QNurses First Inc v Monash Health

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FEDERAL COURT OF AUSTRALIA

QNurses First Inc v Monash Health [2021] FCA 1372   

File number: VID 610 of 2021
Judgment of: SNADEN J
Date of judgment: 3 November 2021
Date of publication of reasons: 5 November 2021
Catchwords:

INDUSTRIAL LAW – interlocutory injunction – direction of the Victorian Chief Health Officer requiring that healthcare workers be vaccinated against COVID-19 – employer gave a direction to all employees effecting vaccination requirement – certain employees unable or unwilling to meet vaccination requirement – certain employees requested consultation about vaccination requirement and alleged that no such consultation occurred – those employees subject to, or to be subject to, disciplinary action – disciplinary action alleged to be taken due to employees’ request for consultation – right to consultation under s 35 of Occupational Health and Safety Act 2004 (Vic) asserted to be a workplace right – alleged contravention or proposed contravention of s 340 of the Fair Work Act 2009 (Cth)

PRACTICE AND PROCEDURE – application for interlocutory injunction – whether prima facie case that respondent has contravened s 340(1) of the Fair Work Act – whether balance of convenience favours the grant of injunctive relief – application for interlocutory relief dismissed
Legislation:

Fair Work Act 2009 (Cth) ss 340, 341, 342, 360, 361, 570

Federal Court of Australia Act 1976 (Cth) s 23

Associations Incorporation Act 1981 (Qld)

Health Services Act 1988 (Vic)

Occupational Health and Safety Act 2004 (Vic)

Public Health and Wellbeing Act 2008 (Vic) ss 198, 199, 200

Cases cited:

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers’ Union (AMWU) & Anor v McCain Foods (Aust) Pty Ltd [2012] FCA 1126

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

Blackadder v Ramsey (2005) 221 CLR 539

Bullock v FFTSA (1985) 5 FCR 464

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd (2009) 184 IR 333

Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238

Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 43
Date of hearing: 3 November 2021
Counsel for the Applicants: Mr N Ferrett QC with Ms M Forrest
Solicitor for the Applicants: FWEL Pty Ltd t/a Worker Law
Counsel for the Respondent: Mr C O’Grady QC with Mr M Follett and Mr MP Garozzo
Solicitor for the Respondent: Victorian Government Solicitor’s Office

ORDERS

VID 610 of 2021
BETWEEN:

QNURSES FIRST INC

First Applicant

ANGELA KALLISTA

Second Applicant
AND:

MONASH HEALTH

Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

3 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The applicants' application for interlocutory relief contained in the originating application of 28 October 2021 be dismissed.

2.The costs of and pertaining to that application be reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

SNADEN J:

  1. The first applicant…

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Details
Case
[2021] FCA 1372
Decision Date

CaseChat Overview and Summary

QNurses First Inc and Monash Health were parties in a legal dispute which was heard in the Fair Work Commission. The crux of the case involved the mandatory COVID-19 vaccination requirements for healthcare workers imposed by Monash Health, in compliance with public health directions issued by the Chief Health Officer under the Public Health and Wellbeing Act 2008 (Vic). The applicants, QNurses First Inc, sought interlocutory injunctive relief to prevent Monash Health from enforcing these vaccination mandates on its employees, including nurses. They argued that the mandates infringed upon their rights and those of their members under the Fair Work Act 2009 (Cth).

The court had to determine whether the balance of convenience favoured granting interlocutory injunctive relief to the applicants. It considered the potential prejudice to the applicants if the mandates were enforced without the relief being granted, versus the prejudice to Monash Health and its employees if the mandates were temporarily halted. The court found that the applicants' case under the Fair Work Act was weak, and the potential prejudice to them could be adequately addressed by an award of damages if their case ultimately succeeded. Therefore, the court did not accept that the balance of convenience warranted the granting of the relief sought.

As a result, the application for interlocutory injunctive relief was dismissed. The court noted that the question of costs would be reserved for consideration at a later stage, in accordance with the preferences of the parties.

Orders

Orders of the court

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Background

Background to the litigation

At the conclusion of the hearing, the application for interlocutory relief was dismissed. Brief oral reasons were given, which the court undertook to perfect in the form of more expansive, written reasons. These are those reasons.BACKGROUND Monash Health is an entity established pursuant to the Health Services Act 1988 (Vic). It operates various public health services throughout Victoria, in connection with which it engages a large number of nursing employees. On 16 March 2020, the Victorian Minister for Health declared pursuant to s 198(1) of the Public Health and Wellbeing Act 2008 (Vic) that Victoria had entered a state of emergency. That declaration—issued in consequence of the COVID-19 pandemic—has been extended on numerous occasions pursuant to s 198(7) of that act. As at the date of these reasons, it remains in force until 11:59pm on 18 November 2021, at which point it (or some facsimile of it) is likely to extend yet further. Pursuant to that declaration, the CHO is empowered pursuant to ss 199 and 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic) to issue public health directions, the effect of which are binding upon persons throughout Victoria. One such direction—entitled the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 4)—came into effect at 11:59pm on 1 October 2021. Amongst other things, it required (subject to exemptions that needn’t be identified) that:(1)as soon as reasonably practicable after 1 October 2021, each healthcare operator in Victoria (including Monash Health) collect, record and hold COVID-19 vaccination information about the healthcare workers (such as nurses) that it engages to work on its premises;(2)healthcare operators in Victoria treat healthcare workers in respect of whom no such vaccination information is held as though they are unvaccinated; and(3)each healthcare operator in Victoria take all reasonable steps to ensure that, on or after 15 October 2021, healthcare workers that are not vaccinated against COVID-19 are not put to work at its premises. That direction has since been refined—most recently in the form of the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 10)—but the obligations outlined above have remained (and currently remain) to those same effects. Since the CHO’s direction was issued, Monash Health has taken various steps to inform its employees—including its nurses—of the steps that it intends to take in order to comply with it. On 5 October, it hosted an “online employee forum” during which it informed those present about the direction and its consequences (including that healthcare workers were required to be vaccinated by the identified deadline, after which they would not be able to continue working at Monash Health). On 11 October 2021, those sentiments were repeated in a more formal setting. Monash Health sent email correspondence to all of its employees which contained the following relevant passages (errors and emphasis original):…Monash Health is now providing all employees with a lawful and reasonable direction (the Requirements) to ensure they are able to enter and remain on the premises of Monash Health for the purposes of working at Monash Health when required to do so on or after 15 October 2021. The requirements are:By 15 October 2021, all employees must be able to provide evidence they have:Received at least their first dose of a COVID-19 vaccination; orAn appointment to receive at least their first dose by 29 October 2021;By 30 October 2021, all employees must be able to provide evidence they have:Received two doses of a COVID-19 vaccination;One COVID-19 vaccination and a booking for a second by 15 December 2021;By 16 December 2021, all employees at Monash Health must be able to provide evidence they have received two doses of a COVID-19 vaccination.…If you decide not to meet any of the Requirements, then you will have failed to comply with this lawful and reasonable direction. You will not be able to continue working in Monash Health from 15 October 2021 (inclusive), because the Acting CHO Directions will prevent you from being permitted to enter Monash Health’s premises for work whenever your work requires you to do so. Consequentially, you will be suspended on full pay, and a disciplinary procedure will commence, which may lead to the termination of your employment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the absence of evidence going to the parties’ financial positions, it is impossible to make any realistic assessment of how the granting or non-granting of interlocutory injunctive relief at this point will affect them. With that observation made, it seems to me that the balance of convenience in this case is relatively finely poised. Of greater significance for the applicants is that the court is unable to identify with any precision an impact upon them (or the other Relevant Employees) that couldn’t adequately be addressed by an award of damages in the event that their action were to succeed.CONCLUSION The applicants’ case under s 340(1) of the FW Act is, with respect, very weak (if it exists at all). The prejudice that the applicants (and those that they purport to represent) will endure in the absence of interlocutory relief is unclear beyond the obvious; and appears not to be of a kind that couldn’t be addressed by an award of damages at trial. I do not accept, then, that the balance of convenience warrants the relief that is now sought. Accordingly, the application for interlocutory injunctive relief was dismissed. Section 570(1) of the FW Act precludes the court from making an award of costs other than in limited circumstances. Nonetheless, the parties preferred that the question of costs be reserved for consideration at a later stage, which was a course that the court indulged.

Ratio Decidendi

Legal Principle Established

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