Bax v State of Queensland (Queensland Health)
[2022] QIRC 172
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- Unreported Judgment
- Bax v State of Queensland (Queensland Health)[2022] QIRC 172
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Bax v State of Queensland (Queensland Health)[2022] QIRC 172
Bax v State of Queensland (Queensland Health)[2022] QIRC 172
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Bax v State of Queensland (Queensland Health) [2022] QIRC 172 |
PARTIES: | Bax, Kim Patricia (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/250 |
PROCEEDING: | Public Service Appeal – Appeal against a fair treatment decision |
DELIVERED ON: | 20 May 2022 |
MEMBER: | Hartigan IC |
HEARD AT: | On the papers |
ORDERS: |
|
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a fair treatment decision – where appellant sought exemption from compliance with Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements ('the Directive') on the basis of other exceptional circumstances – where appellant indicated that she would receive the Novavax vaccine when it became available for use in Australia – where at the time that the Directive was issued the Novavax vaccination did not fall within the definition of a 'COVID-19 vaccine' within the Directive – where respondent rejected appellant's request for an exemption on the basis of other exceptional circumstances on the basis that the Novavax did not fall within the definition of a COVID-19 vaccine as set out in the Directive and that the appellant's concerns did not constitute other exceptional circumstances for the purpose of the Directive – where internal review decision sets out the basis for the refusal of the exemption application – where decision fair and reasonable – decision appealed against confirmed – stay of decision revoked |
LEGISLATION: | Hospital and Health Boards Act 2011 (Qld), s 51A Industrial Relations Act 2016 (Qld), s 562B, s 562C Public Service Act 2008 (Qld), s 194 Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements, cl 1, cl2, cl 6, cl 7, cl 8, cl 10 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) |
Reasons for Decision
Introduction
- [1]Ms Kim Bax is employed by the State of Queensland (Queensland Health) ('the Department'), as a casual Registered Nurse in the Addiction and Mental Health Services within Metro South Health ('MSH').
- [2]Ms Bax has been employed with the Department since approximately 14 August 1989.
- [3]On 11 September 2021, the Department issued the Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements ('the Directive'), which requires certain categories of employees to have received two doses of a COVID-19 vaccine and provide their line manager with evidence of confirmation of vaccination.[1] Relevantly, Ms Bax falls within one of those categories of employees.
- [4]On 29 September 2021, Ms Bax applied for an exemption from the Directive on the basis of other exceptional circumstances. Ms Bax provided a psychologist report dated 21 September 2021 and a medical certificate dated 28 September 2021 in support of her application for exemption.
- [5]On 22 December 2021, the Department determined to refuse Ms Bax's application for exemption from compliance with the Directive. Ms Bax sought an internal review of this decision on 4 January 2022.
- [6]By letter dated 24 January 2022, the Department advised Ms Bax that it had confirmed the decision dated 22 December 2021 and that her application for exemption from compliance with the Directive on the basis of other exceptional circumstances had been denied ('the decision'). The Department directed Ms Bax to receive the required dose of a COVID-19 vaccination and provide written confirmation that she had received the required dose within seven days of receipt of the decision ('the direction'). The Department further advised Ms Bax that should she fail to follow the direction, she may be liable for disciplinary action pursuant to s 187(1)(d) of the Public Service Act 2008 (Qld) ('the PS Act').
- [7]By appeal notice filed in the Industrial Registry on 11 February 2022, Ms Bax appealed the decision of the Department and relies on the following grounds in support of her appeal, as set out in her appeal notice:
I am Registered Nurse with Queensland Health, currently required to receive a Covid19 vaccine. I have a severe anxiety disorder related to the currently available vaccines, formally documented by both registered psychologist and my GP (and forwarded to Queensland Health). I have indicated I'm willing to receive Novavax, which is now an approved vaccine and according to the latest Federal ministerial statement, will be available to the general public by the end of February 2022. Queensland Health is aware Novavax has been approved and will be available within a very short time frame, but they are still insisting I receive a vaccine other than Novavax. I do not feel this is fair or reasonable.
- [8]On 21 February 2022, the Department wrote to the Industrial Registry and indicated that it did not object to the issuing of a stay in relation to the decision the subject of the appeal.
- [9]On 22 February 2022, this Commission ordered that the decision the subject of the appeal be stayed until determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act').
- [10]The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
- [11]Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[2] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
- [12]I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[3] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[4]
- [13]For the reasons contained herein, I have found that the decision was fair and reasonable.
The decision
- [14]The decision maker ultimately determined that the decision dated 22 December 2021, which sought to refuse Ms Bax's exemption application was appropriate and that the original decision maker undertook the appropriate steps and consideration in relation to the exemption request.
- [15]The decision maker provided the following reasons in support of the decision:
In considering the requirements under PSC Directive 11/20 and the actions taken as outlined above, I am of the view that Mr Waters has undertaken appropriate steps and consideration in relation to your mandatory vaccination exemption request.
I am satisfied that HED12/21 is lawful and complies with section 58 of the HR Act and the Department's consultation and risk assessment obligations under the WHS Act and the WHS Regulation.
Further, I have had the opportunity to review your concerns and the circumstances relevant to the declinature of your exemption request. I can advise having reviewed the circumstances surrounding the decision to decline your exemption request, that I am not persuaded that the decision made was unreasonable.
- [16]The decision maker also considered the effect of the decision on Ms Bax's human rights and provided as follows:
I am satisfied that the vaccination exemption application and assessment process is compatible with these human rights and allows for compliance with section 58 of the HR Act for the reasons that follow:
COVID-19 vaccines are not experimental. They have undergone all of the usual assessments including peer review and publication of phase one, two and three clinical trials and review by multiple licensing bodies including the Therapeutic Goods Administration. The vaccines are now in routine clinical use to prevent disease. They are not used to treat disease.
I am satisfied that the decision to confirm the refusal of your exemption application is compatible with human rights. While this decision engages or limits a number of your human rights, including your right to freedom of thought, conscience, religion and belief and your right to freedom of expression, I am satisfied that those limits on human rights are justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, and to protect the lives of employees, patients and the community they serve.
The purpose of protecting your colleagues, and people accessing health services from the risk of COVID-19 through vaccination promotes their human rights to life and health, as well as your own. These are important considerations and should be given weight at this particular time. I do not consider that there are no other less restrictive yet effective ways to achieve those purposes.
Relevant legislation and Directive
- [17]Section 194 of the PS Act provides for decisions against which appeals may be made and relevantly includes:
194 Decisions against which appeals may be made
- (1)An appeal may be made against the following decisions –
…
(eb) a decision a public service employee believes is unfair and unreasonable (a fair treatment decision);
…
- [18]The Directive sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 (Qld) ('HHB Act').
- [19]Section 51A of the HHB Act provides for the issuing of health employment directives and is set out in the following terms:
51A Health employment directives
- (1)The chief executive may issue health employment directives about the conditions of employment for health service employees.
- (2)Without limiting subsection (1), a health employment directive may be about the following—
- (a)remuneration for health executives and senior health service employees;
- (b)the classification levels at which health executives and senior health service employees are to be employed;
- (c)the terms of contracts for health executives and senior health service employees;
- (d)the professional development and training of health service employees in accordance with the conditions of their employment.
- (3)A health employment directive may apply to any or all of the following—
- (a)the department, a Service or all Services;
- (b)health service employees, or a stated type of health service employee.
- [20]Section 51E(1) of the HHB Act provides that, inter alia, a health employment directive that applies to an employee of the department is binding on the employee and the department.
- [21]Clause 1 of the Directive provides that compliance with the Directive is mandatory. Clause 2 provides that the purpose of the Directive is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high-risk groups designated in the Directive.
- [22]Clause 6 of the Directive identifies the potential risk posed to relevant employees, and the risk profile of those employees as follows:
The COVID-19 virus has been shown to disproportionately affect healthcare workers and health support staff and poses a significant risk to Queensland Health patients, and the broader community.
In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, this HED requires health service employees who are identified as being in high risk groups to be vaccinated against COVID-19.
Prospective and existing health service employees subject to these requirements have been identified based on the following risk profile:
- They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter.
- They are coming into direct or indirect contact with people who work in an area with COVID-19 patients or an area that a suspected or actual COVID-19 patient may enter.
- They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations).
- They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients).
- [23]Clause 7 of the Directive sets out the requirements for vaccination. Relevantly, cl 7.1 states:
In acknowledgment of the risks posed by the COVID-19 virus to the health and safety of Queensland Health employees, patients and the broader community, clauses 8 and 9 of this HED require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised in accordance with Table 1 (below), to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of this HED.
- [24]Clause 7.1 of the Directive also includes a table[5] which separates Queensland Health employees into a group number based on their employee cohort. Ms Bax falls within Group 2, which covers an employee cohort of all health service employees who are employed to work in a hospital or other facility where clinical care or support is provided.
- [25]Clause 8 of the Directive sets out the mandatory vaccine requirements for existing employees as follows:
8.1 Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:
a. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
b. have received the second dose of a COVID-19 vaccine by 31 October 2021.
- An existing employee must provide to their line manager or upload into the designated system:
- evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
- evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
- An existing employee must maintain vaccine protection. Therefore, an existing employee is required to receive the prescribed subsequent dose/s of a COVID-19 vaccination (i.e. booster), as may be approved by the Australian Technical Advisory Group on Immunisation (ATAGI), within any recommended timeframe following the second dose. Evidence of vaccination, confirming the employee has received prescribed subsequent dose/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccine.
- An existing employee who is required to have received a first or second dose of a COVID-19 dose at an earlier date under a Chief Health Officer public health direction must be vaccinated by the dates specified in the public health direction.
- The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED.
- [26]Clause 10 of the Directive provides that where an employee is unable to be vaccinated, and exemption may be granted as follows:
10.1 Where an employee is unable to be vaccinated they are required to complete an exemption application form.
10.2 Exemptions will be considered in the following circumstances:
- Where an existing employee has a recognised medical contraindication;
- Where an existing employee has a genuinely held religious belief;
- Where another exceptional circumstance exists.
10.3 If an existing employee is granted an exemption, they do not have to comply with clause 8 or 9 of this HED for the duration of that exemption
Whether the decision was fair and reasonable
- [27]As noted above, the role of the Commission in an appeal such as this, is to conduct a review of the decision to determine whether it is fair and reasonable.
- [28]Ms Bax contends the decision is not fair and reasonable on the following grounds, as relevantly summarised:
- (a)Ms Bax has a severe anxiety disorder in relation to the COVID-19 vaccines;
- (b)Ms Bax has made it clear that she is willing to have an approved vaccine compatible with her health issues, namely the Novavax vaccine, and Ms Bax has kept the Department fully updated with respect to the progress of the Novavax vaccine, which was made available to the Australian public in the last week of February 2022;
- (c)despite the availability of the Novavax, the Department ordered Ms Bax to have a vaccine other than Novavax and Ms Bax further advised the Department of the imminent approval of Novavax; and
- (d)the Department did not acknowledge or respond to Ms Bax's advice in relation to the approval progress of Novavax.
- [29]Ms Bax also states that she is willing to receive the Novavax vaccine, however she will not make any arrangements to do so until the Department withdraws the disciplinary process against her.
- [30]From the material, it appears that Ms Bax suffers from, inter alia, an anxiety disorder and a 'major phobic response' to the vaccines available at the time the Directive was issued. It appears accepted that the Novavax vaccine was not available at the time the Directive was issued.[6]
- [31]Despite this, Ms Bax contends that the Department has ordered her to have a vaccine other than Novavax.
- [32]Relevantly, that was not the terms of the Directive, nor was any 'order' issued in the terms Ms Bax describes. The Directive requires, inter alia, employees to take the 'COVID-19 vaccine'. That term is defined in the Directive to mean a vaccine approved by the Therapeutic Goods Administration for use in Australia or endorsed by the WHO-COVAX in circumstances where the employee was vaccinated overseas. At the time the Directive was issued, and relevantly at the various times Ms Bax was required to comply with the Directive, the Novavax vaccination did not fall within the definition of a 'COVID-19 vaccine'.
- [33]Accordingly, at the time the Directive was issued, and despite Ms Bax's stated willingness to receive the Novavax, it was not available, nor was it a 'COVID-19 vaccine' within the meaning of that term provided for in the Directive.
- [34]The status of the available vaccines was addressed in the decision as follows:
COVID-19 vaccines are not experimental. They have undergone all of the usual assessments including peer review and publication of phase one, two and three clinical trials and review by multiple licensing bodies including the Therapeutic Goods Administration. The vaccines are now in routine clinical use to prevent disease. They are not used to treat disease.
- [35]Upon review of the decision as a whole, including the basis upon which Ms Bax sought an internal review, I am satisfied that the decision outlines the basis for the reasons for the decision. Namely, that Ms Bax's preference, which appears to arise from a medical condition, to be administered a vaccine that was not available and did not fall within the definition of a 'COVID-19 vaccine' at the relevant time, was a basis to refuse her application for an exemption request.
- [36]For these reasons, I found that the decision was fair and reasonable.
- [37]Ms Bax now raises a willingness to receive Novavax but states she 'will not book an appointment until Queensland Health formally withdraws its disciplinary process…'. These are not matters that can be resolved by the Commission when determining a public service appeal.
- [38]However, the Commission encourages the parties to be cognisant of each of their respective obligations within the employment relationship and further encourages the parties to communicate with each other with respect to the matters that are yet to be resolved between the parties.
Order
- [39]For the foregoing reasons, I make the following orders:
- Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
- Pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld), the stay of the decision issued on 22 February 2022 is revoked.
Footnotes
[1] Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements, cls 1, 7.1 and 8.1.
[2] See the Public Service and Other Legislation Amendment Act 2020 (Qld).
[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[4] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).
[5] Table 1.
[6] Ms Bax states in her submissions that Novavax was not approved and made available to the Australian public until the last week of February 2022 (or thereabouts).