CITATION: | Construction, Forestry Mining & Energy, Industrial Union of Employees & Anor v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 134 |
PARTIES: | Construction, Forestry Mining & Energy, Industrial Union of Employees & Electrical Trades Union of Employees Queensland (Applicant) v State of Queensland (Department of Transport and Main Roads) (Respondent) |
CASE NO: | D/2022/26, D/2022/27 |
PROCEEDING: | Interlocutory hearing |
DELIVERED ON: | 8 April 2022 |
HEARING DATE: | 7 April 2022 |
MEMBER: | O'Connor VP |
HEARD AT: | Brisbane |
ORDER: |
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CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – INTERLOCUTORY APPLICATION – INJUNCTIVE RELIEF – where Applicants seek an injunction to prevent implementation of vaccine mandate in department – where Applicants seeks the mandate be stayed – where Applicants seeks stay pending outcome of further hearing – whether injunction should be granted – whether test in ABC v O'Neill is satisfied – whether balance of convenience favours granting of injunction – whether there exists a prima facie case |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 262, s 473 Public Service Act 2008 (Qld) s 11, s 98 Work Health and Safety Act 2011 (Qld) s 19, s 27 |
CASES: | Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356 CFMEU v BHP Coal Pty Ltd [2016] FCA 109 CFMEU v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088 Dalley & Ors v Kelsey & Ors [2018] ICQ 6 Electrical Trades Union of Employees Queensland v Brisbane City Council [2017] QIRC 90 Morgan v Queensland (Queensland Health) [2020] QIRC 184 R v Darling Island Stevedoring and Lighterage Co Ltd; ex parte Halliday and Sullivan (1948) 60 CLR 601 Samsung Electronics Company Ltd v Apple Inc and Another (2011) 217 FCR 238 |
APPEARANCES: | Ms L Doust of counsel Instructed by Hall Payne for the Applicants. JE Murdoch of Queen's counsel, with him Mr T Spence instructed by Crown Law for the Respondent. |
Reasons for Decision
a. Did TMR fail to comply with;
b. If so, is the vaccination policy issued on 21 February 2022 by the Director-General of TMR unlawful and/or unreasonable, insofar as it applies to operational employees of TMR, by reason of that non-compliance?
a. taking any further steps to implement the policy entitled “TMR COVID-19 vaccination requirements – Whole of Department (WOD)”; and
b. taking disciplinary action against any employee for failing to comply with the policy entitled “TMR COVID-19 vaccination requirements – Whole of Department (WOD)”.
a. taking any further steps to implement the policy entitled “TMR COVID-19 vaccination requirements – Whole of Department (WOD)”; and
b. taking disciplinary action against any employee for failing to comply with the policy entitled “TMR COVID-19 vaccination requirements – Whole of Department (WOD)”.
Where TMR proposes to introduce changes within the scope of this Agreement and which are likely to have a significant effect on employees, TMR will notify both affected employees and their respective industrial organisations of employees either prior to any action being taken or at the earliest possible opportunity. TMR will discuss with employees and their industrial organisations of employees the introduction of change and measures to avoid or minimise any adverse consequences. Further, consideration will be given to issues raised by employees and their industrial organisations of employees in relation to these changes.
3.2 Disputes Avoidance and Settlement Procedures
The objective of this procedure is the avoidance and resolution of any disputes over matters covered by this Agreement by measures based on the provision of information and explanation, consultation, co-operation, and negotiation.
Subject to legislation, while the dispute procedure is being followed, normal work is to continue except in the case of genuine safety issues. The status quo existing immediately before the change which gave rise to the dispute is to continue whilst the procedure is being followed. No party shall be prejudiced as to the final settlement by the continuation of work.
There is a requirement for management to provide relevant information and explanation and to consult with the appropriate employee representatives.
In the event of any disagreement between the parties as to the interpretation or implementation of this Agreement, the following procedures shall apply:
In terms of the Industrial Relations Act 2016 or successor Act, the Commission is empowered by this Agreement to settle and determine any matters in dispute.
Nothing in this procedure shall prevent the SBU from taking any action considered conducive to resolving the matters in dispute.
Relevant Statutory Provisions
262 Action on Industrial Dispute
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473 Power to grant injunctions
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“injunction” includes an interim injunction.
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11 RELATIONSHIP BETWEEN CHIEF EXECUTIVES AND THEIR PUBLIC SERVICE EMPLOYEES
Note—
For particular provisions about a chief executive’s functions, see chapter 4 , part 1 , division 3 .
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98 RESPONSIBILITIES
(i) their numbers;
(ii) classification levels;
(iii) designation of roles;
Examples of chief executive responsibilities for departmental employees—
• recruitment and selection
• performance appraisal, training and development
• discipline and termination of employment
• working conditions and industrial issues
• ensuring fair treatment
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Section 19 of the WHS Act sets out the Respondent’s non-transferable duties (see s 14 of the WHS Act) to ensure, so far as reasonably practicable, the health and safety of (a)workers engaged, or caused to be engaged by the person; and (b)workers whose activities in carrying out work are influenced or directed by the person, while the workers are performing work for TMR.
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Principles to be applied
[27] The test to be applied when considering whether to grant an interlocutory injunction is prescribed in ABC v O'Neill where Gummow and Hayne JJ said:
[65] The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:
The first is whether the plaintiff has made out 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 … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.’
By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.’” (citations omitted)[2]
[17] The power in s 473 includes the power to grant an interim injunction. There is no definition of the phrase "interim injunction" given in the dictionary of the Act. Generally, an interlocutory injunction is usually expressed to lasts until the final hearing or further order whereas an interim injunction last until a named date or further order. However, having regard to the context in which the phrase "interim injunction" is used in s 473(10) of the Act, it does not seem to me that the granting of an injunction on the basis that it is not final is limited to orders of the kind traditionally made as interim injunctions. It seems to me to be open to grant an injunction under s 473(1), until the final hearing of a substantive application, to compel compliance with an industrial instrument, a permit or the Act or to restrain or prevent a contravention, or continuation of a contravention, of an industrial instrument, a permit or this Act.
Prima Facie Case
A direction given to an employee does not, without more, become a term or condition of employment. This is made clear in the management prerogative cases. Where a directive is within the scope of employment and it is not contrary to the employment contract, the award or any certified agreement, the direction must be obeyed provided compliance does not involve illegality and the directive is reasonable.[7]
(a) undertake a proper assessment of risk;
(b) discuss measures to avoid or minimise any adverse consequences; and
(c) give consideration to issues raised by employees and their industrial organisations.
While cl 47 of the Enterprise Agreement, set out above, gives “Consult” or “Consultation” a particular meaning for the purposes of that agreement, that meaning is not, in my view, at variance with a meaning which one might have given those words in any event, having regard to prior authority. I had occasion to consider that meaning in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (2010) 198 IR 382 in which, at 395, [44] - [45], I observed:
44 … A key element of that content is that the party to be consulted 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. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.
45 To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. 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”. …
Between mid January and mid February 2022 TMR conducted a process of consultation with the ETUQ and others about the draft policy. One of the ETUQ's primary contentions in this proceeding is that TMR has not complied with its consultation obligations. In short, the ETUQ says that TMR has failed to adequately consult and, as a result, the vaccine mandate is not a lawful and reasonable direction.[10]
TMR completed a risk assessment on 9 February 2022, which outlines how TMR employees are at risk of contracting and spreading COVID-19 in the workplace, including TMR employees who are required to travel to remote or discrete indigenous communities, as well as TMR employees who interact or are likely to interact with customers, visitors, other employees or the public in the normal course of employment. Annexed and marked AL-1 is a copy of the TMR COVID-19 Vaccination Risk Assessment.
[123] Section 48 of the Work Health & Safety Act 2011 prescribes particular acts of consultation which should occur. However, those requirements need only be fulfilled to the extent that fulfilment is “reasonably practicable”.
[124] Section 47 is of general application to all workforces and workplaces. It is easy to imagine that it may be reasonably practicable to consult on a face to face basis and fully in terms of s 48 with each individual member of a small workforce. Here, the workforce is over 17,200 in number.
[125] In Slivak v Lurgi (Australia) Pty Ltd, Gaudron J described the notion of “reasonably practicable”, in the context of fulfilment of a safety obligation, as follows:
“The words ‘reasonably practicable’ have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words ‘reasonably practicable’ are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:
‘the phrase ‘reasonably practicable’ means something narrower than ‘physically possible’ or ‘feasible;
what is ‘reasonably practicable’ is to be judged on the basis of what was known at the relevant time;
to determine what is ‘reasonably practicable’ it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.’”
[126] In Baiada Poultry Pty Ltd v The Queen, the High Court adopted a similar approach concluding:
“All elements of the statutory description of the duty were important. The words ‘so far as is reasonably practicable’ direct attention to the extent of the duty. The words ‘reasonably practicable’ indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.”
[127] The evidence shows that each employee received by email various documents over a period of time which explained the Commissioner’s intentions. Importantly, each of the applicants who gave evidence were members of a union at the time the direction was given. All the police and other staff were eligible for membership of one of the unions with whom the Deputy Commissioner consulted, and who supported the directive. Those unions, therefore, covered the workforce. It is well-established that trade unions may negotiate with employers, not only on behalf of their members, but also on behalf of workers who are eligible for membership.
[128] When considering in any particular case what consultation is “reasonably practicable”, regard must be had not only to the particular circumstances, but also to the legislative intention behind ss 47 and 48. The point of s 47 is to enable workers who may be affected by workplace, health and safety issues to have input into the management of those issues before an employer imposes conditions upon them. Obviously, the desirable outcome is agreement between the employer and employees as to the work, health and safety measures.
[129] Here, the unions agreed with the directive. In other words, the consultation reached the level where the directive was not a matter of contention. The unions, with total coverage over the workforce, agreed with it.
[130] There was argument as to whether the applicants bore the onus to prove that there had not been proper consultation or whether the Commissioner bore the onus to prove that there had. Nothing turns on this. There is a solid body of evidence introduced through Deputy Commissioner Smith which is effectively unchallenged which establishes proper consultation. That evidence includes that unions with total collective coverage of the workforce agreed with the direction.
Balance of Convenience
Conclusion
a. If the evidence remains as it is, there is no probability that at the hearing of the dispute, the Applicants will be held entitled to the relief; and
b. The inconvenience or the injury which the Applicants allege they will suffer if an interlocutory order is refused, is outweighed by the injury which TMR would suffer if an injunction is granted.
Orders
1. The application is dismissed
2. The matter be listed for mention to programme the substantive hearing at 9:15am on 12 April 2022.
[1] [2018] ICQ 6.
[2] Ibid [27].
[3] Electrical Trades Union of Employees Queensland v Brisbane City Council [2017] QIRC 90.
[4] [2020] QIRC 184.
[5] Public Service Act 2008 (Qld) ss 11, 98; Work Health and Safety Act 2011 (Qld) ss 19, 27.
[6] [2021] QIRC 354 [64].
[7] R v Darling Island Stevedoring and Lighterage Co Ltd; ex parte Halliday and Sullivan (1948) 60 CLR 601, 621-2.
[8] CFMEU v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088 (8 October 2015) (Murphy J); CFMEU v BHP Coal Pty Ltd (2016) FCA 1009 (26 August 2016) (Logan J).
[9] (2016) FCA 1009 (26 August 2016).
[10] Affidavit of Scott Reichman affirmed 23 March 2022, [8].
[11] Affidavit of Adrian Langford at [23]-[48]; Exhibit AL-17 – AL-27.
[12] Affidavit of Adrian Langford affirmed 29 March 2022, [5].
[13] Further Affidavit of Adrian Langford affirmed 6 April 2022, [6] – [7].
[14] Ibid [9], Exhibit AL-32.
[15] [2021] QIRC 356 [64].
[16] Exhibit AL-2 to the Affidavit of Adrian Langford sworn 29 March 2022.
[17] Affidavit of Kane Lowth affirmed 23 March 2022.
[18] Affidavit of Scott Reichman affirmed 24 March 2022.
[19] Submissions of the Applicants filed 4 April 2022, [25] – [27].
[20] (2011) 217 FCR 238.
