[2022] QIRC 451
General information, not legal advice.
Queensland Industrial Relations Commission
2022-11-21
Merrell DP
Original judgment source is linked above.
The Appellants' joint submissions filed on 6 April 2022 and on 5 May 2022 and Respondent's written submissions filed on 14 April 2022
The Appellant's further submissions filed on 18 July 2022 in PSA/2022/246, the Appellant's further submissions filed on 15 July 2022 in PSA/2022/263 and the Respondent's written submissions in reply in PSA/2022/246 and in PSA/2022/263 filed on 16 August 2022
PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PUBLIC SERVICE APPEAL - Appellants employed by the State of Queensland in various positions in schools operated by the Department of Education - by cl 5 of the Department of Education Employment Direction 1/21 - COVID-19 Vaccinations, the Appellants were required to receive a first dose of a COVID-19 vaccine by 17 December 2021 and to provide evidence of such vaccination - Appellants failed to comply with the Direction - Appellants afforded the opportunity to show cause why they should not be suspended without pay - Appellants provided responses - Appellants appealed against decisions to suspend them without pay - two of the Appellants further appealed against decisions not to reimburse their remuneration upon suspensions being lifted - whether decisions appealed against were fair and reasonable - decisions appealed against fair and reasonable - decisions confirmed
Australian Constitution, s 51(xxiiiA) and s 109
Covid-19 Vaccination Requirements for Workers in a high-risk setting Direction, cl 9, sch 1 and sch 2
Covid-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2), cl 10, sch 1 and sch 2
Department of Education - Employment Direction 1/21 - COVID-19 Vaccinations, cl 1, cl 2, cl 3, cl 4, cl 5 and cl 10
Public Health Act 2005, s 362B
Teaching and State Education Award-State 2016, cl 11
Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) [2021] QIRC 356; (2021) 310 IR 212
Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Greguric v Department of Works, Queensland [1988] 2 Qd R 545
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311
State of Queensland v Queensland Teachers' Union & Anor [2014] ICQ 012
Winter v State of Queensland (Department of Education) [2022] QIRC 350
all contractual agreements prohibit any unlawful health directions, health orders, rules, lock downs, policies, mandates, directions and directives or actions or promotion of unlawful directions or actions, health directions, health orders, rules, policies, mandates, directions and directives either directly or indirectly at all times;
Due to the seriousness of your demand with extreme menace being sought, I request your valid proof of claim
with physical material evidence within 72 hours that your Health directions, Health Orders, Rules, Lock Downs, Policies, Mandates, Directions and Directives are lawful and based on the Constitutional guarantees stated above.
Should I not receive your response by the close of business [by specified dates][3] I will consider this your tacit agreement that you accept that your policy, directions and actions are unlawful and unreasonable and that you accept my lawful right to DECLINE all offers now or in the future as I deem[4] fit.
To date no lawful or reasonable response has been forth coming from any section of the department with regard the claims that the current mandate (is a LAW) nor has any evidence been provided that the claimed vaccine (an irreversible invasive medical procedure that carries substantial risk of contraindications including death and is deemed a poison ) is safe and effective. The established evidenced fact stated by the manufacturers, is that they fail to prevent contraction or transmission, nor are any claims of safety made. These facts remove all grounds of your request being lawful and reasonable.
Please provide the basis for your reasonable view that I may be liable to discipline under a disciplinary law. Please provide evidence of the law that you have relied on to make such views.
It is my view that Genevieve Gillies-Day is currently in breach of the laws, acts by coercing an irreversible invasive medical procedure upon myself (claimed covid-19 vaccine) with threat and menace of disciplinary action without lawful or reasonable excuse and breaching privacy laws without lawful excuse.
As such any action being considered against myself is invalid and unlawful and a breach of my contract. Please provide a copy of my contract requiring myself to undergo an irreversible invasive medical procedure that fails to perform what is claimed (covid 19 vaccine) in order for myself to be able to perform my normal duties. Please provide independent physical material evidence to validate proof of claim that the request will not put myself in any form of harm and keep me 100% safe from any contraindications, contracting or transmission of the claimed Covid virus and/or any variation thereof.
(a) The Direction has been adopted state-wide for the protection of vulnerable persons and where a sudden reduction in available workforce would significantly affect the continuity of education services (among others). Unless an individual has a diagnosed medical contraindication or other qualifying exceptional circumstance the Direction is a reasonable one.
(b) The information available to me indicates that you may have failed to comply with the Direction, and the length of time it may take you to comply with the Direction is outside of the department's control.
(c) I have previously considered all reasonable alternatives, including alternative duties or adjustments and remain of the view that there is no reasonable alternative role or reasonable adjustments available which appropriately manage the risk that arises due to your non‑compliance.
(d) You have had sufficient time to engage with the requirements of the Direction. The department has engaged with you on a number of occasions about what was required of you to comply with the Direction.
(e) I am not in receipt of any material, through your response to me, the Department's vaccination status survey or otherwise, that you have been vaccinated. Nor am I in receipt of information that you have applied for or received an approved exemption due to medical contraindication or exceptional circumstances.
(f) Given your failure to comply with the Direction, the time you have had to engage with and comply with the Direction, the engagement and consultation undertaken by the department, the nature of the discipline to which you may be liable and the time it may take to conclude the disciplinary process, I have determined it is not a responsible or appropriate use of public funds to allow you to continue to be paid while this process is underway.
We are appealing against the unfair, unreasonable and unlawful suspension without pay, as due process has yet to be determined.
Due to the seriousness of the employers' [sic] unlawful demand of coercing me to participate in an irreversible, invasive medical procedure and with extreme menace being sought, we have requested the claimed Education Authorities provide valid proof of claim with physical material evidence, the Health Directions, Health Orders, Mandates, Directions and Directives are lawful under the Constitutional guarantees cited below. No laws were ever cited.
No medical service can be forced against the free will and it is strictly prohibited under s51(xxiiiA) Commonwealth of Australian Constitution Act 1977 (Cth) which guarantees protections and prohibitions, within the Commonwealth of AUSTRALIA. All Australian State and Territory Government constitutions, Health Directions, Health Orders, Policies, Mandates, Directions and Directives are subject to The Constitution 1977 (Cth) pursuant to s 109 which states, when a law of the State is inconsistent with the law of Commonwealth [sic], the latter shall prevail and the former Shell, to the extent of the inconsistency, be considered null and void at all times.
The Commonwealth of Australian Constitution Act 1977 (Cth), and all laws made by the Parliament of the Commonwealth under The Constitution 1977 (Cth) shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State.
In the absence of a current valid Bio Security Order upon, the individual living Man, Woman or any variation thereof (person in law), under the directions of unauthorised Bio Security officer and consistent with the specific directions of that order under the Bio Security Act 2015 (Cth) no other order can be lawfully imposed at any time.
The claimed COVID-19 (Vaccination, jab) or any variation thereof is an IRREVERSIBLE INVASIVE MEDICAL PROCEDURE that fails to deliver the claimed benefits of immunisation, vaccination, inoculation. Use of coercion or force upon myself to remove my free will consent as natural living Man, Woman or any variation thereof (person in law) in the absence of free will acceptance thereby placing undue intentional infliction of extreme psychological duress and financial hardship with extortion constitutes assault and abuse and carry with it substantial criminal penalty including imprisonment. Criminal Code Act 1899 - (Cth) QLD (the Act)
All contractual agreements prohibit any unlawful Health Directions, Health Orders, Rules, Lock Downs, Policies, Mandates, Directions and Directives or actions or promotion of unlawful directions or actions, Health Directions, Health Orders, Rules, Policies, Mandates, Directions and Directives either directly or indirectly at all times. Unlawful directives or unlawful acceptance of directives and mandates are criminal in nature and a breach of our contractual agreement.
The doctor undertakes by the contract between them to advise and treat the patient with reasonable skill and care, no third-party can exist at any time. My personal medical information is strictly protected under Federal Law including, but not limited to, provisions under the Privacy Act 1988 (Cth).
Any threats imposed on me the living Man, Woman or any variation thereof (person in law) to submit to Orders, Health Directions, Health Orders, Rules, Lockdowns, Policies, Mandates, Directions and Directives to self-harm restrict or invalidate my inalienable rights to DECLINE such offers, creates an unlawful and unreasonable discriminatory burden upon the person(s) in law at all times.
In concluding, because we have not received the Education Authorities [sic] valid proof of claim, with physical material evidence, we consider this their tacit agreement that they have accepted that their policy, directions and actions are unlawful and unreasonable and therefore they accept our lawful right to decline all offers now or in the future as we see fit.
[F]alsely claimed SARs COVID 19 vaccine. Rather, they forced the implementation of a policy of coercion into the receipt of a medical service/Irreversible Invasive Medical Procedure (IIMP) via the injection of a poison through a hypodermic needle.
Failure of Respondent to adequately address the validity and legality of Laws and Notifications
[T]he efficacy of the medical service/IIMP injection by hypodermic needle of the experimental mRNA substance - a claimed COVID 19 vaccine - despite accepting three (3) legally valid Notice to Agent documents as per the dates in (Attachment 3).[6]
"I think the electors would have taken the proposed law to emphasize, in the use of the words "any form, that legislation for the provision of benefits or services of the kind referred to could not authorize compulsory service of any kind, at least in the provision of medical or dental services, either independently or as incidental to pharmaceutical or other benefits, and that compulsion, to any extent or of any nature, whether legal, by the imposition of penalties, or practical, by any other means, direct or indirect, could not be authorized. To require a person to do something which he may lawfully decline to do but only at the sacrifice of the whole or a substantial part of the means of his livelihood would, I think, be to subject him to practical compulsion amounting to conscription in the case of services required by Parliament to be rendered to the people. If Parliament cannot lawfully do this directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no real choice but compliance." (at p293).
[36] Having regard to cl 6 of the Suspension Directive, in particular sub-cl 6.3(c),[9] the considerations of the time it may take to conclude the disciplinary process and the use of public funds to allow each Appellant to continue to be paid while that process was being undertaken, were not irrelevant or extraneous considerations in determining to suspend each Appellant without remuneration.[10]
For consent to be legally valid, the following elements must be present;
The person must have the opportunity to seek more details or explanations about the vaccine or its administration.
The information must be provided in a language or by other means that the person can understand. Where appropriate, involve an interpreter or cultural support person.
Obtain consent before each vaccination, after establishing that there are no medical condition(s) that contraindicate vaccination. Consent can be verbal or written
Decision makers have consistently and wilfully failed to provide a balance of scientific/medical evidence available pertaining to the efficacy and falsely claimed safety of the claimed COVID 19 Vaccine in an effort to thwart informed consent
Decision makers failed to provide detail procedures and clinical instruction regarding the process of successfully completing the claimed COVID-19 Vaccine process
The decision makers failed to acknowledge the corporate entity status of the Respondent and its legal requirements under Australian Contract Law and relevant Federal laws and its offer of contract regarding claimed "vaccination" '
The separate appeals by Ms Graf and Ms Holdsworth
I refer to the letter advising you of your suspension from duty in accordance with section 137 of the Public Service Act 2008 (the Act), as a result of the requirements of the Employment Direction 1/21 - COVID-19 Vaccinations, which was updated on 10 March 2022 as Employment Direction 1/22 - COVID-19 Vaccinations (Direction).
You may be aware of the recent announcement about the revocation of the COVID-19 Vaccination Requirements for Workers in a high risk-setting Direction (No. 2) (CHO Direction).
Please note, at this time your suspension remains in place.
Your suspension from duty (and the associated directions given to you) will cease at 1am on 30 June 2022 pursuant to section 137(8) of the Act, and regular duties payments will commence in the next available pay cycle. You are directed to resume duty at your workplace on the first day of work of Term 3, 2022.
While your suspension will cease as at this date, until then, I continue to reasonably believe that you are liable to discipline as you are not currently compliant with the Direction, and for the reasons outlined to you in your previous suspension correspondence. You cannot lawfully attend a high‑risk setting in your role as a worker before 1 am on 30 June 2022.
If you have been suspended without remuneration (pay) at any stage throughout this process, I confirm that you will not be repaid for the period you were suspended without pay. This is in accordance with Clause 6.10 of the Public Service Commission 's Suspension Directive 16/20, on the basis that you were not available to work during the period of suspension, as you were not compliant with the Direction, and for the reasons outlined in the letter advising you of the decision to suspend you without pay.
If you believe that the decision is unfair and unreasonable, you may lodge an appeal under the appeal provisions of the Public Service Act 2008. The Queensland Industrial Relations Commission Industrial Registry will be able to provide further information about public service appeal procedures (www.qirc.qld.gov.au; Tel: 1300 592 987).
In an email received and dated 24/6/2022 from David Miller, Executive Director, Department of Education titled "CANCELLATION OF SUSPENSION", I refer to the statement, "If you have been suspended without remuneration (pay) at any stage throughout this process, I confirm that you will not be repaid for the period you were suspended without pay. This is in accordance with Clause 6.10 of the Public Service Commission's Suspension directive 16/20."
I hereby appeal the decision to withhold repayment of benefits I am entitled to, which occurred prior to the end of my disciplinary action process.
I further more appeal David Miller's decision on behalf by [sic] the Department of Education as it is directly opposed to Clause 6.6 of the Suspension Directive, which states that "An employee must be reimbursed for remuneration the employee does not receive during the employee's suspension if a decision on discipline has been made that does not result in termination of their employment".
I have not been informed of the final decision on my disciplinary process and do not anticipate this decision to be termination of employment. I was suspended without pay on 10/02/2022[15] and lawfully unable to attend my workplace 'on the basis' of being in breach of the Direction. I have returned to work as directed for term 3 on 24 June 2022.
The decision confirmed by David Miller is detailed to be due to Clause 6.10 in the Suspension Directive in addition to other reasons specified in my 'Suspension without remuneration' email received 10/02/2022.[16] However, this clause states that 'if the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a correctional facility), then the amount to be repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension'.
The 'Decision on Suspension without pay' email from DoE detailing the reasons I was not permitted to work are the only categorical reasons I was unable to attend my workplace. The suspension, a result of not following Education Employment Directive 1/21 - Covid 19 Vaccinations (Direction), lists the reasons I was legally not able to attend the workplace in a working capacity. I was also requested to make myself available to the department and to notify them if I could not make contact within 3 working days, which I abided by. Thus, I was at all times willing and able to attend my place of employment and available to my employer, but was solely restricted by the suspension and Employment Direction. This indicates that clause 6.10 is not applicable as a reason for the decision to withhold any remuneration I am entitled to per Clause 6.6.
There has been no decision making process, or consultation process, in the decision to withhold back pay from all Education Qld staff returning from suspension. The decision declared on 24 June 2022 should only have been made following the finalisation of the Disciplinary process for each staff member.
6.6 An employee must be reimbursed for remuneration the employee does not receive during the employee's suspension if a decision on discipline has been made that does not result in termination of their employment.
Department Wide (excluding Office of Industrial Relations)
In recognition of the high risk of transmission of the COVID-19 virus, for the protection of vulnerable persons and that a sudden reduction in available workforce would significantly affect the continuity of education services (among others) on Saturday 11 December 2021 the COVID‑19 Vaccination Requirements for Workers in a high-risk setting Direction Queensland Health (CHO Direction) was published re vaccination of workers in high-risk settings including:
The purpose of this direction is to outline the COVID-19 vaccination requirements for existing and
prospective Department of Education workers (excluding OIR) who attend a high-risk setting as part of their role or the services they provide.
The CHO Direction captures many Department of Education workers (excluding OIR) as the CHO direction applies to all workers in a high-risk setting and prevents entry to a high-risk setting unless the worker complies with the COVID-19 vaccination requirements with some very limited exceptions.
This Direction applies to all Department of Education workers who attend a high-risk setting as part of their role or the services they provide.
[78] Subsequently, the Director-General of the Department issued Employment Direction 1/22 - COVID-19 Vaccinations, effective 10 March 2022 ('the Second Direction') which was not materially different to the Direction.
(1) This section applies if the chief health officer reasonably believes it is necessary to give a direction under this section (a public health direction) to assist in containing, or to respond
(2) The chief health officer may, by notice published on the department's website or in the gazette, give any of the following public health directions-
(a) a direction restricting the movement of persons;
(b) a direction requiring persons to stay at or in a stated place;
(c) a direction requiring persons not to enter or stay at or in a stated place;
(d) a direction restricting contact between persons;
(e) any other direction the chief health officer considers necessary to protect public health.
(a) the period for which the direction applies; and
(b) that a person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction.
All the decisions appealed against were fair and reasonable
[2] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311, [4]-[7].
[3] These Appellants provided different dates.
[4] Mr Downing used the word 'see' instead of 'deem' and he underlined this paragraph in his response.
[5] The senior officers were Ms Gillies-Day (in respect of Ms Holdsworth, Mr Mott and Ms Nan), Ms Kristy Springer, Executive Director, Organisational Development (in respect of Ms Graf and, Mr Downing), Mr Rynell Hastie-Burroughs, Executive Director, Business Partnering and Engagement (in respect of Ms Beard) or Mr Tim Gall, HR Shared Services (in respect of Ms Olm).
[6] These alleged legally valid 'Notice to Agent' documents were sent by the Appellants to various persons including the Premier, the Minister for Education and various Departmental employees. In summary, the notices relevantly demanded proof that the Direction was lawful and based on 'Constitutional guarantees'. The Appellants asserted that if no response was provided by a specified date, they would consider that lack of response to be the recipients' tacit agreement that they accepted that the Direction was unlawful and unreasonable.
[9] Clause 6 of Directive 16/20: Suspension directive relevantly provides:
6.1 Section 137(4) of the PS Act provides that the chief executive may decide that normal remuneration is not appropriate during a period of suspension where the employee is a public service employee liable to discipline.
6.2 A decision that normal remuneration is not appropriate during the suspension will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.
6.3 In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include:
(a) the nature of the discipline matter
(b) any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
(c) the public interest of the employee remaining on suspension with remuneration.
[10] Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018, [32] and [53]-[59] (Deputy President Merrell).
[11] Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523, 527-528 (Kirby P) and 534 (McHugh JA).
[12] [2021] QIRC 356, [104]-[131] (Davis, J, President, Vice President O'Connor and Deputy President Merrell).
[13] [1988] 2 Qd R 545, 547-548 (Williams J, Connolly J at 546 agreeing).
[14] [2014] ICQ 012, [2] (Martin J, President).
[15] In the case of Ms Graf, the date referred to in her submission was '27/1/2022'.
[16] In the case of Ms Graf, the date referred to in her submission was '27/1/2022'.
[17] Covid-19 Vaccination Requirements for Workers in a high-risk setting Direction, cl 9 ('the First CHO Direction').
[18] Ibid, sch 1 (definition of 'High-risk setting') and sch 2.
[19] Covid-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2), cl 10.
[20] Ibid, sch 1 (definition of 'High-risk setting') and sch 2.
[21] [2022] QIRC 350, [21]-[26].
Graf and Ors
State of Queensland
(1949) 79 CLR 20
(1938) 60 CLR 601
(2021) 310 IR 212
(1988) 14 NSWLR 523
(2020) 305 IR 311