Jones v State of Queensland (Queensland Health)
[2023] QIRC 75
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- Jones v State of Queensland (Queensland Health)[2023] QIRC 75
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Jones v State of Queensland (Queensland Health)[2023] QIRC 75
Jones v State of Queensland (Queensland Health)[2023] QIRC 75
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Jones v State of Queensland (Queensland Health) [2023] QIRC 075 |
PARTIES: | Jones, Alicia (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/259 |
PROCEEDING: | Public Sector Appeal – Appeal against decision under a directive |
DELIVERED ON: | 6 March 2023 |
MEMBER: | Knight IC |
HEARD AT: | On the papers |
ORDERS: | The decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal under s 134 of the Public Sector Act 2022 (Qld) – where Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements required relevant employees to receive COVID-19 vaccination – where appellant requested exemption from compliance on basis of exceptional circumstances – where exemption refused – where internal review confirmed decision to refuse exemption – whether exceptional circumstances meaningfully considered – whether human rights – adequately considered – decision confirmed |
LEGISLATION AND INSTRUMENTS: | COVID-19 Emergency Response Act 2020 (Qld) Directive No 12/21 - Employee COVID-19 vaccination requirements cls 1, 7, 8, 10 Hospital and Health Boards Act 2011 (Qld) ss 51A, 51B, 51E Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Sector Act 2022 (Qld) s 134 Public Service Act 2008 (Qld) s 197 (repealed) Work Health and Safety Act 2011 (Qld) ss 19, 47, 48 Work Health and Safety Regulations 2011 (Qld) ss 34, 36(2) |
CASES: | Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 Brasell-Dellow v State of Queensland (Queensland Police Service) [2021] QIRC 356 Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016 Goodall v State of Queensland & Anor [2018] QSC 319 Graf & Ors v State of Queensland (Department of Education) [2022] QIRC 451 Grundkvist v State of Queensland (Queensland Health) [2022] QIRC 135 Higgins v State of Queensland (Queensland Health) [2022] QIRC 30 Morrissey v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2022] QIRC 303 Murray v State of Queensland (Department of Education) [2022] QIRC 355 R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 1 Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414 Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456 Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6 Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 |
Reasons for Decision
- [1]Ms Alicia Jones is employed by the State of Queensland through Queensland Health ('the Department') as a Governance Support Officer within West Morten Health (WHM).
- [2]Ms Jones filed this appeal pursuant to s 197 of the Public Service Act 2008[1] ('the PS Act') in relation to a decision of Ms Wendy Richards, Acting Senior Director, Recruitment and Capability, Human Resources Branch, not to approve an application for an exemption from the Health Employment Directive 12/21 - Employee COVID-19 vaccination requirements ('the Directive').[2]
- [3]On 11 September 2021, the Director-General of the Department issued the Directive under s 51A of the Hospital and Health Boards Act 2011 ('the HHB Act').[3] Section 51A of the HHB Act permits the chief executive to issue health employment directives about the conditions of employment for health service employees.[4]
- [4]Clause 1 of the Directive states that compliance is mandatory. The Directive requires employees identified within certain groups to receive a COVID-19 vaccination on specified dates.[5] As an employee who is required to attend a hospital or clinical care facility, the Applicant was in Group 3 for the purposes of the Directive.[6]
- [5]As a Governance Support Officer at the WMH, Ms Jones was required under cl 8.1 of the Directive to have her first dose of a COVID-19 vaccine by 30 September 2021 and her second dose by 31 October 2021.
- [6]Clause 10 of the Directive provides that an employee does not have to comply with the Directive where they are granted an exemption. The Directive provides that an application for an exemption will be considered by Queensland Health:
- (a)where an employee has a recognised medical contraindication;
- (b)where an employee has a genuinely held religious belief; or
- (c)where other exceptional circumstances exist.[7]
- [7]On 24 September 2021, Ms Jones sought an exemption to the mandatory vaccine requirements citing exceptional circumstances, raising concerns about the necessity of the vaccine, her ability to work remotely, and free and informed consent.[8]
- [8]From 1 November 2021, Ms Jones was unable to attend the workplace while she was unvaccinated.[9]
- [9]Ms Jones was subsequently advised the Department's review committee had refused her exemption application and then directed her to comply with the Directive by receiving the required dose and providing confirmation of her compliance within seven days of receiving such advice.[10]
- [10]Ms Jones requested an internal review of the decision to refuse her exemption application and was subsequently advised the internal review had been completed. The decision to refuse Ms Jones' exemption application was confirmed.[11]
- [11]This appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld).[12] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[13]Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[14]
Background
- [12]In her initial application for exemption, which was submitted on the basis of other exceptional circumstances, Ms Jones noted:
I refer to the recent Health Employment Directive No. 12/21 (HED 12/21) that requires Queensland Health employees in identified high risk groups, to be vaccinated for COVID-19 in order to access their jobs, unless granted an exemption. I note your direction via email dated 12 September 2021 that "given the widespread distribution of our services at West Moreton Health" (WMH) this mandate applies to all staff, both clinical and non-clinical, at all WHM hospitals and facilities. It is my position that for me the COVID-19 vaccination is medically unnecessary and poses greater risk than benefit, and that blanket mandates for the COVID-19 vaccination are not supported in law. The collective risk factors, lack of necessity and unlawfulness of vaccine mandates amount to extenuating circumstances for exemption.[15]
- [13]In her decision declining the exemption, Ms Claire Barratt, A/Chief Strategy Officer, WMH stated:
Queensland Health is of the view that the COVID-19 virus presents significant risk to the health and safety of healthcare workers, support staff, their families and the patients in our care. Evidence from around the world demonstrates not only the safety of the COVID-19 vaccine, but the very high-level efficacy of this vaccine.
Vaccination reduces the risk of hospitalisation and death from COVID-19 when compared to those who are unvaccinated. Vaccination also means staff are much less likely to transmit the virus to others, including importantly, to our sometimes-immunocompromised patients.
...
As part of your application for an exemption from the requirement to be vaccinated against COVID-19, I note that you outlined a number of concerns in relation to the safety of the COVID-19 vaccine.
These concerns are of the nature of being 'vaccine hesitancy.' Vaccine hesitancy refers to a delay in acceptance or a refusal of vaccines despite availability, and includes concerns about the safety, efficacy or reliability of the COVID-19 vaccines.
Queensland Health's position is the COVID-19 vaccination is [sic] a safe and reliable. The safety and reliability of the COVID-19 vaccination program is supported by the fact that it has been available and operating in Australia for some time during 2021.
...
Free and informed consent to medical treatment is an essential tenet of healthcare. However, as the Directive [sic] require vaccination as a condition of employment, this is materially and irreconcilably different from a situation involving coercive medical treatment or circumstances otherwise giving rise to an inability to provide free and informed consent to medical treatment.
It is Queensland Health's position that the introduction of vaccination as a condition of employment is reasonable and justifiable given that the purposes of the requirement include protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health service in a time of global pandemic.
...
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 also took into consideration the potential impact of the decision on human rights. The decision does not itself 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.
Queensland Health's position is that the impacts of the decision upon human rights, to the extent that these are impacted, are reasonably justified. The purpose of the requirement to be vaccinated in the Directive and Policy include protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health system in a time of a global pandemic. It should be noted that there is no other reasonably practicable, effective and less restrictive way, to achieve this purpose.
...
In making the decision to require vaccination of Queensland Health employees, the Director-General gave consideration to relevant legislative obligations incumbent on Queensland Health as an employer, as well as those obligations incumbent on staff. This decision took into consideration the significant levels of risk associated with the work performed by Queensland Health employees. As part of the decision making process, due consideration was given to the availability of a safe and reliable vaccination program for Queensland Health employees. In evaluating the controls available it was determined that requiring vaccination would provide the best possible protection for our workforce, people accessing health services and the broader community and ensure the ongoing readiness of the health system.
...
Queensland Health employees have particular obligations under legislation to minimise the health and safety risks to themselves, other employees and patients, as well as to follow the reasonable and lawful directions of their employer. It is Queensland Health’s position that the introduction of vaccination as a condition of employment is reasonable and justifiable given that the purposes of the requirement include protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health service in a time of [sic] global pandemic.
...
I am satisfied that my decision to refuse your exemption application is compatible with human rights. While this decision engages or limits a number of your human rights, including your right to equality and non-discrimination and your right not to receive medical treatment without consent, I am satisfied that those limits on human rights are justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, and to protect the lives of employees, patients and the community they serve.[16]
The Internal Review Decision
- [14]Ms Jones' submissions in respect of the request for an internal review of the decision to deny her exemption application fell into four broad categories, namely:
- Inadequate consultation
- Vaccine safety and efficacy;
- Alternative work arrangements; and
- Consent and an incursion of her human rights.
- [15]In response to Ms Jones' proposal of working remotely as a legitimate alternative to receiving the vaccine, Acting Senior Director, Recruitment and Capability, Human Resources Branch, Ms Wendy Richards' internal review decision[17] confirmed:
You are an employee of WMHHS and your work location is listed as the Hayden Centre which forms part of the wider WMHHS. While you state in your original application In the last 18 months I have not needed to attend any facility to be able to perform the duties of my position or undertake required training, the ability to work remotely and to be supported by your employer in relation to flexible working arrangements does not mean that you are not required to enter a hospital or other facility where clinical care or support is provided. Therefore, I do not consider a remote or flexible working arrangement is a valid circumstance for exemption from the COVID-19 vaccination.
The health service is required to provide a safe environment for its employees, patients, and visitors and this required you to be vaccinated to undertake the inherent requirements of your role. Your role has been delegated as being required to be vaccinated against COVID-19 within the scope of HED 12/21 with a vaccine approved by the Therapeutic Goods Administration (TGA). The health service made this decision on the basis that a safe reliable vaccination program has been available to Queensland Health employees for some time.[18]
- [16]In response to Ms Jones' proposal for redeployment, Ms Richards' internal review decision confirmed:
Any redeployment will need to be discussed between yourself and your line manager. However, this will not remove the current requirement of your role for you to be vaccinated in accordance with HED 12/21.[19]
- [17]In response to Ms Jones' concerns about consent and human rights, Ms Richards' internal review decision concluded:[20]
- the Directive which requires employees to be vaccinated is materially and irreconcilably different from a situation involving coercive medical treatment or other circumstances that impede upon free and informed consent to medical treatment.
- the decision to confirm the refusal of Ms Jones' exemption application was compatible with human rights.
Grounds of Appeal
- [18]Ms Jones set out the basis of her appeal as follows:
I am not satisfied the decision to uphold the original decision to deny my exemption is fair and reasonable and appeal to the Commission to review that decision. In making this appeal I rely on other documents submitted to, and received from, Queensland Health, all of which I am told was considered in the review, to support the basis for my appeal, though I provide a high-level summary of key contentions within those documents below. The merits of the decision to require me (in my role declared as a Group 3 position under HED 12/21) to be vaccinated against COVID-19 are based on sweeping statements lacking transparency of evidence and do not measure up as fair or reasonable against the extenuating grounds asserted in my submissions for exemption.[21]
Ms Jones' Submissions
Inadequate consultation
- [19]Ms Jones submits the Department did not engage with workers adequately during the consultation period prior to the implementation of the Directive:
At [7] the Respondent states consultation occurred with employees prior to the introduction of the HED 12/21 and states at [16] there was no obligation to consult with employees on an individual basis. For the first time in my review process the Respondent has actually identified the Work Health and Safety Act 2011 (Qld) (the Act) as the legislative basis for consulting on the HED 12/21. Part 5, Division 2, Section 48(b) of the Act provides that workers be given a reasonable opportunity (i) to express their views and to raise work health or safety issues in relation to the matter; and (ii) to contribute to the decision-making process relating to the matter. That is workers, not unions representing workers. Or, I would argue, a few workers representing the majority. The HED 12/21 is a significant change to the conditions of employment for almost all employees of Queensland Health. A reasonable opportunity would have been to generally seek the views of, and [sic] contribution from, employees via an open and transparent consultation process. I do not recall wider consultation (at least proportionate to the number of affected staff) occurring prior to implementation.[22]
Not medically necessary
- [20]Ms Jones provides that she does not believe the COVID-19 vaccination is medically necessary for her, submitting that the vaccine puts her at greater risk and is disproportionate to the risk she poses in performing her duties while unvaccinated.[23] Ms Jones relies upon various datasets to support her position observing that in circumstances where she has no other diseases or conditions and is under the age of 40, the statistical odds of her passing away if she tested positive for COVID-19 is 0.39%.[24]
- [21]Citing data from the Therapeutic Goods Administration (TGA) and Database of Adverse Event Notifications (DEAN), which outlines reported possible side effects from receiving the COVID-19 vaccine,[25] Ms Jones concludes her submissions by observing:
For me, the risk of receiving a COVID-19 vaccination outweighs any real benefit, considering I do not fit the profile of a person at high-risk of severe illness or death from COVID-19 and my chances of recovery are almost certain anyway without medical intervention.[26]
Vaccine Efficacy
- [22]Ms Jones submits that the Omicron variant of COVID-19 is now the dominant variant in Australia and has escaped vaccine-induced immunity. While accepting the variant is more transmissible, Ms Jones' holds the view that the vaccine does not definitively prevent infection and that those who have been infected will have infection-induced immunity.
- [23]
- [24]Ms Jones further submits:
Subsequent public health directions from the Queensland Chief Health Officer have exploded in breadth and reach as they relate to the requirement to be vaccinated against COVID-19; one wonders whether in part due to the objections raised by people aggrieved by such 'mandates', like myself. One must practically be a tree stump to avoid the requirement to be vaccinated against COVID-19, despite consistent data evidencing an almost certain chance of recovery the younger and/or healthier one is, and that vaccination does not definitively prevent infection or transmission.[29]
- [25]Ms Jones also questions the Department's reliance on the TGA approval observing:
Firstly, they are only provisionally approved and are currently undergoing evaluation. Secondly, provisionally approved does not inherently, without question, mean they are safe and effective. Thirdly, there is still no medium or long term safety and efficacy data.[30]
Informed Consent
- [26]Ms Jones considers the Directive is inconsistent with the Biosecurity Act 2015 (Cth) and as a result, her right to informed consent is being violated.
- [27]In response to the Department's submissions regarding free and informed consent, Ms Jones submits she feels coerced in circumstances where her employment will be at risk in the event she does not receive the vaccine.[31]
Ability to work from home
- [28]Ms Jones maintains her role is administrative and that she is not working within a clinical environment. She contends the Department reasoned that she is required to be able to attend any facility, but maintains it has not been necessary for her to attend a facility while working from home.
- [29]
The Department’s Submissions
- [30]The Department maintains the decision to refuse an exemption was at all times fair and reasonable, submitting it has complied with its obligations to consult under the Work Health & Safety Act 2011 ('the WHS Act') and observing there is no obligation, nor would it be reasonably practicable, to consult with individual employees given the size of the Department and WMH.[34]
- [31]The Department acknowledges that attached to Ms Jones' application for an exemption under 'other exceptional circumstances,' she had attached a discussion paper to support her exemption. However, the Department submits:
Ms Jones produced no independent or credible evidence to support her position that she is at no greater risk of transmitting the virus than her vaccinated colleagues.[35]
- [32]It is further submitted Ms Jones did not provide any evidence to support a conclusion that her circumstances, as an individual, were exceptional.[36]
- [33]
- [34]The Department further contends that although Ms Jones raises concerns regarding the efficacy of vaccines, she fails to provide evidence in support of a medical contraindication that would excuse her compliance with the Directive.[39]
- [35]Relying on cl 6 of the Directive, the Department highlights the importance of mandatory vaccination, pointing to the increased potential exposure of COVID-19 for workers engaged in health care delivery, submitting that limiting transmissions will reduce the likelihood of workplace outbreaks and staff shortages.
- [36]In response to Ms Jones' concerns regarding free and informed consent, the Department provided the following:
The introduction of mandatory vaccination is a condition of employment. Ms Jones is not obliged to work for QH. HED 12/21 is reasonable and justifiable given the purposes of the requirement for vaccination, namely protecting staff and patients from infection with COVID-19 and ensuring the maintenance of a proper and efficient health service in a time of a global pandemic.
As set out in the letter dated 26 January 2022, Ms [sic] Jones’s human rights were taken into account and Ms Richards determined any limitation to Ms [sic] Jones’s human rights was ‘reasonably justified’. The purpose of the requirement to be vaccinated in the HED 12/21 includes protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health system in a time of a global pandemic. There is no other reasonably practicable, effective, and less restrictive way, to achieve this purpose.[40]
- [37]Finally, the Department made the following observations in response to Ms Jones' submissions regarding the appropriateness of remote or flexible working arrangements:
- While Ms Jones can complete some of her duties remotely, she is required to attend hospitals or health service facilities and may be required to intermingle with other Department staff. These locations are risky with regard to the transmission of COVID-19.
- Redeployment would not remove the requirement for Ms Jones to comply with the Directive.
- An alternative arrangement is only granted under exceptional circumstances.
- The ability to work remotely is not a reasonable excuse to not comply with the Directive.[41]
The internal review decision was fair and reasonable
- [38]Ms Jones' appeal grounds, in relation to Ms Wendy Richards' decision to confirm an earlier refusal of her exemption application, fall into four broad categories, namely:
- Inadequate consultation;
- Safety and efficacy of the vaccination
- Concerns in relation to consent; and
- The capacity to work from home or remotely.
Inadequate Consultation
- [39]Ms Jones raises several concerns about the adequacy of consultation in the development and subsequent implementation of the Directive. For example, it is submitted the Department failed to provide Ms Jones with a reasonable opportunity to be consulted about the Directive.
- [40]In its submissions, the Department maintains both the Department and WMH complied with its obligations to consult under the WHS Act, observing that the obligation to consult does not impose an obligation to consult with employees on an individual basis.
- [41]It also submitted that consultation on an individual basis was not reasonably practicable for a workforce the size of the Department or WMH.[42]
- [42]Although s 48 of the WHS Act describes certain types of consultation which should take place, s 47 provides the obligation to consult need only occur to the extent that it is reasonably practicable.[43]
- [43]In 'Brassell-Dellow',[44] the Full Bench considered the concept of "reasonably practicable", noting:
- [124]Section 47 is of general application to all workforces and workplaces. It is easy to imagine that it may be reasonably practicable to consult on a face to face basis and fully in terms of s 48 with each individual member of a small workforce. Here, the workforce is over 17,200 in number.
- [125]In Slivak v Lurgi (Australia) Pty Ltd, Gaudron J described the notion of "reasonably practicable", in the context of fulfilment of a safety obligation, as follows:
"The words 'reasonably practicable' have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words 'reasonably practicable' are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:
'the phrase 'reasonably practicable' means something narrower than 'physically possible' or 'feasible;
what is 'reasonably practicable' is to be judged on the basis of what was known at the relevant time;
to determine what is 'reasonably practicable' it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.'"
- [126]In Baiada Poultry Pty Ltd v 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."
- [127]The evidence shows that each employee received by email various documents over a period of time which explained the Commissioner's intentions. Importantly, each of the applicants who gave evidence were members of a union at the time the direction was given. All the police and other staff were eligible for membership of one of the unions with whom the Deputy Commissioner consulted, and who supported the directive. Those unions, therefore, covered the workforce. It is well-established that trade unions may negotiate with employers, not only on behalf of their members, but also on behalf of workers who are eligible for membership.
- [128]When considering in any particular case what consultation is "reasonably practicable", regard must be had not only to the particular circumstances, but also to the legislative intention behind ss 47 and 48. The point of s 47 is to enable workers who may be affected by workplace, health and safety issues to have input into the management of those issues before an employer imposes conditions upon them. Obviously, the desirable outcome is agreement between the employer and employees as to the work, health and safety measures.[45]
- [44]Although it may well be the case that Ms Jones did not participate in consultation relevant to her specific circumstances during the development of the Directive, I accept it would have been impractical for the service to meet with all employees given the size and nature of WMH. However, I am satisfied employees of WMH, including Ms Jones, received correspondence and information in relation to the requirement to be vaccinated against COVID-19 and that the Department consulted with unions during the relevant period. In this respect, I am not persuaded the consultation was inadequate.
- [45]For the above reasons, I am not satisfied this ground of appeal could lead to a conclusion the Internal Review Decision was unfair or unreasonable.
Exceptional Circumstances – Front-line worker/Safety & Efficacy of Vaccine
- [46]When considering whether Ms Richards' internal decision was fair and reasonable, I have had regard to His Honour, DP Merrell's views in Grundkvist v State of Queensland (Queensland Health),[46] where he observed:
Ms Grundkvist's submissions must, in my view, be considered by having regard to whether the issues to which she refers give rise to an exceptional circumstance of this kind. The basis for such an exemption must concern circumstances that affect or concern her as an individual employee as opposed to a circumstance or circumstances which affect or concern all or a large group of the employees of the Department.[47]
- [47]In forming this view, his Honour relied on an earlier decision of Colebourne v State of Queensland (Queensland Police Service) (No 2),[48] where he stated in respect of a similar exemption regime under a COVID-19 vaccination direction given in the Queensland Police Service:
- [53]Therefore, it was clear from Ms Colebourne's application for exemption that she was applying for an exemption, not on medical or genuine religious grounds (as referred to in paragraphs 8 or 9a) of Direction No 12) but '… due to other exceptional circumstances' as contemplated in paragraph 9b) of that document.
- [54]It seems to me that construed in context, for an exemption of the kind referred to in paragraphs 8 or 9 of Direction No 12 to be granted, the grounds for the exemption must relate to the employee as an individual. This can be seen in respect of the exemptions that may be granted on medical or religious grounds. Similarly, in my view, the '… other exceptional circumstances' basis for an exemption concern circumstances that affect or concern the individual employee as opposed to general circumstances which may concern all or a large group of the members of the Service.[49]
- [48]Therefore, the correct approach, when reviewing the issues Ms Jones submits give rise to exceptional circumstances, is to have regard to events or circumstances that impact or concern her as an individual rather than those that impact or affect a broad group of employees or sub-groups within a particular department.[50]
- [49]In support of the position that her circumstances give rise to exceptional circumstances, Ms Jones argues she is not a front-line worker and that her work can be completed remotely.
- [50]The Department submits Ms Jones performs an important role in an area that is covered by the Directive to limit transmissions within the workplace and reduce possible staff shortages.
- [51]In her role as a Governance Support Officer with WMH, it is not in contention Ms Jones falls within Group 3 of the Directive and was therefore required under cl 8.1 of the Directive to receive a COVID-19 vaccination.
- [52]Although it may be the case that Ms Jones is not always required to attend clinical facilities or interact with hospital patients or other employees such as nurses, doctors or allied health professionals on a regular basis, I accept her role may require her to attend the workplace and other WMH facilities from time to time where she will inevitably engage with other employees of the department who may have contact with patients or other front-line staff.
- [53]In those circumstances, I am not persuaded the reduced nature of her interaction with front-line workers, patients and other colleagues gives rise to a circumstance that could be characterised as exceptional.
- [54]In her submissions, Ms Jones also raises concerns about the efficacy and safety of the vaccine, suggesting there is scientific data and evidence questioning the effectiveness of the vaccine.
- [55]Although I accept Ms Jones holds concerns about the vaccine, one of the challenges with this aspect of her appeal is that it is well established that concerns about the efficacy or safety of the COVID-19 vaccine, on their own, are not considered exceptional circumstances.[51]
- [56]In any event, I was unable to identify any other circumstances relevant to Ms Jones, within the materials that were filed in support of her appeal or her earlier request for a review that meaningfully weighed against other considerations the Department is required to have regard to, for example, the nature of Ms Jones' role and any potential risk to herself, other employees, patients and the community with respect to COVID-19 transmission.
- [57]Moreover, Ms Jones did not provide the Department or the Commission with evidence of a specific medical contraindication that could be characterised as exceptional or exposing her to any higher risk of harm from the vaccine, than her other colleagues.
- [58]For the reasons set out above, I am not persuaded the circumstances relied on by Ms Jones, in so far as they relate to the approval, safety or effectiveness of the vaccine, or the nature of her interaction with patients, could be characterised as exceptional. Nor could they lead to a conclusion that Ms Richards' decision was unreasonable.
Consent
- [59]Ms Jones also raises questions as to whether consent has been freely obtained in circumstances where she considers she is being coerced into receiving a COVID-19 vaccination.
- [60]In Graf & Ors v State of Queensland (Department of Education),[52] 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 of 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.[53]
- [61]Similarly, in this matter, Ms Jones had a choice as to whether she complied with the Directive.
- [62]For these reasons, I am not persuaded Ms Jones' submissions in relation to this ground of appeal, result in a conclusion that Ms Richards' decision was unfair or unreasonable.
Conclusion
- [63]The Internal Review Decision confirming the refusal of Ms Jones' request for an exemption from receiving the COVID-19 vaccine, was fair and reasonable.
- [64]I confirm the Internal Review Decision.
Order
- [65]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] I note this provision was repealed in March 2023 and effectively replaced by Public Sector Act 2022, s 134.
[2] The Department’s submissions filed 4 April 2022, [2]-[3].
[3] Hospital and Health Boards Act 2011 (Qld).
[4] The Department's submissions filed 4 April 2022, [4].
[5] Health Employment Directive 12/21 - Employee COVID-19 vaccination requirements, cls 7, 8.
[6] The Department's submissions filed 4 April 2022, [8].
[7] Health Employment Directive 12/21 - Employee COVID-19 vaccination requirements, cl 10.2.
[8] The Department's submissions filed 4 April 2022, Attachment 1.
[9] Ibid, [10].
[10] Ibid, [11]
[11] Ibid, [13].
[12] Public Sector Act 2022 (Qld) s 134.
[13] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland & Anor [2018] QSC 319.
[14] Industrial Relations Act 2016 (Qld) s 562B(3).
[15] The Department's submissions filed 4 April 2022, Attachment 1.
[16] Ibid, Attachment 3.
[17] Ibid, Attachment 5.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Appeal notice filed 14 February 2022.
[22] Ms Jones' reply submissions filed 19 April 2022, [4].
[23] Ms Jones' submissions filed 8 March 2022, 1.
[24] Ibid, [2].
[25] Ibid, [5[ - [7].
[26] Ms Jones' submissions filed 8 March 2022, [10].
[27] Ibid; citing Our World Data, an article from MedRxiv, and an article in the New England Medical Journal.
[28] Ms Jones' submissions filed 8 March 2022, [12] – [14].
[29] Ibid, [16].
[30] Ms Jones' reply submissions filed 19 April 2022 [7].
[31] Ms Jones' reply submissions filed 19 April 2022 [13].
[32] Ibid, [2].
[33] Ibid, [2].
[34] Ibid, [15] – [16]; citing Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [41].
[35] The Department's submissions filed 7 February 2022, [18].
[36] Ibid, [18]; citing Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016, [54].
[37] The Department's submissions filed 7 February 2022, [20].
[38] Ibid, [20]; citing Tilley v State of Queensland (Queensland Health) [2022] QIRC 002.
[39] The Department's submissions filed 7 February 2022, [19]; citing Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414, [61].
[40] The Department's submissions filed 7 February 2022, [28].
[41] Ibid, [30]; citing Graffunder v State of Queensland (Queensland Health) [2022] QIRC 076;
[42] The Department's submissions filed 4 April 2022, [16].
[43] Work Health and Safety Regulation 2011 (Cth), ss 47, 48.
[44] Brassell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356.
[45] 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 1; Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; Work Health and Safety Act 2011 (Cth) ss 47, 48.
[46] [2022] QIRC 135.
[47] Grundkvist v State of Queensland (Queensland Health) [2022] QIRC 135, [23].
[48] [2022] QIRC 016, [39] – [42].
[49] Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 016, [53] – [54].
[50] Grundkvist v State of Queensland (Queensland Health) [2022] QIRC 135; Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 016.
[51] The Department's submissions filed 4 April 2022, Attachment 1; Murray v State of Queensland (Department of Education) [2022] QIRC 355; Morrissey v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2022] QIRC 303; Higgins v State of Queensland (Queensland Health) [2022] QIRC 30.
[52] [2022] QIRC 451.
[53] Ibid [39].