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  4. Graf v State of Queensland (Department of Education) - [2022] QIRC 451

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Graf v State of Queensland (Department of Education)[2022] QIRC 451

Graf v State of Queensland (Department of Education)[2022] QIRC 451

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 451

PARTIES:

Graf, Rebecca

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2022/246

and

PARTIES:

Downing, Samuel

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2022/257

and

PARTIES:

Holdsworth, Anice

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2022/263

and

PARTIES:

Beard, Christine

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2022/269

and

PARTIES:

Mott, Tobius

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2022/308

and

PARTIES:

Nan, Dawn

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2022/335

and

PARTIES:

Olm, Robyn

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2022/368

PROCEEDINGS:

Public Service Appeals - Appeals against decisions about suspension without pay

DELIVERED ON:

21 November 2022

HEARING DATE:

On the papers

MEMBER:

Merrell DP

DATES OF WRITTEN SUBMISSIONS:

The Appellants' joint submissions filed on 6 April 2022 and on 5 May 2022 and Respondent's written submissions filed on 14 April 2022

The Appellant's further submissions filed on 18 July 2022 in PSA/2022/246, the Appellant's further submissions filed on 15 July 2022 in PSA/2022/263 and the Respondent's written submissions in reply in PSA/2022/246 and in PSA/2022/263 filed on 16 August 2022

ORDERS:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the two decisions appealed against in appeal PSA/2022/246 are confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against in appeal PSA/2022/257 is confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the two decisions appealed against in appeal PSA/2022/263 are confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against in appeal PSA/2022/269 is confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against in appeal PSA/2022/308 is confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against in appeal PSA/2022/335 is confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against in appeal PSA/2022/368 is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellants employed by the State of Queensland in various positions in schools operated by the Department of Education – by cl 5 of the Department of Education Employment Direction 1/21 – COVID-19 Vaccinations, the Appellants were required to receive a first dose of a COVID-19 vaccine by 17 December 2021 and to provide evidence of such vaccination – Appellants failed to comply with the Direction – Appellants afforded the opportunity to show cause why they should not be suspended without pay – Appellants provided responses – Appellants appealed against decisions to suspend them without pay – two of the Appellants further appealed against decisions not to reimburse their remuneration upon suspensions being lifted – whether decisions appealed against were fair and reasonable – decisions appealed against fair and reasonable – decisions confirmed

LEGISLATION:

Australian Constitution, s 51(xxiiiA) and s 109

Covid-19 Vaccination Requirements for Workers in a high-risk setting Direction, cl 9, sch 1 and sch 2

Covid-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2), cl 10, sch 1 and sch 2

Department of Education - Employment Direction 1/21 - COVID-19 Vaccinations, cl 1, cl 2, cl 3, cl 4, cl 5 and cl 10

Directive 16/20: Suspension, cl 6

Industrial Relations Act 2016, s 137, s 539, s 562B, and s 562C

Industrial Relations Tribunal's Rules 2011, r 98

Public Health Act 2005, s 362B

Public Service Act 2008, s 137 and s 187

Teaching and State Education Award-State 2016, cl 11

CASES:

Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) [2021] QIRC 356; (2021) 310 IR 212

Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018

Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523

Greguric v Department of Works, Queensland [1988] 2 Qd R 545

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311

State of Queensland v Queensland Teachers' Union & Anor [2014] ICQ 012

Winter v State of Queensland (Department of Education) [2022] QIRC 350

Reasons for Decision

Introduction

  1. [1]
    Ms Rebecca Graf is employed as a Teacher at the Newtown State School. Mr Samuel Downing is employed as a Teacher at the Moura State High School. Ms Anice Holdsworth is employed as an Administration Officer at the Rangeville State School. Ms Christine Beard is employed as a Teacher Aide at the Wandoan State School. Mr Tobius Mott is employed as a Teacher at the Port Douglas State School. Ms Dawn Nan is employed as an Experienced Senior Teacher at the Esk State School. Ms Robyn Olm is employed as a Senior Teacher at the Gatton State School. I shall refer to each of these persons as 'the Appellants'.
  1. [2]
    Each of the Appellants are employed by the State of Queensland through the Department of Education ('the Department').
  1. [3]
    By virtue of cl 5 of the Department of Education - Employment Direction 1/21 - COVID‑19 Vaccinations ('the Direction') issued by the Director-General of the Department on 16 December 2021, each of the Appellants were required to:
  • receive a first dose of a COVID-19 vaccine by 17 December 2021 and to provide evidence of such vaccination by no later than 7 January 2022; and
  • receive the prescribed number of doses of a COVID-19 vaccine by 11.59 pm on 23 January 2022 and, before attending a high-risk setting on 24 January 2022, to show evidence of having received the prescribed number of COVID-19 vaccines.
  1. [4]
    Each of the Appellants:
  • failed to comply with cl 5 of the Direction;
  • were subject to a decision to suspend them without remuneration, which, in respect of each of the Appellants, I shall refer to as 'the decision'; and
  • have appealed, pursuant to ch 7, pt 1 of the Public Service Act 2008 ('the PS Act') against the decision.
  1. [5]
    Ms Graf and Ms Holdsworth have also sought to appeal against subsequent decisions not to pay them for their periods of suspension without pay upon their suspensions being lifted.
  1. [6]
    The purpose of an appeal pursuant to ch 7, pt 1 of the PS Act is to decide whether the decision appealed against was fair and reasonable.[1] The issue for determination in such an appeal is whether the decision appealed against was fair and reasonable.[2]
  1. [7]
    For the reasons that follow, in respect of each Appellant, the decisions appealed against were fair and reasonable and each decision appealed against is confirmed.

Background

  1. [8]
    It is common ground that, in respect of each of the Appellants:
  • they received a letter dated 10 January 2022 from Ms Genevieve Gillies‑Day, Executive Director, People and Corporate Services, advising them that they were not lawfully able to attend their workplace to carry out and perform the functions of their roles due to their failure to provide evidence they were vaccinated against COVID-19; and
  • Ms Gillies-Day further advised them that:

-as she reasonably believed they were liable to discipline under a disciplinary law pursuant to s 137(1)(b) of the PS Act, she had determined to suspend them on normal remuneration; and

-she was giving consideration to suspending them without pay and afforded them a period of seven days to respond as to why they should not be suspended without pay.

  1. [9]
    Each of the Appellants subsequently provided a response to Ms Gillies-Day's letter. Although the responses by each Appellant are not identical, there were some common submissions in each response, namely, that:
  • Graf v State of Queensland (Department of Education) [2022] QIRC 451all contractual agreements prohibit any unlawful health directions, health orders, rules, lock downs, policies, mandates, directions and directives or actions or promotion of unlawful directions or actions, health directions, health orders, rules, policies, mandates, directions and directives either directly or indirectly at all times;
  • unlawful directives or unlawful acceptance of directives and mandates are criminal in nature and a breach of '… our contractual agreement';
  • all Australian, State and Territory Government Constitutions, health directions, health orders, rules, lock downs, policies, mandates, directions and directives are subject to s 109 of the Commonwealth Constitution which states when a law of a State is inconsistent with the law of the Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be considered null and void at all times;
  • no medical service can be forced against their free will and is strictly prohibited under s 51 (xxiiiA) of the Commonwealth Constitution which guarantees protections and prohibitions; and
  • the Commonwealth Constitution and all laws made by the Parliament of the Commonwealth under the Constitution '… shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State.'
  1. [10]
    The responses by Mr Downing and Mr Mott also provided:

Due to the seriousness of your demand with extreme menace being sought, I request your valid proof of claim Graf v State of Queensland (Department of Education) [2022] QIRC 451with physical material evidence within 72 hours that your Health directions, Health Orders, Rules, Lock Downs, Policies, Mandates, Directions and Directives are lawful and based on the Constitutional guarantees stated above.

Should I not receive your response by the close of business [by specified dates][3] I will consider this your tacit agreement that you accept that your policy, directions and actions are unlawful and unreasonable and that you accept my lawful right to DECLINE all offers now or in the future as I deem[4] fit.

  1. [11]
    The responses by Ms Graf, Ms Holdsworth, Ms Beard, Ms Nan and Ms Olm also provided:

To date no lawful or reasonable response has been forth coming from any section of the department with regard the claims that the current mandate (is a LAW) nor has any evidence been provided that the claimed vaccine (an irreversible invasive medical procedure that carries substantial risk of contraindications including death and is deemed a poison ) is safe and effective. The established evidenced fact stated by the manufacturers, is that they fail to prevent contraction or transmission, nor are any claims of safety made. These facts remove all grounds of your request being lawful and reasonable.

…

Please provide the basis for your reasonable view that I may be liable to discipline under a disciplinary law. Please provide evidence of the law that you have relied on to make such views.

It is my view that Genevieve Gillies-Day is currently in breach of the laws, acts by coercing an irreversible invasive medical procedure upon myself (claimed covid-19 vaccine) with threat and menace of disciplinary action without lawful or reasonable excuse and breaching privacy laws without lawful excuse.

As such any action being considered against myself is invalid and unlawful and a breach of my contract. Please provide a copy of my contract requiring myself to undergo an irreversible invasive medical procedure that fails to perform what is claimed (covid 19 vaccine) in order for myself to be able to perform my normal duties. Please provide independent physical material evidence to validate proof of claim that the request will not put myself in any form of harm and keep me 100% safe from any contraindications, contracting or transmission of the claimed Covid virus and/or any variation thereof.

  1. [12]
    Subsequently, each Appellant received a letter from a senior officer of the Department,[5] suspending them from duty without pay. Each letter relevantly stated:

My reasons for this decision are as follows:

  1. (a)
    The Direction has been adopted state-wide for the protection of vulnerable persons and where a sudden reduction in available workforce would significantly affect the continuity of education services (among others). Unless an individual has a diagnosed medical contraindication or other qualifying exceptional circumstance the Direction is a reasonable one.
  1. (b)
    The information available to me indicates that you may have failed to comply with the Direction, and the length of time it may take you to comply with the Direction is outside of the department's control.
  1. (c)
    I have previously considered all reasonable alternatives, including alternative duties or adjustments and remain of the view that there is no reasonable alternative role or reasonable adjustments available which appropriately manage the risk that arises due to your non‑compliance.
  1. (d)
    You have had sufficient time to engage with the requirements of the Direction. The department has engaged with you on a number of occasions about what was required of you to comply with the Direction.
  1. (e)
    I am not in receipt of any material, through your response to me, the Department's vaccination status survey or otherwise, that you have been vaccinated. Nor am I in receipt of information that you have applied for or received an approved exemption due to medical contraindication or exceptional circumstances.
  1. (f)
    Given your failure to comply with the Direction, the time you have had to engage with and comply with the Direction, the engagement and consultation undertaken by the department, the nature of the discipline to which you may be liable and the time it may take to conclude the disciplinary process, I have determined it is not a responsible or appropriate use of public funds to allow you to continue to be paid while this process is underway.
  1. [13]
    Each of the Appellants' appeal notices to this Commission contain the same grounds of appeal, namely:

We are appealing against the unfair, unreasonable and unlawful suspension without pay, as due process has yet to be determined.

Due to the seriousness of the employers' [sic] unlawful demand of coercing me to participate in an irreversible, invasive medical procedure and with extreme menace being sought, we have requested the claimed Education Authorities provide valid proof of claim with physical material evidence, the Health Directions, Health Orders, Mandates, Directions and Directives are lawful under the Constitutional guarantees cited below. No laws were ever cited.

No medical service can be forced against the free will and it is strictly prohibited under s 51(xxiiiA) Commonwealth of Australian Constitution Act 1977 (Cth) which guarantees protections and prohibitions, within the Commonwealth of AUSTRALIA. All Australian State and Territory Government constitutions, Health Directions, Health Orders, Policies, Mandates, Directions and Directives are subject to The Constitution 1977 (Cth) pursuant to s 109 which states, when a law of the State is inconsistent with the law of Commonwealth [sic], the latter shall prevail and the former Shell, to the extent of the inconsistency, be considered null and void at all times.

The Commonwealth of Australian Constitution Act 1977 (Cth), and all laws made by the Parliament of the Commonwealth under The Constitution 1977 (Cth) shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State.

In the absence of a current valid Bio Security Order upon, the individual living Man, Woman or any variation thereof (person in law), under the directions of unauthorised Bio Security officer and consistent with the specific directions of that order under the Bio Security Act 2015 (Cth) no other order can be lawfully imposed at any time.

The claimed COVID-19 (Vaccination, jab) or any variation thereof is an IRREVERSIBLE INVASIVE MEDICAL PROCEDURE that fails to deliver the claimed benefits of immunisation, vaccination, inoculation. Use of coercion or force upon myself to remove my free will consent as natural living Man, Woman or any variation thereof (person in law) in the absence of free will acceptance thereby placing undue intentional infliction of extreme psychological duress and financial hardship with extortion constitutes assault and abuse and carry with it substantial criminal penalty including imprisonment. Criminal Code Act 1899 - (Cth) QLD (the Act)

All contractual agreements prohibit any unlawful Health Directions, Health Orders, Rules, Lock Downs, Policies, Mandates, Directions and Directives or actions or promotion of unlawful directions or actions, Health Directions, Health Orders, Rules, Policies, Mandates, Directions and Directives either directly or indirectly at all times. Unlawful directives or unlawful acceptance of directives and mandates are criminal in nature and a breach of our contractual agreement.

The doctor undertakes by the contract between them to advise and treat the patient with reasonable skill and care, no third-party can exist at any time. My personal medical information is strictly protected under Federal Law including, but not limited to, provisions under the Privacy Act 1988 (Cth).

Any threats imposed on me the living Man, Woman or any variation thereof (person in law) to submit to Orders, Health Directions, Health Orders, Rules, Lockdowns, Policies, Mandates, Directions and Directives to self-harm restrict or invalidate my inalienable rights to DECLINE such offers, creates an unlawful and unreasonable discriminatory burden upon the person(s) in law at all times.

In concluding, because we have not received the Education Authorities [sic] valid proof of claim, with physical material evidence, we consider this their tacit agreement that they have accepted that their policy, directions and actions are unlawful and unreasonable and therefore they accept our lawful right to decline all offers now or in the future as we see fit.

  1. [14]
    By order of Vice President O'Connor dated 4 March 2022, the appeals by Ms Graf, Mr Downing, Ms Holdsworth, Ms Beard, Mr Mott and Ms Nan were, pursuant to r 98 of the Industrial Relations Tribunal's Rules 2011, joined.
  1. [15]
    By further order of the Vice President dated 18 March 2022, Ms Olm's appeal was joined to the above-mentioned appeals.
  1. [16]
    The Appellants filed and served joint principal submissions and joint submissions in reply.
  1. [17]
    At the conclusion of the Appellants' principal submissions, under the heading of 'Demanded Outcome,' the relief sought was the '… immediate reinstatement with full back pay, as per the Commissioner's powers under s 562c of the Industrial Relations Act 2016.'
  1. [18]
    The Department filed a separate submission in respect of each appeal. However, there is a large degree of commonality between the Department's submissions in each appeal.
  1. [19]
    Subsequently, Ms Holdsworth and Ms Graf, on 15 and 18 July 2022 respectively, filed identical further submissions. Those submissions challenged decisions made by Mr David Miller, Executive Director, dated 24 June 2022 (following directions that they both return to work from Term 3, 2022) that they would not be repaid for the periods they were suspended without pay. Ms Holdsworth and Ms Graf appeal against or challenge the decisions that they would not be repaid for the periods they were suspended without pay.
  1. [20]
    The Department was given the opportunity to make further submissions to those filed by Ms Holdsworth and Ms Graf. The Department did not submit the purported appeals by Ms Holdsworth and Ms Graf about Mr Miller's decisions were incompetent and the Department responded to the merits of their claims. In those circumstances, pursuant to s 539(e) of the Industrial Relations Act 2016 ('the IR Act'), I will waive the formal irregularities of Ms Holdsworth and Ms Graf not filing and serving appeal notices about Mr Miller's decisions. Further, pursuant to s 539(e) of the IR Act, I will allow Ms Graf and Ms Holdsworth to amend their substantive appeals so that Ms Graf's appeal against Mr Miller's decision will be considered as part of PSA/2022/246 and that Ms Holdsworth's appeal against Mr Miller's decision will be considered as part of PSA/2022/263.
  1. [21]
    I will separately consider with each matter raised by the Appellants in their submissions and, where relevant, the Department's responses.
  1. [22]
    I will reproduce the headings used by the Appellants in their submissions, and where convenient and relevant, I will refer to the Appellant's submissions under such headings.

Decision appealed against

  1. [23]
    The Appellants submit that:
  • in the letter to each of them, advising them of the decision to suspend them without remuneration, the grounds for suspension set out in paragraphs (a) to (f) (reproduced in paragraph [12] of these reasons) were '… assumed with prejudice after the respondent failed the due diligence to follow due process and consult with staff';
  • the Department did not facilitate adequate consultation and did not provide a balance of medical evidence regarding the claimed safety and efficacy of the:

[F]alsely claimed SARs COVID 19 vaccine. Rather, they forced the implementation of a policy of coercion into the receipt of a medical service/Irreversible Invasive Medical Procedure (IIMP) via the injection of a poison through a hypodermic needle.

Failure of Respondent to adequately address the validity and legality of Laws and Notifications

  1. [24]
    The Appellants submit that the Department repeatedly and wilfully failed to provide independent, physical material evidence to substantiate the lawfulness of the direction/mandate policy, or:

[T]he efficacy of the medical service/IIMP injection by hypodermic needle of the experimental mRNA substance - a claimed COVID 19 vaccine - despite accepting three (3) legally valid Notice to Agent documents as per the dates in (Attachment 3).[6]

  1. [25]
    Then the Appellants submitted:
  1. The Respondents accepted three (3) legally valid Notice to Agent letters (Attachments 4, 5, 6) requesting valid proof of claim that the enforcement of the proposed claimed vaccination direction was legal in accordance with, at a minimum, The Constitution of Australia, 1977, s 51(xxiiiA) and s 109, the Privacy Act 1988 (Cth), Work Health Safety Act 2016 and the Bio Security Act 2015 (Cth) are lawful and reasonable as consistently claimed.
  1. The Appellants also contend that the Respondents' reliance on case law of Kassam v Hazzard; Henry v Hazzard [2001] NSWSC 1320 (15 October 2021) relies on false representation of The Constitution of Australia 1977, as it incorrectly quoted a superseded version and that this matter requires further review of the issue of consent under s 51(xxiiiA). This is further supported by the BRITISH-MEDDICAL [sic] ASSOCIATION v THE COMMONWEALTH (1949) 79 CLR 20 17 October 1949 High Court ruling which written judgement with regard to Plaintiff Webb J. states:

"I think the electors would have taken the proposed law to emphasize, in the use of the words "any form, that legislation for the provision of benefits or services of the kind referred to could not authorize compulsory service of any kind, at least in the provision of medical or dental services, either independently or as incidental to pharmaceutical or other benefits, and that compulsion, to any extent or of any nature, whether legal, by the imposition of penalties, or practical, by any other means, direct or indirect, could not be authorized. To require a person to do something which he may lawfully decline to do but only at the sacrifice of the whole or a substantial part of the means of his livelihood would, I think, be to subject him to practical compulsion amounting to conscription in the case of services required by Parliament to be rendered to the people. If Parliament cannot lawfully do this directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no real choice but compliance." (at p 293).

  1. By the Respondents' failure to provide a valid proof of claim in accordance with the legal notices that they accepted, each individual of DoE who were served a notice made a tacit agreement that she/he/they accept that their policy, directions and actions are unlawful and unreasonable and that they accept the appellants' lawful right to decline all offers now or in the future as they see fit.
  1. [26]
    The Department relevantly submitted:
  • the Chief Health Officer is the most senior medical officer in Queensland and made the Covid-19 Vaccination Requirements for Workers' in a high-risk setting Direction ('the CHO Direction') regarding workers in high risk settings, and once the CHO Direction was made and identified various relevant education settings as 'high risk settings', it was reasonable for the Department to determine to implement the Direction to ensure that it was both complying with the CHO Direction and meeting its duty of care to staff, students and other members of school communities;
  • where the Chief Health Officer had issued a public health direction that applied to Departmental locations, the Department was obliged to comply with it and it was not required to provide the Appellants with the scientific basis upon which the Direction was made and, further, reliance on the CHO Direction was in itself sufficient evidence that there was a scientific basis for the requirement to be vaccinated;
  • to date, the Appellants had not applied for an exemption in respect to receiving a COVID-19 vaccine and it is evident from the material submitted by the Appellants, including their responses to the proposed suspension without pay, that they have a preference not to receive a vaccine;
  • the Appellants' description of the COVID-19 vaccinations as an irreversible medical procedure, their expression of concern about the harm that may be caused by the vaccine and their submissions that the requirement to receive the vaccine was contrary to the Australian Constitution, can be categorised as vaccine hesitancy which does not result in requiring compliance with the Direction as being unreasonable, having regard to the risk posed by COVID-19;
  • in respect of the Appellants' concerns about the safety and efficacy of the COVID‑19 vaccines, those vaccines have been approved by the Therapeutic Goods Administration ('TGA') and the Australian Technical Advisory Group on Immunisation;
  • the TGA's approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy;
  • the Appellants have not been deprived of free and informed consent in that they are not obliged to work for the Department and the Direction does not contain an offer to receive treatment but contains a direction to particular employees to be vaccinated which is reasonable and justifiable given the purposes of the requirement for vaccination, namely protecting staff and students from infection with COVID-19 and ensuring the maintenance of a proper and efficient educational service in the time of a global pandemic;
  • the requirement to receive a vaccination and provide evidence of having received a vaccination is not inconsistent with the Privacy Act 1988 (Cth) or the Information Privacy Act 2009 (Qld) in that the Appellants are only required to provide evidence of vaccination and they are not required to provide their medical history; and
  • to the extent the Appellants rely on s 51(xxxiiiA) of the Australian Constitution, that provision is not relevant to an employee refusing to receive a COVID‑19 vaccine as that section relates to the provision of, amongst other things, medical services rather than the receipt of such services by an individual and, further, that provision concerns the power of the Commonwealth Parliament to make laws concerning that matter.
  1. [27]
    The Appellants' submissions are entirely misconceived.
  1. [28]
    First, it was not the function of each of the decision makers (the various persons who made the decision to suspend each Appellant without remuneration), to make a determination about whether or not the Direction was unlawful or invalid or whether the Direction, as the Appellants submit, amounts to the forced implementation of a policy of coercion to receive a medical service or an irreversible invasive medical procedure by the injection of a poison through a hypodermic needle.
  1. [29]
    The function to be performed by each of the decision makers (as the lawfully authorised delegates of the Director-General of the Department) was to determine, having regard to s 137(4) of the PS Act, whether or not each Appellant should be suspended without remuneration. Section 137(9)(c) of the PS Act provides that in suspending a public service employee under s 137, the chief executive must comply with a directive made under s 137A. Such a directive was and is in existence, being Directive: 16/20 - Suspension ('the Suspension Directive').
  1. [30]
    Section 137(4) of the PS Act provides that a public service employee is entitled to normal remuneration during a suspension unless:
  • the person is suspended under s 137(1)(b) of the PS Act;[7] and
  • the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable.[8]
  1. [31]
    At the time each decision maker was required to make a decision about whether or not each Appellant should be suspended without normal remuneration, each Appellant was suspended under s 137(1)(b) of the PS Act.
  1. [32]
    The issue for each decision maker was to consider was whether or not it was appropriate for each Appellant to be entitled to normal remuneration during the period of suspension, having regard to the nature of the discipline to which the decision maker believed the person was liable.
  1. [33]
    The facts before each decision maker were that:
  • the Director-General of the Department had issued the Direction;
  • the Direction required each Appellant to be vaccinated against COVID-19 and provide proof of such vaccination by particular dates; and
  • the Appellants had not complied with that Direction, despite being given sufficient time to comply with the Direction, and the Appellants had not applied for or received an approved exemption.
  1. [34]
    Given the purpose of the Direction, namely, in recognition of the high risk of transmission of the COVID-19 virus, to protect vulnerable persons and to protect against a sudden reduction in the available workforce that could significantly affect the continuity of education services, then it was unremarkable that the decision makers came to a negative view of the nature of the discipline to which each Appellant may be liable.
  1. [35]
    Each decision maker also took into account, in deciding to suspend each Appellant without remuneration, the time that it may take to conclude the disciplinary process. Having regard to that factor, plus the nature of the discipline to which each Appellant may be liable, each decision maker determined that it was not responsible or appropriate to use public funds to allow each Appellant to continue to be paid while that process was underway.
  1. [36]
    Having regard to cl 6 of the Suspension Directive, in particular sub-cl 6.3(c),[9] the considerations of the time it may take to conclude the disciplinary process and the use of public funds to allow each Appellant to continue to be paid while that process was being undertaken, were not irrelevant or extraneous considerations in determining to suspend each Appellant without remuneration.[10]
  1. [37]
    For all these reasons, each decision to suspend each Appellant without remuneration was fair and reasonable. Each decision maker fairly and reasonably, by reference to the facts before them, had regard to the matters to which they could legitimately consider.
  1. [38]
    Secondly, in any event, none of the submissions by the Appellants as to why the Direction was invalid or illegal have merit. There are a number of reasons for this.
  1. [39]
    By the Direction, the Director-General of the Department was not coercing each Appellant to receive a medical service or an invasive medical procedure. It was up to each Appellant as to whether or not they would comply with a lawful direction given to them by their employer. The direction to be vaccinated is no different to any other lawful direction given by an employer to an employee about a matter concerning the employee's health and safety or the health and safety of other employees or persons associated with the employer's undertaking. Some employees may, for a range of reasons, not comply with such a direction. But that is a matter for each employee. The fact that there may be disciplinary consequences for the failure of an employee to comply with such a direction does not mean that each Appellant was being coerced into receiving a dose or doses of a COVID-19 vaccine. The will of each Appellant was not being overborne. Each Appellant had a real choice as to whether or not they complied with the Direction.
  1. [40]
    Further, the direction that employees receive the vaccine is not a medical service and is not an invasive medical procedure. The purpose of the vaccination is preventative, not for reasons of treatment.
  1. [41]
    Finally, the alleged legal 'Notice to Agent' letters sent to various Ministers and representatives of the Department did not have the legal effect as alleged by the Appellants, namely, that the failure of the recipients to respond to such notices amounted to some sort of contract or acknowledgement, by the recipients, of the Appellant's '… lawful right to decline all offers' of receiving the vaccines. Leaving aside a range of other reasons why such an alleged contract or agreement could not be formed, the foremost reason is that, as a general rule, an offeror cannot stipulate that silence will amount to acceptance of an offer to contract.[11]
  1. [42]
    In any event, having regard to the notices sent and the demands that were being made, it is unsurprising the Appellants' received no responses to them. The notices amounted to a series of claims that all actions that were being taken by the State Government, in response to the COVID-19 pandemic, including health orders and lockdowns, were all, for a variety of spurious legal reasons, unlawful. The notices cannot be said, on any objective consideration, to contain any sensible and reasonable claims that, at the very least, the Direction was unlawful or invalid in any way.
  1. [43]
    The Appellants' submissions under this heading do not persuade me that the decisions appealed against were other than fair and reasonable.

Failure to follow due process

  1. [44]
    The Appellants submit that in respect of the requirement to be vaccinated contained in the Direction, the Department:
  • failed to follow the consultation process contained in the Department of Education Certified Agreement 2019 ('the certified agreement') and sub-cls 11.2, (a)-(d) of the Teaching and State Education Award-State 2016 ('the award'); and
  • failed to provide '… proof of claim' that they are not in contravention of, or have wilfully ignored s 104(1) and (3), s 105(1)(a)(iv), s 106(j), s 107(1) and (2) and s 108 (1)(c) of the '… Work Health and Safety Act 2016.'
  1. [45]
    The Appellants then submit:
  1. The Australian Immunisation Handbook states;

For consent to be legally valid, the following elements must be present;

  1. It must be given by a person with legal capacity, and of sufficient intellectual capacity to understand the implications of receiving a vaccine
  2. It must be given voluntarily in the absence of undue pressure, coercion or manipulation.
  3. It must cover the specific procedure that is to be performed.
  4. It can only be given after the potential risks and benefits of the relevant vaccine, the risks of not having it, and any alternative options have been explained to the person.

The person must have the opportunity to seek more details or explanations about the vaccine or its administration.

The information must be provided in a language or by other means that the person can understand. Where appropriate, involve an interpreter or cultural support person.

Obtain consent before each vaccination, after establishing that there are no medical condition(s) that contraindicate vaccination. Consent can be verbal or written

  1. Further to the fact of the unlawfulness of coercion, as per the case, R v Darling Island Stevedoring & Lighterage co Ltd; Ex Halliday; Ex Sullivan (1938) 60 CLR 601; [1938] HCA 44, employees are obliged to comply with a lawful and reasonable command of their employer that relates to the 'subject matter' of their employment.
  1. The Appellants therefore contend that the direction to comply with the underlying directions, mandates, polices [sic] or any variation thereof are neither lawful, nor reasonable and fail to relate to the 'subject matter' of employment and have become casualty's [sic] of an unfair suspension and possible termination. Should the decision of the Respondent be upheld, this would constitute undue emotional and financial stress on both the Appellants and the Appellants' families and the public in general.
  1. The physical nature of the medical service that delivers/renders an IIMP can be classed as a pure physiological injury under the QLD Criminal Code Act 1899 and can contribute to nervous shock. In the event of intentional infliction of emotional trauma through deliberate actions, compensation is sought as is well established in law of Torts, Giller v Procopets 2008.
  1. [46]
    The Department relevantly submitted:
  • the Direction does not concern the way in which work is done and is not concerned with the operation or organisation of the Department such that the certified agreement did not require consultation on the Direction; rather, the obligation to consult arose under the Work Health and Safety Act 2011;
  • prior to the introduction of the Direction, the Department complied with its obligations under the Work Health and Safety Act 2011 to consult by having dedicated meetings with registered unions representing employees employed within the Department on 6 December 2021 and again on 8 December 2021; and
  • the Department was not required to consult with employees on an individual basis, noting the Department has approximately 85,000 employees.
  1. [47]
    The Appellants' submissions are not meritorious.
  1. [48]
    First, for the reasons given earlier, it was not part of the function of each decision maker, in determining whether or not the Appellants should or should not be suspended without remuneration, to consider whether the Direction was lawfully made.
  1. [49]
    Secondly, the Appellants refer to sub-clause 11.2 of the Award as being the source of obligation of the Department to consult with the employees affected by the proposed implementation of the Direction. Sub-clause 11.2 must be read as part of cl 11 as a whole. The obligations on the part of the Department to notify affected employees and to consult with affected employees only arise where the Department decides to introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on employees.
  1. [50]
    It cannot be reasonably concluded that the decision to make the Direction, given the purpose of the Direction, amounts to a decision to introduce changes in production, program, organisation, structure or technology of the Department.
  1. [51]
    The Department submits that its obligation to consult with its employees, in respect of the proposed introduction of the Direction, arose under the Work Health and Safety Act 2011, and that prior to the introduction of the Direction, it complied with that obligation to consult by consulting with the registered unions representing employees employed within the Department.
  1. [52]
    There can be no criticism of that approach: Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service).[12]
  1. [53]
    The Appellants' submissions under this heading do not persuade me that the decisions appealed against were other than fair and reasonable.

Decision makers have consistently and wilfully failed to provide a balance of scientific/medical evidence available pertaining to the efficacy and falsely claimed safety of the claimed COVID 19 Vaccine in an effort to thwart informed consent

  1. [54]
    In summary, the Appellants submit:
  • the COVID-19 vaccines are still undergoing evaluation by the TGA, and have only been granted provisional approvals based on the premise that manufacturers will provide full datasets for evaluation at a later time;
  • the balance of scientific data and peer-reviewed reports, available to consider, do not support the contention that COVID-19 vaccines are safe;
  • by reference to an article published by 'dailyexposeuk', data published by the TGA confirms that there has been 12 times as many deaths reported as adverse reactions to the COVID-19 vaccines over a period of just 10 months compared to deaths reported as adverse reactions to every other available vaccine combined over a period of 51 years;
  • by reference to a document published by the Children's Health Defence, which shows that Pfizer has recently released documents in relation to the Pfizer‑BioNTech Covid-19 vaccine, there have been more than 1200 deaths and 1291 adverse events related to that vaccine which occurred within the first 90 days;
  • by reference to a document published on a website called coercioncode.com, which stated that COVID-19 vaccines are not safe or effective, any claim that COVID‑19 vaccines are safe in the medium to long term is a '… vexatious and fraudulent statement of claim'; and
  • the '… current and signed employment contracts/awards of the Appellants make no mention of any inherent requirement to participate in any medical service/procedures in order to commence or maintain employment, nor would it be lawful.'
  1. [55]
    The decision makers had to determine whether or not, having regard to s 137(4) and s 137(9) of the PS Act, the Appellants should be suspended without remuneration. For the same reasons given above, it was not the function of the decision makers to determine whether or not the COVID-19 vaccines approved for use in Australia are efficacious or safe. Indeed, it may reasonably be inferred that it would be beyond the skill and competence of the decision makers to make such a determination.
  1. [56]
    In any event, the Direction defines the phrase '… Covid-19 Vaccine' to be '… a vaccine for COVID-19 that is approved for use in Australia or recognised by the Therapeutic Goods Administration.' Further, the Direction does not require any employee, subject to the Direction, to participate in any medical service or procedure.
  1. [57]
    The Appellants' submissions under this heading do not persuade me that the decisions appealed against were other than fair and reasonable.

Decision makers failed to provide detail procedures and clinical instruction regarding the process of successfully completing the claimed COVID-19 Vaccine process

  1. [58]
    Under this heading, the Appellants submit:
  1. In the absence of due consultation process and the absence of the provision of detailed procedures (including clinical instruction) of what constitutes "being vaccinated" (i.e. 2 jabs vs 2 jabs + booster +) to ensure it is within a person's capacity to fulfil all or any of the directions issued by the Respondents; it makes it impossible to comply with, and absolutely voids claimed 'vaccination requirements' for the purposes of continued employment by the Respondents.
  1. Further to the Australian Immunisation Handbooks definition of informed consent, for consent to be legally valid it must cover the specific procedure that is to be performed.
  1. At no time have employees of the Respondents received a detailed step by step procedure for the process of acquiring the claimed COVID 19 vaccine. However, there exists extensively detailed hand washing procedures. Thus highlighting further the Respondents' lack of due diligence.
  1. [59]
    For the same reasons given in paragraphs [48]-[52] and in paragraphs [55]-[56] of these reasons, the Appellants' submissions under this heading do not persuade me that the decisions appealed against were other than fair and reasonable.

The decision makers failed to acknowledge the corporate entity status of the Respondent and its legal requirements under Australian Contract Law and relevant Federal laws and its offer of contract regarding claimed "vaccination" '

  1. [60]
    Under this heading, the Appellants claim the Department is a trading corporation within the meaning of s 51(xx) of '… The Constitution of Australia 1977 (Cth) and as such deemed an Australian business bound by Federal and Constitutional Laws.' The Appellants then submit:
  1. Therefore, the DOE Vaccination Direction and Mandates are recommendations based on hearsay and offers of contract only, not LAW as claimed. All contractual agreements prohibit any unlawful Health Directions, Health Orders, Rules, Lock Downs, Policies, Mandates, Directions and Directives or actions or promotion of unlawful directions either directly or indirectly at all times. Unlawful directives or unlawful acceptance of directives and mandates are criminal in nature and a breach of our contractual agreement.
  1. DOE as a corporate entity is by virtue of its mandate creating itself as a third party to a medical service to deliver/render an IIMP injection by hypodermic needle of the experimental mRNA substance, a claimed COVID 19 vaccine. The doctor undertakes by the contract between them and their patient, to advise and treat the patient with reasonable skill and care; no third party can exist at any time. The Appellants' personal medical information is strictly protected under Federal Law including, but not limited to, provisions under the Privacy Act 1988 (Cth).
  1. No medical service can be forced against a living Man's, Woman's, or any variation thereof (person in law) free will and is strictly prohibited under s 51 (xxiiiA) Commonwealth of Australian Constitution Act 1977 (Cth) which guarantees protections and prohibitions, within the Commonwealth of AUSTRALIA.
  1. [61]
    These submissions are misconceived.
  1. [62]
    Once again, for the reasons given earlier, any determination about the lawfulness or otherwise of the Direction was beyond the scope of the function being performed by the decision makers.
  1. [63]
    In any event, the Appellants' submissions, as best as I understand them, lack merit.
  1. [64]
    First, the Department is not a corporation. The Department is not established as a corporation under any Act.
  1. [65]
    Secondly, the Department does not employ any person. On the authority of Greguric v Department of Works, Queensland [13] and State of Queensland v Queensland Teachers' Union & Anor,[14] the employing entity of each Appellant is the State of Queensland. There is no contract of employment between the Department and each Appellant.
  1. [66]
    Thirdly, s 51(xxiiiA) of the Australian Constitution deals with the legislative power of the Australian Parliament and relevantly states that the Australian Parliament has power to make laws for the peace, order, and good government of the Commonwealth with respect to, relevantly, '…medical and dental services.' That provision of the Australian Constitution does not provide that '… no medical service can be forced against a living' person's free will.
  1. [67]
    Finally, in any event, by the Direction, the Director-General of the Department was not directing that the Appellants receive a medical service against their will.
  1. [68]
    The Appellants' submissions under this heading do not persuade me that the decisions appealed against were other than fair and reasonable.

The separate appeals by Ms Graf and Ms Holdsworth

  1. [69]
    In Mr Miller's decisions dated 24 June 2022, he stated:

CANCELLATION OF SUSPENSION

I refer to the letter advising you of your suspension from duty in accordance with section 137 of the Public Service Act 2008 (the Act), as a result of the requirements of the Employment Direction 1/21 - COVID-19 Vaccinations, which was updated on 10 March 2022 as Employment Direction 1/22 - COVID-19 Vaccinations (Direction).

You may be aware of the recent announcement about the revocation of the COVID-19 Vaccination Requirements for Workers in a high risk-setting Direction (No. 2) (CHO Direction).

Please note, at this time your suspension remains in place.

Your suspension from duty (and the associated directions given to you) will cease at 1am on 30 June 2022 pursuant to section 137(8) of the Act, and regular duties payments will commence in the next available pay cycle. You are directed to resume duty at your workplace on the first day of work of Term 3, 2022.

While your suspension will cease as at this date, until then, I continue to reasonably believe that you are liable to discipline as you are not currently compliant with the Direction, and for the reasons outlined to you in your previous suspension correspondence. You cannot lawfully attend a high‑risk setting in your role as a worker before 1 am on 30 June 2022.

…

If you have been suspended without remuneration (pay) at any stage throughout this process, I confirm that you will not be repaid for the period you were suspended without pay. This is in accordance with Clause 6.10 of the Public Service Commission 's Suspension Directive 16/20, on the basis that you were not available to work during the period of suspension, as you were not compliant with the Direction, and for the reasons outlined in the letter advising you of the decision to suspend you without pay.

If you believe that the decision is unfair and unreasonable, you may lodge an appeal under the appeal provisions of the Public Service Act 2008. The Queensland Industrial Relations Commission Industrial Registry will be able to provide further information about public service appeal procedures (www.qirc.qld.gov.au; Tel: 1300 592 987).

  1. [70]
    Both Ms Graf and Ms Holdsworth submit:

In an email received and dated 24/6/2022 from David Miller, Executive Director, Department of Education titled "CANCELLATION OF SUSPENSION", I refer to the statement, "If you have been suspended without remuneration (pay) at any stage throughout this process, I confirm that you will not be repaid for the period you were suspended without pay. This is in accordance with Clause 6.10 of the Public Service Commission's Suspension directive 16/20."

I hereby appeal the decision to withhold repayment of benefits I am entitled to, which occurred prior to the end of my disciplinary action process.

I further more appeal David Miller's decision on behalf by [sic] the Department of Education as it is directly opposed to Clause 6.6 of the Suspension Directive, which states that "An employee must be reimbursed for remuneration the employee does not receive during the employee's suspension if a decision on discipline has been made that does not result in termination of their employment".

I have not been informed of the final decision on my disciplinary process and do not anticipate this decision to be termination of employment. I was suspended without pay on 10/02/2022[15] and lawfully unable to attend my workplace 'on the basis' of being in breach of the Direction. I have returned to work as directed for term 3 on 24 June 2022.

The decision confirmed by David Miller is detailed to be due to Clause 6.10 in the Suspension Directive in addition to other reasons specified in my 'Suspension without remuneration' email received 10/02/2022.[16] However, this clause states that 'if the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a correctional facility), then the amount to be repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension'.

The 'Decision on Suspension without pay' email from DoE detailing the reasons I was not permitted to work are the only categorical reasons I was unable to attend my workplace. The suspension, a result of not following Education Employment Directive 1/21 - Covid 19 Vaccinations (Direction), lists the reasons I was legally not able to attend the workplace in a working capacity. I was also requested to make myself available to the department and to notify them if I could not make contact within 3 working days, which I abided by. Thus, I was at all times willing and able to attend my place of employment and available to my employer, but was solely restricted by the suspension and Employment Direction. This indicates that clause 6.10 is not applicable as a reason for the decision to withhold any remuneration I am entitled to per Clause 6.6.

There has been no decision making process, or consultation process, in the decision to withhold back pay from all Education Qld staff returning from suspension. The decision declared on 24 June 2022 should only have been made following the finalisation of the Disciplinary process for each staff member.

  1. [71]
    Clause 6 of the Suspension Directive relevantly provides:

6.6  An employee must be reimbursed for remuneration the employee does not receive during the employee’s suspension if a decision on discipline has been made that does not result in termination of their employment.

…

6.10  If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.

  1. [72]
    The Department submits that:
  • it acknowledges that no decision on discipline has been made against Ms Graf and Ms Holdsworth that resulted in the termination of their employment;
  • while they were unvaccinated, Ms Graf and Ms Holdsworth were not available to work for reasons other than being suspended, in that they were not available to work because they were in breach of the CHO Direction and the Chief Health Officer's Covid-19 Vaccination Requirements for Workers in a high-risk setting Direction No. 2 ('the Second CHO Direction') and therefore they could not lawfully enter a high-risk setting as an employee;
  • Ms Graf and Ms Holdsworth were not available to work during their period of suspension because of their decisions not to be vaccinated in that:

-as a classroom Teacher, Ms Graf was required to physically attend Newtown State School, and that school was a high-risk setting for the purpose of the CHO Direction and the Second CHO Direction at the time Ms Graf was suspended without pay; and

-as an Administration Officer, Ms Holdsworth was required to physically attend Rangeville State School, and that school was a high-risk setting for the purpose of the Second CHO Direction at the time Ms Holdsworth was suspended without pay;

  • the Direction mandated COVID-19 vaccine for employees, and Ms Graf and Ms Holdsworth exercised a choice to refuse to comply with the Direction, a consequence of which was that, as unvaccinated workers, they could not enter a high-risk setting as employees;
  • by choosing not to be vaccinated, Ms Graf and Ms Holdsworth made themselves not available for work for reasons other than being suspended; and
  • cl 6.10 of the Suspension Directive applies and, accordingly, Ms Graf and Ms Holdsworth are not entitled to be reimbursed for remuneration during the period of their suspensions without pay.
  1. [73]
    The Department's submissions are compelling.
  1. [74]
    On 11 December 2021, the CHO Direction, issued by the Chief Health Officer, commenced operation.
  1. [75]
    Under the CHO Direction, workers were not permitted to enter, remain in, work in, or provide services in a high-risk setting unless they were fully vaccinated.[17] A 'high‑risk setting' was defined as early childhood, primary and secondary educational settings including schools.[18]
  1. [76]
    The Direction relevantly provided:

1.  Audience

Department Wide (excluding Office of Industrial Relations)

2.  Compliance

Compliance with this direction is mandatory.

3.  Purpose

In recognition of the high risk of transmission of the COVID-19 virus, for the protection of vulnerable persons and that a sudden reduction in available workforce would significantly affect the continuity of education services (among others) on Saturday 11 December 2021 the COVID‑19 Vaccination Requirements for Workers in a high-risk setting Direction Queensland Health (CHO Direction) was published re vaccination of workers in high-risk settings including:

•  schools and outdoor education facilities;

•  other education facilities, including TAFE, that are co-located with a school;

•  outside school hours care and vacation care; and

•  kindergartens, registered and licensed early childhood settings and family day‑care providers.

The purpose of this direction is to outline the COVID-19 vaccination requirements for existing and

prospective Department of Education workers (excluding OIR) who attend a high-risk setting as part of their role or the services they provide.

4.  Application

The CHO Direction captures many Department of Education workers (excluding OIR) as the CHO direction applies to all workers in a high-risk setting and prevents entry to a high-risk setting unless the worker complies with the COVID-19 vaccination requirements with some very limited exceptions.

This Direction applies to all Department of Education workers who attend a high-risk setting as part of their role or the services they provide.

  1. [77]
    The CHO Direction was replaced by the Second CHO Direction effective from 4 February 2022. It also provided that workers were not permitted to enter, remain in, work in, or provide services in a high-risk setting unless they were fully vaccinated[19] and it also defined a 'high-risk setting' as early childhood, primary and secondary educational settings including schools.[20]
  1. [78]
    Subsequently, the Director-General of the Department issued Employment Direction 1/22 – COVID-19 Vaccinations, effective 10 March 2022 ('the Second Direction') which was not materially different to the Direction.
  1. [79]
    The Direction and the Second Direction were lawful directions, given by the Director‑General of the Department, that certain public service employees employed in the Department had to be vaccinated. Pursuant to s 187(1)(d) the PS Act, a public service employee may be liable for discipline if the employee contravenes, without reasonable excuse, such directions. Pursuant to s 137 of the PS Act, if the Chief Executive of the Department reasonably believes such a public service employee is liable to discipline under a disciplinary law, then the employee may be suspended from duty, either with or without remuneration.
  1. [80]
    The CHO Directive and the Second CHO Directive were given by the Chief Health Officer pursuant to s 362B of the Public Health Act 2005. That section was contained in ch 8 ('Public Health Emergencies') of pt 7A ('Particular powers for COVID‑19 emergency') of that Act. Section 362B provided:

362B  Power to give directions

  1. (1)
    This section applies if the chief health officer reasonably believes it is necessary to give a direction under this section (a public health direction) to assist in containing, or to respond to, the spread of COVID-19 within the community.
  1. (2)
    The chief health officer may, by notice published on the department’s website or in the gazette, give any of the following public health directions-
  1. (a)
    a direction restricting the movement of persons;
  1. (b)
    a direction requiring persons to stay at or in a stated place;
  1. (c)
    a direction requiring persons not to enter or stay at or in a stated place;
  1. (d)
    a direction restricting contact between persons;
  1. (e)
    any other direction the chief health officer considers necessary to protect public health.
  1. (3)
    A public health direction must state-
  1. (a)
    the period for which the direction applies; and
  1. (b)
    that a person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction.
  1. [81]
    The only reasons Ms Graf and Ms Holdsworth were not available to work during the period of their suspensions, other than the fact of their suspensions, was the application of the CHO Direction and/or the Second CHO Direction. The CHO Direction and/or the Second CHO Direction applied to Ms Graf and Ms Holdsworth due to their unvaccinated state.
  1. [82]
    If, at a point in time, Ms Graf and Ms Holdsworth became vaccinated during the period of their suspensions (and the suspensions remained on foot) and they became compliant with (relevantly) the CHO Direction and/or second CHO Directive and were, as a consequence, not prevented from working at their schools, then cl 6.10 of the Suspension Directive would not apply to them from that point in time. This would have been because (in the absence of any other reason) the only reason they would have been unavailable for work was their suspension.
  1. [83]
    However, whilst Ms Graf and Ms Holdsworth remained unvaccinated, they could not enter the schools at which they are respectively employed. This is because they were not available to work because they were in breach of the CHO Direction and/or the Second CHO Directive and therefore they could not lawfully enter a high-risk setting as an employee. In those circumstances, cl 6.10 of the Suspension Directive applies and that even if a disciplinary decision is made, in respect to both of them, where their employment is not terminated, they would, nevertheless, not be entitled remuneration during the period of their suspension without pay because they were not available to work during the period of suspension for reasons other than being suspended. I came to the same conclusion, about the same facts, in Winter v State of Queensland (Department of Education).[21]
  1. [84]
    Ms Holdsworth also attached a media report about a senior officer in the Department who had resigned after being suspended with pay for two years following a decision by this Commission. Ms Holdsworth submitted: 'I sincerely look forward to this being taken into consideration in my case.' I have taken that media report into consideration in her case. The facts of that case are irrelevant to those of Ms Holdsworth for the simple reason that, having regard to the media report, that senior officer was not suspended for refusing to comply with any direction he be vaccinated against COVID-19. That is, from the media report, that senior officer was always able to return to work during the period of suspension. Ms Holdsworth was not able to return to work during the period of her suspension without remuneration because of her decision not to be vaccinated and, as a consequence, her breach of the Second CHO Direction.
  1. [85]
    For these reasons, Mr Miller's decisions, in respect of Ms Graf and Ms Holdsworth, were fair and reasonable.

All the decisions appealed against were fair and reasonable

  1. [86]
    Each of the Appellants are employed by the State of Queensland to work in schools. The Director-General of the Department issued a lawful direction, through the Direction, that for them to be able to continue to work safely in a school, having regard to their health, the health of other employees and the health of students and other members of the school community, they had to be vaccinated against COVID-19.
  1. [87]
    For the reasons given earlier, having regard to the function that the decision makers, in respect of each Appellant, had to perform, it was not a function of each decision maker to make a determination about whether the Direction was unlawful or invalid. The function of the decision makers was to determine whether, having regard to the provisions of the PS Act, each Appellant should be suspended without remuneration.
  1. [88]
    For the reasons I have given, the reasons given by the decision makers that each Appellant should be suspended without remuneration were fair and reasonable.
  1. [89]
    Further, none of the other arguments presented by the Appellants can result in a conclusion that the Direction was unlawful or invalid or that the decisions were other than fair and reasonable.
  1. [90]
    Similarly, Ms Graf's appeal and Ms Holdsworth's appeal against the decision Mr Miller made in respect of each of them are not meritorious. By remaining unvaccinated, the CHO Direction and/or Second CHO Direction applied to Ms Graf and Ms Holdsworth and they were not available for work for reasons other than being suspended. In those circumstances, cl 6.10 of the Suspension Directive applies. Ms Graf and Ms Holdsworth are not entitled to be reimbursed for the remuneration they lost during the period of their suspensions without pay.

Conclusion

  1. [91]
    The plain facts are that each of the Appellants, as employees of the State of Queensland employed to work in schools operated by the Department, were lawfully directed to be vaccinated against COVID-19.
  1. [92]
    There is no evidence that any of the Appellants applied for an exemption to be vaccinated. Each Appellant was given a reasonable opportunity to comply with the Direction. The Appellants have their own reasons for exercising their right not to comply with the Direction. That is a matter for them.
  1. [93]
    However, the failure to comply with that lawful direction can only mean that each of the Appellants is liable for discipline under a disciplinary law. Furthermore, each decision maker decided, given the nature of the discipline to which they may be liable and the time it may take to conclude the disciplinary process, that it was not a responsible or appropriate to use public funds to allow each Appellant to continue to be paid while that process was underway. That reasoning was fair and reasonable.
  1. [94]
    Ms Graf's and Ms Holdsworth's additional appeals against Mr Miller's decisions - that they would not be repaid for the periods they were suspended without pay - are also not meritorious. Those decisions were fair and reasonable because Ms Graf and Ms Holdsworth could not attend work during the periods of their suspensions without pay because they were unvaccinated.
  1. [95]
    Each decision appealed against, in respect of each Appellant, will be confirmed.

Orders

  1. [96]
    I make the following orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the two decisions appealed against in appeal PSA/2022/246 are confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against in appeal PSA/2022/257 is confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the two decisions appealed against in appeal PSA/2022/263 are confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against in appeal PSA/2022/269 is confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against in appeal PSA/2022/308 is confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against in appeal PSA/2022/335 is confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against in appeal PSA/2022/368 is confirmed.

Footnotes

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

[2] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311, [4]-[7].

[3] These Appellants provided different dates.

[4] Mr Downing used the word 'see' instead of 'deem' and he underlined this paragraph in his response.

[5] The senior officers were Ms Gillies-Day (in respect of Ms Holdsworth, Mr Mott and Ms Nan), Ms Kristy Springer, Executive Director, Organisational Development (in respect of Ms Graf and, Mr Downing), Mr Rynell Hastie-Burroughs, Executive Director, Business Partnering and Engagement (in respect of Ms Beard) or Mr Tim Gall, HR Shared Services (in respect of Ms Olm).

[6] These alleged legally valid 'Notice to Agent' documents were sent by the Appellants to various persons including the Premier, the Minister for Education and various Departmental employees. In summary, the notices relevantly demanded proof that the Direction was lawful and based on 'Constitutional guarantees'. The Appellants asserted that if no response was provided by a specified date, they would consider that lack of response to be the recipients' tacit agreement that they accepted that the Direction was unlawful and unreasonable.

[7] Public Service Act 2008 s 137(4)(a).

[8] Public Service Act 2008 s 137(4)(b).

[9] Clause 6 of Directive 16/20: Suspension directive relevantly provides:

6.  Suspension without remuneration

6.1 Section 137(4) of the PS Act provides that the chief executive may decide that normal remuneration is not appropriate during a period of suspension where the employee is a public service employee liable to discipline.

6.2 A decision that normal remuneration is not appropriate during the suspension will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.

6.3 In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include:

  1. (a)
    the nature of the discipline matter
  1. (b)
    any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
  1. (c)
    the public interest of the employee remaining on suspension with remuneration.

[10] Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018, [32] and [53]-[59] (Deputy President Merrell).

[11] Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523, 527-528 (Kirby P) and 534 (McHugh JA).

[12] [2021] QIRC 356, [104]-[131] (Davis, J, President, Vice President O'Connor and Deputy President Merrell).

[13] [1988] 2 Qd R 545, 547-548 (Williams J, Connolly J at 546 agreeing).

[14] [2014] ICQ 012, [2] (Martin J, President).

[15] In the case of Ms Graf, the date referred to in her submission was '27/1/2022'.

[16] In the case of Ms Graf, the date referred to in her submission was '27/1/2022'.

[17] Covid-19 Vaccination Requirements for Workers in a high-risk setting Direction, cl 9 ('the First CHO Direction').

[18] Ibid, sch 1 (definition of 'High-risk setting') and sch 2.

[19] Covid-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2), cl 10.

[20] Ibid, sch 1 (definition of 'High-risk setting') and sch 2.

[21] [2022] QIRC 350, [21]-[26].

Close

Editorial Notes

  • Published Case Name:

    Graf and Ors v State of Queensland (Department of Education)

  • Shortened Case Name:

    Graf v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 451

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    21 Nov 2022

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
ASSOCIATION v THE COMMONWEALTH (1949) 79 CLR 20
1 citation
Jump To
Cite 1 - (1949) 79 CLR 20
Brasell-Dellow v Queensland (2021) 310 IR 212
1 citation
Jump To
Cite 1 - (2021) 310 IR 212
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
2 citations
Jump To
Cite 1 - [2021] QIRC 356
Cite 2 - [2021] QIRC 356
Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 18
2 citations
Jump To
Cite 1 - [2022] QIRC 18
Cite 2 - [2022] QIRC 18
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
2 citations
Jump To
Cite 1 - (1988) 14 NSWLR 523
Cite 2 - (1988) 14 NSWLR 523
Greguric v Department of Works [1988] 2 Qd R 545
2 citations
Jump To
Cite 1 - [1988] 2 Qd R 545
Cite 2 - [1988] 2 Qd R 545
Kassam v Hazzard; Henry v Hazzard [2001] NSWSC 1320
1 citation
Jump To
Cite 1 - [2001] NSWSC 1320
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Morison v State of Queensland (Department of Child Safety, Youth and Women) (2020) 305 IR 311
2 citations
Jump To
Cite 1 - (2020) 305 IR 311
Cite 2 - (2020) 305 IR 311
R v Darling Island Stevedoring & Lighterage co Ltd [1938] HCA 44
1 citation
Jump To
Cite 1 - [1938] HCA 44
R v Darling Island Steverdoring and Lighterage Co Ltd ex parte Halliday and Sullivan (1938) 60 CLR 601
1 citation
Jump To
Cite 1 - (1938) 60 CLR 601
State of Queensland v Queensland Teachers' Union & Anor [2014] ICQ 12
2 citations
Jump To
Cite 1 - [2014] ICQ 12
Cite 2 - [2014] ICQ 12
Winter v State of Queensland (Department of Education) [2022] QIRC 350
2 citations
Jump To
Cite 1 - [2022] QIRC 350
Cite 2 - [2022] QIRC 350

Cases Citing

Case NameFull CitationFrequency
Allison v State of Queensland (Department of Education) [2024] QIRC 2632 citations
Argent v State of Queensland (Department of Education) [2022] QIRC 4742 citations
Crittenden-Godley v State of Queensland (Queensland Health) [2023] QIRC 2752 citations
Daunt v State of Queensland (Department of Education) [2024] QIRC 2512 citations
Davenport v State of Queensland (Department of Education) [2024] QIRC 2061 citation
Fletcher v State of Queensland (Queensland Health) [2023] QIRC 453 citations
Gatongi v State of Queensland (Department of Education) [2024] QIRC 2332 citations
Goodchild v State of Queensland (Queensland Health) [2023] QIRC 533 citations
Jones v State of Queensland (Queensland Ambulance Service) [2023] QIRC 222 citations
Jones v State of Queensland (Queensland Health) [2023] QIRC 753 citations
Meni v State of Queensland (Department of Education) [2023] QIRC 181 citation
Radanovic v State of Queensland (Department of Education) [2024] QIRC 2251 citation
Sankey v State of Queensland (Department of Education) [2024] QIRC 1975 citations
Smith v State of Queensland (Department of Education) [2024] QIRC 2432 citations
Starkey v State of Queensland (Department of Education) [2024] QIRC 2962 citations
Steenson v State of Queensland (Department of Education) [2024] QIRC 2422 citations
Stewart v State of Queensland (Queensland Health) [2024] QIRC 1031 citation
Sturgess v State of Queensland (Department of Education) [2024] QIRC 2362 citations
Temple v State of Queensland (Department of Education) [2024] QIRC 2981 citation
Tilley v State of Queensland (Queensland Health) [2023] QIRC 2621 citation
Tilley v State of Queensland (Queensland Health) (Disciplinary Decision) [2024] QIRC 2521 citation
Triplow v Leidos SAR Services Pty Ltd [2024] QIRC 123 citations
1

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