Jonathan Dugald Mitchell v University of Tasmania - [2023] FWCFB 160

[2023] FWCFB 160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Jonathan Dugald Mitchell
v

University of Tasmania

(C2023/2154)

VICE PRESIDENT ASBURY
DEPUTY PRESIDENT HAMPTON
COMMISSIONER PLATT

BRISBANE, 4 OCTOBER 2023

Appeal against decision [[2023] FWC 810] of Deputy President Colman at Melbourne on 4 April 2023 in matter number C2022/1761.

Overview

Mr Jonathan Dugald Mitchell (Mr Mitchell or the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Act), for which permission is required, against a Decision[1] of Deputy President Colman (Decision) issued on 4 April 2023. The dispute before the Deputy President arose in early 2022, and concerned the decision of the Appellant’s employer, the University of Tasmania (Respondent or University), to introduce a policy that required employees to be vaccinated against COVID-19 as a condition of entry to the University’s premises (policy). Mr Mitchell did not wish to become vaccinated and submitted that the policy was unreasonable. Mr Mitchell considered that the Respondent had failed to consult with him about it in the manner required by clause 12 of the University of Tasmania Staff Agreement 2017-2021 (2017 Agreement or EA).

At the time of the introduction of the policy, Mr Mitchell was employed by the University and was attached to its New South Wales campus, where he lived.

The following background, drawn from the Decision[2] under appeal is not controversial, and summarises some of the additional context of this matter.

On 15 March 2022, Mr Mitchell filed his application under s.739 of the Act asking the Commission to arbitrate the dispute. The application stated that the University had not complied with its obligation to consult with employees in relation to the introduction of significant change and that the University had now required him to show cause why his employment should not be terminated. The application asked the Commission to determine whether the University’s direction to comply with the policy was a lawful and reasonable direction. The application also sought an interim order that Mr Mitchell not be dismissed or disciplined until the application was determined. On 18 March 2022, the University terminated Mr Mitchell’s employment, in effect, on the basis that he had failed to comply with the policy. On 21 March 2022, Commissioner Lee made an ex-tempore decision declining to make interim orders. The application was listed for further hearing on 12 April 2022. In a decision dated 27 May 2022, the Commissioner dismissed the application on two bases: first, Mr Mitchell was no longer an employee, which meant that the 2017 Agreement no longer applied to him; and secondly, the dispute did not fall within the scope of matters to which clause 15 applied, because the giving of lawful and reasonable directions was not a matter dealt with by the 2017 Agreement and the dispute was therefore not one about the application of the 2017 Agreement.

On 31 August 2022, a differently constituted Full Bench of the Commission upheld Mr Mitchell’s appeal[3] against the Commissioner’s decision. The Full Bench concluded that as Mr Mitchell’s application had identified the subject matter of the dispute as being the question of whether the University had complied with its consultation obligations under clause 12 in respect of the introduction of the vaccination requirement, that this was clearly a dispute that fell within the scope of the dispute resolution procedure in clause 15. Further, that the question of whether the vaccination requirement was a lawful and reasonable direction followed from Mr Mitchell’s contention that the consultation requirements in clause 12 had not been met.

The Full Bench stated:[4]

“That is, Mr Mitchell’s case was that, on the proper construction of the Agreement, compliance with clause 12 was a condition precedent to the lawful introduction of any ‘“significant change’” such that the introduction of the vaccination requirement without prior compliance with clause 12 rendered it unlawful and unreasonable. Without expressing any view about the merit of this contention, that is sufficient to render the dispute one about the application of clause 12 of the Agreement.”

The Full Bench further determined that Mr Mitchell’s dismissal had not deprived the Commission of jurisdiction to determine his application, because his employment had subsisted at the time the application was made, and consistent with the decision of a Full Bench of the Commission in CFMMEU v Falcon Mining Pty Ltd[5], the fact that the 2017 Agreement had later ceased to apply to him did not prevent the Commission from determining the dispute. The Full Bench also disagreed with the Commissioner’s conclusion that the most favourable outcome that Mr Mitchell could obtain was an order for further consultation, which was now moot given his employment had ended. Mr Mitchell’s case was not merely about whether the University had complied with the consultation obligations in clause 12, but also the legal consequences that any non-compliance might have for the University’s vaccination requirement. The Full Bench quashed the Commissioner’s decision and remitted the application to him for determination consistent with its reasons.

The Commissioner subsequently listed the matter for conference. Additional efforts to conciliate the matter did not lead to a resolution of the dispute. Mr Mitchell then asked the Commissioner to recuse himself from determining the application on the basis that certain observations that the Commissioner had made during conciliation might raise an apprehension of bias. In a decision dated 30 November 2022,[6] the Commissioner decided to recuse himself. The application was subsequently reallocated to the Chambers of Deputy President Coleman.

In light of that chronology, the Deputy President stated in the Decision:[7]

“… …. In determining this application, I proceed on the basis that s 604 of the Act requires me to implement the decision of the Full Bench in the same manner as if it had been remitted directly to me for determination. My task then is to arbitrate the dispute that Mr Mitchell has referred to the Commission, and to do so in a manner consistent with the reasons of the Full Bench. In that regard, it is relevant to note the observations of the Full Bench about the character of the dispute referred to above, and about the questions that might need to be answered in order to determine it. In the latter regard, at [36] of its decision, the Full Bench stated the following:

“It seems to us that the resolution of the dispute would require the determination, at least potentially, of the following questions:
(1) Was the introduction of the vaccination requirement a “significant change” to which the consultation requirements in clause 12 applied?
(2)     If so, did the University comply with clause 12?
(3)     If the University did not comply with clause 12, is the Agreement to be construed as invalidating the vaccination requirement such that it is not lawful or reasonable?
(4)     If so, what, if any, remedial orders should be granted?”

It is uncontroversial that the matter was originally referred to the Commission in accordance with the dispute resolution procedure in clause 15 of the 2017 Agreement. The Deputy President ultimately considered the 4 questions and found (in bold) as follows:

Was there ‘significant change’? – Yes.
Was there compliance with clause 12? – No.
Did the 2017 Agreement invalidate the vaccination requirement? – No.
What if any remedial orders should be granted? – Not applicable; alternatively, none.[8]

The Deputy President further determined that the 2017 Agreement did not authorise the Commission to make the compensation orders that the Appellant sought. Nevertheless, the Deputy President concluded that if such power existed, it would plainly be discretionary, and he would not exercise the discretion in this case.[9]

Decision under Appeal

Before dealing with the stated questions, the Deputy President considered a jurisdictional objection raised by the Respondent.

The Respondent contended that when the newly approved University of Tasmania Staff Agreement 2021-2025 came into operation on 6 February 2023, the Appellant’s dispute raised under the 2017 Agreement was extinguished. Relying on Simplot Australia Pty Ltd v AMWU,[10] the Respondent submitted that the Commission had no jurisdiction to deal with a dispute under a dispute resolution procedure in an enterprise agreement that had ceased to operate. In accordance with s.607(3)(c) of the Act, the Deputy President rejected the jurisdictional objection on the basis that it was inconsistent with the decision of the Full Bench in the Appellant’s first appeal.[11] At [12] of the Decision, the Deputy President concluded as follows:

“…it is clear from [31] of its decision that the Full Bench regarded the decision in Falcon Mining[12] to be correct in its conclusion that Simplot was wrongly decided, and that, if the Commission has jurisdiction to arbitrate a dispute at the time an application is lodged under s 739, it remains ‘seized of jurisdiction’ despite the fact that the relevant agreement may later cease to operate. Although this does not form part of the ratio of the Full Bench decision in this matter, Mr Mitchell’s application comes before me on remittal from a decision of the Full Bench. Section 607(3)(c) states that a Full Bench may, in an appeal decision, require a member to deal with the subject matter of the relevant decision, and to act in accordance with the directions of the Full Bench. The Full Bench has directed Commissioner Lee, and therefore also me, to determine the application ‘consistent with the above reasons’ (at [36]). To my mind, I am bound, in this particular matter, to give effect to the views of the Full Bench about the correctness of Falcon Mining. However, I agree with the Full Bench in Kwinana[13] that the matter is not settled. In other matters members will need to decide for themselves which of the two conflicting Full Bench decisions – Simplot or Falcon Mining – is correct.”[14]
(Original emphasis)

The Deputy President then turned to consider the first two questions: Was there ‘significant change’ and was there compliance with clause 12? The Deputy President concluded that there was no dispute that the answer to the first question should be “yes” and that the second question should be answered “no”, as the Respondent conceded that, in light of CFMMEU v Mt Arthur Coal Pty Ltd (Mt Arthur Coal),[15] there had in fact been a significant change to which the consultation requirements in clause 12 applied. The Respondent acknowledged that, when proposing the change, it had failed to comply with clauses 12.2(c)(iii), (v) and (vii) of the 2017 Agreement. However, the Respondent maintained that as a matter of substance it had engaged in meaningful consultation about the vaccination requirement. The Appellant disagreed with the Respondent and contended that it had barely engaged in any consultation at all.

The Deputy President addressed the extent to which the Respondent had consulted with the Appellant in his considerations of question 3. With respect to whether the 2017 Agreement invalidated the vaccination requirement, the Appellant did not challenge the lawfulness of the vaccination requirement but rather, contended that the requirement was not reasonable and as such, it was not a ‘lawful and reasonable direction’ with which he was required to comply. The Deputy President distilled the question to “whether the Agreement is to be construed as invalidating the vaccination requirement, with the consequence that it was not a lawful and reasonable direction” (original emphasis).[16]

The 2017 Agreement does not deal with the question of lawful and reasonable directions but in the Deputy President’s view, there were several provisions of the 2017 Agreement that still required examination. In relation to clause 12, the Deputy President noted that each of the obligations imposed on the Respondent under the various sub-provisions were binding and must be met. However, the Deputy President drew the distinction between “a clause that creates a consultation obligation and one that also prohibits change before consultation is concluded” and determined that “[n]othing in clause 12 provides that a proposed change must not proceed, or need not be accepted by an employee, unless or until all of the various consultation requirements of the clause have been met”.[17] Referring back to the original Full Bench decision at [28], the Deputy President affirmed that compliance with clause 12 was not a condition precedent to the lawful introduction of any significant change.

The Deputy President also acknowledged that while clause 7(b) of the 2017 Agreement is very clear that the Respondent must consult with employees and Unions before making any changes, and that no changes should be implemented prior to consultation occurring, clause 7 was not engaged in the present case. The Deputy President concluded that the prohibition on the implementation of change prior to consultation was of limited compass and only applies with respect to the matters identified in the provisions, none of which, in his view, were in issue.

Turning to clause 15, specifically clause 15.3, the Deputy President determined that:[18]

· clause 15.3 did not extend to the subject of the present dispute because the vaccination requirement was not about “work”, but rather a safety requirement that was a condition of entry to the Respondent’s premises;

· even if “work” was read broadly to mean anything affecting work, clause 15.3 only applied until the internal dispute resolution process in clause 15.4 had been completed, and this occurred on 15 March 2022 (the date the Appellant filed his Form F10 application in the Commission); and

· in any event, clause 15.3 did not invalidate the direction at the time the Respondent relied upon it to terminate the Appellant’s employment.

During the proceedings, the Appellant raised an additional question in which he contended that the Respondent had failed to observe the internal dispute resolution step in clause 15.4 of the 2017 Agreement. The Deputy President dealt with that issue by finding that there were discussions between the parties about the subject matter of the dispute, but clause 15.4(b) (which requires a meeting with the Director of Human Resources) was not complied with. Despite the non-compliance, the Deputy President found that it was inconsequential and any failure to comply with clause 15.4 did not invalidate the vaccination requirement, nor did it render the direction unreasonable.

Further, the Deputy President did not accept the Appellant’s submission that a conclusion that consultation as inadequate would of itself mean that the vaccination requirement was unreasonable. The Deputy President noted that whether an employer’s direction to an employee is reasonable is a question of fact that must be determined objectively having regard to all the circumstances. In support of his submission, the Appellant asserted that the Respondent made little if any attempt to consult genuinely with him or to respond to his queries and information. The Appellant pointed out that the Respondent’s survey document regarding the proposed mandatory vaccination policy did not state the consultation period, provide any timelines or contact details, and the Respondent failed to provide any reply to his response to the survey document. The Appellant also submitted that the employer in the Mt Arthur Coal case had done much more to consult with its affected employees than the Respondent did, particularly as that employer replied individually to each employee’s response.

The Respondent contended that despite its shortcomings in its consultation process, it had given employees an opportunity to express their views, and that those views were taken into account. The Respondent noted that prior to terminating the Appellant’s employment, it had consulted with him and had considered his 33-page document detailing his opposition to the vaccination requirement based on vaccine safety and efficacy, and his proposal for alternative working arrangements.

Taking into account the parties’ submissions and the broader context of COVID-19, the Deputy President concluded that the deficiencies in the Respondent’s consultation process did not render the vaccination requirement unreasonable. In reaching this conclusion, the Deputy President observed that while Professor Black’s email to employees on 23 November 2021 setting out the nature of the proposed mandatory vaccination policy and the safety rationale was not very detailed, this was not inconsistent with genuine consultation and clause 12.2(2)(c)(i) of the 2017 Agreement only required the University to advise employees of the nature of the change. Further, the Deputy President accepted Mr Arnold’s evidence that he personally reviewed all responses that were not in support of a mandatory vaccination policy and provided a qualitative assessment of these responses to his unit for consideration. Although the Deputy President found that the Respondent did not comply with clauses 12.2(c), (v) or (vii), it was found to have complied with clauses 12.2(c)(i) and (ii) of the 2017 Agreement.

The Deputy President set out at [35] to [36] of the Decision, the interactions between the Appellant and the Respondent in relation to the introduction of the vaccination requirement. In his assessment, the Deputy President acknowledged that the Respondent provided relatively little feedback to the Appellant but still found there to have been substantive consultation by the Respondent as “[the Appellant] was able to put forward his response to the proposal, his reasons for objecting to it, and his proposals for steps to mitigate the adverse effects of the policy on him, including in relation to alternative working arrangements or an exemption”.[19]

Further, at [39] to [40] of the Decision, the Deputy President considered whether the Respondent’s full compliance with its consultation obligations under clause 12 could reasonably have been expected to make any difference to the outcome. The Deputy President found that it was “highly unlikely that further consultation would have led to some accommodation between the parties, either in relation to the introduction of the vaccination requirement generally, or special working arrangements for [the Appellant]”. Particularly as the Appellant had voiced his opposition to the vaccination requirement and set out his concerns regarding the safety and efficacy of vaccines. In the Deputy President’s view, “it was most improbable that [the Appellant] was going to change his mind about getting vaccinated as a result of further consultation with the university”.[20] The Deputy President also found that the Respondent was resolute in its position that it would implement the vaccination requirement and could not sustain temporary working-from-home arrangements. However, the Deputy President did caution that although there was no reasonable prospect that consultation could have led to a different outcome, it did not mean consultation could be disregarded; it was merely a matter going to the seriousness of the failure to consult in the circumstances.

At [43] of the Decision, the Deputy President summarised his findings in relation to question 3 as follows:

“The university took a very cautious approach to safeguarding the health and safety of its community. It was an approach that placed Mr Mitchell, and others who held similar opinions to him, in a difficult position. However, in my view, the university’s approach was clearly within the bounds of reasonable decision-making, if for no other reason than to protect the safety of vulnerable persons with special susceptibilities to COVID-19, including students with disabilities and older persons. The university did not consult with Mr Mitchell to the full extent required by clause 12 of the 2017 Agreement. It should have done so. However, in all the circumstances, I do not consider this failure rendered the vaccination requirement unreasonable. In my opinion, the answer to question three, either as a question of construction, or as a broader question going to the reasonableness of the direction, is ‘no’.”

(Original emphasis)

In light of the Deputy President determining that the answer to question 3 is “no”, he noted that it was not necessary to consider the last question: What, if any, remedial orders should be granted? However, to achieve finality and in the event the answer to question 3 is “yes”, the Deputy President undertook to answer question 4.

It was the Appellant’s contention that the Commission should make three compensation orders (outlined at [45] of the Decision) on the basis that s.595(3) of the Act allowed the Commission to do so. The Deputy President noted that s.739(4) is the provision under which the Commission is authorised to arbitrate the present dispute and s.739(5) provides that the Commission must not make a decision that is inconsistent with the Act or a fair work instrument that applies to the parties. Relevantly, clause 15(b) of the 2017 Agreement states that the Commission “may resolve the dispute by conciliation in the first instance, and by arbitration if conciliation fails to resolve the dispute”. In the Deputy President’s view, the dispute resolution clause allowed the Commission to determine how the 2017 Agreement “applies”, and in this case, the orders sought by the Appellant were not reasonably incidental to the application of the 2017 Agreement; but instead sought to create new rights. While the Deputy President contemplated that an enterprise agreement could create a right to general compensation payments in respects of a particular matter, there was no such provision in the 2017 Agreement.

The Deputy President observed that the Appellant’s compensation orders sought to extend the scope of the dispute to include circumstances that occurred after his application was made and after his employment with the Respondent ended. To this, the Deputy President noted that the Appellant’s dispute did not extend to anticipated economic loss, hurt and distress that he might suffer if the Respondent were to proceed to dismiss him and that this was territory that is remote from the 2017 Agreement and the s.739 application.

After determining that the 2017 Agreement did not authorise the Commission to make the compensation orders sought by the Appellant, the Deputy President concluded that, even if such a power existed, it would be discretionary, and he would not exercise his discretion for the following reasons:[21]

· First, a discretion to award compensation would be exercisable by reference to the Commission’s general obligation to take into account equity, good conscience, and the merits of the matter in accordance with s.578 of the Act. In assessing those considerations, the Deputy President concluded that it would “afford undue priority to [the Appellant]’s personal interests over the bona fide efforts of the university to protect the health and safety of its community. It would be unfair. This is so, despite the deficiencies in the university’s consultation.”[22]

· Second, there was nothing to prevent the Appellant from becoming vaccinated other than his own opinions about the desirability of doing so. The Respondent reasonably directed the Appellant to be vaccinated and had he complied with the vaccination requirement, he would not have been dismissed.

· Third, the Appellant failed to make reasonable efforts to mitigate the lost remuneration which he identified as the basis for the first compensation order sought. While the Deputy President accepted that the Appellant was very upset by his dismissal, he was not satisfied that the Appellant put on sufficient evidence to conclude that he had mitigated his loss.

· Fourth, the compensation that the Appellant sought was remote from the dispute that he brought to the Commission in March 2022. The s.739 application lodged on 15 March 2022 asked the Commission to determine whether the direction was lawful and reasonable, and to issue an interim order to prevent his dismissal pending the determination of that question. However, the Deputy President pointed out that in the proceedings before him, the Appellant now contended that compensation would be an appropriate remedy, as he had become ‘reconciled’ to his new job and had decided that his relationship of trust and confidence with the Respondent had been adversely impacted such that reinstatement was no longer appropriate.

· Fifth, the Deputy President was not convinced that further or more fulsome consultation would have made any difference to the ultimate outcome, and in the circumstances, compensation was a disproportionate remedy.

The Deputy President ultimately concluded that the Appellant had been correct to the extent that the Respondent had not complied with the obligations imposed on it by clause 12 of the 2017 Agreement, but found that:

“[62] …the university’s vaccination requirement was not invalidated by the 2017 Agreement and was not unreasonable notwithstanding its failure to comply fully with its consultation obligations under clause 12 of the 2017 Agreement; that in any event, clause 15 does not permit the Commission to award the compensation that Mr Mitchell seeks; and that even if it did, I would not award compensation in this case on the discretionary grounds set out above. I do not consider that it is appropriate to make any ‘remedial’ orders.”

The Appeal

On 20 April 2023, the Appellant lodged a Form F7 Notice of Appeal against the Decision. On 21 April 2023, Directions were issued requiring the filing of outlines of submissions concerning permission to appeal, the merits of the appeal and any application for permission to be represented at the hearing by a lawyer or paid agent. A Notice of Listing was issued on 26 May 2023.

Both parties sought, and were granted, permission to be legally represented on the basis that the Full Bench was satisfied[23] it would enable the matter to be dealt with more efficiently taking into account its complexity. A hearing was conducted before the Full Bench in this matter.

For reasons set out below, we have granted the required permission to appeal but have ultimately dismissed the appeal.

Permission to Appeal

Section 604 of the Act provides, in effect, that an aggrieved person may appeal a relevant decision with permission of the Commission. This operates subject to the terms of an instrument otherwise providing the basis for the Commission to determine a matter by arbitration under s.739 of the Act.

The dispute resolution provision under which the matter came to the Commission relevantly provides as follows:

“15.5 Reference to the Fair Work Commission (“FWC”) for external dispute resolution
(a)Should the dispute not be resolved by the processes referred to in clause 15.4 (Internal dispute resolution) above, or if any party to the dispute refuses to engage in the processes referred to in those clauses, the dispute may be referred to the FWC by a party to the dispute.

(b)The FWC may resolve the dispute by conciliation in the first instance, and by arbitration if conciliation fails to resolve the dispute. The parties to the dispute will implement any arbitrated decision of the FWC.”

There is no express right of appeal provided by the terms of the 2017 Agreement. An appeal may still be made subject to the provisions of the Act.

By virtue of s.604(2) without limiting when the Commission may grant permission, the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so. In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest as follows:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters ...”[24]

Permission to appeal may also be granted where there is an arguable case of appealable error, and the decision is attended with sufficient doubt to warrant its reconsideration.[25]

The Appellant submits that it is in the public interest for the Commission to grant permission for the appeal on the basis that:

· The Decision raises a significant issue: whether a consultation clause in an enterprise agreement must contain an express provision in order to prohibit the employer from proceeding with a significant change if the employer does not comply with the consultation requirements.

· The Decision deals with the meaning, extent and scope of the words “by making any orders it considers appropriate” in s.595(3) of the Act to an extent that has not been covered elsewhere.

· The Decision raises the issue of the nature of “consultation”, in particular where the evidence shows that comments made by an employee during alleged consultation were never passed on to the decision-makers within the employer’s organisation, and therefore never responded to.

· The Decision conflicts with the decision of the Full Bench in Mt Arthur Coal that an employee who claims lack of consultation need only show that the lost possibility of a different outcome (as opposed to the reasonable likelihood of a different outcome). The Decision also conflicts with the decision of the Full Bench in Mt Arthur Coal concerning the applicability of the judgment of the High Court of Australia in Stead v State Government Insurance Commission (Stead),[26] to this situation, and with the decision of the Full Court of the Federal Court in QR Ltd v CEPU (QR Ltd),[27] that such a clause is not concerned with the likelihood of success of the consultative process.

· The Decision concerns a situation that has not been covered in the cases (to the Appellant’s knowledge) yet is likely to occur again: An employee raises a dispute based on failure to consult under an enterprise agreement, refers the dispute to the Commission for conciliation and/or arbitration, then the employer dismisses the employee on the sole basis of failure to comply with the very direction which is the subject of the dispute.

· The Decision concerns whether the Commission, on a referral under s.739 of the Act has power to make orders to maintain and/or to restore the status quo pending resolution of a dispute before it.

The Respondent submits that it is in the public interest for the Commission to refuse permission for the appeal on the basis that:

· The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgement.[28] Whether something is ‘in the public interest’ relates to a benefit or advantage to the whole community, as opposed to an individual.[29]

· The Full Bench of the Commission has identified public interest may be attracted as determined at paragraph [27] of GlaxoSmithKline Australia Pty Ltd v Makin.[30] Importantly, “(t)he public interest is not satisfied simply by the identification of error, or a preference for a different result”.[31]

· There is no public interest in the appeal because the Decision “… turns on its own facts and circumstances”[32] and there are no issues of importance and general application. The Decision is logical, well-reasoned and applies well-established legal principles in an orthodox manner. The Deputy President also dealt with each of the Appellant’s arguments (despite the primary determination that the direction was not invalidated or unreasonable), and there is no ‘manifest injustice’, the result is not counter-intuitive, and the legal principles are not disharmonious with other decisions.

· The Appellant has not appropriately challenged the Deputy President’s ultimate conclusion that he would not exercise his discretion to order compensation even if he had the power to do so. For the Appellant to demonstrate the Deputy President exercised this discretion incorrectly, he would have to establish that the Deputy President acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts or did not take into account some material consideration,[33] none of which occurred in this case.

· In these circumstances, there is no utility and, therefore, no public interest in the appeal because even if there was some error in the Deputy President determining that the direction to vaccinate was reasonable and the Commission does not have the power to grant orders for compensation in a matter such as this (which is denied), there is nothing to suggest the discretion was exercised incorrectly and, therefore, no basis upon which the Decision could be overturned.

In response to the Appellant’s submissions that there is public interest for the Commission to grant permission for the appeal, the Respondent contended that:

· whether the consultation clause in the enterprise agreement requires an express provision prohibiting an employer from implementing a change does not have importance and general application as the decision turns on interpretation and analysis of the particular provisions of the Respondent’s enterprise agreement;

· the powers of the Commission under s.595(3) in s.739 disputes are subject to well-settled principles so there is no public interest in reconsidering the same principles;[34]

· the nature of consultation was addressed in Mt Arthur Coal so there is no public interest in reconsidering the same principles and any particular issues the Appellant has with the conclusions reached by the Deputy President on the evidence, which do not have importance and general application;

· the Decision does not conflict with Mt Arthur Coal,[35] and, in any event, the factual conclusion as to the impossibility of further consultation achieving a different result[36] is consistent with Mt Arthur Coal;

· there is no public interest in reconsidering whether the Commission has the power to determine a s.739 dispute after an employee is dismissed (as that question was determined by the Full Bench) or whether reinstatement can be ordered in a dispute about the application of the terms of an enterprise agreement (as the Deputy President did not consider or determine this question).

In the present case, we are of the view that the appeal raises questions of general importance and significance concerning the consequences of the proper construction and correct application of consultation requirements within an enterprise agreement and the scope afforded to the Commission to deal with findings of that kind.

Accordingly, we are satisfied that it is in the public interest to grant permission to appeal, and we do so.

Appeal Grounds

The Appellant’s grounds of appeal are set out in the Notice of Appeal as follows:

“1. The Deputy President erred in concluding that clause 12 [of the] EA did not invalidate the vaccination requirement as a matter of construction, in circumstances where he held that the Respondent had not complied with the consultation requirements of clause 12.[37] The Deputy President held in effect that it was necessary for clause 12 of the EA to include an express statement prohibiting the Respondent from implementing the significant change until consultation had taken place,[38] whereas the Appellant submits that the language of clause 12 is mandatory in requiring that consultation (both in the general sense and in the specific requirements of sub-clauses 12.2(c) and (f) [of the] EA) must take place before a proposed change is introduced.[39]

2. The Deputy President erred in holding that the scope of clause 15.3 [of the] EA did not extend to the subject matter of the present dispute.[40] The Deputy President failed to take into account the words “nor will any party to the dispute take any other action likely to exacerbate the dispute”.[41]

3. The Deputy President erred in holding that the non-compliance by the Respondent with clause 15.4 [of the] EA was “inconsequential”.[42] If the Respondent had entered into informal dispute resolution as required by clause 15.4 [of the] EA, the dispute may have been resolved without needing to refer the dispute to the Commission. Furthermore, the Respondent’s refusal to engage in informal dispute resolution in breach of the requirements of the EA was relevant to the question of appropriate remedial orders sought by the Appellant.

4. The Deputy President erred in holding that a conclusion that the Respondent’s consultation under clause 12 was inadequate would not invalidate the vaccination requirement.[43] There was no evidence that the Respondent could not have easily complied with its consultation obligations, if it had understood that it was bound by them. Nor was there any evidence that the Respondent could not easily comply with its consultation requirements now, if required to do so.

5. The Deputy President erred in holding that the deficiencies in the Respondent’s consultation process did not render the vaccination requirement unreasonable.[44] The deficiencies in consultation were at least as great as those in the case of Mt Arthur Coal which told against a conclusion that the vaccination requirement was reasonable,[45] and which proved to be the most telling factor in concluding that it was unreasonable.[46]

6. The Deputy President erred in holding that the Respondent engaged in substantive consultation with the Appellant in relation to the policy.[47]

PARTICULARS

(a) The Respondent asked a very limited series of questions in a survey prior to the decision being taken to implement the proposal on or before 9 December 2021, and:

(i) None of those questions concerned the effect of the proposal on workplace conditions or employee entitlements;

(ii) Only one of those questions (on vaccine safety) was in a form that permitted the Appellant to write his own answer;

(iii) The answer which the Appellant did write was never passed on to the University Executive Team (UET) which made the decision on implementation of the proposal.

(iv)The Respondent never replied to the Appellant’s response to the survey and email, either in terms required by sub-clause 12.2(f)(i) [of the] EA or otherwise.

(b) Later submissions made by the Appellant (his proposal to work from home while being unvaccinated, and his response to a show cause letter) could not by their nature amount to consultation as required by clause 12, were too late (coming after the decision had been made to introduce the proposal), and there is no evidence that they were ever passed on to the UET or to anyone to whom the UET had properly delegated the role of consultation under clause 12, let alone responded to.

7. The Deputy President erred in holding that the Respondent only failed to comply with subclauses (v) and (vii) of clause 12.2(c) [of the] EA.[48] These sub-clauses required that the written notice set out “proposed implementation time lines” and “a University contact for feedback and questions” respectively, and it is correct that the Respondent did not comply with them. However, the Respondent also failed to comply with:

(a) Sub-clause 12.2(c)(iii) [of the] EA (which required that the Respondent include in the written notice, “the expected effect on affected Employees and measures to identify and mitigate any adverse effects”);

(b) Sub-clause 12.2(c)(iv) [of the] EA (which required that the Respondent include in the written notice, “the consultation period”); and

(c) Sub-clause 12.2(c)(vi) [of the] EA (which required that the Respondent include in the written notice, “existing and proposed organisational structures (where structural change is proposed)”). The Respondent in fact expected significant terminations and/or working from home as a result of the proposed changes.

(d) Sub-clause 12.2(f) [of the] EA (which relevantly required that the Respondent explain how the feedback received from the Appellant on the proposal was taken into consideration).

8. The Deputy President erred in holding that the Appellant “was able to put forward his response to the proposal”.[49] The Appellant refers to the Particulars in paragraph 6 above.

9. The Deputy President erred in finding that “The university considered [the Appellant’s] responses”.[50] The Appellant refers to the Particulars set out in paragraph 6 above.

10. The Deputy President erred in holding that the Appellant was able to “put forward his views and arguments” in relation to consultation under clause 12 [of the] EA by means of his 33-page response to the show cause letter which the Appellant sent to Ms Bye on 4 March 2022:[51]

(a) This was long after the UET had made the decision to implement the proposal (on or before 9 December 2021).

(b) A response to a show cause letter cannot of its nature constitute consultation within the meaning of clause 12 [of the] EA.

(c) There is no evidence that Ms Bye passed on any of the contents of the Appellant’s response to the UET or to any person with appropriate delegation from the UET, nor is there any evidence that she was instructed to do so.

11. The Deputy President erred in holding that the relevance of a failure to consult to the assessment of the reasonableness of a direction depended on whether the consultation “could reasonably have been expected to make any difference to the outcome”.[52] Rather, the proper test is whether the failure to consult denied the appellant the possibility of a different outcome.[53] A clause such as clause 12 [of the] EA is not concerned with the likelihood of success of the consultative process, but rather concerned simply to ensure that consultation occurs, before a decision is made to implement a proposal.[54]

12.The Deputy President erred in finding that “it was most improbable that Mr Mitchell was going to change his mind about getting vaccinated as a result of further consultation with the university”. The evidence did not support such a finding. The Deputy President’s view of the Appellant’s willingness to consider alternative points of view was based almost entirely on the contents of the Appellant’s response to a show cause letter, in which he was setting out reasons why his employment should not be immediately terminated. This is not a substitute for consultation under clause 12 of the EA.

13. The Deputy President erred in finding that: “This is not a case where one can identify an additional fact, idea, argument or proposal that one party might have presented to the other that could realistically have led to a different outcome”. The Appellant refers to the particulars in paragraph 6 above. It is therefore not possible to find that proper consultation could not have produced a different result.

Furthermore, the issue was not a simple binary one. The Respondent after proper consultation may have decided to implement the proposal in a different way, or made some concessions. In turn, the Appellant after receiving responses during consultation may have changed his mind in some relevant sense either on the original proposal or a proposal as varied by the Respondent after consultation.

14. The Deputy President erred in holding that “the agreement does not prohibit implementation of the relevant change until consultation has concluded”.[55] Clause 12 [of the] EA requires that consultation be concluded before the decision is made to implement the proposal.[56]

15. The Deputy President erred in concluding that “there was real and substantive consultation about the scope and effect of the vaccination policy”.[57] The Appellant refers to the Particulars in paragraph 6 above.

16. The Deputy President erred in holding that where the Commission arbitrates a dispute regarding the application of the terms of an enterprise agreement, the Commission is restricted to only making orders that determine how the agreement applies, and in particular that the Commission is not entitled to make orders for compensation of the type sought by the Appellant.[58] Where:

(a) a dispute is raised by an employee and then referred to the Commission for conciliation and/or arbitration pursuant to the EA; and

(b) the employer pre-empts the role of the Commission in settling the dispute by terminating the employment of the employee on the sole grounds of failure to obey the direction which is the subject of the dispute;

then appropriate orders to resolve the dispute may include: (i) orders reinstating the employee to his position, or (ii) where reinstatement is no longer practicable, orders compensating the employee for his dismissal, and/or orders for exemplary damages marking the severity of disapproval of the employer’s conduct.

17.The Deputy President erred in holding that the EA must contain an express provision in order for the Commission to be empowered to “resolve disputes by creating new rights to general compensation payments in respect of a particular matter”.[59] Sub-section 595(3) of the Fair Work Act (FWA) empowers the Commission to make “any orders it considers appropriate” in such a matter. The only other restriction placed on the Commission’s power is that it must not make orders that are inconsistent with the FWA or a relevant industrial instrument.[60] In this case, the Respondent’s dismissal of the Appellant was inconsistent with the industrial instrument because it pre-empted the role of the Commission in resolving the dispute, contrary to clause 15.5 [of the] EA (noting that the sole basis for the dismissal was a failure to obey the very direction in dispute). Therefore, orders to rectify the Respondent’s pre-emption of the Commission’s role were not only reasonably incidental to the dispute, but necessary in order to properly resolve it.

18. The Deputy President erred in holding that: “…Mr Mitchell now seeks to extend the scope of the dispute by a further step to include circumstances that occurred after his application was made and after his employment with the university ended … This is territory that is remote from the 2017 Agreement and the s 739 application”.[61] The termination of the Appellant’s employment arose directly from the subject matter of the dispute, because the sole basis for that termination was the Appellant’s failure to comply with the direction to vaccinate, which was itself the subject of the dispute. The Commission was empowered by the parties to resolve the dispute, and such resolution may have included orders to the effect that the direction was not lawful and reasonable, and that consultation must be carried out properly, with the necessary implication that the Appellant must be employed during that process.[62] In terminating the Appellant’s employment on the sole basis of his failure to obey the direction under dispute, the Respondent took a step directly related to the dispute, a step which formed part of the dispute, and exacerbated it.

19. The Deputy President erred in holding that, “In this case, there was a conflict between the vaccination requirement of the university, which was a measure conscientiously adopted in the interests of the safety and welfare of the university community, and the personal convictions of Mr Mitchell. … The university’s decision was taken in good faith and for a good reason”.[63] Firstly, the conflict does not exist in the terms stated: the Appellant’s reasoning was based on objective factors and also considered the interests of the safety and welfare of the university community. Secondly, the Deputy President’s reasoning at best amounts to a reason why the decision to implement the vaccination proposal could be considered as prima-facie lawful and reasonable in the sense considered by the FWC full bench in Mt Arthur Coal.[64] The issue before the Deputy President was the extent to which the Respondent had or had not complied with its consultation obligations under clause 12 of the EA, and whether its failure to do so had the effect of rendering the decision to implement the proposal not lawful and reasonable.

20. The Deputy President erred in holding that to order the Respondent to pay compensation to the Appellant “would afford undue priority to Mr Mitchell’s personal interests over the bona fide efforts of the university to protect the health and safety of its community. It would be unfair.”[65] The conflict referred to by the Deputy President does not exist. The Appellant did not seek such compensation because the Respondent had proposed or imposed a vaccination mandate. Rather, the Appellant sought such compensation because the Respondent had terminated his employment after he raised and referred the dispute, and on the sole basis of his failure to comply with the direction which was the subject of the dispute. The Respondent thereby pre-empted the role of the Commission in resolving the dispute between the parties.
21. The Deputy President erred in holding that the state of the evidence was not sufficient for him to conclude that the Appellant had not mitigated his loss.[66] The onus of proving a failure to mitigate lies on the Respondent.[67] The Respondent adduced no evidence that the Appellant had failed to mitigate his loss. The only relevant evidence was by the Appellant, to the effect that his search for new employment had been affected by anxiety and depression. This evidence was not challenged by the Respondent. Regardless, the onus to prove failure to mitigate lay on the Respondent and it made no attempt to discharge that onus.
22. The Deputy President erred in holding: “I consider that the compensation Mr Mitchell seeks is remote from the dispute that he brought to the Commission in March 2022 … It was only in the proceedings before me that Mr Mitchell contended that compensation would be an appropriate remedy, as he had now become “reconciled” to his new job and had decided that his relationship of trust and confidence with the university had been adversely impacted such that reinstatement was no longer appropriate. The critical changes in Mr Mitchell’s situation are matters of perception and personnel choice that arose long after his employment with the university had ceased”. The reason for the changing orders sought by the Appellant were objective and arose from actions of the Respondent or from outside circumstances:
(a) When the Appellant referred the dispute to the Commission on 15 March 2022, he was still employed by the Respondent. He sought orders that the Respondent engage in consultation as required by the EA, and that the Respondent be prohibited from terminating his employment until the dispute was resolved.

(b) After the Respondent dismissed him on 18 March 2022, the Appellant continued to seek an order that the Respondent engage in consultation as required by the EA, and also sought an order that he be reinstated to his employment. The latter was a logical necessity if consultation was to occur.

(c) The Appellant obtained casual employment with a new employer (the University of Sydney) for a specified period of 4 months in July 2022 (this was later extended). This did not materially change the Appellant’s position when the matter came before the Full Bench in August 2022 as he was not prevented from resuming his previous employment with the Respondent. However, the Appellant built new relationships in his employment by the time of the hearing before Colman DP on 14 March 2023, and in addition, on 24 February 2023 he was granted permanent full-time employment with the University of Sydney. Therefore, the Appellant in the hearing before Colman DP no longer sought reinstatement to his former employment with the Respondent, and therefore no longer sought orders that the Respondent engage in consultation pursuant to the EA.

23. The Deputy President erred in holding that he did not believe that “further or more fulsome consultation would have made any difference to the ultimate outcome”.[68] See paragraphs 11, 12 and 13 above.
24. The Deputy President erred in holding that the consultation process that did occur “involved substantive consultation”.[69] See paragraph 6 above.”

Appellant’s Submissions

In relation to ground 1, the Appellant contended that the Deputy President erred in concluding that clause 12 of the 2017 Agreement did not invalidate the vaccination requirement as a matter of construction.[70] The Deputy President held that such a construction would require that clause 12 of the EA include an express statement prohibiting the Respondent from implementing the significant change until consultation had taken place.[71] However, in the Appellant’s view, the language of clause 12.2 is mandatory in requiring that consultation must take place before a proposed change is introduced, noting the use of the words “will” and “shall”.[72]

In relation to ground 2, the Appellant submitted that the Deputy President erred in holding that the scope of clause 15.3 of the EA did not extend to the subject matter of the present dispute.[73] It was the Appellant’s submission that the Deputy President failed to take into account the words “nor will any party to the dispute take any other action likely to exacerbate the dispute”,[74] and the Respondent breached clause 15.3 by commencing the process to terminate the Appellant’s employment after a dispute had been raised, but before the dispute was referred to the Commission.[75]

In relation to ground 3, the Appellant asserted that the Deputy President erred in holding that the non-compliance by the Respondent with clause 15.4 of the EA was “inconsequential”.[76] The Appellant submitted that if the Respondent had entered into informal dispute resolution as required by clause 15.4, the dispute may have been resolved without needing to refer the dispute to the Commission. Further, the Respondent’s refusal to engage in informal dispute resolution in breach of the requirements of the EA,[77] was relevant to the question of appropriate remedial orders sought by the Appellant.[78]

In relation to ground 4, it was the Appellant’s contention that the Deputy President erred in holding that a finding that the consultation under clause 12 was inadequate would not invalidate the vaccination requirement. The Appellant submitted that a conclusion that consultation is “inadequate” goes further than findings of deficiencies. Consultation must be adequate, or the proposal cannot be reasonable.

In relation to ground 5, the Appellant submitted that the Deputy President erred in holding that the deficiencies in the Respondent’s consultation process did not render the vaccination requirement unreasonable.[79] In the Appellant’s view, the deficiencies in consultation were at least as great as those in the case of Mt Arthur Coal which told against a conclusion that the vaccination requirement was reasonable,[80] and which proved to be the most telling factor in concluding that it was unreasonable.[81] The Full Bench in Mt Arthur Coal set out the principles applying to consultation obligations under industrial instruments[82] which includes that management must hear, consider and take into account the views of workers. The Appellant submitted that this did not occur in this case. The Appellant noted that the Full Bench observed:

“[155] We note however, that the Respondent did not invite the Employees to contribute scientific, medical or safety data or inform them that such information may influence its assessment and recommendation for COVID-19 vaccination as a workplace entry requirement. Further any such information would not be the only relevant information that might be obtained by the Respondent from a consultation process with the Employees.”[83]

In relation to grounds 6, 8, 9, 15 and 24, the Appellant submitted that the Deputy President erred in holding that the Respondent engaged in “substantive” consultation, that the Appellant was able to put forward his responses, that the Respondent considered those responses, and that “there was real and substantive consultation about the scope and effect of the vaccination policy”.[84] In the Appellant’s view, the Respondent asked a very limited series of questions in a survey prior to the decision being taken to implement the proposal on or before 9 December 2021.[85] None of those questions concerned the effect of the proposal on workplace conditions or employee entitlements. The Appellant contended that only one of those questions (on vaccine safety) was in a form that permitted the Appellant to write his own answer, and the answer which the Appellant did write was never passed on to the UET which made the decision on implementation of the proposal.[86] The Appellant pointed out that the Respondent never replied to his response to the survey and email, either in terms required by sub-clause 12.2(f)(i) or otherwise.[87] As such, the Appellant contended that he was not allowed “meaningful input” into the decision.[88]

The Appellant asserted that his proposal to work from home while being unvaccinated,[89] and his response to a show cause letter[90] could not, by their nature, amount to consultation as required by clause 12. In any event, the Appellant considered that this occurred too late (coming weeks or months after the decision had been made to introduce the proposal on 9 December 2021), and there was no evidence that the proposal and response was ever passed onto the UET or to anyone to whom the UET had properly delegated the role of consultation under clause 12.

In relation to ground 7, the Appellant contended that the Deputy President erred in holding that the Respondent only failed to comply with sub-clauses (v) and (vii) of clause 12.2(c) of the EA.[91] In the Appellant’s view, the Deputy President drastically understated the Respondent’s failure to comply with particular requirements of clause 12.2(c). The Appellant submitted that the Respondent failed to comply with:

· Sub-clause 12.2(c)(i), because the survey email misstated the nature of the proposed change, referring to preventing unvaccinated and unexempt persons from entering (the Tasmanian) campus, but not that they would be prevented from working for the university in any capacity whatsoever.[92]

· Sub-clause 12.2(c)(iii), because the survey did not set out “the expected effect on affected Employees and measures to identify and mitigate any adverse effects”.

· Sub-clause 12.2(c)(iv), because no “consultation period” was stated.

· Sub-clause 12.2(c)(v), because no “proposed implementation time lines” were stated.

· Sub-clause 12.2(c)(vi), because the survey email did not set out “existing and proposed organisational structures (where structural change is proposed)”. The Respondent in fact expected significant terminations and/or working from home as a result of the proposed changes.[93]

· Sub-clause 12.2(c)(vii), because no “University contact for feedback and questions” was provided. Rather, the Appellant was restricted to answering four multiple choice questions and providing written comment on just one issue – vaccine safety.[94]

· Sub-clause 12.2(f), because the Respondent did not explain in writing how feedback received from the Appellant on the proposal was taken into consideration.[95]

In relation to ground 10, the Appellant asserted that the Deputy President erred in holding that the Appellant was able to “put forward his views and arguments” in a response to a show cause letter, and that such response was relevant to consultation.[96] It was the Appellant’s submission that the response to the show cause letter occurred on 4 March 2022, long after the UET had made the decision to implement the proposal on 9 December 2021, and a response to a show cause letter cannot of its nature constitute consultation within the meaning of clause 12 of the EA. As the Appellant was facing immediate termination of his employment, he was explaining his immediate intentions and reasons for them, not his approach to consultation under clause 12. The Appellant noted that there is no evidence that Ms Bye passed on any of the contents of the Appellant’s response to the UET or to any person with appropriate delegation from the UET, nor is there any evidence that she was instructed to do so. In any event, Ms Bye did not give evidence.

In relation to ground 11, the Appellant contended that the Deputy President erred in holding that the relevance of a failure to consult to the reasonableness of a direction depends on whether the consultation “could reasonably have been expected to make any difference to the outcome”.[97] The Appellant submitted that the correct test is whether the failure to consult denied the Appellant the possibility of a different outcome.[98] A clause such as clause 12 is not concerned with the likelihood of success of the consultative process, but rather concerned simply to ensure that consultation occurs, before a decision is made to implement a proposal.[99]

In relation to ground 12, it was the Appellant’s submission that the Deputy President erred in finding that “it was most improbable that Mr Mitchell was going to change his mind about getting vaccinated as a result of further consultation with the university”[100] as the evidence did not support such a finding. The Appellant asserts that the Deputy President’s view of the Appellant’s willingness to consider alternative points of view was based almost entirely on the Appellant’s response to a show cause letter, in which he set out reasons why his employment should not be immediately terminated. The Appellant submitted that this was not a substitute for consultation under clause 12 of the EA.

In relation to ground 13, the Deputy President found that the Respondent was resolved to implement the vaccination requirement as it believed it was in the best interests of health and safety in its workplace. However, the Appellant asserted that the Deputy President erred in finding that “This is not a case where one can identify an additional fact, idea, argument or proposal that one party might have presented to the other that could realistically have led to a different outcome”.[101] Based on the facts, the Appellant submitted that it is not possible to find that on proper consultation, it could not have produced a different result. Further, the Appellant submitted that the issue was not a simple binary one and contended that the Respondent, after proper consultation, may have decided to implement the proposal in a different way, or made some concessions. In turn, the Appellant considered that after receiving responses during consultation, he may have changed his mind in some relevant sense, either on the original proposal or a proposal as varied by the Respondent after consultation.

In relation to ground 14, it was the Appellant’s submission that the Deputy President erred in holding that “the agreement does not prohibit implementation of the relevant change until consultation has concluded”.[102] In the Appellant’s view, clause 12 of the EA requires that consultation be concluded before the decision is made to implement the proposal,[103] and this contrasts with the consultation clause in the industrial instrument in Mt Arthur Coal.[104]

In relation to ground 16, the Appellant contended that the Deputy President erred in holding that where the Commission arbitrates a dispute regarding the application of the terms of an enterprise agreement, the Commission is restricted to only making orders that determine how the agreement applies, and in particular that the Commission is not entitled to make orders for compensation of the type sought by the Appellant.[105] The Appellant asserted that ss.595(3), 739(4) and 739(5) of the Act make clear that the only restriction on orders that the Commission may make when settling such a dispute is that they must be appropriate to the dispute, and they must not be inconsistent with the Act or a relevant industrial instrument. It was the Appellant’s submission that the 2017 Agreement placed no relevant restriction on the orders. The Appellant submitted that analysis of similar provisions indicates that there should be no limitation on the orders that may be made.[106]

The Appellant noted that he raised the dispute and referred it to the Commission, and the Respondent then terminated the employment of the Appellant on the sole ground of failure to obey the direction which was the subject of the dispute.[107] In the circumstances, this termination pre-empted the Commission’s decision in settling the dispute. The Appellant submitted that this was itself a breach of clause 15.5 which conferred the role of settling the dispute on the Commission. Therefore, orders to rectify the Respondent’s pre-emption of the Commission’s role were not only reasonably incidental to the dispute, but necessary in order to properly resolve it.

Consistent with the foregoing, the Appellant noted that in his Form F10 application filed on 15 March 2022, he sought an order to prevent him being terminated pending settlement of the dispute. After he was terminated on 18 March 2022, his remedies sought included an order reinstating his employment, which was necessary so that orders for the parties to consult could be made. After his new employment was made permanent on 24 February 2023,[108] he could no longer be reinstated, and therefore he sought directions that would settle the dispute as the Respondent had caused it to evolve – including compensation for his unlawful termination, and including exemplary damages to mark the seriousness of the Respondent’s conduct in pre-empting the decision of the Commission by terminating him.

In relation to ground 17, the Appellant submitted that the Deputy President erred in holding that the EA must contain an express provision in order for the Commission to be empowered to “resolve disputes by creating new rights to general compensation payments in respect of a particular matter”.[109] To this, the Appellant relies on his submissions outlined in [58]-[59] of this decision.

In relation to ground 18, the Appellant asserted that the Deputy President erred in holding that the consequences of the Appellant’s termination is “territory that is remote from the 2017 Agreement and the s 739 application”.[110] The Appellant again relies on his submissions outlined in [58]-[59] of this decision. The termination of the Appellant’s employment arose directly from the subject matter of the dispute because the sole basis for that termination was the Appellant’s failure to comply with the direction to vaccinate, which was the very matter under dispute. In the Appellant’s view, the Commission was empowered by the parties to resolve the dispute, including by findings or orders to the effect that the direction to vaccinate was not reasonable, and that consultation must be carried out properly, with the necessary implication that the Appellant must be employed during that process.[111] The Appellant contended that in terminating the Appellant’s employment on the sole basis of his failure to obey the direction under dispute, the Respondent took a step directly related to the dispute, which formed part of the dispute, and exacerbated it.[112]

In relation to ground 19, the Appellant asserted that the Deputy President erred in holding, “… there was a conflict between the vaccination requirement of the university, which was a measure conscientiously adopted in the interests of the safety and welfare of the university community, and the personal convictions of Mr Mitchell. … The university’s decision was taken in good faith and for a good reason”.[113] Firstly, the Appellant submitted that the conflict does not exist in the terms stated. The Appellant’s reasoning was based on objective factors and also considered the interests of the safety and welfare of the university community. Secondly, the Appellant contended that the Deputy President’s reasoning, at best, amounts to a reason why the decision to implement the vaccination proposal could be considered as prima-facie lawful and reasonable in the sense considered by the FWC Full Bench in Mt Arthur Coal.[114] In the Appellant’s view, the issue before the Deputy President was the extent to which the Respondent had or had not complied with its consultation obligations under clause 12 of the EA, and whether its failure to do so had the effect of rendering the decision to implement the proposal not reasonable.[115]

In relation to ground 20, it was the Appellant’s contention that the Deputy President erred in holding that to order the Respondent to pay compensation to the Appellant “would afford undue priority to Mr Mitchell’s personal interests over the bona fide efforts of the university to protect the health and safety of its community. It would be unfair.”[116] The Appellant denied that the conflict referred to by the Deputy President exists. The Appellant did not seek such compensation because the Respondent had proposed or imposed a vaccination mandate. Rather, the Appellant sought such compensation because the Respondent had terminated his employment after he raised and referred the dispute to the Commission, and on the sole basis of his failure to comply with the direction which was the subject of the dispute.

In relation to ground 21, the Appellant submitted that the Deputy President erred in holding that the state of the evidence was not sufficient for him to conclude that the Appellant had not mitigated his loss.[117] The Appellant contended that the onus of proving a failure to mitigate lies on the Respondent, and the Respondent failed to adduce any evidence that the Appellant had failed to mitigate his loss. The only relevant evidence was submitted by the Appellant to the effect that his search for new employment had been affected by anxiety and depression; this evidence was not challenged by the Respondent. Regardless, the Appellant submitted that the onus to prove failure to mitigate lay on the Respondent and it made no attempt to discharge that onus.

In relation to ground 22, Appellant asserted that the Deputy President erred in holding that the compensation orders sought by the Appellant were “remote from the dispute that he brought to the Commission in March 2022”.[118] The Appellant submitted that the reason for the changing orders sought by the Appellant, and for seeking orders or compensation, were objective and arose from the actions of the Respondent or from outside circumstances.

In relation to ground 23, the Appellant relied on the earlier submissions to contend that the Deputy President erred in holding that he did not believe that “further or more fulsome consultation would have made any difference to the ultimate outcome”.[119]

Respondent’s Submissions

The Respondent’s primary submission was that no arguable case of appealable error exists such that permission to appeal should be granted. In addressing the Appellant’s grounds of appeal, the Respondent sought to group the grounds in its response.

In relation to grounds 1 and 14, the Respondent contended that the Deputy President did not err in concluding that clause 12 does not prohibit change before consultation. In the Respondent’s view, the Appellant does not identify an appealable error on these grounds but, rather, disagrees with the conclusions of the Deputy President. The Respondent agreed with the Deputy President’s conclusion at [20] of the Decision that “…there is a distinction between a clause that creates a consultation obligation and one that also prohibits change before consultation is concluded. Nothing in clause 12 provides that a proposed change must not proceed, or need not be accepted by an employee, unless or until all of the various consultation requirements of the clause have been met”.

In relation to ground 2, the Respondent submitted that the Deputy President did not err in holding that the scope of clause 15.3 did not extend to the subject matter of the present dispute. The Appellant did not contend that clause 15.3 applied in the matter before the Deputy President or that the Respondent breached that clause. Therefore, the Respondent submitted that “… unless there are the most exceptional circumstances giving rise to a compelling argument to the contrary, it is contrary to the public interest to allow a party to run new arguments on appeal”.[120] The Respondent asserted that no such compelling argument exists. The Deputy President applied a logical, reasoned approach to this determination and did not err in his conclusions, given he identified that “… (t)he vaccination requirement was not a change in ‘work, staffing or the organisation of work’” and “… even if ‘work’ is read broadly to mean anything affecting work, the restriction in clause 15.3 only applied until the internal dispute resolution process in clause 15.4 had been completed. That occurred, at the latest, on 15 March 2022, several days before the dismissal…”.[121]

In relation to ground 3, the Respondent asserted that there was no error in the Deputy President’s conclusion that the non-compliance by the Respondent with clause 15.4 was “inconsequential”. The Respondent contended that this is a finding of fact, and the Appellant has not identified how this was in error. The Appellant has done nothing more than expressed his “… dissatisfaction with the outcome… and (is attempting) to reagitate the merits of the case as put to the Deputy President at first instance”.[122] The Respondent pointed out that, in any event, the Deputy President explained why the non-compliance was “inconsequential” to the dispute, detailing how “… further consultation would have achieved nothing”,[123] how the non-compliance did not prevent the Appellant lodging his dispute with the Commission[124] and how he would not order compensation for the Appellant, even if he had the power to,[125] all of which are findings of fact reasonably open on the evidence.

In relation to grounds 4 and 5, the Respondent submitted that the Deputy President did not err in determining that (in this case) inadequate consultation under clause 12 did not invalidate the vaccination requirement. The Respondent contended that the Appellant has not identified appealable error but disagreed with the outcome and sought to reagitate his submissions. It further contended that the Deputy President expressly dealt with this and correctly identified that the consultation deficiencies in Mt Arthur Coal “… did not automatically render the direction unreasonable but were to be weighed in balance”[126] and “… whether a direction is reasonable is not to be determined by comparing the steps taken by an employer in one case with those taken by another in a different case. Each case will turn on its own facts”.[127] This led to the Deputy President weighing the relevant facts in this case and determining, as a matter of fact, that the direction was not unreasonable.[128]

In relation to grounds 6, 8, 9, 15 and 24, the Respondent contended that there was no error in the Deputy President’s finding that the Respondent engaged in “substantive” consultation. The Respondent pointed out that the Appellant replicated his submissions in the first instance,[129] and as such, the Deputy President had already considered and dealt with these submissions in a methodical and orthodox manner. The Respondent submitted that the Appellant has failed to establish that the Deputy President made an appealable error and, instead, is again attempting “…to reagitate the merits of the case as put to the Deputy President at first instance”.[130] In any event, this was a finding of fact based on evidence which was before the Deputy President, and in the Respondent’s view, it was reasonably open to him to make that finding.

In relation to ground 7, the Respondent asserted that the Deputy President did not err in determining that the Respondent only failed to comply with sub-clauses (v) and (vii) of clause 12.2(c) of the EA. The Respondent submitted that the Appellant has again not identified how the Deputy President erred in these findings but instead is attempting to reagitate the merits of the case at first instance. Even if the Appellant is correct in that further technical aspects of clause 12 were not complied with, the Respondent contended that this is inconsequential as:

· the parties agreed the Respondent did not comply with clause 12; and

· whether or not more requirements of clause 12 were complied with does not alter Colman DP’s findings that such non-compliance did not invalidate the direction and the direction was reasonable from a broader point of view (given those conclusions proceeded from a basis that clause 12 was not complied with).[131]

In relation to ground 10, the Respondent contended this ground is misconceived and does not identify any appealable error. The Respondent noted that the Deputy President stated at [37] of the Decision:

“… I agree with Mr Mitchell that his 33-page document was not part of the consultation process per se. But it is relevant to the reasonableness of the university’s decision to enforce its direction because it was one of the means by which Mr Mitchell was able to put forward his views and arguments.”[132]
(Respondent’s underlining)

In relation to ground 11, the Respondent asserted that there was no error of law in the Deputy President’s determination that the relevance of a failure to consult depends on whether the consultation “could reasonably have been expected to make any difference to the outcome”.[133] The Respondent pointed out that the Deputy President correctly identified that the High Court decision of Stead was concerned with natural justice which was “…not at issue here”.[134] Rather, “… it is relevant to take into account whether the university’s full compliance with… clause 12 could reasonably have been expected to make any difference to the outcome”. In the Respondent’s view, the Deputy President was not expressing principles of law such that it could be said there was an error, rather he determined, as a matter of fact, there was no possibility of a different outcome which is the legal test the Appellant says applies.[135]

In relation to grounds 12 and 13, the Respondent submitted that the Deputy President did not err in determining that further consultation would not have achieved a different result as the Deputy President’s conclusion as to the futility of further consultation was reasonably open and based on evidence. The Respondent agreed with the Deputy President’s finding that the Appellant was not going to change his mind given the Appellant made several definitive statements about his views on the safety and efficacy of vaccines, requested the Respondent to “… ‘admit’ that it had ‘no scientifically based medical reason to exclude (him) from the campus’”, stated that his decision to be vaccinated would be on his time and between him and his doctor and had remained unvaccinated even where “… this was presenting an obstacle to obtaining alternative employment”.[136]

The Respondent submitted that the Deputy President’s finding that “this is not a case where one can identify an additional fact, idea, argument or proposal that one party might have presented to the other that could realistically have led to a different outcome” was not in error as it was a finding which was reasonably open to him on the facts, particularly considering the Appellant’s position as detailed at paragraph 29 above and that the Respondent “… would not be swayed either”.[137]

In relation to grounds 16 and 17, the Respondent asserted that there was no error in the Deputy President’s finding that the Commission could not make orders for compensation of the type sought by the Appellant. The Respondent contended that again, the Appellant has not identified any error but disagrees with the conclusion reached and seeks to reagitate the case. In the Respondent’s view, the Deputy President expressly considered and dealt with the Appellant’s argument that the Commission can make “any orders it considers appropriate” through s.595(3) and applied well-settled principles to determine that this did not extend to making orders of compensation in a dispute about the application of the terms of an agreement,[138] such that no error occurred.

With respect to the Appellant’s contention that Barker J’s comments regarding s.545 in International Aviations[139] support an interpretation that compensation can be ordered,[140] the Respondent contended that the Appellant’s submissions are incorrect. The Respondent considered that Barker J was exploring whether it was appropriate to order compensation for hurt and humiliation under s.545 in a matter where some of the general protections provisions had been breached. Therefore, International Aviations was subject to particular context and provisions which do not apply in this case.

Before the Deputy President, the Appellant sought three compensation orders on the basis that s.595(3) of the Act allowed the Commission to grant such orders.[176] The first order sought was that the Respondent pay the Appellant the “wages and entitlements that he would have expected to receive had he not been dismissed”.[177] Secondly, the Appellant sought an order that the Respondent pay him “an amount of $5000 in general damages for the hurt and distress that he suffered as a consequence of his dismissal”.[178] The Appellant further sought damages amounting to $5000 in order to “secure greater awareness of and compliance of the Act”.[179]

During the hearing in these proceedings, the Appellant confirmed that he was seeking both general damages for the effect, and circumstances of the termination, and exemplary damages.[180]

Section 595 of the Act states:

“(1)The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(2)The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
(3)The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
Example:Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(4)In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example:The FWC could direct a person to attend a conference under section 592.

(5)To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”

Further, s.738 of the Act states:

“This Division applies if:
…
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes …”

Section 739 states:

“(1)This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(3)In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4)If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note:The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5)Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

In effect, clause 15.5 of the 2017 Agreement expressly authorises the FWC to arbitrate a relevant dispute if conciliation has failed to resolve it.[181] A conciliation was conducted by the Commission which did not resolve the dispute. Accordingly, clause 15.5 provided the Commission with the jurisdiction to arbitrate the matter.

In his written submissions, the Appellant referred to Scott Nigel Tracey v BP Refinery (Kwinana) Pty Ltd[182] (Kwinana). In that decision, the Full Bench observed that it was open to the Commission to make an order for compensation for, in effect, the underpayment of wages.[183] That case concerned an appeal about matters that included the scope of the arbitration under s.739 and related provisions of the Act. The Full Bench in that case stated:

“[40] As to the Deputy President’s characterisation of the dispute as a claim for recovery of underpayments and therefore beyond jurisdiction, the Deputy President was correct in so far as any underpayment arises from the operation of the 2014 Agreement because the dispute is raised under the Determination about a dispute or grievance in relation to the Determination. But she was in error to so characterise the dispute in respect of any contended underpayment under the Determination. As we have already explained, as a private arbitrator, acting under clause 16 of the Determination, the Deputy President is authorised to make decisions as to the legal rights and liabilities of the parties to the dispute. That involves deciding all questions both of law and of fact that arise in the dispute, subject to any limitation on power in the dispute settlement clause, and a requirement not to make a decision that is inconsistent with the Act or a fair work instrument that applies to the parties. Thus, the Deputy President was authorised to determine the appropriate classification to which the appellant is entitled under the Determination, the appropriate pay rate that thereby attaches, whether the appellant had been underpaid and, if so, by what amount. Orders compensating the appellant for any underpayment could also have been made. Though this may be akin to the exercise of judicial power, such power is not being exercised because the parties have agreed to permit the Commission to determine their dispute by private arbitration. The Deputy President mischaracterised the dispute in this regard and was in error to dismiss the dispute on this basis.”

However, the circumstances of Kwinana differ from those of the present proceedings. The notion of “compensation” being awarded by the Commission was to give effect to a decision about how the industrial instrument in that matter was to be applied and was entirely consistent with the terms of that instrument and the effect of that decision. That is, there was an “underpayment” of the entitlements expressed by the instrument and an order dealing with the consequences of that finding could be made. This is the context in which those remarks should be considered.

The Appellant also referred to a number of authorities where an award for compensation was made in matters arbitrated by the Commission.[184] To the extent that these relied upon matters determined under the General Protections provisions of the Act,[185] these do not assist. There is an express power[186] to award compensation under the terms of the Act in such matters where the Commission is dealing with that dispute by arbitration. Relevant to the present proceedings, s.595(3), and the other powers set out in Part 5-1 of the Act, do not provide such express authority given the terms of the 2017 Agreement.

In FreshFood Management Services Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and another[187] (FreshFood), the Full Bench reviewed the basis of the power for the Commission to arbitrate disputes of this general kind and observed:

“[118] In assessing the scope of the arbitration authorised by the Agreement, we consider that the following non-exhaustive summary of the approach to such an exercise as provided by Saunders DP in Davis and others v The University of Newcastle[188] is apt:

“[12] The scope of a dispute resolution clause in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”[189]
[13] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute.[190] The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.[191] Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.[192]
[14] It is also important to note that the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.[193] However, the relief sought may cast light on the true nature of the dispute in some cases.[194]
[15] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant in such circumstances will depend on the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the Enterprise Agreement to which the dispute relates.”[195]

Although this decision was largely about the power and scope to arbitrate disputes, it is of assistance when examining the approach to be adopted to remedies in that context.

In determining whether the Deputy President had the jurisdiction to make an award for compensation in the context of this dispute, we must examine whether the terms of the 2017 Agreement provide a foundation for an award of compensation in the context of a dispute about the prior consultation required for the implementation of what the parties have agreed was major change.

Relevantly, clause 15.5(b) states that “the parties to the dispute will implement any arbitrated decision of the FWC”. However, there is no express provision within clause 15.5, clause 12 or the Agreement more generally, that empowers the Commission to make an order for compensation in the present context.

Further, there is nothing in the language of clause 15.5 which implies that an award of compensation could be ordered by the Commission in respect of a dispute of the kind before the Deputy President. The language of clause 15.5, and the Agreement more generally, does not suggest that it was intended for the Commission to be given such powers as to make an order for compensation. Further, the concept of compensation being awarded for, in effect, the consequence of the dismissal, is not reasonably incidental to the dispute about the proper application of clause 12 of the 2017 Agreement and whether the associated direction was lawful and reasonable, or with the application of that agreement more generally, as contemplated in FreshFood and Kwinana. In both of those cases, the notion of compensation was directly incidental to the subject matter of the disputes which concerned entitlements of employees under the relevant agreements, to the amounts claimed in compensation.

The proposed compensation would also create a new obligation not consistent with the terms of the 2017 Agreement. In the absence of a foundation whereby it could be said that the parties had agreed to empower the Commission to do so, this would also not be consistent with the scheme of the Act.

Accordingly, we consider that the Deputy President was correct in finding that he had no jurisdiction to make an award for compensation in the context of the dispute that was before the Commission and the terms of the agreement under which the dispute was brought and to which it related. Given that compensation was the purpose of the arbitration as it unfolded before the Deputy President, and the outcome sought by the Appellant, we consider that there is no utility in this appeal.

In light of this finding, it is not necessary for us to deal with the appeal grounds concerning the approach to compensation adopted by the Deputy President.

Order

We order that the appeal be dismissed.

VICE PRESIDENT

Appearances:

M Mitchell for the Appellant.
S Masters for the Respondent.

Hearing details:

2023.
Brisbane–Adelaide (by video link):
June 19.

[1] [2023] FWC 810 (‘Decision’).

[2] Ibid at [2] to [5].

[3] Mitchell v University of Tasmania[2022] FWCFB 165.

[4] Ibid at [28].

[5] [2022] FWCFB 93.

[6] [2022] FWC 3164.

[7] Decision at [6].

[8] Ibid at [64].

[9] Ibid at [62].

[10] [2020] FWCFB 5054.

[11] Jonathan Dugald Mitchell v University of Tasmania[2022] FWCFB 165.

[12] CFMMEU v Falcon Mining Pty Ltd[2022] FWCFB 93.

[13] Tracey v BP Refinery (Kwinana) Pty Ltd[2022] FWCFB 210.

[14] Decision at [12].

[15] [2021] FWCFB 6059.

[16] Decision at [18].

[17] Ibid at [20].

[18] Ibid at [25].

[19] Decision at [37].

[20] Ibid at [39].

[21] Ibid at [57]-[61].

[22] Ibid at [57].

[23] Applying s.596 of the Act.

[24] (2010) 197 IR 266 at [27].

[25] Wan v Australian Industrial Relations Commission and Another (2001) 116 FCR 481 at [30].

[26] (1986) 161 CLR 141.

[27] [2010] FCAFC 150.

[28] Rabbi Samuel To-Lev v Strathfield & District Hebrew Congregation[2018] FWCFB 5613 at [17].

[29] See for example: Palak Rani v Limitless Ventures Toscas Pty Ltd t/a Toscanis Mackay[2015] FWCFB 8216 at [6].

[30] (2010) 197 IR 266.

[31] Construction, Forestry, Maritime, Mining and Energy Union v Sydney International Container Terminals Pty Ltd and Brisbane Container Terminals Pty Ltd T/A Hutchison Ports Australia[2023] FWCFB 54 at [41].

[32] Construction, Forestry, Maritime, Mining and Energy Union v AGL Loy Yang Pty Ltd T/A AGL Loy Yang[2020] FWCFB 7060 at [38].

[33] House v King (1936) 55 CLR 499 at 505.

[34] Decision at [53].

[35] Ibid at [39].

[36] Ibid at [40].

[37] Ibid at [26].

[38] Ibid at [20].

[39] University of Tasmania Staff Agreement 2017-2021 (2017 Agreement), sub-clauses 12.1(a), 12.2(a), (c) and (f).

[40] Decision at [25].

[41] 2017 Agreement, sub-clause 15.3(b).

[42] Decision at [27].

[43] Ibid at [30].

[44] Ibid at [33].

[45] Mt Arthur Coal at [201].

[46] Ibid at [249].

[47] Decision at [34].

[48] Ibid.

[49] Ibid at [37].

[50] Ibid.

[51] Ibid.

[52] Ibid at [39].

[53] Mt Arthur Coal at [196] citing Stead v State Government Insurance Commission (1986) 161 CLR 141 (‘Stead’) at 147.

[54] Mt Arthur Coal lat [197] citing QR Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150 (‘QR Ltd’) at [31]-[32] per Keane CJ and Marshall J.

[55] Decision at [41].

[56] 2017 Agreement, sub-clauses 12.2(a), (c) and (f).

[57] Decision at [41].

[58] Decision at [49].

[59] Decision at [51].

[60] Fair Work Act 2009 (Cth), s.739(5).

[61] Decision at [54].

[62] 2017 Agreement, clause 15.5; Jonathan Mitchell v University of Tasmania[2022] FWCFB 165 at [35].

[63] Decision at [56].

[64] Mt Arthur Coal at [85].

[65] Decision at [57].

[66] Ibid at [59].

[67] Judicial Commission of NSW; Civil Trials Benchbook at 7-0020 “Mitigation” Damages (nsw.gov.au).

[68] Decision at [61].

[69] Ibid.

[70] Ibid at [18], [19] and [26].

[71] Ibid at [19].

[72] 2017 Agreement, sub-clauses 12.2(a), (c) and (f).

[73] Decision at [25].

[74] 2017 Agreement, sub-clause 15.3(b).

[75] Statement of Jonathan Dugald Mitchell dated 28 March 2022, [19], [25], [28].

[76] Decision at [27].

[77] Statement of Jonathan Dugald Mitchell dated 28 March 2023, [19], [26]-[29].

[78] Statement of Jonathan Dugald Mitchell dated 20 January 2023, [2.11].

[79] Decision at [30].

[80] Ibid at [33].

[81] Mt Arthur Coal at [201].

[82] Ibid at [249].

[83] Ibid at [108]; Cf. [105] and [106].

[84] Decision at [34], [37] and [41].

[85] Statement of Jonathan Dugald Mitchell dated 28 March 2023, [3]-[4].

[86] Statement of Chris Arnold dated 20 February 2023, [26] and [31], Annexure CA-2.

[87] Statement of Jonathan Dugald Mitchell dated 28 March 2023, [4]; Statement of Jonathan Dugald Mitchell dated 20 January 2023, [2.2].

[88] WorkPac Mining Pty Ltd v Peni Botiki and Ors [2021] FWCFB 3325 at [33].

[89] Statement of Jonathan Dugald Mitchell dated 20 January 2023, [2.8] and [2.9].

[90] Statement of Jonathan Dugald Mitchell dated 28 March 2023, [25], [31] and Annexure JM-25.

[91] Decision at [34].

[92] Statement of Jonathan Dugald Mitchell dated 28 March 2023, [20].

[93] Statement of Chris Arnold dated 20 February 2023, Annexure CA-2, page 2.

[94] Statement of Jonathan Dugald Mitchell dated 28 March 2023, Annexure JM-2, pages 2-4.

[95] Nor indeed any other kind of feedback: Statement of Jonathan Dugald Mitchell dated 27 February 2023, [8.5], [8.7] and [8.9].

[96] Decision at [37].

[97] Ibid at [39].

[98] Mt Arthur Coal at [196] citing Stead at 147.

[99] Mt Arthur Coal at [197] citing QR Ltd at [31-32] per Keane CJ and Marshall J.

[100] Decision at [39].

[101] Ibid at [40].

[102] Ibid at [41].

[103] Note: mandatory language including use of “will” and “shall” in sub-clauses 12.2(a), (c) and (f) of the EA.

[104] Mt Arthur Coal at [109]. The Mt Arthur Coal Enterprise Agreement 2019 applied the model consultation clause from the Fair Work Regulations, in which the trigger for consultation is the making of a definite decision to introduce a major change. In the Appellant’s view, this contrasts strongly with clause 12 of the EA.

[105] Decision at [49].

[106] Barker J considered the expression “any orders the court considers appropriate” which appears in s.545 of the Act in Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 (‘International Aviations’) at [441] – [448]. The principles set out therein apply with equal force to the expression “any orders it considers appropriate” in s.595(3) of the Act.

[107] Statement of Jonathan Dugald Mitchell dated 28 March 2023, Annexure JM-30.

[108] Statement of Jonathan Dugald Mitchell dated 27 February 2023, [2].

[109] Decision at [51].

[110] Ibid at [54].

[111] 2017 Agreement, clause 15.5; Cf. Jonathan Mitchell v University of Tasmania[2022] FWCFB 165 at [35].

[112] The termination was also entirely unnecessary as the Appellant was working effectively from home: Statement of Jonathan Dugald Mitchell dated 8 April 2022, [6]-[22].

[113] Decision at [56].

[114] Mt Arthur Coal at [85].

[115] Ibid at [95]-[96].

[116] Decision at [57].

[117] Ibid at [59].

[118] Ibid at [60].

[119] Ibid at [61].

[120] Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants[2023] FWCFB 73 at [74] to [75].

[121] Decision at [25].

[122] Emma Frances Sommerville v University of Tasmania[2023] FWCFB 19 at [54] (‘Sommerville’).

[123] Decision at [39] – [41]; see, in particular, Statement of Jonathan Dugald Mitchell dated 28 March 2023, Annexure JM-2, Annexure JM-25 and Annexure JM-30; Statement of Jonathan Dugald Mitchell dated 20 January 2023 at [6].

[124] Decision at [27].

[125] Ibid at [55] – [61].

[126] Ibid at [30].

[127] Ibid at [38].

[128] Ibid at [17] – [43].

[129] Applicant’s Submissions in Reply dated 27 February 2023 at [4.4].

[130] Sommerville at [54].

[131] Decision at [43].

[132] Ibid at [37].

[133] Ibid at [39].

[134] Ibid.

[135] Ibid at [39]-[40].

[136] Ibid at [39].

[137] Ibid at [40].

[138] Ibid at [53].

[139] [2011] FCA 333.

[140] Applicant’s Outline of Submissions dated 20 January 2023 at [7.20].

[141] Decision at [46] – [49].

[142] Applicant’s Outline of Submissions dated 20 January 2023, [7.3] – [7.4]; see also Statement of Jonathan Dugald Mitchell dated 20 January 2023, [7], [8] and [10].

[143] Decision at [55] – [61]; see also Statement of Jonathan Dugald Mitchell dated 28 March 2023, Annexure JM-2, Annexure JM-25, Annexure JM-30; Statement of Jonathan Dugald Mitchell dated 20 January 2023 at [6]; Applicant’s Outline of Submissions dated 20 January 2023, [7.3(c)].

[144] Contrary to the Appellant’s submissions, the Respondent does not have the onus of proof in regard to mitigation, particularly given the Commission is not bound by the rules of evidence or procedure (see s.591 of the Act).

[145] (2018) 264 CLR 541 at 563, 591-593, [2018] HCA 30 at [48]-[49] and [150]-[154].

[146] (1936) 55 CLR 499.

[147] Ibid at [504]-[505] per Dixon, Evatt and McTiernan JJ.

[148] Sydney International Container Terminals Pty Limited T/A Hutchison Ports v Construction, Forestry, Maritime, Mining and Energy Union[2023] FWCFB 87 at [36] and [37] and the authorities referenced by the Full Bench including James Cook University v Ridd (2020) 278 FCR 566 at [65], [2020] FCAFC 123, 298 IR 50 at [65], WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]; [2018] FCAFC 131 at [197]; Australian Workers’ Union v Orica Australia Pty Ltd[2022] FWCFB 90 at [18].

[149] Decision at [14].

[150] Decision at [16].

[151] Decision at [20].

[152] Decision at [26].

[153] 2017 Agreement at Clause 7(b).

[154] Employment conditions under clause 7 extend to: Academic Promotion Criteria and Procedures, Performance and Career Development Policy and Procedures, Academic Probationary Procedures and Intellectual Property.

[155] 2017 Agreement at Clause 15.4(a).

[156] Witness Statement of Jonathan Dugald Mitchell dated 28 March 2022 at [7].

[157] 2017 Agreement at Clause 15.3(b).

[158] Decision at [25].

[159] Decision at [25].

[160] Decision at [25].

[161] Mt Arthur Coal at [64]; Concut Pty Ltd v Worrell (2000) 75 ALJR 313 at [23].

[162] Mt Arthur Coal at [67].

[163] Mt Arthur Coal at [68].

[164] Mt Arthur Coal at [84].

[165] Mt Arthur Coal at [72], quoting R v Darling Stevedoring & Lighterage Co Ltd (1938) 60 CLR 601, 616.

[166] Ibidat [196].

[167] Ibidat [250].

[168] CAS2 – CAS4.

[169] CAS4.

[170] Transcript at PN110 to PN173.

[171] See eg, Mt Arthur Coal at [29]; Moscoso v Atco Structures & Logistics Pty Ltd (‘Moscoso’) [2023] FWCFB 28.

[172] Ibid

[173] Moscoso at [64].

[174] The Commission has previously taken judicial notice in respect to matters of common knowledge – see eg, Re 4 Yearly Review of Modern Awards – Funeral Industry Award 2010; Baker v KVD Resort Management Group Pty Ltd [2014] FWC 7201 at [42].

[175] Pskiet v Maicap Unit Trust T/A Nocelle Foods [2022] FWC 1534; Tween v Qantas Airways Ltd [2022] FWC 1594 at [105]; Pintley v DP World Sydney [2023] FWC 65 at [521]. See also Yip v VIC Roads Corporation[2022] FWC 1547 at [47] and Tutolo v Noongar Mia Mia Pty Ltd[2023] FWC 793 at [119]-[122] which discuss the difference between a government mandate and an employer policy and whether the requirement to consult is enlivened. Both cases found that a direction to be compliant with the mandate was reasonable despite the lack of consultation.

[176] Decision at [45].

[177] Decision at [45].

[178] Decision at [45].

[179] Decision at [45].

[180] Transcript at PN249.

[181] We have set out the text of Clause 15.5 under Paragraph [33] of this Decision.

[182] [2022] FWCFB 210.

[183] Kwinana at [40].

[184] Appellant’s Submissions at [7.20] and [7.23], citing International Aviations; Andrew Roos v Winnaa Pty Ltd [2018] FWCFB 7394.

[185] Part 3-1 of the Act.

[186] Section 369(2)(b).

[187] [2023] FWCFB 97.

[188] [2019] FWC 2282.

[189] SDA v Big W Discount Department Stores PR924554 at [23].

[190] AMWU v Holden Limited (2003) 128 IR 101at [47] (AMWU); MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523at [23] (‘ASP’).

[191] AMWU v Holden Limited PR940366 at [47]; ASP at [23].

[192] ASP at [19] and [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at 168, [1984] HCA 9; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board (2006) 158 IR 1, PR973884 (‘United Firefighters’ Union’).

[193] MUA v Australian Plant Services Pty Ltd PR908236 (‘MUA’); ASP at [21]-[22].

[194] United Firefighters’ Union at [20].

[195] MUA at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32].

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