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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 6553
Decision Date: 9 DECEMBER 2021

CaseChat Overview and Summary

The case of Sharon Cayzer v Ambulance Victoria involved an application for an interim order by Sharon Cayzer, a former employee of Ambulance Victoria, who alleged a dispute arising under an enterprise agreement and the National Employment Standards (NES). The matter was heard in the Fair Work Commission (FWC), which is responsible for resolving workplace disputes under Australian labour law.

The legal issues before the FWC centred on whether there was a genuine dispute under an enterprise agreement or the NES that warranted an interim order. Sharon Cayzer argued that there were breaches of her employment rights and that an interim order was necessary to prevent irreparable harm. Ambulance Victoria contested the existence of a genuine dispute and argued that any issues could be resolved through the normal processes of the enterprise agreement or through other available legal remedies.

The FWC assessed the application for interim relief, considering the likelihood of a genuine dispute existing and the potential for harm if the interim order was not granted. The Commission found that while Sharon Cayzer had raised legitimate concerns, there was insufficient evidence to establish that a genuine dispute existed at that point. Furthermore, the FWC considered that the potential harm was not immediate or irreparable enough to warrant an interim order. Consequently, the application for interim relief was refused.

No final orders were made in this particular decision as the matter was an application for interim relief. However, the refusal of interim relief may influence the subsequent proceedings and the ultimate resolution of the dispute.

Orders