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Colebourne v State of Queensland (Queensland Police Service)[2021] QIRC 380

Colebourne v State of Queensland (Queensland Police Service)[2021] QIRC 380

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Colebourne v State of Queensland (Queensland Police Service) [2021] QIRC 380

PARTIES: 

Colebourne, Janette

(Applicant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO.:

PSA/2021/377

PROCEEDING:

Application to stay decision being appealed

DELIVERED ON:

9 November 2021

HEARING DATE:

3 November 2021

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDER:

The Applicant's application to stay the decision being appealed is dismissed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – applicant employed as Acting Injury Management Advisor in the Queensland Police Service – Commissioner of the Queensland Police Service issued direction on 7 September 2021 mandating that certain employees, unless exempted, must receive a COVID-19 vaccine, including a first dose by 4 October 2021 – applicant applied for exemption from complying with requirement to be vaccinated – decision that exemption not granted and requirement that applicant receive a vaccine within two days and provide evidence of such vaccination – applicant, pursuant to ch 7 of the Public Service Act 2008, appealed against the decision not to grant exemption and requirement that applicant receive a vaccine within two days – applicant applied, pursuant to s 566(1) of the Industrial Relations Act 2016, that the decision being appealed be wholly stayed pending determination of the appeal – consideration of matters in granting a stay of a decision being appealed against pending determination of appeal – no decision that can be stayed – balance of convenience submissions misconceived – preliminary assessment of prospects of success – stay not granted

LEGISLATION:

Industrial Relations Act 2016, s 562B and s 566

Police Service Administration Act 1990, s 2.5 and s 4.9

Public Service Act 2008, s 119, s 137, s 194 and s 197

CASES:

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618

BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources and Safety & Health Queensland [2021] ICQ 001

Byrne v Legal Services Commissioner [2010] VSCA 162; (2010) 27 VR 674

Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322; (2008) 2 Qd R 453

Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015

Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465

Re Minister For Immigration and Multicultural Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212

State of Queensland (Department of Justice and Attorney-General) v Siobhan Maree Parer & Anor [2016] ICQ 013

State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190

APPEARANCES:

Mr D. Goldman of Together Queensland, Industrial Union of Employees for the Applicant

Mr C. Capper and Ms A. Howell of the Queensland Police Service for the Respondent

Reasons for Decision

Introduction

  1. [1]
    Ms Janette Colebourne is employed in the position of Acting Injury Management Advisor, within Injury Management, Safety and Recruiting, People Capability Command of the Queensland Police Service ('the Service'). Ms Colebourne is employed as a staff member of the Service within the meaning of s 2.5 of the Police Service Administration Act 1990 and is appointed as an officer of the public service pursuant to s 119 of the Public Service Act 2008 ('the PS Act').
  1. [2]
    On 7 September 2021, pursuant to s 4.9 of the Police Service Administration Act 1990, the Commissioner of the Service ('the Commissioner') issued the Instrument of Commissioner's Direction No. 12 concerning the mandatory COVID-19 vaccination and mask requirements for police officers and certain staff members ('Direction No. 12').
  1. [3]
    Paragraph 6 of Direction No. 12 relevantly provides that it applies to all staff members appointed pursuant to s 119 of the PS Act who are frontline staff members or frontline support staff members.
  1. [4]
    Paragraph 7 of Direction No. 12 relevantly provides that unless a staff member, to whom Direction No. 12 applies, is exempt under paragraph 8 or 9, all such staff members must receive at least one dose of a COVID-19 vaccine by 4 October 2021, receive a second dose of a COVID-19 vaccine by 24 January 2022 and provide evidence of receiving a COVID-19 vaccine if requested by the Commissioner or the Commissioner's delegate.
  1. [5]
    Ms Colebourne applied for an exemption against the mandatory requirement that she receive the two doses of a COVID-19 vaccine by the relevant dates. By email dated 14 October 2021, Ms Colebourne was advised of the decision that her application for an exemption had not been supported or approved and that she was required to receive a vaccine within the next two days and provide evidence of such vaccination ('the decision').
  1. [6]
    By appeal notice filed on 2 November 2021, Ms Colebourne, pursuant to ch 7, pt 1 of the PS Act, appealed against the decision. By her appeal, Ms Colebourne contends that, for a number of reasons, the decision not to exempt her from the requirement of paragraph 7 of Direction No. 12 was not fair and reasonable.
  1. [7]
    Section 197 of the PS Act provides that an appeal under ch 7, pt 1 of the PS Act is to be heard and determined under ch 11 of the Industrial Relations Act 2016 ('the IR Act') by the Queensland Industrial Relations Commission. The purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[1]
  1. [8]
    Section 566(1) of the IR Act relevantly provides that on an appeal, the Commission may order that the decision being appealed be wholly or partly stayed pending the determination of the appeal or a further order of the Commission.
  1. [9]
    Ms Colebourne, in her appeal notice, has applied, pursuant to s 566 of the IR Act, for an order that the decision be wholly stayed pending the determination of her appeal, '… including any consequential action including the suspension of my employment.'
  1. [10]
    The question for my determination is whether I should grant the stay as sought by Ms Colebourne.
  1. [11]
    For the reasons that follow, I dismiss Ms Colebourne's application for a stay of the decision.

Background

  1. [12]
    There is no dispute about the following facts.
  1. [13]
    Ms Colebourne's substantive position is located at the Queensland Police Academy however, since 20 February 2020, Ms Colebourne has been acting in a position at a higher classification level, being that of Injury Management Advisor. On 28 January 2022, Ms Colebourne's acting in that position is due to end.
  1. [14]
    In acting in the position of Injury Management Advisor, Ms Colebourne works in an office on Makerston Street in Brisbane two days per week and at home two days per week.
  1. [15]
    Direction No. 12 had effect from 7 September 2021. Paragraphs 1 to 5 of Direction No. 12 sets out the reasons why the Commissioner made the direction, in respect of the police officers and staff members to whom Direction No. 12 applies, to require them to be vaccinated against COVID-19. Those paragraphs provide:

Background

  1. A public health emergency was declared on 29 January 2020 for the whole of Queensland, under the Public Health Act 2005, due to the outbreak of COVID-19 and the health implications to Queensland. The risk presented by COVID-19 is heightened by the increased transmissibility and secondary attack rate of the delta variant, its increased virulence and severity of disease and the reduction in neutralising antibody activity.
  1. In order to fulfil the functions of the Queensland Police Service under section 2.3 of the Police Service Administration Act 1990, police officers must be frontline-ready and available for deployment. The Queensland Police Service has particular responsibilities during the declared public health emergency, including deployment of police officers and staff members to quarantine facilities as well as to COVID-19 border compliance duties. More broadly, the nature and frequency of police officers' interactions with members of the community, particularly vulnerable members of the community, results in a significantly increased risk of police officers contracting or transmitting COVID-19. Rapid transmission of COVID‑19 through the Queensland Police Service would take police officers and staff members out of service while they Colebourne v State of Queensland (Queensland Police Service) [2021] QIRC 380undertake quarantine periods or recover from COVID‑19. In an extreme scenario, this could reduce the availability of police officers and staff members for deployment, and threaten the ability of the Queensland Police Service to serve the community.
  1. While it is primarily police officers who are on the front line, many staff members:
  1. have close working relationships with police officers;
  1. interact with members of the community (including vulnerable members of the community) in roles such as Police Liaison Officers as well as in public-facing roles at police stations; and,
  1. are mission critical, such as staff members stationed at Communications Centres, Policelink, fleet maintenance facilities and Queensland Government Air (QGAir).
  1. The Work Health and Safety Act 2011 places a responsibility on me as the Commissioner of Police, so far as is reasonably practicable, to ensure the health and safety of police officers and staff members. That Act also requires me to ensure, so far as is reasonably practicable, the health and safety of other people with whom police officers and staff members interact when performing the functions of the Queensland Police Service.
  1. While individual police officers and staff members have important human rights, those rights must be weighed against the interests of the community, including the human rights of others and the need to ensure that the Queensland Police Service is able to serve the community during a public health emergency.
  1. [16]
    Direction No. 12 provides for the ability for police officers and staff members, to whom Direction No. 12 applies, to apply for and be granted an exemption from the mandatory vaccination requirement. Paragraphs 8 to 11 of Direction No. 12 provide:

Exemption from requirements for vaccination against COVID-19

  1.  A police officer or staff member is exempt from the requirements in paragraph 7 if:
  1. the police officer or staff member is unable to be vaccinated due to a medical contraindication; and
  1. the police officer or staff member provides to the Commissioner of Police (or delegate) a letter from a treating doctor or specialist outlining:
  1. (i)
    the condition which makes it unsafe for the police officer or staff member to receive all available COVID-19 vaccines; and
  1. (ii)
    whether the condition is temporary in nature, and, if so, the duration.
  1. A police officer or staff member is also exempt from the requirements in paragraph 7 if the Commissioner of Police (or delegate) grants an exemption:
  1. due to a genuine religious objection; or
  1. due to other exceptional circumstances.
  1. A police officer or staff member who applies for an exemption under paragraph 9 must provide any supporting evidence requested.
  1. An exemption granted under paragraph 9 must be given in writing and may be subject to conditions. A police officer or staff member given an exemption must comply with any conditions specified therein.
  1. [17]
    As referred to earlier, paragraph 7 of Direction No. 12 provides that unless a staff member is exempt under paragraphs 8 or 9, all staff members, to whom Direction No. 12 applies, must receive at least one dose of a COVID-19 vaccine by 4 October 2021.
  1. [18]
    By memorandum dated 4 October 2021, Ms Colebourne applied to a committee known as the Vaccination Exemption Committee ('VEC') for an exemption '… due to other exceptional circumstances' as provided for in paragraph 9 b) of Direction No. 12.
  1. [19]
    By way of summary, the reasons given by Ms Colebourne for her application for exemption were:
  • there were judicial proceedings in courts and tribunals in Queensland, and in other superior courts, regarding the validity of public health orders mandating vaccinations against COVID-19 and it would not be reasonable for her to have an irreversible medical procedure when such judicial rulings were outstanding;
  • there were changes reported day by day about adverse reactions by persons who received a COVID-19 vaccination;
  • she has a family medical history of disposition to heart disease, cancer, vaccine reactions, migraines, and Guillain-Barre Syndrome;
  • making any commitment to having the vaccination was going to create a serious adverse and confrontational environment in her family due to strong beliefs and faith held by her husband of 32 years and her immediate family members;
  • Direction No. 12 was in contradiction to the mandated COVID-19 vaccination by the Chief Health Officer of Queensland for health workers, principally because Ms Colebourne, in her position, did not have close working relationships with police officers or members of the community;
  • the dissenting decision of Deputy President Dean of the Fair Work Commission in Kimber v Sapphire Coast Community Aged Care Ltd[2] and the reasons given by Deputy President Dean as to why vaccinations should remain voluntary;
  • her workplace would be considered a low exposure risk having regard to World Health Organisation publications;
  • because both unvaccinated and vaccinated people can carry and spread COVID‑19, if there was an outbreak, the Chief Health Officer would lockdown Queensland, as has frequently occurred in past minor outbreaks, such that she (Ms Colebourne) would then work from home and therefore the Commissioner could be assured that, as an employee of the Service, she (Ms Colebourne) should be able to continue to fulfil all her work functions and obligations;
  • during all lockdowns and since the pandemic was declared on 29 January 2020, she has continued to maintain good hygiene and health practices;
  • because of her domestic circumstances, she has limited interaction with members of the community;
  • the likelihood of mortality for her own age group, with no underlying health issues, is less than 1 percent;
  • she has a low risk of contracting severe COVID-19 illness because she has none of the listed medical conditions and is not in the demographic documented on the Australian Government Department of Health website;
  • she believes that no Service employee has contracted COVID-19 and when exposed in the workplace, an employee is managed with testing first and then by isolation until a result is received, which is backed up by contact tracing engaged by Queensland Health in circumstances where further risk assessments and protocols are commenced;
  • what cannot be managed is the risk to her and her health by having the COVID‑19 vaccination and exposure to adverse reactions or death; and
  • the COVID-19 vaccinations are only provisionally approved and are subject to efficacy and safety from ongoing trials and post market assessment.[3]
  1. [20]
    Ms Colebourne requested that she not be subject to any intimidation, victimisation or discipline proceedings based on her family's beliefs and faith or other matters mentioned in her application for exemption.[4]
  1. [21]
    Ms Colebourne also annexed to her memorandum, although, as I understand the evidence, not as the only annexure, a medical certificate dated 6 September 2021 in which her treating General Practitioner stated that Ms Colebourne was feeling very anxious about the mandatory COVID vaccination requirement and that Ms Colebourne '… would like to have some time so that she can get more information about the vaccine and prepare emotionally'.[5]
  1. [22]
    The VEC, on a date not particularised, recommended that the exemption not be granted to Ms Colebourne on the basis that there was no supporting evidence.[6] The Commissioner's delegate, the Deputy Commissioner, Strategy and Corporate Services ('the Deputy Commissioner') on 11 October 2021, agreed that the exemption should not be approved on the basis that there was no valid medical evidence provided for the medical exemption and no religious grounds advanced.[7]
  1. [23]
    By email dated 14 October 2021 from Superintendent Terry Lawrence, Ms Colebourne was advised that Superintendent Lawrence had received advice that the VEC and the Deputy Commissioner had not supported or approved her application for exemption from receiving the COVID-19 vaccination.
  1. [24]
    In particular, Superintendent Lawrence stated:

This determination was based on the evidence and or information provided which was deemed insufficient to support your circumstances.

As a consequence you are now required to receive a vaccine within the next two days and provide evidence to me of such vaccination.

Please provide a priority response as to whether you intend to comply with the Commissioner's Direction and my requirement to be vaccinated in the forthcoming two days which are the 15th and 16th of October.

If you decline or fail to get vaccinated within that time frame the ED will consider your position within Safety and Wellbeing and the QPS and make a determination as to whether suspension proceedings should be commenced against you.

  1. [25]
    Ms Colebourne did not receive a vaccination within two days of 14 October 2021.
  1. [26]
    By written notice dated 20 October 2021, but received by Ms Colebourne on 26 October 2021, from Acting Assistant Commissioner Virginia Nelson of the Ethical Standards Command of the Service, Ms Colebourne was notified that:
  • a decision was made that, pursuant to s 137(1)(a) of the PS Act, she (Ms Colebourne) was suspended on normal remuneration because Acting Assistant Commissioner Nelson formed the view that the proper and efficient management of the Service might be prejudiced if she was not suspended;
  • the suspension would take effect immediately upon her receipt of Acting Assistant Commissioner Nelson's notice;
  • the suspension would remain in force until midnight 19 April 2022 unless cancelled earlier; and
  • she was required, within seven days of her receipt of Acting Assistant Commissioner Nelson's notice, to show cause why she should not be suspended without pay ('the show cause notice').
  1. [27]
    It is also not disputed that:
  • at some point about or soon after her receipt of Acting Assistant Commissioner Nelson's notice, Ms Colebourne accessed sick leave by the provision of a medical certificate and has made an application for workers' compensation; and
  • Ms Colebourne responded to the show cause notice on 2 November 2021.

Section 566(1) of the IR Act

  1. [28]
    Section 566(1) of the IR Act provides:

566  Stay of decision appealed against

  1. (1)
    On an appeal, the industrial tribunal may order that the decision being appealed be wholly or partly stayed pending-
  1. (a)
    the determination of the appeal; or
  1. (b)
    a further order of the industrial tribunal.
  1. [29]
    There is no dispute that s 566(1) of the IR Act is the source of discretionary power for the Commission to stay the decision against which Ms Colebourne has appealed.
  1. [30]
    However, on the clear words used in that section, the discretion conferred on the Commission to grant a stay is only in respect of '… the decision being appealed'. The only decision that Ms Colebourne has appealed, pursuant to ch 7, pt 1 of the PS Act, is the decision conveyed by Superintendent Lawrence on 14 October 2021, being that her application for exemption had not been approved and that she was required to receive a COVID-19 vaccination by 16 October 2021. Ms Colebourne has not appealed any other decision.
  1. [31]
    The only discretionary power I have, pursuant to s 566(1) of the IR Act, is in respect of the decision conveyed by Superintendent Lawrence because that is the decision against which Ms Colebourne has appealed.

The relevant principles in granting a stay of a decision pending an appeal of the decision

  1. [32]
    Section 566(1) of the IR Act confers an unfettered discretion on the Commission to grant a stay of a decision being appealed.
  1. [33]
    The parties agree on the relevant principles that apply, in determining whether or not to exercise discretion, to grant a stay. They are:
  • the onus is on the applicant to demonstrate a proper basis for a stay that will be fair to all parties;[8]
  • the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears;[9]
  • the tribunal has a discretion whether or not to grant a stay and, if so, as to the terms that would be fair; [10]
  • in the exercise of its discretion, the tribunal will weigh considerations such as the balance of convenience and the competing rights of the parties before it;[11]
  • where there is a risk that the appeal will prove abortive if the applicant succeeds and a stay is not granted, tribunals will normally exercise their discretion in favour of granting a stay;[12]
  • where it is apparent that unless a stay is granted, an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay; and
  • although tribunals approaching applications for a stay will not generally speculate about the applicant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, from making some preliminary assessment about whether the applicant has an arguable case.[13]
  1. [34]
    The prospects of success will obviously tend to favour the refusal of a stay if the prospects of the appeal can be seen to be very poor.[14]
  1. [35]
    In general, the balance of convenience involves a consideration of whether the inconvenience or injury which the applicant would be likely to suffer if a stay is refused outweighs or is outweighed by the injury which the respondent would suffer if a stay was granted.[15]
  1. [36]
    The above-mentioned principles have been applied by the Industrial Court of Queensland[16] and by the Commission[17] in respect of applications for stays of decisions, pending appeals or reviews of the decisions, in other analogous statutory contexts.

Ms Colebourne's grounds of appeal

  1. [37]
    In the schedule attached to her appeal notice filed on 2 November 2021, Ms Colebourne gives particulars of her grounds of appeal. Ms Colebourne contends that:
  • she is not a 'frontline support staff member'[18] within the meaning of Direction No. 12 because she works from home or has little or no contact with police officers or frontline staff members or members of the public;
  • the decision maker provided no written reasons for the decision not granting her the exemption;
  • she commenced a stage 1 grievance requesting information about the identity of the decision makers and the decision-making process, which was not provided to her;
  • she was denied procedural fairness because she was not given a chance to respond to the views of the decision makers;
  • there was a failure to use or adequately consider or weigh her human rights and the Human Resources Compatibility statement;
  • there was a failure to particularise, adequately consider or appropriately weigh work health and safety obligations; and
  • there was a failure to adequately consider and weigh the potential impacts on her health of being forced to be vaccinated.

Ms Colebourne's submissions as to whether the decision should be stayed

  1. [38]
    Ms Colebourne submitted that:
  • unless a stay was granted, her appeal would prove abortive because she faces potential disciplinary action including, potentially, the termination of her employment;
  • the balance of convenience favours a stay being granted because the significant disadvantage that would likely be suffered by her is a long period of suspension without pay and possibly disciplinary action, whereas the lesser disadvantage the Service would suffer would be the practical effect that Ms Colebourne, as one employee of the Service, is temporarily exempt from the requirement to receive a COVID-19 vaccination; and
  • Ms Colebourne has an arguable case on appeal because:
  • there were no clear reasons given by the decision makers as to why the grounds given by Ms Colebourne for her to be exempt from the mandatory vaccination requirement did not meet the '… other exceptional circumstances' as contained in paragraph 9 b) of Direction No. 12; and
  • the other grounds set out in her appeal notice.

The submissions of the Service as to whether the decision should be stayed

  1. [39]
    The Service submitted that:
  • the decision being appealed is the decision that Ms Colebourne not be granted an exemption from the mandatory vaccination requirement and there is no appeal against the decision to suspend Ms Colebourne with pay or a decision that may be made to suspend Ms Colebourne without pay;
  • Ms Colebourne's case on appeal is not strong because she had the full opportunity to make a case to be granted an exemption from the mandatory vaccination requirement and she took that opportunity by making a six page submission to the VEC;
  • the balance of convenience does not favour the granting of a stay because the practical effect of granting a stay, at this point, would be that Ms Colebourne would return to the workplace on the days she must or may attend the Service's workplace premises, despite being unvaccinated, in circumstances where Queensland's borders will open up very shortly which will increase the presence of COVID‑19 in the community thereby increasing exposure; and
  • if a stay is not granted, Ms Colebourne's appeal would not be abortive because in the absence of a stay, Ms Colebourne can still appeal against the decision not to grant her an exemption from the requirement to be vaccinated.
  1. [40]
    It was submitted on behalf of Ms Colebourne, in reply, that if a stay was granted, the effect may not be the case that Ms Colebourne would return to the Service's workplace, because the Service would have the option to direct her not to attend the workplace or direct that she work in a workplace where her presence would be safe.

The decision should not be stayed

No decision that can be stayed

  1. [41]
    As set out in Ms Colebourne's appeal notice, not only does Ms Colebourne seek a stay of the decision conveyed by Superintendent Lawrence namely, that Ms Colebourne's application for exemption was not granted, and that she was required to receive a COVID‑19 vaccination by 16 October 2021 and provide evidence of such vaccination, Ms Colebourne also seeks a stay of any consequential action including the suspension of her employment. Ms Colebourne, in her appeal notice, contended a stay in the terms she sought was required '… due to the actions of the employer to proceed with detrimental action against me despite my attempts to seek review [of] the decision in contention.'
  1. [42]
    For the reasons given earlier, the only decision against which Ms Colebourne has appealed is the decision conveyed by Superintendent Lawrence. There has been no appeal against the decision to suspend Ms Colebourne with normal remuneration[19] and, at the date of the hearing of Ms Colebourne's application for a stay, there has been no decision about whether or not she would be suspended without normal remuneration. The only discretion I have is to grant or not to grant a stay in respect of the decision against which Ms Colebourne has appealed.
  1. [43]
    Having regard to the grounds upon which Ms Colebourne makes her appeal, Ms Colebourne is clearly challenging the correctness of the decision as conveyed by Superintendent Lawrence. That decision was that:
  • Ms Colebourne did not meet the '… other exceptional circumstances' basis for an exemption to the requirement that she receive a COVID-19 vaccination; and
  • by 16 October 2021, she receive a COVID-19 vaccination and provide proof of such vaccination to Superintendent Lawrence.
  1. [44]
    Practically, there is nothing that can be stayed in respect of the first part of the decision conveyed by Superintendent Lawrence. This is because it was that Ms Colebourne's application for an exemption had been declined.
  1. [45]
    The second part of the decision conveyed by Superintendent Lawrence was the requirement that Ms Colebourne receive a COVID-19 vaccination by 16 October 2021 and to provide evidence of such vaccination. That date has come and gone. There is no dispute that Ms Colebourne decided not to receive a vaccination by 16 October 2021. Again, from a practical point of view, there is no decision that can be stayed having regard to that part of the decision conveyed by Superintendent Lawrence.
  1. [46]
    My conclusion above is sufficient to dispose of Ms Colebourne's application for a stay.
  1. [47]
    However, because the representatives of Ms Colebourne and the Service made submissions about the balance of convenience and the preliminary assessment of whether or not Ms Colebourne had an arguable case on appeal, I will briefly address those matters.

The balance of convenience

  1. [48]
    Because there is no decision that can, from a practical point of view, be stayed, then a consideration about the balance of convenience cannot arise.
  1. [49]
    It was agreed between the parties that following the issuing of Direction No. 12, the Service applied the following procedure in respect of the mandatory requirement that the relevant employees be vaccinated:
  • in respect of an employee to whom Direction No. 12 applied, the employee had to be vaccinated by the due date specified, unless the employee had applied for an exemption;
  • if the employee applied for an exemption, the VEC then made a determination about whether or not the application for exemption, by the individual employee, would be granted;
  • if the VEC decided that an exemption would not be granted to the employee, then a direction would be given that the employee receive a vaccination within 48 hours; and
  • if the employee who was so required to receive a vaccination within 48 hours refused to receive the vaccination, they would be acting contrary to the direction.[20]
  1. [50]
    In dealing with balance of convenience issues, the parties agreed that if the stay was granted, then the outcome would be, in effect, that there would be no decision made by the VEC, such that Ms Colebourne would be deemed to be exempt from the requirement to be vaccinated.[21] Both parties had made submissions about the balance of convenience assuming that would be the outcome if the stay was granted.
  1. [51]
    However, in my view, that approach is misconceived. For the reasons I have given earlier, there is no decision that can be stayed. The outcome agreed by the parties, referred to in the preceding paragraph, could only be the outcome if Ms Colebourne's appeal was (temporarily) allowed and I (temporarily) set aside the decision conveyed by Superintendent Lawrence.

Arguable case on appeal

  1. [52]
    On the material before me, Ms Colebourne has an arguable case on appeal and I cannot form the view that the prospects of Ms Colebourne's appeal are poor. There are two reasons for this.
  1. [53]
    First, on my preliminary assessment only, it seems to me that there is an argument as to whether, at least in respect of the position in which Ms Colebourne has been acting at a higher classification level, namely, Injury Management Advisor, that position meets the definition of 'frontline support staff member' as contained in paragraph 15 of Direction No. 12. On the basis of the particulars in Ms Colebourne's grounds of appeal, there may be an argument that Ms Colebourne's present acting position does not meet that definition.
  1. [54]
    However, there is no dispute that Ms Colebourne's acting in that position is due to end on 28 January 2022. There is presently no material before me about the nature of Ms Colebourne's substantive position at the Queensland Police Academy and, in respect of that position, her interaction with police, frontline staff members or members of the community.
  1. [55]
    Secondly, in determining whether or not the decision appealed against was fair and reasonable, Ms Colebourne may have an argument that the decision did not give her adequate reasons for denying her application for the exemption as sought by her.
  1. [56]
    The adequacy of reasons of an administrative decision maker is to be tested by reference to the nature of the task which the decision maker had to undertake.[22] The more significant the decision, the clearer the reasons should be.[23]
  1. [57]
    Further, while it is not necessary for the decision maker to deal with every matter which was or which may have been raised, it is enough that the findings and reasons deal with the substantial issues upon which the decision turned, such that a person aggrieved by the decision can understand why the decision went against him or her.[24]

Conclusion

  1. [58]
    The question in this case was whether I should exercise discretion, pursuant to s 566(1) of the IR Act, to stay the decision not to grant Ms Colebourne an exemption against the mandatory requirement that she receive the two doses of a COVID-19 vaccine and the requirement that she receive a vaccine by 16 October 2021.
  1. [59]
    For the reasons I have given, this is not a case where the circumstances are such that the discretion to grant a stay of the decision appealed by Ms Colebourne has been enlivened.
  1. [60]
    I will separately issue a Directions Order for the hearing and determination of Ms Colebourne's appeal.

Order

  1. [61]
    I make the following order:

The Applicant's application to stay the decision being appealed is dismissed.

Footnotes

[1] Industrial Relations Act 2016 s 562B(3).

[2] [2021] FWCFB 6015, 35 to 46.

[3] Exhibit 2, pages 1 of 6 to 5 of 6.

[4] Exhibit 2, pages 5 of 6 to 6 of 6.

[5] Exhibit 2, last page.

[6] Exhibit 2, first page.

[7] Exhibit 2, first page.

[8] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 ('Alexander') 694 (Kirby P, Hope and McHugh JJA).

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Alexander (n 8), 695.

[13] Ibid.

[14] Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322; (2008) 2 Qd R 453 [13] (Keane JA, with whom McMurdo P and [2] and White AJA at [39] agreed).

[15] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, 623 (Kitto, Taylor, Menzies and Owen JJ).

[16] State of Queensland (Department of Justice and Attorney-General) v Siobhan Maree Parer & Anor [2016] ICQ 013, [12] (Deputy President O'Connor) and BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources and Safety & Health Queensland [2021] ICQ 001, [8]-[10] (Vice President O'Connor).

[17] State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190, [10] (Vice President O'Connor).

[18] Paragraph 15 of Direction No. 12 defines 'frontline support staff member' to mean:

[A] staff member who has a 'non-corporate services' role and who provides essential support, enabling the effective delivery of frontline services including services performed at Communication Centres, Policelink, fleet maintenance facilities, and Queensland Government Air (QGAir).

[19] Noting that, pursuant to s 194(1)(bb) of the PS Act, an appeal may only be made against a decision to suspend a public service employee without entitlement to normal remuneration under s 137 of the PS Act.

[20] T 1-34, ll 1-23.

[21] T 1-34, ll 23-35.

[22] Byrne v Legal Services Commissioner [2010] VSCA 162; (2010) 27 VR 674, [59] (Ashley JA, Hanson AJA at [99] and Emerton AJA at [100] agreeing).

[23] Re Minister For Immigration and Multicultural Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212, [64] (Kirby J).

[24] Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465, 481 (Wilcox J).

Close

Editorial Notes

  • Published Case Name:

    Colebourne v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Colebourne v State of Queensland (Queensland Police Service)

  • MNC:

    [2021] QIRC 380

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    09 Nov 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Alexander & Ors v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
3 citations
Jump To
Cite 1 - (1985) 2 NSWLR 685
Cite 2 - (1985) 2 NSWLR 685
Cite 3 - (1985) 2 NSWLR 685
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
2 citations
Jump To
Cite 1 - (1968) 118 CLR 618
Cite 2 - (1968) 118 CLR 618
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1
2 citations
Jump To
Cite 1 - [1968] HCA 1
Cite 2 - [1968] HCA 1
BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources Safety & Health Queensland [2021] ICQ 1
2 citations
Jump To
Cite 1 - [2021] ICQ 1
Cite 2 - [2021] ICQ 1
Byrne v Legal Services Commissioner [2010] VSCA 162
2 citations
Jump To
Cite 1 - [2010] VSCA 162
Cite 2 - [2010] VSCA 162
Byrne v Legal Services Commissioner (2010) 27 VR 674
2 citations
Jump To
Cite 1 - (2010) 27 VR 674
Cite 2 - (2010) 27 VR 674
Cook's Construction Pty Ltd v Stork Food Systems Aust Pty Ltd[2008] 2 Qd R 453; [2008] QCA 322
4 citations
Jump To
Cite 1 - [2008] QCA 322
Cite 2 - [2008] QCA 322
Cite 3 - [2008] 2 Qd R 453
Cite 4 - [2008] 2 Qd R 453
FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301
2 citations
Jump To
Cite 1 - [1987] FCA 301
Cite 2 - [1987] FCA 301
Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015
2 citations
Jump To
Cite 1 - [2021] FWCFB 6015
Cite 2 - [2021] FWCFB 6015
Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Palme (2003) 216 CLR 212
2 citations
Jump To
Cite 1 - (2003) 216 CLR 212
Cite 2 - (2003) 216 CLR 212
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
2 citations
Jump To
Cite 1 - (1987) 16 FCR 465
Cite 2 - (1987) 16 FCR 465
Queensland v Parer [2016] ICQ 13
2 citations
Jump To
Cite 1 - [2016] ICQ 13
Cite 2 - [2016] ICQ 13
Re Minister For Immigration and Multicultural Affairs; Ex parte Palme [2003] HCA 56
2 citations
Jump To
Cite 1 - [2003] HCA 56
Cite 2 - [2003] HCA 56
State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190
2 citations
Jump To
Cite 1 - [2021] QIRC 190
Cite 2 - [2021] QIRC 190

Cases Citing

Case NameFull CitationFrequency
Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 162 citations
Fawcett v State of Queensland (Queensland Ambulance Service) [2022] QIRC 1712 citations
Grainey v State of Queensland (Queensland Health) [2022] QIRC 3012 citations
Karen v State of Queensland (Queensland Police Service) [2022] QIRC 382 citations
Katie Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 42 citations
McDowell v Cash Converters (Stores) Pty Ltd (No 2) [2022] QIRC 1102 citations
Radev v State of Queensland (Queensland Police Service) [2021] QIRC 4392 citations
Sainty v State of Queensland (Queensland Health) [2022] QIRC 3062 citations
Wilson v State of Queensland (Queensland Police Service) [2022] QIRC 4972 citations
1

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