Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary of NSW on behalf of Fire and Rescue NSW - [2023] NSWIRComm 1004 - NSWIRComm 2022 case summary — Zoe

NSWNSWIRComm

Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary of NSW on behalf of Fire and Rescue NSW

[2023] NSWIRComm 1004

Industrial Relations Commission (NSW)|2022-10-05

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2022-10-05

Catchwords

35 CLR 143 ALHMWU v Murawina Mt Druitt Co-op Ltd [2005] NSWIRComm 1017 Attorney-General (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2
[2003] NSWIRComm 423 BlueScope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales (2006) 153 IR 176
231 CLR 531 Hill v Director General of the Department of Education and Training (1998) 85 IR 201 Kassam v Hazzard
Henry v Hazzard [2021] NSWSC 1320

Source

Original judgment source is linked above.

Catchwords

35 CLR 143 ALHMWU v Murawina Mt Druitt Co-op Ltd [2005] NSWIRComm 1017 Attorney-General (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2[2003] NSWIRComm 423 BlueScope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales (2006) 153 IR 176231 CLR 531 Hill v Director General of the Department of Education and Training (1998) 85 IR 201 Kassam v HazzardHenry v Hazzard [2021] NSWSC 1320393 ALR 664 NSW Department of Education and Training v NSW Teachers FederationRe Student Reports Bans (2006) 157 IR 329[1998] HCA 28 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 96 NSWLR 762[2018] NSWCA 39 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Darling Island Stevedoring and Lighterage Co LtdEx parte Halliday and Sullivan [1938] HCA 4460 CLR 601 Re Cramex parte NSW Colliery Proprietors' Association Ltd [1987] HCA 28103 IR 52 Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388

Judgment (22 paragraphs)

[1]

[3]

Introduction

These proceedings involve a dispute between the Fire Brigade Employees' Union of New South Wales (FBEU) and Fire and Rescue NSW (FRNSW) regarding the retention and enforcement of a 'COVID-19 Vaccination Requirements Policy' (Policy) which was first introduced in December 2021. The Policy was reviewed in June and July 2022, after which FRNSW decided to retain the Policy, without any variation or other amendment. The FBEU considers that the retention of the Policy after July 2022 was unreasonable due to a failure of FRNSW to properly consult with employees and in light of the 'very different health, policy and legislative landscape of the COVID-19 pandemic' compared with the circumstances as at December 2021.
The precise terms of the Policy are set out and discussed below. It suffices for present purposes to describe the Policy as a direction to FRNSW employees to receive two doses of an approved COVID-19 vaccination, or provide a valid medical contraindication certificate, by 17 December 2021 and, unless medically exempted, to remain 'fully vaccinated'.
According to the unchallenged evidence of Ms Dimitra Krouskos, a senior industrial officer of the FBEU, approximately 200 FBEU members have not received a vaccination, with the result that they are prohibited from attending the workplace and FRNSW has commenced disciplinary processes against all or some of those members, including the provision of notice to at least some of them, that their employment will be terminated, for failure to comply with a direction of the Commissioner of FRNSW.
In late June 2022, after the FBEU notified the Commission of the present dispute, FRNSW agreed to temporarily pause the termination/disciplinary process to allow for the dispute to be "considered and addressed." That stand-still arrangement was confirmed by an undertaking given to the Commission by FRNSW to the effect that it will not take any steps in relation to the employees that are currently not compliant with the Policy until the delivery of this decision. I understand that no member of the FBEU has been terminated, as yet, for failure to comply with the Policy, but, if the FBEU is unsuccessful in this proceeding, over 200 firefighters, perhaps as many as 300, may be at risk of having their employment terminated. According to the FBEU the dispute is about the 'threatened dismissal' or 'pending termination' of more than 200 unvaccinated firefighters.
It is not in dispute and the evidence shows, that the FBEU supported the Policy when it was first introduced in December 2021. The FBEU was at pains to stress that its grievance arises solely from the retention of the Policy following the review that occurred in June and July 2022. While not expressly conceding that the Policy was lawful and reasonable when it was first introduced, in its Outline of Closing Submissions the FBEU made it clear (in footnote 1), that it did not seek a finding to the contrary in these proceedings. Rather, the FBEU contends that regardless of whether the Policy was lawful and reasonable when it first introduced, it was not reasonable after it was reviewed in June and July 2022 (and hence, it was also unlawful according to the FBEU) and consequently, any termination of an employee after that date, for failure to comply with the Policy, would be unfair.
The FBEU submits that the dispute should be resolved by the making of a dispute order restraining FRNSW from dismissing employees due to non-compliance with the Policy. The FBEU seeks an order in the following terms: Pursuant to s.137(1)(c) of the Industrial Relations Act 1996 (NSW), FRNSW is not to dismiss employees on the basis of non-compliance with its COVID-19 vaccination policy.
FRNSW on the other hand, proposes that the Commission resolve the dispute by making recommendations pursuant to s 136(1)(a) of the Industrial Relations Act, in the following terms: (a) Noting that the FBEU supports COVID-19 vaccinations and encourages its members to be vaccinated, the Industrial Relations Commission of NSW recommends that all Firefighters in the service of FRNSW receive a first dose of an approved COVID-19 vaccine within two weeks of the date of this recommendation; and (b) If any firefighter obtains a vaccination against COVID-19 and provides evidence of the same within two weeks of the date of this recommendation, the Industrial Relations Commission of NSW recommends that FRNSW discontinue any disciplinary process against that individual with respect to compliance with vaccination requirements.
For the reasons that follow, I decline to grant the relief sought by either party. Those reasons may be summarised as follows: 1. section 137(1)(c) does not give the Commission power to make an order which would permanently enjoin the Fire Commissioner from dismissing employees; 2. even if I was wrong about that, in circumstances where I am not required by the FBEU to find that the Policy was unlawful and/or unreasonable at any time prior to 10 June 2022 (being the date the FBEU first communicated to FRNSW its desire to have the Policy revoked) or 5 July 2022 (being the date the FRNSW confirmed that the Policy would remain in place), there is no basis upon which I could enjoin the Fire Commissioner not to dismiss an employee for failure to comply with the Policy prior to that date; and 3. in any event, on the evidence, I cannot find that the retention of the Policy in July 2022 was either unlawful or unreasonable and accordingly, I would not grant the relief sought, or an appropriate amended version of the relief sought, even if I had the power to grant it.
The reason for declining to grant the relief sought by FRNSW is two-fold. First, for reasons explained below, it is a matter for the Fire Commissioner what steps he considers are reasonably practicable to reduce the risk to workers and others posed by COVID-19. The first recommendation sought by FRNSW, if made, would amount to the Commission giving its imprimatur to managerial actions of the Commissioner in response to his obligation at common law and pursuant to the Work Health and Safety Act 2011 (NSW), to ensure the health and safety of his workers and others. While the making of such a recommendation might by appropriate in the context of a conciliation, it seems to me the making of the first recommendation sought by FRNSW following arbitration would amount to an inappropriate endorsement of the Vaccination Mandate as a reasonably practicable measure to reduce a work, health and safety risk. This is a matter for the Fire Commissioner in the first instance, and if contested in a subsequent prosecution or civil action arising from an alleged breach of the Commissioner's duty, a Court.
As regards the second recommendation sought by FRNSW, if the Fire Commissioner is willing to discontinue any disciplinary process against an individual with respect to compliance with the Policy, if that individual were to receive a first dose of the vaccine within two weeks of this decision, as the mere seeking of the recommendation impliedly suggests, he may do so without this Commission recommending that he do so.

[4]

The Policy

The Policy is a lengthy document. It relevantly provides as follows: 1 Purpose This policy states Fire and Rescue NSW's (FRNSW) COVID-19 vaccination requirements to provide a COVID-19 safe work environment for our people and to maintain capability and capacity for service delivery to the community. … 2 Scope and application This policy applies to all FRNSW workers including: ● Firefighters and operational support personnel ● Administrative and trades staff ● Community Fire Unit Volunteers ● Consultants and contractors who attend FRNSW premises, locations or worksites, e.g. cleaners, service technicians, construction workers ● FRNSW Band members ● All people who are seeking to be employed or engaged by FRNSW. This policy applies to COVID-19 vaccination requirements only. It does not apply to other vaccinations required or recommended by FRNSW. 3 Legal and policy framework 3.1 Legal Framework FRNSW follows advice and directions from the NSW Government, NSW Health and the Australian Department of Health in relation to COVID-19 vaccinations. To manage the COVID-19 global pandemic as declared by the World Health Organisation in March 2020, the NSW Government issued a number of Public Health Orders including the Public Health (COVID-19 General) Order 2021. Further to the NSW Government Public Health Orders, on Monday 30 August 2021 the Department of Premier and Cabinet issued Circular 2021-16, Guidance for Government Sector Agencies regarding COVID-19 Vaccinations for their Employees including the following requirement: NSW Government agencies are responsible for keeping all employees and the communities they serve safe, which includes compliance with Public Health Orders. For the safety of employees and all members of the community who interact with employees, the NSW Government expects all government sector employees who can be safely vaccinated, to do so at the earliest opportunity. In complying with Circular 2021-26, Public Sector Agencies, including FRNSW, have the power to give a direction to workers to be vaccinated against COVID-19 (and to provide proof of vaccination) if the direction is: ● lawful ● reasonable ● within the scope or subject matter of the employee's employment ● provided following a risk-based assessment. As an employer, FRNSW must also comply with the following legislation: ● Section 19 of the Work Health and Safety Act (2011) [brackets in original] (the Act), which places a primary duty of care onto FRNSW to ensure, so far as is reasonably practicable, the health and safety of workers, and other persons affected by FRNSW work, is not put at risk. Section 28 of the Act places duties on workers while at work to: ● take reasonable care for their own health and safety, and take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons, and ● comply, so far as the worker is reasonably able, with any reasonable instruction that is given to enable compliance with the Act, and ● co-operate with any reasonable policy or procedure relating to heath or safety at the workplace. 3.2 Policy framework The FRNSW WHS Risk Management Framework Policy, which is informed by the Work Health and Safety Regulation (2017), [brackets in the original] requires FRNSW to work through the hierarchy of control in determining the control that most effectively eliminates the hazard or minimises the risk in any given circumstance. Application of the hierarchy of control is contained in the Risk assessment for mandating the COVID-19 vaccination for NSW workers. Through the risk assessment, FRNSW has determined the following: ● FRNSW is unable to eliminate the risk of workers catching or transmitting COVID-19 during the course of their work. ● Mandating COVID-19 vaccination is considered the highest level of reasonably practicable control available to reduce risk to FRNSW workers and others affected by FRNSW work. ● Administrative controls including physical distancing, infection prevention and control practices, diagnostic and surveillance Polymerase Chain Reaction (PCR) testing and Rapid Antigen Testing (RAT), and personal protective equipment (PPE) controls, are more effective when used in combination with COVID-19 vaccination. ● The combination of engineering, administrative and PPE controls provides the strongest level of risk mitigation against COVID-19 infection and transmission for FRNSW workers and others entering FRNSW premises, locations and worksites. 4 Policy Principles All new and existing firefighters, operational support personnel, administrative trades personnel, and contractors, consultants, vendors and visitors who enter and/or work in FRNSW premises, locations or worksite are: ● to be vaccinated against COVID-19 with Therapeutic Goods Administration (TGA) approved vaccines, and ● required to provide evidence of their vaccination status. A further condition of employment for FRNSW workers is the requirement to remain fully vaccinated against COVID-19, including consideration of approved additional/booster vaccinations in the future. FRNSW workers who have a COVID-19 Vaccine Medical Contraindication Certificate from a medical practitioner, in the form approved by the NSW Chief Health Officer, are considered to have complied with the mandatory COVID-19 vaccination. Continuation of their work in FRNSW premises will be assessed on a case-by-case basis. FRNSW, as an employer, has the power to give a direction to works to be vaccinated, including as a pre-employment requirement, and provide proof of COVID-19 vaccination if the directions is: ● lawful ● reasonable ● within the scope or subject matter of the employee's employment ● provided following a risk-based assessment. 5 Policy implementation 5.1 FRNSW Workers Upon publication of this Policy, FRNSW workers, as defined in Section 2, will not be permitted to enter FRNSW premises, locations or worksites to perform duties from 0800 hrs on 17 December 2021 unless: ● the worker has had two doses of any of the Therapeutic Goods Administration (TGA) approved COVID-19 vaccines, and ● the worker remains fully vaccinated against COVID-19, including consideration of approved additional/booster vaccinations in the future. The worker must have recorded their vaccination status in the Employee Self Service Portal (ESS) prior to 2359 hrs on 16 December 2021. This includes those on leave who intend to resume duty at, or after, 0800 hrs on 17 December 2021. Workers currently on approved long term leave of absence including parental leave, sick leave or long service leave must provide evidence of their vaccination status prior to intended resumption of duty post 17 December 2021. …. 5.2 Medical contraindication NSW Health states most people with a medical or health condition can be safely vaccinated, and all workers are encouraged to speak with their treating practitioner about their personal circumstances. An exemption to the requirements in 5.1 of the policy may be available for workers who are unable to be vaccinated due to a medical contraindication to the any (sic) TGA approved and available COVID-19 vaccines. A medical contraindication temporarily or permanently prevents people from receiving a vaccine, as it may increase their chances of a serious adverse event. Vaccination against COVID 19 does not constitute a reasonably practicable risk control for these individuals. The worker is required to enter their medical contraindication status in ESS and provide a fully complied COVID-19 Vaccine Medical Contraindication Certificate in the forms approved by the NSW Chief Health Officer (accessible via Service NSW or Services Australia) before 0800 hrs on 14 December 2021, to the Health and Safety Branch who will confirm provision of information in ESS. FRNSW workers presenting a COVID-19 Vaccine Medical Contraindication Certificate are required to work with their local FRNSW management and the Health and Safety Branch (People and Culture) to determine whether they can safely and effectively undertake tasks in FRNSW premises, locations or worksites. FRNSW will determine how best to support he health and safety of workers in the context of FRNSW operations and the health and safety of all people on the FRNSW premises, location or worksite (including external venues and workplaces). If a FRNSW worker with a COVID-19 Vaccine Medical Contraindication Certificate is unable to work safely in FRNSW premises, and is unable to work remotely, consideration will be given to identifying reasonable workplace adjustments. Health and Safety Branch must be involved in determining any reasonable workplace adjustments and/or controls required, while also considering any potential impacts on the worker's fitness for duty and any subsequent decision-making. A FRNSW worker who has a temporary contraindication to the COVID-19 vaccine must obtain their vaccination within 45 days after the contraindication no longer applies. 5.3 Therapeutic Goods Administration approved COVID-19 vaccines NSW Health supports COVID-19 vaccination following SARS-CoV-2 infection, if the individual has fully recovered from their acute illness. In these circumstances FRNSW workers should discuss their status with their medical practitioner in the context of the exposure profile of their role e.g. front-line firefighter. The reasonable accommodations that are put in place for individuals with Medical Contraindications will be periodically reviewed to ensure that they remain appropriate with consideration to: ● Updates to TGA approved and available COVID-19 vaccinations ● FRNSW worker safety ● Community safety and current Public Health Advice/Orders ● Operational requirements of FRNSW. 5.4 Absence of a medical contraindication Workers who have not provided their COVID-19 vaccination status or have not had two doses of a TGA approved COVID-19 vaccine by 17 December 2021, will be required to proceed on leave. These workers will have until 17 February 2022 to receive two doses of a TGA approved COVID-19 vaccine, or a termination of employment process may commence. FRNSW will discuss issues, process steps and circumstances directly with individual workers. … 5.7 Managing non-compliance for workers who have not been vaccinated against COVID-19 FRNSW workers have been given reasonable notice to be fully vaccinated by 17 December 2021. It is the individual's responsibility to ensure that they have received both doses of the COVID-19 vaccination by 17 December 2021 and to meet and comply with the requirements outlined in this policy. If a FRNSW worker is unwilling to provide evidence of their COVID-19 vaccination status, or a COVID-19 Vaccine Medical Contraindication Certificate, FRNSW can direct the worker to provide evidence of their COVID -19 vaccination status and to not attend FRNSW premises, locations or worksites, and not to engage in FRNSW duties until evidence of vaccination is provided and policy requirements are adhered to. Reasonable directions Managers, commanders and supervisors are expected to monitor vaccination status reporting for their teams and instigate appropriate action where there is non-compliance. The Health and Safety Branch will support managers by monitoring records of vaccination to ensure compliance. Where individuals do not comply within the required timeframe, they will be issued with the direction to comply. If workers refused to provide evidence or advise they are non-compliant with this policy, managers, commanders and supervisors should discuss this with the worker and advise them they are unable to remain on FRNSW premises, locations and/or worksites, or to engage in FRNSW duties. 17 December 2021 Once the prescribed mandatory vaccination date has been reached at 0800 hrs on 17 December 2021, all workers who are non-compliant with this policy will be directed not to attend for duty or enter the workplace and will be encouraged to immediately access their existing accrued personal leave entitlements (annual/recreation leave, long service leave, consolidated leave or leave without pay), or a combination of these leave types. Sick Leave, Personal Carer's and Special Leave are not available to cover leave due to non-compliance with this policy. Failure to declare vaccination status for the purpose of accessing leave may be in breach of the Fire Brigade's Regulation 2014 and/or the Code of Conduct and Ethics and may result in misconduct action being taken in accordance with Division 2 section (35) (2) of the Fire Brigade's Regulation 2014 or section 69 of the Government Sector Employment Act 2013. Management action Workers will be subject to management action if they fail to comply with COVID-19 vaccination requirements by the required timeframes, including: ● Mandatory COVID-19 vaccination ● Mandatory COVID-19 vaccination status reporting ● COVID-19 Vaccine Medical Contraindication Certificate submission (where applicable) These workers will be required to remain on leave until they are contacted by FRNSW with further instruction. The worker will be contacted within 14 days after entering onto leave. It may be determined that the worker has refused to comply with a reasonable direction of FRNSW. Failure to comply with this reasonable direction and to remain non-compliant may be viewed as a breach of the Fire Brigade's Regulation 2014 and/or the Code of Conduct and Ethics and may result in misconduct action being taken in accordance with Division 2 section (35) (2) of the Fire Brigade's Regulation 2014 or section 69 of the Government Sector Employment Act 2013. Such action may ultimately lead to termination of employment. Permanent Firefighters Workers classified as permanent firefighters who have not provided their vaccination status will be classified as non-compliant for the period of leave. Permanent firefighters will be required to utilise a minimum of two months of leave if they have not provided their status prior to 0800 on the 17 December 2021 or a time period of leave as determined by FRNSW. This is in-line with the Procedure for Long service leave quotas for permanent firefighters during peak holiday periods and special events (Version 03 - 5 December 2012). Permanent firefighters within a Clause 28 area who have not provided their vaccination status will be transferred to an alternative SAM board within their Clause 28 Transfer Register Area. Clause 28 Areas Any permanent firefighter vacancies within a Clause 28 area resulting from this action will be filled through the normal country relief process. If the permanent firefighter is not able to comply with policy requirements within a period of two months from 17 December 2021, Zone Management will review and may consider this position is vacant and initiate filling of this position through the accepted transfer register process as prescribed in the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2021. Should a permanent firefighter within a Clause 28 Transfer Register Area (who has not provided their vaccination status) subsequently provide evidence of compliance within the two month period, they will be redeployed to a station within the Transfer Register Area they were assigned to, prior to the prescribed mandatory vaccinated date of 17 December 2021. GSA Areas Any permanent firefighter vacancies within GSA areas resulting from this action will be filled through the relevant transfer process or as applicable. Any firefighters waiting for a vacancy to transfer to that station will be considered by Zone Management to be appointed on a permanent basis. This will be a decision made by Zone Management to ensure the maintenance of staffing is sufficient to maintain operational capability. Where a GSA permanent firefighter (who has not provided their vaccination status) subsequently provides evidence of compliance within the two month period, they will be redeployed to a suitable alternative position to meet the staffing needs of FRNSW. Operational Support Positions Permanent firefighters within Operational Support positions who have not provided their vaccination status will be transferred to an alternative SAM board in the applicable Operational Support Directorate. Retained (On-Call) Firefighters Retained (On-Call) firefighters who have not provided their vaccination status will be recorded as non--operational within SAP/Manager Self Service. Where a Retained (On-Call) firefighter (who has not provided their vaccination status) subsequently provides evidence of compliance within the two-month period, arrangements will be made to discuss their circumstances and possible management action or return to work. ….. 6 Monitoring and review The COVID-19 IMT and/or People and Culture Directorate will monitor the Australian Vaccination Rollout Strategy and advice and directives from the Australian Department of Health and NSW Health. This policy will be reviewed if changes to Australian or NSW Government policy impact FRNSW workers or operations.
At its core, the Policy required FRNSW employees to have received two doses of a TGA approved COVID-19 vaccination by 17 December 2021, or provide by that date, a valid COVID-19 Vaccine Medical Contraindication Certificate and thereafter to remain "fully vaccinated" (including by provision of a valid COVID-19 Vaccine Medical Contraindication Certificate) (Vaccination Mandate). In these reasons I have used the terms 'Policy' and 'Vaccination Mandate' somewhat interchangeably, as did the witnesses and counsel for the parties, although strictly the Policy includes additional matters beyond the Vaccination Mandate per se.
The Policy stipulated that those workers who were non-compliant with the Policy by 17 December 2021, would be directed not to attend for duty or enter the workplace. Clause 5.4 of the Policy indicates that such workers would be "required to proceed on leave", while clause 5.7 indicates that such workers would be "encouraged to immediately access their existing accrued personal leave entitlements". Both clauses also indicated that workers would have at least a two-month grace period after 17 December 2021 (to 17 February 2021) in which to comply with the Policy, failing which "a termination of employment process may commence". The second paragraph under the heading 'Permanent Firefighters' in Clause 5.7 indicates that permanent firefighters who had not provided their vaccination status prior to 17 December 2021 may also be able to access leave entitlements for a 'time period' determined by FRNSW.
While the Policy makes clear that workers will be subject to management action if they failed to comply with COVID-19 vaccination requirements by the required timeframes, clause 5.7 of the Policy, under the headings 'Reasonable directions' and 'Management action' envisages that non-compliant individuals will be issued with a further specific direction to comply with the Vaccination Mandate, before management (disciplinary) action would be taken.
It is convenient to record at this juncture that counsel for the FBEU submitted in opening that the reason why disciplinary processes did not start immediately after 17 December 2021, and why firefighters were directed to take leave or were otherwise marked as non-operational, rather than dismissed, was because FRNSW "was, quite sensibly, waiting to see what would happen" regarding the pandemic which, it was submitted, was reflected in FRNSW's express commitment, in clause 6 of the Policy, to review the Policy if changes to Australian or NSW Government policy impacted FRNSW workers or operations. As I understand the FBEU's submissions, it considers that FRNSW did not want to immediately dismiss non-compliant employees, in case the Vaccination Mandate could be abandoned at some point in the future and unvaccinated employees returned to full service. However, there was no evidence before the Commission to support this view and I could equally infer, given the minimum two-month grace period allowed for in the Policy, combined with the anticipated giving of a further individual direction to comply with the Policy, and the fact that FRNSW has sought recommendations in these proceedings the effect of which would be to allow workers who belatedly received the vaccine to continue their employment, that FRNSW was simply allowing its workers more time to comply with the Policy (by having two doses of a COVID-19 vaccine), without having them suffer economic hardship in the meantime.
Rather, it seems that it was the FBEU, or at least some of its members who did not comply with the Policy, who were "waiting to see what would happen" with respect to the Policy and that they hoped, following a review in due course, that the Policy would be abolished or significantly amended, such that their non-compliance with the Policy would no longer be an issue and they would be permitted to return to work. It would appear that the dashing of this hope, following the review in July 2022, is the foundation of this dispute.
As explained in more detail below, initially the FBEU had concerns regarding a perceived lack of consultation in the course of the review of the Policy and sought the Commission's assistance in that regard. While that remains a concern of the FBEU, ultimately it complains that the outcome of the review, namely the retention of the Policy, is unreasonable (including for lack of proper consultation) and hence any dismissal of a worker, now, for not complying with the Policy would be unfair and should be prevented.

[5]

The Introduction of the Policy

Employees were first notified of the decision to introduce the Vaccination Mandate on 11 October 2021 via an email sent by Commissioner Baxter to all FRNSW staff. The actual Policy document was finalised and published on FRNSW's COVID-19 internet portal on 3 December 2021.
Although no challenge is made to the Vaccination Mandate prior to its review in mid-2022, it is necessary to set out in a little detail the events that led to its creation and initial introduction in late 2021. I do not consider it necessary, as it is common knowledge, to set out a detailed history of the impact of the COVID-19 pandemic in New South Wales generally, despite of course, this being the ultimate catalyst for the Vaccination Mandate. It is sufficient for present purposes to note the following, uncontroversial facts: 1. public health orders (PHOs) in response to the COVID-19 pandemic began being issued in New South Wales in March 2020; 2. with the exception of a limited number of FRNSW workers who work for or with Ambulance NSW as community first responders, no PHO has ever been issued which specifically required firefighters to be vaccinated, however on 30 August 2021 Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (Delta PHO) came into effect and relevantly provided that authorised workers (which included firefighters) who lived in an 'area of concern' were required to have received at least one dose of a COVID-19 vaccine (or have a medical contraindication certificate) in order to leave the area of concern for the purposes of work (persons who were not an 'authorised worker' were otherwise prohibited from leaving an 'area of concern'); 3. in February 2021 FRNSW workers were given priority access to COVID-19 vaccines under the Australian Government's COVID-19 vaccine national roll -out strategy; 4. the FBEU was consulted in respect of the Vaccination Mandate and the Policy prior to its introduction in December 2021; 5. such consultation included attendance at COVID-19 Incident Management Team (IMT) meetings, which, from on or around March 2020 occurred twice a week, and from early 2022 occurred once a week; 6. prior to the introduction of the Vaccination Mandate, FRNSW used a variety of measures to manage risks presented by COVID-19 including: 1. the use of personal protective equipment such as face masks and eye protection; 2. sanitisers and disinfectants; 3. physical distancing; 4. promoting personal hygiene, temperature testing and voluntary vaccination; 1. on 2 July 2021, FRNSW issued version 1 of the Policy for consultation, which stated that vaccination was voluntary, but may be a mandatory requirement for participation in some duties, such as overseas deployment; 2. on 30 August 2021 the Department of Premier and Cabinet issued Circular 2021-16, Guidance for Government Sector Agencies regarding COVID-19 Vaccinations for their Employees (which is referred to in the Policy as set out in paragraph [11] above); 3. following receipt of Circular 2021-16, FRNSW's Executive Leadership Team (ELT) commenced preliminary discussions with respect to revising the Initial Policy for the purpose of mandating COVID-19 vaccination for all FRNSW staff, contractors and volunteers, subject to the outcome of a risk assessment; 4. on 17 September 2021, Commissioner Baxter announced by way of a video sent to all staff via email that FRNSW was considering mandating COVID-19 vaccination. The email contained a link to an online survey to allow FRNSW staff to provide feedback; 5. in total, 1003 responses were received to the survey, with 70% of respondents indicating that they were double vaccinated, with a further 18% indicating they had received one dose. (There was no evidence as to what percentage of the total workforce of FRNSW responded to the survey). While a clear majority indicated that that they would feel safe or very safe if mandatory vaccinations were introduced for all staff, the most popular measure for making respondents feel safe or very safe was "increased cleaning and hygiene". Around 87% of respondents said that they worked in a role which has "physical interactions with stakeholders and/or members of the public"; 6. on 8 October 2021 FRNSW provided a copy of the first version of a risk assessment (version 1) titled 'Assessing Risk of making COVID-19 vaccination mandatory for all staff' to the FBEU and other relevant unions; 7. on 11 October 2021 Commissioner Baxter notified all staff via email that a decision had been made to introduce the Vaccination Mandate and an article with respect to the Vaccination Mandate was uploaded to FRNSW's intranet; 8. on 5 November 2021, Chief Superintendent Murphy provided FBEU secretary, Leighton Drury with a copy of the draft mandatory vaccination Policy and invited feedback from the FBEU; 9. during the period 5 November 2021 - 22 November 2021 FRNSW engaged in a period of consultation regarding the Policy with each of the relevant unions, including the FBEU, FRNSW Health and Safety Representatives (HSRs) and directly with employees; 10. on 29 November 2021 an extraordinary meeting of the State Health and Safety Committee was held to undertake additional consultation regarding the risk assessment and the Policy; 11. on or about 30 November 2021 version 2 of the risk assessment was finalised, which took into account various matters which had been raised by workers and the HSRs during the consultation process; 12. the finalised Policy was published on the FRNSW COVID-19 Portal on 3 December 2021; 13. on 3 December 2021 FRNSW provided a copy of version 2 of the risk assessment to all staff by email.
On 15 December 2021 information about the Policy was published in a publication called "Commissioner's Orders". According to FRNSW this gave it the status of a 'Commissioner's Order' within the meaning of regulation 4 of the Fire Brigades Regulation 2014. Regulation 4 provides as follows: 4 Commissioner's Orders (1) The Commissioner may, by order in writing, issue, amend or revoke instructions with respect to the efficiency, discipline and good conduct of firefighters. (2) The instructions may be published under the title of "In Orders" or "Standing Orders". (3) The Commissioner must take steps to ensure that all current In Orders and Standing Orders are brought to the attention of all firefighters.
The publication "Commissioner's Orders" dated 15 December 2021 contains numerous items, most of which could not be characterised as 'instructions with respect to the efficiency, discipline and good conduct of firefighters'. None of the items in the 15 December 2021 edition of the "Commissioner's Orders" are titled 'In Order' or 'Standing Order'. For example, there is a section headed 'Firefighter Notices', which includes notices of vacancies, appointments, promotions, new members appointed to brigades, relinquishment of rank, transfers, retirements, separations and an honorary list. Another section headed 'Training' has a notice regarding a '2022 Urban Search and Rescue (USAR) Category 2 Rescue Technicians' Course' and advised the closing date for applications.
Four items are published under the heading 'Policies', including an item titled 'COVID-19 Vaccination Requirements Policy'. That item reads as follows: POLICIES COVID-19 Vaccination Requirements Policy The COVID-19 Vaccination Requirements Policy (Version 02) has been published on the intranet. Key Points This policy states FRNSW's COVID-19 vaccination requirements to provide a COVID-19 safe work environment for our people and to maintain capability and capacity for service delivery to the community. Key points include: ● All new and existing firefighters, operational support personnel, administrative and trades personnel, and contractors, consultants, vendors and visitors who enter and/or work in FRNSW premises, locations or worksites are: ● required to be vaccinated against COVID-19 with Therapeutic Goods Administration (TGA) approved vaccines by 0800 hrs 17 December 2021, and ● required to provide evidence of their vaccination status by 2359 hrs on 16 December 2021. ● FRNSW workers who have a COVID-19 Vaccine Medical Contraindication Certificate from a medical practitioner, in the form approved by the NSW Chief health Officer, are considered to have complied with the mandatory COVID-19 vaccination. Who needs to read the policy? All FRNSW workers, including firefighters, operational support personnel, administrative and trade staff, Community Fire Unit volunteers, Band members, consultants and contractors need to read and comply with this policy. Rescindments This policy rescinds: ● the COVID-19 vaccination policy (Version 01). ● Commissioner's Orders 2021-13, COVID-19 vaccination policy.
I had the following exchange with counsel for FRNSW regarding the "Commissioner's Orders" publication during closing submissions: COMMISSIONER: I just need some clarification on this: I think p 177 is the front page of what I understand is effectively a weekly or a regular publication which goes out under the heading, "Commissioner's Orders"? MINUCCI: It is a document that is put out on 15 December which records the Commissioner's "instruction", as we have put it ‑ that is, it is a document that is issued, we say, in accordance with the Commissioner's power under the regulations. COMMISSIONER: All right. This document generally doesn't contain exclusively Commissioner's orders within the meaning of reg 4, does it? It has got things like vacancies on p 10, for instance. MINUCCI: Yes. COMMISSIONER: They are not Commissioner's orders are under reg 4, are they? MINUCCI: No. COMMISSIONER: And correct me if I'm wrong, reg 4 in subs (2) refers to the fact that "the instructions may" ‑ pausing there, I accept it is "may" ‑ "may be published...to all firefighters". There is nothing in this particular publication of 15 December 2021 that is headed an "in order" or a "standing order". Do you accept that? MINUCCI: Yes. COMMISSIONER: What we have is ‑ the first items are policies and of course, the COVID‑19 Vaccination Requirements Policy is the first one that is identified. It doesn't actually say anywhere in there that there is an order in the nature of an in order or a standing order, does it? MINUCCI: No, I accept that. COMMISSIONER: And you say, do you, as I understand it, that the instruction, which you say is an order under reg 4, is the paragraph that is found under the heading, "Who Needs to Read the Policy?"? MINUCCI: I say it is that page headed, "Policies", but yes, in essence, the effective‑‑ COMMISSIONER: The only words that contain any particular "direction" is in that paragraph, isn't there? MINUCCI: Is under "Who Needs to Read the Policy?", yes. COMMISSIONER: And so, as I understand the case Fire and Rescue is putting, that particular paragraph where it says, "all Fire and Rescue New South Wales workers" ‑ and I won't read all of them, but then it says ‑ "need to read and comply with this policy". So, that is what they were ordered to do; is that right? MINUCCI: Yes. COMMISSIONER: Okay and that is the operative thing, you say, that then potentially workers of Fire and Rescue may face disciplinary action or potentially dismissal for failure to comply with that particular instruction? MINUCCI: On my current instructions, yes. COMMISSIONER: It seems to be a rather hidden instruction for such a serious ramification, isn't it? MINUCCI: I don't accept that, Commissioner, because the policy was communicated and people were aware of it, and they then get orders from the commission that's circulated, which then confirmed they were required to comply with it. I do not accept that it is hidden in that sense.
I will return to this topic below.
The evidence of Chief Superintendent Graham Kingsland, who performed the role of Incident Commander within the IMT, (but was and is not, a member of the ELT), was that throughout the COVID-19 Delta outbreak FRNSW continued to monitor and distribute to all staff, advice received from the Australian Technical Advisory Group on Immunisation (ATAGI). The ATAGI advice to which FRNSW referred and which was distributed to all staff, was tendered in evidence. While there is a lot of information in the various advices, not all of which is necessarily fully comprehensible to a lay person, I accept that as at December 2021 the advice from ATAGI, upon which FRNSW relied and which informed the risk assessments prepared up to 3 December 2021 and the Policy, stated that: 1. COVID-19 vaccination is the best way to protect against severe illness and death from COVID-19; 2. the benefits of vaccination with COVID-19 Vaccine AstraZeneca strongly outweigh the risks of adverse effects in those ≥ 60 years and that vaccination is essential for this group in the context of an outbreak; 3. in the context of a COVID-19 outbreak where the supply of Comirnaty (Pfizer) is constrained, adults younger than 60 years old who do not have immediate access to Comirnaty (Pfizer) should re-assess the benefits to them and their contacts from being vaccinated with COVID-19 Vaccine AstraZeneca, versus the rare risk of a serious side effect; 4. the benefits to the individual of being vaccinated include avoiding severe COVID-19 outcomes, such as hospitalisation, intensive care unit admission and death, as well as chronic post-COVID-19 conditions ('long COVID'); 5. other benefits of vaccination include reducing the risk of passing the virus to close contacts including family, friends and work colleagues, and the potential to help reduce community spread of the virus; 6. when the virus is spreading in the community it is critical that as many people as possible are vaccinated as quickly as possible; 7. the increased transmissibility of the Delta variant of SARS-CoV-2 makes control of outbreaks using public health measures more difficult and increases the risk of seeding additional COVID-19 outbreaks; 8. there was some evidence to suggest that infection with the Delta variant may be associated with more severe disease, as indicated by hospitalisations, particularly in younger people; 9. evidence suggests that a first dose of a COVID-19 vaccine reduces symptomatic infection and transmissibility, with the protective effect starting to 2- 3 weeks after vaccination; 10. for both vaccines then available (AstraZeneca and Pfizer) completion of two doses is required to attain optimal and durable protection from COVID-19 and its complications; and 11. review of data on the efficacy, effectiveness and safety of additional doses of vaccines was currently being undertaken and ATAGI anticipated that additional vaccine doses may be recommended in the future.
The evidence of Chief Superintendent Kingsland was that COVID-19 vaccination was considered to be the highest work, health and safety control measure available and was reasonably practicable to implement. Consequently, the 3 December 2021 risk assessment recommended mandating COVID-19 vaccination as a 'higher order' control in an effort to manage the growing risk presented by COVID-19. According to Chief Superintendent Kingsland it was apparent from the risk assessment and the ATAGI advice that public health measures and lower-level controls alone would not be sufficient to mitigate the risk posed.
As noted above, the risk assessment is titled "Assessing risk of making COVID-19 vaccination mandatory for all FRNSW staff'. The title, as it seems was subsequently acknowledged, was a misnomer, as the risk assessment primarily concerns the risks posed by COVID-19 generally, rather than the risk of making vaccination mandatory. For instance, the risk assessment identified the risk of workers suffering serious illness, including long-term serious adverse health consequences and death, in the event that the disease is transmitted to them by a member of the public or a co-worker worker while at work. That said, specific risks associated with making vaccination mandatory were also included, such as psychosocial hazards due to co-workers not agreeing about COVID-19 vaccination.
In any event, the risk assessment of 3 December 2021 identified the Vaccination Mandate as a "Level 2: Engineering" risk control to be implemented, which would reduce the then risk rating arising from numerous identified hazards related to the pandemic from 'High (19)' to 'Mod (15)'. A sample of the identified risks arising from various hazards in relation to which the Vaccination Mandate was regarded as an appropriate control included: ● COVID-19 could be transmitted from a member of the public to a FRNSW worker resulting in serious illness (including long-term serious adverse health consequences even for those who recover) and death in extreme circumstances. ● A FRNSW worker could transmit COVID-19 to members of the public, possibly including at-risk populations, during the course of their duties, resulting in serious illness (including long-term serious adverse health consequences even for those who recover) and death in extreme circumstances. ● COVID-19 infection could be transmitted to other firefighters. All potentially affected workers would be required to isolate and the station be taken off-line for deep cleaning. This would affect critical emergency service delivery and could increase the number of firefighters made ill (including long-term serious adverse health consequences even for those who recover) and death in extreme circumstances. ● A FRNSW worker could be exposed to COVID-19 resulting in serious illness (including long-term serious adverse health consequences even for those who recover) and death in extreme circumstances. ● A FRNSW worker could inadvertently transmit COVID-19 to other FRNSW workers, family members or members of the community after having been responded or deployed at short notice to a location where there may be some cases of COVID-19.
It may be noted at this juncture that the FBEU did not challenge the existence of these risks, but it did challenge the risk rating said to arise from the identified hazards, as at June/July 2022.
The risk assessment contained the following notation at the end of the notes on the first two pages of the risk assessment: "The risk assessment will be revised as required when Public Health Orders change or in response to changes to advice provided by Australian Government Department of Health, NSW Health and/or the Therapeutic Goods Administration."
After publication of the Policy in December 2021, the risk assessment was revised such that the identified proposed/additional risk controls were recorded as risk controls actually in place. Thus, vaccination of all staff, which had been proposed in the risk assessment as an additional risk control, was recorded as a risk control "in place".
On 6 January 2022 FRNSW published version 3 of the risk assessment, which was now more appropriately titled "COVID-19 WHS Risk (following vaccine mandate for all FRNSW staff)". Notably the risk assessment now stipulated that the term "certified COVID-19 vaccine medical contraindication" used in the risk assessment "refers to a current COVID-19 vaccine medical contraindication which is recorded on the approved NSW Health COVID-19 vaccine medical contraindication form … in a manner which is consistent with the footnotes of that form and the associated ATAGI guidelines." No amendment to this effect was made to the Policy.
Version 3 of the risk assessment includes the following note: Version 3 was provided to HSR for WHS consultation. Six responses confirmed that the risk assessment adequately addresses health and safety concerns, and eight responses did not feel that the risk assessment adequately addresses health and safety concerns. Those responses suggested removal of the COVID-19 vaccination mandate. No specific changes were made to the risk assessment in response to the request to reverse the mandate.
On 25 March 2022 version 4 of the risk assessment was completed to take account of further changes to the PHOs, vaccine efficiency data and updated ATAGI advice. The update included reference to an ATAGI advice regarding vaccine efficiency issued on 10 February 2022 which advised that a booster dose was required to be considered 'up to date' for COVID-19 vaccination.
While the actual ATAGI advice dated 10 February 2022 was not put in evidence, extracts from the advice were included in the 25 March 2022 risk assessment (which was in evidence) and included the following: Early estimates of vaccine effectiveness against infection have similarly indicated lower initial vaccine effectiveness from two doses of Pfizer or AstraZeneca vaccine (36-88%) against the Omicron variant which then wanes rapidly to 0-34% from about 4 months after the 2nd dose. A Pfizer booster dose appears to restore moderate levels of effectiveness against symptomatic Omicron infection (71-76%). Vaccine effectiveness against hospitalisation with Omicron shows a similar pattern of waning, falling to 52% after a two-dose primary series. A booster dose increases vaccine effectiveness against hospitalisation to 88% (95% CI 78-93%). There have been no safety signals of concern for an earlier booster dose given from 3 months after the primary series where this is used overseas (e.g. United Kingdom). Receipt of the primary schedule and a booster dose will provide individual protection from infection and hospitalisation with the Omicron variant, although these effects will wane. It is known that protection against onward transmission also wanes over several months after completing the primary series for the Delta variant. This may be similar with the Omicron variant. It is expected that a booster will increase protection against symptomatic infection and this should lead to a parallel increase in protection against transmission, therefore providing some indirect protection to the wider population. However, evidence to confirm this, and the duration of protection, is awaited.
As I explain later in this decision, the FBEU put into evidence a report published by the UK Security Agency on 3 February 2022, which, due to its date, the similarity of the information contained in the report and its footnoted reference in two latter ATAGI advices dated 7 July 2022 and 25 August 2022 respectively, which were also tendered in evidence, the latter by the FBEU, I infer is the source of much of the information set out in the above extract from the ATAGI advice of 10 February 2022.
Reference was also made in version 4 of the risk assessment to information obtained from the TGA as follows: "Also, the information from the Therapeutic Goods Administration with regard to potential medical reaction to COVID-19 vaccination, to be considered by FRNSW, have been considered by FRNSW, have been removed from the body of the risk assessment and included below: 'In Australia, the Therapeutic Goods Administration (TGA) has been rigorously assessing potential COVID-19 vaccines for safety, quality and effectiveness.' (https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/is-it-true/is-it-true-were-covid-19-vaccines-developed-too-quickly-to-be-safe) The TGA have identified that "Vaccination against COVID-19 is the most effective way to reduce deaths and severe illness from infection. The protective benefits of vaccination continue to far outweigh the potential risks." With regard to serious side effects of COVID-19 vaccination, the TGA provide the following: (https://www.tga.gov.au/periodic/covid-19-vaccine-weekly-safety-report-18-11-2021) ● "Vaccination against COVID-19 is the most effective way to reduce deaths and serve illness from infection. The protective benefits of vaccination continue to far outweigh the potential risks.""
Reference was also made in version 4 of the risk assessment to a peer reviewed article published in the New England Journal of Medicine on 23 March 2022 titled "Safety and efficacy of a third dose of BNT162b2 COVID-19 vaccine". According to the extract published in the risk assessment the article supported the administration of a third dose, but the research (which involved over 10,000 people) indicated that the primary two-dose vaccine series still provided some protection from severe disease: "Although protection against infection and mild disease appeared to wane in the months after vaccination, the effectiveness against severe disease and hospital admission remained high."
At the risk of repetition, the FBEU accepts that it supported the introduction of the Policy and the Vaccination Mandate and raised no concerns until 10 June 2022.

[6]

The Review of the Policy

In late April 2022 FRNSW considered it appropriate to review the suitability of COVID-19 control measures, including with respect to the Vaccination Mandate. According to Chief Superintendent Graham Kingsland this was in light of the rapidly changing COVID-19 environment, updated ATAGI advice and removal of many PHOs.
In late April 2022 Chief Superintendent Kingsland made contact with his counterparts within the NSW Government emergency services cluster to query the nature of their COVID-19 controls, including whether they intended to maintain a mandatory vaccination policy and/or mandate boosters. He ultimately ascertained that the Rural Fire Services, NSW Police Force and the State Emergency Services had, as of July 2022, maintained a 'baseline' of two mandatory COVID-19 doses, and it seems this was a significant factor in FRNSW's decision to maintain the Vaccination Mandate.
On 14 May 2022 FRNSW held their annual open day and members of the public were permitted to attend fire stations irrespective of their vaccination status, despite this being contrary to the terms of the Policy.
On 19 May 2022, FRNSW wrote to the FBEU providing a draft updated risk assessment (version 5) and seeking feedback from the FBEU by 10 June 2022. The draft risk assessment proposed that a third (booster) vaccination dose be mandated for FRSW employees. It also provided that visitors and contractors would no longer be required to provide proof of vaccination when attending FRNSW workplaces.
Version 5 of the risk assessment does not identify that any new material was relied upon in formulating the risk assessment. Rather, it appears that the same material that was relied upon to formulate version 4 of the risk assessment was referred to. As noted above, that material had indicated that a third booster was recommended. Documents from both NSW Health and ATAGI had stated that a booster dose of COVID-19 vaccine for all Australians aged 16 years and above was recommended to mitigate against waning immunity to SARS-CoV-2 and the emergence of SARS-CoV-2 variants.
On 20 May 2022, FRNSW issued an all-staff email and an intranet article seeking feedback in respect of the draft risk assessment, including a request for staff to complete a survey on the issue of whether a third dose of COVID-19 vaccine should be mandatory. FRNSW staff who were non-compliant with the Vaccination Mandate retained access to their staff email addresses and had the capacity to engage in the survey and consultation process.
On 7 June 2022, the NSW Department of Premier and Cabinet released an updated circular entitled C2022-04 Guidance for Government Sector Agencies regarding COVID-19 vaccinations for their employees. The circular strongly encouraged employees to remain up to date with COVID-19 vaccinations.
On 10 June 2022 the FBEU provided feedback regarding version 5 of the risk assessment. In summary the feedback was as follows: 1. due to the easing of restrictions staff are unlikely to be at higher risk of COVID-19 in their employment compared to their risk of exposure in the general public; 2. there is a high level of COVID-19 vaccination and/or immunity due to infection, in the community; 3. that due to the waning effectiveness of vaccines, employees who are vaccinated either by two doses or three, are unlikely to be any more protected than an unvaccinated employee and would not pose significantly less risk in performing their role; 4. the requirement for employees to have had two COVID-19 vaccinations (and any proposal to extend this to three doses) to perform their substantive position was causing employees who have significant concerns regarding COVID-19 vaccinations, significant stress and anxiety; 5. the requirement to have a third dose of a COVID-19 vaccine was not supported by the FBEU; 6. both Queensland Fire and Emergency Services and South Australia Metropolitan Fire Service have no vaccination mandate and while Fire and Rescue Victoria does have a mandate, no non-compliant employee has been subjected to disciplinary process; 7. FRNSW was now permitting engagement with potentially unvaccinated people at community engagement events; 8. the vaccination mandate had created an additional risk to employees who have been required to perform additional work and significant overtime to account for the shortages caused by unvaccinated staff, which situation would worsen if a third dose was required - and these risks have not been sufficiently considered and mitigated in the risk assessment; and 9. in the circumstances the requirement for employees to have had two doses of a COVID-19 vaccination should be removed and instead reliance should be placed on alternative and more consistent control measures which carry less risks to employees, including use of rapid antigen tests and personal protective clothing and equipment.
Further feedback was provided by the FBEU with respect to specific hazards identified in the risk assessment and the proposed controls, the details of which are not important for present purposes.
On 10 June 2022 FRNSW's survey of staff closed with over 700 responses. According to Chief Superintendent Kingsland the majority of respondents supported maintaining a baseline of two mandatory COVID-19 vaccinations as a minimum. However, this is not what the survey showed. The survey results, which were tendered in evidence by the FBEU rather than FRNSW, showed that no question was asked which would have elicited this answer. Rather the following question was asked: With regards to FRNSW workers being 'up to date' with COVID-19 vaccination (including booster doses as they become available), what would you consider the most appropriate course of action for FRNSW to take to enhance your safety in the workplace?
The results to that question were as follows: No action - 331 (46%) Strongly encourage boosters - 141 (20%) Mandate boosters - 161 (22%) Other - 90 (12%)
It seems to me, given the available responses, a response that 'no action' be taken could be an answer given both by someone who supported a 'baseline of two mandatory COVID-19 vaccinations as a minimum' as well as by someone who opposed any kind of COVID-19 vaccination.
On 21 June 2022 the ELT met to discuss the feedback received in respect of the updated risk assessment and survey. According to Chief Superintendent Kingsland (who I note was not a member of the ELT, nevertheless I consider his evidence as to what occurred at the meeting to be reliable) the ELT agreed, in light of the survey results, that a third dose of COVID-19 vaccination would not be mandated, but that the updated risk assessment would be considered further. The minutes of the ELT meeting admitted into evidence record the following: Discussion - Case numbers continue to drop: 30 cases as of yesterday; down from 45 the week before. - Updated risk assessment (171 responses) consultation and booster survey (723 responses) - Risk assessment respondents - majority felt the assessment appropriately managed the risk. Of those who said it doesn't control the general themes were ineffective vaccination, RATs are efficient, we should continue to work from home. 20% of respondents wanted additional controls i.e. mandating boosters - FBEU Correspondence was received last week which was replicated in SITREP - calling for vaccine mandate to be overturned. Want non-compliant people to return to the workplace. Want face masks and RATs as measures instead. - Of staff who were vaccinated from the booster survey, 67% had a least 1 booster. Similar to community numbers. - Main reason for not having booster was staff didn't believe risk was high enough, or not confident in safety or effectiveness. - Majority want no further action related to boosters (46%) and 44% wanted boosters to either be mandated or strongly encouraged. Demonstrates any change to the vaccination policy could cause a backlash. … - DPC updated circular re COVID vaccinations: addition that Government Sector Employees are strongly encouraged to keep up to date with vaccinations. - Other cluster agencies looking to maintain mandate but not include booster - Next steps: evaluate risk assessment through safety team, submit through to ELT. - ELT agreed that booster should be strongly encouraged, but not mandated. Requires additional comms to explain rationale: keep things in place because pandemic isn't over and allow FRNSW to be agile and adapt as required.
There is no record of any ATAGI or other medical or scientific material being considered at the meeting. It is clear that a decision was taken at this meeting not to mandate boosters and to "keep things in place because [the] pandemic isn't over", although it was also envisaged that the risk assessment was to be evaluated by the safety team before it was finalised.
On 22 June 2022 a meeting was held with representatives of the FBEU and FRNSW to discuss the feedback to the risk assessment that had been provided by the FBEU. At this meeting Chief Superintendent Kingsland stated that no decision had been made regarding the risk assessment and the Policy and FRNSW would respond to the FBEU in writing. This is at odds with his evidence that a decision to maintain the Vaccination Mandate had been made at the ELT meeting on 21 June 2022.
During the meeting with the FBEU on 22 June 2022 Ms Krouskos of the FBEU suggested that FRNSW engage an occupational hygienist and/or subject matter expert to provide advice on the risk assessment. FRNSW was initially resistant to this proposal in circumstances where, as explained by Chief Superintendent Kingsland, FRNSW was consistently reviewing updated advice from the TGA, ATAGI and NSW Health such that in its view, as expressed by Chief Superintendent Kingsland, "there was limited utility in relying on the views of a singular expert hand-picked to give a view which supported the FBEU's advocacy in favour of a minority of [the] workforce." As discussed below, ultimately a meeting was held with the FBEU's preferred expert, who it turned out, provided support for mandatory vaccinations.
On 23 June 2022, Ryan Cleggett on behalf of FRNSW's HSRs wrote to FRNSW requesting an extraordinary meeting of the Health and Safety Committee to consult further with respect to the risk assessment. The email advised that the HSRs had appointed the FBEU as their representative. In his email Mr Cleggett proposed the engagement of occupational hygienist Prof Adrian Esterman to discuss the operation of Queensland and South Australian Fire Services which operated without a vaccine mandate and the risk assessments upon which those decisions were made, prior to completing consultation on the risk assessment.
Prof Esterman is a Professor of Biostatistics and Epidemiologist at the University of South Australia. According to Mr Cleggett, Prof Esterman is a 'subject matter expert' who was suitably qualified to give opinions regarding COVID-19 health and safety policies and risk assessments. There was no dispute that he was so qualified.
On or around 23 June 2022 FRNSW agreed to meet with Prof Esterman and representatives of the FBEU, and the HSRs on 1 July 2022.
On 24 June 2022, FRNSW provided a written response to the feedback provided by the FBEU. In short, the letter from Chief Superintendent Kingsland advised that based on the survey results "and current health advice, the Executive Leadership Team (ELT) has determined that FRNSW's vaccination mandate will remain as is (i.e. two doses of an approved COVID-19 vaccination), with booster doses 'strongly encouraged'". Responses were also given to questions that had been raised by the FBEU regarding specific hazards identified in the risk assessment and notification was given of various amendments that had been made to the risk assessment in light of the FBEU's feedback.
Four things are to be noted in respect of the Chief Superintendent Kingsland's letter: 1. there is no evidence of any further meeting of the ELT having been held since its meeting on 21 June 2022; 2. it was sent before the scheduled meeting with Prof Esterman on 1 July 2022; 3. it did not specifically address the FBEU's view that the vaccine mandate was no longer required to manage the risk of COVID-19 in the workplace, however it plainly was to be inferred, given the ELT's decision, that the ELT disagreed with this view; and 4. it indicated that FRNSW had taken the views of the FBEU into account, and as a result had made some amendments to the risk assessment.
On 24 June 2022 a copy of the amended updated risk assessment was emailed to all FRNSW staff. It is important to note that the risk assessment records the 'risk controls in place' in respect of the identified hazards using very different language to that which was used in version 2 of the risk assessment in respect of the then proposed risk controls, which risk controls where then reflected in the Policy. For example, the first hazard identified in both version 2 and version 5 of the risk assessment is described as follows: FRNSW frontline firefighters (both permanent and on-call) are required to work in close physical proximity with each other, other emergency service workers and members of the public in the course of their duties, including in metropolitan and regional areas where COVID-19 infections have been identified. FRNSW frontline firefighters (both permanent and on-call) are required to provide emergency response and community safety services in settings where the presence of COVID-19 infected people is considered to be high risk, including but not limited to: ● Hospitals and healthcare ● Aged care ● Quarantine hotels ● Prisons ● High density housing ● Airports ● Homeless shelters ● Residential disability care ● Unvaccinated populations It is not possible to maintain physical distancing while undertaking FRNSW work and PPE may not always be adequate, suitable, worn correctly, reliably, and without potential for damage or failure, to sufficiently protect workers from COVID-19 transmission and infection.
The risks associated with this hazard were identified in both risk assessments as follows: COVID-19 could be transmitted from a member of the public to a FRNSW worker resulting in serious illness (including long-term serious adverse health consequences even for those who recover) and death in extreme circumstances. A FRNSW worker could transmit COVID-19 to members of the public, possibly including at-risk populations, during the course of their duties, resulting in serious illness (including long-term serious adverse health consequences even for those who recover) and death in extreme circumstances.
The risk rating, absent any control, was identified in both risk assessments as being "Very high (22)".
Version 2 of the risk assessment identified various risk controls that were already in place (eg the existence of PHOs and the use of PPE) which resulted in the current risk rating of the risk associated with the identified hazard being 'High (19)'. Version 2 then proposed the following additional/proposed risk controls: Level 2: Engineering ● All FRNSW workers, (except those with certified COVID-19 vaccine medical contraindications) who may be required to interact with other operational FRNSW workers or members of the public in the course of their duties, are required to receive two doses of a TGA approved COVID-19 vaccine by 17 December 2021, to reduce the risk of catching and developing serious COVID-19 infection and transmitting COVID-19 to other FRNSW workers or members of the public. ● All new and existing FRNSW workers starting work after 30 September 2021, who may be required to enter FRNSW premises, interact with members of the public or with any operational firefighter or tradesperson staff in the course of their duties, will be required to provide evidence of COVID-19 vaccination prior to starting work. Level 3: Administrative ● FRNSW will give the worker 2 hours of Special Leave to attend their COVID-19 vaccination appointment if the appointment is during work hours and the worker is unable to access their flexible working arrangements (DPC Circular 2021-14). ● FRNSW, having provided a lawful and reasonable direction to workers, ask workers to provide evidence of compliance with the COVID-19 Vaccination Requirements Policy. FRNSW will manage such evidence to ensure FRNSW workers can be safely made available to attend locations where COVID-19 may be or may become prevalent. The information will be managed in accordance with the FRNSW Privacy Policy and Management Plan. ● FRNSW will maintain evidence of COVID-19 vaccination status in SAP which will enable visibility in ESS initially and subsequently in SAM for supervisors and managers responsible for operational workers.
The implementation of these additional risk controls resulted in a potential risk rating of 'Mod (15)'.
One would expect version 5 of the risk assessment, which was published over six months after version 2, to record the above proposed risk controls as risk controls 'in place'. It is the case that the proposed 'Level 3: Administrative' controls listed in version 2 are recorded verbatim in version 5 as risk controls in place, along with other measures that did not exist at the time version 2 of the risk assessment was published, e.g. support for the use of RAT tests before shifts. It is also the case that the essence of the 'Level 2: Engineering' risk controls which were proposed in version 2 are also recorded as being in place, however there are important changes, which are not reflected in the Policy. The 'Level 2: Engineering' risk controls in place (not including those that were in place at the time version 2 was published) were stated in version 5 to be: Level 2: Engineering Except those with a certified COVID-19 vaccine medical contraindication, all FRNSW workers are required to have received two doses of a TGA approved COVID-19 vaccination, to reduce the risk of transmission of COVID-19 between FRNSW workers and possible subsequent transmission to other persons and to reduce the consequences of the associated illness. ● Workers with a permanent certified COVID-19 vaccine medical contraindication are required to meet with their Manager to discuss reasonably practicable adjustments that will minimise their risk associated with COVID-19; ● Workers who submitted a temporary certified COVID-19 vaccine medical contraindication prior to 17 Dec 2021 are required to meet with their Manager, and possibly provide information to HSB, to discuss reasonably practicable adjustments that will minimise their risk associated with COVID-19; ● Workers who submitted a temporary certified COVID-19 vaccine medical contraindication after 17 Dec 2021 are required to provide additional information to HSB to determine their ongoing ability to work in FRNSW premises. …
As may be observed, there is nothing in the Policy (or version 2 of the risk assessment) that obliges workers who provided a temporary COVID-19 Vaccine Medical Contraindication Certificate, to provide additional information to HSB (Health and Safety Branch) or to any person, although the Policy did state that such persons were required "to work with their local FRNSW management and the Health and Safety Branch (People and Culture) to determine whether they can safely and effectively undertake tasks in FRNSW premises, locations or worksites." There was also no distinction in version 2 of the risk assessment between temporary and permanent certified COVID-19 vaccine medical contraindications.
Another key point of difference between the Policy, version 2 of the risk assessment, and version 5 of the risk assessment, is that the first 'Level 3: Administrative' risk control listed in version 5 is: ● FRNSW strongly encourages all workers to remain 'up to date' with COVID-19 vaccination, including booster doses as they become available.
There is no reference to booster doses in version 2 of the risk assessment, although the Policy stated (at clauses 4 and 5.1) that a FRNSW worker must "remain fully vaccinated against COVID-19, including consideration of approved additional/booster vaccinations in the future."
As noted above, in or around 10 February 2022, ATAGI advised that a booster dose of vaccine was required to be considered 'up to date' for COVID-19 vaccination. On one view, after 10 February 2022, the Policy required workers to receive three doses of the vaccine in order to be compliant. Such an approach would be consistent with the general approach to the interpretation of statutes (which of course, the Policy is not) which are considered to be 'speaking at all times' and whether expressed in the present or the future tense, will be applied to the circumstances as they arise, so that effect may be given to the provision having regard to its context, scope and purpose: Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531 at [39].
Chief Superintendent Kingsland gave evidence however, that 'fully vaccinated' should be interpreted as meaning that only two doses were required. I had the following exchange with Chief Superintendent Kingsland on the topic: Q. And so back up at part 4 after the two bullet points, and Mr Saunders took you to this paragraph, it says a further condition of employment for Fire and Rescue New South Wales workers is the requirement to remain fully vaccinated against COVID-19, including consideration of approved additional booster vaccines in the future. When this was first introduced - I've got two questions. When it was first introduced, what was meant by "including consideration of approved additional booster vaccines"? What was a worker meant to do in order to comply with the condition? A. To comply with the mandate, to the policy, they were required to have two doses of TGA approved vaccine and with the consideration that they could have booster doses as well. Q. So who was considering, them or you? A. Well, it was a consideration that it could be a place that we may have to go to at some point. Q. And is it the case - so this is still the document in place but, as I understand the exchange between you and Mr Saunders, fully vaccinated now is not [three or four doses] - one is meant to read this policy document based on when it was implemented, which at that stage fully vaccinated meant two doses? A. Yeah. Q. And we're not to interpret it based on what fully vaccinated means today? A. Yes, correct. Q. According to the terminology of ATAGI? A. Yes. The terminology has changed since the policy was written and they no longer use the term "fully vaccinated". Q. And has there been some kind of communication to the workers that that is how that's to be interpreted then? A. There has been communication to - for them to understand that they need to have two doses, not-- Q. Right, and only two and not the booster? A. Only two, yes.
While I am not required to decide what exactly was or is now required, to be compliant with the Policy, it does seem to me that there is a tension between the Policy requiring workers to 'remain fully vaccinated' (the ordinary meaning of which implies that the workers must take additional steps after become vaccinated to 'remain' vaccinated), and version 5 of the risk assessment which only 'strongly encourages' workers to remain up to date with vaccination.
At the risk of stating the obvious, the risk assessments are not a substitute for the Policy and without more, contain no relevant direction to staff.
Before leaving version 5 of the risk assessment, there is another matter requiring comment. Version 5 of the risk assessment curiously records the current risk rating, with the risk controls in place, which includes the Vaccination Mandate, to be 'High (19)' - that is, the risk rating is exactly the same as it was before the Vaccination Mandate was implemented. I had the following, unsatisfactory exchange with Chief Inspector Kingsland regarding this anomaly: Q. Then if you turn over to page 210, and actually if we go to page 207, so this is, what I understand from your evidence, this is the fourth and final risk assessment which includes updates up to March 2022, is that right? [The version referred to was in fact the fifth and final version of the risk assessment published on 24 June 2022] A. Yes. Q. And again looking at this item 1, we now have - so the same hazards are identified, the same risk, associated risk is identified? A. Yes. Q. The same original risk rating is identified but this time we now have as a risk control in place the fact that we have the policy, that is, the vaccine mandate? A. Yes. Q. But we still have a current risk rating of 19? A. Yes. Q. So doesn't that suggest that the policy of mandating two doses hasn't reduced the risk at all? A. It has reduced the risk obviously for the entire workforce now, not those identified groups. Q. Right but isn't this risk assessment directed to the entire workforce? A. Yes. Q. So there's not really a good explanation for why then the risk rating is still the same, even though we now have a significant number, and I think the surveys also demonstrate that, a significant number of people by March who have complied with the policy? A. Yes, yep. Q. But it was, nevertheless, assessed that the risk was the same? A. No, I can't make a comment on that, no.
It seems to me that the rating of the current risk as 'High (19)' must be an error, noting that version 2 indicated that the implementation of the Vaccination Mandate would reduce the risk rating to 'Mod (15)' and logically the vaccination of at around 70% of the workforce must have at least reduced, on the evidence, the likelihood of workers suffering severe illness from COVID-19, despite the waning effects of the vaccine. Nevertheless, it does raise questions as to the reliability of the risk assessment generally. This is a matter to which I will return.
Returning to the chronology of events, commencing in and around early June 2022, FRNSW commenced sending letters to non-compliant workers, directing them to resign, failing which they would be terminated. Two such letters dated 8 and 16 June 2022 respectively were admitted in evidence.
On 24 June 2022 the FBEU filed a Notification of Industrial Dispute pursuant to s 130 of the Industrial Relations Act 1996.

[8]

Developments during the course of conciliation

As I have already recorded above, following the filing of the Notification of an Industrial Dispute, FRNSW agreed to temporarily pause the "disciplinary process and the impending termination decision" regarding one or more employees who had not complied with the Vaccination Mandate "to allow for the current dispute to be considered." In addition, on 29 June 2022, the FBEU and FRNSW agreed to a further process of consultation as follows: 1. on 1 July 2022, FRNSW would conduct an extraordinary meeting of the State Health and Safety Committee (SHSC) and the FBEU; 2. at least 24 hours prior to 1 July 2022, the SHSC would provide a proposed agenda for the extraordinary meeting; 3. FRNSW would allow Professor Adrian Esterman (or such other expert as nominated by the SHSC and/or FBEU) to address the extraordinary meeting and provide information relevant to the risk assessment version 4; 4. FRNSW would consider all information relevant to the risk assessment version 4 that is put at the extraordinary meeting; and 5. by no later than 6 July 2022, FRNSW to meet with the FBEU and the SHSC to advise of the result of its consideration of the information received at the extraordinary meeting.
On one view of the matter, the dispute, as notified, was resolved at that point as the FBEU had successful obtained - by agreement - the relief it had sought. However, as set out below, the FBEU subsequently determined to press for the relief that it now seeks.
The extraordinary meeting of the SHSC occurred on 1 July 2022 and Prof Esterman provided a report on various control measures relating to COVID-19 in FRNSW workplaces and answered a significant number of questions from attendees. According to Ms Krouskos at this meeting: "… Dr Esterman outlined his strong support for COVID-19 vaccinations as a control measure against the risk of serious illness and death and agreed that he saw very limited risk of adverse reaction. He also noted that in his expert opinion, further control measures are available. Dr Esterman advised that in his view the strongest control measure for any workplaces ensuring appropriate ventilation. He also stated that in his view, in the case of an unvaccinated employee, the risk of transmission (including transmission to and from an unvaccinated employee) could be mitigated appropriately through the use of daily routine testing (RAT testing was proposed however some discussion was also had regarding a possible alternative rapid PCR test which is currently being considered for use), and masks where those masts were either P2 or N 95 masks."
A copy of the minutes of the meeting, complete with comments inserted in 'mark-up' by Prof Esterman after they were written, were tendered in evidence. I consider that the minutes, as edited by Prof Esterman, provide the most accurate account of the opinions expressed by Prof Esterman. The minutes relevantly record Prof Esterman as having agreed with the following propositions, inter alia: 1. current vaccines are incredibly safe with limited adverse reactions and there is no reason why staff, particularly in an emergency services setting, shouldn't get vaccinated; 2. vaccination is recommended to provide protection against serious illness and death associated with COVID-19; 3. three doses of the vaccine (and now for those 30 years and over) provide greater protection than two doses, particularly with the emerging (very infectious) COVID-19 variants; 4. use of P2/N95 facemasks is recommended in high-risk work settings (particularly when interacting with members of the public); 5. masks are encouraged - the primary reason for wearing a mask is to protect other people/community, where an individual is infectious; 6. the accuracy of rapid antigen testing detecting COVID-19 is approximately 60 to 80% depending on the test accuracy, but require a high viral load to develop a positive result and testing over consecutive days to improve accuracy; 7. fresh air flow in the workplace is an important control and can be achieved to the opening of windows and doors, and also adjusting existing systems to increase fresh air intake; 8. CO2 monitors may be used to evaluate the level of fresh air in a room and HEPA filters and air purifiers may assist if airflow is insufficient; 9. overall, the best controls/protection was to be vaccinated, ensure boosters are up-to-date, test and wear a mask; 10. the vaccination mandate represents a sound control mechanism to protect staff and the community, particularly in an emergency services setting; 11. you can wear a high-quality mask and sit next to someone who is infectious for several hours and not get infected - wearing a mask is very effective against being infected, even when in close proximity to an infectious person; 12. vaccinated and unvaccinated workers have similar viral loads when not symptomatic. Therefore vaccinated workers are still a risk to others when entering workplaces with high risk individuals and this is why mask wearing an indoor settings is important; 13. the first action he would take to keep the workplace safe was to undertake a review of ventilation systems; and 14. he personally would feel that the risk to himself would be minimal if he was to meet someone who had taken daily RAT tests and was wearing K95 or equivalent mask and the person's vaccination status would have no bearing on his level of safety if these measures were in place.
A number of other propositions were apparently put to Prof Esterman to which he provided somewhat equivocal responses in the edited version of the minutes. The propositions put and Prof Esterman's responses are set out below with Prof Esterman's responses shown in italics: "RAT tests prior to and during shift, and the wearing of P2/KN95 masks are a suitable control for unvaccinated staff in the workplace See comment about new PCR test Vaccination has very little impact on transmission/infection of COVID-19, rather it helps to reduce the severity of symptoms/illness should someone contract COVID-19. Yes - but third/fourth dose does provide some short-term protection against infection. An individual who was wearing a P2/N95 mask and performing regular Rapid Antigen Tests is considered to be equivalent to being vaccinated. (This was stated in context of risk of unvaccinated staff returning to the workplace) Yes - but rapid PCR test would be better Protection from 3rd dose wanes over a period of 3-6 months. Yes for protection against symptomatic disease. Protection against serious illness and deaths last longer (8 or more months) Prof stated that vaccination is a good control measure to prevent serious illness, however he definitely did not indicate support for a vaccine mandate I prefer a vaccine mandate, but try and be pragmatic. Vaccinations are very ineffective to protect you against infection as this is not the purpose and matter how many doses you receive. Rather a vaccination will provide protection against serious illness and death from C19. The third and fourth dose give limited and short-term protection against infection. The most effective way to implement a surveillance testing system using RAT's is to have a regular monitoring ie daily. Yes - but rapid PCR much more accurate.
On 5 July 2022 Chief Superintendent Kingsland attended a meeting of the ELT to provide his regular weekly briefing. During the meeting he provided a summary of the 1 July 2022 meeting with Prof Esterman, an update with respect to increasing COVID-19 case numbers within FRNSW, and an update on the ongoing consultation with the FBEU. Chief Superintendent Kingsland's briefing notes record the following with respect to Prof Esterman: Professor Esterman Advice The advice provided by the Professor essentially supported the current FRNSW position. Advice included: ● Vaccinations are incredibly safe and effective ● Vaccination is necessary to provide protection against serious illness and death ● The best way to protect your workforce is to mandate vaccinations ● Three doses of the vaccine provide greater protection than two doses particularly with emerging COVID-19 variants, ● Risks associated with adverse reactions to the vaccine are extremely rare and he would only expect a few workers, if any, within fire and rescue to have true medical contraindications, ● Herd immunity does not exist with COVID-19 (due to vaccines/infections now not preventing reinfection) ● Recommend the use of a P2/N95 face mask in high-risk work settings ● Suggested respiratory fit testing unlikely to be necessary for FRNSW, ● Accuracy of Rapid Antigen Testing is approximately 60%, ● RAT require a high viral load to develop a positive result, ● RAT program requires testing over consecutive days to improve accuracy, ● Fresh air flow in the workplace is an important control ● CO2 monitors may be used to evaluate the level of fresh air in a room ● HEPA filters and air purifiers may assist if air flow is insufficient
Generally Chief Superintendent Kingsland's briefing notes accord with the minutes of the meeting with Prof Esterman that had been held on 1 July 2022. I consider the following unchallenged opinions of Prof Esterman to be particularly significant in the context of this dispute: 1. vaccines are safe and effective; 2. vaccination is recommended to provide protection against serious illness and death associated with COVID-19.
I also accept that Prof Esterman expressed a view that he 'preferred' a vaccination mandate as a 'sound control mechanism to protect staff and the community, particularly in an emergency services setting', and that he also expressed the view that three doses of the vaccine provides greater protection than two doses particularly with emerging COVID-19 variants and that booster doses would also provide limited and short-term protection against infection.
According to Chief Superintendent Kingsland, during the ELT meeting on 5 July 2022 the ELT determined that it would maintain the Policy having regard to: "(a) the survey results and feedback received from FRNSW staff overwhelmingly in favour of maintaining the controls; (b) the ATAGI and NSW Health advice in relation to the ongoing utility of vaccination in reducing severe illness and death; and (c) the desire to ensure consistency with NSW emergency services clusters who also maintained mandatory double dose vaccination policies."
While I accept that these were the factors that ELT accepted as fact and they informed ELT's decision, the first and third justifications are open to some criticism. As explained above, the survey administered in May and June 2022 did not indicate that FRNSW staff were overwhelmingly in favour of the Vaccination Mandate, although it also did not indicate the opposite. Further, I accept the FBEU's submission that "it is highly questionable as to whether reasonableness can be determined by majoritarian rule." However, the views of a particular workforce may well be relevant to any consideration of whether a particular proposed health and safety control measure is 'reasonably practicable'. I discuss this further below when considering whether the direction was in fact lawful and reasonable, but plainly, if a sufficient number of staff would rather leave their employment than implement the proposed measure, it may not be a reasonably practicable measure for an employer to take.
In relation to a desire to ensure consistency with NSW emergency services clusters, no evidence was given as to exactly why this was important. Further, the evidence established that NSW Rural Fire Service's policy at least, was not consistent with FRNSW's policy in that it allowed unvaccinated people to continue to work in certain circumstances, allowed whole brigades to apply to be exempted from the mandate and (perhaps) required workers to receive booster doses in order to be compliant.
In any event, after the hearing of this matter, on 28 November 2022, the solicitors for the FBEU, without opposition from FRNSW, provided me with a communication from the Commissioner of NSW Rural Fire Services dated 24 November 2022. In circumstances where FRNSW raised no objection to my receiving the document I have accepted it in evidence. The relevant part of the communication reads: "We have recently reviewed our COVID-19 risk assessment. As a result of this, we plan to remove the requirement for mandatory vaccination for members (staff and volunteers). This is considered to be an appropriate action given the changed (lowered) risk profile
Thus, as at the date of this decision, if not before, there is no consistency between all NSW emergency services clusters.
However, the second of the justifications for retention of the Policy, namely that ATAGI and NSW Health advice (which on the evidence was the same material that had been referred to by FRNSW when formulating version 4 of the risk assessment published on 25 March 2022) supported the "ongoing utility of vaccination in reducing severe illness and death", was made out on the evidence. While the FBEU submitted that reliance only on those earlier advices meant that FRNSW failed to properly assess the risk presented by COVID-19 in July 2022, the ATAGI advices dated 7 July 2022 and 25 August 2022 and the PHOs applicable as at July 2022 (both of which are discussed below) confirm that COVID-19 continued to pose a significant risk to public health during the period March through to August 2022.
Although it is not specifically mentioned by Chief Superintendent Kingsland as a factor informing the ELT's decision, I consider that the ELT had regard to the views of Prof Esterman, given that they were reported to them by Chief Superintendent Kingsland. The fact is, nothing Prof Esterman said provided a reason for them to revoke the Vaccination Mandate so it is not surprising that his views were not expressly referred to as a reason to maintain the Vaccination Mandate.
On 6 July 2022, pursuant to the agreed consultation process, another meeting of the Health and Safety Committee was held at which representatives of FRNSW, the FBEU and the HSRs attended. At the meeting FRNSW advised that it was of the view that Prof Esterman's presentation did not provide a basis for the removal of the Policy and that the Policy would be maintained in its current form. The FBEU requested that FRNSW engage an expert to provide specific advice on the risk assessment, however this was refused by FRNSW.
The matter returned to the Commission for conciliation and on 19 July 2022 Commissioner O'Sullivan issued a Certificate of Attempted Conciliation.

[9]

The Dispute at Hearing

At paragraph [15] of its Outline of Submissions filed on 25 August 2022 the FBEU stated that it disputes: "(a) the adequacy of the consultation process by which the risk assessment conducted as part of the 2022 review has been completed and the Policy retained; (b) the policy outcome itself; i.e. the retention of vaccination mandate; and (c) whether FRNSW can or should dismiss firefighters whose employment has continued to date on the basis of non-compliance with the Policy as at 17 December 2021."
The FBEU contended in its Outline of Submissions (at [26] and [33]) that: 1. the inadequacy of the consultation process "in the context of a serious and personally concerning decision" means that the direction, (which I understand to mean the Vaccination Mandate), is not lawful or reasonable; 2. the retention of the Vaccination Mandate (i.e. after 5 July 2022 when the ELT decided to maintain the Vaccination Mandate) was not reasonable because: "(a) none of the workers are required to be vaccinated by any State or Commonwealth regulation; indeed they have always been expressly excluded from those workers who are required; (b) there is no existing general practice of requiring vaccinations in the workplace, e.g., an annual flu shot, with vaccination requirements instead only historically attached to voluntary deployments; (c) the work does not inherently involve contact with vulnerable or infected persons, although this may happen from time to time it is an incident of the job (and indeed less common since the pandemic); (d) the workforce has not been the particular epicenter (sic) of any COVID-19 outbreak to date and is unlikely to become so; (e) control measures are available (some of which, including ventilation, are being ignored by Fire + Rescue NSW) and, … have been proven to be effective; (f) the workforce, and the general population, already has a high background level of vaccination; and (g) the workforce is segmented such that the risk posed by a person who becomes infected with COVID-19 is minimal on a whole of workplace basis."
At paragraph [34] of its Opening Submissions the FBEU submitted: Fundamentally, an unvaccinated firefighter is at this stage no more likely to contract COVID-19 in the workplace then in their private life. They are not likely to cause major - if any - disruption to the workplace if infected, and pose no more than a negligible risk to their (overwhelmingly vaccinated) colleagues.
In its Outline of Closing Submissions, at [40], the FBEU submitted that the Policy was unreasonable because: "(a) no genuine consultation was undertaken; (b) it is not supported by any coherent risk assessment, ie there is no basis upon which the Commission could conclude it manages any particular workplace risk; and (c) the other justifications relied on by Fire + Rescue are unsustainable."
Consequently, the FBEU contends that the direction contained within the Policy is not reasonable, is therefore unlawful as if "a direction is not 'reasonable' it will not be lawfully authorised by the contract" and that the dispute should be resolved by the making of an order restraining FRNSW from dismissing employees due to non-compliance with the Policy. Importantly, at paragraph [39] of its Outline of Submissions the FBEU made the following submission: "It is true that the initial non-compliance technically occurred at an earlier time. However, Fire + Rescue has - for reasons that are entirely its own - allowed the relevant employees to remain employed for six months. The dispute is whether they should be sacked now: if the policy requiring them to be vaccinated now is not reasonable, it follows that they should not be dismissed."

[10]

The Nature of the Vaccination Mandate/Policy

Before considering the substance of the dispute as articulated by the FBEU, it is helpful to examine the nature of the Vaccination Mandate/Policy.
In FRNSW's written closing submissions it was submitted that: "1. On 8 October 2021 [sic - the date was 11 October 2021], FRNSW issued a direction requiring firefighters to be fully vaccinated or to have secured appointments to be fully vaccinated by 17 December 2021. This direction was subsequently enshrined in the COVID-19 Vaccination Requirements Policy (Version 02) (the Policy). 2. The Policy set out …. 3. In order to comply with the requirements of the Policy, employees of FRNSW were directed to upload evidence of their vaccination status in the Employee Self Service Portal prior to 17 December 2021 (the Direction). Any firefighter who failed to comply with the Direction was prohibited from attending work, and on notice that they would be subject to management action which "may ultimately lead to termination of employment"…. … 5. On 15 December 2021, the Commissioner issued an instruction to firefighters pursuant to clause 4 of the Fire Brigades Regulation 2014 (NSW) (FB Regulation), requiring them to "read and comply with" the Policy (Commissioner's Instruction). It is not the Policy itself, but rather the Commissioner's instruction that compels firefighters to conduct themselves in accordance with the terms of the Policy and the Direction. 6. The FBEU has not at any stage raised an objection to the Commissioner's Instruction (as distinct from the Policy). 7. Approximately 300 permanent and retain firefighters failed to comply with the Direction, and therefore the Commissioner's Instruction, and remain unvaccinated as at 17 December 2021. As at that moment, the time for compliance with the Direction had passed and each and every one of those firefighters had committed misconduct (within the meaning of clause 33 of the FB Regulation and that common law) by failing to comply with the Direction and the Commissioner's Instruction. Accordingly, they were liable to face disciplinary sanction up to and including dismissal. That it is so, regardless of any subsequent decision to change or maintain the Policy, the Direction and/or the Commissioner's Instruction, or any order made by the Commission in the context of this proceeding.
I discussed at paragraphs [20] - [23] above my concerns as to whether, the so-called 'Commissioner's Instruction', is properly to be regarded as an 'Commissioner's Order' made pursuant to reg 4 of the Fire Brigades Regulation 2014 (NSW). Assuming for the moment it is, a failure to comply with it could amount to misconduct, as submitted by the FRNSW. This is because reg 33 of the Fire Brigades Regulation 2014 (NSW) defines misconduct to include a contravention of Part 3 of the Regulation. Within Part 3 is reg 16 which relevantly provides: A firefighter must not-- (a) disobey or disregard any lawful order made or given by a person having the authority to make or give the order, or …
Further, reg 13 provides: A contravention of this Part does not give rise to an offence but may be the subject of disciplinary action or remedial action under Part 4.
I explored the nature of the directions/instructions imposed by the Policy and the so-called 'Commissioner's Instruction' with counsel for FRNSW, Mr Minucci, during closing addresses. In relation to the Commissioner's email of 11 October 2021 he explained: "That is the employer direction that precipitates the policy."
Earlier Mr Minucci had explained that the Policy implemented both an entry requirement, which applied to all people who wished to enter and/or work in FRNSW premises, locations or worksite, employees and non-employees alike, as well as a specific obligation upon FRNSW workers to comply with the Vaccination Mandate. Mr Minucci submitted that these 'directions' were "standard directions at that point and only becomes a direction under the regulations once the instruction is issued."
Mr Minucci further explained that the reference in the Policy to the Vaccination Mandate being a 'further condition of employment' was 'infelicitous', to the extent it referred to the conditions of employment of existing employees, as the Policy did not purport to vary the terms of the workers' employment contract, but rather it was an existing term of the contact that workers comply with policies of FRNSW. We then had the following exchange: COMMISSIONER: ….. You are saying it is not incorporated into the terms and conditions of employment, so therefore, a failure to follow the policy per se is not a repudiation of the contract or a breach of the contract? MINUCCI: Well, I don't go that far, in the sense that a requirement to follow policies and procedures of the employer is a requirement of an employment contract. We would submit, it can be either express or implied in any meaningful way, a consequence of which can justify, depending upon the nature and extent of its terms, dismissal. The circumstances in which that may arise are individual and fact‑specific.
With respect, I agree with Mr Minucci's general analysis. It is well established, and not disputed in this proceeding, that there is an implied term in employment contracts that employees have an obligation to obey directions about the performance of the contracted work that are lawful, reasonable, consistent with the contract and within the scope of the employment: R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; 60 CLR 601 at 621-622; Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059; 310 IR 399 at [64] - [67]. Indeed, the obligation of an employee to obey the orders of an employer is one of the identifying features of employment: Attorney-General (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2; 85 CLR 237 at 299 - 200 (Kitto J).
It is common for many directions to be contained in policies promulgated by employers. In some cases, the obligation to obey the policies arises from an express term incorporating the policies into the contract. Such an express term may incorporate policies that might otherwise be regarded as unreasonable or about matters that would otherwise be beyond the scope of the employment. In the absence of an express term giving contractual force to a direction within a policy, to be valid the direction must meet the tests of being a direction that is about the performance of the contract to work that is lawful, reasonable, consistent with the contract and within the scope of the employment. In other words, an employee is not obliged to obey an 'unreasonable' direction unless the employee has expressly agreed to do so.
In the present case, while there is no evidence of an express term in FRNSW's employees' contracts of employment requiring them to comply with the Policy (at least in respect of those who were employed prior to 3 December 2021), there are regulations 4 and 16 of the Fire Brigades Regulation, which, prima facie, would enable the Commissioner to issue an order which could otherwise be regarded as 'unreasonable', provided it was "with respect to the efficiency, discipline and good conduct of firefighters." Consequently, FRNSW submitted that: "Once a direction is issued to firefighters in accordance with clause (sic) 16(a), firefighters are obliged to follow it unless that direction is not a "lawful order", and there are no grounds to challenge such an order on the basis that is "unreasonable". Once the Commission accepts that the Vaccination Requirement was lawful, that is the end of the matter…".
The FBEU argued that the Commissioner cannot, despite reg 4, issue an unreasonable order/direction. Its argument ran as follows: 1. pursuant to s 74(2)(a) of the Fire and Rescue Act 1989 (NSW) the regulations are, to the extent they relate to conditions of employment or discipline, subject to any award of this Commission; and 2. cl 42.1 of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2021 limits the obligations on firefighters to comply with directions to those directions which are 'reasonable'.
Ultimately, whether firefighters are obliged to follow an otherwise unreasonable order issued pursuant to reg 4, and whether any of the directions contained within the Policy or the so-called Commissioner's Instruction were orders issued pursuant to reg 4, are questions I do not need to decide, as I am of the view, for the reasons explained below, that the various directions contained in the Commissioner's email of 11 October 2021, the Policy and the Commissioner's Instruction, were lawful and reasonable directions which FRNSW's employees were obliged to comply with, pursuant to well established common law principles. That is, it is an implied term of their employment that employees of FRNSW will obey lawful and reasonable directions, including those expressed in a policy (see Chris Nightingale v Woolworths Group Limited T/A Woolworths Group [2022] FWC 2848) and the directions given in this case, for the reasons I set out below, were lawful and reasonable.
The ramifications of non-compliance however, will depend entirely on the individual circumstances of each non-compliant employee, and, if the non-compliance is a breach of an order within the meaning of reg 16 of the Fire Brigade Regulation, the provisions of reg 35 of the Fire Brigades Regulation (Dealing with allegations of misconduct) will apply.
At common law a breach of the implied term imposing the obligation to obey is an intermediate term, such that a non-serious breach of the term does not give rise to a right to terminate: Adami v Maison De Luxe Ltd [1924] HCA 45; 35 CLR 143 (at 148-149 Isaacs ACJ), (at 155 - 156, Gavan Duffy, Starke JJ). Whether the breach is sufficiently serious and of a kind to entitle the employer to terminate the employee is a matter which will require an examination of the particular direction breached and will be fact specific to each employee. It is not a matter that could be determined on a global basis or in a vacuum. I return to this topic below.
As noted in paragraph [14] above, clauses 5.7 of the Policy, under the headings 'Reasonable directions' and 'Management action' envisage that non-compliant individuals will be issued with a further specific direction to comply with the Vaccination Mandate before management (disciplinary) action would be taken. Such a provision may indicate that absent a specific direction to comply with the Vaccination Mandate (or other provision of the Policy), contravention of the Vaccination Mandate or any other direction proceeding a specific direction to comply with the Vaccination Mandate, may not justify termination, however each case of non-compliance will turn on its own facts and circumstances. I note that the minutes of the ELT meeting held on 5 July 2022 indicates that "directions letters" had been sent to 205 of the 306 'non-compliant' employees.
Of course, a difficulty now arises in that strictly construed, the Policy cannot be complied with. The deadline for getting two doses of a COVID-19 vaccine or to provide a certified COVID-19 medical contraindication has passed. When this was pointed out to Chief Superintendent Kingsland in cross examination his response was: "If they became double vaccinated, I'm sure that, you know, [it] would be seen in [a] good light because they're complying with the policy.
With respect, Chief Superintendent Kingsland's response overlooks that strictly any employee obtaining their vaccinations after 17 December 2021 remains in breach of a number of directions within the Policy and perhaps with the so-called 'Commissioner's Instruction.' What it perhaps does indicate however, together with the recommendations sought by FRNSW, is that FRNSW is prepared to regard a worker who becomes double vaccinated prior to their employment being terminated, as being compliant with the Policy.

[11]

The Onus of Proof

The FBEU contended in opening submissions that there is an onus on the employer to establish that a particular direction is reasonable. It contended that the Vaccination Mandate is not 'presumptively reasonable' and it is for FRNSW to prove that it is reasonable. FRNSW on the other hand submitted that it was for the FBEU to satisfy the Commission that the Vaccination Mandate and/or Policy was unlawful (on the basis that FRNSW also submitted that the Commissioner had the power under reg 4 to issue 'unreasonable' directions and therefore legality was the only matter to be considered).
The FBEU's position was refined somewhat in closing written submissions. The FBEU submitted, correctly in my view, that generally speaking "a burden of persuasion will fall on the party seeking to invoke the jurisdiction in a particular way." An evidentiary onus will fall upon the party seeking to establish a fact in support of their case.
However, the FBEU maintained its view that FRNSW's "approach of simply declaring the direction reasonable unless proved otherwise cannot be accepted." I disagree, to the extent the submission suggests that the FBEU does not carry the burden of establishing that the retention of the Policy from July 2022 onwards was unreasonable, so as to justify this Commission interfering with the Fire Commissioner' managerial prerogative. That said, if sufficient evidence was led by the FBEU such that it may be inferred that the Policy on and from 5 July 2022 was unreasonable, an evidential burden will shift to FRNSW to show that the retention of the Policy was reasonable.
As was explained by Campbell JA in Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [78]: If a plaintiff has the onus of proving a negative proposition, the fact that the defendant has greater means to produce evidence which contradicts that negative proposition, does not mean that the plaintiff ceases to have the onus of proof of that negative proposition. However, once the plaintiff establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred, an evidential onus shifts to the defendant to adduce evidence that tends to show that the negative proposition is incorrect. If a defendant adduces such evidence, the plaintiff must then, as part of its overall burden of proof, deal with that evidence either by submission or argument. See generally Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561; Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at [1]-[2], 371-2; Baiada v Waste Recycling & Processing Service of NSW [1999] NSWCA 139; (1999) 130 LGERA 52 at [55], 64-65. As Hunt J put it in Apollo at 565: "… provided that the plaintiffs have established sufficient evidence from which the negative proposition may be inferred, the defendant carries what has been called an evidential burden to advance in evidence any particular matters with which (if relevant) the plaintiffs would have to deal in the discharge of their overall burden of proof …. [T]he plaintiffs' burden of proof of the negative proposition for which they contend is not as difficult in this case as it might otherwise have been because of the defendant's greater means to produce evidence which contradicts that proposition."
As discussed in detail in the balance of this decision, the FBEU failed to meet its evidential and persuasive burden. In particular, it raised no challenge to the ATAGI advice, in particular its advice of 10 February 2022, upon which FRNSW relied, (as evidenced by its express reference in the fourth and subsequent versions of the risk assessment, and which was supported by the FBEU's chosen consultant, Prof Esterman), that two doses of a COVID-19 vaccine reduces the risk of severe illness and death from COVID-19. It also failed to successfully challenge the ATGAI advice that two doses of a COVID-19 vaccine may continue to provide some limited protection against infection with, and transmission of, the disease. Indeed, the ongoing effectiveness of two doses of a COVID-19 vaccine from symptomatic disease, hospitalisation, mortality, infection and transmission, was supported by the UK Heath Security Agency's report dated 3 February 2022, which the FBEU itself tendered in evidence, and which I infer formed the basis of part of the ATAGI advice of 10 February 2022. The FBEU lead no evidence that as at July 2022 any of these things had changed. On the contrary, as explained below, the FBEU lead evidence that confirmed that these matters had not changed as at July 2022.
Further, as discussed in detail below, the evidence led by the FBEU did not rise to a level where I might have considered that mandating vaccination was not a reasonable measure for the Fire Commissioner to take to reduce the risk of COVID-19. In the circumstances, there was no basis upon which I would infer FRNSW's reliance on the same material it had regard to when implementing the Policy in the instance, through to March 2022, when it decided to retain the Policy in July 2022, was misplaced, or that there was a real question as to whether the Vaccination Mandate was a reasonable measure to take in the circumstances, such that FRNSW had an evidential onus to lead additional evidence to establish the reasonableness of its retention of the Policy.

[12]

The Evidence

The FBEU read in evidence: 1. two affidavits of Andrew Grimwood, a station officer based at Bateau Bay Fire Station, dated 19 August 2022 and 23 August 2022 respectively. In summary Mr Grimwood gave evidence: 1. that he had been vaccinated for COVID-19 in line with the Policy, but that he "did not believe in vaccine mandates"; 2. that he had concerns regarding the safety of the COVID-19 vaccines; 3. as to the effect the Vaccination Mandate had had on the workforce at his workplace due to firefighters being stood down due to non-compliance with the Policy, in particular the loss of "experience, know-how and knowledge" and the difficulties encountered in finding people to relieve vacant positions particularly if the position requires specialist qualifications; 4. as to the nature of his work and the extent to which he and his crew engage with the members of the public; 5. as to the various processes his station engaged in to protect against COVID-19 including, at that time, doing a RAT at the beginning of every shift. 1. two affidavits of Daniel Murphy, a station officer at City of Sydney Fire Station, dated 19 August 2022 and 20 September 2022 respectively. In summary Mr Murphy gave evidence: 1. that he had not advised FRNSW his vaccination status, that he had concerns that to do so was an invasion of his privacy and that the only option in ESS was to enter the dates of vaccination - "you could not comply with the direction unless you have been vaccinated"; 2. that he has concerns as to the safety of the COVID-19 vaccines and the basis for those concerns; 3. that he was stood down after 17 December 2021; 4. as to the financial and emotion toll being stood down has had on him and his family; 5. as to the nature of his work and the extent to which he and his crew engage with the members of the public; 6. as to his readiness to wear a mask and complete a RAT before each shift; 1. two affidavits of Byron Riveiro, a retained (on-call) firefighter based in the Tamworth area, dated 19 August 2022 and 23 September 2022 respectively. In summary Mr Riveiro gave evidence: 1. as to his duties as a retained firefighter and the extent to which he has interaction with the public; 2. the COVID-19 measures (aside from vaccination) implemented at the stations at which he works; 3. that he has concerns as to the safety of the COVID-19 vaccines and has remained unvaccinated; 4. the financial and emotional impact of having been stood down; 5. as to his belief - based on conversations with other firefighters - that the Vaccination Mandate has caused a shortage of firefighters in his area and has put pressure on the working firefighters who "always have to be on call"; 6. as to his readiness to wear a mask and complete a RAT whenever required and his desire to return to work; 1. two affidavits of Ben Buckingham, a permanent firefighter based at Kellyville Fire Station and the secretary of the FBEU's Sydney outer west sub-branch, dated 19 August 2022 and 23 September 2022 respectively. In summary Mr Buckingham gave evidence: 1. of the work environment at Kellyville station and what he wears by way of PPE when attending an incident; 2. of having a received a 'slap tear' of the atrium ligaments in the shoulder, around January or February 2021, as a result of using a hydraulic saw while at work, of being certified unfit for work in late 2021 and of having lodged a workers' compensation claim; 3. of being issued with a medical contraindication certificate by his doctor in or around December 2021 and submitting this to FRNSW via the ESS portal, at which time his vaccination status "was marked with a green tick as compliant"; 4. of receiving correspondence from FRNSW requesting he obtain another contraindication certificate and that he provide further information regarding his contraindication; 5. that he had surgery on his shoulder on 1 March 2022, contracted COVID-19 on 17 April 2022 and was advised by his doctor in late April that there was "no point" getting vaccinated sooner than three months after contracting COVID "but the contraindication allows up to 4 months" (this evidence was limited to establishing that this is what Mr Buckingham was told, not for the truth of what he was told); 6. that he was cleared for light duties in mid-May 2022; 7. that he submitted an ATAGI contraindication form to FRNSW by email on 30 May 2022, however his vaccination status remains "pending"; 8. that he returned to work on light duties on 24 June 2022; 9. sometime in June 2022 he was asked by an "operational staffing officer" whether he would get vaccinated in October 2022 when his contraindication ended to which he responded: "The situation is changing, the environment is changing, when it comes to that point I'll have that conversation with my doctor. There are too many factors to decide now when I don't need to. I'll wait to have that discussion with my doctor"; 10. that there have been no issues with him working on light duties, unvaccinated, since June 2022; 11. that he undergoes a RAT before every shift in accordance with FRNSW policy and he wears PPE when appropriate; 12. that he is not opposed to vaccination as a health care mechanism, but he is "unsure and hesitant about MRNA vaccines and viral vectors" and while he is "confident about Novavax" he felt "that it isn't currently effective for the current COVID variants that are in Australia." He also outlined the basis, including that he has a heart arrhythmia, for his general concern as to possible adverse consequences from receiving the vaccine; 13. that he believes that people who "choose not to get the booster … will have no greater protection against COVID or contracting COVID than [he] will"; 14. that he believes he may need to sell the family home if he does not obtain alternative work; 15. that school visits and safety audits, including for the elderly, resumed in early 2022 and that his fire station had an open date in July 2022 which was open to anyone regardless of vaccination; 16. that in his experience, prior to the pandemic, "usually the only members of the public who firefighters interact with are those trapped in a car" and that "firefighters are very rarely required to administer first aid"; 17. that COVID-19 control measures had changed through 2022 such that: 1. he was not aware of any current policies/procedures around hand washing and sanitisation; 2. masks were recommended but not required to be worn; 3. special cleaning and disinfection of workplaces and trucks has stopped; 4. social distancing had stopped and "interactions have returned to pre-pandemic"; 5. rapid antigen testing was implemented and he does a RAT before shift; 1. two affidavits of Peter Field, a Senior Firefighter based at Narellan Fire Station, dated 18 August 2022 and 23 September 2023 respectively. In summary Mr Field gave evidence: 1. that he has worked for FRNSW for 37 years and his family has a long and proud history as firefighters; 2. that he is worried as to the adverse effects of COVID-19 vaccination and the impact on his health and the basis for his concerns; 3. that throughout the pandemic he has diligently used PPE and sanitation; 4. that he does not agree with the Vaccination Mandate or the requirement that he provide private health information and he is concerned about access to this information; 5. as to the work environment at the Narellan station, his work routine and the nature of his work and the extent of interaction with the public; 6. the adverse financial and emotional impact being stood down has had on him and his family and the difficulties he would face if his employment is terminated; 1. two affidavits of Dan Finney, a retained firefighter based at Bellingen Fire Station, where he holds the position of Deputy Captain, dated 19 August 2022 and 23 September 2022 respectively. In summary Mr Finney gave evidence: 1. that he runs his own business fitting commercial doors and he was required to get vaccinated under a PHO in order to install commercial doors in public places such as nursing homes, shopping centres and hospitals, but without the PHO and the Vaccination Mandate he would not have received a COVID-19 vaccine; 2. that Bellingen Fire Station is an 'on-call' only station and has around 15 firefighters available to respond to an incident; 3. that after the introduction of the Vaccination Mandate two retained firefighters resigned because they did not want to be vaccinated and another has been stood down, leaving the Bellingen station three firefighters short and in his view, "there is a higher risk of firefighters being injured because we are short staffed than there is of contracting COVID-19 in the workplace"; 4. he and some other firefighters at his station are unconcerned about working with unvaccinated colleagues, but his Captain and the other Deputy Captain hold a different view, causing, in his view, "a rift in the team at Bellingen station"; 5. as to the nature of his work and the extent to which it involves interaction with the public; 6. that he does a RAT at least every 72 hours; 7. that in his view FRNSW was hypocritical in imposing the Vaccination Mandate in circumstances where other health and safety concerns were left unaddressed, in particular in relation to ventilation and toxic fumes.
While the FBEU's witnesses down-played the extent to which they had contact with the public, it is clear that firefighters do have regular contact with the public, including, members of the public who are involved in an incident and from time to time, the elderly and persons who are sick or injured, that is, people who may be particularly vulnerable to the health impacts of COVID-19. As noted above, around 87% of respondents to the survey administered in September 2021 said that they worked in a role which has "physical interactions with stakeholders and/or members of the public".
I accept however, that a firefighter is not "constantly public facing" as stated by Chief Superintendent Kingsland in his evidence and that the 'high risk environments' identified by Chief Superintendent Kingsland, e.g. education visits to schools and age care facilities, installation and checking of smoke alarms, assisting at accidents and other non-fire incidents, including after storms and floods, are not necessarily daily occurrences and the extent of the risk of infection to the firefighter or to members of the public will vary depending on the individual circumstances of each attendance.
I consider Mr Field's evidence to be a reasonably accurate account of the extent to which firefighters engage with people other than FRNSW employees: "While working at the station, I would often get called to incidents. These incidents included house fires, bushfires, factory fires, car accidents and domestic/industrial rescue operations. This might include something as simple as helping someone who has a ring stuck on their finger. It also includes helping animals, for example when stuck in drains. We also often assist ambulance crews to lift and move people who were involved in incidents. During these incidents, we have limited interaction with persons outside FRNSW. This is because police or other emergency services are often in attendance and they usually implement barricades to block the public away from an incident. Also, we do not spend much time interacting with the public when attending to incidents and instead focused on the work required to assist." It is clear that Mr Field regarded the "public" to be persons other than persons involved in the incident. Obviously assisting someone to get a ring off their finger or assisting ambulance crews to lift and move people involved in incidents necessarily involves quite intimate contact with the persons requiring assistance.
What is also clear is that each of the firefighters who have been stood down and now face the possibility of losing their job, have suffered and are suffering significant financial and emotional distress. In light of this, I have no doubt at all that the concerns those employees have regarding the safety of the vaccines are genuinely held and/or that their personal value system is such that they are deeply affronted by their employer requiring them to undertake a procedure which pre-pandemic, would only have been required if they wished, voluntarily, to be sent on a particular deployment.
The FBEU also read two affidavits of Dimitra Irini Sophia Kroukos, senior industrial officer of the FBEU dated 19 August 2022 and 4 October 2022. Ms Kroukos' first affidavit detailed the chronology of events, the disciplinary action that has been taken against at least some of its members arising from non-compliance with the Policy and the FBEU's concerns regarding ventilation at stations, in circumstances where this is a method of reducing infection from COVID-19.
In her second affidavit Ms Kroukos put in evidence various PHOs that had been issued after she had made her first affidavit; and an updated COVID-19 advice issued by ATAGI on 25 August 2022, together with two scientific papers referred to in that advice. At the time of writing this judgment there are no operative COVID-19 PHOs in New South Wales.
In respect of the PHOs, as at 4 October 2022, the following restrictions applied pursuant to Public Health (COVID-19 General) Order (No 3) 2022: 1. face coverings were required to be worn in an indoor area of a public hospital, private health facility or residential care facility or hostel; 2. operators of residential aged care facilities were required to 'consider' the Chief Health Officer's advice in respect of various matters including whether staff, visitors and residents should be required to have vaccinations against influenza or COVID-19; 3. it was prohibited to intentionally spit or cough at public officials or other specified workers in a manner which would reasonably be likely to cause fear about the spread of COVID-19; 4. persons were required to answer questions or provide other information about their movements if asked to do so by an authorised contract tracer.
Notably cl 3 of Public Health (COVID-19 General) Order (No 3) 2022, which is identical to cl 3 of Public Health (COVID-19 General) Order 2022 dated 10 March 2022 and cl 3 of Public Health (COVID-19 General) Order (No 2) 2022 dated 7 June 2022 (being PHOs that were operative during the period that the Policy was reviewed) read as follows: The basis for concluding that a situation has arisen that is, or is likely to be, a risk to public health is as follows- (a) public health authorities both internationally and in Australia have been monitoring and responding to outbreaks of COVID-19, which is a condition caused by infection with the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), (b) COVID-19 is a potentially fatal condition and is highly contagious, (c) a number of cases of individuals with COVID-19 have been confirmed in New South Wales and other Australian jurisdictions, including by means of community transmission, and there is an ongoing risk of continuing introduction or transmission of the virus in New South Wales.
Also applying as at 4 October 2022, was Public Health (COVID-19 Care Services) Order (No 3) 2022, which required 'relevant workers' attending a residential aged care facility to be vaccinated, but which removed restrictions on unvaccinated visitors visiting a residential aged care facility, which had applied pursuant to earlier iterations of the equivalent PHO. Firefighters were not defined as 'relevant workers' and the restrictions imposed by the PHO did not apply to a person who enters a residential aged care facility to respond to a medical or non-medical emergency.
Clause 3 of Public Health (COVID-19 Care Services) Order (No 3) 2022 and its predecessors that applied during the period of the review of the Policy, also set out the basis for concluding that there was a risk to public health. The bases identified included those set out in cl 3 of Public Health (COVID-19 General) Order (No 3) 2022 and its predecessors, and then continued with the following further bases: … (d) residents of residential aged care facilities, persons with a disability and persons receiving aged care services, if infected with SARS-CoV-2, are more vulnerable to severe illness or death, (e) ensuring that employees of residential aged care facilities and other workers who come into contact with residents, persons with a disability or persons receiving aged care services, are vaccinated will reduce - (i) the risk of infection, severe disease and death of the worker, and (ii) the risk of transmission of infection from workers to residents, persons with a disability or persons receiving aged care services and other workers, (f) aged care and disability services are at risk without proportionate and appropriate mitigation strategies to protect the services.
Lastly, Ms Krouskos gave evidence regarding the decision of National Cabinet made on or about 31 August 2022, to end Mandatory isolation requirements. As noted above, there are now no PHOs concerning COVID-19 in operation in New South Wales.
In respect of the ATAGI advice dated 25 August 2022 (which of course, post-dated FRNSW's review of the Policy) the following statements contained in the advice are relevant: "During the period of Delta variant predominance, evidence suggesting that humoral immunity to the SARS-CoV-2 virus (measured by virus-specific antibody) waned over time against infection. Protection against severe illness also waned, although at a slower rate. Protection against transmission from vaccinated individuals who were infected also appeared to wane over time. A booster dose augmented protection against infection in people aged 16 years and above, and for severe disease and death across older age groups. Limited evidence suggested a booster dose also reduced the potential of infected individuals to transmit the virus to others. Since the emergence of the Omicron variant in December 2021, it has become apparent that waning of protection after two doses of COVID-19 vaccine is more rapid and pronounced. This is due to the ability of the Omicron variant to evade natural and vaccine-induced immunity. Strong evidence suggests booster doses of COVID-19 vaccines enhance protection against symptomatic disease due to the earlier sub- variants of the Omicron variant. Multiple studies have shown up to a 20-fold decrease in neutralising antibody titre against Omicron compared with wild type and/or Delta variant in sera after the primary vaccination course [i.e. two doses], which can be overcome by substantially increased antibody concentrations following a booster dose of an mRNA vaccine. This waning in antibody levels is matched by recent data from several countries suggesting that clinical protective effectiveness against symptomatic COVID-19 due to the Omicron variant wanes rapidly to quite modest effectiveness by about 4 months after 2 doses of the AstraZeneca or Pfizer vaccine. However, a substantial increase in the protective effectiveness against symptomatic disease and infection by the Omicron variant was observed after a booster dose of an mRNA vaccine (Pfizer or Moderna) among those who received either the AstraZeneca or mRNA vaccination in their primary course.
The FBEU tendered in evidence two of the reports referred to in the ATGAI report dated 25 August 2022 as the foundation for its statements concerning 'recent data from several countries'. The first report was published by the University of Edinburgh and was titled "Severity of Omicron variant of concern and vaccine effectiveness against symptomatic disease: National cohort with nested test negative design study in Scotland". The paper had not been peer reviewed and was undated, although it appeared to deal with data from 2021. The report is virtually incomprehensible to a lay-person. The conclusion of the report was: Though preliminary, our national data suggest that Omicron is substantially less likely to result in COVID-19 hospitalisation then Delta. We also show that, the third-booster dose is associated with substantial additional protection within two weeks of the additional dose, compared to two doses of vaccine received 25 or more weeks ago. This protection is greatest for Delta, but still substantial for Omicron.
The second report, which I referred to in paragraph [124] above, was published by the UK Health Security Agency on 3 February 2022 and was titled "COVID-19 vaccine surveillance report" and was similar to style of the ATAGI report in that it summarised information taken from other sources. This report provided information as to both vaccine effectiveness in the UK and the impact of the vaccination program on the population in the UK. The report considered the effectiveness of the vaccine against symptomatic disease, hospitalisation, mortality, infection and transmission. As a noted in paragraphs [36] and [124] above, it appears that this report was the source of information contained in the ATGAI advice of 10 February 2022 to which FRNSW had regard when preparing versions 4 and 5 of the risk assessment. In summary the UK Health Security Agency report stated: "Effectiveness against symptomatic disease After 2 doses of the AstraZeneca vaccine, vaccine effectiveness against the Omicron variant starts at 45 to 50% then drops to almost no effect from 20 weeks after the second dose. With 2 doses of Pfizer or Moderna effectiveness dropped from around 65 to 70% down to around 10% by 25 weeks after the second dose. Two to four weeks after a booster dose of either the Pfizer or Moderna vaccine, effectiveness ranges from around 60 to 75%, dropping to 25 to 40% from 15+ weeks after the booster. Vaccine effectiveness estimates for the booster dose are very similar, irrespective of the primary course received. Vaccine effectiveness is generally slightly higher in younger compared to older age groups. … Effectiveness against hospitalisation Several studies have estimated vaccine effectiveness against hospitalisation in older ages, all of which indicate higher levels of protection against hospitalisation with all vaccines against the Alpha and Delta variants. … Two doses of either AstraZeneca … or Pfizer … vaccines was associated with a vaccine effectiveness of approximately 25 to 35% against hospitalisation following infection with the Omicron variant, after 25+ weeks. After a Pfizer booster (after either primary vaccination course), vaccine effectiveness against hospitalisation started at around 90% dropping to around 75% after 10 to 14 weeks. After a Moderna booster … (after either primary vaccination course), vaccine effectiveness against hospitalisation was 90 to 95% up to 9 weeks after vaccination. … Effectiveness against mortality High levels of protection (over 90%) are also seen against mortality with all 3 vaccines and against both the Alpha and Delta variants with relatively limited waning. … At 25+ weeks following the second dose, vaccine effectiveness was around 60% while at two or more weeks following a booster vaccine effectiveness was 95% against mortality. … Effectiveness against infection … Studies have now reported on vaccine effectiveness against infection in healthcare workers, home care residents and the general population with the Alpha and Delta variants. Generally estimates are similar to or slightly lower than vaccine effectiveness estimates against symptomatic disease and there is evidence of significant waning in protection against infection over time. Estimates for vaccine effectiveness against infection with the Omicron variant are not yet available. Effectiveness against transmission As described above, several studies have provided evidence that vaccines are effective at preventing infection. Uninfected individuals cannot transmit; therefore, vaccines are (sic) also provide some protection against transmission. There may be additional benefit, beyond that due to prevention of infection, if some of those individuals who become infected despite vaccination are also at a reduced risk of transmitting (for example, because of reduced duration or level of viral shedding). Several studies have provided evidence of reduced risk of household transmission from vaccinated cases compared to unvaccinated cases.
Based on the above I conclude that as at 3 February 2022 studies had shown that two-doses of a COVID-19 vaccine: 1. provide some protection against symptomatic disease initially, but the protection wanes in respect of the Omicron variant quite rapidly, such that after 20 - 25 weeks the effectiveness against symptomatic disease was only 0-10%, depending on the brand of vaccine received; 2. had an effectiveness of approximately 25 to 35% against hospitalisation following infection with the Omicron variant, after 25+ weeks; 3. provide a high level of protection against mortality with relatively limited waning; 4. have an effectiveness against infection, at least with respect to the Alpha and Delta variants, which was similar to the effectiveness against symptomatic disease; and 5. are effective in preventing transmission to uninfected individuals (perhaps because the symptoms of vaccinated individuals with COVID-19 are reduced and there is less viral shedding),
It is also clear that a booster dose significantly improves effectiveness in all areas.
While there is no evidence that FRNSW had regard to the UK Health Security Agency report specifically, it did have regard to the ATAGI advice of 10 February 2022, which contained the same essential information.
As for FRNSW, it called one witness, Chief Superintendent Kingsland, whose evidence in chief comprised an affidavit sworn on 9 September 2022. The important parts of Chief Superintendent Kingsland evidence are referred to throughout this decision.

[13]

Dispute Orders pursuant to s 137(1)(c)

On its face, the order sought by the FBEU involves a considerable interference with the managerial prerogative of the Commissioner of FRNSW. The order sought amounts to a permanent injunction preventing the Commissioner from dismissing employees on the basis of non-compliance with the Policy.
Before making such an order I need to first be satisfied that I have the power to make to make such an order, and if I do, that the established facts justify me exercising my discretion to make such an order.
Section 136 of the Industrial Relations Act sets out what the Commission may do when arbitrating a dispute. It provides: 136 Arbitration of Dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following-- (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.
In this proceeding the FBEU seeks a 'dispute order under Part 2', specifically, an order pursuant to s 137(1)(c). Section 137 provides: 137 Kinds of Dispute Orders (1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings-- (a) The Commission may order a person to cease or refrain from taking industrial action. (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. (c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. (d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute. (2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer. (3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount.
FRNSW submitted that the power under s 137(1)(c) cannot be exercised on a final basis, but rather "it is a power to preserve the status quo pending final resolution of a dispute". FRNSW submitted in its written closing submissions at [25]: "An order pursuant to s 137(1)(c) is not an order capable of being made by the Commission as part of the final resolution of the dispute, because such an order would not then be "in the course of" the industrial dispute. The words "in the course of" mean "during"; that is, any order must pursuant to s137(1)(c) …be made whilst the dispute is ongoing or otherwise on foot."
I agree with this submission. The power given in s 137(1)(c) is a power that can only affect the actions of the employer during the course of the industrial dispute. Once the dispute is resolved following arbitration, any order made preventing an employer from dismissing employees could not be enforced. This is clear by the inclusion in the provision of the phrase "in the course of the industrial dispute". If s 137(1)(c) read: "The Commission may order an employer not to dismiss employees if the employer has threatened to do so", I would perhaps accept that the Commission had the power to make an order of the kind sought by the FBEU in order to resolve or to assist in resolving, the dispute. However, it is a well-established rule of statutory construction that effect should be given to every word of a provision: Project Blue Sky Inc v Australian Broadcasting Authority 194 CLR 355; [1998] HCA 28 at [71] (McHugh, Gummow, Kirby and Hayne JJ). The words "in the course of the industrial dispute" must be given work to do.
The Macquarie Dictionary (2022) relevantly defines 'course' as: the continuous passage or progress through time or a succession of stages: in the course of a year; the course of a battle.
The ordinary meaning of the phrase "in the course of the industrial dispute" in s 137(1)(c) makes it clear that employers can only be prevented from dismissing employees for a defined period of time, namely the period of the dispute. Axiomatically therefore, an order under s 137(1)(c) cannot be made to resolve the dispute before the Commission, as it would have no effect immediately upon its making. Such an order would be entirely ineffectual.
The FBEU did not take me to any authority in which an order of the kind sought by the FBEU has been made and I could not find any.
I therefore conclude that I do not have the power to make the order sought by the FBEU and on that basis I refuse to grant the relief sought.
Further support for this view is obtained from ss 138 and 139 of the Industrial Relations Act and judicial commentary regarding the exercise of the power given by s 137(1)(c).
Section 138 prescribes conditions to the making of dispute orders. It provides: 138 Making of Dispute Orders (1) A dispute order may be made only against-- (a) a party or likely party to the industrial dispute, or (b) a member, officer or employee of an industrial organisation that is such a party or likely party, or (c) a person engaged, or likely to be engaged, in a secondary boycott in connection with the industrial dispute. (2) A dispute order-- (a) must clearly identify the persons against whom the order is made and who are bound by the order, and (b) must state a time within which the order is to be complied with or state a period during which it remains in force, and (c) may be varied or revoked by the Commission at any time. (3) If an employee is reinstated or re-employed under this Part, the Commission may order that the period of employment of the employee with the employer is taken not to have been broken by the dismissal.
Section 138(2)(b) indicates that dispute orders which are in the nature of an injunction can only remain in force for a stated period of time. It may be observed that the order sought by the FBEU does not comply with s 138(2)(b). In oral closing submissions counsel for the FBEU observed that the Commission is not bound by the precise wording of the order sought by the FBEU and I may consider some other wording to be more appropriate. At the least, it seems to me that the order would need to state a period during which it remained in force. That presents a difficulty in circumstances where no submissions were made as to what that period might be and it is not immediately apparent to me what that period would be, assuming I otherwise considered a dispute order pursuant to s 137(1)(c) should be made. However, as I do not consider that a dispute order should be made, the issue does not arise.
Section 139 provides: 139 Contravention of Dispute Order (1) The Supreme Court, on application, must deal expeditiously with an alleged contravention of a dispute order. The application may be made by the person who applied for the order or any other person who was authorised to apply for the order. (2) Before dealing with an alleged contravention of the order, the Supreme Court is required to summon the person alleged to have contravened the order to show cause why the Supreme Court should not take action for the contravention. (3) The Supreme Court may, after hearing any person who answered the summons to show cause and considering any other relevant matter, do any one or more of the following-- (a) dismiss the matter if it finds that the dispute order was not contravened or if it finds that the circumstances were such that the Supreme Court should take no action on the contravention, (b) cancel the approval of an enterprise agreement, (c) suspend or modify for any period all or any of the entitlements under an industrial instrument, (d) cancel the registration of an industrial organisation or take any other action authorised by Division 2 of Part 3 of Chapter 5, (e) impose a penalty on an industrial organisation or an employer as provided by subsection (4), (f) make any other determination that the Supreme Court considers would help in resolving the industrial dispute. (4) The maximum penalty that may be imposed on an industrial organisation or employer is-- (a) except as provided by paragraph (b)--a penalty not exceeding in total $10,000 for the first day the contravention occurs and an additional $5,000 for each subsequent day on which the contravention continues, or (b) if a penalty has previously been imposed on the industrial organisation or employer for a contravention of an earlier dispute order--a penalty not exceeding in total $20,000 for the first day the contravention occurs and an additional $10,000 for each subsequent day on which the contravention continues. (5) Any such penalty may be recovered in the same way as a penalty imposed by the Supreme Court for an offence against this Act.
The fact that a contravention of a dispute order may be enforced by way of a civil penalty indicates that they are not to be made lightly. Walton J in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association [2022] NSWSC 1178 expressed the view (at [36]), following analysis of the relevant provisions and the Second Reading speech of the 1995 Bill (New South Wales, Parliamentary Debates, Legislative Council, 23 November 1995 at pages 3850-3851 (The Hon Jeffrey W Shaw QC)), that "Parliament intended that the making of dispute orders to be a last resort." He went on to provide the following helpful guide regarding dispute orders generally: 37. The use of the word "may" in ss 136(1) and 137(1) indicate the discretionary nature of the power to make dispute orders: NSW Department of Education and Training v NSW Teachers Federation; Re Student Reports Bans (2006) 157 IR 329; [2006] NSWIRComm 346 at 336 [36] (Deputy President Harrison) ("Education Department v NSWTF [2006]"). In so doing, the Commission must have regard to the public interest, objects of the Act and the likely effect on the economy of New South Wales: ss 3, 146(2). 38. It must be remembered that dispute orders are not lightly made by the Commission: City of Botany Bay v Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division [2000] NSWIRComm 85 at [8] (Schmidt J) ("Botany Bay v FMSCEU"); BHP Steel Ltd v The Australian Workers' Union, New South Wales (2003) 136 IR 240; [2003] NSWIRComm 423 at 261 [88] (Haylen J) ("BHP v AWU [2003] NSWIRComm 423"). 39. In Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388; [2005] NSWIRComm 305 ("Sydney Water v ASU"), the Full Bench (Wright J, President, Walton J, Vice-President and Commissioner Stanton) stated at 403-404 [37] that, in furthering the objects of the Act, "it is vital that the Commission recognise the broad discretion granted by [the Act] to fashion appropriate relief by reference to the merits of the industrial dispute itself and the steps necessary to resolve it". This involves a variety of considerations, including the "public interest in managing the industrial dispute in a fair and just manner with minimum disruption and disputation". This passage was cited approvingly in BlueScope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales (2006) 153 IR 176; [2006] NSWIRComm 149 at [24]-[26] (Wright J, President, Walton J, Vice-President, and Marks J) ("BlueScope v AWU [2006] NSWIRComm 149") and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 96 NSWLR 762; [2018] NSWCA 39 at 791 [128] (Bathurst CJ with whom Gleeson and Simpson JJA agreed) ("PSA v Industrial Relations Secretary [2018]").
A further principle identified by Walton J (at [52]) in respect of dispute orders generally, is that the Commission has discretion to refuse to make dispute orders that are oppressive or would lack any utility.
Turning specifically to s 137(1)(c), Walton J noted at [374] that "[t]here are many examples of dispute orders being made where dismissal was threatened or imminent" and he provided three such examples. It is instructive to consider each of them.
In ALHMWU v Murawina Mt Druitt Co-op Ltd [2005] NSWIRComm 1017 Commissioner Macdonald had before him two dispute notifications by the Australian Liquor, Hospitality and Miscellaneous Workers Union against the Murawina Mt Druitt Co-Op Ltd. The first, concerned an alleged non-payment of annual leave entitlements to employees of the respondent. The second, concerned the threatened dismissal of the employees and arose from a letter the respondent had sent to the employees advising that their services would "not be required" after a certain date. It was unclear whether the respondent intended to terminate or merely suspend the employees. From correspondence sent by a representative of the respondent to the Commission, it was apparent that the respondent was in financial difficulties. The respondent failed to attend the compulsory conciliation conferences. Commissioner Macdonald stated at [14] and [15]: The Commission has had to consider the Union's two dispute notifications and the Orders sought, without the attendance in court of Ms Campbell or some other representative for the Respondent. Having considered all of the documentary material and submissions put by the Union and the documentary material facsimiled by the Respondent and having considered in particular the plight of the employees and the business circumstances of the Respondent, the Commission has decided that it is appropriate to issue Certificates of Attempted Conciliation and issue certain Orders.
In respect of the first dispute notification, the Commission ordered the payment of the employees' annual leave entitlements within 21 days. In respect of the second dispute notification, the Commission made an order pursuant to s 137(1)(c) "that the Employer not dismiss the Employees." The following orders were also made: If at the time of the making of the Order pursuant to s 137(1)(c), the Employer has dismissed any one or more of the Employees, the Commission orders pursuant to s 137(1)(b) of the Act, that the Employer reinstate any one or more Employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. The above orders made pursuant to ss 137(1)(c) and (b) commence from the date of this Decision (9 February 2005) and shall remain in force up to and including 8 March 2005. The Commission grants liberty to the Union to relist IRC No 496/05 at short notice for the above orders to be extended for a further defined period.
It is not clear from the reasons why the Commission was persuaded to make the under s 137(1)(c), but it seems it was designed to preserve the status quo for a limited period of time to enable the parties to consider their respective positions. It was also made in the absence of the respondent and thus the appropriateness of the order was not fully argued. On any view the order was interim or limited in nature and the case does not support the making of the order sought by the FBEU in this case.
In Police Association of New South Wales v Commissioner of Police [2019] NSWIRComm 1076, Commissioner Sloan made orders pursuant to ss136(1)(c) and 137(1)(c) that the Commissioner of Police not dismiss two named police officers "until the determination of these proceedings or further order of the Commission." The underlying dispute concerned a decision of the Commissioner of Police to medically discharge the two officers, in circumstances in which, so it was contended by the Police Association on behalf of the officers, the Commissioner had not complied with the provisions of the Workers Compensation and Injury Management Act 1998 and had failed to afford procedural fairness to the officers. The orders sought were clearly interim in nature and were sought to perverse the status quo pending resolution of the underlying dispute. Again, the case does not support the making of an order of the kind sought by the FBEU in this case.
Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388; [2005] NSWIRComm 305 was an application for leave to appeal from an interim order made by Boland J in Australian Services Union and Sydney Water Corporation [2005] NSWIRComm 156, restraining Sydney Water from dismissing two employees until further order of the Commission. The order had been made following the filing of a dispute notification by the Union in relation to a dispute that had been long running and had been notified to the Commission on previous occasions. Boland J described the dispute as follows: Essentially, the ASU was concerned at what it regarded as an inadequate process within Sydney Water to search for and find suitable duties for employees who had been injured and were unable to perform their pre-injury duties, a lack of proper communication with injured workers and what the ASU regarded as an inadequate approach by Sydney Water to the re-training of injured workers. In particular, the Union was concerned that Sydney Water intended to dismiss two injured employees (Messrs Bagala and Austin) in accordance with its injury management policy, despite the contentious nature of that policy; the fact that it was the subject of compulsory conciliation and could soon be the subject of arbitration.
As the Full Bench (Wright J President, Walton J, Vice-President and Stanton C) explained at [11] - [12]: 11 …There was no issue at first instance that there was an industrial dispute within the meaning of ss 136 and 137 of the Act between the Union and Sydney Water; that Sydney Water had decided to dismiss Messrs Austin and Bagala in accordance with its injury management policy; and that the Commission had the power pursuant to ss 136 and 137(1)(c) to grant an interim order that Sydney Water refrain from dismissing the two men. 12 Nor was there any issue as to the test to be applied. Both parties argued the application on the basis that the principles to be applied in granting a dispute order of the kind prescribed by s 137(1)(c) were those pertaining to interlocutory injunctions in private law litigation (that is, that there is a serious question to be tried; the applicant will suffer irreparable injury in the absence of an injunction; and that the balance of convenience favours the granting of an injunction). These principles were adopted by Schmidt J in relation to interim orders sought under s 89(7) and ss 136 and 137 and granted in Hill v Director General of the Department of Education and Training (1998) 85 IR 201 following the decision of Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153.
The contest at first instance, and on appeal, was whether the three tests in Hill were satisfied. Sydney Water also alleged on appeal that Boland J had made other errors in making the order under s 137(1)(c).
Relevantly for present purposes, the Full Bench discussed the purpose of the Commission's jurisdiction pursuant to s137(1)(b) and (c) at [32] - [35]. In short, it explained, by reference to the history of the provisions, that they were introduced to give the Commission the power, when dealing with an industrial dispute, to restrain dismissals and to reinstate or re-employ employees who were dismissed in the course of the industrial dispute, or whose dismissal resulted in an industrial dispute.
Boland J had made similar observations in his first instance decision - Australian Services Union and Sydney Water Corporation [2005] NSWIRComm 156 at [66], and at [67] made remarks which lend support to the respondent's submission that s 137(1)(c) only gives the Commission power to make orders on an interim basis: 66 It is likely that the Parliament's principal intention in providing for s 137(1)(b) and (c) was to provide the Commission with the means of dealing with situations where a dispute existed and in the course of the dispute employees taking industrial action in support of claims were either threatened with dismissal or were dismissed because of, or for reasons related to, the industrial action. A good example of that was the situation addressed by the Commission in Woolstar where the employer dismissed approximately 400 employees, members of the Federated Storemen and Packers Union of Australia, NSW Branch, in the course of an industrial dispute. 67 The present circumstances are not the same as those in Woolstar. However, it seems to me that orders of the kind in s 137(1)(c) may be made to prevent the termination of employees threatened with termination in a situation where their future - that is, whether or not they are to be retained in employment - depends on the outcome of the arbitration of the subject matter of an industrial dispute. Moreover, I agree with the observation of Schmidt J in Hill at 205 that it is evident on the face of ss 136 and 137 that the Commission has the power to make an order on an interim basis, that a person who has been threatened with dismissal, not be dismissed.
The Full Bench in Sydney Water observed that the powers in ss 136 and 137(1)(b) and (c) powers are different to the similar powers the Commission is given in s 89 of the Industrial Relations Act in respect of an unfair dismissal and consequently, as Schmidt J had recognised in Hill, the powers are to be exercised differently. The Full Bench made the following remarks regarding the different powers and the correct approach to their exercise at [36] - [37]: "While we agree that the tests formulated in Castlemaine Tooheys as adopted in Hill (on the submissions of both parties) offer some useful guidance for the exercise of power to grant interim orders, it would be wrong to apply, strictly and inflexibly, what are essentially private law and equity principles to the full range of industrial disputes under Chapter 3 of the Act, many of which fall into the realm of a jurisprudence not only more closely aligned to public law but having its own particular features. Industrial disputes may cover a spectrum from what is essentially an isolated, ordinary unfair dismissal case, to an industrial dispute in which dismissals or threatened dismissals are subsidiary, and then to a full-blown collective dispute involving stoppages, lock-outs, and mass dismissals. Across most of the spectrum, there will be factors at play which cannot be accommodated by the Hill tests, and the further the situation approaches the collective dispute at the end of the relevant spectrum, the more strained the application will become. The Hill tests will usually be applicable to applications brought under s 89(7) of the Act. The Commission, in using its powers under the Act to conciliate, arbitrate and generally facilitate the resolution of industrial disputes, is engaged in an undertaking considerably removed from the adjudication of individual civil grievances. In furthering the objects of the Act (including the promotion of efficiency and productivity in the economy of the State and providing for the resolution of industrial disputes in a prompt and fair manner with the minimum of legal technicality), it is vital that the Commission recognise the broad discretion granted by the Act to fashion appropriate relief by reference to the merits of the industrial dispute itself and the steps necessary to resolve it. This will involve a variety of considerations, some of which may include those deriving from private litigation, but more usually will include the public interest in managing the industrial dispute in a fair and just manner with minimum disruption and disputation."
At [46] the Full Bench stated that: ".. it would be inappropriate to limit the broad discretion to grant dispute orders on the basis of the principle contended for by Sydney Water that the power to restrain an employer on an interim basis from dismissing employees should not be exercised unless the Commission had formed the view that the threatened dismissal would be harsh, unjust, or unreasonable. This is, in effect, a variation of the second Hill test of irreparable injury, and should not be accepted in this case for the same reasons. As Boland J noted in the decision under appeal, the fairness or otherwise of the threatened dismissals is inextricably linked to the adequacy of Sydney Water's injury management policy, and that matter - the heart of the dispute - is in the very process of being assessed.
In written reply submissions the FBEU noted that Boland J was only dealing with an interlocutory application and therefore his decision, which was relied upon by FRNSW, did not support the proposition that s 137(1)(c) can only be used to make interim or interlocutory orders. While it is the case that the decision did concern an application for interim relief, pending resolution of the dispute, the remarks made by both Boland J and the Full Bench are instructive as to the correct approach to the operation of the provision generally. Moreover, as already observed, the FBEU did not take me to any authority in which an order of the kind sought by the FBEU has been made and I could not find any.
In my view s 137(1)(c) may be utilised, if certain conditions are met, to preserve the employment of employees pending the resolution of the underlying dispute. Once the dispute is resolved, that is, finalised, by the Commission, the employer may take whatever lawful action in respect of the ongoing employment of the employees it may wish to take. Such action will very likely - but may not - be dictated, or at least influenced by, the outcome of the proceedings before the Commission. However, as an order under s 137(1)(c) can have no force once the dispute before the Commission is finalised, it cannot be deployed to provide permanent relief in the manner in which the FBEU seeks to do in this case.
The FBEU made the following submission in its written closing submission in reply (at [16] - [17]): In the event that the Commission considers the policy unreasonable, if the [Fire] Commissioner then elects to respect the [Industrial Relations] Commissioner's finding, the dispute would be fully resolved and orders accordingly unnecessary. If he maintains his present position and does not so commit, the dispute persists, and will do so as long as the policy remains, and persons remain at risk of dismissal for non-compliance. In other words, the orders are necessary, and on Fire + Rescue's construction available, for as long as Fire + Rescue maintains its position.
With respect, this analysis is inaccurate. Once a decision is delivered in respect of a notified dispute, that is the end of that dispute. If I were to find the Policy to be unreasonable, but nevertheless declined to grant the relief sought by the FBEU, the present dispute, as notified to the Commission, would not 'persist' as it would have been concluded.
Support for this view can be found in the construction of s 137(1). The use of the definite article 'the' in sub-s 137(1)(c), following the use of the indefinite article 'an' in the chapeau, indicates that the power can only be invoked if the employer has threatened to dismiss employees in the course of the particular industrial dispute with which the Commission is dealing. Once the Commission has arbitrated the dispute and delivered a decision - one way or the other - "the industrial dispute" is ended.
Thus, in the somewhat unlikely scenario that that Commissioner proceeded to dismiss workers for failing to comply with the Policy, despite the Commission finding that the Policy was unreasonable, there would be a new dispute, namely that the Commissioner was seeking to enforce a policy which had been found by the Commission to be unreasonable. The FBEU may be confronted with the same dilemma it faces in this matter, in that it could not seek to have the Commissioner permanently enjoined from dismissing employees on the basis of non-compliance with an unreasonable policy, however it could seek a recommendation pursuant to s 136(1)(a) of the Industrial Relations Act or it could seek an award pursuant to s 136(1)(b). (I note that both of these remedies could also have been pursued by the FBEU in this case.) Moreover, any employee that was actually dismissed would, prima facie, (subject to arguments as to whether the Policy was an order issued under reg 4 and hence only needed to be lawful) have a very good case for relief under Part 6 of the Act on the basis that the dismissal was unfair in the circumstances.
For the record, I note that in opening oral submission counsel for the FRNSW made the following statement: "… if the Commission is satisfied that the policy is unreasonable, if it gets to that stage and it considers that my friend is right or the union is right about that, that is essentially the only finding that's available to the Commission to resolve the dispute because if it makes that finding, I accept that… the Commissioner then still move to terminate but it would be terminating in the face of an order of this Commission to which it is bound and relying on a policy that that's been declared as unreasonable …. It's a requirement of the Commissioner to abide by decisions of this tribunal."
While a 'mere' finding by this Commission would be neither an 'order' or a 'declaration', in the vast majority of cases it would be a very rare thing indeed for the party against whom the finding was made, particularly if that party is a Government agency, to proceed in a manner contrary to the finding. In some cases, the finding of certain facts may be all that is needed to bring a dispute to an end, both technically and practically.
For completeness I note that FRNSW also submitted that I did not have the power to make an order of the kind sought by the FBEU under s 137(1)(c) because there had not been a threatened dismissal. The FRNSW referred to the decision of Barnier v Secretary, Department of Education [2021] NSWIRComm 1045 and other matters before this Commission which have held that for a dismissal to be "threatened", it must be "certain, imminent and unconditional." According to FRNSW no evidence had been led by the FBEU of any threatened dismissals.
I reject these submissions.
Neither Barnier, nor the other authorities referred to, concerned the exercise of the power under s 137(1)(c). As noted in paragraph [171] above, the Full Bench in Sydney Water observed that the powers in ss 136 and 137(1)(b) and (c) powers are different to the similar powers the Commission is given in s 89 of the Industrial Relations Act in respect of an unfair dismissal and consequently are powers are to be exercised differently. I note in ALHMWU v Murawina Mt Druitt Co-op Ltd, Commissioner Macdonald made an order under s 137(1)(c) in circumstances where it was unclear on the evidence whether the employer intended to terminate the employees or merely suspend them. In the present case FRNSW made no real challenge to the evidence of Ms Krouskos to the effect that approximately 200 FBEU members have not received a vaccination, and that FRNSW has commenced disciplinary processes against all or some of those members, including the provision of notice to at least some of them, that their employment will be terminated, for failure to comply with a direction of the Commissioner of FRNSW.
In any event, annexed to the affidavit of Ms Krouskos, and tendered in evidence without objection, were letters that were sent by FRNSW to two members of the FBEU which on any view establish a certain, imminent and unconditional threat of dismissal. The letters, which were identical, included the following paragraph: "If you do not resign by close of business [date], FRNSW will terminate your appointment, effective [date].
Further, Ms Krouskos gave the following, unchallenged evidence at paragraph [48] of her affidavit of 19 August 2022: "FBEU members are at various stages in the disciplinary process which has involve notices of investigations, notices of findings of misconduct and in some cases notices of termination. …"
In the circumstances the power under s 137(1)(c) would be capable of being exercised on an interim basis, on the basis that the employer has threated to dismiss employees, but it cannot be exercised to permanently enjoin the Commissioner from dismissing employees.

[14]

No Basis to enjoin the Commissioner in respect of non-compliance

If I am wrong about the extent of my power under s 137(1)(c), I would nevertheless decline to grant the relief sought by the FBEU.
The essence of the case brought by the FBEU is that regardless of whether the Policy was lawful and reasonable when it first introduced, it was not reasonable after it was reviewed in June and July 2022 and consequently, any termination of an employee after that date, for failure to comply with the Policy, would be unfair.
Importantly, at paragraph [39] of its Outline of Submissions the FBEU made the following submission: "It is true that the initial non-compliance technically occurred at an earlier time. However, Fire + Rescue has - for reasons that are entirely its own - allowed the relevant employees to remain employed for six months. The dispute is whether they should be sacked now: if the policy requiring them to be vaccinated now is not reasonable, it follows that they should not be dismissed."
I do not agree with that submission, although I accept that if I were to find that the Policy was unreasonable as and from July 2022 or thereabouts, that fact would be relevant in any assessment of whether the termination of an individual after that date, based on conduct that occurred before that date, was unfair. That is not however, an assessment I can make on a global basis as it will depend entirely on all the circumstances giving rise to an individual's termination.
Part 6 of the Industrial Relations Act deals with unfair dismissals. Section 84 allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust". The principles to apply when determining whether a dismissal is 'unfair' are well settled and often quoted thus: [13] …Each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." [14] To be entitled to any remedy under the Industrial Relations Act, the onus is on [the applicant] to prove that her dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. [15] Section 88 of the Industrial Relations Act sets out matters to which the Commission may have regard in determining an application under s 84. … (Cromie v Health Secretary in respect of the Illawarra Shoalhaven Local Health District [2022] NSWIRComm 1064 (Sloan C)
Section 88 of the Industrial Relations Act provides as follows: In determining the applicant's claim, the Commission may, if appropriate, take into account-- (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given--its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.
As conceded by the FBEU, the employees that are at risk of termination contravened the terms of the Policy prior to its review and confirmation in July 2022. Prima facie, FRNSW is therefore entitled to take disciplinary action against those employees for breach of the implied term that employees have to obey lawful and reasonable directions given by their employer, (and possibly, for a breach of a Commissioner's Order made pursuant to reg 4 of the Fire Brigade Regulation 2014). Whether such breach will justify termination of the defaulting employee will depend upon an assessment of all the circumstances applicable to that employee, including the factors of the kind set out in s 88 of the Industrial Relations Act. It may also depend upon the operation of reg 35 of the Fire Brigades Regulation.
If the retention of the Policy after July 2022 was unreasonable or if the Policy was subsequently voluntarily repealed by the Fire Commissioner, this would not alter the fact that certain employees breached the Policy when it was validly in force. It may, however, be a factor that the Fire Commissioner should take into account when determining what consequences are to flow as a result of a particular employee's breach. Similarly, I consider it would be a relevant matter for this Commission to consider pursuant to s 88(f) of the Industrial Relations Act, if an application for relief were made by an employee that was dismissed for non-compliance with the Policy prior to July 2022, but the unreasonableness or repeal of the Policy post July 2022 would not alone be determinative of the matter.
In the premises, it would not be appropriate for me to enjoin the Fire Commissioner from dismissing employees on the basis of non-compliance with the Policy prior to its review in July 2022.

[15]

The Lawfulness and Reasonableness of the Vaccination Mandate/Policy

If I am wrong regarding my power to make the order sought by the FBEU, I would nevertheless not grant the relief sought (or some suitably modified version of it) as I am not satisfied that the retention of the Policy and the Vaccination Mandate was unreasonable.
As already noted, the FBEU contended that the Vaccination Mandate/Policy was unreasonable because: 1. no genuine consultation was undertaken; 2. it is not supported by any coherent risk assessment, i.e. there is no basis upon which the Commission could conclude it manages any particular workplace risk; and 3. the other justifications relied on by FRNSW for maintaining the Policy/Vaccination Mandate are not unsustainable.
The way the FBEU put its case was that while the Vaccination Mandate/Policy was not unlawful, in the sense that it involved workers engaging in some kind of illegal behaviour, if the directions were not reasonable they will not be lawfully authorised by the employment contract. The FBEU relied upon the remarks of Dixon J (as his Honour then was) in Darling Island at 621- 622 to the effect that "lawful commands of an employer which an employee must obey are those which fall within the scope of the contract and are reasonable." This being the case, so the FBEU submitted, the "distinction between 'lawful' and 'reasonable' orders is more apparent than real."
Whether 'lawful and reasonable' is a dichotomy was considered by the Full Bench in Mt Arthur Coal who considered (at [67] that it "may simply be a matter of semantics" although they also observed that the weight of authority supports the use of the expression "lawful and reasonable". In any event, the point need not be resolved in this matter as the FBEU's contention is that Vaccination Mandate/Policy is not reasonable and for the reasons that follow, I disagree. I note that in Mt Arthur Coal the Full Bench found (at [85]) that the site access requirement/vaccine mandate was prima facie lawful because it was a requirement to protect the health and safety at work of Mt Arthur's employees and other people at the mine and fell within the scope of the employment and there is nothing 'illegal' or unlawful about becoming vaccinated.
For the reasons explained at paragraphs [90] - [93] above, I do agree with the FBEU that two of the justifications relied on by FRNSW for maintaining the Policy/Vaccination Mandate after its review, are indeed not sustainable, namely that the survey results and feedback received from FRNSW staff was in favour of maintaining the controls; and the fact that FRNSW wished to ensure consistency with NSW emergency services clusters who also maintained mandatory double dose vaccination policies. If they were the only justifications for maintaining the Policy I would likely find that maintenance of the Policy was unreasonable as those things were not established on the evidence and I do not consider that those things alone would justify the Vaccination Mandate in any event.
However, the other justification given, namely that the advice issued by ATAGI and NSW Health to which FRNSW referred, supported the ongoing utility of vaccination in reducing severe illness and death, even if only two doses of the vaccine had been received, was made out on the evidence, as already explained in paragraphs [34] - [37] and [141] - [143]. For clarity, I note that there was no evidence that FRNSW, when conducting its review in June/July 2022, referred to anything more than the advices it had referred to when preparing version 4 of the risk assessment in March 2022, nevertheless, those advices did confirm the effectiveness of two doses of the vaccine in reducing, inter alia, severe illness and death and further, there was evidence that advices issued by ATAGI on 5 July 2022 and 25 August 2022 maintained that view. Consequently, I may readily infer that that ATAGI still held that view in July 2022.
The question that then arises, which ties in to the second ground relied upon by the FBEU to contend that the Policy was not reasonable, is whether mandating two doses of a COVID-19 vaccine, in July 2022, in order to reduce workers of FRNSW suffering severe illness and death, is a reasonable direction. The answer to this question, as was submitted by FRNSW, is to be found in the obligations imposed on employers and employees by the Work Health and Safety Act 2011 (NSW) (WHS Act) and the common law duty of employers to take reasonable care for the health and safety of employees at work.

[16]

The WHS Act and the Test of Reasonableness

The Full Bench of the Fair Work Commission in Mt Arthur Coal explained how the task of assessing the reasonableness of a direction is to be undertaken: [72] Reasonableness is 'a question of fact having regard to all the circumstances' and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment. The approach to the task of assessing the reasonableness of a direction to an employee was identified by Dixon J in Darling, as follows: 'But what is reasonable is not to be determined so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service.' … [77] It appears uncontroversial that in order to establish that a direction is reasonable, it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with 'best practice' or in the best interest of the parties. It is also uncontentious that in any particular context, there may be a range of options open to an employer within the bounds of reasonableness. As the Respondent submits: 'In assessing whether any direction is reasonable, it is necessary to bear in mind that within the boundaries of an employer's power of direction there is an area of 'decisional freedom' within which the employer has a genuinely free discretion. That area is co-extensive with what was once more commonly called 'managerial prerogative'. Within that area, reasonable minds might differ as to what decision is best or most desirable, but any decision or outcome within that area is within the bounds of reasonableness.' [78] The availability of a range of reasonable directions in response to a particular set of circumstances sits conformably with the following observation of the plurality in [Minister for Immigration and Citizenship v Li (2013) 249 CLR 332] albeit the point arose in different context: '… there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.' (Footnotes omitted) [79] Nor is it seriously contested that a direction lacking an evident or intelligible justification is not a reasonable direction an employee is obliged to obey, but that is not the only basis upon which unreasonableness can be established. As we have said, reasonableness is a question of fact having regard to all of the circumstances. Contrary to Ai Group's submission, there is no 'high bar', or any other type of bar or gloss to be put on the requisite assessment. It is an objective assessment of the reasonableness of the direction, having regard to all of the circumstances. [80] We observe that the approach we have adopted in this matter is consistent with the following observation of the Full Bench in Briggs v AWH Pty Ltd [(2013 231 IR 159]: 'The determination of whether an employer's direction was a reasonable one (there being, as earlier stated, no contest in this case that AWH's direction was lawful) does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with "best practice", or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan in the following terms: But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.' (Footnotes omitted)
In the context of a considering the reasonableness of a direction to be vaccinated the Full Bench in Mt Arthur Coal made the following further general observations: [261] If the object and purpose of such a direction is to protect the health and safety at work of employees and other persons frequenting the premises then such a direction is likely to be lawful. This is so because it falls within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated. But such a direction must also be reasonable. [262] As Flick J observed in NSW Trains v Australian Rail, Tram and Bus Industry Union [[2021] FCA 883] the determination of whether an employer direction is lawful and reasonable can only be made by reference to the subject matter and context; it cannot be made 'in vacuo'. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis. The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction. [263] A direction lacking an evident or intelligible justification is not a reasonable direction but that is not the only basis upon which unreasonableness can be established. It is an objective assessment of the reasonableness of the direction, having regard to all of the circumstances. [264] In any particular context there may be a range of directions open to an employer within the bounds of reasonableness. Further, to establish that a direction is reasonable it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with 'best practice' or in the best interest of the parties.
As at July 2022 there was an ongoing risk of continuing introduction or transmission of the virus in New South Wales, as expressly stated in the PHOs applicable at the time. This fact was not contested by the FBEU, although it submitted that the risk had reduced due to high levels of vaccination in the general population and of workers employed by FRNSW. Rather, the FBEU contends that the Policy is unreasonable because, inter alia, an unvaccinated firefighter as at July 2022 was and is no more likely to contract COVID-19 in the workplace than in their private life. Further, they are not likely to cause major - if any - disruption to the workplace if infected and pose no more than a negligible risk to their (overwhelmingly vaccinated) colleagues. However, this submission ignores the obligation of the Fire Commissioner under s 19 of the WHS Act and his common law obligation to take reasonable care for the health and safety of employees, noting that the Full Bench in Mt Arthur Coal at [228] and [231], by reference to Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304; 103 IR 52 at [52], confirmed that the duty under the WHS Act is a "much higher standard than the exercise of reasonable care".
Section 19 relevantly provides: 19 Primary Duty of Care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of-- (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable-- (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
In short, s 19(1) imposes a primary duty on FRNSW, to ensure, so far as reasonably practicable, the health and safety of its workers while the workers are at work. The fact that a worker may be exposed to the same risk in their personal life (e.g. injury or death in a motor vehicle accident) does not absolve FRNSW from the duty to protect the worker from that risk while they are at work, so far as is reasonably practicable. Section 19(2) imposes a further duty on FRNSW to ensure that other persons are not put at risk from work carried out by its workers. Again, the fact that that other person may be exposed to the same risk from other sources, does not absolve FRNSW from its duty to protect those persons from that same risk arising from work carried out by its workers. These two duties require FRNSW to eliminate risk, and if not practicable, reduce risk so far as is practicable: s 17 of the WHS Act. A failure to comply with these duties may amount to a crime: ss 31- 33 of the WHS Act.
The word "risk" is not defined in the WHS Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Limited v Industrial Court of New South Wales [2010] 78 NSWLR 94 at [67]. By definition a 'risk' is "chance of bad consequences". A 'risk' will inherently involve only the 'potential' or 'chance' of something happening. The likelihood of a risk actually occurring is a factor to take into account when determining whether it is 'reasonably practicable' to take a particular measure to eliminate or reduce a risk.
"Reasonably practicable" is defined in s 18 of the WHS Act which provides: 18 What is "reasonably practicable" in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including - (a) the likelihood of the hazard or the risk concerned occurring, and (b) the degree of harm that might result from the hazard or the risk, and (c) what the person concerned knows, or ought reasonably to know, about - (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
The need to determine what is 'reasonably practicable' to be done in relation to ensuring health and safety is what underpins 'risk assessments'. A risk assessment is done so that the nature, likelihood and gravity of the risk to safety is balanced with the cost, difficulty and trouble necessary to avert it. Notably the list of matters in s 18 to be included in the assessment, does not include the risk the proposed measure itself might pose to workers, although I consider this would be 'a relevant matter'.
In the present matter, the FBEU challenged the accuracy of version 5 of the risk assessment, being the version which was published as part of the review of the Policy and submitted that it did not provide "a rational basis to underpin the [P]olicy". For at least the reasons which I have articulated earlier in this decision, I consider that there are inconsistencies and anomalies in version 5 of the risk assessment, and it is not consistent with aspects of the Policy. However, this alone does not mean that it was unreasonable for the Fire Commissioner to continue the imposition a Vaccination Mandate - this being the core of the Policy - as a reasonably practicable measure to control the risk posed by COVID-19.
The evidence establishes that: 1. as at June/July 2022 there was a more than negligible risk of FRNSW workers catching and spreading COVID-19 while at work, including from and to, members of the public with whom firefighters engage from time to time as part of their job, some of whom (the ill, the injured and the elderly) may be particularly vulnerable to adverse impacts from COVID-19; 2. severe illness and death is a possible outcome of becoming infected with COVID-19; 3. the advice from ATGAI and/or from the TGA, upon which FRNSW relied, was that: 1. the risk of an adverse reaction from a COVID-19 vaccine was low, such that the protective benefits of vaccination, principally as regards developing severe illness and death, continued to outweigh the potential risks; 2. only two doses of a COVID-19 vaccine continue to offer significant protection against severe illness and death, even though its effectiveness in terms of preventing symptomatic illness wanes over time; 3. while the effectiveness of two doses of a COVID-19 vaccine in terms of transmission and infection wanes over time, double-vaccination may still offer some limited protection from transmission and infection depending on the brand of vaccine used; and 1. as at June/July 2022 COVID-19 vaccines were readily available and a significant proportion of FRNSW had complied with the Vaccination Mandate.
In these circumstances, it is reasonable for the Fire Commissioner to conclude that the Vaccination Mandate was a reasonably practicable measure to be maintained to ensure the health and safety of his workers and of others. That is not to say that if the Commissioner decided not to maintain the Vaccination Mandate that he would be in breach of s 19 of the WHS Act. That is a matter that could only be determined by a Court. However, in the first instance it is a matter for the Commissioner, in the exercise of his managerial discretion, and acting reasonably, what measures he considers are reasonably practicable measures to be taken to comply with this statutory duty. It is a matter for the Commissioner in the first instance to determine whether the cost - including by way of loss of firefighters who do not wish to get vaccinated, is 'grossly disproportionate to the risk'. Different people may have different risk appetites and it may be expected that different workplaces will adopt different measures with respect to COVID-19 to ensure compliance with s 19. Whether those measures are sufficient to satisfy the duty, or, are more than is required to satisfy the duty, is not relevant to the question of whether a direction to implement the measure is reasonable. If there is a risk and the employer regards a measure as reasonably practicable, and such measure does not expose the worker to "substantial danger", the direction to implement the measure (absent some other vitiating factor) prima facie will be reasonable.
As the Full Bench of the FWC in Mt Arthur Coal observed, it is uncontroversial that in order to establish that a direction is reasonable, it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with 'best practice' or in the best interest of the parties. It is also uncontentious that in any particular context, there may be a range of options open to an employer within the bounds of reasonableness. The fact that it may be possible to satisfactorily mitigate the risk of COVID-19 though other control measures, does not make the Commissioner's decision to implement the Vaccination Mandate as a suitable control measure, unreasonable.
While there are deficiencies, errors and anomalies in version 5 of the risk assessment, the evidence established that there is evident, intelligible, logical and understandable justification for the Vaccination Mandate and it would not be appropriate for me to substitute my view (or moreover, that of the FBEU's) as to whether the Vaccination Mandate is the most appropriate measure to take to reduce the risk of COVID-19 to FRNSW workers and those with whom FRNSW workers come into contact.
That is not to say however, that a decision to implement a vaccination mandate will always be regarded as reasonable, even if the employer regards it as a 'reasonably practicable' measure to take. There may well be workplaces where the risk posed by a particular disease to workers and to others, while at work, is so low that mandatory vaccination would not measurably reduce the risk to health and safety (e.g. where workers work exclusively from their home), or where the adverse effects of the disease are outweighed by the adverse effects of the vaccine. That is not however, the situation in this case.
Lastly, it must be noted that pursuant to section 28 of the WHS Act, workers are obliged, so far as they are reasonably able, to comply with any reasonable instruction that is given by the person conducting the business or undertaking, to allow the person to comply with the Act and to co-operate with any reasonable policy or procedure. Section 28 provides: 28 Duties of workers While at work, a worker must - (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and (d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
The Policy allowed for the provision of medical contraindication certificates in lieu of vaccination, thus catering for those workers who are not 'reasonably able' to comply with the instruction to be vaccinated.

[17]

The Impact of the Vaccination Mandate on Non-Compliant Workers

I acknowledged above the genuine feelings of anxiety and/or vexation some firefighters are experiencing as a result of the Vaccination Mandate. For them, their protection from COVID-19 while they are at work by way of a vaccination is a matter only for them, particularly where the proposed protection itself involves some risk. The English philosopher Johns Stuart Mill, regarded by some as the most influential English-speaking philosopher of the nineteenth century, would perhaps, have supported their view. In his essay "On Liberty" published in 1859 he wrote: "The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or to forebear because it will be better for him to do so, because it will make him happier, because in the opinions of others to do so would be wise or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else."
It is important however, for those who are reluctant to be vaccinated, to appreciate that there are a number of features of the Vaccination Mandate and the circumstances in which it was introduced and then maintained, which take it out of the realm of the kind of imposition of which Mill wrote.
First, the evidence established that the Vaccination Mandate may provide some limited protection against transmission of the disease to other people, albeit that such protection may be minimal or even, in some workers, particularly those who were vaccinated with AstraZeneca, non-existent over time, and that receiving a booster dose would provide far better protection against transmission.
Secondly, while Mills' criticism might be levelled by libertarians against the legislature for imposing an obligation on an employer to protect workers against risks to their health and safety, which does not specifically exclude the obligation to take measures which themselves might expose the worker to a risk, on the basis that this is a personal decision for the worker, it is not a criticism that can be levelled at the Fire Commissioner, who is obliged to comply, on pain of criminal sanction, with the obligation to ensure his workers' health and safety while at work. The Commissioner is obliged to reduce the risks posed to his workers by COVID-19 using measures which he considers to be reasonably practicable. The evidence shows that as at July 2022: 1. around 30 people in FRNSW had COVID-19, down two from the previous week; 2. two doses of the vaccine provides protection against severe illness and death; 3. that a majority of firefighters were prepared to receive two doses of a vaccine; and 4. while there was some evidence that the standing down of unvaccinated firefighters has led to some operational difficulties, with unparticularized and unsubstantiated allegations that this in turn has adversely effected the safety of firefighters, I could not conclude on the evidence that the overall cost of the Vaccination Mandate, particularly post July 2022, was grossly disproportionate to the risk.
Thirdly, while it may be contrary to the views of Mill and many other libertarians, it has been found in numerous cases in various fora, dating from the beginning of the COVID-19 pandemic, that a direction requiring someone to be vaccinated, to prevent or reduce harm to himself (and to others), on pain of dismissal from their employment, is not a violation of bodily integrity, and the threat of losing one's job for failure to become vaccinated does not constitute coercion in the legal sense.
In Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; 393 ALR 664, which was a decision which upheld the legality of various PHOs, Beech-Jones CJ at CL said at [63]: People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault. So far as this case is concerned, a consent to a vaccination is not vitiated and a person's right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site. Clauses 4.3 and 5.8 of Order (No 2) do not violate any person's right to bodily integrity any more than a provision requiring a person undergo a medical examination before commencing employment does.
While no doubt some employees feel that they are being unfairly coerced to be vaccinated, the Full Bench of the FWC in Mt Arthur Coal at [222] - [224] did not accept that a direction to be vaccinated amounted to coercion in the legal sense, although they accepted that it was a form of economic and social pressure and that the existence of that pressure was a relevant matter in assessing the reasonableness of the direction, although was not determinative of the question. In that case, the Full Bench considered that the existence of that pressure "underscores the significance of the failure to meaningfully consult with the Employees prior to the decision to introduce the [vaccination] Requirement." As I explain below, while there may have been some issues with consultation at the time of the review, any deficiencies were remedied such that the decision to maintain the Policy could not be regarded as unreasonable. Otherwise, for all the reasons set out above, I do not consider that the reasonableness of the Vaccination Mandate was vitiated by the economic and social pressure experienced by those employees who wish to exercise their choice not to comply with the Mandate. Those reasons include in particular: 1. FRNSW's quite reasonable reliance upon ATAGI advice that a double dose of a COVID-19 vaccine significantly reduces the risk of serious illness and death, while the risk of an adverse reaction to the vaccine is extremely rare; 2. the fact that FRNSW employees are obliged to interact with members of the public from time to time and with each other; and 3. that as at July 2022 COVID-19 remained a real and present risk in NSW.

[18]

Consultation

As regards consultation, an alleged failure to consult formed a major plank of the FBEU's argument that the Vaccination Mandate was unreasonable. It pointed specifically to the failure of FRNSW to respond specifically to the submission of the FBEU in their correspondence of 10 June 2022 that the Vaccination Mandate should be removed for reasons that I summarised in paragraph [47] above; and to the fact that the ELT made its decision to maintain the Vaccination Mandate on 21 June 2022 and only gave lip service to consultation with the FBEU after that date.
It is necessary to first explain why a failure to properly consult with employees is capable of making a direction which is otherwise prima facie reasonable, not reasonable. Again, the answer is found in the WHS Act, specifically Part 5, Division 2.
Part 5, Division 2 of the WHS Act provides as follows: Division 2 Consultation with workers 47 Duty to consult workers (1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, 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 - (a) in the case of an individual - 230 penalty units, or (b) in the case of a body corporate - 1,155 penalty units. (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. (3) The agreed procedures must not be inconsistent with section 48. 48 Nature of consultation (1) Consultation under this Division requires - (a) that relevant information about the matter is shared with workers, and (b) 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, and (c) that the views of workers are taken into account by the person conducting the business or undertaking, and (d) that the workers consulted are advised of the outcome of the consultation in a timely manner. (2) If the workers are represented by a health and safety representative, the consultation must involve that representative. 49 When consultation is required Consultation under this Division is required in relation to the following health and safety matters - (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, (b) when making decisions about ways to eliminate or minimise those risks, (c) when making decisions about the adequacy of facilities for the welfare of workers, (d) when proposing changes that may affect the health or safety of workers, (e) when making decisions about the procedures for - (i) consulting with workers, or (ii) resolving work health or safety issues at the workplace, or (iii) monitoring the health of workers, or (iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or (v) providing information and training for workers, or (f) when carrying out any other activity prescribed by the regulations for the purposes of this section.
The Full Bench of the FWC in Mt Arthur Coal found that the employer in that case had failed to adequately consult with employees prior to introducing a directive that employees be vaccinated for COVID-19, with the result that the directive was not reasonable. It is important to note however, that after the delivery of the Full Bench decision, Mt Arthur Coal withdrew the directive and commenced a further period of consultation with its employees with the assistance of the FWC: see Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWC 6626 (Saunders DP). Following that consultation, Mt Arthur Coal reintroduced the vaccination requirement and issued letters to stood down employees advising as to next steps, but which included that stood down employees would have a period of seven days to consider whether they would comply with the requirement.
At [108] the Full Bench in Mt Arthur Coal set out a non-exhaustive list of propositions which may be drawn from the cases about what constitutes consultation (footnotes omitted), which list has been frequently cited in COVID-19 vaccination cases in various fora since then: • the content of any specific requirement to consult is necessarily dictated by the precise terms in which such a requirement is expressed; the nature of the factual or legal issues the subject of the requirement; and the factual context in which the requirement is exercised, including the particular circumstances of the persons with whom there must be consultation • a responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account • the consultation needs to be real; it must not be a merely formal or perfunctory exercise • even though management retained the right to make the final decision, it is not to be assumed that the required consultation was to be a formality. Management has no monopoly of knowledge and understanding of how a business operates, or of the wisdom to make the right decisions about it. The process of consultation is designed to assist management, by giving it access to ideas from employees, as well as to assist employees to point out aspects of a proposal that will produce negative consequences and suggest ways to eliminate or alleviate those consequences • the party to be consulted [must] be given notice of the subject upon which that party's views are being sought before any final decision is made or course of action embarked upon • while the word 'consultation' always carries with it a consequential requirement for the affording of a meaningful opportunity to the party being consulted to present those views, what will constitute such an opportunity will vary according [to] the nature and circumstances of the case. In other words, what will amount to 'consultation' has about it an inherent flexibility • a right to be consulted, though a valuable right, is not a right of veto • the consultation obligation is not concerned with a likelihood of success of the process, only to ensure that it occurs before a decision is made to implement a proposal • an ordinary understanding of the word "consult" would suggest that the obligation to consult does not carry with it any obligation either to seek or to reach agreement on the subject for consultation. Consultation is not an exercise in collaborative decision-making. All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made • the requirement to consult affected workers would … not be satisfied by providing the employees with a mere opportunity to be heard; the requirement involves both extending to affected workers an opportunity to be heard and an entitlement to have their views taken into account when a decision is made • genuine consultation would generally take place where a process of decision-making is still at a formative stage • the opportunity to consult must be a real opportunity not simply an after thought • consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal • there is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, 'this is what is going to be done' and saying to that person 'I'm thinking of doing this; what have you got to say about that?'. Only in the latter case is there 'consultation' • it is implicit in the obligation to consult that a genuine opportunity be provided for the affected party to attempt to persuade the decision-maker to adopt a different course of action. If a change has already been implemented or if the employer has already made a definite or irrevocable decision to implement a change then subsequent 'consultation' is robbed of this essential characteristic • any offer to consult in relation to the matter was in the context that the respondent had already made an irrevocable decision, then the party had not, to use his Honour's words, consulted about the decision in any meaningful way.
It is important in the present context to draw out a couple of points from the above list. First, "consultation is not an exercise in collaborative decision-making." The FBEU in its Outline of Submissions at [20] submitted that: "Correctly interpreted the sections [of the Pt 5, Div 2 of the WHS Act] require genuine collaboration". Such submission is not supported by the authorities. All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made.
Secondly, genuine consultation would generally take place where a process of decision-making is still at a formative stage. However, this does not preclude a decision-maker coming to a decision, but then, genuinely, asking those persons with whom he or she is required to consult, what they think about that decision, provided that the decision maker is open to changing their decision. In other words, the decision must not be irrevocable. A genuine opportunity must be provided for the affected party to attempt to persuade the decision-maker to adopt a different course of action. This is what Deputy President Easton found occurred in Stuart Tween v Qantas Airways Ltd [2022] FWC 1594 at [69] - [76] and [93] - [98].
In the present matter: 1. there is no dispute that consultation in respect of implementation of the Policy in the first instance was adequate; 2. on 19 May 2022 FRNSW provided the FBEU with version 5 of the draft risk assessment, which proposed, inter alia, the mandating of a third, booster vaccine and sought the FBEU's feedback; 3. on 20 May 2022 FRNSW issued an all-staff email and an intranet article seeking feedback in respect of the draft risk assessment, including a request for staff to complete a survey on the issue of whether a third dose of COVID-19 vaccine should be mandatory; 4. on 10 June 2022 the FBEU provided its feedback regarding the risk assessment and submitted that the Vaccination Mandate should be removed and instead there should be reliance on control measures that carried less risks to employees; 5. the ELT met on 21 June 2022 and considered, inter alia, the feedback of the FBEU and individual employees. That the ELT took the feedback into account is evidenced by its decision not to mandate boosters. It also decided to continue the Vaccination Mandate 'because [the] pandemic isn't over', as was evidenced by the number of cases within FRNSW (30, the day before the meeting), although it also determined to have the risk assessment evaluated by the safety team; 6. on 22 June 2022 FRNSW met with the FBEU to further discuss the feedback to the risk assessment that had been provided by the FBEU, and the FBEU were told by Chief Superintendent Kingsland, wrongly it turns out, that no decision had been made regarding the risk assessment and the Policy; 7. on 23 June 2023 FRNSW agreed to meet with Prof Esterman and representatives of the FBEU, and the HSRs on 1 July 2022; 8. on 24 June 2022 FRNSW provided a written response to the feedback provided by the FBEU and advising of amendments that would be made to the risk assessment in light of the FBEU's feedback. The letter did not specifically address the FBEU's view that the Vaccination Mandate was no longer required to manage the risk of COVID-19 in the workplace; and 9. on 24 June 2022 an amended (finalised) risk assessment was emailed to all staff.
It seems that as at 24 June 2022 the FBEU was dissatisfied with the consultation process to that point, precipitating the filing of its Notification of Industrial Dispute. While it is regrettable that Chief Superintendent Kingsland advised the FBEU that no decision had been taken with respect to maintaining the Policy at the meeting on 23 June 2022, when in fact, the evidence shows such a decision had been made on 21 June 2022, and that a written response was given to the FBEU before the scheduled meeting with Prof Esterman, the evidence also shows that the ELT at its meeting on 21 June 2022 did consider the FBEU's feedback including its submission that the 'vaccine mandate be overturned.' Further, FRNSW's letter of 24 June 2022 specifically addressed many of the issues raised by the FBEU regarding the risk assessment and FRNSW made changes to it accordingly, but implicitly it decided against revocation of the Vaccination Mandate. In the words of the Full Bench in Mt Arthur Coal, the right to consult is not a right of veto and the obligation to consult does not carry with it any obligation either to seek or to reach agreement on the subject for consultation.
In any event, following the filing of the Notification of an Industrial Dispute, the FRNSW agreed to temporarily pause the "disciplinary process and the impending termination decision" regarding one or more employees who had not complied with the Vaccination Mandate and, on 29 June 2022, agreed to a further process of consultation which included consultation with Prof Esterman, who was engaged and paid for by the FBEU. As detailed above, the FRNSW adhered to that process and there is no suggestion that it did not. In the circumstances, any defects in the consultation process as at 24 June 2022, if there were any, were wholly remedied by FRNSW engaging in the further agreed consultation process.
As detailed at length above, Prof Esterman provided no basis for FRNSW to alter the decision it had already arrived at to maintain the Policy. Again, to use the words of the Full Bench in Mt Arthur Coal, he did not provide any 'knowledge' or 'wisdom', hitherto unknown to FRNSW, which might have suggested that a different course of action should be pursued.
On 5 July 2022, in accordance with the agreed further consultation process, the ELT again met and considered its position. As recorded above, I consider that the ELT had regard to the views of Prof Esterman, given that they were reported to them by Chief Superintendent Kingsland and nothing Prof Esterman said provided a reason for them to revoke the Vaccination Mandate.
In the premises I reject the FBEU's submission that the maintenance of the Vaccination Mandate/Policy was unreasonable due to a failure to adequate consult with employees of FRNSW.

Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary of NSW on behalf of Fire and Rescue NSW

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