason was the most efficient way to deal with the matters and is consistent with the discretion of the Commission to inform itself as it considers appropriate, pursuant to s. 590 of the FW Act, including determining the manner in which evidence is taken and a hearing is conducted. In reaching this decision, I also had regard to s. 577 of the FW Act which requires the Commission to perform its functions and exercise its power in a manner that is fair and just; quick, informal and avoids unnecessary technicalities; and open and transparent. I was satisfied that a single hearing would be the most efficient use of Commission resources as well as the resources of the parties and would achieve a time- and cost-effective resolution of key aspects of the dispute so that the common issues would not be required to be dealt with in different or separate proceedings. I was also satisfied that an initial hearing, conducted in this manner, would not create any impediment to the case the parties are seeking to run and would not result in any injustice to any of the parties.
Directions for hearing
Directions issued on 24 December 2021 required the filing and service of outlines of submissions and the witness statements each party intends to rely on at the initial hearing addressing the matters in s. 387(a) of the FW Act pertaining to valid reason. The parties were also directed to provide material in reply to the material filed by the other party.
The MUA filed witness statements from the following persons in support of the Applicants it represents:
· Mr Bradley Dunn, Divisional Assistant Sydney Branch Secretary of the MUA[3];
· and
· Mr Matthew Lewis, MUA member and an employee of DP World Sydney who is appointed as a Health and Safety Representative and Chairman of the Work Health Safety Committee[4]; and
· Mr Keiron Carty, MUA member and an employee of DP World Brisbane who was appointed as a Health and Safety Representative until July 2021[5].
Material was filed by Mr Jason Pintley[6], Mr Kevin MacDonald[7] and Mr Zoltan Nemeth[8]. Mr Richard Taylor did not file material but indicated his support for the submissions of Mr Nemeth. In February 2022, material in reply was received from the Respondents, Mr MacDonald, Mr Nemeth and Mr Pintley and the MUA on behalf of the 22 represented Applicants. Notwithstanding that the material filed by the self-represented Applicants did not delineate submissions from evidence, I received it and I have considered the matters raised by those Applicants.
Witness Statements for the Respondents were made by:
· Mr Mark Hulme, Chief Operating Officer – Terminals for DP World Australia Limited;[9]
· Mr Scott Eddie, General Manager Operations for DP World Sydney[10]; and
· Mr Benjamin Hanley, General Manager Operations for DP World Brisbane[11].
The hearing was conducted by video on 30 and 31 March. Post hearing closing submissions were filed in writing in June and an oral hearing was conducted on 9 September 2022 due to the parties not being available for an earlier date on which I sought to schedule the hearing.
Relevant legislative provisions and case law
Section 387 matters required to be taken into account
In considering whether an employee was unfairly dismissed on the basis that the dismissal was harsh, unjust or unreasonable, s. 387 of the FW Act requires the Commission to take into account each of the matters set out in subsections (a) – (h). To take a matter into account means that it is a “relevant consideration”[12] in the Peko Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters means that each matter set out in s. 387(a) – (h), insofar as it is relevant, must be treated as a matter of significance in the decision making process. This involves evaluating each matter and giving it due weight having regard to all the other relevant factors.[13]
As a Full Bench of the Commission said in Sydney Trains v Gary Hilder[14] (Hilder):
[24] … Section 387 requires that in in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account each of the matters set out in paragraphs (a)-(h) of the section. That requirement can only be read as applicable to each element of the trilogy – that is, a finding that a dismissal is or not harsh, is or is not unjust, or is or is not unreasonable must in each case be founded on a consideration of all the matters set out in s 387(a)-(h).
Relevantly, Section 387(a) requires the Commission to consider “whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)”. Where a dismissal relates to conduct of the employee, it is necessary to determine whether the matter was of sufficient gravity to constitute a sound, defensible and well-founded (and therefor valid) reason for dismissal.[15] Where the dismissal relates to the capacity of the employee to do his or her job, the Commission is required to consider and make findings on whether, at the time of the dismissal, the Applicant suffered from the alleged incapacity based on relevant medical and other evidence before the Commission.[16] In short, in all circumstances the focus in s. 387(a) is on facts and circumstances existing at the time of the dismissal.
In Sydney Trains v Gary Hilder,[17] a Full Bench of the Commission set out the principles applicable to the consideration required under s. 387(a) as follows:
“(1)A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.
(2)When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.
(3)A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).
(4)For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).
(5)Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).
(6)The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.
(7)The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).
(8)An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.
(9)Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.”
In Newton v Toll Transport Pty Ltd, a Full Bench of the Commission said: (citations omitted):
“[65] The Commission is bound to determine whether, on the evidence provided, facts existed at the time of termination that justified the dismissal. Contrary to the Appellant’s submission, in determining whether there was a valid reason for the dismissal the Commission is not confined to the reason advanced by the employer (either at the time of dismissal or during the course of the subsequent hearing). A valid reason for dismissal can be any valid reason underpinned by the evidence provided to the Commission.”[18]
In support of this conclusion, the Full Bench in Newton v Toll Transport Pty Ltd cited Byrne v Australian Airlines Ltd.[19] In that case, Brennan, Dawson and Toohey JJ held that “…facts which existed at the time of a dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable”.[20] McHugh and Gummow JJ in similar terms held that the respondent employer could resist the allegation of breach of an award requirement that termination of employment not be harsh, unjust or unreasonable, provided that the evidence concerned circumstances in existence when the decision to terminate employment was made.[21]
It is well established that a refusal on the part of an employee to comply with a lawful and reasonable direction, will generally constitute a valid reason for dismissal. The seminal decision concerning the requirement of employees to follow their employer’s lawful and reasonable directions is R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday[22] (Darling Island Stevedoring) in which Dixon J summarised the common law position as follows:
“Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable.
In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.”
Darling Island Stevedoring and later cases considering the duty of employees to follow lawful and reasonable directions given by their employer, were extensively considered in Mt Arthur Coal and are relevant in the present case. Given the central relevance to the MEU’s case of the Full Bench decision in Mt Arthur Coal, it is necessary to consider that decision in detail.
Mt Arthur Coal
Context in which Mt Arthur Coal was decided
I commence with an examination of the context in which Mt Arthur Coal decided. The Full Bench was determining an application for the Commission to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement. The dispute concerned the announcement by Mt Arthur Coal of the implementation of a Site Access Requirement (SAR) on 7 October 2021, which required employees to have one dose of an approved COVID-19 Vaccination by 9 November 2021 and to be fully vaccinated by 20 January 2022 and to provide evidence of their compliance by those dates. The question for determination, as agreed by the parties, was whether the SAR was a lawful and reasonable direction with respect to employees at the Mine covered by an enterprise agreement.
The Applicant in the matter was the Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division (MEU). The application was made on 21 October 2021 – some 20 days in advance of the date the requirement was to commence. On 2 November 2021, the MEU applied to the Commission for interim relief, the effect of which was to permit employees who were unvaccinated to work at the Mine without satisfying the requirement. The Full Bench refused to grant relief in the form sought by the MEU and instead accepted undertakings from the employer including that the outcomes of any disciplinary process associated with a refusal to comply with the requirement would not be implemented until the Full Bench had delivered its decision and employees were given an opportunity to consider their position in light of the decision. The matter was heard on 24 and 25 November 2021 and the decision of the Full Bench was delivered on 3 December. In its decision the Full Bench made findings which can be characterised as conclusions of a legal character and findings of fact in relation to medical, scientific and epidemiological justification for the SAR.
The approach to deciding whether a direction was lawful and reasonable
In terms of legal conclusions, the Full Bench noted that there was nothing in public health orders, the relevant enterprise agreement or express terms of the employees’ contracts, that would provide a legal basis for the SAR. Accordingly, the Full Bench observed that the basis for the SAR must derive from the term implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of their employer and that such a term is implied, by law, in the absence of a contrary intention of the parties.
After setting out passages from Darling Island Stevedoring¸ the Full Bench noted that the Full Federal Court in One Key Workforce Pty Ltd v CFMEU[23] adopted a slightly different formulation of the implied term stating that:
“The duty of the employee at common law is to obey lawful orders. The “standard or test” by which the common law determines whether the order is lawful is one of reasonableness: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621. Dixon J explained at 621–2:
If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.
As Finn J observed in McManus v Scott-Charlton (1996) 70 FCR 16 at 21:
The need for some such limitation is patent: employment does not entail the total subordination of an employee’s autonomy to the commands of the employer. As was said by the President in Australian Tramway Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42:
A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.
There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case.”[24]
The Full Bench went on to make some general observations, which can be summarised as follows:
· A lawful direction falls within the scope of the employee’s employment and includes instructions incidental to that work;
· Employer directions which endanger an employee’s s life or health, or which the employee reasonably believes will endanger his or her life or health are not lawful orders unless the nature of the work is inherently dangerous and the employee has contracted to undertake the risk;
· The order or direction must be lawful in the sense that the employee cannot be instructed to do something that is unlawful;
· Employees are only obliged to comply with employer directions that are lawful and reasonable;
· Reasonableness is a question of fact having regard to all the circumstances, and what is reasonable may depend, among other things, on the nature of the particular employment;[25]
· The employer is not required to demonstrate that the direction issued was the preferable or most appropriate course of action or in accordance with best practice, or in the interests of the parties.[26]
The Full Bench in Mt Arthur Coal also cited the following passage from the judgment of Dixon J in Darling Island Stevedoring:
“But what is reasonable is not to be determined so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service.”[27]
The Full Bench went on to conclude that:
[96] Whether a particular direction is reasonable is not to be determined in a vacuum, it requires consideration of all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship. In NSW, this would include consideration of obligations in the WHS Act, which governs employment relationships in that jurisdiction. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis. The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction.
Consultation obligations
The Full Bench in Mt Arthur Coal considered cases about what constitutes consultation for the purposes of the WHS Act (NSW) and consultation terms found in industrial instruments, and drew from those cases, the following propositions (citations omitted):
• the content of any specific requirement to consult is necessarily dictated by the precise terms in which such a requirement is expressed; the nature of the factual or legal issues the subject of the requirement; and the factual context in which the requirement is exercised, including the particular circumstances of the persons with whom there must be consultation;
· a responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account;
· the consultation needs to be real; it must not be a merely formal or perfunctory exercise;
· even though management retained the right to make the final decision, it is not to be assumed that the required consultation was to be a formality. Management has no monopoly of knowledge and understanding of how a business operates, or of the wisdom to make the right decisions about it. The process of consultation is designed to assist management, by giving it access to ideas from employees, as well as to assist employees to point out aspects of a proposal that will produce negative consequences and suggest ways to eliminate or alleviate those consequences;
· the party to be consulted [must] be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon;
· while the word ‘consultation’ always carries with it a consequential requirement for the affording of a meaningful opportunity to the party being consulted to present those views, what will constitute such an opportunity will vary according [to] the nature and circumstances of the case. In other words, what will amount to ‘consultation’ has about it an inherent flexibility;
· a right to be consulted, though a valuable right, is not a right of veto;
· the consultation obligation is not concerned with a likelihood of success of the process, only to ensure that it occurs before a decision is made to implement a proposal;
· an ordinary understanding of the word “consult” would suggest that the obligation to consult does not carry with it any obligation either to seek or to reach agreement on the subject for consultation. Consultation is not an exercise in collaborative decision-making. All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made;
· the requirement to consult affected workers would … not be satisfied by providing the employees with a mere opportunity to be heard; the requirement involves both extending to affected workers an opportunity to be heard and an entitlement to have their views taken into account when a decision is made;
· genuine consultation would generally take place where a process of decision-making is still at a formative stage;
· the opportunity to consult must be a real opportunity not simply an after thought;
· consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal;
· there is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, ‘this is what is going to be done’ and saying to that person ‘I’m thinking of doing this; what have you got to say about that?’. Only in the latter case is there ‘consultation’;
· it is implicit in the obligation to consult that a genuine opportunity be provided for the affected party to attempt to persuade the decision-maker to adopt a different course of action. If a change has already been implemented or if the employer has already made a definite or irrevocable decision to implement a change then subsequent ‘consultation’ is robbed of this essential characteristic; and
· any offer to consult in relation to the matter was in the context that the respondent had already made an irrevocable decision, then the party had not, to use his Honour's words, consulted about the decision in any meaningful way.”
The Full Bench went on to find that these propositions contain contextual material relevant to consultation obligations and that the content of any specific requirement to consult is determined by context, including the precise terms in which it is expressed in an applicable industrial instrument, contract or legislation, including the circumstances in which the consultation obligation is enlivened. Also relevant is the factual context in which the requirement arises, including the size and nature of the business, the nature of the change and the impact of that change on persons who are required to be consulted, and whether the factual circumstances dictate a quick response.[28]
Medical, scientific and epidemiological findings
The Full Bench found that the following uncontentious factual propositions were established on the evidence:
“1. COVID-19 involves a high burden of disease, greater than influenza.
2. Any infected person is at risk of developing serious illness from the virus, which may lead to death.
3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants.
4. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant.
5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.
6. All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.
7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.
8. While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection.
9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.
10. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The Mine is clearly such a workplace.”[29]
The Full Bench did not accept a contested proposition advanced by the employer that: “The idea that higher rates of vaccination decrease the risks to an unvaccinated person inform the submissions of the [unions]. This idea is a dangerous fallacy that if accepted, would put everyone at risk.” However, the Full Bench did accept eight subsidiary propositions as follows:
“1. Herd immunity will never be achieved.
2. A vaccinated person can be infected with COVID-19.
3.A vaccinated person who is infected can efficiently transmit the virus.
4. Vaccination shortens the period when a person is infectious, for which reason vaccination reduces the overall risk of infection.
5. Notwithstanding that vaccination reduces the overall risk of infection, there is still a risk that an unvaccinated person will be infected.
6. Once a vaccinated person is infected, there is a substantially reduced risk of serious illness or death.
7. Once an unvaccinated person is infected, there is no such control against the risk of serious infection or death. Vaccination is the only protection against serious illness or death, the only control that protects against serious illness or death once a person is infected.
8. Vaccination is the most effective control measure currently available.”[30]
While not accepting the contested proposition, the Full Bench went on to find that:
“[61] … an unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person. It follows, as a matter of logic, from this proposition that higher rates of vaccination decrease the chance that an unvaccinated person will acquire COVID-19 because an unvaccinated person is less likely to acquire COVID-19 from a vaccinated person than an unvaccinated person. In this sense, higher rates of vaccination do decrease the risks to an unvaccinated person. However, as Professor McLaws and Witness R5 made clear in their evidence, higher rates of vaccination do not remove the risk of COVID-19 infection for unvaccinated workers. That is because unvaccinated workers are at risk of catching COVID-19 from other unvaccinated workers and fully vaccinated workers, who can acquire COVID-19 and efficiently transmit the disease to others. Indeed, unvaccinated people are more likely to acquire COVID-19 compared with vaccinated people. Further, unvaccinated workers on a work site increase the risk of spreading COVID-19 to vaccinated workers and other unvaccinated workers. In turn, those persons are at risk of spreading COVID-19 outside the workplace to their families and friends.
[62] …the rates of infection of COVID-19…throughout Australia, are likely to increase over time as movement restrictions ease, with the result that it is inevitable that everyone who works on the Mine will come into contact with someone – probably many people – who are infected with COVID-19. Witness R5 [an expert medical witness] went on to express his opinion that ‘with reopening the virus will spread through Australia, and [although] the timing in the given locations [is] not exact, but in time it will spread to all locations, and be present in all work places’. When COVID-19 does so spread, those who remain unvaccinated are at greatest risk of acquiring COVID-19, becoming seriously ill or dying from acquiring COVID-19, and infecting other people with whom they come into contact. We note here that the likely spread of COVID-19 with the easing of travel restrictions and the associated uncertainty.”
Workplace Health and Safety Acts
The WHS Act (NSW) considered by the Full Bench in Mt Arthur Coal and the WHS Act Queensland (which is also relevant in the present case) are relevantly identical and are based on model laws which have been enacted in all jurisdictions except Victoria and Western Australia. The following requirements in relation to consultation, are found s. ss. 47 – 49.
“47 Duty to consult workers
(1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.
Maximum penalty—
(a) in the case of an individual—230 penalty units, or
(b) in the case of a body corporate—1,155 penalty units.
(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.
(3) The agreed procedures must not be inconsistent with section 48.”
“48 Nature of consultation
(1) Consultation under this Division requires—
(a) that relevant information about the matter is shared with workers, and
(b) that workers be given a reasonable opportunity—
(i) to express their views and to raise work health or safety issues in relation to the matter, and
(ii) to contribute to the decision-making process relating to the matter, and
(c) that the views of workers are taken into account by the person conducting the business or undertaking, and
(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.
(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.”
“49 When consultation is required
Consultation under this Division is required in relation to the following health and safety matters—
(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking,
(b) when making decisions about ways to eliminate or minimise those risks,
(c) when making decisions about the adequacy of facilities for the welfare of workers,
(d) when proposing changes that may affect the health or safety of workers,
(e) when making decisions about the procedures for—
(i) consulting with workers, or
(ii) resolving work health or safety issues at the workplace, or
(iii) monitoring the health of workers, or
(iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or
(v) providing information and training for workers, or
(f) when carrying out any other activity prescribed by the regulations for the purposes of this section.”
The Full Bench in Mt Arthur Coal said that provisions required the employer to consult, so far as reasonably practicable, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. The Full Bench also observed that consultation is treated as a matter of substance, which is to occur prior to implementation and that s. 48(2) requires that the consultation involve a Health and Safety Representative (HSR). Further, the Full Bench observed that this consultation requirement is extended by s. 70(1) of the WHS Act which includes an obligation under s. 70(1)(c) on the employer to allow a HSR access to information ‘relating to’ hazards (including associated risks) at the workplace affecting workers in the workgroup and the health and safety of the workers in the workgroup.[31]
The Full Bench made clear that the WHS Act required employees to be given a reasonable opportunity to express their views and to raise workplace health and safety issues, or to contribute to the decision making process relating to the decision to introduce the SAR and to be provided with reasons, rationale and data supporting the proposal and given a copy of a risk assessment that had been undertaken by the employer rather than to simply comment on the ultimate question as to whether the SAR should be imposed.[32] The Full Bench also said:
“[113] … we recognise that the content of any specific requirement to consult is determined by the context, including:
· the precise terms in which such a requirement is expressed in the applicable industrial instrument, contract or legislation, including the circumstances in which the obligation is enlivened,
· the factual context in which the requirement arises, including the size and nature of the business and the nature of the change which is the subject of the consultation and the impact of that change on the persons who are required to be consulted, and
· whether the factual circumstances dictate a quick response.
[114] As to the last point, if there was a surge in COVID-19 cases such that the risk of transmission substantially increased or if a new, more transmissible or virulent, COVID-19 variant became prevalent then such circumstances may warrant a truncated consultation process. This is recognised in the qualification in s.47 of the WHS Act that consultation take place ‘so far as is reasonably practicable’…”
It is implicit in the decision that in contrast with consultation requirements under awards and model consultation terms in enterprise agreements, that consultation for the purposes of the WHS Acts is required to be undertaken before a decision to implement a change is made. In contrast, the standard terms in awards and the model term required to be included in enterprise agreements, requires consultation when a definite decision has been made.
In relation to the significance of consultation, the Full Bench went on to cite with approval the judgement of Keane CJ and Marshall J in QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[33] who held that while there may have been little likelihood at a different position would be taken by the employers in that case, a term in an enterprise agreement requiring consultation about major change, is not concerned with the likelihood of success of the consultative process, but simply to ensure that consultation occurs before a decision is made to implement a proposal.
Conclusions in Mt Arthur Coal
In addition to the medical, scientific and epidemiological conclusions set out above, the conclusions of the Full Bench in Mt Arthur Coal can be summarised as follows:
The SAR was prima facie “lawful” because:
• it fell within the scope of the employment, and
• there is nothing “illegal” or unlawful about becoming vaccinated.
Consultation obligations under the WHS Acts arose prior to the implementation of the SAR.
Consultation obligations arose under the model consultation term in the relevant enterprise agreement, when a definite decision to implement the SAR was made.
The SAR was not a reasonable direction because the Company did not consult “as far as reasonably practicable” or in a “meaningful” way during an assessment phase, when the Company announced that it was “actively assessing whether to make vaccination a condition of entry to BHP worksites in Australia”.
The consultation process was deficient because:
· the decision to implement the SAR as communicated to employees was not open for reconsideration.
· employees were not given a reasonable opportunity to express their views and to raise work health or safety issues, or to contribute to the decision-making process relating to the introduction of the SAR;
· employees were not provided with information relating to the reasons, rationale and data supporting the proposal;
· employees were not given a copy of the risk assessment or informed of the analysis that informed that assessment; and
· in effect, employees were only asked to comment on the ultimate question: should the Site Access Requirement be imposed?
The inadequacy of the consultation with employees prior to announcement of the SAR is relevant to its reasonableness for the purposes of determining whether it was a lawful and reasonable direction.
The employer’s authority to issue the direction in the form of the SAR was not derived from the WHS Act nor any industrial instrument, but from the exercise of an implied contractual power to direct.
No concluded view was expressed on whether a failure to comply with the statutory duties to consult in the WHS Act, goes to the lawfulness of a direction but such failure plainly goes to reasonableness.
The relevance of a failure to consult to the assessment of the reasonableness of a direction is not determined by the likelihood of the success of further consultation, it is sufficient if the failure to consult denied the Employees the possibility of a different outcome.
10.The Full Bench did not express a concluded view about whether the employer had breached its obligations under the Privacy Act.
11.The right of employees to bodily integrity was not violated by the terms of the SAR but the practical effect of the SAR to apply pressure to employees to surrender their bodily integrity was relevant to an assessment of the reasonableness of the SAR.
12.Factual propositions established on the evidence including those relating to the seriousness of COVID – 19 and the effectiveness of available vaccinations are also relevant to the reasonableness of the Site Access Requirement, particularly in relation to the protections offered by the COVID-19 vaccination.
13.Reasonableness is a question of fact having regard to all the circumstances including the nature of the particular employment, the common practices that exist and the general provisions of any instrument governing the relationship.
14.There were a range of considerations that otherwise weighed in favour of a finding that the SAR was reasonable including that:
·It is directed at ensuring the health and safety of workers of the Mine.
·It has a logical and understandable basis.
·It is a reasonably proportionate response to the risk created by COVID-19.
·It was developed having regard to the circumstances at the Mine, including the fact that Mine workers cannot work from home and come into contact with other workers whilst at work.
·The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time.
·It was only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the Mine.
The Full Bench also noted that the content of a requirement to consult is determined by context and that circumstances may dictate a quick response and a truncated consultation process.
DP World Enterprise Agreements
In the present case, relevant consultation requirements are found in the WHS Acts and the DP World Sydney Enterprise Agreement 2020 (Sydney Agreement) and the DP World Brisbane Enterprise Agreement 2020 (Brisbane Agreement) (collectively the Enterprise Agreements) which covered the Applicants and the MUA as bargaining representative and are in identical terms. The specific provisions are considered below.
The consultation provisions relied on by the MUA in submissions on behalf of the represented Applicants, are in clause 21.4 of both the Sydney Agreement and the Brisbane Agreement in the following terms:
“21.4 Consultation
21.4.1 The parties recognise that communication and consultation is an essential part of managing health and safety risks. A safe workplace is more easily achieved when everyone involved in the work communicates with each other to identify hazards and risks, talks about any health and safety concerns and works together to find solutions. By drawing on the knowledge and experience of Employees and health and safety specialists, more informed decisions can be made about how to carry out work safely.
21.4.2 The Company commits to communicate and consult with employees and HSRs about matters which affect, or are likely to affect, the health and safety of employees. This consultation will include sharing with the employees and HSRs information about health and safety matters; giving the employees a reasonable opportunity to express their views; and taking into account those views.
21.4.3 Consultation with Employees will be done as effectively and as far as reasonably practicable. This does not necessarily mean it is feasible to discuss with every:
(a) Employee; or
(b) Elected HSR’s; or
(c) Safety Facilitator.”
…
21.5 Consultative mechanisms
21.5.1 The parties agree to establish consultative mechanisms as a vehicle for consultation and to contribute to improved health and safety in the workplace. Consultative mechanisms will include Health and Safety Representatives (HSR’s), a Health, Safety and Environment Committee and Safety Facilitators where applicable.
21.5.2 HSRs shall be elected to represent fellow employees by fellow employees in respect of Work Health and Safety matters.
21.5.3 Elected HSRs shall choose a regulator-approved course of training, in accordance with the provisions set down in Legislation. The timing of the training will be scheduled in consultation with the Company, taking into account operational needs, and in normal circumstances within three (3) months of being requested.
21.5.4 A Health, Safety and Environment Committee shall be established at each site.
21.5.5 At least half of the members of the Health, Safety and Environment Committee must be workers who are elected by the Employees. The Health, Safety and Environment Committee will develop a constitution, consistent with local regulations.
21.5.6 The Parties will ensure that Safety Facilitators, where applicable, are as effective as possible in promoting safety and adherence to all relevant Acts, Regulations, Codes of Practice, Marine Orders, Guidelines and policies.
21.6 Facilities and assistance to promote consultation
21.6.1 The Company will provide HSRs, Committee members, and Facilitators with access to such resources, facilities, information and assistance that are reasonably necessary to exercise their powers and perform their functions.
21.7 Procedures for Dealing with Health and Safety Issues and Incidents
21.7.1 All employees have a responsibility to report concerns regarding health and safety in accordance with Company reporting mechanisms. An employee must raise any safety incident or issue with their foreman or equivalent and subsequently to the person in charge (PIC) or shift supervisor or shift manager without undue delay. Where it relates to a concern and it cannot be immediately addressed, a similar process must be followed.
21.7.2 Where a hazard is identified, all employees, management and their representatives must take immediate steps to prevent others from being harmed, including but not limited to:-
(a) Removing or fixing the hazard immediately;
(b) Following established procedures including communicating as set out in 21.7.1 above;
(c) Immediately removing personnel from the affected area;
(d) Getting someone to warn others while attempts are made to control the hazards; and
(e) Putting up temporary barriers or signs or other forms of control measures.
21.7.3 Where Employees have a reasonable concern of a serious risk arising from immediate, imminent or impending hazard, work may cease in the immediate vicinity until the issue is investigated and dealt with in accordance with established processes.
21.7.4 During any period for which work has ceased, the employer may assign any employees whose work is affected to suitable alternative work. There shall be no loss of pay where work has ceased consistent with the procedure set out in Clause 21.7.
21.7.5 Employees have the right at any stage of the processes described herein to be represented by a Union official however this does not preclude the continuation of operations/work. The Company will continue to recognise that a HSR or employee nominated safety representative may participate in the process.”
Clause 8.12 of the Enterprise Agreements provides as follows in relation to change of policies by the Company.
“8.12The Company may from time to time change its policies that apply to Employees in addition to this Agreement. In the event of a policy change that may have any impact on the terms of conditions of employment (other than where those terms and conditions are expressly contained within this Agreement), each Employee will be appropriately advised of the change. Nothing contained in a policy or procedure shall be operative nor shall it have any effect to the extent that its inclusion or implementation is inconsistent with the intent of this Agreement. Prior to any change being inserted into a policy, any dispute or disagreement by Employees or the Union in relation to intended change policies and/or procedures shall be progressed through clause 29.0 Dispute Resolution.”
As I have previously noted, the MUA submissions did not refer to the general consultation terms required by the FW Act to be included in enterprise agreements. Both Agreements contain consultation provisions of the kind required by s. 205 of the FW Act to be included in enterprise agreements. Relevantly, clause 27 of both Agreements provides as follows:
“27.0 INTRODUCTION OF CHANGE
27.1 This Agreement recognises that Company management is obligated to carry out its responsibilities in accordance with Company policies and additionally, where such policies relating to production, program, organisation or technology may also affect the rights and interests of its Employees, Company management is also obligated to consider the rights and interests of its Employees in the implementation of such policies. Any change implemented in accordance with this clause shall not be inconsistent with the intent of this Agreement and shall not erode or diminish conditions of employment.
27.2 Company duty to notify
27.2.1 Where the Company has made a definite decision to introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on Employees, the Company undertakes to notify the Employees who may be affected by the proposed changes and the National Secretary/National Official and relevant Branch Secretary/Official of the Union. For avoidance of doubt where clause 8.13 has been triggered then this clause will not apply to the proposed changes.
27.2.2 Without limiting the generality thereof, significant effects includes termination of employment, changes in the composition, operation or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of Employees to other work or locations and the restructuring of jobs and the use of contractors.
27.3 Company duty to discuss change
27.3.1 The Company undertakes to discuss with the Employees affected and the Union, inter alia, the introduction of the changes referred to in clause 27.2, the effects the changes are likely to have on Employees, measures to avert or mitigate any adverse effects of such changes on Employees and give prompt consideration to matters raised by the Employees and/or the Union in relation to the changes. The discussion shall commence as early as practicable after a decision has been made by the Company to make the changes referred to in clause 27.2. For the purposes of such discussion, the Company undertakes to provide in writing to the Employees concerned and the Union, all appropriate information about the changes including the nature of the proposed changes, the expected effects of the changes on Employees and any other matters likely to affect Employees.
27.4 Implementation of change
27.4.1 It is agreed between the parties that after the above notification and discussion have taken place that the Company, after careful consideration of the views of Employees may implement the change with sixty (60) days’ notice.
27.4.2 Where subject to the provisions of the clause, the Company exercises its rights to implement change in the workplace and the Union disagrees with that decision, subject to there being no stoppage of work as a result of the decision of the Company, the Union may refer the matter in dispute to FWC for conciliation and arbitration if necessary.”
The Full Bench in Mt Arthur Coal found that the consultation term in the enterprise agreement in that case (which does not appear to be substantively or relevantly different to the term in clause 27 of the Agreements in the present case) was engaged by the decision of the employer to introduce the SAR. However, the Full Bench found that given its findings in relation to consultation under the WHS Acts, it was not necessary to express a concluded view on whether those requirements had been met in the circumstances of that case and instead observed that it appeared Mt Arthur Coal had substantially met its obligations under the Agreement in that it consulted employees after it had made a definite decision to introduce the Mandate.
I also note that clause 29 of the Enterprise Agreements in the present case set out a dispute settlement procedure, which allows disputes arising in the workplace in regard to the application of the Agreement, to be raised at workplace and national level and referred to the Commission for conciliation or arbitration.
The positions of the parties and the issues in dispute
It is not disputed that the Applicants did not comply with the requirements set out in the Mandate. The MUA contends that the represented Applicants were not required to comply because the Mandate was a “manifestly unreasonable” direction to employees. As a result, the failure to comply with the Mandate was not a valid reason for dismissing the Applicants. In this respect, the MUA advanced the following arguments in support of its position:
· DP World failed to comply with the consultation requirements under the relevant Work Health and Safety legislation of New South Wales and Queensland;
· DP World failed to comply with its consultation obligation under clause 21 of the Enterprise Agreements which deals with the subject of “Safety Issues and Incidents”;
· DP World failed to comply with clause 8.12 of the Enterprise Agreements by unilaterally implementing a policy that impacts on the terms and conditions of employment and is contrary to the intent of the Agreements;
· The direction pressured employees into surrendering their bodily integrity without considering their concerns;
· DP World failed to comply with its obligations under the Privacy Principles and the Privacy Act 1988 (Cth); and
· The mandatory vaccine policy is ineffective as a control measure with respect to COVID - 19.
As I have previously noted, the MUA on behalf of the represented Applicants did not specifically refer to the general consultation obligations in clause 27 of the Agreements nor contend that they were relevant in the determination of the matters in dispute. This is surprising given that an alleged failure to consult is central to the MUA’s contention that the Mandate was not a reasonable direction. It is also surprising given that a clause covering general consultation obligations, such as clause 27 of the DP World Agreements, is a mandatory clause which is required to be included in enterprise agreements. Further, the Full Bench in Mt Arthur Coal found that the SAR in that case triggered those obligations. I also note that the Respondents reserved their position in relation to whether the clauses were engaged by the decision to implement the Mandate if the MUA or the self-represented Applicants specifically pressed this argument at some later stage. This did not occur. However, for reasons which will be apparent it is not necessary that I reach a conclusion on this point for the purposes of considering whether there was a valid reason to dismiss the Applicants.
The cases advanced by the unrepresented Applicants can be summarised as follows. Mr Pintley contends that DP World Australia failed to consult him in respect of the Mandate. He further contends circulating in the terminal was a list of names of employees who had not provided their vaccination status or were unvaccinated and that this was a breach of privacy on the basis that medical information of employees was not stored in a private and secure manner and was disclosed. Mr Pintley also argues that his employment was terminated while he was on a period of absence on workers’ compensation, which meant that the dismissal “had no relation to [his] capacity or conduct at work” as he would have posed no “risk on the health, safety and welfare of other employees.”
Mr MacDonald raised numerous contentions in his material. Firstly, he contends that it was unreasonable for DP World to require vaccination because COVID – 19 vaccines are experimental drugs, unsafe and ineffective. Information from various sources was cited by Mr MacDonald to support this contention. Secondly, it is contended that nothing in his contract of employment or the enterprise agreement permits DP World Australia to impose a Mandate as to vaccination and, consequently, DP World Australia was in breach of his employment contract. Thirdly, DP World Australia failed to give adequate consideration to the fact that Stevedores frequently work alone with minimal interaction with other persons and that other control measures had already been put in place, including social distancing and multiple COVID – 19 protocols with which ship crews must comply before they are allowed to berth at any Port or Terminal in Australia. As such, Mr MacDonald argued that the risk of infection is “absolutely miniscule”. Fourthly, Mr MacDonald appears to contend on constitutional grounds that the Mandate “is inconsistent with the Fair Work Act 2009” and that “this matter should fall exclusively under Federal Legislation”.
The material filed by Mr Nemeth, consists of a series of statements but their relevance to the present matter, as it relates to valid reason under s. 387(a) of the FW Act, has not been explained. Mr Nemeth states that COVID – 19 vaccines are experimental drugs, unsafe and ineffective and that “forced, coerced, and mandated medical interventions” violate the Nuremberg Code. He further cited s. 51(xxiiiA) of the Constitution stating that “no medical service can be forced against [his] free will”. Section 109 of the Constitution, which deals with the inconsistency between a law of the State and a law of the Commonwealth, was also cited though its relevance to the Mandate in the context of s. 387(a) of the FW Act is not explained.
The position of the Respondents is that failure on the part of the Applicants to comply with the Mandate, without a proper medical exemption, was a valid reason for the dismissals. As to the Mandate, the Respondents contend it was a lawful and reasonable direction given the nature of the workplaces – as stevedoring employees board ships which also berth at foreign ports and the potential for COVID-19 to spread through interaction with ship’s crew; the critical place of container stevedoring in the Australian supply chain as container shipping is enormously important to Australia – the significant public interest in protecting terminal operations from disruption particularly in circumstances where the pandemic has placed an enormous strain on supply chains; the nature of COVID-19 and the public health responses to cases – the potential severity being more likely in unvaccinated persons; the age profile of the Respondents’ stevedores who are on average older than the workforce generally and may therefore be more at risk; the knowledge at the relevant times that State and international borders would re-open, and inevitably Australia would see an increase in COVID-19 numbers; the difference at relevant times in how State governments treated vaccinated versus unvaccinated persons who were contacts with COVID-19 cases – the Respondents’ perception of this was informed by direct experience of managing positive cases at the Sydney Terminal in September 2021, when the NSW government’s contact tracing matrix more readily classified unvaccinated persons as close contacts, and hence subject to lengthy self-isolation requirements that took them out of the workforce for a period; the need to extend a degree of latitude to employers who bear the “primary duty of care” under s. 19 of the Work Health and Safety and liability to pay compensation on a no-fault basis, albeit in circumstances where they must be insured, to employees who contract COVID-19 at work; and that a specialist safety regulator which was aware of the Mandate and the process by which it was introduced took no issue with it.
Evidence
Background and context
Mr Hulme gave evidence about the background and context in which the Mandate was introduced which can be summarised as follows. DP World Australia is one of the two large “legacy” container stevedores in Australia and in any given year, it is either the largest or second-largest provider of stevedoring services by volume, alternating with Patrick Terminals. In the calendar year 2021, DP World held approximately 42% of the market share across the four ports where it operates.
Each of the ports where DP World Australia operates is the only dedicated container port in that State. Both the Port of Brisbane and Port Botany are common entry ports for vessels making a first port of call in Australia on the east coast. The Port of Fremantle is the usual first call in Australia for vessels initially calling on the west coast. Ships stevedored by DP World generally come to Australia from ports in China, Hong Kong, Japan, Korea, Indonesia, Taiwan, Singapore, Auckland, Tauranga, various Pacific Island ports, and ports in Europe and the United States.
DP World Australia operates one of three container stevedoring terminals at the Ports of Brisbane, Sydney, and Melbourne. The others are operated by Patrick Terminals, Hutchison Ports in Brisbane and Sydney, and Victoria International Container Terminal (VICT) in Melbourne. DP World Australia’s market share in these three locations is said to fluctuate from time to time and varies somewhat between ports. Mr Hulme states that generally, however, it is between 35 – 40% of the container stevedoring market and this is partly an effect of physical constraints as DP World generally holds somewhere between a third and a half of container vessel berths available at each port. As a result, if any Terminal was unable to operate at full capacity or at all, the impact to the relevant State’s container stevedoring capacity would be significant.
All employees of DP World Australia and its operational subsidiaries are required to meet several common safety standards and accountabilities in accordance with each of the applicable Enterprise Agreements and work health and safety legislation to ensure the best achievable level of health and safety is maintained within the operations of DP World Australia. Similarly, all employees are required to ensure that safe work practices are adhered to and comply with all reasonable instructions of DP World Australia relating to workplace health and safety, including applicable workplace health and safety laws and policies, as these are the terms set out in the letters of offer to employees.
DP World stevedores regularly interact with members of foreign crews to carry out their duties. The foreign crews may have been in a significant number of ports, including in high-risk countries, prior to docking in Australia and since the beginning of the Pandemic both the Federal Government and the State Governments had placed restrictions on portside workers for the purposes of preventing the importation of COVID-19 into Australia or limiting the spread of COVID-19 within Australia.
Mr Hulme stated that throughout the Pandemic, the ability of shipping services and seafarers to deliver vital goods, including medical and food supplies, was critical. As ports played a critical role in the Pandemic response, it was critical to ensure that the flow of commerce by sea and supply chains were not unnecessarily disrupted whilst maintaining the safety of every person at the docks and those who transit through the ports. Since the beginning of the COVID-19 pandemic, DP World has been guided by circulars, guidance notices, information bulletins and mandates from a range of departments and authorities, including the International Maritime Organisation; World Health Organisation; Australian Border Force; Health Departments of the States and port authorities across Australia.
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.
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.
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).
Next Steps
The matter will be listed for a further mention to program subsequent proceedings and issue any necessary directions.
DEPUTY PRESIDENT
Appearances:
K Bond of the Construction, Forestry, Maritime, Mining and Energy Union – Maritime Union of Australia Division for 22 Applicants.
K MacDonald, Applicant.
Z Nemeth, Applicant.
J Pintley, Applicant.
R Taylor, Applicant.
S Crilly of Seyfarth Shaw Australia for the Respondents.
Hearing details:
2022.
Brisbane (by video):
March 30, 31 and September 9.
Final written submissions:
Applicants, 16 September 2022.
Respondents, 13 September 2022.
SCHEDULE A
Applications: Represented by the Maritime Union of Australia Division of the Construction Forestry Maritime Mining Energy Union
| Matter No. | Matter Name | Dismissal Effective | Lodgement Date |
| U2021/10198 | Mr Scott Lewis v DP World Sydney Limited | 25.10.2021 | 11.11.2021 |
| U2021/10300 | Mr Nathan Severino v DP World Sydney Limited | 25.10.2021 | 15.11.2021 |
| U2021/10302 | Mr Matthew Tosh v DP World Sydney Limited | 25.10.2021 | 15.11.2021 |
| U2021/10303 | Mr Kitiona Tanielu v DP World Sydney Limited | 25.10.2021 | 15.11.2021 |
| U2021/10304 | Mr Cain Parrott v DP World Sydney Limited | 25.10.2021 | 15.11.2021 |
| U2021/10306 | Mr James Puhi Puhi v DP World Sydney Limited | 25.10.2021 | 15.11.2021 |
| U2021/10308 | Mr Mathew Kinnear v DP World Sydney Limited | 25.10.2021 | 15.11.2021 |
| U2021/10310 | Mr Ryan Williams v DP World Sydney Limited | 25.10.2021 | 15.11.2021 |
| U2021/10312 | Mr Teni Danny Tanielu v DP World Sydney Limited | 25.10.2021 | 15.11.2021 |
| U2021/10313 | Mr Jacob Heath v DP World Sydney Limited | 25.10.2021 | 15.11.2021 |
| U2021/10317 | Ms Vanessa Richards v DP World Sydney Limited | 25.10.2021 | 15.11.2021 |
| U2021/10318 | Mr Mick Grujevski v DP World Sydney Limited | 25.10.2021 | 15.11.2021 |
| U2021/10322 | Mr Fletcher Pohuka Ellison Jones v DP World Sydney Limited | 25.10.2021 | 15.11.2021 |
| U2021/10323 | Mr Brenton Mosca v DP World Sydney Limited | 28.10.2021 | 15.11.2021 |
| U2021/10510 | Mr Tom Lovas v DP World Sydney Limited | 02.11.2021 | 18.11.2021 |
| U2021/10649 | Mr William Grace v DP World Sydney Limited | 02.11.2021 | 22.11.2021 |
| U2021/10690 | Mr Steven Orel v DP World Brisbane Limited | 07.11.2021 | 23.11.2021 |
| U2021/11013 | Mr Jamie Edwards v DP World Brisbane Limited | 17.11.2021 | 01.12.2021 |
| U2021/11011 | Mr Sheldon Wright v DP World Brisbane Limited | 17.11.2021 | 01.12.2021 |
| U2021/11089 | Mr Mickey Harriss v DP World Brisbane Pty Ltd | 17.11.2021 | 03.12.2021 |
| U2022/998 | Mr Troy Williams v DP World Brisbane Limited | 03.01.2022 | 21.01.2022 |
Applications: Self-represented
| Matter No. | Matter Name | Dismissal Effective | Lodgement Date |
| U2021/10151 | Mr Jason Pintley v DP World Sydney Limited | 25.10.2021 | 10.11.2021 |
| U2021/11186 | Mr Kevin James Macdonald v DP World | 17.11.2021 | 05.12.2021 |
| U2021/11191 | Mr Zoltan Nemeth v DP World Brisbane Limited | 17.11.2021 | 05.12.2021 |
| U2021/11394 | Mr Richard Charles Taylor v DP World Australia | 17.11.2021 | 08.12.2021 |
[1] [2021] FWCFB 6059.
[2] Bishop v Bridgelands Securities Ltd (1990) 25 FCR 311 at 314.
[3] Exhibit MUA – 1 Witness Statement of Bradley John Dunn; Exhibit MUA – 2
[4] Exhibit MUA – 5 Witness Statement of Keiron Carty.
[5] Exhibit MUA – 3 Witness Statement of Matthew Lewis; Exhibit MUA – 4 Reply Witness Statement of Matthew Lewis.
[6] Exhibit A1 – Particulars of complaint of Adverse Action; Exhibit A2 – Response to Scott Eadie’s Statement.
[7] Exhibit A3 –Material filed by Mr Kevin MacDonald.
[8] Exhibit A5 – Material filed by Mr Zoltan Nemeth.
[9] Exhibit R1 – Statement of Mark Shallcross Hulme.
[10] Exhibit R2 – Statement of Scott Eadie dated 31/01/22; Exhibit R3 – Statement of Scott Eadie dated 14/02/22.
[11] Exhibit R4 – Statement of Benjamin Hanley dated 31/01.22; Witness Statement of Benjamin Hanley dated 14/02/22.
[12] Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986)162 CLR 24
[13] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184.
[14] [2020] FWCFB 1373.
[15] Sydney Trains v Gary Hilder [2020] FWCFB 1373.
[16] CSL Limited T/A CSL Behring v Chris Papioannou [2018] FWCFB 1005.
[17] [2020] FWCFB 1373.
[18] [2021] FWCFB 3457.
[19] (1995) 185 CLR 410.
[20] Ibid at 430.
[21] Ibid at 465.
[22] (1938) 60 CLR 601.
[23] [2018] FCAFC 77; (2018) 262 FCR 527; (2018) 277 IR 23 at [187].
[24] (1938) 60 CLR 601 at 621–2.
[25] Op. cit. at [68] – [70].
[26] Op. cit. at [79] citing the observation of a Full Bench in Briggs v AWH Pty Ltd [2013] FWCFB 3316.
[27] (1938) 60 CLR 601 at 622. See also NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [217] (Flick J).
[28] Op. cit. at [113].
[29] Ibid at [29]
[30] Ibid at [60] – [61].
[31] Op. cit. at [102] – [104].
[32] Op. cit. at [174].
[33] [2010] FCAFC 150; [2010] 204 IR 42.
[34] Transcript PN837.
[35] Transcript PN862 – 863.
[36] Transcript PN867 – 869.
[37] Exhibit R1 Annexure MSH2.
[38] Ibid Annexure MSH3.
[39] Ibid at Court Book page 623l.
[40] Exhibit R2 Annexure SE-003.
[41] Exhibit R2 Annexure SE-002.
[42] Exhibit R2 Witness Statement of Scott Eadie dated 31 January 2022 Annexure SE-004.
[43] Exhibit R2 Witness Statement of Scott Eadie 31 January 2021 Annexure SE – 006.
[44] Exhibit R4 Annexure BCH – 1 – Selection of bulletins published to DP World Brisbane employees.
[45] Exhibit R4 Annexure BCH – 2.
[46] Exhibit R4 Annexure BCH – 4.
[47] Transcript PN1253 – 1261.
[48] Transcript PN899.
[49] Transcript PN900.
[50] Transcript PN918.
[51] Transcript PN922.
[52] Transcript PN926.
[53] Transcript PN931.
[54] Transcript PN1039 - 1041
[55] Transcript PN1050.
[56] Transcript PN955.
[57] Transcript PN961.
[58] Transcript PN1077.
[59] PN1233 – 1234.
[60] Transcript PN1278 – 1280.
[61] Transcript PN1283 – 1285.
[62] Transcript PN1398 – 1402, 1428 – 1430. 1438 – 1440..
[63] Transcript PN1672 – 1673.
[64] Transcript PN1679 – 1684.
[65] Exhibit R3- Witness Statement of Scott Eadie dated 14/02/22 Annexure SE 024.
[66] Exhibit MUA 1 Annexure BD3.
[67] Exhibit MUA 3 Annexure ML4.
[68] Exhibit R3 Annexure SE025.
[69] Transcript PN1306 – 1308.
[70] Transcript PN1351 – 1354.
[71] Transcript PN1367 – 1369.
[72] Exhibit A2 Annexure A003.
[73] Exhibit R3 Annexure SE025.
[74] Transcript PN1734 – 1779.
[75] Exhibit R4 Annexure “BCH – 12”.
[76] Exhibit R4 Statement of Benjamin Hanley Annexure BCH – 12.
[77] Exhibit R4 Annexure BCH – 12.
[78] Transcript PN1095 – 1098.
[79] Transcript PN1705 – 1707/
[80] Transcript PN1714 – 1715.
[81] Exhibit R2 Statement of Scott Eadie paragraph 57.
[82] Transcript PN158.
[83] Transcript PN164.
[84] Transcript PN165 – 166.
[85] Transcript PN169 – 178.
[86] Transcript PN181.
[87] Transcript PN211 – 217.
[88] Transcript PN242 – 245.
[89] Transcript PN259 – 263.
[90] Transcript PN300 – 304.
[91] Transcript PN136.
[92] Transcript PN338.
[93] Transcript PN338 – 339.
[94] Transcript PN343.
[95] Exhibit 4 Reply Witness Statement of Mathew Lewis Annexure ML5.
[96] Transcript PN453 – 455.
[97] Exhibit A2 Annexure A001.
[98] Exhibit A2 Annexure A003.
[99] Ibid Annexure A007.
[100] Ibid Annexure A011.
[101] Exhibit A2 Annexure A012.
[102] Transcript PN571.
[103] Transcript PN575.
[104] Transcript PN661.
[105] Mt Arthur Coal op. cit. at [103].
[106] Mt Arthur Coal op. cit. at [157].
[107] (1984) 154 CLR 472, at 493-494, cited in QR Ltd at [14].
[108] Mt Arthur Coal op. cit. at [198] citing (1984) 154 CLR 472.
[109] Exhibit MUA 1 Witness Statement of Brad Dunn paras [25] – [28].
[110] Privacy Act, s.15.
[111] Construction, Forestry, Maritime, Mining and Energy Union & Ors v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA & Ors[2022] FWC 81 (21 January 2022).
[112] Ibid at [25].
[113] Ibid at [152].
[114] Exhibit MUA 5 Witness Statement of Keiron Carty at [15] and Annexure “KC – 3”.
[115] BHP Coal op. cit. at [164].
[116] Ibid at [162].
[117] [2021] FWCFB 6059 at [108].
[120] Transcript at PN837.
[121] ‘Energy – Overview’, Geoscience Australia (Web Page) <
[122] Transcript at PN801.
[123] Transcript at PN800.
[124] [2021] FWCFB 6059.
[125] Respondents’ closing submissions at [6.21] (p. 32).
[126] Op. cit. at [62].
[127] PN454.
[128] Witness Statement of Scott Eadie at [65], Court Book p. 422.
[129] Witness Statement of Scott Eadie at [72] – [76], Court Book p. 424.
[130] Ibid at [84], Court Book p. 425.
[131] Ibid at [74], Court Book p. 424.
[132] Respondents’ closing submissions at [3.24] (p. 11); [6.27] (p. 34); and [6.29] (p. 35).
[133] Respondents’ closing submissions at [5.9] (p. 19)
[134] Respondent’s Closing submissions at [5.24] (p. 26).
[135] PN897 – 900.
[136] Mount Arthur Coal at [156].
[137] ibid at [172].
[138] ibid.
[139] ibid at [157].
[140] See for example Larter v Hazzard (No 2) [2021] NSWSC 1451 at [62] - [64].)
[141] Exhibit R1 – Statement of Mark Shallcross Hulme dated 28 January 2022 at [64].
[142] Exhibit R2 – Statement of Scott Eadie dated 31 January 2022 at [80] - [83].
[143] Exhibit R4 – Statement of Benjamin Charles Hanley dated 31 January 2022 at [72] - [73].
[144] Cox v DP World Brisbane Pty Ltd [2021] FCA 1335.
[145] Exhibit R4 – Hanley Annexure BCH-17 p. 114.
[146] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
[147] Miller v University of New South Wales [2003] FCAFC 180 at [13] - [15] per Gray J.
[148] Miller at [64] per Gyles and Ryan JJ; Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
[149] (2013) 238 IR 1, [2013] FWCFB 6191 at [36].
[150] See also NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [216].
[151] (1938) 60 CLR 601 at 621 - 622.
[152] Briggs v AWH Pty Ltd[2013] FWCFB 3316 at [8].
[153] Exhibit R4, Statement of Benjamin Charles Hanley dated 31 January 2022 at [41]-[42] CB 278.
[154] Maritime Union of Australia (A Division of the Construction, Forestry, Maritime, Mining and Energy Union), COVID-19 - Waterfront Workers Information (27 March 2020) accessed 28 April 2022.
[155] Exhibit R1, Statement of Mark Shallcross Hulme dated 28 January 2022 at [13] CB 536.
[156] Exhibit R1, Hulme at [4] CB 535. The apparent discrepancy between this and the 35-40% figure for market share in the East Coast ports is DP World’s 49% market share in Fremantle, where there are only two terminals: see [14] CB 537.
[157] Exhibit R1, Hulme at [9] CB 536.
[158] That is, four of the nine berths: Exhibit R4, Hanley at [9] CB 273.
[159] Hulme at [19] - [23].
[160] Hanley at [18] - [19]; Eadie at [25].
[161] Hanley at [21] - [22]; Eadie at [27] - [28].
[162] See also Australian Competition and Consumer Commission, Container stevedoring monitoring report 2020-21, 4 November 2021, pp. 11 - 20.)
[163] Hulme at [4].
[164] Hanley at [23]; Eadie at [24].
[165] See Queensland Government, Queensland COVID-19 statistics, Queensland COVID-19 statistics | Health and wellbeing | Queensland Government ( Eadie at [45] - [46], SE-006 pp. 28 - 31.
[167] McManus v Scott-Charlton (1996) 70 FCR 16 at 27.
[168] Eadie at [72] - [76], SE-016 p. 56.) Darling Island Stevedoring (at 622)
[169] See e.g. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449 - 450.
[170] Cosmos: A Personal Voyage, ‘Encyclopaedia Galactica’, Public Broadcasting Service, 14 December 1980.
[171] Mt Arthur Coal op. cit. at [85].
[172] Ibid at [188].
[173] Ibid at [201].
[174] That is, consultation clauses ultimately drawn from the Terminal, Change and Redundancy Case (1984) 8 IR 35 and (1984) 9 IR 115.
[175] Witness statement of Benjamin Charles Hanley dated 31 January 2022 at [62].
[176] Second Eadie Statement at [19], SE-025 (p. 46 - 55).
[177] (2017) 268 IR 285, [2017] FWCFB 3005 at [114].
[178] (2014) 245 IR 384, [2014] FWCFB 7889.
[179] Mt Arthur Coal at [217] - [218]; see also Kassam v Hazzard (2021) 393 ALR 664, [2021] NSWSC 1320 (Kassam v Hazzard SC) at [63]; Kassam v Hazzard (2021) 396 ALR 302, [2021] NSWCA 299 (Kassam v Hazzard CA) at [96] and [98] per Bell P.
[180] Mt Arthur Coal at [222].
[181] Department of Health & Community Services v JWB (1992) 175 CLR 218.
[182] Office of the Australian Information Commissioner, Australian Privacy Principles guidelines, Chapter B: Key concepts at [B.47].
[183] Kassam v Hazzard SC at [63]. Upheld on appeal in Kassam v Hazzard CA.
[184] [2022] FWC 81 at [156] - [158].
[185] (2019) 287 IR 368, [2019] FWCFB 2946.
[186] Exhibit R3 at SE-026 (p. 56ff); Exhibit R5 at BCH-22 (p. 17ff).
[187] Exhibit R 5 at [12(b)(ii)], BCH-19 (p. 5 -7).)
[188] Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14.
[189] Op. cit. at [136].
[190] Kassam v Hazzard SC at [261] - [286]; Kassam v Hazzard CA at [38] - [40].
[191] Wong v Commonwealth (2009) 236 CLR 573, [2009] HCA 3 at [60].)
[192] [2021] FWC 6587 at [26].
[193] Kassam v Hazzard CA at [166] - [167].
[194] Commonwealth Department of Health, Interview with David Speers on ABC Insiders on the COVID-19 vaccine rollout, 21 February 2021 Interview with David Speers on ABC Insiders on the COVID-19 vaccine rollout | Health and Aged Care Portfolio Ministers.)
[195] (2015) 256 CLR 171, [2015] HCA 11.
[196] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [40] - [44]; quoting inter alia Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, [2014] HCA 32 at [1].
[197] Exhibit R3 – Second Eadie Statement at [24].
[198] Respondent’s outline of submissions dated 31 January 2022 at [10] CB 247.
[199] Exhibit R1, Hulme MSH-2 CB 612ff.
[200] Exhibit R1, Hulme at [32]-[33] CB 540-541.
[201] Exhibit R1, Hulme MSH-7 CB 641 - see question 24.
[202] Exhibit R2, Statement of Scott Eadie dated 31 January 2022 at [39] CB 417.
[203] Exhibit R1, Hulme at [36].
[204] Exhibit R2, Eadie at [45]-[46].
[205] Exhibit R2, Eadie SE-0006.
[206] Exhibit R4, Hanley at [44].
[207] Transcript PN1181 (Eadie XN).
[208] Exhibit R4, Hanley at [57]; Transcript PN1398-1402 (Eadie RXN).
[209] See Transcript at PN1222-1224 (Eadie XXN), PN1396-1402 (Eadie RXN), PN1428-1432 (Eadie FXXN), PN1611-1612 (Hanley XXN).
[210] Exhibit MUA3, Statement of Matthew Lewis dated 31 January 2022 at [10] CB 111.
[211] Transcript PN1432 (Eadie FXXN).
[212] Exhibit MUA1, Dunn BD3 CB 219, emphasis in original.
[213] Exhibit R1, Hulme at [55] CB 546; Exhibit R4, Hanley at [60] CB 282; Exhibit R2, Eadie at [66] CB 423; Exhibit MUA3, Lewis at [17] CB 112; Exhibit MUA1, Dunn at [10] CB 128-129; Exhibit MUA5, Witness statement of Keiron Carty dated 31 January 2022 at [10] CB 233-234.
[214] Transcript PN943 (Hulme XXN). Mr Hulme answered to the effect that there were to be further discussions.
[215] Exhibit MUA1, Dunn at [11] CB 129.
[216] Exhibit MUA5, Carty at [13] CB 234.
[217] If indeed they are reflective of words actually said, rather than general mistrust or “the vibe”.
[218] Exhibit R1, MSH-8 CB 642.
[219] Exhibit R1, MSH-7 CB 640-641.
[220] The matter is not, as Mr Dunn implied, one of simply choosing between the personal risks of getting COVID-19 versus that of an adverse vaccine reaction. It is not reasonable to expect to have an unfettered personal choice to be unvaccinated, have a higher risk of contracting COVID-19 and bringing it to work, and as a result make other employees sick and/or require them to isolate as contacts.
[221] The position in Victoria is at least potentially different as regards government mandates, due to that State’s Charter of Rights and Freedoms: see Harding v Sutton [2021] VSC 741 at [161]. The case was never finally determined and there is no such legislation in the jurisdictions presently relevant.
[222] (2021) 393 ALR 664; (2021) 362 FLR 113; [2021] NSWSC 1320. On appeal to the same effect, see Kassam v Hazzard (2021) 396 ALR 302; (2021) 311 IR 233; [2021] NSWCA 299.
[223] Exhibit R2, Eadie at [65]; Exhibit MUA3, Statement of Matthew Lewis dated 31 January 2022 at [11]-[12]; Exhibit MUA1, Statement of Bradley Dunn dated 31 January 2022 at [10].
[224] Exhibit R2, Eadie at [65].
[225] Exhibit MUA3, Lewis at [14]..
[226] Transcript PN413-419 (Lewis XXN).
[227] Such as employees who did not wish to be vaccinated, in circumstances where they doubtless had their own reasons but there is zero evidence that any Applicant medically could not be vaccinated.
[228] Work Health and Safety Act 2011 (NSW) and Work Health and Safety Act 2011 (Qld) ss 19(1) and (3)(a) in each case.
[229] Exhibit MUA2, Reply Statement of Bradley Dunn dated 14 February 2022 (Dunn Reply) at [6]-[7] CB 230.
[230] Transcript PN294-296 (Dunn XXN).
[231] Exhibit R4, Hanley at [62].
[232] Exhibit R2, Eadie at [62].
[233] Exhibit R5, Reply Statement of Benjamin Charles Hanley dated 14 February 2022 (Hanley Reply) at [9(c)-(d)] CB 389.
[234] Exhibit MUA4, Reply statement of Matthew Lewis dated 14 February 2022 ML5.
[235] Exhibit R2, Eadie at [72]-[76].
[236] Exhibit R2, Eadie at [38], [40]; Exhibit R4, Hanley at [35].
[237] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
[238] Miller v University of New South Wales [2003] FCAFC 180 at [13] - [15] per Gray J.
[239] Miller at [64] per Gyles and Ryan JJ; Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
[240] See B v Australian Postal Corporation (2013) 238 IR 1; [2013] FWCFB 6191 at [36].
[241] WHS Acts s 28(c).
[242] WHS Acts s 28(d).
[243] DP World Brisbane Enterprise Agreement 2020 and DP World Sydney Enterprise Agreement 2020 Part A, clause 21.2.2.
[244] (1938) 60 CLR 601 at 621-622.
[245] (2021) 310 IR 399; [2021] FWCFB 6059.
[246] Union Closing Submissions at [8], emphasis added.
[247] Outline of reply submissions dated 14 February 2022 at [13] CB 254; Mt Arthur Coal at [96].
[248] Mt Arthur Coal at [84]-[85], [94].
[249] Mt Arthur Coal at [188].
[250] Mt Arthur Coal at [191].
[251] Mt Arthur Coal at [201].
[252] Mt Arthur Coal at [249].
[253] WHS Act s 47(1).
[254] WHS Acts s 12A.
[255] Thus, for instance, the High Court in R v Adams (1935) 53 CLR 563 held at 567-568 that where penal legislation is ambiguous, “it ought not to be construed as extending any penal category”.
[256] Mt Arthur Coal at [113].
[257] Mt Arthur Coal at [114].
[258] See especially Transcript PN 243 (Dunn XXN). See also Transcript PN234, PN256 (Dunn XXN), PN1153 (Hulme RXN).
[259] Exhibit R4, Hanley at [79(e)] CB 285.
[260] See e.g. O’Toole v Australian Community Support Organisation Ltd [2022] FWC 477 at [77]; Hadjipavli v Dnata Airport Services Pty Ltd [2022] FWC 1013 at [46].
[261] Union Closing Submissions at [18]-[20]. DP World neither accepts that it can only prevail on the basis outlined, nor expects a single Member to depart from recent Full Bench authority. As is entirely conventional, it is required to record submissions that it may wish to advance in the event of any appeal - where a subsequent Full Bench might be invited to revisit such authority - so it cannot be put against it that the submissions underlying its appeal grounds were not advanced at first instance.
[262] Mt Arthur Coal at [172].
[263] Transcript PN880, PN910 (Hulme XXN).
[264] Union Closing Submissions at [22].
[265] UCS at [23].
[266] Transcript PN867 (Hulme XXN), PN1563-1572 (Hanley XXN).
[267] Mt Arthur Coal at [168].
[268] Browne v Dunn (1893) 6 R 67 at 70-71 per Lord Herschell.
[269] Ibid at [39] per Gummow, Kirby and Callinan JJ.
[270] Jones v Dunkey (1959) 101 CLR 2198 at 321 per Windeyer J, citing R v Burdett (1820) 4 B & Ald 95 at 161-162 per Abbott CJ.
[271] See Hail Creek Coal Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2004) 143 IR 354 at [48]-[50]. The approach in Hail Creek has been applied many times by the Commission - see e.g. Mackie v BHP Coal Pty Ltd [2013] FWCFB 8210 at [28]-[29] and Wong v Taitung Australia Pty Ltd (2017) 268 IR 145; [2017] FWCFB 990 at [31].
[272] Evidence Act 1995 (Cth) s 164(1).
[273] Exhibit MUA5, Carty at [12] CB 234.
[274] Transcript at PN731-732 (Carty XXN).
[275] Transcript at PN733-734 (Carty XXN).
[276] Transcript at PN1038-1039 (Hulme XXN).
[277] Exhibit R5, Hanley Reply at [6] CB 388-389; Transcript PN1041 (Hulme XXN), PN1208-1212 (Eadie XXN), PN1584 (Hanley XXN).
[278] Exhibit R3, Eadie Reply at [16] CB 475.
[279] See UCS at [29].
[280] Ibid.
[281] Compare Exhibit R2, Eadie at [9]-[22] CB 411-414; Exhibit R4, Haney at [10]-[19] CB 273-275. As regards automation compare Hanley [8] and [13] CB 273 and Eadie [14]-[15] CB 412.
[282] Transcript PN735 (Carty XXN).
[283] Transcript PN1126, PN1147 (Hulme RXN).
[284] Exhibit R1, Hulme MSH-2 CB 613: “A regional COVID-19 assessment of at-risk groups and activities and prevention measure [sic] has been completed in the prevention measures section of this plan, this will be updated as new information becomes available.” The measures (i.e. controls) are then listed under the hearings of Personal Hygiene, Cleaning, Traven and Conferences, Social Distancing, Personal Protective Equipment, and Procurement, Vendor and Contractor Management.
[285] NSW Government, How to manage work health and safety risks (August 2019) at [1.2] p. 8; Workplace Health and Safety Queensland, How to manage work health and safety risks Code of Practice 2021 at [1.2] p. 8.
[286] Whatever the impact of the new variant on vaccines’ protection against transmission, there is little doubt that they are effective in reducing the likelihood of serious illness or death.
[287] Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWC 6309 (Mt Arthur Interlocutory Decision) at [27]
[288] The remaining two DP World terminals in Fremantle and Melbourne being subject to State government mandates requiring vaccination.
[289] For completeness, the CEPU does have some members at DP World Brisbane.
[290] Mt Arthur Interlocutory Decision at [30].
[291] Exhibit R2, Eadie at [42] CB 417; Exhibit R3, Reply Statement of Scott Eadie dated 14 February 2022 (Eadie Reply) at [6] CB 473-474.
[292] Mt Arthur Interlocutory Decision at [29].
[293] Exhibit R1, Hulme at [65(b)(i)] CB 547; Exhibit R2, Eadie at [65(a)] CB 424.
[294] Exhibit R4, Hanley at [54] CB 281.
[295] Exhibit R4, Hanley at [25]-[26] CB 276.
[296] See closing written submissions of Jason Pintley at [2].
[297] Transcript PN240-243 (Dunn XXN).
[298] WHS Acts s 19(3)(a).
[299] WHS Acts Part 4, Division 5.
[300] WHS Acts s 27.
[301] Mt Arthur Coal at [231], quoting Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 305; [2001] HCA 6 at [52].
[302] Union submissions dated 31 January 2022 at [37] CB 95, in the context of the applicable enterprise agreement.
[303] See e.g. WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81; [2001] NSWIRComm 50 at [45] per Walton VP and Boland J: “The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable”. Employers who seek to escape liability by blaming an injured or deceased worker fare poorly - see e.g. Morgenthal v Houghton [2010] NSWIRComm 192 at [75]-[77]. As a recent example where a worker’s own actions did not prevent prosecution, see Orr v Cobar Management Pty Ltd [2019] NSWDC 224, where the Defendant was acquitted only after a lengthy trial (and a further attempt to refer the matter to the Court of Criminal Appeal - see (2020) 103 NSWLR 36; [2020] NSWCCA 220) notwithstanding the matters the court summarised by the District Court at [303]-[306].
[304] (2005) 145 IR 285 at [24].
[305] Exhibit R2, Eadie at [11], [15], [17], [21] CB 412-413; Exhibit R4, Hanley at [18]-[19] CB 274-275.
[306] Exhibit R2, Eadie at [24]-[25] CB 413-414; Exhibit R4, Hanley at [23] CB 276.
[307] Exhibit R1, Hulme at [15]-[26] CB 537-539.
[308] Exhibit R4, Hanley at [26] CB 276.
[309] Exhibit R2, Eadie at [12] CB 412.
[310] Exhibit R1, Hulme at [33] CB 540-541; Exhibit R2, Eadie at [12] CB 412; Exhibit R4, Hanley at [19(b)] CB 274-275..
[311] Exhibit R2, Eadie at [39] CB 417.
[312] Exhibit R2, Eadie at [30] CB 416.
[313] Including restrictions on the ability for children to attend at childcare or schools, and discrimination in eligibility for Family Tax Benefit payments - “No Jab No Play” and “No Jab No Pay”, respectively..
[314] While Mr Dunn said in his statement that DP World refused “legitimate” medical certificates (Exhibit MUA1, Dunn at [24] CB 130), in cross-examination he rejected the notion that he was asserting that a “legitimate” certificate is necessarily “valid”. He ultimately indicated that a “legitimate” medical certificate was simply one in a proper form: Transcript PN190-192 (Dunn XXN).
[315] PN974-975 (Hulme XXN).
[316] (1938) 60 CLR 601 at 622.
[317] Outline of reply submissions dated 14 February 2022 at [4]-[5] CB 252-253.
[318] It may have required consultation under the Enterprise Agreements, matter on which the Union’s closing submission is silent. If it did, then on any view DP World complied with them, as consultation under these instruments plainly permitted (and only required) after the making of a “definite decision”.
[319] Mr Eadie does not give evidence of who made the complaint - this comes from Mr Lewis’s reply statement dated 14 February 2022 (Exhibit MUA4), at [3] and ML5.
[320] Exhibit R2, Eadie [72]-[76].
[321] Exhibit MUA1, Dunn at [8].
[322] WHS Acts s 152(a) and (e), and 160 as to Inspectors’ functions.
[323] Exhibit MUA4, Lewis Reply at [4].
[324] Transcript PN310-318 (Dunn XXN).
[325] See Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2020] FWC 4623, which was a stand-down dispute relating to a period when a ship could not be worked at DP World Sydney due to prohibition notices issued by the Inspector concerned.
[326] Exhibit MUA2, Reply statement of Bradley Dunn dated 14 February 2022 at [8] CB 230.
[327] Transcript PN310 (Dunn XXN). When asked to confirm that the inspectors did not require DP World to re-do the risk assessment in the way that the union wanted - which is obviously correct - Mr Dunn said “Well, basically what [the Inspector] aid was that consultation’s a loose term, basically said that, ‘It happened to me at my work, they can just tell you what to do, it’s not been good, but there’s not much we can do about it.’”
[328] Exhibit R2, Eadie SE-016 CB 465.
[329] WHS Acts s 160.
[330] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J.
[331] Exhibit MUA4, Lewis Reply ML5 CB 126.
[332] Exhibit R2, Eadie at [74]-[75] CB 424.
[333] Darling Island Stevedoring at 622 per Dixon J, emphasis added.
[334] Workplace Injury Management and Workers Compensation Act1998 (NSW) ss 3(b), 41(1).
[335] Exhibit A1, Mr Pintley’s “Particulars of Complaint of Adverse Action in Breach of the Fair Work Act 2009” A003 CB 52-56.A007 CB 6
[336] Transcript PN215-218 (Dunn XXN).
[337] See e.g. Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd (2017) 268 IR 285; [2017] FWCFB 3005 at [62].
[338] Transcript PN198 (Dunn XXN).
[339] Berri at [65], quoting Kucks v CSR Ltd (1996) 66 IR 182 at 184.
[340] Transcript PN259 (Dunn XXN).
[341] Union’s submissions dated 31 January 2022 at [38] CB 95.
[342] Transcript at PN255 (Dunn XXN).
[343] Exhibit R5, Hanley Reply at [16], BCH-22; Exhibit R3, Eadie Reply at [30], SE-026.
[344] Transcript at PN173, PN177-178 (Dunn XXN).
[345] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430; Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 471; Lane v Arrowcrest Group Ltd (1990) 27 FCR 427 at 455-456; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14:
[346] See reference at <
[347] ‘Coronavirus (COVID-19) – CDNA National Guidelines for Public Health Units”, Department of Health and Aged Care, < Ibid at [24].
[349] Newton v Toll Transport Pty Ltd [2021] FWCFB 3457.
[350] Op. cit. at [215]/
[351] (1992) 175 CLR 218.
[352] Ibid at 233.
[353] Ibid.
[354] [2021] NSWCA 299.
[355] Al-Munir Kassam and Others v Bradley Hazzard and Others No. S3 of 2022 [2022] HCATrans 131.
[356] [2021] NSWSC 1320.
[357] Kassam and Others v Hazzard and Others; Henry and Others v Hazzard (20210 396 ALR 302; (2021) 311 IR 233; [2021] NSWCA 299.
[358] Al-Munir Kassam and Others v Bradley Hazzard and Others No. S3 of 2022 [2022] HCATrans 131.
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