Sharon Cayzer v Ambulance Victoria

[2021] FWC 6553

[2021] FWC 6553

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.739—Dispute resolution

Sharon Cayzer
v
Ambulance Victoria
(C2021/8244)

DEPUTY PRESIDENT MANSINI MELBOURNE, 9 DECEMBER 2021

Application to deal with an alleged dispute arising under an enterprise agreement and the NES – application for an interim order – application for interim relief refused.

[1] This decision concerns an application for an interim order to effectively restrain Ambulance Victoria (the Respondent) from terminating the employment of Ms Cayzer (the Applicant), in the context of an application for the Commission to deal with an alleged dispute in accordance with a dispute settlement procedure pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act).

[2] The substantive application was lodged with the Commission on 6 December 2021. It was purportedly made on behalf of a group of 29 individuals and alleges that the Respondent has failed to comply with various obligations in implementing the COVID-19 Mandatory Vaccination (Specified Facilities) Directions and the COVID-19 Mandatory Vaccination (Workers) Directions. In their employment with the Respondent, the group is or was covered by either of the Ambulance Victoria Enterprise Agreement 2020 (Agreement) or the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2020 (MAS Agreement).

[3] The Respondent is a public body set up to provide pre-hospital treatment, ambulance and air transport for people in need of such services. It employs around 3,400 paramedics supported by around 1,000 other employees performing a range of roles.

[4] The Applicant is a full-time paramedic with some 17 years’ service with the Respondent, presently based at the Respondent’s Dandenong branch. The Agreement covers and applies to the Applicant’s employment with the Respondent.

[5] In support of the application for interim relief, the Applicant filed a signed statement with a number of documents attached and the Respondent filed signed statements of a Mr James Davis (Lead Workplace Relations) and a Ms Sharon Crema (Acting Workplace Relations Strategy Lead). No cross-examination was required. Both parties filed detailed written submissions and made oral submissions at the hearing on 8 December 2021.

Regulatory context

[6] On 19 September 2021, the Victorian Government announced its policy regarding mandatory vaccination against the COVID-19 virus. On 29 September 2021 at 11:59 pm, the COVID-19 Mandatory Vaccination Directions (No. 4) (Mandatory Vaccination Healthcare Directions) commenced, having been made under s.200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act).

[7] The Mandatory Vaccination Healthcare Directions imposed obligations on the operators of healthcare and other facilities including “ambulance and patient transport services”, in relation to workers at such facilities including “a person who is employed or engaged as a contractor by a healthcare operator to perform at a healthcare facility… ambulance and patient transport services”. The obligations on the operators of healthcare facilities such as the Respondent include:

a) to collect, record and hold vaccination information about a worker who was, or may be, scheduled to work at the facility on or after the relevant date (which was 15 October 2021) (clause 4(1)); and

b) to take all reasonable steps to ensure that, on or after 15 October 2021, a worker who was unvaccinated did not enter, or remain on, the premises of a healthcare facility for the purpose of working at the facility, unless the worker had a booking to receive by 29 October 2021 a dose of a COVID-19 vaccine that would cause the worker to become partially vaccinated (clause 5).

[8] For healthcare workers the second dose is required by 15 December 2021.

[9] A healthcare worker is not treated as being unvaccinated or partially vaccinated if an “excepted person” as defined. To be an “excepted person” requires medical certification from a medical practitioner that the person is unable to receive a vaccine due to a medical contraindication or an acute medical illness.

[10] There have been subsequent iterations of the Mandatory Vaccination Healthcare Directions (with a change in name to COVID-19 Mandatory Vaccination (Specified Facilities) Directions), the most recent iteration of which is the Mandatory Vaccination (Specified Facilities) Directions (No. 13), which commenced at 11:59pm on 18 November 2021 and will end at 11:59pm on 15 December 2021.

[11] Other directions have been made in the form of the COVID-19 Mandatory Vaccination (Workers) Directions (Workers Directions), on 7 October 2021, and the COVID-19 Mandatory Vaccination (General Workers) Directions (No. 3) (General Workers Directions), on 18 November 2021. There have also been subsequent iterations of those directions.

[12] The Workers Directions relevantly define “worker” to include an “emergency services worker” which in turn is defined as “a person who works in connection with emergency services including but not limited to… paramedical services; ambulance and paramedic services; air ambulance and medical retrieval services (including Royal Flying Doctor Service)”. The General Workers Directions essentially define “worker” as “a person who does work”.

[13] The Respondent submitted that the various directions relevant to this dispute (collectively the Government Directions) are part of Victoria’s expressed strategy to both limit the spread of COVID-19 and to ensure that the hospital system does not become overwhelmed with COVID-19 patients and exceed the capacity of its intensive care units. Whilst it was not contended that the obligations imposed on the Respondent as summarised above have been altered by the successive instruments in any material way, the Applicant contended that the regulatory environment is rapidly evolving and that there will continue to be changes as this application is considered.

Factual context

[14] On 8 October 2021, all employees of the Respondent received a communication from the Chief Executive Officer. That same day a Ms Rebecca Hodges (Executive Director, People and Culture of the Respondent) wrote to all employees who were either unvaccinated or had not provided vaccination information to the Respondent - reiterating the requirement to be vaccinated.

[15] On 11 October 2021, the Applicant wrote to Ms Hodges in which she advised of her intention to wait for the “novavax” vaccine, confirmed her understanding that the Respondent “must follow the CHO’s advice and mandates” and stated “I hope you will let me utilise my leave/LSL till this [“novavax”] vaccine is available”. That same day the Respondent replied to say that it would work with the Applicant to fully understand the Government Directions, timings and how this might impact her intentions.

[16] On 15 October 2021, the Respondent emailed employees including the Applicant regarding the mandatory vaccination requirements and offered that they could utilise accrued paid leave (including annual leave and long service leave) between 15 October 2021 and 12 November 2021 in order to provide them with time to consider and assess their options with respect to vaccination. In response to the Applicant’s email of 11 October 2021, Ms Crema explained to the Applicant that the “novavax” vaccine is not yet approved for use in Australia and, unless she had a medical exemption, she was expected to comply with the mandatory vaccine requirement and the “deadlines” set out in the Government Directions. The Respondent gave evidence that additional support measures were in place to assist unvaccinated employees and that “significant” support and education in relation to vaccination against COVID-19 had been given to its employees since February 2021.

[17] The Applicant gave evidence of a telephone discussion with her Area Manager on 5 November 2021. She said it was discussed that she had accumulated one years’ long service leave and she requested to use that long service leave until the “novavax” or “covax” becomes an approved COVID-19 vaccine for the purposes of the Government Directions. She said her manager had advocated on her behalf but she was “denied” long service leave. Ms Crema gave evidence that it was open to the Applicant to access her long service leave entitlements between 15 October and 12 November 2021 but the Applicant did not notify the Respondent that she wished to do so.

[18] On 11 November 2021, a grievance was lodged by a Ms Jessica Davis. The grievance stated it was on behalf of herself and other employees including the Applicant and a Ms Tania Kennington. On 16 November 2021, a written response to the grievance was provided to Ms Davis on behalf of the Respondent. A meeting was held to discuss the grievance on 24 November 2021. Further correspondence between Ms Davis and the Respondent in relation to the grievance occurred on 28 November 2021 and 3 December 2021.

[19] On 12 November 2021, the Applicant provided proof that she had taken one dose of the vaccine to her employer. In that email, the Applicant said “I am disappointed AV denied me the option to use LSL and wait for the protein based vaccine to be available”. The certificate of vaccination against COVID-19 is attached and records: “Date of next vaccination: Dec 2021”.

[20] Between about 15 and 24 November 2021, the Respondent asked unvaccinated employees to show cause why their employment should not be terminated in circumstances where they could not meet the vaccination requirements. The Applicant was not asked to show cause during that period.

[21] On 25 November 2021, Ms Hodges emailed employees including the Applicant advising of the latest Government Directions and the requirement to be fully vaccinated by 15 December 2021 in order to attend work on or after this date.

[22] On 6 December 2021, application was lodged with the Commission. Ms Davis was named as applicant. Also on 6 December 2021, the Respondent terminated Ms Davis’ employment, in circumstances where it considered she had not shown cause that her employment could continue given her failure to meet the requirement to be vaccinated. An amendment to the application was subsequently sought (which was not opposed and was allowed pursuant to s.586 of the Act) such that this dispute is now brought by the Applicant as an employee of the Respondent and purported representative of the group (at the time of the interlocutory hearing on 8 December 2021, she represented two individuals listed as part of the “grievance group”: Ms Davis and Ms Kennington).

[23] As an operational paramedic, the Applicant has not worked from home during the circumstances of the COVID-19 pandemic. In her evidence she said that, during the pandemic, her work was performed by adopting “COVID-safe” procedures including daily health checks and wearing additional apparatus. The Applicant described herself as not “anti-vaccine” and elaborated on her concern about the possible side effects experienced after receiving a COVID-19 vaccine, for reasons which include the experiences of her parents.

[24] Other than one day of unpaid leave taken on 12 November 2021, Ms Crema’s evidence was that the Applicant has been on a period of paid personal leave since 7 October 2021.

[25] At the time of the interlocutory hearing, which commenced at around 4:30pm on 8 December 2021, the Applicant remained on a period of personal leave (until and inclusive of 10 December 2021) and was due to take some four weeks of annual leave thereafter. The Applicant had not yet been asked to show cause or invited to attend a meeting. The Respondent’s counsel told the Commission that the Respondent had understood the Applicant had conveyed her intention to take the second vaccination in December 2021 but, in any event, once the Applicant’s intention about taking a second vaccine (or otherwise) is made clear, it would ask her to show cause, she would be afforded ten days to do so, and then be invited to a meeting. The Applicant said she is prepared to remain “stood down” on sick leave or long service leave during the intervening period and to consider giving an undertaking as to damages if identified necessary by the Respondent. The Respondent declined to provide an undertaking in relation to the continuation of the Applicant’s employment pending the outcome of this proceeding and did not address the Commission as to the question of the Applicant giving an undertaking as to damages.

[26] Although not subject of this claim for interim relief, for completeness, there was evidence that Ms Kennington remains employed and has provided the Respondent with proof of having taken two vaccines.

Consideration

[27] In determining the application for interim relief I have had regard to the evidence filed, together with the written and oral submissions advanced by, each party.

[28] Given the urgency of the application, the summary of evidence above and my reasons in relation to the Applicant’s application for interim relief are necessarily brief.

Proposed interim order

[29] By the amended application, the Applicant sought a proposed interim order in the form at Annexure A to this decision.

Legal principles

[30] There is no contest between the parties that I have the power in these proceedings to grant interim relief. The legal principles are well settled and were not contentious.

[31] The approach taken by courts to applications for interlocutory injunctive relief are applicable to applications to the Commission for interim relief. 1 In order to qualify for the discretionary relief sought by the applicants, they must establish that they have a prima facie case and that the balance of convenience favours the grant of an injunction.2 The issue of whether there is a prima facie case and whether the balance of convenience favours the interim relief are related questions.3

[32] The applicants must establish a prima facie case, “in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief”. 4 The degree of probability of success required involves an impressionistic assessment of the apparent sufficiency of the applicant’s evidence. That assessment will be influenced both by the nature of the proceedings and the nature of the orders sought.5 But it does not involve any forecast of the likely result of the proceedings and does not require an applicant to satisfy the court about the likely ultimate balance of probability.6

Prima facie case

[33] The substantive application contends that:

a) The Respondent failed to properly consult with the Applicant and other members of the group as required by the Agreement and the Occupational Health and Safety Act 2004 (Vic) (OHS Act);

b) The Respondent’s “blanket vaccine mandate” is unreasonable and unlawful;

c) The Respondent has:

•  Failed to adhere to the Agreement and the OHS Act in implementation of the “CHO directions”;

•  Failed to properly implement the Government Directions in a reasonable and lawful manner;

•  Failed to properly consult on the “blanket vaccine mandate” as required by the enterprise agreements and the OHS Act and; in failing to do so,

•  Failed to allow the Applicant and other members of the “grievance group” to access current leave entitlements (including long service leave) pursuant to the Agreement post 12 November 2021.

[34] The application lists the following provisions of the Agreement as relating to the dispute:

•  Clause 9 – Anti-Discrimination

•  Clause 10 – Representation for Disputes Resolution and Consultation

•  Clause 11 – Resolution and Disputes and Grievances

•  Clause 12 – Implementation of Change

•  Clause 55 - Annual Leave

•  Clause 62 – Long Service Leave

•  Clause 71 – Special Leave

•  Clause 74 – Disciplinary Process

•  Clause 75 – Procedural Fairness

[35] The Applicant submitted that there is a serious question to be tried, certainly in relation to the leave provisions of the Agreement and the National Employment Standards in the Act (NES). In this regard, it said the Applicant had attempted to use her accrued long service leave to await the approval of additional vaccines but this was refused. Although currently on paid personal leave, and certified as not fit for work with substantial accrued personal leave entitlements, the Applicant has not extended her period of personal leave because she is due to commence pre-approved annual leave thereafter.

[36] It was also contended that the Applicant is aggrieved by a lack of appropriate consultation including a failure to allow a more reasonable period of time, in a rapidly changing regulatory environment, so that the Applicant (and others in the “group”) could consider their position, apply to be an “excepted person” and continue to work from their own residence as contemplated by the Government Directions. As I understood the argument, this is said to be both unreasonable and to amount to a failure to meet the consultation obligations under both the Agreement and the OHS Act (which was said to be “implied” via references to “safety” throughout the Agreement).

[37] Although the proposed interim order in the amended application appeared to seek an extension to other members of the group (Annexure A, at 2c), at the hearing counsel for the Applicant confirmed that the interim application seeks orders only in relation to the Applicant, Ms Cayzer. Accordingly, whilst the Respondent foreshadowed its intention to oppose the Applicant’s capacity to represent those other individuals and the “group” nature of the application, it accepted that those issues do not arise in the context of the interim application.

[38] The Respondent also foreshadowed a jurisdictional objection on the basis that the grievance documents filed on 11 November 2021 do not raise matters arising under the Agreement, the MSA Agreement or the NES and therefore the dispute resolution procedure(s) do not apply.

[39] The Respondent contended that the Applicant has not particularised its allegations and there is no serious question to be tried. It said that the Applicant was advised that she was allowed to take long service leave in the period between 15 October 2021 and 12 November 2021. And, although it did not accept that such request was made, having been unfit for work since 7 October 2021 until the present date there was no ability for the Applicant to have taken long service leave in any event. Further, that the Applicant has been consulted – that she is not “happy” with the effect of the directions and the Respondent’s position on this does not amount to a failure to consult; the circumstances of the Respondent’s compliance with the Government Directions do not fall within the consultation provision of the Agreement; and the consultation obligations in the OHS Act are not a matter arising under the Agreement or the NES. It was also highlighted that: as a paramedic, the Applicant is not able to perform her duties at home; has not applied to be considered as an “excepted person” or raised this at any prior stage; and has had ample time to consider her position.

[40] The Commission’s power to make interim orders is conventionally exercised to preserve the current state of affairs pending a full and considered hearing. 7

[41] However the Commission’s powers in the substantive application are confined to that which was conferred by the parties in agreeing the scope of the dispute resolution procedure(s). 8 Relevant to the Applicant’s employment, clause 11 of the Agreement provides a procedure by which a dispute about a matter arising under the Agreement or the NES is dealt with – the scope of the procedure does not extend to any subject matter of the employment.

[42] Having regard to the text of the Agreement, and taking the Applicant’s case at its highest, I am prepared to accept that there is a serious question as to whether the email of 11 October 2021 amounted to a request to take long service leave which was unreasonably refused in contravention of clause 62 of the Agreement. Consideration of that question would require the Applicant to overcome the jurisdictional objection(s). These considerations involve disputed facts. I do not consider it appropriate in this interlocutory application to decide or forecast the likely decision on those issues. I am satisfied that the Applicant has established a prima facie case in relation to at least this matter.

[43] On the materials presently before the Commission and the arguments advanced before me, I am not persuaded that the remainder of the allegations meet the threshold of a prima facie case.

[44] For completeness, and although it was not contended that the “status quo” provision at clause 11.2 of the Agreement would be of assistance, there is provision for work to continue in accordance with the usual practice existing immediately prior to the action giving rise to the dispute or grievance, until the dispute or grievance is resolved or withdrawn. In my view, the provision limits the application of the status quo to the performance of work, not the entire state of affairs, and accordingly the text of the status quo provision does not assist the Applicant for the purposes of the application for interim orders. 9

Balance of convenience

[45] The issue of whether there is a prima facie case and whether the balance of convenience favours relief are related questions. 10

[46] The Applicant contended that, if the Respondent is not restrained, it is almost inevitable that the Applicant’s employment will be terminated and she would thereby suffer “irreparable harm” including: financial impact of loss of employment and meeting her personal financial debts, in circumstances where she is single and has no other sources of income and has no other prospects of employment outside of paramedicine. Further, that she is significantly distressed at the prospect of losing her employment of some 17 years and would suffer unquantifiable injury to her dignity and identity. The Commission was asked to find that there is no inconvenience to the Respondent, who has not yet commenced a show cause process and given the Applicant is prepared to continue to remain “stood down” on paid personal leave or long service leave pending determination of the substantive application.

[47] The Respondent referred to recent authorityin support of its contention that the balance of convenience rests with it because the interim orders sought by the Applicant would effectively require the Respondent to continue to employ an unvaccinated person(s) whom it is required by law to prevent performing work on its premises and that this potential inability to assign unvaccinated person(s) either their usual or any useful work for the foreseeable future produces a potential financial detriment for the Respondent that would appear to be irrecoverable. 11 The Respondent emphasised that the Applicant has a choice: if she chooses to have her second vaccination, then her employment will continue; if she refuses to have her second vaccination, then her employment will end and she can access an unfair dismissal remedy.

[48] In this case, the Applicant is not currently subject of a show cause process and there is no immediate threat of termination of her employment. Indeed, the opportunity to comply with the directions and take the second vaccine before 15 December 2021 remains, if the Applicant so chooses, and it is accepted that there will be no termination of her employment in that event.

[49] The Applicant is presently unfit for work, accessing paid personal leave entitlements, has planned to draw on her accrued entitlements to annual leave (for some four weeks at the conclusion of her personal leave) and has volunteered to then expend her substantial (12 months of) accrued long service leave entitlements. These entitlements would be paid out on termination. It follows that, even if her employment was terminated, there does not appear to be any real prospect of financial loss in the foreseeable future. In my view, that the Applicant would not otherwise be at work diminishes the weight of the non-financial benefits that may ordinarily be associated with continuing in employment for the Respondent.

[50] On the other hand, if the interim orders sought by the Applicant were made, the Respondent would be required to continue to employ the Applicant (and, by the originally proposed extension to others in the group, other unvaccinated person(s)). As a paramedic, the Applicant is required to perform her work at the Respondent’s premises and the Respondent is, by the Government Directions as currently in force, required to prevent her from doing so. To the extent there was a submission made about a possible evolution of those Government Directions, this is entirely speculative and carries little weight in assessing the balance of convenience.

[51] Further, having regard to the broad power conferred on the Commission to make any order it considers appropriate, the Applicant may also be entitled to access an appropriate remedy if the substantive application in this matter were determined in her favour. It is also of significance that the impact on the Applicant of any dismissal could be compensated by orders for reinstatement and/or compensation.

[52] In my view, the balance of convenience does not favour the making of the order sought for interim relief. My assessment is that the risks associated with making an order for interim relief outweigh the inconveniences that will be encountered if I do not make such an order. I have also had regard to the strength of the applicants’ prima facie case in assessing the balance of convenience in this matter.

[53] For completeness, in forming my assessment as to the balance of convenience, I have regarded the fact that the Applicant did not provide an undertaking as to damages as a neutral consideration.

Conclusion

[54] For the reasons given, the application for interim relief is dismissed.

[55] The Commission as presently constituted remains available to assist the parties to settle the dispute by conducting conciliation on any of 14, 15 or 16 December 2021 and will communicate with the parties in this regard.

DEPUTY PRESIDENT

Appearances:

Mr B. Coyne for the Applicant.
Mr F. Parry for the Respondent.

Hearing details:

2021.
Melbourne (by Video).
8 December.

Printed by authority of the Commonwealth Government Printer

<PR736568>

Annexure A

Proposed Interim Orders

[..] Pursuant to section 739 and section 589(2) of the Fair Work Act 2009 (Cth), it is ordered that:

1. Until determination of the Applicant’s Group Grievance dispute in matters C2021/8244 and C2021/XXXX Ambulance Victoria take no further steps to:

(i) finalise or further progress any show cause process, or any other disciplinary process, against the Applicant;

(ii) terminate the Applicant’s employment.

2. For the avoidance of doubt, the above Order;

a. Is made without prejudice to the rights of any party, either as to the jurisdiction of the Commission to deal with the alleged dispute; or to the determination of the merits of the alleged dispute; or to the commencement or outcome of any other proceeding that is, or may be contemplated, in relation to the matters that are the subject of this alleged dispute.

b. Is made in the expectation that the members of the Grievance Group remain stood-down from their employment, noting that the permissibility of such stand-down is itself one of the matters in dispute between the parties;

c. Extends to there being no steps taken by Ambulance Victoria to either terminate the employment of members of the Grievance Group or to otherwise impose sanction of any description upon them.

B. Liberty to apply generally on these matters is granted

 1   Summarised in CFMMEU & Another v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal[2021] FWC 6309 per Saunders DP (CFMMEU v Mt Arthur Coal Interim Decision) at [24]-[25]; see also CEPU v Telstra Corporation (PR933892) per Lawler VP (CEPU v Telstra) at [88].

 2   Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 (ABC v O’Neill) at [81]-[84].

 3   QNurses First Inc v Monash Health [2021] FCA 1372 at [19]-[20].

 4   ABC v O’Neillat [19] and [65]-[71]; Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at [153].

 5   ABC v O’Neill at [65]-[71].

 6   Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-3.

 7   CFMMEU v Mt Arthur Coal Interim Decision at [37]; CEPU v Telstra at [85].

 8 s.739 of the Act.

 9   Nazih Beydoun & Ors v Northern Health & Ors [2021] FWC 6341 per Clancy DP (Beydoun v Northern Health) at [23].

 10 Beydoun v Northern Health at [25].

 11 Beydoun v Northern Health at [28].