Romany Olson and Nykalas Boyd v Court Services Victoria
[2022] FWC 2491
•16 SEPTEMBER 2022
| [2022] FWC 2491 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Renee Steel; Lou Durantini; Natasha O’Donnell; Helen Tsiligiris; Gary Saunders; Daria Atkinson; Majella McGrath; Silvana Sanfilippo; Casey Atkinson; Joanne Atkinson; Rebekah Sinclair; James McCathie; James Stevenage; Mia Kulik; Romany Olson and Nykalas Boyd
v
Court Services Victoria
(C2021/8851; C2021/8913; C2021/8914; C2021/8915; C2021/8916; C2021/8917; C2021/8918; C2021/8919; C2021/8920; C2021/8921; C2021/8922; C2021/8923; C2021/8924; C2021/8925; C2021/8926; C2021/8928)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 16 SEPTEMBER 2022 |
Alleged dispute about a matter arising under an enterprise agreement.
On 24 December 2021, Ms Renee Steel, Mr Lou Durantini, Ms Natasha O’Donnell, Ms Helen Tsiligiris, Mr Gary Saunders, Ms Daria Atkinson, Ms Majella McGrath, Ms Silvana Sanfilippo, Mr Casey Atkinson, Ms Joanne Atkinson, Ms Rebekah Sinclair, Mr James McCathie, Mr James Stevenage, Ms Mia Kulik, Ms Romany Olson and Mr Nykalas Boyd (collectively, the Applicants) filed applications with the Commission pursuant to s.739 of the Fair Work Act 2009. The Applicants made their respective applications raising a dispute with Court Services Victoria (CSV) pursuant to clause 13 of the Victorian Public Service Enterprise Agreement 2020 (the Agreement).[1]
The matters in dispute stem from CSV’s proposal in late 2021 to introduce a COVID-19 vaccination policy. I conducted two conferences but they did not result in the dispute between the parties being resolved and during that process, CSV raised the question of jurisdiction. I have previously made Directions, subsequently amended, which have required:
· The Applicants to file and serve the question(s) they required the Commission to determine in this dispute and the order(s) they seek;
· CSV to file and serve submissions in support of its contention that the Commission does not have jurisdiction to deal with the dispute, together with witness statements (if any) and documentary evidence upon which it relies; and
· The Applicants to file and serve an outline of reply submissions, together with witness statements (if any) and documentary evidence.
Additionally, I directed the Applicants and CSV to indicate to my Chambers whether they sought to be heard on the matters raised by the material filed and served. As none of the parties advised that they wished to be heard, I have proceeded to determine the question of jurisdiction on the papers.
Resolution of Disputes between the parties
The Agreement’s term about settling disputes is clause 13, which relevantly provides:
“13. Resolution of Disputes
13.1 For the purposes of the clause 13, a dispute includes a grievance.
13.2Unless otherwise provided for in this Agreement, a dispute about a matter arising under this Agreement or the National Employment Standards set out in the FW Act, other than termination of employment, must be dealt with in accordance with this clause. To avoid doubt, a dispute about termination of employment cannot be dealt with under this clause.
…
13.12 Arbitration
(a) If the dispute has not been settled when conciliation has been completed, a party to the dispute may request that the FWC proceed to determine the dispute by arbitration.
(b) If a member of the FWC has exercised conciliation powers in relation to the dispute, the member must not exercise, or take part in the exercise of, arbitration powers in relation to the dispute if a party to the dispute objects to the member doing so.
(c) Subject to clause 13.12(d), the determination of the FWC is binding on the persons covered by this Agreement.
(d) A determination of a single member of the FWC made pursuant to this clause may, with the permission of a Full Bench of the FWC, be appealed.
13.13 General Powers and Procedures of the FWC
Subject to any agreement between the parties in relation to a particular dispute and the provisions of this clause, in dealing with a dispute through conciliation or arbitration, the FWC may conduct the matter in accordance with Subdivision B of Division 3 of Part 5-1 of the FW Act.”
(my emphasis)
Applicants’’ proposed questions for arbitration
The Applicants have outlined ten questions for arbitration, two of which contain a number of sub-questions.
The essence of CSV’s position on jurisdiction is that pursuant to clause 13.2 of the Agreement, the Commission is limited to arbitrating a dispute about matters arising under the Agreement. It submits that clause 13 of the Agreement does not extend to matters “arising in the course of employment”, and is therefore to be contrasted with the dispute resolution clause in the recent decision of the Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd (Mt Arthur Coal).[2] As outlined above, the terms of clause 13.2 of the Agreement limit the Commission’s dispute settling powers in this matter to disputes about matters arising under the Agreement or the National Employment Standards (NES).
CSV has submitted the Commission only has jurisdiction to determine Question 1 of the proposed questions. CSV submits that none of Questions 2-10 are in relation to matters arising under the Agreement and therefore, by virtue of operation of clause 13 of the Agreement and s.739 of the Act, the Commission has no jurisdiction to determine these matters.
I will deal with CSV’s jurisdictional objection by addressing each question in turn. As the questions engage with various clauses of the Agreement, it is useful to outline an overview of the principles that apply to the interpretation of an enterprise agreement. The Full Bench of the Commission in AMWU v Berri Pty Ltd[3] (Berri), drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd,[4] affirmed that the interpretation of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.[5]
Further, the correct approach was succinctly put by the Full Court of the Federal Court in WorkPac Pty Ltd v Skene[6] as follows:
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.” (citations omitted)
Question 1: Did CSV meet their obligations under Clause 11 of the Victorian Public Service Enterprise Bargaining Agreement 2020 (the Agreement) and the established internal Clause 11 procedures in relation to consultation for major change? Namely:
a. Did CSV send a Staff Information Pack to all staff to notify them that the CSV COVID Vaccination policy constituted a major change to the terms and conditions of employment for all staff, and that a Clause 11 process was to be undertaken pursuant to the established CSV procedures for a Clause 11 consultation?
b. Did CSV adhere to the minimum indicative timeframes set out in clause 11.6(c)(ii) of the Agreement?
c. Did CSV advise all staff they could submit alternative proposals, or give considered reasons to employees of why any alternative proposals (that were submitted) were not accepted, pursuant to Clause 11.6(b) of the Agreement?
d. Did CSV provide training to all staff and managers to assist them to understand and integrate the requirements of the new policy pursuant to Clause 11.5(c) of the Agreement?
CSV disputes that sub-questions (a)-(d) in proposed Question 1 set out the obligations imposed by clause 11 of the Agreement but concedes that the question as to whether CSV has complied with its obligation to consult in accordance with clause 11 of the Agreement could, in appropriate circumstances, be properly a matter for arbitration in accordance with clause 13 of the Agreement.
The Applicants contend that the Commission has jurisdiction to resolve a dispute as to whether consultation in accordance with clause 11 of the Agreement was undertaken by CSV.
I agree the Commission has jurisdiction in relation to Question 1. Clause 11 of the Agreement imposes certain obligations on CSV. The Applicants dispute CSV has complied with these obligations.
Question 2: Did CSV meet their obligations under Section 35 of Occupational Health and Safety Act 2004 (Vic) (OHS Act) in regard to consultation. Namely:
a. Did CSV follow their own published OHS Consultation Procedure pursuant to section 35(5) of the OHS Act?
b. Did CSV allow a reasonable timeframe to consult with staff, and take into account those views pursuant to section 35(3)(b) and 35(3)(c) of the OHS Act?
c. Did CSV give staff a reasonable opportunity to persuade CSV in relation to the decision to introduce mandatory vaccinations for all staff, pursuant to the Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (C2021/7023), concluding remarks paragraph 250?
d. Did CSV adequately consult with Health and Safety Representatives pursuant to section 35(4) of the OHS Act?
CSV submits that Question 2 relates to concerns about its compliance with obligations under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and not about a matter arising under the Agreement.
The Applicants submit the requirement to consult under occupational health and safety “regulation” is provided for under clause 74 of the Agreement. In particular, they say that clause 74.2 outlines the obligations regarding consultation on safety matters, including the requirement to comply with the OHS Act and the Occupational Health and Safety Regulations 2017.
The Applicants also rely on the VPS Occupational Health and Safety and Rehabilitation Common Policy (the Common policy), which they say is applicable to CSV and imposes the requirement to consult with staff pursuant to section 35 of the OHS Act and clause 74 of the Agreement. In particular, they rely on this statement, said to be within the Common policy:
“An Employee who is directly affected by a decision made or action taken pursuant to clause 74 may apply for a review of actions under the Employer’s review of actions policy or seek to resolve a dispute through the Resolution of Disputes procedure at clause 13 of the Agreement”
Question 2 and its sub-questions indicate that the Applicants dispute that CSV has met its duty to consult under s.35 of the OHS Act. The proposition of the Applicants that clause 74 of the Agreement imposes an obligation on CSV to consult with employees pursuant to s.35, and that it has failed to do so, is based on references to clause 74 in the Common policy. I do not accept this proposition because regardless of what it says, the Common policy does not form part of the Agreement. In any event, I observe that:
a)Clause 74.1(a) simply commits the parties to the “promotion” of a joint and united approach to consultation and resolution of OHS issues;
b)Clause 74.1(b) outlines the aspiration for the “ongoing development” of management systems and procedures;
c)The aspiration in Clause 74.1(c) is to improve “OH&S statutory requirements”;
d)Clause 74.2 does not outline the obligations regarding consultation, as submitted by the Applicants, and instead outlines a commitment to establish consultative mechanisms to address OH&S issues and ways in which an OH&S committee should operate; and
e)The balance of clause 74 does not deal with consultation obligation under s.35 of the OHS Act.
Accordingly, I am not persuaded that Question 2 and its sub-questions raise a dispute about a matter arising under the Agreement and therefore, I am satisfied the Commission does not have jurisdiction in relation to Question 2.
Question 3: CSV are required to meet their obligations under the Victorian Charter of Human Rights and Responsibilities 2006 (the Charter) pursuant to clause 7.5(b) of the Agreement, and pursuant to clause 8 of the VPS Code of Conduct. Has CSV lawfully derogated the rights of staff pursuant to clause 7 of the Charter, only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including:
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve?
CSV submits that Question 3 relates to concerns about its compliance with obligations under the Victorian Charter of Human Rights and Responsibilities 2006 (the Charter) and not about a matter arising under the Agreement.
Again, the Applicants have relied upon the Common policy, which they contend draws in the Public Administration Act 2004 (Vic) (PAA Act), which in turn gives rise to the VPS Code of Conduct, in which it is stated:
“• “Public sector employees ensure their own decisions, advice and policy development properly considers the human rights set out in the Charter and respects the human rights of others” (Section 8.2); and
“• “Public sector employees seek to protect the human rights of colleagues, other public officials and members of the Victorian community by raising concerns regarding circumstances that could breach those rights, and reporting any suspected breaches in accordance with procedures established by their public sector employer” (Section 8.4).
As I have observed above, the Common policy does not form part of the Agreement. Further, while clause 7.5 of the Agreement outlines that CSV will act in accordance with the Charter, it also states that obligations under the Charter do not form part of the Agreement.
Having regard to these factors, I am not persuaded that a dispute about compliance with the Charter is a dispute about a matter arising under the Agreement and therefore, I am satisfied the Commission does not have jurisdiction in relation to Question 3.
Question 4: CSV require all staff to sign a release of information disclaimer when disclosing their vaccination status to CSV. This disclaimer requires permission to share their details with the Department of Health and Human Services (DHHS) and other agencies for ‘workforce planning and vaccination program planning’. Does this contravene the Australian Privacy Principles and/or guidance issued by the Office of the Australian Information Commissioner on COVID-19 vaccinations and privacy obligations?
CSV submits that Question 4 relates to concerns about its compliance with alleged obligations under the Australian Privacy Principles and/or guidelines and is not about a matter arising under the Agreement.
The Applicants submit Question 4 is relevant to clause 11 of the Agreement because the proposal to introduce a COVID-19 vaccination policy is a major change to the privacy and confidentiality and collection of sensitive personal information of employees and therefore, a major change to ongoing terms and conditions of permanent employment.
I accept that employee concerns regarding privacy might arise during consultation carried out pursuant to clause 11 but I am not persuaded that a dispute about compliance with the Australian Privacy Principles and/or guidelines per se is a dispute about a matter arising under the Agreement. I am satisfied the Commission does not have jurisdiction in relation to Question 4.
Question 5: Pursuant to Clause 6.2 of the Agreement, government changes on balance cannot reduce employees overall pay and conditions. CSV have altered the positions of all staff to their prejudice by introducing a mandatory COVID vaccination policy and directions for all staff. Does this contravene clause 6.2 of the Agreement and section 340 of the Fair Work Act 2009?
Clause 6.2 states:
“No Employee will, on balance, have their overall pay and conditions reduced as a result of making this Agreement.”
CSV submits that Question 5, whilst making reference to clause 6.2 of the Agreement, has no connection to a matter arising under the Agreement. In particular, CSV contends clause 6.2 has no relevance to the introduction of a COVID-19 vaccination policy and where Question 5 seeks a declaration that CSV has contravened s.340 of the Act, CSV submits this is not a matter arising from the Agreement but if such a breach exists, instead it ought to be dealt with via the general protections provisions in the Act.
The Applicants appear to contend they have raised this question in response to an assertion by CSV that they should do so.
Reading clause 6 of the Agreement with the principles of interpretation outlined above in [8] and [9] in mind, I do not consider that the proposal to introduce a COVID-19 vaccination policy falls within the ambit of the pay, conditions and entitlements referred to therein. More particularly, the use of the words “as a result of making this Agreement” in clause 6.2 are determinative when considering Question 5 and I do not consider that the introduction of a COVID-19 vaccination policy comes within their meaning.
Accordingly, I am not persuaded that Question 5 raises a dispute about a matter arising under the Agreement and therefore, I am satisfied the Commission does not have jurisdiction in relation to Question 5.
Question 6: CSV have not implemented the least restrictive control measure to eliminate the risk of COVID transmission in the workplace as per the Worksafe Hierarchy of Controls, in this case being daily rapid antigen testing. In light of this, has CSV met their obligations pursuant to the OHS Act and statutory regulations?
CSV submits that Question 6 appears to relate to concerns about its compliance with obligations under the OHS Act and not about a matter arising under the Agreement.
The Applicants rely on the submissions they made in relation to Question 2 and again submit that CSV has not met the occupational health and safety obligations pursuant to clause 74 of the Agreement and relevant sections of the OHS Act, relying in particular on clause 74.1(c) of the Agreement.
I observe that clause 74.1 (c) falls within the “Objectives” section of clause 74, and states that “OH&S statutory requirements, including regulations and codes of practice/ compliance codes are minimum standards and will be improved upon where practicable” (my emphasis). This appears to commit the parties to the objective of improving upon OH&S statutory requirements where practicable. I am not persuaded that the charge outlined by the Applicants in Question 6 can be characterised as raising a dispute about a matter arising under the Agreement but is instead a question relating to compliance with the OHS Act. Therefore, I am satisfied the Commission does not have jurisdiction in relation to Question 6.
Question 7: The Safe Work Australia How to Manage Work Health and Safety Risks Code of Practice 2018 states that control measures should not introduce new hazards however where this cannot be avoided, any new hazards or risks introduced will also need to be managed. The current provisionally approved COVID-19 vaccines come with a risk of serious illness, injury and death. CSV have not conducted a risk assessment on the risks of the control measure (vaccines) they have introduced. Has CSV met their duty of care and obligations pursuant to the OHS Act and statutory regulations?
CSV submits that Question 7 appears to relate to concerns about its compliance with obligations under the OHS Act and not about a matter arising under the Agreement. The Applicants again submit that CSV has not met the occupational health and safety obligations pursuant to clause 74 of the Agreement and relevant sections of the OHS Act.
I consider Question 7 raises a dispute about whether CSV has complied with the OHS Act and unspecified statutory regulations and so is not about a matter or matters arising under the Agreement. Therefore, I am satisfied the Commission does not have jurisdiction in relation to Question 7.
Question 8: CSV are obligated to conduct a risk assessment on the current risks in the workforce. In the risk assessment that CSV have provided to staff on 7 February 2022 they have used data dated between June 2021 and October 2021 to assess the risk on the workforce as at February 2022. In light of this, has CSV met their obligations to adequately assess safety risks under the OHS Act and statutory regulations?
CSV submits that Question 8 appears to relate to concerns about its compliance with obligations under the OHS Act and not about a matter arising under the Agreement.
The Applicants submit Safe Work Australia has set out guidelines on how to perform a risk assessment and Section 21 of the OHS Act is clear on the responsibilities and obligations of CSV. The Applicants contend that CSV has not met the occupational health and safety obligations pursuant to clause 74 of the Agreement and relevant sections of the OHS Act.
In essence, Question 8 raises the issue of whether CSV has met various obligations under the OHS Act and statutory regulations and so is not about a matter or matters arising under the Agreement. I am therefore satisfied the Commission does not have jurisdiction in relation to Question 8.
Question 9: If a CSV employee cannot consent to vaccination for any reason, including medical or religious reasons, as is their right under the Australian Immunisation Handbook, the Charter of Human Rights and Responsibilities section 10c and the Equal Opportunity act Section 6, they may face disciplinary action up to and including termination. Does this policy constitute coercion pursuant to section 343 of the Fair Work Act 2009?
CSV submits that Question 9 relates to concerns about its compliance with obligations under the Equal Opportunity Act 2010 (Vic) (EOA), the Charter and seeks, without explanation, a declaration that it has contravened s 343 of the Act, which is not about a matter arising under the Agreement.
The Applicants submit that the COVID-19 vaccination policy has introduced a permanent major change to the ongoing terms and conditions of employment for all staff (inclusive of termination of employment), in the absence of a lawful consultation pursuant to clause 11 and clause 74 of the Agreement. Further, the Applicants appear to contend they have raised this question regarding s.343 of the Act in response to an assertion by CSV that this is what they should do so.
As outlined above, while clause 7.5 of the Agreement outlines that CSV will act in accordance with the EOA and the Charter, it also states that obligations under these instruments do not form part of the Agreement. As such, I am not persuaded that an allegation that CSV has engaged in coercion because the Applicants have exercised a right under the EOA and/or the Charter is a dispute about a matter arising under the Agreement. Therefore, I am satisfied the Commission does not have jurisdiction in relation to Question 9.
Question 10: In light of all the questions above, are CSV in breach of section 9 of the Equal Opportunity Act 2010 (Vic) for indirect discrimination?
CSV submits that Question 10 relates to concerns about its compliance with obligations under the EOA, as opposed to a matter arising under the Agreement.
Again, while clause 7.5 of the Agreement outlines that CSV will act in accordance with the EOA, it also states that obligations under the EOA do not form part of the Agreement.
As such, I am satisfied the Commission does not have jurisdiction in relation to Question 10.
Conclusion on Jurisdictional Objections
I am not satisfied that the Commission has jurisdiction to deal with Questions 2-10 (inclusive). I am however satisfied that the Commission has jurisdiction in relation to Question 1 and while I have noted the Applicants have included in it a number of sub-questions for determination, I consider they all fall for consideration as part of the determination of the broader question posed by the Applicants:
“Did CSV meet their obligations under Clause 11 of the Victorian Public Service Enterprise Bargaining Agreement 2020 (the Agreement)?”
Whilst CSV conceded that the Commission may have jurisdiction to determine Question 1, it has submitted:
· the power of the Commission to arbitrate is discretionary;[7] and
· the Commission ought not do so because there is no utility.
The Commission’s power to deal with disputes is contained in Part 6-2 of the Act. In particular, sections 738 and 739 of the Act provide:
“738 Application of this Division
This Division applies if:
…(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6);
…
739 Disputes dealt with by the FWC
(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)).”
CSV suggests that s.739 of the Act provides that the Commission “may” arbitrate and observes that clause 13 of the Agreement provides that a party has the ability to “request” the Commission to arbitrate. CSV submits that the exercise of the Commission’s discretion to arbitrate requires it to weigh up a number of external factors in addition to the terms of clause 13 of the Agreement and s.739 of the Act including:
· the nature of the dispute and the circumstances in which the dispute arose;
· the positions of the parties; and
· whether there is any utility in the Commission arbitrating the dispute.[8]
Clause 13.12 of the Agreement provides that if a dispute under the Agreement has not been settled when conciliation has been completed, a party to the dispute “may request that the FWC proceed to determine the dispute by arbitration”. Having regard to the terms of clause 13.12, I am not persuaded that the power of the Commission to arbitrate in this matter is discretionary. Rather, I consider that if the dispute has not been settled when conciliation has been completed, the Commission is required to proceed to determine the dispute by arbitration, if requested to do so by a party to the dispute.
CSV adopted the position that there is no utility in the Commission arbitrating the dispute because it maintains the required consultation under clause 11 of the Agreement has already taken place. Further, it has contended that even if the Commission determined that CSV had not met its obligations for consultation, the Commission does not have power to grant the relief the Applicants seek and therefore, the Commission ought to decline to exercise its discretion to arbitrate the dispute.
In this regard, CSV has submitted that the consultation steps it has taken demonstrate compliance with any obligation that may exist to consult in accordance with clause 11 of the Agreement. The essence of CSV’s position in this regard is:
· The Applicants, along with all employees of CSV and the CPSU, have had the opportunity to be heard and to put their views, both in writing and in person;
· On the basis that the CPSU is neither a party to the dispute nor an objector to the consultation process undertaken, there is no utility in the arbitration of the dispute; and
· The Applicants’ views have been taken into account and responded to in detail since October 2021 and no real contention to the contrary has been raised.
Further, CSV contends that the Applicants do not seek further consultation. It argues the relief sought by the Applicants makes clear that they do not take issue with the process of consultation pursuant to clause 11 of the Agreement but rather, the management decision made. CSV asserts the Applicants seek a determination that the COVID-19 vaccination policy is unlawful and unreasonable and as such, are not seeking further consultation but a different decision to be made by the Commission standing in the shoes of CSV management.
Notwithstanding these submissions of CSV, I am satisfied it is apparent from the submissions made by the Applicants that if the Commission was to determine CSV did not meet the obligations under clause 11, they seek consultation pursuant to clause 11 of the Agreement. From this, I consider it can be inferred that the Applicants request arbitration.
Resolving the Question
“Did CSV meet their obligations under Clause 11 of the Victorian Public Service Enterprise Bargaining Agreement 2020 (the Agreement)?”
In order to support its contention that there is no utility in the Commission arbitrating the dispute, CSV filed material file directed at the question of whether it has met its obligations under Clause 11 of the Agreement. In particular, it filed and served a witness statement with 26 Attachments from its Chief People Officer, Jewil Fulton. As the content of this statement and the attachments includes correspondence and references events that have transpired, I will outline some observations below.
It is a matter of public record that the Acting Chief Health Officer of Victoria gave the COVID-19 Mandatory Vaccination (Workers) Directions (Directions), which commenced operation on 7 October 2021. The Directions required certain defined workers to have had at least one dose of a COVID-19 vaccine (or a booking to receive a first dose) by certain dates (15 October 2021 and 22 October 2021 respectively) in order to continue working outside of their primary place of residence. The Directions, however, excluded persons “employed or engaged by the Chief Executive Officer of Court Services Victoria” from the definition of “public sector employee.” They were subsequently updated, albeit none of the later versions altered this exclusion.
Also on 7 October 2021, Shirelle Wolfe (CSV Manager- Workplace Relations, People and Culture) sent an email to Terri Carr and Lisa White of the Community and Public Sector Union (CPSU), attaching CSV’s “very draft policy on vaccinations” for their consideration. The document was stated to “not yet represent CSV’s final position”[9] and feedback was sought in relation to it.
This was followed by a letter dated 8 October 2021 from the Chief Executive Officer of CSV (Louise Anderson) to the Secretary of the CPSU (Karen Batt),[10] in which it was outlined:
· CSV was considering issuing time-limited directions requiring staff who attend on-site to be vaccinated;
· Such a direction would be supported by a COVID-19 vaccination policy;
· In order to align its approach to that of the Directions, CSV needed to “move quickly” to consult with its employees and the CPSU “to further develop the Policy”; and
· A copy of the draft policy, together with information as to the consultation process and timeframes, would be provided on 11 October 2021.
On Monday 11 October 2021, Jewil Fulton sent an email to CSV employees.[11] It purported to be a follow up to advice provided the previous Friday (8 October 2021). It was outlined in the email that CSV:
· Was “moving forward” on a COVID-19 risk assessment “and the development of a proposed vaccination policy”;
· Was considering directing CSV employees to have received a first vaccination by 15 October 2021; and
· Would have a consultation and feedback period open until 5pm on Wednesday 13 October 2021, with both an online consultation form[12] and dedicated email address[13] available for this purpose.
This email also contained links to copies of a draft vaccination directive, a draft vaccination policy, a draft risk assessment and a draft FAQ document on CSV’s intranet.[14]
On the same day, Jewil Fulton sent an email to Terri Carr and Lisa White of the CPSU advising them that CSV had commenced consultation on the proposed COVID-19 vaccination policy, attaching a copy and explaining that while the consultation period was “necessarily fast due to the release of the CHO Directions”, CSV would “ensure that staff have the opportunity to provide their views by email and through information sessions.”[15] This gave rise to an exchange of emails between Jewil Fulton and Terri Carr on 12 October 2021 directed towards providing the information to employees on leave and involving them in the consultation.[16]
In her statement, Jewil Fulton outlines that she facilitated three open forums on 13 October 2021, with 200 employees attending and providing feedback on the proposed COVID-19 vaccination policy. It was outlined in an email she sent to CSV employees on 15 October 2021 that 300 CSV employees actively participated in the consultation process, that there were still some questions to consider and that the outcome of the review of the draft risk assessment, directive and policy would be provided on 18 October 2021.[17]
Also on 15 October 2021, Louise Anderson wrote to Karen Batt of the CPSU with an update. This correspondence included references to:
· CSV “considering” additional measures “to minimise risks to employees and the broader community” as a response to the COVID-19 pandemic;
· The proposal to issue directions requiring staff who attend on-site to be vaccinated;
· The “proposed introduction of a Vaccination Policy”; and
· CSV working through the feedback received. [18]
I also note that in this letter, CSV expressed the view that the proposed introduction of a COVID-19 vaccination policy was most properly dealt with under the consultation requirements of the OHS Act, as opposed to clause 11 of the Agreement. CSV does not appear to have maintained this position in prosecuting its jurisdictional objections. Additionally, I note that the CPSU, in a letter from Karen Batt to Louise Anderson dated 18 October 2021, had noted CSV’s intention to implement the proposed COVID-19 vaccination policy under the OHS Act and on this basis, the CPSU proffered that clause 11 of the Agreement did not apply. Regardless, I have earlier expressed my views regarding the jurisdiction granted to the Commission under clause 13 of the Agreement and if there is a question to be determined regarding compliance with the OHS Act by CSV, it is not one which falls within the scope of disputes that can be resolved by clause 13.
As a result of the emails and submissions received, Jewil Fulton asserts (in her statement) that CSV made changes to materials referred to above at [58], including:
· amending the draft vaccination direction so that it only covered employees who were or might be required to work at a CSV workplace, and excluded employees who were able to continue working from home;
· providing clarification on the requirements and timeframes in the draft vaccination direction;
· providing additional information on requirements affecting the judiciary and VCAT members, the possible adverse effects of receiving a COVID-19 vaccination, the role of managers in collecting or sighting vaccination information, options for employees receiving their second dose of a COVID-19 vaccination outside of the required timeframe and options for pregnant employees or those with a medical contraindication or acute medical condition;
· providing further information on requirements on contractors and others entering court buildings;
· removing the requirement on employees to provide evidence of having received their first dose of a COVID-19 vaccination;
· removing the option of providing proof of vaccination via an Immunisation History Statement, due to the sensitive health information that may be contained in such a document; and
· providing further information on employer and employee obligations under the OHS Act.
Further, Jewil Fulton states that on 18 October 2021, Louise Anderson approved:
· The draft vaccination policy;
· The draft risk assessment; and
· The draft FAQ/Critical information on Implementation document.[19]
As regards the draft FAQ/Critical information on Implementation document, I have noted that in its contents:
· There is reference to specific questions of a medical/health nature on the Risk Assessment having been put to Dr Ian Norton for feedback;
· There are questions asking:
· “What is a lawful and reasonable direction?”
· “What if I don’t want to get vaccinated or don’t want to provide proof of vaccination? Can I go to work at a CSV workplace?”
· “Who can I talk to if I am concerned about getting vaccinated?”
· “Who should I contact for more information or support?”
· There are a series of questions regarding “Exemptions”.
On 19 October 2021, Louise Anderson sent an email to CSV employees notifying them that she had approved the abovementioned materials at [64] and provided links to copies of each of them on CSV’s intranet. Jewil Fulton sent an email to Terri Carr and Lisa White forwarding this correspondence and the abovementioned materials.
The Applicants sent a letter dated 25 October 2021 to Louise Anderson raising a dispute under clause 13 of the Agreement, in which they outlined “critical concerns about imminent risk to health and safety of the policy.”
On 24 November 2021, Catherine Delaney, Acting Manager Workplace Relations, sent a letter to the Applicants in reply. [20] In this letter, CSV addressed its decision to implement the COVID-19 vaccination policy, the engagement during consultation, its consideration of consultation feedback, the consultation obligations under clause 11 of the Agreement and the OHS Act. CSV also indicated the COVID-19 vaccination policy was to be reviewed in December 2021 and invited the Applicants to discuss any concerns.[21]
The parties met on 2 December 2021, at which time the Applicants presented their concerns via a detailed PowerPoint presentation.[22] Their presentation outlined 22 questions.[23] Catherine Delaney sent a letter responding to the Applicants’ PowerPoint presentation on 10 December 2021, outlining a response to each of the 22 questions.[24]
As outlined in [1] above, this application was filed with the Commission on 24 December 2021. CSV filed and served a response on 28 January 2022.
Jewil Fulton sent an email to CSV employees on 7 February 2022 informing them that the risk assessment lying behind the COVID-19 vaccination policy had been reviewed and updated. [25] In particular, the employees were advised that CSV proposed the introduction of a Rapid Antigen Testing (RAT) policy and an updated COVID-19 vaccination policy which was to include the recommendation for a third dose of a COVID-19 vaccination. CSV also:
Invited employee feedback and questions;
Provided links to copies of a draft revised vaccination policy, a draft revised risk assessment, a draft revised FAQ/Critical information on Implementation document, a draft revised vaccination direction, a draft RAT Policy and a draft FAQ (RAT) document on its intranet; and
Advised employees that a dedicated email address and an online consultation form were available on CSV’s intranet and were to be open until 5pm on 16 February 2022.[26]
The consultation period was subsequently extended until 5pm on 21 February 2022 and two open forums were proposed for 16 and 18 February 2022 via Microsoft Teams, at which times questions could be put. A total of 46 employees are said to have attended the two sessions and additionally:
· 37 emails were said to have been received at the dedicated email address; and
· 34 submissions were said to have been received through the online consultation form on CSV’s intranet.[27]
Separately, the CPSU was written to and invited to provide feedback and a letter was also sent to CSV’s Koori Elders and Respected Persons seeking to establish the interest level in attending a subsequently conducted information session.
On 21 February 2022, the Applicants sent an email to the dedicated email address. Their email contained attachments including alternative proposals and general feedback on these draft Materials, with the Applicants’ comments marked-up on the documentation.[28]
On 11 March 2022, Rachel Macdonald, Principal Consultant Workplace Relations sent an email in response.[29] It contained a letter from Jewil Fulton, dated 10 March 2022, explaining CSV’s position on the Applicants’ proposals[30] and a document containing comments in reply.[31]
As at 21 March 2022, CSV was said to be considering the emails and submissions received and changes to the COVID-19 risk environment more broadly, prior to finalising the materials.
Having outlined this background, it is useful to next outline Clause 11 of the Agreement, which provides:
“11. Implementation of Change
11.1 Where the Employer has developed a proposal for major change likely to have a significant effect on Employees, such as a restructure of the workplace, the introduction of new technology or changes to existing work practices of Employees, the Employer will advise:
(a)the relevant Employees and the relevant Union covered by this Agreement of the proposed change as soon as practicable after the proposal has been made; and
(b) the relevant Employees and the relevant Union covered by this Agreement of the likely effects on the Employees’ working conditions and responsibilities; and
(c) of the rationale and intended benefits of any change, including improvements to productivity, if applicable.
11.2 For the purpose of this clause, a major change is likely to have a significant effect on Employees if it results in:
(a) the termination of the employment of Employees; or
(b)major change to the composition, operation or size of the Employer’s workforce or to the skills required of Employees; or
(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(d)the alteration of hours of work; or
(e) the need to retrain Employees; or
(f)the need to relocate Employees to another workplace; or
(g) the restructuring of jobs.
11.3 Clause 11.2(f) is subject to the rights and obligations set out in clause 19 (Usual Place or Places of Work).
11.4 Relevant Employees means the Employees who may be affected by a change referred to in clause 11.1.
11.5 The Employer will:
(a) regularly consult with Relevant Employees and the relevant Union covered by this Agreement; and
(b)give prompt consideration to matters raised by the Employees or the
Employees relevant Union covered by this Agreement; and
(c) if appropriate provide training for the Employees to assist them to integrate successfully into the new structure.
11.6 In accordance with this clause, the relevant Employees and the relevant Union covered by this Agreement may submit alternative proposals which will meet the indicated rationale and benefits of the proposal.
(a)Such alternative proposals must be submitted in a timely manner so as not to lead to an unreasonable delay in the introduction of any contemplated change.
(b) If such a proposal is made the Employer must give considered reasons to the affected Employees and the relevant Union covered by this Agreement if the Employer does not accept its proposals.
(c)Indicative reasonable timeframes are set out below. The steps, timeframes, and the extent of consultation in each case will:
(i) be commensurate with the scale of the proposed major change and the likely significant effect for Employees, and
(ii) take account of the Parties’ agreement in clause 15 (Mobility Principles) that the principles of workforce mobility will be operationalised over the life of the Agreement through a range of changed practices, modes of work and service delivery.
Step in process Number of working days in which to perform each step Employer advises Employees and relevant Union covered by this
Agreement
Response from Employees or the
relevant Union covered by this Agreement
5 DAYS FOLLOWING RECEIPT OF WRITTEN ADVICE FROM EMPLOYER Meeting convened (if requested) 5 days following request for meeting Further Employer response (if relevant) 5 days following meeting Alternative proposal from Employees or relevant Union covered by this Agreement (if
applicable)
10 days following receipt of Employer
response
Employer response to any alternative proposal 10 days following receipt of alternative proposal
11.7Any dispute concerning the Parties’ obligations under this clause will be dealt with in accordance with clause 13 (Resolution of Disputes).”
A striking feature of Clause 11 is that it has application where the employer “has developed a proposal for major change likely to have a significant effect on Employees, such as a restructure of the workplace, the introduction of new technology or changes to existing work practices” (my emphasis).
This is to be contrasted with the consultation clause in Mount Arthur Coal, which has application if the employer “has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees”.
Any determination of this dispute is therefore to be focussed on the circumstances relating to the proposal or proposals of CSV, as opposed to what may or may not have occurred following any ultimate decision or decisions.
Having regard to views expressed in Port Kembla Coal Terminal Ltd v Construction, Forestry, Maritime, Mining and Energy Union,[32] the Full Bench in Mount Arthur Coal, expressed the view that the introduction of the requirement that all workers at the Mt Arthur Mine be vaccinated against COVID-19 as a condition of site entry was a change to ‘organisation’ because it fell withing the notion of how the Mt Arthur Mine was managed or organised.[33] The Full Bench also considered the requirement was a ‘major change’ because it made vaccination a condition of entry to the Mt Arthur Mine and that had a ‘significant effect’ on employees because it exposed unvaccinated workers to potential disciplinary action, including dismissal.[34]
The factual background I have outlined above satisfies me that what CSV put forward in early October 2021 was a ‘proposal’. To be determined in the context of this dispute is firstly whether the proposal of CSV to introduce a COVID-19 vaccination policy was a proposal for major change, noting that while clause 11.1 of the Agreement gave some examples of what a proposal for major changes might be, these are not exhaustive. I am satisfied that the proposal to introduce a requirement that employees be vaccinated against COVID-19 in order to be able to attend the workplace or, following a risk assessment, to fulfill their ordinary duties (as was also initially proposed), constituted a major change.
As to whether the proposal was “likely to have a significant effect on Employees”, clause 11.2 of the Agreement provides guidance and I am satisfied the proposal is capable of being regarded as a major change to the operation of CSV’s workforce, as contemplated by clause 11.2(b) of the Agreement. The proposal to introduce a COVID-19 vaccination policy was a proposal to require members of the CSV workforce to be vaccinated in order to attend a CSV workplace. The effect of this was significant on employees because apart from imposing new rules for entry, a failure to comply might lead to disciplinary action, up to and including termination of employment.
Accordingly, I am satisfied the obligations imposed on CSV under clause 11 of the Agreement were enlivened when it developed the proposal to introduce a COVID-19 vaccination policy.
I will now proceed to express provisional views in response to the question of whether CSV met their obligations under clause 11 of the Agreement based on the material currently before the Commission.
Given the Directions commenced operation on Thursday 7 October 2021, I consider that CSV complied with the obligation under clause 11.1(a) of the Agreement to advise the relevant employees and the relevant union of the proposal to introduce a COVID-19 vaccination policy as soon as practicable after the proposal had been made, by advising:
The CPSU in writing on both Thursday 7 October 2021 (attaching the “very draft” vaccination policy) and Friday 8 October 2021; and
Its employees on both Friday 8 October 2021 and on Monday 11 October 2021, with the follow up email and attachments from Jewil Fulton.
Having regard to the fact that CSV forwarded both its employees and the CPSU a copy of the draft COVID-19 vaccination policy on 11 October 2021, along with the draft Risk Assessment, draft Directive and draft FAQs, I consider that CSV complied with the obligation under clause 11.1(b) of the Agreement to advise them of the likely effects on the employees’ working conditions and responsibilities.
Further, I consider the correspondence sent by CSV to the CPSU on 8 October 2021 and the correspondence to the employees on 11 October 2021 outlined the rationale of the proposed change, as required under clause 11.1(c) of the Agreement. The rationale was also outlined in the draft COVID-19 vaccination policy and the draft FAQs.
Clause 11.5(a) of the Agreement requires CSV to “regularly consult” with the relevant employees and CPSU. I consider the correspondence flowing between the parties to this dispute and between CSV and the CPSU suggests this has occurred since 8 October 2021. In particular, further consultation was prevalent when CSV proposed updating the COVID-19 vaccination policy and introducing the RAT policy in February 2022.
Having regard to the following, I consider that CSV gave prompt consideration to matters raised by the Employees and the CPSU (in accordance with Clause 11.5(b) of the Agreement) and gave “considered reasons” to proposals from the “affected employees” (as per the obligation of CSV under clause 11.6(b) of the Agreement):
Following the feedback received at the three open forums on Wednesday 13 October 2021 and the receipt of email correspondence and online consultation forms, CSV provided responses on Friday 15 October 2021[35] and Tuesday 19 October 2021;[36]
Following receipt of the Applicants’ comprehensive 6-page letter dated 25 October 2021, CSV provided a response in writing on 24 November 2021;[37]
Following the powerpoint presentation by the Applicants on Thursday 2 December 2021 containing the 22 questions, CSV responded with a 10-page letter dated 10 December 2021 in which every question posed by the Applicants was given an answer;[38] and
Following receipt of the Applicants’ email dated Monday 21 February 2022 containing 6 attachments, alternative proposals and general feedback on the updated draft Materials and updated COVID-19 vaccination policy, CSV responded with a comprehensive letter dated 10 March 2022, which included a detailed, itemised, 38-page table with commentary.[39]
As to the timing of the CSV responses I note that some were within the “indicative reasonable timeframes” referred to in the table in clause 11.6(c) of the Agreement and consider the others were delivered in a timeframe “commensurate with the scale of the proposed major change”, as contemplated in clause 11.6(c)(i).
Conclusion
In their material, the Applicants have sought to rely on various findings in Mt Arthur Coal. However, in Mt Arthur Coal, the Dispute Settlement Procedure was of broader application than clause 13 in this case because it not only covered disputes about matters arising under the Agreement or in relation to the NES (as is the case with clause 13 of the Agreement) but could also apply to disputes arising in the course of employment. It is because of this broader scope that the Full Bench in Mt Arthur Coal was able to arbitrate the question of whether the introduction of the requirement that all workers at the Mt Arthur Mine be vaccinated against COVID-19 as a condition of site entry was a lawful and reasonable direction.
I note that one of the orders sought by the Applicants is an order determining whether the COVID-19 vaccination policy of CSV is lawful and reasonable taking into account all relevant factors, including but not limited to consultation, the Charter, coercion, indirect discrimination and occupational health and safety laws. However, for the reasons stated above, the terms of clause 13 are not broad enough to afford the Commission jurisdiction to determine whether the COVID-19 vaccination policy is lawful or reasonable.
As outlined above in [44], I am not satisfied that the Commission has jurisdiction to deal with Questions 2-10 (inclusive) submitted by the Applicants. I am however satisfied that the Commission has jurisdiction in relation to their Question 1:
“Did CSV meet their obligations under Clause 11 of the Victorian Public Service Enterprise Bargaining Agreement 2020 (the Agreement)?”
Clause 11 imposes obligations to consult and I have noted the general propositions outlined by the Full Bench in Mount Arthur Coal as to what constitutes consultation:
“The following propositions may be drawn from these cases about what constitutes consultation:
· the content of any specific requirement to consult is necessarily dictated by the precise terms in which such a requirement is expressed; the nature of the factual or legal issues the subject of the requirement; and the factual context in which the requirement is exercised, including the particular circumstances of the persons with whom there must be consultation
· a responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account
· the consultation needs to be real; it must not be a merely formal or perfunctory exercise
· even though management retained the right to make the final decision, it is not to be assumed that the required consultation was to be a formality. Management has no monopoly of knowledge and understanding of how a business operates, or of the wisdom to make the right decisions about it. The process of consultation is designed to assist management, by giving it access to ideas from employees, as well as to assist employees to point out aspects of a proposal that will produce negative consequences and suggest ways to eliminate or alleviate those consequences
· the party to be consulted [must] be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon
· while the word ‘consultation’ always carries with it a consequential requirement for the affording of a meaningful opportunity to the party being consulted to present those views, what will constitute such an opportunity will vary according [to] the nature and circumstances of the case. In other words, what will amount to ‘consultation’ has about it an inherent flexibility
· a right to be consulted, though a valuable right, is not a right of veto
· the consultation obligation is not concerned with a likelihood of success of the process, only to ensure that it occurs before a decision is made to implement a proposal
· an ordinary understanding of the word “consult” would suggest that the obligation to consult does not carry with it any obligation either to seek or to reach agreement on the subject for consultation. Consultation is not an exercise in collaborative decision-making. All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made
· the requirement to consult affected workers would … not be satisfied by providing the employees with a mere opportunity to be heard; the requirement involves both extending to affected workers an opportunity to be heard and an entitlement to have their views taken into account when a decision is made
· genuine consultation would generally take place where a process of decision making is still at a formative stage
· the opportunity to consult must be a real opportunity not simply an after thought
· consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal
· there is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, ‘this is what is going to be done’ and saying to that person ‘I’m thinking of doing this; what have you got to say about that?’. Only in the latter case is there ‘consultation’
· it is implicit in the obligation to consult that a genuine opportunity be provided for the affected party to attempt to persuade the decision-maker to adopt a different course of action. If a change has already been implemented or if the employer has already made a definite or irrevocable decision to implement a change then subsequent ‘consultation’ is robbed of this essential characteristic
· any offer to consult in relation to the matter was in the context that the respondent had already made an irrevocable decision, then the party had not, to use his Honour’s words, consulted about the decision in any meaningful way.” [40]
As outlined above at [52], I am satisfied it is apparent from the submissions made by the Applicants that if the Commission was to determine CSV did not meet the obligations under clause 11, they seek consultation pursuant to clause 11 of the Agreement.
I have had regard to the propositions regarding consultation outlined by the Full Bench in Mt Arthur Coal and I have made a series of findings in [86] – [91] outlining my provisional views regarding CSV’s compliance with obligations imposed on it pursuant to clause 11. On the material currently before me, I have not been persuaded that CSV has not meet its obligations under Clause 11 of the Agreement. Put another way, based on the material before me, I consider that CSV has met its obligations under clause 11 of the Victorian Public Service Enterprise Agreement 2020, having regard to the chronology of events and the contents of the correspondence and accompanying attachments.
The directions I made in this matter were directed at resolving the jurisdictional objection made by CSV. The directions afforded the Applicants the opportunity to file material in reply to CSV’s submissions and the witness statement of Jewil Fulton and the parties also had the opportunity to request a hearing. Although these opportunities were not taken up, I will afford the Applicants the opportunity to consider their position in relation to this dispute given the provisional views I have expressed. In particular, the Applicants should take note of the scope of clause 13 of the Agreement and, in particular, my finding that it is not broad enough for the Commission to determine the Questions 2-10 (inclusive) they have submitted or whether the COVID-19 vaccination policy of CSV is lawful or reasonable.
The Applicants will therefore have the opportunity to file and serve any material in response to my provisional views regarding CSV’s compliance with obligations imposed on it pursuant to clause 11, should they wish to do so, by no later than 3.00pm on Friday 7 October 2022.
While I await receipt of advice from the Applicants as to their future intentions and/or further material, I do not intend to deal further with the request previously made by further CSV employees to become parties to this application.
DEPUTY PRESIDENT
[1] AE5019129.
[2] [2021] FWCFB 6059.
[3] [2017] FWCFB 3005.
[4] [2014] FWCFB 7447.
[5] [2017] FWCFB 3005 at point 1 in [114].
[6] [2018] FCAFC 131, 264 FCR 536.
[7] Schweppes Australia Pty Ltd v United Voice (2012) 218 IR 251.
[8] Ibid at [41].
[9] DCB at 686.
[10] DCB at 690.
[11] DCB at 695.
[12] Jewil Fulton has stated 98 submissions were subsequently received through this.
[13] Jewil Fulton has stated 87 emails were subsequently received through this address.
[14] DCB at 695.
[15] DCB at 717.
[16] DCB at 719.
[17] DCB at 721.
[18] DCB at 724.
[19] DCB at 734.
[20] DCB at 762.
[21] DCB at 764.
[22] DCB at 765.
[23] Although the last question was numbered “23”, the list of questions did not include a question numbered “18”.
[24] DCB at 797.
[25] DCB at 823.
[26] DCB at 823.
[27] DCB at 684-685, paragraphs 36, 38 and 39.
[28] DCB at 877.
[29] DCB at 922.
[30] DCB at 925.
[31] DCB at 930.
[32] (2016) 248 FCR 18
[33] [2021] FWCFB 6059 at [133].
[34] Ibid at [134].
[35] DCB at 721
[36] DCB at 753-754.
[37] DCB at 762.
[38] DCB at 797.
[39] DCB at 925.
[40] Ibid at [108] (footnotes omitted).
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