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  4. Mocnik v State of Queensland (Queensland Health) - [2023] QIRC 58

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Mocnik v State of Queensland (Queensland Health)[2023] QIRC 58

Mocnik v State of Queensland (Queensland Health)[2023] QIRC 58

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058

PARTIES: 

Mocnik, Sandra and Others

(Applicants)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NOS:

TD/2022/15,  TD/2022/16,  TD/2022/17,

TD/2022/20,  TD/2022/21,  TD/2022/22,

TD/2022/23,  TD/2022/25,  TD/2022/27,

TD/2022/29,  TD/2022/30,  TD/2022/31,

TD/2022/32,  TD/2022/33,  TD/2022/34,

TD/2022/35,  TD/2022/36,  TD/2022/37,

TD/2022/38,  TD/2022/39,  TD/2022/40,

TD/2022/41,  TD/2022/42,  TD/2022/43,

TD/2022/44,  TD/2022/46,  TD/2022/48,

TD/2022/49,  TD/2022/50,  TD/2022/62,

TD/2022/81,  TD/2022/82,  TD/2022/83,

TD/2022/85,  TD/2022/86,  TD/2022/87,

TD/2022/91,  TD/2022/92,  TD/2022/93,

TD/2022/95,  TD/2022/99,  TD/2022/100,

TD/2022/101,  TD/2022/108, TD/2022/109,

TD/2022/110,  TD/2022/111, TD/2022/112,

TD/2022/113,  TD/2022/114, TD/2022/115,

TD/2022/116,  TD/2022/117, TD/2022/118,

TD/2022/119,  TD/2022/120, TD/2022/121,

TD/2022/124,  TD/2022/126, TD/2022/127,

TD/2022/129

PROCEEDINGS:

Applications for reinstatement

DELIVERED ON:

22 February 2023

HEARING DATES:

18 and 23 March 2022

28 June 2022

28 September 2022

12 December 2022

MEMBER:

O'Connor VP

HEARD AT:

Brisbane

ORDERS:

  1. I will hear the parties on the appropriate form of orders which reflect these reasons.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – UNFAIR DISMISSAL – applications for reinstatement – where public health emergency declared for Queensland under the Public Health Act 2005 – where Health Employment Directive 12/21 (HED) issued under s 51A of the Hospital and Health Boards Act 2011 (HHB Act) – where agreement reached for a joint set of common issues to be considered by the Commission – whether HED 12/21 about 'conditions of employment' within the meaning of s 51A of the HHB – whether HED 12/21 inconsistent with the Anti-Discrimination Act 1991 (Qld) and/or Human Rights Act 2019 (Qld) – whether respondent had obligation to consult with the applicants individually under the Work Health and Safety Act 2011 (Qld) – whether respondent had an obligation to consult with the applicant(s)' representatives (not being a registered employee organisation pursuant to chapter 12 of the Industrial Relations Act 2016 (Qld)) prior to implementing the HED – whether the respondent had an obligation under the Work Health and Safety Act (Qld), Part 5 to provide a risk assessment for each business unit – whether dismissals unfair – determined none of the issues would make the dismissals unfair for the purposes of the Industrial Relations Act 2016 (Qld).

LEGISLATION:

Acts Interpretation Act 1954, s 7

Anti-Discrimination Act 1991 (Qld), s 11, s 101

Charter of Human Rights and Responsibilities Act 2016, s 7

Hospital and Health Boards Act 2011 (Qld), s 51A, s 51AA, s 51B, s 51E, s 66

Human Rights Act 2019 (Qld), s 8, s 13, s 17, s 20, s 23, s 27, s 58

Industrial Relations Act 2016 (Qld), s 261, s 265, s 316, s 320, s 371

Major Crimes (Investigative Powers) Act 2004 (Vic), s 39

Work Health and Safety Act 2011 (Qld), s 3, s 5, s 18, s 28, s 47, s 48, s 49

Nurses and Midwives (Queensland Health) Award - State 2015

Work health and safety consultation, cooperation and coordination Code of Practice 2021, cl 3.1

CASES:

Australian Medical Council v Wilson (1996) 68 FCR 46

Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92

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

Catholic Education Office v Clarke [2004] FCAFC 197

Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services union of Australia v QR Ltd (2010) 198 IR 382

Gilbert v Metro North Health and Hospital Service & Ors [2021] QIRC 255

Marcic v Thames Water Utilities [2004] 2 AC 42

Minister of Transport v Noort [1992] 3 NZLR 260

Moise v Greater Germiston Transitional Local Council 2001 (4) SA 481

Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273

Re Consultation Clause in Modern Awards (2013) 238 IR 282

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

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

R v Oakes [1986] 1 SCR 103

R v Shayler [2003] 1 AC 247

Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415

Re Kracke and Mental Health Review Board (2009) 29 VAR

S v Makwanyane 1995 (3) SA 391

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

State of Victoria v Schou [2004] VSCA 71

APPEARANCES:

Ms P Willoughby, Counsel instructed by Saines Legal for the Applicants.

Mr C J Murdoch, KC and Dr M J Brooks, Counsel for the Respondent instructed by Minter Ellison in respect of those persons formerly employed by the Gold Coast Hospital and Health Service and instructed by Crown Law in respect of the other former employees.

Reasons for Decision

  1. [1]
    On 29 January 2020, a public health emergency was declared for the whole of Queensland under the Public Health Act 2005, due to the outbreak of COVID-19 and the health implications to Queensland.
  1. [2]
    On 11 September 2021, Dr John Wakefield PSM, Director-General, Department of Health ('the Department') issued Health Employment Directive No 12/21 ('HED 12/21').[1]  The Human Resources Policy - Employee COVID-19 vaccination requirements ('the Requirements') were issued in September 2021 and adopt the operative clauses of HED 12/21.[2]
  1. [3]
    HED12/21 and the Requirements set out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 (Qld) (the HHB Act).
  1. [4]
    Between February and April 2022, a series of applications were filed by the above listed Applicants seeking reinstatement pursuant to s 317 of the Industrial Relations Act 2016 ('the IR Act').  After the filing of the applications several mentions were conducted before the Commission with the aim of managing the applications, all of which had a significant degree of commonality.
  1. [5]
    On 25 March 2022 a Directions Order was issued by the Commission that all matters be heard together.  A joint conference was conducted to assist in the management of the matters.  It was agreed between the parties that the conduct of the matters would be best handled by formulating a series of agreed common issues to be determined by the Commission prior to any substantive hearing.  Without rehearsing the history of these proceedings, it is sufficient to say that for present purposes, agreement was reached for a joint set of common issues to be considered by the Commission.  A further Directions Order was issued on 28 September 2022 dealing with the management of the proceedings and the following set of common issues was filed in the Industrial Registry on 11 October 2022:

Common Issues

  1. Is HED 12/21 a health employee directive, about "conditions of employment", within the meaning of section 51A of the Hospital and Health Boards Act 2011 (Qld)?
  1. Is HED 12/21 a health employee directive, that is inconsistent with, one or both of following Acts within the meaning of section 51B of the Hospital and Health Boards Act 2011 (Qld):
  1. Anti-Discrimination Act 1991 (Qld); and/or
  1. Human Rights Act 2019 (Qld)?
  1. Did the Respondent have an obligation under the following Acts to consult directly with the Applicant(s) individually, prior to implementing the HED 12/21: 
  1. Part 5 of the Work Health and Safety Act 2011 (Qld); or
  1. Section 51AA of the Hospital and Health Boards Act 2011 (Qld)?
  1. Did the Respondent have an obligation under the following Acts to consult with the Applicant(s)' representatives (not being a registered employee organisation pursuant to chapter 12 of the Industrial Relations Act 2016 (Qld)), prior to implementing the HED 12/21: 
  1. Part 5 of the Work Health and Safety Act 2011 (Qld); or
  1. Section 51AA of the Hospital and Health Boards Act 2011 (Qld)?
  1. Did the Respondent have an obligation under the following Acts to provide a risk assessment for each business unit (PCBU - Section 5 Work Health and Safety Act 2011 (Qld)), to the individual Applicant(s) on request, post implementing the HED 12/21 under:
  1. Part 5 of the Work Health and Safety Act 2011 (Qld); or
  1. Section 51AA of the Hospital and Health Boards Act 2011 (Qld)?
  1. If an Applicant had commenced a dispute with the Respondent, regarding HED 12/21, under clause 7 of the Dispute Resolution Clause in the Nurses and Midwives (Queensland Health) Award - State 2015, should the Respondent have held any decision regarding the Applicant's employment in abeyance until the dispute was resolved, and had any of the Applicants' commenced such a dispute?
  1. If any of the above answers are yes, does that:
  1. Of itself make each of the Applicant(s) dismissals unfair? or
  1. If the answer to a. is no, does this constitute a matter to which weight will need to be attributed by the Commission, when considering each individual application on its merits; or
  1. constitute an irrelevant consideration in determining if the dismissals were unfair.
  1. [6]
    A hearing to deal with the Common Issues was held before the Commission on 12 December 2022.
  1. [7]
    I will now consider each of the Common Issues.

Is HED 12/21 a health employee directive, about "conditions of employment", within the meaning of section 51A of the Hospital and Health Boards Act 2011 (Qld)?

  1. [8]
    Directive 12/21 sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the HHB Act.
  1. [9]
    Section 51A of the HHB Act provides for the issuing of health employment directives and is set out in the following terms:

51AHealth employment directives

  1. (1)
    The chief executive may issue health employment directives about the conditions of employment for health service employees.
  2. (2)
    Without limiting subsection (1), a health employment directive may be about the following -
  1. (a)
    remuneration for health executives and senior health service employees;
  2. (b)
    the classification levels at which health executives and senior health service employees are to be employed;
  3. (c)
    the terms of contracts for health executives and senior health service employees;
  4. (d)
    the professional development and training of health service employees in accordance with the conditions of their employment.
  1. (3)
    A health employment directive may apply to any or all of the following -
  1. (a)
    the department, a Service or all Services;
  2. (b)
    health service employees, or a stated type of health service employee.
  1. [10]
    Section 51E(1) of the HHB Act provides that, inter alia, a health employment directive that applies to an employee of the department is binding on the employee and the department.
  1. [11]
    Section 66(1) of the HHB Act sets out the conditions of employment for a health service employee as follows:

66  Conditions of employment

The conditions of employment for a health service employee, other than for a health executive or a senior health service employee, are governed by -

  1. (a)
    this Act; and
  1. (b)
    the Industrial Relations Act 2016; and
  1. (c)
    the applied Public Service law; and
  1. (d)
    an industrial instrument that applies to the employee; and
  1. (e)
    health employment directives; and
  1. (f)
    if the employee is appointed on a contract for a fixed term - the employee's contract.
  1. [12]
    Clause 1 of HED 12/21 provides that compliance with the directive is mandatory.  Clause 2 provides that the purpose of HED 12/21 is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high-risk groups designated in the directive.
  1. [13]
    Clause 7.1 of HED 12/21 also includes a table[3] which separates Queensland Health employees into a group number based on their employee cohort.
  1. [14]
    Clause 8 of HED 12/21 sets out the mandatory vaccine requirements for existing employees as follows:

8. Existing employees

8.1  Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:

a. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and

b.  have received the second dose of a COVID-19 vaccine by 31 October 2021.

  • An existing employee must provide to their line manager or upload into the designated system:
  1. evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
  2. evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
  • An existing employee must maintain vaccine protection.  Therefore, an existing employee is required to receive the prescribed subsequent dose/s of a COVID-19 vaccination (i.e. booster), as may be approved by the Australian Technical Advisory Group on Immunisation (ATAGI), within any recommended timeframe following the second dose.  Evidence of vaccination, confirming the employee has received prescribed subsequent dose/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccine.
  • An existing employee who is required to have received a first or second dose of a COVID-19 dose at an earlier date under a Chief Health Officer public health direction must be vaccinated by the dates specified in the public health direction.
  • The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED.
  1. [15]
    Clause 10 of HED 12/21 provides that where an employee is unable to be vaccinated, an exemption may be granted as follows:

10. Exemptions

10.1 Where an employee is unable to be vaccinated they are required to complete an exemption application form.

10.2 Exemptions will be considered in the following circumstances:

  • Where an existing employee has a recognised medical contraindication;
  • Where an existing employee has a genuinely held religious belief;
  • Where another exceptional circumstance exists.

10.3 If an existing employee is granted an exemption, they do not have to comply with clause 8 or 9 of this HED for the duration of that exemption.

  1. [16]
    The contention of the Applicants is that s 51 of the HHB Act only authorises HEDs that are about the conditions of employment for health service employees.  What is argued by the Applicants is that HED12/21 is not a directive about a condition of employment but rather a direction in relation to the proper management of the services specifically as it pertains to health and safety.  The Applicants submit what is contended is that the ability of the Respondent to direct an employee to have vaccinations does not come from the expressed conditions of employment, but rather, an implied term being to comply with lawful and reasonable directions.
  1. [17]
    In making the above submission, the Applicant appears to contend that whilst HED12/21 may not be a 'condition of employment' for the purposes s 51 of the HHB Act, it is nevertheless a 'directive' about the proper management of the health service.  The Applicants rely on Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors.[4]
  1. [18]
    In that decision the Full Bench of this Commission was called on to consider the lawfulness of a direction by the Queensland Police Commissioner that staff of the Queensland Police Service be vaccinated with one of three approved COVID-19 vaccines in use in Australia.  The Full Bench held:

[65] A direction given to an employee does not, without more, become a term or condition of employment.  This is made clear in the management prerogative cases.  Where a directive is within the scope of employment and it is not contrary to the employment contract, the award or any certified agreement, the direction must be obeyed provided compliance does not involve illegality and the directive is reasonable.[5] [emphasis added]

  1. [19]
    Whilst I do not accept that the mandating of vaccinations is a 'direction' in relation to the proper management of the health services, it would nevertheless be a direction which must be obeyed by an employee because it was reasonable and does not involve illegality.
  1. [20]
    It is accepted that the Chief Executive's power to issue a HED is limited only by the directive being about the conditions of employment and the obligation under s 51AA of the HHB Act to consult with the health services and employees who are represented by an employee organisation.
  1. [21]
    Clause 7.1 of HED 12/21 states that Clauses 8 and 9 of the directive require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised in accordance with Table 1, to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of HED 12/21.
  1. [22]
    By virtue of s 66(1)(e) of the HHB Act, the conditions of employment for a health service employee are governed by, inter alia, health employment directives made pursuant to s 51A of the HHB Act.  Under s 51E(1) of the HHB Act a health employment directive that applies to an employee of the Department is binding on the employee and the Department.
  1. [23]
    It is clear to me that HED 12/21 is a health employment directive about 'conditions of employment'.  The legislative scheme under the HHB Act empowers the Chief Executive to issue health employment directives about the conditions of employment for health service employees.  HED 12/21 is a condition of employment to be vaccinated unless an exemption is granted.  It follows therefore, that HED 12/21 is a health employee directive, about "conditions of employment", within the meaning of section 51A of the HHB Act.

Is HED 12/21 a health employee directive, that is inconsistent with, one or both of following Acts within the meaning of section 51B of the Hospital and Health Boards Act 2011 (Qld):

  1. Anti-Discrimination Act 1991 (Qld); and/or
  2. Rights Act 2019 (Qld)?
  1. [24]
    What is contended by the Applicants is that HED 12/21 is inconsistent with both the Anti‑Discrimination Act 1991 (Qld) ('the AD Act'); and/or the Human Rights Act 2019 (Qld) ('the HR Act') within the meaning of s 51B of the HHB Act.
  1. [25]
    Section 51B of the HHB Act relevantly provides as follows:

51B  Relationship with legislation

If a health employment directive is inconsistent with an Act or subordinate legislation, the Act or subordinate legislation prevails over the health employment directive.

  1. [26]
    In respect of the AD Act it is contended that HED 12/21 is inconsistent with the AD Act because it indirectly discriminates against:
  1. (a)
    prospective employees with any relevant protected attribute, including a medical contradiction or a genuinely held religious belief; and
  2. (b)
    any existing employees with protected attributes which prevent them from being vaccinated against COVID-19 for reasons other than medical contradiction or a genuinely held religious belief.
  1. [27]
    Section 101 of the AD Act prohibits discrimination in the performance of any function or the exercise of any power under state law.  Section 101 provides:

101 Discrimination in administration of State laws and programs area

A person who -

  1. (a)
     performs any function or exercises any power under State law or for the purposes of a State Government program; or
  1. (b)
     has any other responsibility for the administration of State law or the conduct of a State Government program;

must not discriminate in -

  1. (c)
      the performance of the function; or
  1. (d)
      the exercise of the power; or
  1. (e)
      the carrying out of the responsibility.
  1. [28]
    Section 11(1) of the AD Act provides that for conduct to amount to indirect discrimination a person must impose, or propose to impose, a term with which a person with an attribute does not or is not able to comply.
  1. [29]
    The term expressed by the Applicants is said to be HED 12/21.  The relevant 'protected attribute' has not been clearly identified by the Applicants. 
  1. [30]
    The term must, however, also be unreasonable, having regard to the consequences of failure to comply, the cost of alternative terms and the financial circumstances of the person who imposes the term.

Was the term unreasonable?

  1. [31]
    The Respondent submits that HED 12/21 is a lawful and reasonably practicable control measure to manage risks arising out of the pandemic, having regard to:
  1. (a)
     the COVID-19 virus being a severe disease with high mortality;[6]
  1. (b)
     severe COVID-19, defined as the need for hospitalisation and, potentially, Intensive Care being more commonly found in unvaccinated individuals;[7]
  1. (c)
     the COVID-19 virus being shown to disproportionately affect healthcare workers and health support staff,[8] putting them at increased risk of acquiring COVID-19 and transmitting it to staff and patients in their workplaces;[9]
  1. (d)
     the importance of maintaining a health service by acting to ensure staff remained well during a global pandemic;[10]
  1. (e)
     the high risk in terms of the consequences of healthcare workers and health support staff being infectious in the workplace given the vulnerable nature of the patients or clients cared for in these environments;[11]
  1. (f)
     while there are other mitigation strategies to reduce the prospect of transmission, vaccination remains the single best method of protection, both of the vaccinated individual, and those around them;[12]
  1. (g)
     the terms of the Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (No. 3), and its predecessors, with which the Respondent had no option but to comply;
  1. (h)
     the Respondent's obligation to ensure, so far as reasonably practicable, the health and safety of workers while they are at work pursuant to the Work Health and Safety Act 2011 ('the WHS Act'); and
  1. (i)
     the relevant exemptions that may be allowed under HED 12/21.
  1. [32]
    In Catholic Education Office v Clarke,[13] Sackville and Stone JJ (with whom Tamberlin J agreed) restated the established principles for determining reasonableness as follows:
  1. (i)
    ....
  1. (ii)
    The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, at 263, per Bowen CJ and Gummow J; Waters v Public Transport Commission, at 395-396, per Dawson and Toohey JJ; at 383, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, at 82-83, per Lockhart J.
  1. (iii)
     The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles, at 263.  It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson (1996) 68 FCR 46, at 61-62, per Heerey J; Commonwealth Bank v HREOC, at 112-113, per Sackville J.
  1. (iv)
     The Court must weigh all relevant factors.  While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discrimination [sic] of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition: Waters v Public Transport Corporation, at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384).  However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC, at 88, per Beaumont J; State of Victoria v Schou [2004] VSCA 71, at [26], per Phillips JA.183.
  1. [33]
    The Respondents submit that HED 12/21 is not an unreasonable term within the meaning of s 11(1)(c) of the AD Act.  In a claim for indirect discrimination, the Respondent is required to prove on the balance of probabilities that the term they imposed, or proposed to impose, was reasonable.[14]
  1. [34]
    To support its submission that HED 12/21 is not an unreasonable term within the meaning of s 11(1)(c) of the AD Act, the Respondents adduced evidence from Professor Damon Eisen, an academic Infectious Diseases Physician and Dr Paul Griffin, an Associate Professor in Medicine, and Director of Infectious Diseases at the University of Queensland.
  1. [35]
    Professor Eisen in his report of 24 November 2022 expressed the view that the decision to require staff to comply with the Directive was reasonable from a health perspective, taking into account the risks to staff, patients and others at a health service of COVID-19 disease.
  1. [36]
    Professor Eisen opined that:

Due to working in a hospital or other setting such as residential or disability care service, workers in all cohorts in part 7 of the Directive were at increased risk or [sic] acquiring COVID-19 and transmitting it to staff and patients in their workplaces.

As I have described in the background above, COVID-19 vaccination with all the vaccines available for us in Australia namely AstraZeneca, Pfizer, Moderna and Novavax products have been shown to reduce the:

  • likelihood of symptomatic and asymptomatic SARS-CoV-2 infection
  • severe disease due to SARS-CoV-2 infection
  • likelihood of transmission of SARS-CoV-2 to cause secondary cases

Side effects due to COVID-19 vaccination are infrequent and mostly reversible.  The risk of severe diseases and death due to COVID-19 in Australia was many times greater than vaccination side effects.

COVID-19 is a severe disease with high mortality.  Risks for severe disease and mortality include advanced age and comorbidities such as diabetes and chronic pulmonary disease among others.  Queensland Hospital and Health Service patients frequently have many of these risk factors for severe COVID-19.  For example, the risk of mortality in Australian aged care facility residents due to infection with the SARS-CoV-2 delta variant was of the order of 10%.

Thus, mandatory COVID-19 vaccination substantially reduced the likelihood that Queensland healthcare workers would be infected with SARS-CoV-2 and become sick due to COVID-19.  Mandatory COVID-19 vaccination reduced the probability of transmission of COVID-19 from Queensland health care workers to staff and patients in the workplace.  Mandatory COVID-19 vaccination reduced the likelihood of staff shortages in Queensland Health Services preventing further patient harm.[15]

  1. [37]
    Professor Eisen further states:

The wearing of facemasks is another means by which COVID-19 may be prevented.  This particularly applies to transmission of SARS-CoV-2.  This is relevant in healthcare settings such as hospitals, residential care and disability services.  It is notable that facemasks are frequently worn incorrectly such as where the nose and mouth are not adequately covered.[16]

  1. [38]
    In Professor Eisen's view, COVID-19 vaccination is a highly effective means of preventing acquisition and transmission of SARS-CoV-2 infection.
  1. [39]
    Associate Professor Griffin in his written report of 23 November 2022[17] observed that there are a large number of mitigation strategies available to assist in reducing the prospect of transmission of SARS-CoV-2 including social distancing; physical barriers; ventilation; mask wearing; other protective equipment including gloves, gowns, and cleaning.  These measures are typically viewed as complementary with no one single method having 100% efficacy and the extent to which they are applied needs to consider the epidemiological risk at the time with the unintended consequences of the intervention.
  1. [40]
    In Associate Professor Griffin's opinion, the majority of strategies other than vaccination are often dependent on sustained high rates of compliance to afford any significant benefit.  His clear view is that "... vaccination remains the single best method of protection, both of the vaccinated individual, and those around them.  In addition to benefits with respect to reducing infection rates, vaccination also provides additional benefits in terms of reducing risk of progressing severe disease in those infected that other strategies do not."[18]
  1. [41]
    Associate Professor Griffin further opines:

... as evidenced by the data outlined above, as at September 2021, the benefits of vaccination included high levels of protection from symptomatic infection and particularly severe disease but also reductions in rates of infection and transmission.  This is in the context of high levels of safety from both large clinical trials and emerging real-world evidence.  Further the risk posed by SARS‑CoV-2 had increased significantly based on changes in the properties of the virus in that it had become both more infectious and likely to cause more severe disease and as a result, case numbers were escalating rapidly.  While other measures are available and should be recommended as they are complementary to vaccination, they are not in themselves sufficient to be a viable alternative to vaccination.[19] 

  1. [42]
    Associate Professor Griffin's report concludes with the following:

...given the significant risks to the healthcare and essential workers and consequently their patients as well as their families with the high levels of safety and efficacy of the intervention in question, i.e. vaccination, in my opinion the Directive was reasonable.[20]

  1. [43]
    The test of whether the HED 12/21 was reasonable is an objective one.  Therefore, the question for the Commission is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case.[21]  The fact that there is a reasonable alternative that might accommodate the interests of the Applicants does not of itself establish that a requirement or condition is unreasonable.[22]
  1. [44]
    From the expert evidence it is possible to glean the following: COVID-19 places a person at a high risk of developing serious illness which may lead to death; all the available COVID-19 vaccines are effective at preventing symptomatic infection and reducing the risk of serious illness or death; any adverse effects are usually mild with a low probability of developing serious complications; an unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person rather than a vaccinated person; whilst mask wearing, social distancing and other control measures can reduce transmission, they are not a substitute for the protections offered by vaccines, nor do they reduce the risk of developing serious illness caused by COVID-19; vaccination is the most effective and efficient control available to combat the risks posed by COVID-19; COVID-19 poses a significant risk in the health care setting; and COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces.  HED 12/21 is a directed response designed to ensure the health and safety of health care workers within the health service, patients, and other people; was designed having regard to the nature of the health service; the implementation of HED 12/21 has a logical and understandable basis; and is a reasonably proportionate response to the risk created by COVID-19.
  1. [45]
    It is recognised that an assessment by the Commission as to whether there is discrimination must necessarily consider the personal circumstances of each Applicant.
  1. [46]
    However, what is contended by the Applicants is that "... there will be a group of individuals who will not be able to comply with HED 12/21 due to their protected attributes.  The Applicants have not placed before the Commission any evidence to support their contention that HED 12/21 may operate to unlawfully discriminate, nor is there material before the Commission as to the Applicants' alleged 'protected attributes'.
  1. [47]
    It is further submitted by the Applicants that the imposition of a term (being HED 12/21) cannot be reasonable when it has a differential effect between existing and prospective employees.
  1. [48]
    HED 12/21 is stated to apply to both existing and prospective employees.  In respect of prospective employees, the following is stated:

4.  Application

 This HED applies to all health service employees employed, and prospective employees to be employed, under the Hospital and Health Boards Act 2011 in Hospital and Health Services and Queensland Health (the department).

  1. [49]
    Under clause 7 of HED 12/21 the requirement to be vaccinated as a condition of employment is subject to certain limited exemptions described in clause 10 of this HED.  The clause relevantly provides:

7. Requirement for vaccination

7.1  In acknowledgment of the risks posed by the COVID-19 virus to the health and safety of Queensland Health employees, patients and the broader community, clauses 8 and 9 of this HED require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised in accordance with Table 1 (below), to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of this HED. (emphasis added)

  1. [50]
    Under clause 9 of HED 12/21 the following is provided:

9.  Prospective/new employees

When offering a position to a prospective employee, the relevant advertising and engagement documentation must clearly state that engagement is subject to the person fully satisfying the COVID-19 vaccination requirements.  Evidence of satisfying the vaccination requirements must be provided as part of the recruitment process.

  1. [51]
    Under clause 12.4 of HED 12/21 the following is provided:

12.  Reporting and record keeping

...

12.4 Documentary evidence of exemptions, and supporting information must be kept for all existing or prospective employees. (emphasis added)

  1. [52]
    Understandably, having regard to the background to the implementation of the Directive, the outward focus of HED 12/21 is on existing employees.  However, I do not share the Applicants' view that the exemption provisions of the Directive do not extend to prospective employees.  What is evident from a proper reading of the Directive is that the requirement to be vaccinated as a condition of employment is subject to the exemptions described in clause 10 of the HED.  The exemption provisions apply equally to both existing and prospective employees.  Clause 12.4 supports that view by requiring evidence of exemptions and supporting material be kept for all existing and prospective employees.
  1. [53]
    For the reasons advanced above, I have formed the view that HED 12/21 is not an unreasonable term within the meaning of s 11(1)(c) of the AD Act.  I do not consider that HED 12/21 is inconsistent with the AD Act within the meaning of s 51B of the HHB Act.

Is HED 12/21 a health employment directive inconsistent with the Human Rights Act 2019 within the meaning of section 51B of the Hospital and Health Boards Act 2011?

  1. [54]
    The first argument advanced by the Applicants is that HED 12/21 is not a 'law' for the purpose of section 13 of the HR Act.  Therefore, it does not provide the power to limit human rights.
  1. [55]
    That contention can be readily dealt with.  HED 12/21 is a statutory instrument issued pursuant to section 51A of the HHB Act.  Section 7 of the Acts Interpretation Act 1954 provides that a reference to a law includes a reference to statutory instruments made or in force under the law.  It must follow therefore that HED 12/21 as a statutory instrument made under s 51A of the HHB Act is a law for the purpose of section 13 of the HR Act.
  1. [56]
    It is not in contention that the Respondent is a "public entity" within the meaning of s 9(1)(b) of the HR Act and that the Chief Executive in exercising his power was required to comply with s 58(1) of the HR Act. The Applicants submit that HED 12/21 was unlawful for the purposes of s 58(1)(a) of the HR Act because it was incompatible with the Applicants' human rights.
  1. [57]
    The obligations of the Respondent are set out in s 58 of the HR Act:

58  Conduct of public entities

  1. (1)
      It is unlawful for a public entity -
  1. (a)
     to act or make a decision in a way that is not compatible with human rights; or
  1. (b)
     in making a decision, to fail to give proper consideration to a human right relevant to the decision.

...

  1. (5)
     For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to -
  1. (a)
     identifying the human rights that may be affected by the decision; and
  1. (b)
     considering whether the decision would be compatible with human rights.
  1. (6)
     To remove any doubt, it is declared that -
  1. (a)
     an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and
  1. (b)
     a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).
  1. [58]
    The term "compatible with human rights" is defined in s 8 of the HR Act:

8  Meaning of compatible with human rights

An act, decision or statutory provision is compatible with human rights if the act, decision or provision -

  1. (a)
     does not limit a human right; or
  1. (b)
     limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.
  1. [59]
    The rights conferred by the HR Act are not absolute.  Section 13 of the HR Act provides:

13 Human rights may be limited

  1. (1)
     A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
  1. (2)
     In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant -
  1. (a)
     the nature of the human right;
  1. (b)
     the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
  1. (c)
     the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  1. (d)
     whether there are any less restrictive and reasonably available ways to achieve the purpose;
  1. (e)
     the importance of the purpose of the limitation;
  1. (f)
     the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
  1. (g)
     the balance between the matters mentioned in paragraphs (e) and (f).
  1. [60]
    An assessment as to whether HED 12/21 is compatible with human rights as defined in s 8 of the HR Act involves a "two-stage" inquiry:[23]
  1. (a)
    whether the relevant act or decision placed a limit on the human right (s 8(a)); and
  1. (b)
     if there is a limit, whether the limit is justified under the test of proportionality set out in s 13 (s 8(b)).
  1. [61]
    The Applicants bear the onus of establishing that the decision imposes a limit on human rights.[24]  If established, the Respondent bears the onus of justifying the limit.[25]  The onus is a practical one.[26] The standard of proof is the civil standard on the balance of probabilities.[27]  But the test in s 13(2) of the HR Act requires the limitations to be both reasonable and "demonstrably justified", which imposes a "stringent standard of justification".[28]
  1. [62]
    In respect of what human rights are alleged to have been breached it is submitted:

... the rights raised by the Applicants, arising from ss 17, 20, 23 and 27 of the HR Act, are rights which are critical to the promotion of a free and democratic society and are expressly intended to by protected and promoted by the introduction of the HR Act.  Any limitation to those rights is contrary to human dignity, equality and freedom.[29]

  1. [63]
    The Applicants do not in their submissions articulate how it is alleged HED 12/21 breached ss 17, 20, 23 and 27 of the HR Act.  Moreover, the Applicants have not adduced any evidence to support the contentions raised.
  1. [64]
    It needs to be borne in mind that s 13 of the HR Act articulates a proportionality principle by which a human right may be subject under law to "reasonable limits that can be demonstrably justified in a free and democratic society".
  1. [65]
    Whether a limit on a human right is reasonable and justifiable may, pursuant to s 13(2) of the HR Act, involve balancing "the importance of the purpose of the limitation" and "the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right".[30]
  1. [66]
    The cognate provision in the Charter of Human Rights and Responsibilities Act 2016 (Vic) ("the Victorian Charter") is s 7.  The effect and operation of s 7 of the Victorian Charter was considered by Warren CJ in Re Application under the Major Crimes (Investigative Powers) Act 2004.[31]
  1. [67]
    In that case, Warren CJ was called upon to determine whether s 39 of the Major Crimes (Investigative Powers) Act 2004 (Vic) abrogated the privilege against self-incrimination in certain circumstances.  Warren CJ considered whether s 39 of that statute constituted a reasonable limit that could be demonstrably justified by reference to s 7 of the Victorian Charter.  She wrote:

[144]  … Section 7 provides the criteria by which a limitation on rights might be justified.  Hence, limitations on rights are permissible only when limited in accordance with s 7.  The question then becomes: is the limitation on the right against self-incrimination as guaranteed by ss 24(1) and 25(2)(k) of the Charter "demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors?"

  1. [68]
    Her Honour went on to state:

[145]  A free and democratic society is the fundamental hallmark of our system of governance and way of life.  Notions of the 'public interest' stem from notions of what is best for a free and democratic society.  I find I am assisted by the remarks of Dickson CJ in Oakes:[32]

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.  The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.[33]

  1. [69]
    Having regard to the analysis by Warren CJ, the evidence required to prove the elements contained in s 13 should be "cogent and persuasive and make clear to the court the consequences of imposing or not imposing the limit".[34]
  1. [70]
    Moreover, the issue for the Commission is to balance the competing interests of society, including the public interest, and to determine what is required for a person to obtain or retain the benefit of the rights recognised or bestowed by the HR Act.
  1. [71]
    Recognising the evidentiary burden placed on the Respondents, expert evidence was adduced from Professor Damon Eisen and Associate Professor Paul Griffin part of which is set out in [34] to [42] above.  It was the only expert evidence before the Commission.
  1. [72]
    The evidence of Professor Damon Eisen and Associate Professor Paul Griffin was in my view cogent and persuasive.
  1. [73]
    Under the HHB Act, a 'health service' is defined as a 'service for maintaining, improving, restoring, or managing people's health and wellbeing'.[35]  Section 19(1) of HHB Act provides that 'A Service's main function is to deliver the hospital services, other health services, teaching, research and other services stated in the service agreement for the Service'.  It was incumbent on Dr Wakefield to take all reasonable steps to ensure the maintenance and continuation of a health service during the pandemic.  As Professor Eisen observed in his report, "Mandatory COVID-19 vaccination reduced the likelihood of staff shortages in Queensland Health Services preventing further patient harm."[36]
  1. [74]
    I accept that HED 12/21 was an important health measure introduced to provide protection to the community from serious and widespread disease.
  1. [75]
    In balancing the competing interests of society, including the public interest, I am of the view that the limit imposed by the issuing of HED 12/21 was a reasonable and justifiable limit and one which was demonstrably justified by reference to s 13 of the HR Act.
  1. [76]
    It follows therefore that I have formed the view I do not consider that HED 12/21 is inconsistent with the HR Act within the meaning of s 51B of the HHB Act.

Did the Respondent have an obligation under the following Acts to consult directly with the Applicant(s) individually, prior to implementing the HED 12/21: 

  1. Part 5 of the Work Health and Safety Act 2011 (Qld); or
  2. Section 51AA of the Hospital and Health Boards Act 2011 (Qld)?
  1. [77]
    The Applicants concede that s 51AA of the HHB Act did not require direct consultation with individual employees.  In respect of Part 5 of the WHS Act it would also appear to be the case that the Applicants concede that the Respondent was under no obligation to directly consult with individual applicants prior to the implementation of HED 12/21:

MS WILLOUGHBY:  It is clear that employees are duty holders under the Act.  They [sic] obligations to take care of their own wellbeing and safety and for that of others, and they're therefore a duty holder.  It's also clear pursuant to section 47 of the Act that there is a duty to consult with workers.  Under both of those provisions, the consultation provisions of the Act are enlivened.  Section 48 of the Work Health and Safety Act outlines what those require.  We further say that the code of practice is relevant and requires the respondent to consult, cooperate and coordinate activities with all persons who have a duty in relation to the control of COVID-19 in workplaces, and that that provision is mandatory pursuant to section 26(a) of the Work Health and Safety Act.

No consultation on the evidence available has included individual workers.  All of the evidence, we say, goes to consultation with unions and it goes to consultation which may have taken place after the event.  We say that's not effective consultation because pursuant to section 48 of the Act, the employees are entitled to have an opportunity to express their views and have those views taken into account.  To express their views - - -

HIS HONOUR:   What, individually?

MS WILLOUGHBY:  We don't say that it's necessary to individually consult with every worker.  We say that the ability - the opportunity for them to express their views ought to have been made available to them, and that there were reasonable ways that that could have occurred.  Indeed, some of the evidence goes to ways in which that did occur following the implementation of the Health Employment Directive, and we say those steps ought to have been taken before the directive was implemented, to enable workers to have their views heard and to have an opportunity to perhaps influence the outcome.  Nor do we say there's a grant of veto, to be clear, but we say that they ought to have had an opportunity to have their views heard and taken into account before the decision is made.[37]

  1. [78]
    It would appear, as the above exchange at the hearing suggests, the Applicants conceded that the Respondent was under no obligation to directly consult with individual applicants prior to the implementation of HED 12/21.
  1. [79]
    Section 3 of the WHS Act states the object of the legislation, relevantly here, as:

3 Object

  1. (1)
     The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by -
  1. (a)
     protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances or plant; and
  1. (b)
     providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and
  1. (c)
     encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and …
  1. (2)
     In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from particular types of substances or plant as is reasonably practicable.
  1. [80]
    The WHS Act seeks to achieve its aim of ensuring safety in the workplace by imposing health and safety obligations upon various people, including employers and employees.[38]
  1. [81]
    Sections 47, 48 and 49 of the WHS Act relevantly provide as follows:

47 Duty to consult workers

  1. (1)
     The person conducting a business or undertaking must, so far as is reasonably practicable, consult, as required under in this division and any regulation, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

Maximum penalty - 200 penalty units.

  1. (2)
     If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.
  1. (3)
     The agreed procedures must not be inconsistent with section 48.

48Nature of consultation

  1. (1)
     Consultation under this division requires—
  1. (a)
     that relevant information about the matter is shared with workers; and
  1. (b)
     that workers be given a reasonable opportunity—
  1. (i)
     to express their views and to raise work health or safety issues in relation to the matter; and
  1. (ii)
     to contribute to the decision-making process relating to the matter; and
  1. (c)
     that the views of workers are taken into account by the person conducting the business or undertaking; and
  1. (d)
     that the workers consulted are advised of the outcome of the consultation in a timely way.
  1. (2)
     If the workers are represented by a health and safety representative, the consultation must involve that representative.

49 When consultation is required

  1. (1)
     Consultation under this division is required in relation to the following health and safety matters -
  1. (a)
     when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking;
  1. (b)
     when making decisions about ways to eliminate or minimise those risks;
  1. (c)
     when making decisions about the adequacy of facilities for the welfare of workers;
  1. (d)
     when proposing changes that may affect the health or safety of workers;
  1. (e)
     when making decisions about the procedures for—
  1. (i)
     consulting with workers; or
  1. (ii)
     resolving work health or safety issues at the workplace; or
  1. (iii)
     monitoring the health of workers; or
  1. (iv)
     monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or
  1. (v)
     providing information and training for workers; or
  1. (f)
     when carrying out any other activity prescribed under a regulation for this section.[39] (emphasis added)
  1. [82]
    In Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors,[40] the Full Bench said:

[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.[41]  Obviously, the desirable outcome is agreement between the employer and employees as to the work, health and safety measures.

[129] Here, the unions agreed with the directive.  In other words, the consultation reached the level where the directive was not a matter of contention.  The unions, with total coverage over the workforce, agreed with it.

  1. [83]
    Section 48 of the WHS Act prescribes particular acts of consultation which should occur.  However, those requirements need only be fulfilled to the extent that fulfilment is "reasonably practicable".[42]
  1. [84]
    Section 47 of the WHS Act 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 of the WHS Act with each individual member of a small workforce.  Here, the workforce is approximately 117,000 in number.[43]
  1. [85]
    In Slivak v Lurgi (Australia) Pty Ltd,[44] 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. [86]
    In Baiada Poultry Pty Ltd v The Queen,[45] 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. [87]
    The evidence before the Commission demonstrates a high level of consultation.
  1. [88]
    The evidence is that the Respondent consulted with the unions with total coverage over the workforce and agreed with it.  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.[46]
  1. [89]
    This consultation consisted of dedicated meetings on each Wednesday from 11 August 2021 until 2 September 2021, with follow up meetings on Thursday on more general COVID-19-related industrial relations topics.[47]  A total of six meetings occurred and they continued to occur through the rollout of HED 12/21 and the exemption process on at least a weekly basis.  Each of the eight unions participated in the meetings.[48]
  1. [90]
    Of the eight unions consulted in regard to HED 12/21, only the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland did not support it as they maintain a general policy of not supporting vaccination requirements.[49]
  1. [91]
    Prior to HED 12/21 being issued, all employees to whom HED 12/21 would apply were sent one or more emails in relation to the Department's mandatory vaccination position, foreshadowing the making of HED 12/21.[50]
  1. [92]
    Since HED 12/21 was issued, all employees to whom HED 12/21 applies were sent emails in relation to the rollout of HED 12/21 and the exemption process.[51]
  1. [93]
    Some Hospital and Health Services also:
  1. (i)
    held staff forums in person and/or via Microsoft Teams where information was provided, and staff were invited to ask questions in relation to HED 12/21 and related processes;
  2. (ii)
    invited staff to raise concerns or enquiries in relation to these matters with their line manager, human resources (People and Culture Unit/Human Resources Business Partners) and/or a dedicated email address created specifically for this purpose; and/or;
  3. (iii)
    sent additional communications such as letters and/or text messages to staff in relation to these matters;[52] and
  4. (iv)
    prior and subsequent to the implementation of HED 12/21, employees also had access to the Department's external website and internal intranet to access additional information about COVID-19 vaccines, HED 12/21 and the exemption process.[53]
  1. [94]
    There is a solid body of evidence introduced through Ms Hodges which is effectively unchallenged, and which establishes proper consultation. Importantly, that evidence includes that unions with total collective coverage of the workforce agreed with the direction.  No breach of the WHS Act has been established.
  1. [95]
    In answering the specific question before the Commission, I do not consider that the Respondent had an obligation under Part 5 of the WHS Act to consult directly with the Applicant(s) individually, prior to implementing the HED 12/21.

Did the Respondent have an obligation under the following Acts to consult with the Applicant(s)' representatives (not being a registered employee organisation pursuant to chapter 12 of the Industrial Relations Act 2016 (Qld)), prior to implementing the HED 12/21: 

  1. Part 5 of the Work Health and Safety Act 2011 (Qld); or
  2. Section 51AA of the Hospital and Health Boards Act 2011 (Qld)?
  1. [96]
    Under s 51AA of the HHB Act, if the Chief Executive proposes to issue, amend, or repeal a health employment directive that applies to a health service or health service employees who are represented by an employee organisation then he must consult with the health services or 'employee organisation' about the issuing of the proposed health employment directive or the proposed amendment or repeal of the health employment directive.
  1. [97]
    The Applicants contend that the Nurses Professional Association of Queensland (NPAQ) is an association of employees, the stated primary object of is the protection and promotion of their interests in matters concerning their employment. This would include matters relating to health and safety.
  1. [98]
    It is submitted by the Applicants that Dr Wakefield was on notice that those workers regarded the NPAQ as their industrial representative, and by extension the NPAQ was a stakeholder in matters relating to employment of those employees.  Therefore, NPAQ should have been consulted in relation the issuing of HED 12/21.
  1. [99]
    The obligation to consult is imposed in respect of a health service or 'employee organisation'.  For the purposes of s 51AA, 'employee organisation' is defined by reference to Schedule 5 of the IR Act.[54]  The term 'employee organisation' is defined to mean 'an organisation of employees'.[55]  An 'organisation' for the purposes of the IR Act is a body registered under Chapter 12 of the IR Act as an organisation.[56]  The NPAQ is not a registered organisation and therefore not an employee organisation for the purposes of the HHB Act.[57]
  1. [100]
    Section 51AA of the HHB Act did not require Dr Wakefield to consult with the 'Applicant(s) representatives' prior to the implementation of HED 12/21.

Did the Respondent have an obligation under the following Acts to provide a risk assessment for each business unit (PCBU - Section 5 Work Health and Safety Act 2011 (Qld)), to the individual Applicant(s) on request, post implementing the HED 12/21 under: 

  1. Part 5 of the Work Health and Safety Act 2011 (Qld); or
  2.  Section 51AA of the Hospital and Health Boards Act 2011 (Qld)?
  1. [101]
    The Applicants concede that section 51AA of the HHB Act does not require the provision of risk assessments specifically.[58]
  1. [102]
    By way of background, Clause 6 of HED 12/21 identifies the potential risk posed to relevant employees, and the risk profile of those employees as follows:

6. Risk management

The COVID-19 virus has been shown to disproportionately affect healthcare workers and health support staff and poses a significant risk to Queensland Health patients, and the broader community.

In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, this HED requires health service employees who are identified as being in high risk groups to be vaccinated against COVID-19.

Prospective and existing health service employees subject to these requirements have been identified based on the following risk profile:

•  They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter.

•  They are coming into direct or indirect contact with people who work in an area with COVID-19 patients or an area that a suspected or actual COVID-19 patient may enter.

•  They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations).

•  They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients).

  1. [103]
    The Applicants contend that Clause 3.1 of the Work health and safety consultation, cooperation and coordination Code of Practice 2021 ('the Code') imposes an obligation on the Respondent and each health service to consult with workers prior to implementing HED 12/21, including by providing a risk assessment relating to the management of COVID-19 to its workforce.
  1. [104]
    The Code is designed to provide guidance to PCBUs[59] who share responsibility for the same work health and safety matter on how to consult, cooperate and coordinate activities with each other.[60]
  1. [105]
    Section 3 of the Code states:

3.  What is effective consultation?

Consultation is a two-way process between you and your workers where you:

•  talk to each other about health and safety matters

•  listen to their concerns and raise your concerns

• seek and share views and information

•  consider what your workers say before you make decisions.

  1. [106]
    Section 3.1 of the Code relevantly provides:

3.1.  Sharing information

You must share relevant information with workers and their health and safety representatives about matters that may affect their health and safety. This information should be provided early on, so workers and health and safety representatives have enough time to consider the matters, discuss them and then provide feedback to you.

You should make available the information you have relating to the health and safety matter to enable informed and constructive discussions. This information may include:

•  health and safety policies and procedures

•  technical guidance about hazards, risks and risk control measures

•  hazard reports and risk assessments

•  proposed changes to the workplace, systems of work, plant or substances

•  data on incidents, illnesses or injuries (in a way that protects the confidentiality of personal information).

The information should be presented in a way that can be easily understood by your workers and take into account literacy needs and the cultural or linguistically diverse backgrounds of your workers.

  1. [107]
    As noted earlier, s 48 of the WHS Act prescribes particular acts of consultation which should occur.  However, those requirements need only be fulfilled to the extent that fulfilment is "reasonably practicable".[61]  Consultation that is 'reasonably practicable' is both objectively possible and reasonable having regard to particular circumstances.
  1. [108]
    Clause 3.1 of the Code is not prescriptive.  It provides a guide as to what information may be made available to assist a PCBU in complying with the requirements to consult under s 48 of the WHS Act.
  1. [109]
    The Respondent submits that the word 'may' in 3.1 of the Code indicates that shared information may include, or may not include, risk assessments.  This submission is reflected in the Code.  Under the heading 'How to use this Code of Practice' it is stated:

This Code includes references to the legal requirements under the WHS Act and the WHS Regulation. These are included for convenience only and should not be relied on in place of the full text of the WHS Act or the WHS Regulation. The words 'must', 'requires' or 'mandatory' indicate a legal requirement exists that must be complied with.

The word 'should' is used in this Code to indicate a recommended course of action, while 'may' is used to indicate an optional course of action. (emphasis added)

  1. [110]
    The Applicants' submissions before the Commission have been framed to argue the proposition that an obligation is imposed on the Respondent to provide a risk assessment prior to the implementation of HED 12/21.  However, that is not the question that was posed by the parties.
  1. [111]
    In answering the specific question before the Commission, no obligation is imposed on the Respondent under the WHS Act or the Code to provide a risk assessment for each business unit to individual Applicants on request post implementing HED 12/21 under the WHS Act 2011.

If an Applicant had commenced a dispute with the Respondent, regarding HED 12/21, under clause 7 of the Dispute Resolution Clause in the Nurses and Midwives (Queensland Health) Award - State 2015, should the Respondent have held any decision regarding the Applicant's employment in abeyance until the dispute was resolved, and had any of the Applicants' commenced such a dispute?

  1. [112]
    The Applicants argued that Ms Mocnik commenced a grievance procedure under clause 7 of the Dispute Resolution Clause in the Nurses and Midwives (Queensland Health) Award - State 2015 on or about 22 December 2021.[62]
  1. [113]
    However, notwithstanding the above submission, the Applicants concede that clause 7 of the Nurses and Midwives (Queensland Health) Award - State 2015 does not require a decision to be held in abeyance (nor the status quo to continue) where, as here, there is a genuine safety issue.
  1. [114]
    It was asserted that there was a failure to engage in meaningful grievance management.  That submission is at odds with the affidavit evidence of Ms Hodges[63] which sets out in some detail the correspondence between the Respondent and the Applicants' former representatives.
  1. [115]
    Given the nature of the concession made by the Applicants, the question does not require an answer.[64]

Conclusion

  1. [116]
    I accept that none of the above matters would make the Applicants' dismissals unfair for the purposes of the IR Act.

Orders

  1. [117]
    I will hear the parties on the appropriate form of orders which reflect these reasons.

Footnotes

[1]  TD/2022/15 - Employer's Response filed 16 February 2022, Attachment R-1 - Health Employment Directive No 12/21 with Approval date by Chief Executive of 11 September 2021.  HED 12/21 with Approval date by Chief Executive of 30 September 2021 was hereafter referred to.

[2]  TD/2022/15 - Employer's Response filed 16 February 2022, Attachment R-2.

[3]  Health Employment Directive No 12/21, Employee COVID-19 vaccination requirements, clause 7 - Requirement for vaccination, Table 1.

[4]  [2021] QIRC 356.

[5]  Ibid.

[6]  Exhibit 4, Report of Professor Damon Eisen dated 24 November 2022, pp 3-4.

[7]  Exhibit 4, Report of Professor Damon Eisen dated 24 November 2022, pp 3-4, p 3.

[8]  Exhibit 3, Report of Associate Professor Paul Griffin dated 23 November 2022, p 6.

[9]  Exhibit 4, Report of Professor Damon Eisen dated 24 November 2022, p 4.

[10]  Ibid.

[11]  Exhibit 3, Report of Associate Professor Paul Griffin dated 23 November 2022, p 6.

[12]  Ibid, pp 11-12.

[13]  [2004] FCAFC 197.

[14] Anti-Discrimination Act 1991, s 205.

[15]  Exhibit 4, Report of Professor Damon Eisen dated 24 November 2022, DE-03, p 4.

[16]  Ibid, p 5.

[17]  Exhibit 3, Affidavit of Associate Professor Griffin affirmed 25 November 2022, PG-02.

[18]  Exhibit 3, Affidavit of Associate Professor Griffin affirmed 25 November 2022, PG-02, p. 12

[19]  Ibid, p 13.

[20]  Ibid, p 14.

[21] Australian Medical Council v Wilson (1996) 68 FCR 46, at 61-62, per Heerey J; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, 112-113, per Sackville J.

[22] Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, at 88, per Beaumont J; State of Victoria v Schou [2004] VSCA 71, [26], per Phillips JA.

[23] Re Kracke and Mental Health Review Board (2009) 29 VAR 1 at 31 [88], 33 [96]-[97] per Bell J.

[24]  Ibid, [108].

[25] R v Oakes [1986] 1 SCR 103 at 136-137 per Dickson CJ.

[26]  S v Makwanyane 1995 (3) SA 391, [102]; Moise v Greater Germiston Transitional Local Council 2001 (4) SA 481, [19]; R v Oakes [1986] 1 SCR 103, [66]; Minister of Transport v Noort [1992] 3 NZLR 260, 283; Marcic v Thames Water Utilities [2004] 2 AC 42, [37]; R v Shayler [2003] 1 AC 247, [45], [59].

[27] R v Oakes [1986] 1 SCR 103, [67].

[28]  Ibid.

[29]  Applicants' Reply Submissions regarding Common Issue Questions filed 7 December 2022, 19.

[30] Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 [108]-[109], [131].

[31]  (2009) 24 VR 415.

[32] R v Oakes [1986] 1 SCR 103.

[33]  Ibid at 136 [40].

[34] Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415.

[35] Hospital and Health Boards Act 2011 (Qld), s 15(1).

[36]  Exhibit 4, Report of Professor Damon Eisen affirmed 25 November 2022, p 4.

[37]  TR1-10, L41-TR1-11, L22.

[38]  Part 2.

[39]  Section 18 of the Work Health and Safety Act 2011 defines "what is reasonably practicable", but s 18 only concerns safety duties.

[40]  [2021] QIRC 356.

[41] Re Consultation Clause in Modern Awards (2013) 238 IR 282 at [31] following Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services union of Australia v QR Ltd (2010) 198 IR 382.

[42] Work Health and Safety Act 2011, s 47(1).

[43]  Exhibit 5, Affidavit of Theresa Patricia Hodges affirmed 23 August 2022, [14].

[44]  [2001] HCA 6.

[45]  (2012) 246 CLR 92.

[46] R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71 and Regional Express Holdings Limited v Australian Federation of Air Pilots (2017) 262 CLR 456.

[47]  Exhibit 5, Affidavit of Theresa Patricia Hodges affirmed 23 August 2022, [11].

[48]  Exhibit 5, Affidavit of Theresa Patricia Hodges affirmed 23 August 2022, [10]-[12].

[49]  Ibid, [13].

[50]  Ibid, [15].

[51]  Ibid, [16].

[52]  Exhibit 5, Affidavit of Theresa Patricia Hodges affirmed 23 August 2022, [17].

[53]  Ibid, [18].

[54]  See s 51AA(4), HHB Act.

[55]  IR Act, Schedule 5.

[56]  Ibid.

[57]  See: Gilbert v Metro North Health and Hospital Service & Ors [2021] QIRC 255 (27 July 2021)

[58]  Applicants' submissions dated 14 November 2022, [28].

[59]  See WHS Act, s 5 - meaning of person conducting a business or undertaking.

[60]Work health and safety consultation, cooperation and coordination Code of Practice - Scope and Application, p 4.

[61] Work Health and Safety Act 2011, s 47(1).

[62]  Exhibit 1, Affidavit of Sandra Mocnik dated 27 July 2022, MD-11.

[63]  Exhibit 5, Affidavit of Theresa Patricia Hodges affirmed 23 August 2022, [22]-[42].

[64]  TR1-95, LL20-30.

Close

Editorial Notes

  • Published Case Name:

    Mocnik & Ors v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Mocnik v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 58

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    22 Feb 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
Australian Medical Council v Wilson (1996) 68 FCR 46
3 citations
Jump To
Cite 1 - (1996) 68 FCR 46
Cite 2 - (1996) 68 FCR 46
Cite 3 - (1996) 68 FCR 46
Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92
1 citation
Jump To
Cite 1 - (2012) 246 CLR 92
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
3 citations
Jump To
Cite 1 - [2021] QIRC 356
Cite 2 - [2021] QIRC 356
Cite 3 - [2021] QIRC 356
Catholic Education Office v Clarke [2004] FCA FC 197
2 citations
Jump To
Cite 1 - [2004] FCA FC 197
Cite 2 - [2004] FCA FC 197
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78
3 citations
Jump To
Cite 1 - (1997) 80 FCR 78
Cite 2 - (1997) 80 FCR 78
Cite 3 - (1997) 80 FCR 78
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74
1 citation
Jump To
Cite 1 - (1995) 63 FCR 74
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (2010) 198 IR 382
1 citation
Jump To
Cite 1 - (2010) 198 IR 382
Gilbert v Metro North Hospital Health Service [2021] QIRC 255
1 citation
Jump To
Cite 1 - [2021] QIRC 255
Marcic v Thames Water Utilities Ltd [2004] 2 AC 42
2 citations
Jump To
Cite 1 - [2004] 2 AC 42
Cite 2 - [2004] 2 AC 42
Minister of Transport v Noort [1992] 3 NZLR 260
2 citations
Jump To
Cite 1 - [1992] 3 NZLR 260
Cite 2 - [1992] 3 NZLR 260
Owen-D'Arcy v Chief Executive, Queensland Corrective Services(2021) 9 QR 250; [2021] QSC 273
2 citations
Jump To
Cite 1 - [2021] QSC 273
Cite 2 - [2021] QSC 273
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
R v Oakes (1986) 1 SCR 103
5 citations
Jump To
Cite 1 - (1986) 1 SCR 103
Cite 2 - (1986) 1 SCR 103
Cite 3 - (1986) 1 SCR 103
Cite 4 - (1986) 1 SCR 103
Cite 5 - (1986) 1 SCR 103
R v Shayler [2003] 1 AC 247
2 citations
Jump To
Cite 1 - [2003] 1 AC 247
Cite 2 - [2003] 1 AC 247
Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415
3 citations
Jump To
Cite 1 - (2009) 24 VR 415
Cite 2 - (2009) 24 VR 415
Cite 3 - (2009) 24 VR 415
Re Consultation Clause in Modern Awards (2013) 238 IR 282
1 citation
Jump To
Cite 1 - (2013) 238 IR 282
Re Kracke v Mental Health Review Board (2009) 29 VAR 1
1 citation
Jump To
Cite 1 - (2009) 29 VAR 1
Regional Express Holdings Limited v Australian Federation of Air Pilots (2017) 262 CLR 456
1 citation
Jump To
Cite 1 - (2017) 262 CLR 456
Secretary, Department of Foreign Affairs and Trade v Styles & Anor (1989) 23 FCR 251
1 citation
Jump To
Cite 1 - (1989) 23 FCR 251
Slivak v Lurgi Australia Pty Ltd [2001] HCA 6
1 citation
Jump To
Cite 1 - [2001] HCA 6
State of Victoria v Schou [2004] VSCA 71
3 citations
Jump To
Cite 1 - [2004] VSCA 71
Cite 2 - [2004] VSCA 71
Cite 3 - [2004] VSCA 71

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Allison v State of Queensland (Department of Education) [2024] QIRC 2634 citations
Alzino v State of Queensland (Queensland Health) [2024] QIRC 247 citations
Bailey v State of Queensland (Department of Education) [2024] QIRC 2183 citations
Bowcock v State of Queensland (Department of Education) [2024] QIRC 283 citations
Brohier v State of Queensland (Queensland Health) [2023] QIRC 34314 citations
Carr v State of Queensland (Department of Education) [2024] QIRC 2102 citations
Colebourne v State of Queensland (Queensland Police Service) [2025] QIRC 1231 citation
Cooling v State of Queensland (Queensland Health) [2023] QIRC 33810 citations
Daley v State of Queensland (Department of Education) [2023] QIRC 2772 citations
Darveniza v State of Queensland (Department of Education) [2024] QIRC 2972 citations
Dau v State of Queensland (Department of Education) [2025] QIRC 822 citations
Daunt v State of Queensland (Department of Education) [2024] QIRC 2511 citation
De Bruyns v State of Queensland (Queensland Health) [2024] QIRC 307 citations
De Martin v State of Queensland (Queensland Health) [2023] QIRC 2652 citations
Endicott v State of Queensland (Queensland Health) [2024] QIRC 2312 citations
Fayers v State of Queensland (Queensland Health) [2023] QIRC 33711 citations
Fischer v State of Queensland (Queensland Health [2023] QIRC 3182 citations
Fitzgerald v State of Queensland (Queensland Health) [2023] QIRC 873 citations
Glen v State of Queensland (Queensland Ambulance Service) [2023] QIRC 3583 citations
Goodchild v State of Queensland (Department of Education) [2025] QIRC 462 citations
Harris v State of Queensland (Queensland Health) [2023] QIRC 34213 citations
Hoffman v State of Queensland (Queensland Health) (No 2) [2024] QIRC 1863 citations
Hughes v State of Queensland (Queensland Health) [2023] QIRC 34110 citations
Koenders v State of Queensland (Queensland Corrective Services) [2023] QIRC 3201 citation
Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 1216 citations
Mackenzie v State of Queensland (Queensland Health) (No 2) [2023] QIRC 2823 citations
Malancioiu v State of Queensland (Queensland Health) [2024] QIRC 3006 citations
McCloskey v State of Queensland (Queensland Health) [2023] QIRC 3602 citations
McKinney v State of Queensland (Queensland Health) [2023] QIRC 1322 citations
Mulder v State of Queensland (Queensland Health) [2023] QIRC 642 citations
Murray v State of Queensland (Queensland Health) [2023] QIRC 33910 citations
Ogbonna v State of Queensland (Queensland Health) [2024] QIRC 13 citations
Parry v State of Queensland (Department of Education) [2024] QIRC 422 citations
Radanovic v State of Queensland (Department of Education) [2024] QIRC 2253 citations
Rauschenbach v State of Queensland (Queensland Corrective Services) [2023] QIRC 1301 citation
Rossiter v State of Queensland (Department of Education) [2024] QIRC 252 citations
Rowe v State of Queensland (Department of Education) [2024] QIRC 2482 citations
Sagur v State of Queensland (Queensland Health) [2024] QIRC 322 citations
Sher v State of Queensland (Queensland Health) [2023] QIRC 882 citations
Smith v State of Queensland (Department of Education) [2024] QIRC 2431 citation
Starkey v State of Queensland (Department of Education) [2024] QIRC 2962 citations
Steenson v State of Queensland (Department of Education) [2024] QIRC 2421 citation
Stott v State of Queensland (Queensland Health) [2023] QIRC 34012 citations
Sturgess v State of Queensland (Department of Education) [2024] QIRC 2361 citation
TB v State of Queensland (Queensland Health) [2025] QIRC 562 citations
Temple v State of Queensland (Department of Education) [2024] QIRC 2981 citation
Thorley v State of Queensland (Department of Education) [2024] QIRC 262 citations
Tilley v State of Queensland (Queensland Health) [2023] QIRC 2622 citations
Vaughan v State of Queensland (Department of Education) [2025] QIRC 752 citations
Wearne v State of Queensland (Department of Education) [2025] QIRC 872 citations
1

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