Natalia Cabrera Moscoso v ATCO Structures & Logistics Pty Ltd
[2023] FWCFB 28
•7 FEBRUARY 2023
| [2023] FWCFB 28 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Natalia Cabrera Moscoso
v
ATCO Structures & Logistics Pty Ltd
(C2022/5597)
| VICE PRESIDENT CATANZARITI | SYDNEY, 7 FEBRUARY 2023 |
Appeal against decision [2022] FWC 1904 of Commissioner Simpson at Brisbane on 20 July 2022 in matter number U2022/2606 – permission to appeal refused.
Background
Ms Natalia Cabrera Moscoso (the Appellant) has lodged an appeal under s. 604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Commissioner Simpson issued on 20 July 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against ATCO Structures & Logistics Pty Ltd (the Respondent) pursuant to s. 394 of the Act.
The Appellant was employed by the Respondent as a Senior Financial Accountant from 12 August 2019 until the termination of her employment which took effect on 9 February 2022. On 6 December 2021, the Respondent introduced a group-wide policy, known as the ACTO Workplace Vaccination COVID-19 Standard (Australia) (Standard), that required its employees to be vaccinated against COVID-19 by 31 January 2022 or provide evidence of a medical or religious exemption. The Appellant was dismissed from her employment as she failed to be vaccinated by the due date or provide evidence of an exemption. The Commissioner ultimately dismissed the Appellant’s application finding that she was not unfairly dismissed in accordance with the Act.
The matter was listed for permission to appeal and Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. Notwithstanding the Directions, the Respondent filed submissions seeking to be represented by a lawyer in the appeal. Permission was refused on the basis that the Directions did not require the Respondent to file material and that in the event permission to appeal was granted, the Respondent could renew its application for legal representation.
The Appellant filed written submissions and made further oral submissions at the hearing on 13 October 2022. For the following reasons, permission to appeal is refused.
Decision Under Appeal
After considering the preliminary matters in s. 396 of the Act, the Commissioner stated that there was no dispute that the Appellant did not comply with the Standard and that the issue was whether ATCO’s policy gave rise to a reasonable and lawful direction to the Appellant. The Commissioner noted that the Appellant contended that it did not, and that ATCO said that it did, and that ATCO’s position was that the termination of the Appellant’s employment was not otherwise harsh, unjust or unreasonable.
The Commissioner set out the background, which in summary was that the Standard was developed based on a review of the risks of contracting and transmitting COVID-19 in the Respondent’s workplaces, and following discussions throughout November 2021 with affected employees, including the Appellant, regarding the introduction of the Standard. Under the Standard, all employees of the Respondent were required to be vaccinated against COVID-19 by 31 January 2022 unless they had a medical or religious exemption. Discussions continued with employees during December 2021 and January 2022 prior to the deadline to be vaccinated.
The Commissioner stated that the Appellant’s position during this time was that she considered any requirement to be vaccinated against COVID-19 unlawful and unreasonable, and she refused to comply with the Standard. No medical or religious exemption was provided to the Respondent by the Appellant. The Respondent wrote to the Appellant on 31 January 2022 in relation to her failure to comply with the Standard and conducted meetings on 7 and 9 February 2022, during which the Appellant was informed that her non-compliance would result in her dismissal and was given an opportunity to provide information that the Respondent should take into account before deciding whether to dismiss the Appellant. In the meeting of 9 February 2022, the Appellant confirmed that she would not comply with the Standard and was not able to provide a medical exemption, and that she understood the consequences to her employment. The Appellant’s employment was terminated on that date, and she was paid four weeks’ salary in lieu of notice.
The submissions and evidence as set out in the Decision can be summarised as follows. The Appellant was employed as Senior Financial Accountant on an annual salary of $96,045.00 and her duties included managing the Accounts Payable team (which consisted of two employees) and involved supervising, training, and coaching those employees, managing ATCO’s financial compliance matters, and performing account reconciliations. The Appellant accepted in her oral evidence that her role included supervision and a requirement she attend meetings in the workplace. The Commissioner noted that the Appellant accepted the policy was discussed with staff before implementation and that she told representatives of the Respondent on a number of occasions that she refused to be vaccinated against COVID 19. The Commissioner also noted that the Appellant accepted that she was terminated because of her refusal to comply with the Standard. Further, the Commissioner noted the Respondent’s submission that it was a term of the Appellant’s contract of employment dated 15 July 2019 that she: “comply with all lawful orders and instructions given by ATCO” (clause 3.4) and “comply with all policies” (clause 3.5). ATCO’s policies and directives included, at the time of the Applicant’s dismissal, the Standard.
In summary, the Standard required that all employees of ATCO become fully vaccinated against COVID-19 by 31 January 2022 or provide a valid medical or religious exemption (with any application for exemption on religious grounds to be provided by 17 December 2021). The Commissioner set out the Appellant’s contentions in relation to the Standard as follows. The Appellant contended that the Respondent failed to provide evidence of having performed due diligence upon issuance of the policy, including relevant legislation requested in regard to its Queensland operations, copies of risk assessments and management practices including adherence to the safe work hierarchy of controls, and also which Acts, sections, and subsections and clauses within those Acts are to be applied in tandem with the policy. The Appellant also contended that the Respondent failed to:
· provide legal grounds to prove validity of the policy when a government mandate had not been issued for the industry sector in the state of Queensland;
· re‐assess and update Risk & Hazard Identification and Control processes based on changing health advice before the policy effect date;
· adhere to the Australian Constitution Act 1901 (Sect 51(xxiiiA); and
· adhere to the Australian Constitution Act 1901 (Sect 109).
The Appellant also contended that the Respondent breached:
· the Privacy Act 1988 for demanding private medical information including vaccination status of any kind as part of condition of employment; and
· the Disability & Discrimination Act 1992 by discriminating in employment status and opportunity based on “vaccination” status.
The Commissioner noted the Appellant’s submission that the decision to implement the Standard was unreasonable because it had been made prior to staff consultation and her assertion that reference had been made by the Respondent’s Financial Controller and Company Secretary, Mr Woodley, to a decision to replace the Appellant before the 31 January date by which vaccination or proof of exemption was required, evidenced by an email sent to the Appellant by Mr Woodley on 9 November 2021. Further, the Commissioner noted the Appellant’s contention that she had raised questions and concerns including in relation to failure by the Respondent to consult; COVID-19 vaccinations only being provisionally approved; lack of long-term evidence about vaccinations and risks not being properly assessed. The Appellant submitted that the Respondent failed to provide responses to the issues she raised, and this constituted a failure to consult. The Commissioner went on to note the Appellant’s contention that she requested a risk assessment and was provided with only part of the document and that in sites not subject to a government mandate, rapid antigen testing should be sufficient because the Omicron variant is less severe, and the Standard should have been modified to reflect this. The Appellant also contended that she should have been allowed to work from home.
The Commissioner then turned to summarise the Respondent’s submissions, including that the Standard was a lawful direction because:
a) a policy requiring mandatory COVID-19 vaccination is prima facie lawful because it falls within the scope of employment and there is nothing unlawful about becoming vaccinated;
b) safeguarding the health of employees and other persons in the workplace is an express purpose stated in the Standard, which is a lawful and reasonable reason for a policy; and
c) employers can be liable for the transmission of infectious diseases in the workplace and requiring COVID-19 vaccination amongst the employer’s workforce in response to such legal risk is not unlawful.
In relation to reasonableness of the Standard the Commissioner set out the Respondent’s submissions as follows:
a) The Standard was a reasonably proportionate response to the COVID-19 pandemic and was developed with respect to ATCO employees’ working environments (including given many ATCO employees are required to attend customer worksites);
b) The Standard was developed and implemented in response to identified work health and safety risks;
c) Employees were notified of the proposal to introduce the Standard on 21 October 2021 and consultation with employees, including the Appellant, occurred via discussions in meetings with managers and emails. In response to issues raised by employees, ATCO extended the deadline for compliance with the Standard from 1 January 2022 to 31 January 2022;
d) The implementation of the Standard on 9 November 2021 (and again in the variation issued on 6 December 2021) was expressly stated to be subject to consultation with employees and was amended to take into account matters raised by employees, including by extending the time for applying for a religious exemption under the Standard until 31 December 2021. The Commission has held that consultation steps taken after the implementation of a mandatory vaccination policy, but before the deadline for compliance, can satisfy an employer’s consultation obligations. ATCO continued to liaise with employees about the Standard and receive their feedback about the Standard. Following discussions with employees, ATCO continued to hold the view that the Standard was the appropriate means of mitigating the risk associated with transmitting or contracting COVID-19 at ATCO’s workplaces;
e) The Standard provided reasonable paid time off for employees to receive the COVID-19 vaccination;
f) The Standard was implemented after ATCO had spent substantial resources encouraging vaccination, by providing an incentive of $1,000.00 per employee to become vaccinated under the voluntary vaccination program; and
g) It was not possible for the Appellant to permanently work from home in lieu of being vaccinated, due to the seniority and other requirements of her position as Senior Financial Accountant.
The Commissioner also noted that the Appellant’s contract of employment required that she comply with lawful and reasonable instructions as a term of her continuing employment. Further, the Commissioner noted that it was not in dispute that the Appellant was not vaccinated and did not provide the Respondent with evidence of a valid medical or religious exemption. The Commissioner then set out submissions of the Respondent which can be summarised as follows. Firstly, the Respondent said that it did consult with employees and that correspondence with the Appellant did not disclose in any way that she was dissatisfied with the information provided by the Respondent. The Respondent also said that any further request for information was not made by the Appellant until after the time for compliance with the Policy had passed on 31 January 2022. Secondly, The Respondent said that the Standard was introduced following a risk assessment, conducted by qualified persons and even if the risk assessment was not perfect the Respondent was entitled to rely on it.
Thirdly, the Respondent said that the submissions of the Appellant in relation to the comments of Mr Woodley with respect to succession planning, were not put to any witness in cross-examination and if the Appellant had decided to be vaccinated there would have been no need for succession planning. Fourthly, the Respondent submitted that the Appellant’s senior position, reflected by her salary, meant that working from home was not an ideal or efficient arrangement on an ongoing basis and it was reasonable for the Respondent to require the Appellant’s role to be performed in the office. Further, the Commissioner noted the Respondent’s submission that Mr Cunningham in his evidence for the Appellant, had contended that the religious exemption in the standard is not consistent with religious beliefs generally, in circumstances where the Appellant did not raise any issue of religious exemption in her employment.
In his consideration of the matters in s. 387 of the Act, the Commissioner found that the Respondent’s direction that the Appellant be vaccinated or provide a valid exemption by 31 January 2022, was a lawful and reasonable direction with which the Appellant was required to comply. The Commissioner also found that the Appellant indicated that she was not vaccinated and did not have a medical exemption and on 9 February 2022 again confirmed that she did not intend to become vaccinated against COVID-19, thereby indicating that she would not be complying with the Respondent’s direction. The Commissioner also concluded that in all the circumstances, the Respondent was entitled to maintain the requirement that the role be performed in the office.
The Commissioner went on to find that the Appellant’s refusal to comply with the Respondent’s direction was a valid reason for dismissal and that the Appellant’s position that she would not be vaccinated meant that the Respondent could not provide her with further work. The Commissioner rejected the Appellant’s submission that she was not afforded sufficient time to consider her position and that the Respondent’s consultation process was flawed and predetermined, finding that a consultation occurred, and the Appellant was afforded appropriate opportunities to be informed before making a decision as to whether she would be vaccinated. Finally, the Commissioner noted that the submissions of the Appellant in relation to the Australian Constitution and Disability & Discrimination Act 1992 were not developed during the hearing and that there was no basis to regard either submission as undermining a conclusion that the Respondent had a valid reason for dismissal. Based on these conclusions, the Commissioner was satisfied that Respondent had a valid reason for dismissing the Appellant.
The Commissioner considered that the Appellant was made aware of the Standard in months leading up to its implementation, and that if she was not vaccinated by 31 January 2022, her employment may be terminated. Further the Commissioner considered that the Appellant had and took the opportunity to respond to the reasons for her dismissal indicating her opposition to the introduction of the policy. On this basis the Commissioner was satisfied that the Appellant was notified of the reason for her dismissal and had a sufficient opportunity to respond as required by ss. 387(b) and (c). In relation to s. 387(d) the Commissioner found that the Appellant had a support person present and that her partner, Mr Cunningham, attended meetings with her in that capacity. As the Appellant was not dismissed based on unsatisfactory performance, s. 387(e) was not considered by the Commissioner to be relevant.
The Commissioner considered ss. 387(f) and (g) together and concluded that the Respondent is a large employer with a well-resourced human resource management department, undertook an extensive process to inform staff about the Standard and consulted with the Appellant in relation to this. In relation to s. 387(h) the Commissioner noted that the Appellant’s period of employment was not particularly long and that during the course of the hearing the Appellant advised that she had obtained other employment. There was evidence that the Appellant commenced that employment on 20 March 2022 and the remuneration for the new employment was $80,000.00 per annum plus superannuation. The Commissioner also said in relation to this matter:
“[64] The Applicant’s partner made a closing oral submission on the Applicant’s behalf that she did not press for a remedy of reinstatement or compensation but instead a finding that the dismissal was unfair. Whilst I appreciate the Applicant was self-represented and therefore did not have the assistance of a lawyer or paid agent to properly appreciate what may flow from making such a submission, the very fact of the submission having been made during closing raises a question as to whether it would have been necessary to consider the substantive merits of the matter at all had the submission been made at an earlier stage.”
Having weighed these matters, the Commissioner concluded that there was a valid reason for the terminating the Appellant’s employment and that the Respondent did so in accordance with a fair process. Accordingly, the Commissioner found that the Appellant’s dismissal was not unfair and ordered that the application be dismissed.
Grounds of appeal
The grounds of appeal are not clearly stated. In the Appellant’s F7 – Notice of Appeal the following complaints can be discerned:
· The Appellant’s representative (Mr Cunningham) was interrupted and “hurried up” during the hearing leading to items being missed or not discussed sufficiently;
· Evidence was accepted that was missing key information in relation to consultation;
· The Commissioner made incorrect statements – for example at [33] where it is stated that “The Applicant submitted in relation to the risk assessment that the task could be substituted and it is unnecessary to substitute the person”;
· The Commissioner failed to understand that lack of consultation prior to issuing the policy meant that the policy was unlawful and unreasonable from the date it was issued;
· The Commissioner failed to understand the meaning of “consultation”; and
· While the Respondents legal representative stated that the Appellant had made no mention of religion, this was referred to in the Respondent’s submission and the matter of religion and how it relates to violation of privacy, discrimination and “a complete lack of understanding and consultation with people regarding faith-based beliefs and how they are legally protected” will be further discussed by the Appellant in the appeal.
In an outline of submissions advanced by the Appellant in the appeal, the following points are set out:
· The matter is of major general importance relating to genetic and medical privacy of all individuals;
· Factual errors concerning chronological markers critical to compliance and legality;
· Factual errors due to misinterpretation of definitions of words, substitution and / or alteration of words in statements;
· Error in understanding and application of previous case decisions made by the FWC regarding similar matters and utilising the same legislation;
· Error in application of Acts – “Disability & Discrimination act, privacy act, human rights act, constitution act”;
· Error in application and / or understanding of WHS Act, Regulations, Guidelines, documentation and tools;
· Misunderstanding of International Standardisation Organisation requirements
· Distraction and interruption of parties during hearing leading to insufficient explanation of materials or even complete lack of explanation of points
· Failure to recognise the importance of lack of supporting documentation and reports from subject matter experts
The Notice of appeal states in relation to public interest:
· The fact that the termination was unreasonable based on the ground of lack of consultation prior to implementation make it both unlawful and unreasonable;
· It is a matter of public interest that private medical information including genetic and health information not be used to violate human rights;
· Matters such as this degrade the efficacy of the “Privacy Act, Disability & Discrimination Act as well as the Constitution Act”;
· Matters such as this also degrade the very basis of the WHS Act (the very Act on which corporations claim to be utilising for the health and wellbeing of their employees);
· In the appeal hearing the Appellant’s representative will be elaborating more on this due to being rushed and hurried up in the initial hearing; and
· Lack of proper processes to engage with employees prior to issuance of policies that violate basic human rights such as privacy and anti-discrimination presents itself in a manner where corporations can make any policy and have legal teams “work around the law” to make it possible for them to implement whatever they desire. It will end up in clogging up the courts and tribunals systems and wasting taxpayer dollars on matters that should not need to be argued based on basic human rights charters and legislation.
For convenience we have distilled the Appellant’s contentions into the following grounds of appeal:
1) The Commissioner denied the Appellant procedural fairness because of the manner in which he conducted the hearing (the procedural fairness ground);
2) The Commissioner erred by finding that the Respondent had met its obligations to consult in relation to the Standard and by failing to find that the Standard was not a lawful and reasonable direction because of failure by the Respondent to consult in relation to its implementation (the consultation ground);
3) The Commissioner misapplied the Workplace Health and Safety Act, Regulations, Guidelines, documentation and tools including the risk assessment process and outcomes (WHS Act ground);
4) The Commissioner failed to consider that the Standard infringed various statutes described as “Disability & Discrimination act, privacy act, human rights act, constitution act” and that the Appellant’s contract of employment was signed before the Standard was implemented and she could therefore not be required to comply with it (the legal error grounds); and
5) The Commissioner made various errors of fact.
In submissions at the hearing of the appeal, in relation to the procedural fairness ground Mr Cunningham for the Appellant contended that there were times during the hearing when he was told to move on, and this threw Mr Cunningham off his train of thought. With reference to the consultation ground, the Appellant emphasised that consultation about the Standard occurred after and not before the fact of its implementation. The lack of consultation was said to render the implementation of the Standard unreasonable. It was also contended that the failure of the Respondent to consult meant that the Standard should never have been implemented. In relation to the WHS Act ground, the Appellant referred to the risk assessment process said to have been undertaken by the Respondent. The Appellant submitted that the Respondent did not produce records of “toolbox sign-offs”, data, assessments of air flow and other relevant issues and that that documentation needed to be dated and issued before the Standard was implemented given that the Respondent’s quality assurance processes and certification.
The Respondent submitted that there was no public interest in permission to appeal being granted, no disharmony with other decisions of the Commission and no significant error in the Decision at first instance. The Respondent’s submissions can be summarised as follows. Firstly, the Respondent submitted that there was no utility to the appeal, pointing to the Appellant’s statement at the hearing that neither reinstatement nor compensation was sought and that the Appellant sought a form of declaration that the termination of the Appellant’s employment was not lawful and reasonable due to the policy not being lawful and reasonable.[2] In support of this contention, the Respondent pointed to item 2.1 of the Form F2 Application where the Appellant set out the remedy she sought, as follows: “I am seeking for the policy of mandating vaccination to all employees by ATCO Structures & Logistics to be declared null and void and thus overturned currently and retrospectively.[3] The Respondent also pointed to the Transcript of proceedings asserting that there was no indication that Mr Cunningham was interrupted while making his submissions and referred to various parts of the Transcript where the Commissioner simply sought to clarify the Appellant’s submissions or indicate that he had read documents or identify documents or exhibits that Mr Cunningham was referring to.
The Respondent further submitted that the Commissioner’s Decision was consistent with the Full Bench Decision in Mt Arthur Coal, with respect to the consultation issue and matters relating to the Privacy Act. In relation to issues with respect to the application of disability, privacy and safety legislation and the Australian Constitution, the Respondent contended that the Appellant’s submission was unclear.
Principles on Appeal
An appeal against a decision to dismiss an unfair dismissal remedy application under s.604 of the Act is one to which s.400(1) of the FW Act applies.[4] Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[6] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[7] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[8] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[9]
Consideration
Permission to appeal
In this case, we are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that any reasonably arguable case has been advanced that the Decision of the Commissioner was attended by appealable error. We are of the view that the Appellants’ grounds of appeal are misconceived and comprise matters already addressed by the Commissioner at first instance. Further, we are of the view that the matters raised by the Appellant are not novel and the Decision is not disharmonious with other decisions of the Commission in relation to the same issues. We are also of the view that the legal issues raised by the Appellant have been conclusively determined by Courts and the Commission including at Full Bench level in numerous cases, so that further guidance from this Full Bench is not required. However, for completeness, we address the Appellant’s submissions as follows.
Procedural fairness ground
In relation to the procedural fairness ground, we observe that the Appellant pointed to nothing in the transcript of the first instance hearing to make good the assertion that Mr Cunningham was interrupted or “hurried up” during the hearing. Nor has the Appellant pointed to any item that was missed or that her representative was prevented from advancing on her behalf during the hearing. A fair reading of the transcript indicates that the Commissioner took time to explain to the Appellant and her representative Mr Cunningham, the distinction between submissions and evidence and the process of cross-examination.
Statements of evidence in the first instance proceedings were provided by the Appellant and Mr Cunningham and for the Respondent, by the Respondent’s Financial Controller Mr Woodley and its Human Resource Manager, Ms Kabel-Pluck. At the commencement of the hearing, Mr Cunningham was asked whether he required Mr Woodley for cross-examination, and said that he did not. Mr Woodley’s statement was received without objection on the basis that it was to be resubmitted in the form of an affidavit with no other changes. Other than correctly taking issue with the relevance of a question as to whether the Respondent had “issued deeds of release or non-disclosure agreements to any staff that chose not to be inoculated against COVID – 19” – to which the Respondent justifiably objected – the Commissioner did not intervene in Mr Cunningham’s cross-examination of Ms Kabel-Pluck. The transcript indicates that Mr Cunningham decided that he would address issues such as legal arguments about the Constitution and various statutes, in submissions, rather than cross-examination. Any guidance by the Commissioner in this regard was appropriate given that the legal arguments advanced by the Appellant were not matters that could appropriately have been the subject of cross-examination. There was no unfairness to the Appellant on this basis.
The transcript indicates that Mr Cunningham, with the assistance of the Appellant, spoke for extensive periods without interruption and that any questions the Commissioner posed were to clarify points with Mr Cunningham, to confirm that he understood a point being made in submissions or that the Commissioner had read the material filed by the Appellant and did not require further elaboration. At PN293, after Mr Cunningham had made lengthy submissions about the appropriateness of the risk assessment conducted by the Respondent, the Commissioner asked Mr Cunningham to take him to the nub of the Appellant’s argument. After hearing the argument, the Commissioner put the proposition to Mr Cunningham that essentially the Appellant’s submission was that there is not enough evidence to support the conclusion the Respondent reached in relation to implementing the Standard and then requested that Mr Cunningham move to his next point. Mr Cunningham continued his submission after that point, with no indication that the Commissioner’s summation was inaccurate. There is also no indication that the Commissioner hurried or interrupted the Appellant’s submission at first instance, and to the contrary, the Commissioner gave Mr Cunningham every opportunity to put the submissions and assisted Mr Cunningham in a manner that was entirely appropriate. The Commissioner also allowed part of the submission to be put by the Appellant.
For these reasons, we reject the procedural fairness ground. We also note that the Appellant advanced the same substantive arguments at first instance in her Form F2 Application and her submissions, as are now advanced in the appeal. In written submissions filed at first instance and in the appeal, the Appellant indicated that the arguments would be further developed in oral submissions. The arguments were either not developed in oral submissions or to the extent that they were, the Appellant’s representative simply restated propositions that have consistently been found by Courts and the Commission to be misconceived and/or erroneous and were properly rejected by the Commissioner. We find no error in the way the Commissioner dealt with these arguments which we now turn to consider.
The consultation ground
Mt Arthur Coal
In relation to the consultation ground, the Appellant referred to the Decision of a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[10] (Mt Arthur Coal) to support a submission that the Standard was unreasonable because of failure on the part of the Respondent to consult as required by the WHS Act. The Commissioner rejected that submission, and in our view, his conclusion in relation to this matter involved no error. We accept, for reasons set out below, that the Commissioner did not fully engage with the Appellant’s submission in relation to the consultation issue. However, this did not involve significant error that affected the outcome of the matter and the conclusions reached by the Full Bench in Mt Arthur Coal do not support the Appellant’s submissions with respect to several grounds of the present appeal. To explain our reasons for this conclusion, it is necessary to highlight aspects of the Decision of the Full Bench in that case.
It is first necessary to note that that the Full Bench in Mt Arthur Coal was dealing with a dispute arising under a dispute settlement procedure in an enterprise agreement. The dispute concerned the announcement by Mt Arthur Coal of the implementation of a Site Access Requirement (SAR) on 7 October 2021, which required employees to be vaccinated and to provide evidence of compliance, by certain dates. The question for determination, as agreed by the parties, was whether the SAR was a lawful and reasonable direction with respect to employees at the Mine covered by an enterprise agreement. The Full Bench was not considering whether refusal to comply with the SAR was a valid reason for dismissal of an employee.
While it is generally the case that refusal on the part of an employee to comply with a lawful and reasonable direction of an employer, is a valid reason for dismissal, the question of whether the direction is lawful and reasonable, is not determinative of the broader issue of the validity of a reason for dismissal, required to be considered for the purposes of s. 387(a) of the Act.
In that context, the Full Bench in Mt Arthur Coal made some general observations about when a direction will be considered to be lawful and reasonable, relevantly including that:
· A lawful direction falls within the scope of the employee’s employment and includes instructions incidental to that work;
· Employees are only obliged to comply with employer directions that are lawful and reasonable;
· Reasonableness is a question of fact having regard to all the circumstances, and what is reasonable may depend, among other things, on the nature of the particular employment;[11] and
· The employer is not required to demonstrate that the direction issued was the preferable or most appropriate course of action or in accordance with best practice, or in the interests of the parties.[12]
The Full Bench went on to conclude that:
“Whether a particular direction is reasonable is not to be determined in a vacuum, it requires consideration of all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship. In NSW, this would include consideration of obligations in the WHS Act, which governs employment relationships in that jurisdiction. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis. The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction.”
The Full Bench noted that the WHS Act (NSW) required consultation with workers prior to the implementation of the SAR (a matter relating to work health and safety). Further, the Full Bench held that the WHS Act (NSW) required employees to be given an opportunity to contribute to the decision making process, to be provided with reasons, rationale and data supporting a proposal and to be provided with a copy of a risk assessment that had been undertaken by the employer rather than to simply comment on the ultimate question as to whether the SAR should be imposed.[13] The Full Bench also noted that what constitutes an opportunity for the party being consulted to present views will vary depending on the nature and circumstances of the case, and the right to be consulted does not involve a right for employees to veto a proposal.[14] We accept that the WHS (Qld) contains identical provisions in relation to consultation obligations.
Further, the Full Bench in Mt Arthur Coal made medical, scientific and epidemiological findings. Relevantly in the present appeal, those findings are:
“…
8. While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection.
9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.
10. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The Mine is clearly such a workplace.”[15]
The Appellant in the present case, provided no basis, either at first instance or in the appeal, for a departure from these findings. The conclusions of the Full Bench in Mt Arthur Coal in relation to whether the SAR was a lawful and reasonable direction, were in summary:
1. The SAR was prima facie “lawful” because:
· it fell within the scope of the employment, and
· there is nothing “illegal” or unlawful about becoming vaccinated.
2. Consultation obligations under the WHS Act arose prior to the implementation of the SAR and should have included the ultimate question of whether it should have been adopted.
3. Consultation obligations arose under the model consultation term in the relevant enterprise agreement, when a definite decision to implement the SAR was made.
4. The SAR was not a reasonable direction because the Company did not consult “as far as reasonably practicable” or in a “meaningful” way during an assessment phase, when the Company announced that it was “actively assessing whether to make vaccination a condition of entry to BHP worksites in Australia”.
5. The consultation process was deficient because:
· the decision to implement the SAR as communicated to employees was not open for reconsideration.
· employees were not given a reasonable opportunity to express their views and to raise work health or safety issues, or to contribute to the decision-making process relating to the introduction of the SAR;
· employees were not provided with information relating to the reasons, rationale and data supporting the proposal;
· employees were not given a copy of the risk assessment or informed of the analysis that informed that assessment; and
· in effect, employees were only asked to comment on the ultimate question: should the Site Access Requirement be imposed?
6. The inadequacy of the consultation with employees prior to announcement of the SAR is relevant to its reasonableness for the purposes of determining whether it was a lawful and reasonable direction.
7. The employer’s authority to issue the direction in the form of the SAR was not derived from the WHS Act nor any industrial instrument, but from the exercise of an implied contractual power to direct.
8. No concluded view was expressed on whether a failure to comply with the statutory duties to consult in the WHS Act, goes to the lawfulness of a direction but such failure plainly goes to reasonableness.
9. The relevance of a failure to consult to the assessment of the reasonableness of a direction is not determined by the likelihood of the success of further consultation, it is sufficient if the failure to consult denied the Employees the possibility of a different outcome.
10. The Full Bench did not express a concluded view about whether the employer had breached its obligations under the Privacy Act.
11. The right of employees to bodily integrity was not violated by the terms of the SAR but the practical effect of the SAR to apply pressure to employees to surrender their bodily integrity was relevant to an assessment of the reasonableness of the SAR.
12. Factual propositions established on the evidence including those relating to the seriousness of COVID – 19 and the effectiveness of available vaccinations are also relevant to the reasonableness of the Site Access Requirement, particularly in relation to the protections offered by the COVID-19 vaccination.
13. Reasonableness is a question of fact having regard to all the circumstances including the nature of the particular employment, the common practices that exist and the general provisions of any instrument governing the relationship.
14. There were a range of considerations that otherwise weighed in favour of a finding that the SAR was reasonable including that:
· It is directed at ensuring the health and safety of workers of the Mine.
· It has a logical and understandable basis.
· It is a reasonably proportionate response to the risk created by COVID-19.
· It was developed having regard to the circumstances at the Mine, including the fact that Mine workers cannot work from home and come into contact with other workers whilst at work.
· The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time.
· It was only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the Mine.
Also of significance in the present case, was the argument considered by the Full Bench as to whether the WHS Act prohibits or renders unlawful, or otherwise invalidates a direction issued by an employer without complying with the consultation obligations in the WHS Act.[16] the conclusion of the Full Bench on this question was that a failure to consult in accordance with the WHS Act does not have the effect of invalidating a direction issued pursuant to an implied contractual power. In this regard, Mt Arthur Coal was a case where there was no public health order mandating vaccination, as is the present appeal.
The Full Bench decision in Mt Arthur Coal was handed down on 3 December 2021, at or around the time that the events which gave rise to the Appellant’s dismissal were occurring. The first instance hearing in the present case was held on 23 July 2022. Notwithstanding our observations about distinctions between the consideration in the context of a dispute application and an unfair dismissal application, the medical, scientific and epidemiological findings of the Full Bench in Mt Arthur Coal were both relevant and directly applicable on the Commissioner at the time the first instance hearing in the present case was held and the decision released, and the conclusions of the Full Bench in that case continue to be relevant. There is no basis for this Full Bench to depart from those conclusions.
Evidence of consultation in the present case
In the proceedings before the Commissioner, the Respondent provided significant evidence of consultation related to the decision to implement the Standard. However, we note that the email dated 21 October 2021 from the CEO of the Respondent, tendered by Ms Kabel-Pluck, said to confirm an announcement made on a streamed “Town Hall” meeting, indicates that the decision to implement the Standard had already been taken. The email does not appear to be a “proposal” as asserted by Ms Kabel-Pluck. While this was highlighted in the submissions made by Mr Cunningham,[17] on behalf of the Appellant, the alleged lack of consultation was not put to any of the Respondent’s witnesses in cross-examination. We also note that countering this issue, was evidence from Ms Kabel-Pluck that prior to the announcement, there was a program of encouragement and facilitation for employees to become vaccinated. Further there was evidence that following the 21 October announcement, there were discussions between managers and employees, including at team meetings, in relation to the Standard. Mr Woodley gave evidence of these discussions with his team, including the Appellant.
There was also evidence before the Commissioner of contextual matters that informed the decision by the Respondent to implement the Standard. These included that from mid to late 2021, several of the Respondent’s construction and infrastructure customers and partners, including the Queensland Department of Education and Queensland Health, required all visitors to their offices or on sites where they worked, to be fully vaccinated against COVID-19 before they could attend the site. Ms Kabel-Pluck’s evidence was that although the Appellant did not attend sites, she was required to attend internal meetings with relevant stakeholders including construction managers, who may also be meeting with clients or construction partners. Further, evidence was given of a risk assessment conducted by the Respondent identifying offices (including the office where the Appellant worked) as high-risk environments in respect of COVID-19 transmission because they are closed with mechanical ventilation and limited windows or natural air flow. Further, the evidence was that offices were frequently visited by transport providers and other third parties, and that even with controls other than vaccination, the risk remained “medium high”.
The Standard was not formally introduced until 8 November 2021 and there was evidence that discussions with employees continued after that date. In this regard, Ms Kabel-Pluck gave evidence of changes to the Standard implemented following consultation with employees, including the compliance date being extended from 1 January 2022 (as initially proposed) to 31 January 2022. The Commissioner noted the Respondent’s submission that the Commission has held that consultation commenced after the implementation of a mandatory vaccination policy, but before the deadline for compliance, can satisfy the employer’s consultation obligations.[18] Mr Woodley and Ms Kabel-Pluck also tendered evidence of direct communication with the Appellant between 21 October 2021 when the Standard was announced and 31 January 2022, the date by which compliance was required. That evidence establishes that the Appellant was aware of the Standard and its requirements from the outset. In the proceedings at first instance, Mr Woodley tendered emails he exchanged with the Appellant about the Standard in which the Appellant asked: “What are the consequences of an employee having legitimate health concerns on an experimental vaccine, but not able to get either a medical nor a religious exemption. Please advise.” Mr Woodley’s response was that such persons may be stood down and that locally, this may mean that tough choices had to be made if positions were not aligned.
Mr Woodley also tendered an email to the Appellant dated 9 November 2022, in which he stated his understanding that based on conversations to date, she was refusing to be vaccinated and that he sought confirmation of her position in this regard, so that the Respondent could plan for “a worst-case scenario”. Mr Woodley’s email informed the Appellant that he needed to commence recruitment for a replacement for her position the following week and requested that the Appellant advise if her circumstances or position in relation to vaccination changed. The Appellant responded by email on 14 November 2021, informing Mr Woodley that she intended to take the full time available to decide whether she would comply with those requirements.[19] The Appellant emailed the Respondent on 4 January 2022 raising questions in relation to:
· Citations of Acts or sections the Standard referenced with regards to Queensland;
· Whether the Respondent would be liable for any injury the Appellant suffered if she chose to take “this experimental therapy”; and
· Seeking written confirmation that the Appellant’s services would no longer be required after 31 January if she decided not to take the “experimental therapy”.
Ms Kabel-Pluck responded to the Appellant’s email on 6 January 2022 advising that: the Standard came from ATCO Group Canada and was a response to the ongoing pandemic and the Respondent’s responsibility to provide a safe place of work. In relation to the Appellant’s question about liability for injury, the response was that the Respondent was requiring approved vaccinations to be taken, would not be liable for injury and that the Appellant should seek advice about different options for vaccination from her doctor including in relation to whether she would qualify for medical exemption and that the Australian Government had announced the development of a no-fault claims scheme to reimburse individuals for moderate to significant impact following an adverse reaction to an approved vaccine. Ms Kabel-Pluck further advised that if the Appellant was not fully vaccinated by 31 January 2022, she would be placed on leave without pay while the Respondent “worked through” the process with her and that she would be provided with information in writing as required. The Appellant did not respond to this email and nor did she seek further information.
Mr Woodley said that the Appellant subsequently informed him on 9 or 10 January 2022 (prior to the 31 January 2022 date which had been extended by that time from 1 January) that she did not intend to get vaccinated against COVID-19 and did not believe that the Respondent could require her to do so. Mr Woodley’s evidence on this point was not contradicted. The Appellant apparently confirmed her position by email sent to Ms Kabel-Pluck on 10 January 2022 stating that she would not be “taking the vaccine”. There is no evidence of any further communication from the Appellant prior to 31 January 2022, the date for compliance with the Standard.
The Appellant did not request any further information until 7 February 2022 when she attended a meeting, with Mr Cunningham as her support person and Mr Cunningham requested information about the basis of the risk assessment conducted by the Respondent, the standards that were used to conduct it and to be provided with a copy of the risk assessment. The Respondent provided parts of the risk assessment said to be relevant to the Appellant and her representative.
Conclusion in relation to consultation ground
We accept that the Appellant asserted in the first instance hearing that, based on the Decision in Mt Arthur Coal, the Standard was unreasonable and should not have been implemented, because the Respondent determined to implement it prior to consultation. We also accept that the evidence before the Commissioner indicated that this may have been a valid criticism and that the decision to implement the Standard was made before the consultation process commenced, and that consultation focused on the operation of the Standard rather than the ultimate question of whether it should be implemented. The Commissioner set out the Appellant’s complaint in this regard at paragraph [23] of the Decision.
We observe that the Commissioner did not directly engage with the Appellant’s contention of unreasonableness based on flaws in the consultation process. This is evident from the Commissioner’s consideration of whether there was a valid reason for the dismissal, which framed the Appellant’s complaint about lack of consultation, as a complaint that the Appellant was not afforded sufficient time to decide whether to be vaccinated and that the consultation process was flawed and pre-determined. The Appellant’s complaint, although not clearly articulated, was that the effect of a failure on the part of the Respondent to consult in accordance with the WHS Act, meant that the Standard was not validly implemented and so that a direction to comply with it was not reasonable.
Notwithstanding our observation, about lack of engagement by the Commissioner with this submission, we are of the view that this was not a not a significant error in the decision-making process. The issue for determination was whether the Appellant’s failure to comply with the Standard was a valid reason for her dismissal rather than the reasonableness of the Standard per se. While the Respondent may not have consulted about the ultimate issue of whether the Standard should have been introduced, there was ample evidence of consultation between the announcement of the Standard and the date it commenced operation. Further, although the Full Bench in Mt Arthur Coal found that the WHS Act requires consultation before a decision on a matter affecting workplace health and safety is made, the Full Bench also found that the content of any specific requirement to consult is determined by the context[20] in which it arises and what amounts to consultation is inherently flexible.[21] The Full Bench in that case also concluded that the failure to consult denied employees an opportunity to influence the decision-making process and the possibility of a different outcome. On the facts in that case, the Full Bench was not satisfied that consultation could not possibly have produced a different result. As we have previously noted, Mt Arthur Coal concerned a dispute, which was notified before the SAR came into effect and was dealt with on an expedited basis.
In the present case, the facts are significantly different. The evidence before the Commissioner was that the Appellant had from 21 October 2021 when the introduction of the Standard was announced (including the essential detail of the vaccination requirement), until 31 January 2022 when she was required to comply, to raise any issues she had with the Standard. Even if it is accepted that the details of the Standard were not known until 9 November 2021, the Appellant still had a considerable period in which to raise any issues she had with the Standard. The Appellant raised issues in the form of questions, on 4 January 2022, and was provided with a response on 6 January. Thereafter, the Appellant raised no further issues until after the time for compliance with the Standard had passed, in full knowledge of the ramifications of her refusal to comply, about which she was informed well before the time for compliance. It was also the case that the Respondent had customer requirements for personnel attending at certain sites such as schools and hospitals, to be vaccinated, in contrast with the position in Mt Arthur Coal. Further, personnel required to attend those sites were interacting with other employees of the Respondent.
In the hearing before the Commissioner and in a hearing in relation to permission to appeal, the Appellant has not raised any issue that could reasonably have produced a different result with respect to the implementation of the Standard, had the Respondent consulted with the Appellant prior to the announcement of the introduction of the Standard. For the reasons we develop in our consideration of other appeal grounds, there are no issues of substance raised by the Appellant and the legal propositions advanced by the Appellant are misconceived. Finally, we note that the requirement to consult about the introduction of a policy in relation to vaccination, does not obligate an employer to prove the safety and efficacy of vaccinations to employees and nor are employers required to establish these matters to the satisfaction of employees. As we set out below, the Commonwealth Government has established a rigorous and comprehensive system for the assessment and approval of vaccinations for use in Australia and employers are entitled to rely on advice and information provided by expert organisations within that system to establish the safety and efficacy of approved vaccinations as part of a workplace policy mandating vaccination.
Accordingly, we reject this ground of appeal.
The WHS Act Ground
Other than alleged lack of consultation as required by the WHS Act, which we have dealt with above, the Appellant also contended that the Commissioner did not have regard to deficiencies in the risk assessment undertaken by the Respondent. The Appellant also contended that the Respondent refused requests to provide the Appellant with the risk assessment, in relation to the Standard.
We reject this ground of appeal for the following reasons. While the risk assessment should arguably have been provided to employees prior to the decision to implement the Standard, or at least, as part of the consultation process, the Appellant did not raise any issue with the failure to provide the risk assessment, prior to the expiration of the time limit for compliance with the Policy. Secondly, while extracts were provided to the Appellant prior to her dismissal, the full risk assessment was tendered by Ms Kabel-Pluck in her evidence before the Commissioner. No issue was taken with the risk assessment in the hearing before the Commissioner, or in the appeal, other than broad assertions of its inadequacy and that the documentation was “hearsay”. It was also contended by the Appellant that the risk assessment was not altered to reflect reduction in risk.
We do not accept those assertions. While not perfect (as the Respondent concedes) there was no evidence (other than mere assertion) to counter the evidence of Ms Kabel-Pluck that the risk assessment was undertaken by appropriately qualified persons and that it was reasonable for the Respondent to conclude the most effective way to manage the risk of COVID-19 being transmitted in the workplace, was vaccination. Consistent with the findings of the Full Bench in Mt Arthur Coal, it was reasonable for the Respondent to conclude that measures for controlling COVID-19 such as mask wearing, social distancing and Rapid Antigen Testing, do not provide a substitute for the constant protection offered by vaccines and that vaccination is the most effective and efficient way to combat risks associated with the virus. That the Appellant had not contracted COVID-19 and had taken no time off, is not to the point. As the Full Bench in Mt Arthur Coal observed, herd immunity will never be achieved and while vaccination reduces the overall risk of infection, there is still a risk that an unvaccinated person will be infected and when an unvaccinated person is infected, there is no control in the form of vaccination against the risk of serious infection or death.[22] The Appellant was dismissed on 9 February 2022. The relevant circumstances that the Commissioner was required to consider are those that existed at the time of the dismissal.[23] There was no evidence either at first instance or in the appeal, that risks associated with COVID-19 had reduced at that time to the extent that the Standard should have been amended.
In relation to the Appellant’s submissions about failure by the Respondent to conduct a range of processes under the WHS Act, we note that processes referred to by the Appellant – such as a risk assessment and toolbox meetings – are not mandated by the WHS Act to be conducted in a certain way. Rather, the WHS Act requires that a person conducting a business or undertaking consult about assessing risk. We do not accept the submission that the fact that evidence about signoff on the risk assessment at toolbox meetings or the underpinning analysis for the risk assessment was not tendered, invalidates the risk assessment. The time for the Appellant to request those documents was in the considerable lead time before the Standard was implemented.
We also note for completeness that the safety and efficacy of COVID-19 vaccinations are not an appropriate subject for a risk assessment. In this regard, employers are not required to provide scientific or medical advice and information about the properties of vaccinations approved for use in Australia. A risk assessment is more appropriately directed at risks associated with controlling and minimising the transmission of the COVID-19 virus and the impact on workers of carrying or contracting the virus. While the Appellant’s contentions about the alleged inadequacy of the risk assessment conducted by the Respondent are difficult to comprehend, to the extent that the Appellant contended that the risk assessment was deficient because it did not deal with the safety and efficacy of the vaccinations approved for use in Australia, we reject the submission. It is convenient to deal with the Appellant’s submissions on the safety and efficacy of COVID-19 vaccinations at this point, although those submissions have relevance to other appeal grounds.
The contention that COVID-19 vaccinations are “provisionally approved” and that this indicates that there is a safety or efficacy issue with the vaccinations, is without merit. Australia has a comprehensive and rigorous regime for the assessment and approval of therapeutic goods. The Therapeutic Goods Administration (TGA) is responsible for regulating the supply, import, export and manufacturing and advertising of therapeutic goods. The TGA has approved COVID-19 vaccinations for use in Australia. Provisional approval means that COVID-19 vaccinations, can lawfully be administered in Australia and that the TGA has decided that the benefits of receiving the vaccine outweigh the risks of contracting the virus and that it is satisfied of factors including the safety, quality and effectiveness of the vaccine have been satisfactorily established for its intended use. The fact that a vaccine is provisionally approved does not make it experimental. In our view, the Appellant was entitled to rely on this approval and was not obligated to conduct a risk assessment in relation to the employees taking an approved vaccine, regardless of whether the approval is described as “provisional”.
It is also reasonable for the Respondent to have relied on the advice of the Australian Technical Advisory Group on Immunisation (ATAGI) in deciding to implement the Standard. As Colman DP said in Jovan Jovic and Filip Markovic v Coopers Brewery Limited:[24]
“[39] First, it is a matter of public record and a notorious fact that ATAGI is an expert body whose role is to provide evidence-based advice on the administration of vaccines to the Commonwealth, and also to the general public. ATAGI’s fifteen members hold senior positions at major universities, hospitals and research institutions around the country. ATAGI’s status as an expert body that provides advice to government and the public cannot seriously be doubted and indeed the applicants did not seek to impugn that status.
[40] Secondly, ATAGI has been continuously evaluating the epidemiological state of the country in respect of COVID-19 at its weekly meetings and updating the advice that it provides to the public on its website. Its advice has therefore remained current. I note that the formulation of ATAGI’s advice about the effect of vaccines on transmission of the virus changed over the relevant period. In updates from September to December 2021 ATAGI stated that vaccination was an intervention to ‘prevent infection, transmission and severe disease’. A statement on 24 December 2021 said that booster doseswere ‘likely to increase protection against infection with the Omicron variant’. Then on 17 January 2022, an ATAGI update stated that vaccination ‘prevents serious disease and death, and reduces disease transmission’. One would expect of an expert advisory body that the content, formulation and emphasis of its advice would change in response to its ongoing assessment of the available evidence.”
It was reiterated by the Full Bench in Mt Arthur Coal that all COVID-19 vaccinations currently available in Australia are safe and any adverse effects are usually mild and that there is a much higher risk of serious complications or death from acquiring COVID-19. It is not a matter for the Commission to question the opinions of expert bodies such as the TGA and ATAGI. When the opinions of expert bodies charged by the Australian Government with ensuring the safety of vaccines are considered, it is reasonable and unsurprising that a risk assessment with respect to COVID-19 in a workplace would result in a conclusion that the most effective control is vaccination. In this regard we note the duties under the WHS Act of a person conducting a business or undertaking, including to ensure the health and safety of workers, so far as is reasonably practicable.
Accordingly, there is no error in the Commissioner’s Decision in relation to this ground of appeal concerning his acceptance of the Respondent’s risk assessment and rationale for implementing the Standard.
Legal error
The Appellant did not establish any error in the way that the Commissioner considered the various legal issues raised at first instance. We agree with the Respondent’s submission that those issues were not clearly articulated by the Appellant, and we do not accept the Appellant’s submission that the Commissioner’s conduct of the hearing prevented the arguments from being pressed. The reality is that the legal arguments advanced by the Appellant are untenable. There is no basis for the contention that the Standard infringed any legislation, either at State or Federal level in relation to discrimination.
The Appellant did not provide any submissions in relation to how it is said that the Standard is discriminatory. Vaccination against COVID-19 (or the choice not to be vaccinated) is not a protected attribute under any law relating to discrimination. While the Appellant has a right to refuse to be vaccinated, the exercise of that right is not protected by disability or anti-discrimination law. In any event, the Standard provides for persons who may be suffering from a medical condition impacting their ability to be vaccinated to seek an exemption. We further note that the Appellant did not advance an argument, either at first instance or on appeal, that she sought an exemption based on her religious belief, leaving aside the question of whether the refusal of an exemption on that ground would constitute discrimination. The Appellant referred in submissions to the “Disability & Discrimination Act”. Assuming that the intention was to refer to the Disability Discrimination Act 1992 there is no evidence or submission at first instance or in the appeal as to the Appellant suffering from a disability or that she was discriminated against on any ground, much less an attribute protected by any law relating to discrimination. Further, being vaccinated or unvaccinated is not a protected attribute under discrimination legislation.
In relation to the Appellant’s submissions invoking unspecified human rights legislation, we observe that the framework of human rights protections in Australia is found in the Constitution, common law and legislation passed by the Commonwealth or State parliaments. There is no general applicable human rights act. Rather, the Human Rights Commission Act details the functions and powers of the Australian Human Rights Commission which include functions conferred on the Human Rights Commission by federal discrimination legislation in relation to age, disability, race and sex and which gives effect Australia’s obligations under international covenants establishing rights for various groups. The Appellant’s submissions provide no basis for asserting that the Standard violated her human rights, and the Commissioner was correct to disregard this contention.
The Standard implemented by the Respondent does not force the Appellant to do anything. Vaccination against COVID-19 is not medical experimentation and the Appellant had the right, which she exercised, to refuse to be vaccinated. As has been observed in many decisions of the Commission in relation to arguments of the kind advanced by the Appellant, an employee who is faced with a choice between complying with an employer’s lawful and reasonable direction to become vaccinated against COVID-19 and provide proof of vaccination status, or being excluded from the workplace, has the right to refuse to comply with that direction. It is well established that this is a choice – albeit a difficult choice – notwithstanding that the employee is subject to economic duress by virtue of being liable to be dismissed for non-compliance. It is also well established that making a difficult choice in this regard does not vitiate consent to be vaccinated.
The Appellant’s contention that the Standard violates her rights under the Privacy Act is misconceived. The Privacy Act and Australian Privacy Principles provide for employees to consent to providing their sensitive information and for that information to be collected where that information is reasonably necessary for, or directly related to, one or more of an employer’s functions or activities. By agreeing to comply with the Standard, employees consent to the collection of the vaccination information. For reasons we have set out above, the Appellant was free to decline to provide the required information with the result that she was in breach of a lawful and reasonable direction. While this is a difficult choice, it involves no breach of the Privacy Act. We also note that the Standard states that the Respondent has privacy policies and that information provided by employees will be kept in accordance with those policies and applicable privacy legislation. The Appellant did not seek to obtain further information from the Respondent about its privacy policies, either before or after the date for compliance with the Standard.
The Appellant’s submissions with respect to the Constitution are misconceived. Section 109 of the Constitution provides that: “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”. The Standard is not a law of a State which could give rise to an inconsistency. Further, the Appellant has not pointed to any law of the Commonwealth with which the Standard could be inconsistent even if it was a law of a State.
Further, as was found by the NSW Court of Appeal in Kassam v Hazzard[25] the argument that vaccination mandates are a form of medical conscription, and contravene s. 51(xxiiia) of the Constitution is “completely untenable”. Section 51(xxiiia) applies to the provision of medical services not their receipt[26] and no doctor or dentist is being forced to administer COVID-19 vaccinations. Special leave to appeal that decision was refused by the High Court on 12 August 2022.[27]
Finally, the Appellant’s contention with respect to her contract of employment is without merit. The contract of employment specifically provided that the Appellant was required to comply with all policies of the Group. That provision was not limited to policies applying at the time the contract was signed. Even if the Appellant’s contract of employment did not contain such a provision, the common law would imply in the contract, an obligation to obey reasonable and lawful directions of the employer. For the reasons we have set out above, the Standard was a lawful and reasonable direction and the Commissioner was correct in his conclusion in this regard.
We reject this ground of appeal and find that the Commissioner did not err by disregarding the legal arguments advanced by the Appellant at first instance.
Errors of fact
We discern two alleged errors of fact in the Appellant’s submissions. Firstly, the Appellant contends that the Commissioner made chronological errors in finding at paragraph [5] of the Decision that the Standard was introduced on 6 December 2021 when it was in fact, rolled out globally on 27 October and introduced in Australia on 9 November 2021. This error was said to have affected the Commissioner’s findings in relation to the time the Appellant had to consider her position and that the Respondent had met its consultation obligations under the WHS Act. We do not accept that submission. On a fair reading of the Decision overall, this was not a significant error and did not impact the Commissioner’s conclusions about consultation which we have found to be correct.
Secondly, the Appellant referred to the Commissioner’s observation about a submission made at the hearing that in relation to the risk assessment, the task could be substituted, and it is unnecessary to substitute the person.[28] In the appeal, the Appellant referred to the transcript of the first instance hearing and said that he did not make that submission and his submission was that you cannot substitute the person because the focus is on tasks, risks and hazards not people and you need to assess the risk for any person going in to perform the task. The section of the transcript referred to by the Appellant does not make clear what the Appellant’s submission was and to the extent the Commissioner did not accurately record the submission in his decision, any error was not material to the outcome.
Thirdly, for completeness we note the Appellant’s submission that the Commissioner did not have proper regard to the evidence that Mr Woodley was planning to replace her, before the time for compliance with the Standard had elapsed. In our view, the Commissioner was correct to disregard this submission on the basis that the email from Mr Woodley about succession planning was sent in the context of the Appellant making it clear that she would not comply with the Standard and Mr Woodley planning for the circumstance of the Appellant’s dismissal if she maintained that position. If anything, this is a further indication that the Appellant well knew the ramifications of maintaining her position in relation to compliance with the Standard, well in advance of her dismissal. The manner in which the Commissioner dealt with this matter does not involve error.
Accordingly, we reject this ground of appeal.
Conclusion
Finally, we note that the Appellant indicated in her Form F2 Application that she did not seek either of the remedies that the Commission is empowered to grant if it finds that a dismissal was unfair. This position was confirmed at the hearing before the Commissioner when the Appellant made clear that she sought a form of declaration that her dismissal was unfair because the Standard was an unreasonable direction. The appeal therefore lacks utility and this is a further basis for refusing permission to appeal. For the reasons set out above, and because we do not consider that the grant of permission to appeal would be in the public interest, s. 400(1) prohibits such permission being granted. Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr Cunningham, for the Appellant
Ms Kable, for the Respondent
Hearing details:
2022.
Sydney (by video via Microsoft Teams):
October 13.
[1] [2022] FWC 1904 (‘the Decision’).
[2] Transcript of hearing at first instance PN325.
[3] Appeal Book page 56; Form F2 Application filed by the Appellant on 24 February 2022.
[4] Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
[5] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
[6] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27].
[8] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[9] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[10] [2021] 310 IR 399; [2021] FWCFB 6059.
[11] Ibid at [68] – [70].
[12] Ibid [79] citing the observation of a Full Bench in Briggs v AWH Pty Ltd [2013] FWCFB 3316.
[13] Ibid at [174]
[14] Ibid at [108].
[15] Ibid at [29]
[16] Ibid at [84].
[17] Transcript PN197 – 202.
[18] In this regard, the Respondent’s submissions at first instance cited the decision of Anderson DP in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Australian Workers’ Union v ASC Pty Ltd T/A Australian Submarine Corporation[2022] FWC 1198 at [161] – [167].
[19] Statement of Darren Woodley – Annexure DPW – 4.
[20] Op. cit. at [113].
[21] Op. cit. a [108].
[22] Op. cit. at [60].
[23] CSL Limited T/A CSL Behring v Chris Papaioannou [2018] FWCFB 1005 at [77].
[24] [2022] FWC 1931.
[25] [2021] NSWCA 299
[26] Ibid at [38]-[39].
[27] [2022] HCATrans 131.
[28] Decision at [33].
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