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Jones v State of Queensland (Queensland Ambulance Service)[2023] QIRC 22

Jones v State of Queensland (Queensland Ambulance Service)[2023] QIRC 22

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Jones v State of Queensland (Queensland Ambulance Service) [2023] QIRC 022

PARTIES: 

Jones, Phillip

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO:

PSA/2022/554

PROCEEDING:

Public Service Appeal – Fair Treatment

DELIVERED ON:

24 January 2023

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDERS:

The decision appealed against is confirmed pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld).

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal under s 197 of the Public Service Act 2008 (Qld) – where Queensland Ambulance Service HR Policy Employee COVID-19 Vaccination Requirements required relevant employees to receive COVID-19 vaccination – where appellant requested exemption from compliance on basis of genuinely held religious belief – where exemption refused – where appellant requested internal review but sought to change the grounds on which application for exemption made – where appellant sought exemption on basis of exceptional circumstances – where internal review confirmed decision to refuse exemption – whether exceptional circumstances meaningfully considered – whether human rights adequately considered – decision confirmed

LEGISLATION AND

INSTRUMENTS:

Public Service Act 2008, ss 47, 197

Industrial Relations Act 2016, s 562B

Work Health and Safety Act 2011 (Qld), ss 47, 48

Code of Practice and QAS HR Procedure - COVID-19 Vaccine Requirements

QAS HR Policy Employee COVID-19 Vaccination Requirements

Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction

CASES:

Baiada Poultry Pty Ltd v R (2012) 246 CLR 92

Blomfield v State of Queensland (Queensland Health) [2022] QIRC 116

Brassell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356

Goodall v State of Queensland & Anor [2018] QSC 319

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

Higgins v State of Queensland (Queensland Health) [2022] QIRC 030

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320

Kathryn Roy-Chowdhury v The Ivanhoe Girls' Grammar School [2002] FWC 849

R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71

Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456

Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6

Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039

Stevens v Epworth Foundation [2022] FWC 593

Thorley v State of Queensland (Department of Education) [2022] QIRC 133

Reasons for Decision

  1. [1]
    Mr Phillip Jones is employed by the State of Queensland through the Queensland Ambulance Service ('QAS') as a Paramedic.
  2. [2]
    On 13 September 2021, the QAS issued the Code of Practice and QAS HR Procedure - COVID-19 Vaccine Requirements ('the HR Procedure') concerning mandatory vaccination requirements for certain staff employed by the service.
  3. [3]
    By appeal notice filed on 4 May 2022, Mr Jones lodged an appeal pursuant to ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PS Act') seeking to challenge a decision by A/Assistant Commissioner John Hammond which confirmed a decision not to approve Mr Jones' application for an exemption from compliance with the HR Procedure.
  4. [4]
    Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').[1]  It is not by way of rehearing, but rather involves a review of the decision by QAS and the decision-making process therein.[2]  Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[3]
  5. [5]
    The sole issue for my consideration is whether the decision under appeal, being A/Assistant Commissioner Hammond's decision to confirm an earlier decision refusing Mr Jones' request for an exemption, was fair and reasonable.
  6. [6]
    Other issues raised by Mr Jones such as the safety and efficacy of the vaccines, the legality of the mandate, the views of various organisations or groups in relation to the vaccines and the purported experimental nature of the vaccines are beyond the scope of this appeal.

Background

  1. [7]
    As touched on above, QAS issued the HR Procedure on 13 September 2021, introducing mandatory vaccination requirements for categories of prospective and existing employees of QAS, namely employees who fall within a 'high-risk' group.[4] The HR Procedure identifies high risks groups as follows:

3.3.2 High risk groups are:

  1. a)
    Any employee providing services to residential aged care facilities and residential aged care within a multipurpose health service.
  1. b)
    Any employee who is employed to work at a QAS facility (or other Queensland Health facility) where clinical care or support is provided (including both clinical and non-clinical employees)
  1. c)
    Any employee who is employed in a role that requires their attendance at a QAS facility (or other Queensland Health facility) where clinical care or support is provided (including both clinical and non-clinical employees).
  1. [8]
    Facilities included  within s 3.3.2 include Ambulance Stations and any other Queensland Health or QAS facility.[5]
  2. [9]
    It is not in dispute that Mr Jones' role as a Paramedic falls within the definition of a high-risk group.
  3. [10]
    Section 3.6 of the HR Procedure provides that an employee may be granted an exemption from compliance with the vaccination requirements on application.[6]  It further provides that such an application would be considered by QAS where:
  1. (a)
    an employee has a recognised medical contraindication;
  2. (b)
    an employee has a genuinely held religious belief; or
  3. (c)
    another exceptional circumstance exists.[7]
  1. [11]
    On 1 October 2021, Mr Jones applied for an exemption to the mandatory vaccine requirements, identifying a genuinely held religious belief as the basis for his application.[8]
  2. [12]
    The exemption application form stipulates two evidentiary requirements for consideration of a religious exemption:
  1. (a)
    a letter specifying the applicant's deeply held religious belief which prevents them from receiving the vaccine; and
  2. (b)
    a letter from a religious leader or official specifying their affiliation or connection to a religious group.
  1. [13]
    In the supporting documentation attached to his exemption application, Mr Jones set out the grounds of his application as follows:

I am applying for exemption from covid19 vaccinations based on genuinely held religious beliefs.

As a Christian I believe in the Bible and its teachings

I accept Christianity as a lifestyle, as opposed to a system of religious attitudes, beliefs, and practices. This therefore affects all areas of my daily life including the decisions I make, my morals and values and how I maintain my health to name a few.

I believe God has given me the wisdom to make sound decisions

Proverbs 2:6 For the LORD gives wisdom from his mouth come knowledge and understanding;

The covid19 narrative adopted by both our government and mainline media is at odds with what the immunologists, virologists, doctors and scientists who have worked in the field are testifying to. These people are experts in their field who are speaking out despite the potential and actual harm to them both financially and academically.

The massive fear campaign run by both social and mainline media is opposed to the statistical evidence we are given. Even these statistics are given with very poor evidence as to their correlation data.

The "vaccinations" in question provide very limited immunity, with known short term and unknown long-term adverse reactions including death. These vaccines are still in the trial stage that is normally reserved for animals. They do not prevent transmission and are the most ineffective vaccines ever developed.

There have now been many studies done proving the effectiveness of alternative methods of treatment, not limited to ivermectin and hydroxychloroquine. Several countries are now utilising such treatments with great effectiveness.  Why are these studies being ignored by our government with the TGA outlawing their use as effective treatments?

I cannot in good conscience take such a vaccine.  I believe as a Christian I have a duty to look after my own body and my health.

1 Corinthians 6:19 Or do you not know that your body is a temple of the holy spirit who is in you, whom you have received from God? You are not your own.

I am not anti-vaccine and due to extensive travel in developing countries have had more vaccines than the average person. I hence believe vaccines can be very effective.  We therefore need to openly and honestly test all vaccines before mandating them on society.

I'm therefore asking for an exemption from the COVID shot directive so that my conscience can remain clear before God. Thank you for your consideration.[9]

  1. [14]
    Also included within the supporting documentation was a letter signed by Reverend John White, Senior Minister of the Atherton Tablelands Baptist Church, which confirmed Mr Jones' regular and committed attendance and participation in the congregation and purported to certify his ability to choose not to be vaccinated.[10]
  2. [15]
    On 31 January 2022, the HR Procedure was replaced by the QAS HR Policy Employee COVID-19 Vaccination Requirements ('the HR Policy'). The pertinent sections of the HR Policy are in materially the same terms as the HR Procedure.
  3. [16]
    Although offered the opportunity to do so, Mr Jones did not provide any updated or additional information in support of his existing application in response to the HR Policy.
  4. [17]
    On 2 March 2022, Mr Ray Clarke, QAS Executive Director, Workforce, advised Mr Jones his request for an exemption had been refused and Mr Jones was directed to comply with the HR Policy and receive his first dose of a COVID-19 vaccine within seven days.[11]
  5. [18]
    Consequently, Mr Jones sought an internal review of that decision on 15 March 2022.[12] In his request for review, Mr Jones advised that, although his initial application had been made on the basis of genuinely held religious beliefs, he believed that this application should now be considered under other exceptional circumstances.  Mr Jones explained this was so because of new evidence available which related to the safety and efficacy of the vaccines, the need for review of any risk management processes, the vaccination approaches of other public service agencies, natural immunity and Mr Jones' human rights.
  6. [19]
    On 19 March 2022, Mr Jones provided further material which appointed an agent to represent his interests, raised further safety concerns and requested a risk assessment.[13] He further advised that without the appropriate risk assessment and consultation, he considered the mandate may be unlawful.
  7. [20]
    In a decision-letter dated 13 April 2022, A/Assistant Commissioner Hammond informed Mr Jones that an internal review of the exemption application had been completed, and the decision to refuse his exemption application had been confirmed ('the Internal Review Decision').[14]
  8. [21]
    This is the decision now appealed by Mr Jones.

Mr Jones' Submissions

  1. [22]
    As I understand his submissions, Mr Jones' primary concerns are that he perceives the vaccine mandate to be inconsistent with scientific evidence, unsafe and not justified having regard to his human rights.[15]

Efficacy and Safety

  1. [23]
    Mr Jones questions the efficacy of the vaccines and argues national and international developments suggest they are less effective than as portrayed by QAS.  He also raises concerns regarding their safety citing an unspecified report by the Therapeutic Goods Administration ('the TGA') of 'March numbers' which purportedly recorded 114,000 adverse reactions and 792 deaths as a result of the vaccines.  However, Mr Jones submits the representation and gathering of statistics related to COVID-19 vaccines has been misleading and inaccurate.  Consequently, he argues the adverse reactions from COVID‑19 vaccines surpass the adverse reactions of all other vaccines combined.
  2. [24]
    In this respect, throughout his submissions, Mr Jones poses several rhetorical questions as follows:

... has there ever been a vaccination so ineffective that it required two administrations with a booster shot at three months

Has there even been a pandemic in history where the average age of those dying is older then [sic] average life expectancy?

Why do QAS and Qhealth [sic] continually deny such evidence [referring to what Mr Jones submits are the 'latest scientific findings from around the world'][16]

  1. [25]
    Mr Jones maintains the vaccines have been provisionally approved and are still under trial. He contends normal testing of such vaccines would be carried out in laboratories on animals, not on humans, and this in itself is a violation of human rights.  He argues the mandate further breaches his human rights as the 'latest information world-wide' refutes QAS's reasons for imposing the mandate, thus making it 'null and void'.
  2. [26]
    In support of his concerns about the efficacy and safety of COVID vaccines, Mr Jones relied on a letter addressed to a series of decision-makers at a Commonwealth level, including the Minister for Health and Aged Care, the Secretary of the Department of Health and the Chief Medical Officer, Professor Paul Kelly.
  3. [27]
    Dated 22 March 2022, several academics, consultants, and individuals with qualifications in law, pharmacy, and medical research appear to have contributed to the document, under the banner of the ‘Covid Medical Network’.
  4. [28]
    The correspondence raises questions about the efficacy and safety of the covid vaccine and references reports, statistics and commentary from various institutions, journal articles, media and the internet, however the document does not directly refer to Mr Jones or his personal circumstances.[17]

Bullying

  1. [29]
    Mr Jones further submits the Internal Review Decision is an attempt to bully and harass him, in that it states there may be employment consequences for his refusal to be vaccinated.
  2. [30]
    In reply submissions he submits any person who has had their livelihood threatened unless they receive a 'trial drug' has been bullied and harassed.  Further, he maintains both QAS and the Australian Health Practitioners Registration Agency ('AHPRA') have advised him that if he publicly questions the mandates, even if he has scientific evidence, he may risk not only disciplinary action but possible deregistration.  He argues this is both bullying and harassment which can only be detrimental to the future of QAS.

Human Rights and the need for a vaccine mandate

  1. [31]
    Mr Jones notes inconsistencies between public service agencies, specifically Queensland Fire and Emergency Services ('QFES'), whose staff often share facilities and work closely with QAS employees, has rescinded its mandate. 
  2. [32]
    In reply submissions he clarifies his understanding of the arrangements, observing that this would mean unvaccinated QAS staff would not be permitted to use facilities unvaccinated QFES employees could access.  He submits this not only raises human rights issues but undermines QAS's risk management efforts used to justify the mandate.

Adequacy of consultation

  1. [33]
    Despite QAS's assertions stating COVID-19 presents a significant risk, Mr Jones argues it has provided no evidence to support how it reached this conclusion.  Further, he argues any previous risk assessments undertaken by QAS need to be urgently reviewed given current scientific information. 
  2. [34]
    In reply submissions, Mr Jones notes he does not recall being included in any consultation process prior to the mandate's introduction.
  3. [35]
    Finally, Mr Jones notes there are numerous undecided proceedings before the Courts seeking to challenge the legality of vaccine mandates and these need to be determined before any decision by QAS is made.

QAS's Submissions

  1. [36]
    Although QAS notes Mr Jones holds particular views regarding the COVID-19 vaccines, it submits a public service appeal is not the appropriate forum for a debate about the scientific merits or public policy behind the mandate.[18]  Similarly, while it accepts Mr Jones may be hesitant about being vaccinated, it submits vaccine hesitancy is not an exceptional circumstance which justifies an exemption.
  2. [37]
    QAS explains the HR Policy is based on the Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction ('the CHO Direction') which relevantly requires certain workers in healthcare settings to receive COVID-19 vaccinations.[19]  It argues that once the CHO Direction was made, it was reasonable for QAS to implement the initial HR Procedure, and then the HR Policy, to ensure it was both complying with that direction and meeting its duty of care to staff, patients and the public.[20]
  3. [38]
    It submits exemption applications are considered on an individual basis and weighed against QAS's health and safety obligations.[21]  Consequently, it submits such applications are only approved in exceptional circumstances having regard to the public health risk posed by COVID-19.[22]  With respect to Mr Jones' application, it argues QAS's considerations about workplace and community safety had to take precedence over his religious beliefs and vaccine hesitancy.[23]
  4. [39]
    QAS argues the decision-maker carefully considered Mr Jones' application and submissions, including his submissions about QFES's vaccination approach and natural immunity to COVID-19.[24]  It submits these were weighed against the objects and requirements of the HR Policy, with the decision-maker determining Mr Jones had not demonstrated exceptional or extenuating circumstances related to him as an individual which justified an exemption.[25]
  5. [40]
    With respect to Mr Jones' comparisons to QFES, QAS argues that agency's decisions have no bearing on the lawfulness or reasonableness of QAS decisions.[26]  Further, it argues there is an important distinction between the agencies because QFES is not subject to the CHO Direction.[27]
  6. [41]
    QAS denies having bullied or harassed Mr Jones, submitting he is free not to receive a COVID-19 vaccine but observing there are consequences for making that choice.[28]  In this respect, it submits it was bound by the CHO Direction and cannot lawfully permit Mr Jones to perform duties as a paramedic while unvaccinated.[29]
  7. [42]
    It submits Mr Jones has access to information in respect of the safety and efficacy of the vaccination as the service is part of Queensland Health.[30]  Further, it acknowledges its duty to consult with employees and registered unions so far as is reasonably practicable under the Work Health and Safety Act 2011 (Qld) ('the WHS Act') and submits it did so in relation to the mandate.[31]
  8. [43]
    In respect of its risk assessments, QAS submits there is no lawful basis on which Mr Jones' could request access to such information.[32]  In any event, it argues the vaccines have been approved by the TGA and the Australian Technical Advisory Group on Immunisation ('ATAGI'), which is a matter of public record and evidence of their safety and efficacy.[33]  Consequently, it argues it was not required to provide Mr Jones with such assurances, nor was it required to undertake its own risk assessment of the vaccines.[34]
  9. [44]
    Finally, although it appears to accept Mr Jones' human rights may have been impacted by the mandate, QAS relies on the decision-maker's findings that any limitation to those rights was justified by the need to ensure the readiness of the health system in response to the pandemic, in order to protect the lives of employees, patients and the community and discharge its legal obligations, including under the WHS Act.[35]

The internal review decision was fair and reasonable

  1. [45]
    Having considered the internal review decision of Mr John Hammond, A/Assistant Commissioner, Strategic Operations, I have determined the decision was fair and reasonable for the reasons set out below.
  2. [46]
    It is not in contention that Mr Jones, a Paramedic registered with AHPRA, has been properly characterised as a worker in a healthcare setting for the purposes of the CHO Direction.
  3. [47]
    Although Mr Jones has made a brief observation in his submissions about ‘numerous proceedings before the courts’, in relation to the legality of ‘these mandates’, he does not appear to directly challenge the CHO Direction or specific elements of the QAS HR Procedure.[36]
  4. [48]
    Even if that was the case however, I am satisfied the QAS Code of Practice and HR Procedure as it relates to COVID-19 vaccination requirements and the procedures for applying for an exemption are both lawful and reasonable, particularly when regard is had to QAS’s obligations to comply with the CHO Direction and to meet its duty of care to staff, patients and the public.[37]
  5. [49]
    Within the procedure, QAS established a process whereby employees such as Mr Jones can seek an exemption from the vaccine requirements in limited circumstances. Relevantly, employees can apply for an exemption where they are able to demonstrate ‘exceptional circumstances’.
  6. [50]
    Although Mr Jones’ exemption application was originally considered on the grounds of a ‘genuinely held religious belief’, he subsequently requested an internal review be undertaken having regard to ‘other exceptional circumstances’. 
  7. [51]
    In support of his internal review, Mr Jones submitted:
  1. (a)
    The vaccine is ineffective in circumstances where a booster shot is issued every three months.
  2. (b)
    The vaccine is unsafe and is contributing to deaths.
  3. (c)
    The average age of those dying from COVID is greater than the average age lifespan of a person.
  4. (d)
    The vaccines are only provisionally approved by the TGA.
  5. (e)
    QAS employees regularly share premises with staff from other agencies where vaccines are not mandated.
  6. (f)
    Natural immunity is still considered far superior to vaccine induced immunity.
  7. (g)
    The original QAS decision to refuse the exemption encroached on Mr Jones’ human rights.
  8. (h)
    The existing risk management process should be reviewed.[38]

Efficacy and Safety

  1. [52]
    Within the QAS employee COVID-19 vaccine exemption application form, QAS observes that when considering the application as it pertains to exceptional circumstances, an employee’s circumstances will be considered on an individual basis.[39]
  2. [53]
    In response to Mr Jones’ concerns relating to the efficacy and safety of the COVID-19 vaccine, A/Assistant Commissioner, Strategic Operations, Mr John Hammond, noted:

COVID-19 vaccines 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 (TGA). The vaccines are now in routine clinical use to prevent disease. Evidence from around the world (including the TGA) demonstrates that the COVID-19 vaccines are safe and effective.

You have asserted in your correspondence that the QAS is now mandating booster doses of the COVID-19 vaccine for employees every three months. Please be advised that whilst employees are required to have a booster dose within the prescribed window following receipt of their second dose, your statement that employees are required to receive booster doses every three months is not accurate.[40]

  1. [54]
    Although I accept Mr Jones holds strong personal concerns in relation to the efficacy of the vaccine, the difficulty with this aspect of his appeal is that the vaccine exemption form and explanatory material make it clear that vaccine hesitancy and conscientious objection, on their own, are not considered exceptional circumstances.
  2. [55]
    Although the correspondence authored by the Covid Medical Network incorporated commentary, questions and conclusions about the efficacy or safety of the vaccine in so far as it purportedly impacted, for example, a particular cohort of people, I was unable to locate any information within the material that could be characterised as extenuating or exceptional, in so far as it directly related to Mr Jones’ individual circumstances.
  3. [56]
    Moreover, within his application for a review, I was unable to identify any other circumstances, relevant to Mr Jones, that meaningfully weighed against other considerations QAS had  regard to when considering the application - for example, the risk to the health and wellbeing of patients, colleagues and other stakeholders.  
  4. [57]
    For those reasons, I am not persuaded the circumstances relied on by Mr Jones, in so far as they relate to the approval, efficacy or safety of the vaccine, could be characterised as exceptional. Nor could they lead to a conclusion that A/Assistant Commissioner, Strategic Operations, Mr John Hammond’s decision was unreasonable.

Other Appeal Grounds

  1. [58]
    The remaining grounds Mr Jones has chosen to rely on in support of his appeal, concern (1) a claim he has been subject to bullying and harassment which in turn has resulted in an incursion on his human rights; (2) a failure on the part of QAS to conduct fresh risk assessments; and although not referred to in his internal review submissions or Appeal notice, (3) the inadequacy of consultation ahead of the introduction of the QAS HR Covid Procedure.

Bully and Harassment

  1. [59]
    In his internal review submissions, Mr Jones raised concerns about correspondence issued by QAS and APHRA which purportedly highlighted the risk of disciplinary action where QAS employees questioned the vaccine mandates.
  2. [60]
    Similarly, Mr Jones’ referred to this correspondence  within the appeal notice, characterising the actions of QAS and APHRA as bullying and harassment.
  3. [61]
    In his reasons for Decision A/Assistant Commissioner, Strategic Operations, Mr John Hammond observed:

The decision to require vaccination against COVID-19 was made considering the significant risk to the health and safety of healthcare workers, support staff, their families, and the patients under our care.

…

The decision itself does not compel a person to be vaccinated, but it does impose employment consequences upon people who are not vaccinated in circumstances unless certain extenuating circumstances apply.[41]

  1. [62]
    QAS further submits the existence of the CHO Direction meant it could not lawfully permit employees such as Mr Jones to perform his duties while unvaccinated, which in turn led to consequences where employees chose not to be vaccinated.
  2. [63]
    In Graf & Ors v State of Queensland (Department of Education),[42] a case where several employees within the Department of Education were subject to a decision of suspension without remuneration after failing to comply with a Direction to receive the COVID-19 vaccination, his Honour, DP Merrell relevantly stated:

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 employers’ undertaking. Some employees may, for a range a reasons, not comply with such a direction. But that is a matter for each employee.

…

The will of each Appellant was not being overborne. Each Appellant had a real choice as to whether they complied with the Direction.[43] 

  1. [64]
    Similarly, in this matter, I am not persuaded that correspondence setting out the consequences for not complying with vaccine requirements could be characterised as bullying or harassment in respect to receiving the vaccine. In the end, it was entirely a matter for Mr Jones’ as to whether he complied with the QAS Covid HR Procedure, or not.
  2. [65]
    Under the same appeal ground, Mr Jones relies on the example of shared facilities utilised by public servants from other agencies such as QFES, where employees are not required to comply with a vaccine mandate, as a basis for questioning the rationale for the mandate.  
  3. [66]
    In relation to this point, I agree with QAS’s submissions that decisions made by other agencies have no bearing on the lawfulness or reasonableness of QAS decisions.[44]  I also accept there is an important distinction between the agencies in circumstances where QFES was not subject to the CHO Direction during the relevant period.[45]
  4. [67]
    For these reasons, I am not persuaded  Mr Jones’ submissions in relation to this ground of appeal, result in a conclusion that A/Assistant Commissioner, Strategic Operations, Mr John Hammond's decision was unfair or unreasonable.

Human Rights Incursion

  1. [68]
    In his internal review decision letter, A/Assistant Commissioner, Strategic Operations, Mr John Hammond, in response to Ms Jones’ concerns in respect of his human rights, noted:

…I acknowledge that my decision may engage a number of your human rights, including your right to freedom of thought, conscience, religion and belief recognition. I am satisfied that any limits on human rights engaged are justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, to protect the lives of employees, patients and the community they serve and to discharge the QAS’s legal obligations, including under the Work Health and Safety Act 2011. I do not consider there is any less restrictive means, other than vaccination, which would sufficiently ensure your safety and the safety of other staff and patients.[46]

  1. [69]
    Mr Jones’ submits more recent scientific information in respect of the COVID-19 vaccination negates QAS’s argument about the health and safety benefits that arise from vaccinations. In turn, he questions QAS’s reliance on health and safety risks to other health care workers, support staff and patients when determining his exemption application, arguing such a consideration is now ‘null and void hence a human rights issue’.[47]
  2. [70]
    The difficulty with this approach, in circumstances where the vaccinations have been approved by the Therapeutic Goods Administration (TGA) and ATAGI, is that the decision maker was not obliged to consider or reconsider the efficacy of the COVID-19 vaccinations, when determining Mr Jones’ exemption application or the subsequent internal review of the decision.
  3. [71]
    In any event, I am satisfied Mr Jones’ human rights were considered during the internal review. Relevantly, A/Assistant Commissioner Hammond acknowledged the incursion of the QAS vaccination policy on Mr Jones’ human rights but determined that any limitation was justified to protect the lives of employees, patients, and the community and to discharge QAS’s legislative obligations.
  4. [72]
    For these reasons, I am not persuaded Mr Jones’ submissions in relation to this ground of appeal, lead to a conclusion that A/Assistant Commissioner, Strategic Operations, Mr John Hammond’s decision was unfair or unreasonable.

Other Matters – Further Risk Assessments and Inadequate Consultation

  1. [73]
    Mr Jones’ submits a further risk assessment should be undertaken ‘given current available scientific information’.[48] It is not clear from his submissions which aspects of the Covid Medical Network correspondence he relies on, in support of his request for a further risk assessment.
  2. [74]
    In any event, given approval of the vaccinations by the TGA and ATAGI has not yet been rescinded, there does not appear to be a lawful basis upon which Mr Jones’ could request a further risk assessment. Nor does the absence of a risk assessment, in my view, form the basis of a conclusion that the internal review decision appealed against was unfair or unreasonable.
  3. [75]
    Although not included in his submissions during the internal review of his exemption application, nor in his initial grounds of appeal, Mr Jones’ belatedly submits in his reply submissions that he cannot recall being included in the consultation process associated with the QAS COVID-19 vaccination policy. 
  4. [76]
    For completeness, I have addressed this issue below.
  5. [77]
    The Department submits that employees of QAS have access to information relating to the safety and efficacy of the vaccine. Moreover, the QAS maintains, by virtue of its connection with the Department of Health, it has complied with its obligations under the WHS Act to consult with employees and with registered unions representing employees in relation to the introduction of the vaccine mandate. It is submitted that the consultation extended to dedicated meetings with registered unions representing employees with the Department.
  6. [78]
    Although section 48 of the WHS Act describes certain types of consultation which should take place, section 47 provides the obligation to consult need only occur to the extent that it is reasonably practicable.[49]
  7. [79]
    In 'Brassell-Dellow',[50] the Full Bench considered the concept of "reasonably practicable", noting:
  1. [124]
    Section 47 is of general application to all workforces and workplaces. It is easy to imagine that it may be reasonably practicable to consult on a face to face basis and fully in terms of s 48 with each individual member of a small workforce. Here, the workforce is over 17,200 in number.
  1. [125]
    In Slivak v Lurgi (Australia) Pty Ltd, Gaudron J described the notion of “reasonably practicable”, in the context of fulfilment of a safety obligation, as follows:

"The words ‘reasonably practicable’ have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words ‘reasonably practicable’ are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

'the phrase 'reasonably practicable' means something narrower than 'physically possible' or 'feasible;

what is 'reasonably practicable' is to be judged on the basis of what was known at the relevant time;

to determine what is 'reasonably practicable' it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.'"

  1. [126]
    In Baiada Poultry Pty Ltd v R, the High Court adopted a similar approach concluding:

"All elements of the statutory description of the duty were important. The words ‘so far as is reasonably practicable’ direct attention to the extent of the duty. The words ‘reasonably practicable’ indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment."

  1. [127]
    The evidence shows that each employee received by email various documents over a period of time which explained the Commissioner’s intentions. Importantly, each of the applicants who gave evidence were members of a union at the time the direction was given. All the police and other staff were eligible for membership of one of the unions with whom the Deputy Commissioner consulted, and who supported the directive. Those unions, therefore, covered the workforce. It is well-established that trade unions may negotiate with employers, not only on behalf of their members, but also on behalf of workers who are eligible for membership.
  1. [128]
    When considering in any particular case what consultation is "reasonably practicable", regard must be had not only to the particular circumstances, but also to the legislative intention behind ss 47 and 48. The point of s 47 is to enable workers who may be affected by workplace, health and safety issues to have input into the management of those issues before an employer imposes conditions upon them. Obviously, the desirable outcome is agreement between the employer and employees as to the work, health and safety measures.[51]
  1. [80]
    Although Mr Jones is unable to recall if he participated in any consultation ahead of the introduction of the vaccine requirements, I am satisfied employees of QAS, including Mr Jones, received correspondence and information in relation to the requirement to be vaccination against COVID-19 and that the Department of Health consulted with relevant unions. 
  2. [81]
    For the above reasons, I am not persuaded this ground of appeal could lead to a conclusion the Internal Review Decision was unfair or unreasonable.

Conclusion

  1. [82]
    For the reasons given above, the Internal Review Decision confirming the refusal of Mr Jones' request for an exemption from receiving the COVID-19 vaccine, was fair and reasonable.
  2. [83]
    I confirm the Internal Review Decision.

Order

  1. [84]
    I make the following order:

The decision appealed against is confirmed pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld).

Footnotes

[1]Public Service Act 2008 (Qld) s 197.

[2]Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Qld & Anor [2018] QSC 319, [5].

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

[4]QAS HR Procedure - COVID-19 Vaccine Requirements s 3.3.2.

[5]Ibid s 3.3.3.

[6]Ibid ss 3.6.1, 3.6.3.

[7]Ibid s 3.6.2.

[8]QAS submissions filed 23 May 2022, Attachment 1.

[9]Ibid.

[10]Ibid.

[11]Ibid Attachment 2.

[12]Ibid Attachment 3.

[13]Ibid Attachment 4.

[14]Ibid Attachment 5.

[15]Mr Jones submissions filed on 17 May 2022; Mr Jones' email correspondence received on 28 June 2022.

[16]Mr Jones' Submissions filed 17 May 2022, 1.

[17]Ibid 2-53.

[18]QAS submissions filed 23 May 2022, [16]; citing Thorley v State of Queensland (Department of Education) [2022] QIRC 133, [44].

[19]QAS submissions filed 23 May 2022, [17].

[20]Ibid [19].

[21]Ibid.

[22]Ibid.

[23]Ibid; citing Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [29].

[24]QAS submissions filed 23 May 2022, [20].

[25]Ibid; citing Blomfield v State of Queensland (Queensland Health) [2022] QIRC 116, [32].

[26]QAS submissions filed 23 May 2022, [21].

[27]Ibid.

[28]Ibid [23]; citing Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, [63].

[29]QAS submissions filed 23 May 2022.

[30]Ibid [24].

[31]Ibid.

[32]QAS submissions filed 23 May 2022, [25]; citing Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39, [35].

[33]Ibid; citing Stevens v Epworth Foundation [2022] FWC 593, [19].

[34]Ibid; citing Stevens v Epworth Foundation [2022] FWC 593, [35]; Kathryn Roy-Chowdhury v The Ivanhoe Girls' Grammar School [2002] FWC 849, [103].

[35]QAS submissions filed 23 May 2022, [27].

[36]Mr Jones' Submissions filed 17 May 2022, 1.

[37]Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction; Public Service Act 2008 (Qld) s 47(2)-(3); Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [36]; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030.

[38]Appeal Notice filed 4 May 2022. 

[39]QAS submissions filed 23 May 2022, Attachment 1.

[40]Ibid Attachment 5.

[41]Ibid Attachment 5.

[42][2022] QIRC 451.

[43]Ibid [39].

[44]QAS submissions filed 23 May 2022, [21].

[45]Ibid.

[46]Ibid Attachment 5.

[47]Mr Jones' submissions filed 17 May 2022.

[48]Ibid.

[49]Ibid ss 47, 48.

[50]Brassell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356.

[51]Ibid [124]-[128]; citing Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; Baiada Poultry Pty Ltd v R (2012) 246 CLR 92; R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71; Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; Work Health and Safety Act 2011 (Cth) ss 47, 48.

Close

Editorial Notes

  • Published Case Name:

    Jones v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    Jones v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2023] QIRC 22

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    24 Jan 2023

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
Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92
2 citations
Jump To
Cite 1 - (2012) 246 CLR 92
Cite 2 - (2012) 246 CLR 92
Blomfield v State of Queensland (Queensland Health) [2022] QIRC 116
2 citations
Jump To
Cite 1 - [2022] QIRC 116
Cite 2 - [2022] QIRC 116
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
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Graf v State of Queensland (Department of Education) [2022] QIRC 451
2 citations
Jump To
Cite 1 - [2022] QIRC 451
Cite 2 - [2022] QIRC 451
Higgins v State of Queensland (Queensland Health) [2022] QIRC 30
2 citations
Jump To
Cite 1 - [2022] QIRC 30
Cite 2 - [2022] QIRC 30
Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320
2 citations
Jump To
Cite 1 - [2021] NSWSC 1320
Cite 2 - [2021] NSWSC 1320
Kathryn Roy-Chowdhury v The Ivanhoe Girls' Grammar School [2002] FWC 849
2 citations
Jump To
Cite 1 - [2002] FWC 849
Cite 2 - [2002] FWC 849
R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71
2 citations
Jump To
Cite 1 - (1957) 97 CLR 71
Cite 2 - (1957) 97 CLR 71
Regional Express Holdings Limited v Australian Federation of Air Pilots (2017) 262 CLR 456
2 citations
Jump To
Cite 1 - (2017) 262 CLR 456
Cite 2 - (2017) 262 CLR 456
Slivak v Lurgi Australia Pty Ltd [2001] HCA 6
2 citations
Jump To
Cite 1 - [2001] HCA 6
Cite 2 - [2001] HCA 6
Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39
4 citations
Jump To
Cite 1 - [2022] QIRC 39
Cite 2 - [2022] QIRC 39
Cite 3 - [2022] QIRC 39
Cite 4 - [2022] QIRC 39
Stevens v Epworth Foundation [2022] FWC 593
3 citations
Jump To
Cite 1 - [2022] FWC 593
Cite 2 - [2022] FWC 593
Cite 3 - [2022] FWC 593
Thorley v State of Queensland (Department of Education) [2022] QIRC 133
2 citations
Jump To
Cite 1 - [2022] QIRC 133
Cite 2 - [2022] QIRC 133

Cases Citing

Case NameFull CitationFrequency
Goodchild v State of Queensland (Queensland Health) [2023] QIRC 532 citations
1

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