//
[436]
[2023] FWC 65
General information, not legal advice.
Fair Work Commission
2023-01-10
Original judgment source is linked above.
This matter relates to DPW producing a Mandatory Vaccination Risk Assessment which had no involvement of HSRs. In line with the objective of the Act the WHS Comm/HSRs seek the assistance of the MUA in resolving the matter."
[217] Mr Lewis said that while he was not involved with WorkSafe when they attended the site, he received a call from an Inspector after the attendance who told him that the Company said they had consulted while the HSRs say they have not and that "you guys are definitely in the right here, but consultation is a loose term."
[218] Mr Lewis accepted under cross-examination that the Agreement does not state that a HSR must be involved in a risk assessment from start to finish but maintained that there was a separate agreement to this effect at the Sydney Terminal. Mr Lewis also accepted that some risk assessments are less complex than others. Further, Mr Lewis accepted that there is nothing the Agreement that prevents the Company from preparing a draft risk assessment and providing that to employees for their input. In response to questions in re-examination Mr Lewis said that a simple risk assessment may involve something like a slippery floor but in his eyes, the Mandate was the most important risk assessment or policy that had ever come through DP World and should have been treated like every other risk assessment and done in the proper way.
[220] Mr Carty is a member of the MUA and a longstanding employee of DP World Brisbane for approximately 18 years. Mr Carty is currently employed in the role of straddle driver on a full-time basis and has been a HSR at DP World Brisbane since about July 2021. Mr Carty said that in his HSR role, he was responsible for working with managers and employees at DP World Brisbane to resolve safety issues that were brought to their attention. Mr Carty explained that meetings would occur about once a month which usually consisted of feedback and cooperation from the group.
[221] On 16 September 2021, Mr Carty received the email announcement made by Mr Adam which stated that DP World Australia has "made the decision to make COVID-19 vaccination for all employees and contractors a condition of engagement" and that DP World Australia "will commence consultation with employees and health and safety representatives in the coming weeks on the details of the policy". Mr Carty said that this was the first time he had heard of a COVID-19 vaccination mandate and this surprised him because no prior meetings or consultation had taken place prior to the decision being made at the corporate level. Mr Carty said that the decision was made without involving HSRs or the Health and Safety committee at the local levels.
[222] Mr Carty was of the view that Mr Adam, in making the announcement by email, was attempting to create an impression as if proper consultation had occurred or would occur. Mr Carty asserted that this was completely contradictory to the process because DP World Australia "had clearly already made the decision to introduce mandatory COVID-19 vaccinations without meeting its consultation obligations".
[223] Mr Carty said that a conference was scheduled by management with HSRs and the MUA after the Company had received complaints from the MUA and HSRs across the country that the Company had not fulfilled their consultation obligations under Work Health and Safety legislation or the enterprise agreements. Mr Carty attended a national conference via Zoom on 23 September 2021 with representatives from DP World Australia, officials of the MUA and HSRs. In Mr Carty's view, the conference was treated as the first consultation meeting and many concerns and questions were put to DP World Australia. Mr Carty voiced their concerns and disappointment at the conference about the lack of consultation prior to the making of the announcement by Mr Adam. Mr Carty stated that management did not provide direct answers to the majority of questions and instead responded with words to the effect, "we will revert later".
[224] According to Mr Carty, a Risk Calculation Sheet (RCS) was presented at the meeting. This is a matrix scoring system detailing identified risks and proposed measures to counter them. Mr Carty said that he had never seen this RCS before and noted that an RCS is supposed to be formulated during consultation with the HSC, HSRs, other employees and the MUA. Mr Carty expressed the view that they "were essentially stonewalled at every opportunity in the meeting and that it completely contradicted how normal consultation with HSRs was supposed to happen". Mr Carty felt that the conference did not go anywhere and there were no direct answers to their questions and their opinions were not requested or heard at the time. After the conference, Mr Carty was copied into an email that Mr Evans had sent Mr Hulme detailing 26 unanswered questions from MUA members which had been raised at the meeting.
[225] In relation to Ms Kakoschke's responses to the questions raised by the MUA, Mr Carty was of the view that "the answers... were non-committal, negative or vague and in [his] opinion raised more concerns than providing answers" During a rostered nightshift on 29 September 2021, Mr Carty said that he saw copies of a document titled Covid Vaccination Mandate FAQs (the FAQs) on the tables in the smoko room. Mr Carty said that he did not receive the FAQs by email and described the document as "_an attempt to answer their concerns arising from the meeting on 23 September 202_1". Mr Carty stated that DP World Australia implemented the Mandate, despite the concerns raised by him and others, without conducting consultation in relation to the RCS or receiving real input from the MUA, HSRs or the workforce.
[226] Under cross-examination, Mr Carty accepted that the memorandum from Mr Adam dated 16 September 2021 announcing the Mandate stated that consultation would occur and said that his statement that the Company only consulted because it received complaints from the MUA may not be strictly accurate. Mr Carty said that he is not aware of whether the WHS Act requires that a risk calculation sheet must be formulated during consultation with a committee, HSRs or a Union and that he had not pointed to any document about how consultation with HSRs is supposed to occur at DP World. Mr Carty agreed that that consultation can take different forms, depending on the matter and that you would need to tailor consultation to the issues involved. Mr Carty said that a complex risk assessment may take between four and eight hours and that in the single meeting where the Mandate was discussed HSRs were given only a short window of time to read the risk assessment provided by the Company.
[227] As previously noted, the material filed by the unrepresented Applicants was in the form of submissions, which were taken as evidence to the extent that this was possible. However, most of the material consisted of assertions about COVID - 19 vaccinations which appeared to have been sourced from the internet rather than being based on any direct knowledge or expertise on the part of the unrepresented Applicants. Other matters canvassed in that material were legal arguments that have been rejected by Courts and the Commission in decisions that are binding on me.
[228] Mr Justin Pintley commenced employment with DP World in 2009 and had intended to remain employed by the Company for the foreseeable future. Mr Pintley states that he has been an honest, reliable and hardworking member of the team and commenced his role as a full time employee in 2018. Mr Pintley's contentions can be summarised as follows. The Respondent took adverse action against him by terminating his employment as a result of the exercise of his workplace right to engage in genuine consultation in regard to personal medical, health and safety information.
[230] Mr Pintley submits that his dismissal had no relation to his capacity or conduct, given that he was on workers compensation at the time he was dismissed and had not been at work since 26 June 2021 and presented no negative risk to the health, safety and welfare of other employees. Mr Pintley also submits that despite stating in an email of 16 September 2021 that it would commence consultation with employees about the Mandate, this did not occur, notwithstanding that Mr Pintley sent two emails during this period. There was no reply to these emails which is said to involve a breach by the Respondent of s. 387(c) of the Fair Work Act 2009. Both emails were tendered by Mr Pintley. The first email dated 3 October 2021, addressed to Mr Eadie and the HR Team, is said to be in reference to correspondence received by Mr Pintley dated 27 September 2021. The email, which spans some four A4 pages, states in summary:
"...information to the company upon return to work. they need to buy time but they also need to know that DPW is moving to terminate and if the (sic) can get the vax they should. Either way we will continue the case in the FWC and run unfair dismissals but that may not get members jobs back...Can you share this in your anti vax group please."[101]
[233] Mr Pintley said that this made him feel that his concerns would not be genuinely heard. Mr Pintley also referred to Mr Eadie's witness statement wherein he referred to Mr Pintley's first email of as being "pro forma" and "conspiracy thinking" ... "found on anti-vaccine websites" when this is incorrect and the TGA website clearly states (for example) that the vaccinations have "provisional approval". Mr Pintley contended that DP World had not met consultation requirements as required in the Enterprise Agreement and referred to the Full Bench decision in Mt Arthur Coal in support of this. The remedy sought by Mr Pintley was said to be compensation for loss and damage resulting from ongoing loss of income, diminished employment prospects and reputational damage, stress and anxiety and humiliation, pain and suffering arising from his unlawful treatment.
[234] In oral evidence at the hearing, Mr Pintley said that he was on workers compensation leave when the Mandate was implemented, right up until the date his employment was terminated. Mr Pintley said that he was a Union member until 12 July and no communication or consultation took place with him about the Mandate. The only emails or correspondence Mr Pintley received from DP World were the generic emails that were sent out to all the employees of DP World, in September leading up to October. Mr Pintley said that his absence meant that he had unique circumstances. Mr Pintley was still in receipt of workers compensation payments when this matter was heard.
[236] Mr Kevin MacDonald commenced employment with the Respondent in September or October 2009 and planned to work for the Respondent until he retired. Mr MacDonald was one of a group of employees who challenged the Mandate in the Federal Court and states that the case was ultimately withdrawn for financial reasons. In summary the material filed by Mr MacDonald makes the following assertions. Mr MacDonald argues that the substances the Mandate required him to inject into his body are "experimental technologies" and "gene therapy/transfection agents that should not be called vaccines". Mr MacDonald also argues that the vaccines are "a concoction of completely unknown and potentially harmful substances". Further, Mr MacDonald argues that none of the ingredients that are supposedly known are reasonable or safe for anyone to demand that he puts into his body. In refusing to be injected with these substances Mr MacDonald denies that he has done anything wrong or that he has engaged in misconduct.
[237] Mr MacDonald contends that the regulatory agencies that approved these products for market are funded by the very companies they are supposed to regulate, thereby creating a massive conflict of interest. In addition, Mr MacDonald contends that Governments are heavily influenced by pharmaceutical companies and that he has chosen to "call out liars and criminals" and has been punished for this. Mr MacDonald also contends that Government officials have blocked attempts made by the public to access data they have used to justify their decisions. Mr MacDonald also cited statistics about adverse reactions and deaths attributed to COVID - 19 and questions the lack of compensation for this. Mr MacDonalds questions whether DP World or anyone can guarantee that he will not suffer an adverse reaction, or die, because of being vaccinated and whether it is reasonable to subject an employee to unnecessary pain of any kind, including breaking his skin with a needle. Mr MacDonald also questions whether anyone has the right to tell him to put something into his body that can never be removed, given that DP World is only his employer for 8 hours per day. Further, Mr MacDonald contends that unlike personal protective equipment such as boots and hard hats, "an experimental MNRA, gene therapy/agent product" is not something that he can leave behind at the workplace at the end of a shift. Mr MacDonald maintains he should not have to risk adverse effects of these products and that "where there is risk there must be choice".
[238] After setting out allegations including criminality on the part of manufacturers of vaccines, animal deaths following experimentation, and referring to the "so called Pandemic", Mr MacDonald contends that under the Australian Immunisation Handbook, the requirement for consent to be legally valid include that it is given voluntarily, in the absence of undue pressure, coercion or manipulation. Mr MacDonald said in relation to consultation, that the MUA and HSRs do not speak on his behalf and that he did not respond to the majority of correspondence on the subject of vaccines from DP World, because he was struggling with his mental health and was off work for the majority of the time and needed to get back to work for financial reasons and did not want to give the Company any new reason to continue to leave him at home to "burn through" his personal leave after already being off for months due to another matter. Mr MacDonald also said that he did indicate that he would comply with any lawful directive, but he did not, and still does not, believe that the Mandate is lawful, reasonable or even necessary.
[239] Legal arguments raised by Mr MacDonald can be summarised as follows:
[240] Other issues raised by Mr MacDonald are that none of the current products on the market are effective to prevent COVID transmissions especially for new variants and purportedly all the so called vaccines do is reduce symptoms of the person who has taken the jab, so that it should be a personal decision whether someone chooses to be jabbed as technically they are the only ones at risk. The group of employees from DP World Brisbane offered to do rapid antigen testing at their own expense and considering that a very high proportion of the work they did was alone, operating machinery, that should have been given serious consideration as a control measure. Multiple COVID protocols applicable to foreign crews also meant that the risks for everyone were very low. Mr MacDonald also stated that other countries and Australia have started rolling back Mandates and other restrictions on travel and contact tracing requirements.
[241] Mr Zoltan Nemeth was employed by the Respondent from 28 July 2018. In summary, Mr Nemeth states that he did not provide a reason why his employment should not be terminated as he was represented by lawyers acting for a group of employees who challenged the Mandate by taking action in the Federal Court. That case was discontinued for financial reasons. Mr Nemeth contends that the COVID - 19 injections are not vaccines as defined by the World Health Organisation and ATAGI has stated that they will not prevent recipients from getting the disease. Mr Nemeth also refers to purported overwhelming evidence of complications and deaths caused by the injections and maintains that there is no definitive proof of benefit as persons who receive the injection are still getting COVID - 19 and dying from, or with, this illness. Further, Mr Nemeth asserts that the COVID - 19 injection contains genetic technology that has been previously tested on cancers but not on infectious diseases. Two of the presently used "injected drugs" are said to codify information capsules for making a spike protein which is delivered by a molecule that may have potential to marry with the DNA of recipients. Mr Nemeth contends that pharmaceutical companies have stated that they have not done trials that have investigated the effect of this medical intervention on reproductive organs or on the carcinogenicity or toxicology of this injected drug in the human body. According to Mr Nemeth, this makes the COVID - 19 mandatory injection policy of DP World a clinical experiment that is in violation of medical ethics.
[242] Further, Mr Nemeth points to the fact that the TGA website categorises the Pfizer vaccine in the "black triangle scheme" meaning that it is provisionally registered product still in clinical trials and remains experimental. In relation to legal arguments, Mr Nemeth contends that medical freedom is an inalienable right and the policy of mandatory injections is contrary to such law as demonstrated by the following points:
[243] Mr Nemeth went on to contend that the Mandate amounted to bullying, harassment, gaslighting, segregation and "Gestapo like action" inflicted on non-vaccinated humans. In conclusion, Mr Nemeth stated that it is his considered position that he serves himself and his family best if he refuses an experimental drug with known and unknown toxins and rely on his good health and natural immunity to safeguard his wellbeing. Mr Nemeth also states that he protests the interference of a medical service on him of unknown consequences and the inspection that violates his medical privacy. Finally, Mr Nemeth stated that he did not receive material safety data sheets or any substantial scientific evidence.
[244] In a written submission filed in response to directions Mr Nemeth also said that his personal medical information is protected under Federal law including, but not limited to, the Privacy Act 1988. Mr Nemeth also referred to section 51(xxiiiA) of the Constitution which guarantees protections and prohibitions within the Commonwealth of Australia and submitted that all State constitutions, laws, acts, rules and mandates are subject to that provision by virtue of s. 109 of the Constitution which provides that Commonwealth law prevails over State law to the extent of any inconsistency. Accordingly, the Mandate is rendered null and void. Mr Nemeth contends that all Australian business, courts, judges and people are bound by laws of the Commonwealth. Further, Mr Nemeth said that "where no biosecurity order has been made against me, the individual living Man, Woman or any variation thereof (person in law), under the directions by an authorised Bio Security officer and consistent with the specific directions of that order under the Bio Security Act 2015, no other order can lawfully be imposed at any time". Finally, Mr Nemeth stated that any threats imposed on him - "the living man, woman or any variation thereof (person in law) directing me to self-harm against my will, or restrict or invalidate my inalienable human rights to decline such offers creates an unlawful and unreasonable discriminatory burden upon the person(s) in law at all times".
[245] Mr Nemeth also tendered a redacted document said to be a letter sent by the Department of Health Therapeutic Goods Administration, to a person who had requested documents described as:
"1. All documents relating to the TGA's assessment of the risk of and/or presence of micro-RNA sequence (miRNA) comprised within the Comirnaty mRNA active ingredient (mRNA genomic sequence).
[246] The response to the request stated that the request could not be processed because the documents did not exist.
[247] Mr Taylor was employed by the DP World Brisbane from 17 July 2017 and intended to remain employed by the Company until his retirement. Mr Taylor was part of the group of employees who challenged the Mandate in the Federal Court but said that the case was withdrawn for financial reasons. In summary Mr Taylor states that the gene therapy/transfection agents do not meet the definition of vaccines and finds the fact that the official definition of vaccine was changed after their release to the market, disturbing. The Therapeutic Goods Administration has confirmed that this medical information will not prevent people from contracting COVID - 19 and nor will it prevent transmission in the community. Mr Taylor raises the issue of the Commonwealth Criminal Code Act 1995 providing that participation in a clinical trial must be voluntary and contends that: "Suppressing known safe and viable alternative treatments to justify pushing an experimental product, purely for profit, is a crime worthy of prosecution."
[248] Mr Taylor states that the long-term health effects of these products is not known and cannot be known for several years and the fact that death is listed as a possible reaction, in itself, no matter how low the likelihood, should be sufficient grounds to refuse to participate in a clinical trial. Mr Taylor queries how, in circumstances where section 51(xxiiiA) of the Constitution strictly prohibits medical conscription and there are no Human Biosecurity Control Orders issued under the Biosecurity Act, a private company can derive legal powers that the Australian Government doesn't have. Mr Taylor points to the fact that there was no State Government requirement in Queensland to justify the imposition of a forced medical procedure to DP World employees in order to keep their jobs and even if there was, section 109 of the Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail.
[249] Further, Mr Taylor referred to the Immunisation Handbook, which provides that consent to immunisation must be voluntarily given and the Privacy Act which makes it unlawful to require someone to provide their private medical information unless they provide consent. Finally, Mr Taylor stated that he was part of a group of employees who offered to do rapid antigen testing at their own expense before the start of every shift, which is actually better than being vaccinated. It is also relevant that DP World does not require truck drivers or contractors to be vaccinated. Mr Taylor also said that the MUA asked the Company perfectly reasonable questions and requested copies of material safety data sheets for various types of vaccinations and safe work method statements that technically should have been written before DP World took this course of action. According to Mr Taylor, the Company's response to this communication was completely lacking in substance and was a clear attempt to deflect liability.
[250] The MEU filed written submissions on 31 January 2022, 14 February 2022 and 13 May 2022. The MEU submits that the following facts are established. On 16 September 2021 DP World posted on its website a report that it had decided to implement a mandatory COVID-19 vaccination policy for all employees and contractors. Despite the Company's announcement that it had commenced consultation with its workforce and health and safety representatives (HSRs), in fact, it had not consulted with its employees, its HSRs, or the MUA as the union that represents the interests of DP World employees. The same day that the Company announced on its website its decision to mandate vaccinations, DP World Australia CEO, Mr Adam, issued a bulletin in which he notified employees that the Company had "made the decision to make COVID-19 vaccination for all employees and contractors a condition of engagement". He also informed employees that: We will commence consultation with employees and health and safety representatives in the coming weeks on the details of the policy. Thus, as Mr Adam freely acknowledged, DP World failed to consult with employees and HSRs prior to making a firm decision to implement its vaccine mandate. In fact, at no time did the Company ever engage in meaningful discussions with its employees, its HSRs or the MUA before implementing the policy.
[251] On 20 September 2021, four days after the Company declared its intention to implement the vaccine mandate, Mr Hulme, DP World's Chief Operating Officer - Terminals, wrote to Mr Evans of the MUA, informing him that the Company had unilaterally conducted a "risk assessment" and invited HSRs to do nothing more than "provide their feedback" to the assessment. In response, Mr Evans and HSRs from ports around the country met with Mr Hulme and other Company managers via video link on 23 September 2021. At the meeting Mr Hulme provided the attendees with a "Risk Assessment Form" that the Company completed without any input from, or consultation with, HSRs or the MUA. HSRs at the meeting objected to the risk assessment that was provided to them on the basis that the document wasn't a "risk assessment" because it did not result from any risk analysis by the Workplace Health and Safety Committee.
[252] After the meeting Mr Evans wrote to Mr Hulme appending questions raised at "today's initial consultation meeting" around the announcement of mandatory covid vaccination pointing out the obligation to properly consult in relation to any policy that will have significant impact on employees. The letter stated that given the sense of urgency around the Company's fast approaching timelines, the MUA expected responses ASAP but no later than COB Wednesday 29 September as per the commitment made that day. The letter further stated that, as agreed that day, a further consultation meeting should occur after the MUA had the opportunity to digest responses. The MUA submitted that the Company responded via e-mail with a one or two sentence response to each question and that rather than considering Mr Evans' questions as a starting point for meaningful consultation, DP World considered its inadequate response as meeting its obligation to consult - under both the WHS Acts and the consultation provisions contained in the respective Enterprise Agreements.
[253] The Sydney Branch of the MUA, acting through Assistant Branch Secretary, Brad Dunn, repeatedly protested that the Company had not meaningfully consulted with HSRs as is required by both the Work Health Safety Act and the EA. Nonetheless, the Company notified the MUA on 7 October 2021 that the consultation process had concluded. On roughly 19 October 2021 DP World sent letters to those Sydney based employees who had not provided proof of their vaccination status by the Company's nominated deadline, inviting them to show cause why their employment should not be terminated. Except for a handful of employees whose contraindication certificates were accepted, approximately one week after sending out the show cause letters, DP World terminated the careers of those employees who failed to provide proof that they had been vaccinated against COVID-19. Likewise, in early November DP World sent letters to those Brisbane based employees who had not provided proof that they had been vaccinated inviting them to show cause why their employment should not be terminated. Shortly thereafter, DP World terminated their careers as well.
[254] The MUA submits that DP World's direction to get vaccinated could only provide the Company with a valid reason for dismissing those employees who did not provide proof that they had gotten vaccinated by the Company's nominated cut-off date if the direction was both lawful and reasonable and that the direction was manifestly unreasonable. The MUA submitted that consistent with the Full Bench Decision in Mt Arthur Coal the direction was not reasonable because DP World failed to:
[255] The Company's failures render its direction to employees to supply proof that they had gotten vaccinated unreasonable, thereby establishing that the vaccine mandate did not provide DP World with a valid reason to dismiss any of the Applicants.
[257] This could be contrasted with the facts in Mt Arthur Coal, where the Company had, prior to implementing its mandatory vaccine policy:
"...commenced an education program and promoted COVID-19 vaccination to all of its employees across its Australian operations, including those employed by Mt Arthur. This included the regular circulation of announcements and videos that informed employees of the health and safety benefits of vaccination, exposed common myths about COVID-19 vaccines, and provided information about how employees could book their vaccination appointments."
[258] The MUA submitted that DP World did not do any of those things. While, in the bulletin that Mr Adams sent to DP World employees, he assured them that "COVID-19 vaccinations are a safe and effective form of protection for our people and the community to reduce transmission and associated serious health impacts", the Company provided employees with no scientific basis for that bare conclusion. Importantly, even though the Company knew, or should have known, that a plethora of vaccine myths proliferated on social media sites, DP World took no steps to attempt to debunk any of them. Had the Company met its consultation requirements, HSRs almost certainly would have made an education campaign based on science a fundamental element of any vaccine mandate.
[259] When DP World management did finally meet with Mr Evans and HSRs via video link, the meeting did not amount to anything that could be reasonably described as consultation. The Company did nothing more than provide the Union and HSRs with copies of a "Risk Assessment Form" that DP World had completed without any input from its employees, HSRs, or the Union. In other words, DP World said, "we are going to implement a mandatory vaccine policy based on this risk assessment that we performed"; not, "we are considering implementing a mandatory vaccine policy based on our risk assessment, will you please provide us with feedback"?
[261] Because the Company failed to comply with its consultation obligations under Work Health and Safety legislation prior to implementing its mandatory vaccination policy, DP World's direction to employees to get vaccinated was unreasonable. As such, a failure by employees to comply with the direction did not provide the Company with a valid reason to dismiss them. The MUA also submitted that in addition to its obligation to consult under the New South Wales and Queensland Work Health and Safety Acts, DP World agreed in enterprise bargaining to make consultation with the Union and employees the foundation of its health and safety obligations, as evidenced in clause 21.4 of the Enterprise Agreements.
[262] Even if the Commission somehow determined that the Company complied with its consultation obligations under the WHS Acts, the Company's level of consultation with employees could not be said to fulfil DP World's acknowledgment that "consultation is an essential part of managing health and safety risks", and its undertaking "to communicate and consult with employees and HSRs about matters which affect, or are likely to affect, the health and safety of employees". The EA goes substantially further than the Work Health and Safety Act by requiring DP world to draw, not only on the knowledge and experience of employees, but also the experience of "health and safety specialists".
"During this generation, there has been an accelerating trend towards concentration of economic power in fewer and fewer persons. The growth of the great national corporations, their mergers and expansion into transnationals have transformed the methods of production, distribution and exchange. The power of the greatest corporations transcends that of most governments. A reaction to the submergence of the individual worker is the demand by organized workers for some share in deciding what work is to be done, by whom and when, where, and how it is to be done. The thrust of the demand is not merely the improvement in existing pay and conditions. It extends to the protection of jobs, for themselves treated as more than wage-hands - to be treated as men and women who should be informed about decisions which might materially affect their future, and to be consulted on them. It is a demand to be emancipated from the industrial serfdom which will otherwise be produced by the domination of the corporations; a demand to be treated with respect and dignity."[108]
[264] In sum, the same evidence that establishes that DP World failed to comply with its consultation obligations under WHS Acts leads to the conclusion that the Company also failed to comply with its consultation obligations under the terms of the Enterprise Agreements. That failure makes the Company's direction for its employees to get vaccinated unreasonable and renders invalid the reason that the Company relied on to dismiss each of the Applicants.
[265] In relation to the submission that the mandatory vaccine policy is inoperative because it fails to comply with the intent of the Enterprise Agreements, the MUA referred to clause 8.12, emphasising the part of the clause which states that: "Nothing contained in a policy or procedure shall be operative nor shall it have any effect to the extent that its inclusion or implementation is inconsistent with the intent of this Agreement."
[267] The MUA also contends that the overarching intent of the Enterprise Agreements is consultation between the Company, its employees, and the MUA and the heart of the health and safety provision is consultation. In this regard the Union pointed to the fact that the word "consultation" appears in the Enterprise Agreements 26 times. While DP World, no doubt, will argue that it implemented the policy to protect the health and safety of its employees, and to comply with its obligations under a myriad of health and safety laws and regulations. That assertion is uncontroversial. Despite the Company's intentions, its "Big Brother" approach to protecting the health and safety of its employees is prohibited by the Enterprise Agreements. While accepting that the intent of the Agreements includes an intention to keep employees safe - especially during a worldwide pandemic in which millions of lives have been lost - the mechanism for achieving this is consultation with employees and HSRs - not the heavy-handed dictates of an employer - no matter how well intentioned.
[268] Moreover, the mandatory vaccine policy could not be more contrary to the job security provisions of the agreement. In this regard, a policy that results in the summary dismissal of employees who have worked for DP World for many years, and in some cases, decades, is antithetical to job security - a core objective of the agreement. As noted above, clause 8.12 of the agreement is even broader than the consultation obligations contained in the health and safety provisions. It declares that any policy that the Company implements that is inconsistent with the intent of the EA is inoperative and without effect. Inherent in that provision is a requirement that DP World refrain from implementing policies like the mandatory vaccine policy without bargaining with employees and the Union, or having the employees and the Union sign off on the policy as complying with the intent of the EA.
[269] In sum, the MUA contends that in addition to the other reasons discussed in its submissions, the Mandate is unreasonable because it is contrary to clause 8.12 of the EA and, therefore, cannot provide DP World with a valid reason to terminate any employee. In this regard, the process undertaken by DP World in relation to its decision to implement the mandatory vaccine policy was "woefully inadequate". Employees were not given a reasonable opportunity to express their views, to raise work health or safety issues, or to contribute to the decision-making process relating to the decision to introduce the vaccine mandate. They were not provided with information relating to the reasons, rationale and data supporting the proposal, nor were they informed of the analysis that informed the Company's unilaterally performed risk assessment. They were not invited to comment on the Company's plans, let alone engage in a consultation process. Rather, they were merely informed that the Company had decided to implement the policy.
[270] DP World's failure to meet its consultation obligations under both Work Health and Safety legislation, and the Enterprise Agreements that govern the working conditions of its employees, renders the mandatory vaccination policy unreasonable. In no circumstances can a failure to comply with such an unreasonable policy provide an employer with a valid reason for dismissing an employee.
[271] The MUA also contends that DP World exacerbated the unreasonableness of the vaccine mandate by pressuring employees into surrendering their bodily integrity and failing to consider their concerns. In Mt Arthur Coal, the Union argued that the employer's mandatory vaccine policy "at least impacts upon the choice of an individual to undergo a medical procedure" and hence engages the common law right to personal and bodily autonomy and integrity". The MUA contends that the Full Bench agreed and said the following:
"[222] While we would demur from the proposition that the Site Access Requirement constitutes coercion in the legal sense, we accept that it is a form of economic and social pressure.
[223] The practical effect of the Site Access Requirement is to apply pressure to employees to surrender their bodily integrity (by undergoing medical treatment) in circumstances where they would prefer not to do so. In our view, this is plainly a relevant matter in assessing the reasonableness of the direction. However, we also accept that this factor is not determinative of the question of reasonableness; it is a consideration to be weighed in the balance with the other relevant considerations. As counsel for the Respondent put it in the course of oral argument:
Mt Arthur Coal acknowledges, that every worker on the mine has a right to their bodily integrity, but, as we have pointed out in our written submissions, that is a right that in every case must be balanced against other rights ...
[224] The practical effect of the Site Access Requirement also underscores the significance of the failure to meaningfully consult with the Employees prior to the decision to introduce the Requirement. It is common knowledge that some citizens feel very strongly about their bodily integrity and do not wish to be vaccinated. A minority of the Employees appear to hold such views. It is particularly important that these employees be heard; that they be consulted and their views be taken into account."
[272] The fact that DP World implemented a policy that imposes a practical compulsion to get vaccinated in order for its employees to retain their employment, and its failure to consult with, let alone take into account, the views of employees who feel strongly about bodily integrity and do not wish to be vaccinated, when combined with the Company's failure to meet its consultation requirements, weighs heavily in favour of a conclusion that the policy is unreasonable.
"Consent' in APP 3.3. means 'express or implied consent'. The Australian Privacy Principles Guidelines issued by the Australian Information Commissioner under s. 28(1) of the Privacy Act explain:
• the individual is adequately informed before giving consent
• the individual has the capacity to understand and communicate their consent.
Guidance issued by the Office of the Australian Information Commissioner on COVID19 vaccinations and privacy obligations explains:
Consent to collecting vaccination status information must be freely given and constitute valid consent. You must make sure that your employees understand why you need to collect this information, what you will use it for, and give them a genuine opportunity to provide or withhold consent. You should exercise caution in seeking consent in these circumstances given the imbalance of power in the employment relationship that may cause employees to feel pressured or obligated to provide their consent."
"whether, in circumstances where employees are liable to termination of their employment for refusal to provide the information sought in the manner required, any consent they may give (or have given) to provide the vaccination information pursuant to the direction, is vitiated because it is not voluntary or it is the result of coercion or duress."[112]
[275] The employer in BHP Coal required employees to either (a) upload their vaccine digital certificate, or (b) visit designated stations on-site at which authorised personnel could sight their digital certificate. Moreover, employees were asked whether they would give their express consent to the collection of the information via the following consent notice:
To keep you and our workforce safe and healthy BHP wishes to collect and process information about your COVID-19 vaccination status. This will assist us to plan for the future and escalate or deescalate our COVID-19 controls and enable us to make decisions about workplace and site access in order to protect you and other BHP workers against COVID-19 infection risk.
1. collecting and processing information about your COVID-19 vaccination status for the purposes described above; and
2. where necessary, disclosing this information to third parties (health, security, site access and travel service providers); and
3. storing this information in BHP systems in line with our Global Privacy Notice for BHP Workers.
Giving your consent is voluntary and you are free to withdraw, alter or restrict your consent at any time by notifying BHP in writing. However, it would be helpful for you to share your vaccination status with us, as it will assist BHP to identify controls to continue to keep our workers as safe and healthy as possible. Without access to this information, we may assume that you have not received the COVID-19 vaccine for the purpose of our controls, including workplace entry controls.
We will manage all of your information in accordance with privacy laws. Your information will be stored securely and only accessible by the BHP Health Team. For more about BHP privacy management practices, and about your rights in relation to information held by BHP, please see the Global Privacy Notice for BHP Workers and Our Requirements for Information Governance and Controlled Documents."
[276] The Commission had no problem concluding that the employer in BHP Coal complied with its obligations under the Privacy Act and concluded:
"It is clear from the material before me that individual employees have been more than adequately informed about relevant matters pertaining to consent identified in the APP and relevant guidance issued by the OAIC. Explanations provided to employees include why the Respondents need to collect the information and what it will be used for. Consultation has been extensive and comprehensive, and the Respondents have utilised multiple methods of disseminating information. Employees have also received explanations about how the information is proposed to be collected and stored including safeguards relating to confidentiality. There has been consultation about issues, concerns and suggestions raised by employees. There is no suggestion in the case of employees who have given consent (or have complied with the request to signify their agreement to providing the information) that the consent is not current and specific. Nor is it in dispute that any relevant employee has capacity to understand and communicate their consent."[113]
[277] Comparing the measured, informative approach that the employer took in BHP Coal, with the heavy-handed ultimatum issued by DP World, is a study in contrasts. While BHP Coal gave its employees enough information for them to make an informed choice, DP World did nothing more than threaten to terminate any employee who refused to provide a copy of their government issued vaccine certificate. As far as any of the Applicants are aware, the only information that the Company provided to them in relation to their rights under the Privacy Act is the following that was provided in a bulletin labelled "COVID VACCINATION MANDATE - FAQs":
The Privacy Act has limited application to employment, all records relating to your employment are not regulated by the Privacy Act. Having said that, DP World takes its obligations to protect your health information seriously. We have been clear it will be used for a very limited purpose, held securely and have very restricted access. IT security statements are available on request. If an employee doesn't wish to provide a COPY of the certificate, HR will still need to record their status and view their certificate so employees still need to advise of their vaccination status - this approach is not currently practicable as HR is not available on site across all shifts to site information.[114]
[278] The MUA contends that unlike the employer in BHP Coal, DP World did not adequately inform its employees about relevant matters pertaining to consent identified in the APP and relevant guidance issued by the OAIC. The Company offered no explanation to employees as to why it needed to collect the information and what it would be used for. Consultation was non-existent, and other than the response to the FAQ above, the Company did not disseminate any information.
[279] In BHP Coal the Unions relied on the following finding by the Full Bench in Lee v Superior Wood Pty Ltd (Lee) (26 [2019] FWCFB 2946.) to argue that the employer's direction to provide copies of their vaccination certificate was unlawful:
"[58] For the reasons set out above, we consider the direction to Mr Lee to submit to the collection of his fingerprint data, in circumstances where he did not consent to that collection, was not a lawful direction. Moreover, we consider that any 'consent' that he might have given once told that he faced discipline or dismissal would likely have been vitiated by the threat. It would not have been genuine consent. Given this finding, it is not necessary to consider whether the direction was reasonable. Nonetheless had it been necessary to do so we conclude the direction was unreasonable. A necessary counterpart to a right to consent to a thing is a right to refuse it. A direction to a person to give consent does not vest in that person a meaningful right at all. Such a direction is in the circumstances of this case, unreasonable. It was not a valid reason for dismissal."
[281] Unlike the employer in BHP Coal, DP World, as far as the MUA and the Applicants are aware, does not have a privacy policy as required by APP 1, did not issue a Privacy Notice to employees as required by APP 5, and did not notify any of the Applicants of matters in APP 5 including about complaints they might have made in relation to privacy. Accordingly, as was the case in Lee, the direction to the Applicants to provide proof of their vaccination status in circumstances where they did not consent to that collection was neither lawful nor reasonable.
[282] In sum, DP World's failure to comply with the consent requirements under the Privacy Act and attendant Privacy Principles establish that the direction for employees to produce their digital vaccine certificate was unreasonable. Likewise, the Company's failure to comply with the notification and procedural requirements of the Privacy Act makes the direction to produce digital vaccine certificates unlawful. As discussed above, an unlawful or unreasonable direction can never serve as a valid reason for dismissal.
[284] Thus, in Sydney at least, DP World employees are mingling in the community with unvaccinated persons as they go about their daily lives. When governments do not implement public health orders that restrict unvaccinated residents from attending places where vaccinated persons congregate, a mandatory vaccine policy does not make a worker any less likely to become infected than they would be if three percent of their co-workers remained unvaccinated. After all, when DP World employees shop for groceries in Sydney, statistically, six percent of the patrons will be unvaccinated - double the percentage of unvaccinated workers that would work at the Company's operations had it not dismissed the Applicants.
[285] Thus, even if three percent of DP World's workforce remained unvaccinated, work is the safest public place where vaccinated workers could be. Likewise, because of the high vaccination rates at DP World, an unvaccinated worker would be less likely to get infected with COVID-19 while at work than when going about their daily lives. While the Queensland government still has restrictions in place for unvaccinated people, soon when vaccination rates hit 95 percent those restrictions will undoubtedly get lifted. When that happens, just as in New South Wales, a reasonable justification for a mandatory vaccine policy is difficult to ascertain.
[286] The MUA submits that the reality is that a small percentage of Australians will never get vaccinated against COVID-19. Without extraordinary government action that results in the permanent segregation of unvaccinated people from the vaccinated, unvaccinated people will live and work and play in the community with their vaccinated neighbours. Once governments decide that the unvaccinated and the vaccinated will co-exist, a Company cannot make their employees safer by mandating vaccines. In short, DP World's mandatory vaccine policy is unreasonable because it does not achieve its claimed purpose of keeping its employees safer than if the policy had not been implemented.
[287] In post-hearing written closing submissions, the MUA said:
"The Respondents wax poetic about the sufferings that Australians have endured throughout a pandemic that has upended our very way of life. It is not controversial that COVID-19 has sickened more than six million of us and killed more than seven- thousand of those infected. But the seriousness of the pandemic is not in issue and does not justify the Respondent's failure to comply with its obligations under the law. We remain a nation that values the rights that our forebears shed their blood, sweat and tears to pass on to future generations. In the workplace, they fought for better wages and working conditions. They fought for individual worker rights. And, they fought for laws that gave workers a say in matters of their health and safety - especially in a time of a public health crisis. Gone are the days when workers do not have a seat at the table when employers propose to introduce policies that impact the health and safety of their workforce.
DP World suggests that the pandemic created a health care catastrophe that compelled it to act decisively by mandating that employees surrender their bodily integrity and their rights under privacy laws by getting injected with two doses of a vaccine - without first consulting with the affected workers. That authoritarian approach to health and safety in the workplace is prohibited by the WHS Act. The Full Bench in Mount Arthur Coal explicitly confirmed that to be the case, noting:
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.[119]
DP World also emphasises that its operations are critical to getting essential supplies to the inhabitants of this island nation, and suggests that the company should be pardoned for its failure to consult with its employees before deciding what was best for them because it was tasked with the weighty responsibility during a public health crisis of ensuring the free flow of goods and saving the Australian economy from near certain collapse.
That assertion does not stand up to scrutiny. It is the role of government to ensure that food and medicine and other goods reach our shores - not a publicly held company. And, as Mark Hulme acknowledged, none of the other stevedoring companies operating in Australia - all of which are also responsible for ensuring that goods flow into and out of our borders - introduced a vaccine mandate.[120]
The importance to stevedoring companies to Australia are just as obvious as the importance of coal mining companies. Australia's primary energy consumption is dominated by coal (around 40 per cent).[121] Despite the potentially catastrophic effects to Australia if its largest coal mining company was shut down due to mass infections in its workforce, the Mount Arthur Coal Full Bench had no trouble concluding that, so vital is the duty to consult with employees before deciding to implement a vaccine mandate, that a threat to the company's ability to provide the fossil fuels upon which Australia depends to meet its energy needs did not extinguish its obligation to consult with its employees before it dictated that they get vaccinated.
For all its talk of concern for its employees' health and safety, and the critical role that it plays in relation to the Australian economy, it is clear that DP World's primary concern in implementing the mandate was its own economic interests. The Respondent's lawyer acknowledged as much, boasting that "DP World makes no apologies for the fact that it has a commercial interest"[122] in continuing "to operate effectively and efficiently and that it minimise the extent to which problems with labour availability disrupt its operations".[123]
In other words, for all of its lofty justifications for spurning its duty to consult with its workforce before dictating that they get injected with two doses of a vaccine that many of its employees did not want to get injected with, DP World's decision to mandate vaccines was an economic one. While dressed up with fancy phrases like "operational continuity" and the "public interest in continuity of stevedoring operations", the company chose not to bother with what it considered the minutia of consulting with its employees in matters related to their health and safety because doing so might adversely affect the bottom line of DP World shareholders.
To be clear, the represented Applicants do not criticise DP World for looking after its commercial interests. After all, we live in a capitalistic society and the directors of publicly traded companies owe fiduciary duties to shareholders. What the represented Applicants do object to, however, is the fact that DP World deceptively maintains that its failure to consult with employees stemmed from its overarching benevolent duties to protect the health and safety of its workforce and to ensure that essential goods reach every Australian household. DP World need not apologise for pursuing its commercial interests. What it should apologise for, however, is placing its commercial interests over the workplace health and safety rights of its workers. What it should further apologise for is sacking twenty-two hard-working wharfies who were given no opportunity to express their views prior to the company's decision to implement a policy that affected their health and safety."
[290] It goes without saying that, whenever an employer implements a vaccine mandate, it does so for the purpose of operational continuity. For profit corporations exist for the purpose of making money. When large numbers of employees need to self-isolate because of exposure to COVID-19, employers' bottom lines are affected because they do not have enough available labour to perform the work that needs doing. That is the case whether the employer is a coal mine, a meat packing Company, or a stevedoring operation. Thus, while the employer in Mount Arthur Coal acknowledged that it implemented its vaccine mandate for health and safety reasons, inherent in its decision to introduce the mandate was the dual purpose of maintaining operational continuity so as to maximise for shareholders a financial return on their investment.
[291] This is submitted to be self-evident from the fact that the employer in Mount Arthur Coal went to tremendous lengths to continue its mining operation at full force during a worldwide pandemic. If the Company's sole concern was the health of its employees, it would have ceased its operations and directed its employees to stay home rather than risk getting infected at work. Moreover, DP World fails to support with logic or precedent its assertion that it has a reduced consultation obligation under the WHS Act because it had a secondary purpose for introducing a mandate. Section 49(d) of the WHS Act provides that consultation is required "when proposing changes that may affect the health or safety of workers". Thus, the obligation to consult is not triggered by the Company's stated purpose or purposes for implementing a vaccine mandate, and its obligation to consult is not reduced because one of the reasons for implementing the mandate is not safety related. Rather, what triggers the obligation to consult is a proposed change "that may affect the health or safety of workers".
[292] Second, the Respondents attempt to distinguish Mount Arthur Coal by suggesting that there was somehow a greater sense of urgency to implement a vaccine mandate at DP World than there was at the employer's operations in Mount Arthur Coal. According to DP World, the fact that two of its Sydney employees tested positive on 15 September 2021 created a state of emergency that required it to implement a vaccine mandate in, not only Sydney, but Brisbane, Melbourne, and Fremantle. DP World seems to argue that the purported state of emergency made it impractical, or impossible, for the Company to consult with employees, their Union, and HSR's before making a firm decision to introduce the mandate.
(1) This section applies if an inspector reasonably believes that a person -
(a) is contravening a provision of this Act, or
(b) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.
(2) The inspector may issue an improvement notice requiring the person to -
(a) remedy the contravention, or
(b) prevent a likely contravention from occurring, or
(c) remedy the things or operations causing the contravention or likely contravention."
[297] The MUA contends that by the time SafeWork NSW got involved, the damage had already been done, and the Agency was powerless to do anything about DP World's failure to consult. SafeWork could not issue an improvement notice that would (a) remedy the Company's failure to consult, (b) prevent a likely contravention from occurring, or (3) remedy the harm that resulted from DP World's failure to consult. SafeWork NSW did not issue an improvement notice because it would have been pointless to do so. In sum, the fact that SafeWork did not issue an after-the-fact improvement notice is irrelevant to a determination of whether DP World met its consultation obligations under the WHS Act. It would serve as a dangerous precedent for the Commission to infer from a state agency's inaction that it had made a positive determination that a Company had complied with its consultation obligations under the WHS Act. With due respect, it's the role of the Commission to determine that question, not SafeWork NSW.
[298] The MUA also contends that if DP World's argument were to prevail, then we would be left with the bizarre result of the mandate being declared unreasonable because of a lack of consultation in the case of the Brisbane Applicants, but reasonable in the case of the Sydney Applicants - even though the level of consultation was nearly identical in both locations. Further, the MUA contends that DP World's assertion that it was open to reconsidering its vaccine mandate after consulting with employees is contradicted by all credible evidence. In this regard, the Respondents correctly note that the "trump card"15 that the Applicant's hold is the fact that all the consultation occurred after Mr Adam unambiguously announced the decision to implement the Mandate.
[300] The MUA submits that nearly identical facts arose in Mount Arthur Coal. There, the employer's CEO, Mr Basto, sent out a bulletin containing language practically mirroring the language contained in Andrew Adams' bulletin:
"Based on the findings of our assessment, the Company will introduce a requirement for COVID-19 vaccination as a condition of entry to BHP workplaces in Australia for all workers and visitors. [emphasis in original]"[136]
[302] The MUA submits that Mr Hulme's suggestion that the Company remained open to reversing its decision to mandate vaccines should be rejected because it flies in the face of the clear language contained in the bulletin sent out by DP World's CEO and "public face". If the Company remained open to reversing Mr Adams' announcement, only he could credibly say so. It simply isn't credible for anyone less senior that Mr Adams to testify that Mr Adams did not really mean what he said when he announced that the Company had decided to make vaccination a condition of employment. Such evidence is self-serving and speculative.
[303] In conclusion, the MUA submits that DP World stubbornly clings to the argument that Mount Arthur Coal does not stand for the proposition that, when a Company decides to introduce a vaccine mandate before consulting with its employees, the mandate is unreasonable, and employees therefore need not follow it. That position is belied by the language used in the Full Bench decision in that case in its conclusion in relation to the reasonableness of the direction. In particular, the MUA points to the fact that the determinative consideration in the finding that the Site Access Requirement was not a reasonable direction was that the Full Bench was not satisfied that there was consultation in accordance with ss. 47 and 48 of the WHS Acts. The MUA submitted that other than the fact that the Company in Mount Arthur Coal consulted comprehensively with its employees when compared to the total lack of consultation between DP World and its workforce, the facts in Mount Arthur Coal are indistinguishable from those presented here. As such, the Commission should reach the same result. That is, DP World's vaccine mandate is unreasonable and did not provide the Company with a valid reason to dismiss any employee who failed to comply with it.
[304] The MUA also submitted that the Respondents' submissions to the effect that its case proceeded almost entirely by reference to the Mt Arthur Coal and that reliance on other matters is "faintly pressed" should be rejected, and the represented Applicants have not abandoned any aspect of their earlier submissions as was made clear in the post-hearing submissions but had rather chosen not to replicate those earlier submissions. For these reasons and those in previous submissions, the represented Applicants respectfully request that the Commission hold that DP World's vaccine mandate did not provide the Company with a valid reason to dismiss them.
[305] Notwithstanding this submission, in oral closing submissions, the MUA contended that the Full Bench Decision in Mt Arthur Coal is dispositive of whether there was a valid reason for the dismissal of the Applicants and the contention that if I follow the decision in Mt Arthur Coal, as I am required to do, "DP World loses" and that the only way the Company can prevail is if I refuse to follow that Decision. The MUA also emphasised that a direction is required to be both lawful and reasonable before employees can be required to comply with it, and that the direction to the Applicants to comply with the Mandate was not reasonable because of failures on the part of the Respondents to comply with: consultation requirements in relevant enterprise agreements; the provisions of the Privacy Act 1988 (Cth); and the rights of the Applicants to bodily integrity. These matters were said to buttress the MUA's submission that the direction was unreasonable based on the failure of the Respondents to comply with consultative requirements in the WHS Acts.
[306] As previously noted, the submissions of the self-represented Applicants were intertwined with statements of evidence which I have earlier summarised. In addition to consultation issues, the self-represented Applicants made various contentions which can broadly be categorised as medical, legal and operational concerns about the Mandate and COVID - 19 vaccinations generally. In relation to medical issues, the contentions included that gene therapy/transfection agents are not vaccines; long term health effects attributable to these products cannot be known for several years; vaccine companies' trial study data and surveillance data from overseas reveals numerous adverse health events linked to the vaccines; the Respondents did not provide material safety data sheets or safe work method statements for "vaccine" products. Various assertions were also made about the properties of the COVID - 19 injections including their capacity to marry with human DNA; adverse effects suffered by many people after taking the injections; lack of trials and clinical testing; the fact that the approval of the injections is "provisional"; COVID - 19 has not proven to be a significant threat to human health and safety on a nationally significant scale; and lack of clinical trials in humans to establish whether there are benefits that over-ride risks.
[307] It was also contended that vaccines have been rushed through based on an emergency and have not gone through proper safeguard trials. Copies were tendered by some Applicants of a Decision in relation to a Freedom of Information Request made to the Therapeutic Goods Administration (TGA) for documents relating to various matters including micro-RNA sequences; OnComirs; Stop-codon read-through; the assessment of the final composition of the protein product including molecular weight and amino acid sequence following injection into human beings; evidence of assessment of the final protein product and TGA's assessment of the risk of the use of the AES-MRRNR1 3 untranslated region of the Comirnaty MRNA product in human subjects. The Decision stated that the request could not be processed because the documents requested do not exist.
[308] Legal arguments advanced included that: there is no authority to override the Australian Constitution which prohibits medical conscription at s. 51(xxiiiA); there was no State Government requirement within Queensland to justify the imposition of a forced medical procedure on the Respondents' employees in order for them to keep their jobs; if there was such a requirement s. 109 of the Australian Constitution provides that when a law of the Commonwealth is inconsistent with the law of a State then the former shall prevail; the immunisation Handbook provides that for consent to be legally valid it must be given voluntarily; and the High Court of New Zealand had found that vaccine mandates were unlawful. Reference was also made to: the Nuremburg Code in relation to voluntary consent; the Siracusa Principles guiding restrictions on government responses that restrict human rights for reasons public health and national emergency; and provisions of the Commonwealth Criminal Code relating to interfering with political liberty. Further, it was asserted that the requirement to advise the Respondents of vaccination status breached the provisions of the Privacy Act.
[309] In relation to operational matters, it was asserted that these products do not stop a vaccinated person from contracting and spreading COVID; the Respondents have no vaccination requirements for truck drivers and contractors who regularly enter the terminal; and alternatives such as rapid antigen testing or anti-viral medications were not considered. Miscellaneous matters included that: consideration was not given to the ramifications of COVID - 19 vaccinations on life and health insurance premiums and coverage and alleged criminal conduct on the part of companies manufacturing vaccines.
[310] In addition to raising the issue of lack of consultation and similar medical and legal contentions to those raised by other self-represented Applicants, Mr Pintley contended that his dismissal was not for a valid reason on the basis that his employment was terminated while he was absent from the workplace on personal leave and later workers' compensation leave, and that his vaccination status posed no risk to the Respondents.
[311] DP World filed submissions on 31 January, 14 February and 6 May 2022. In summary, DP World contends that it properly adopted a requirement that all employees in stevedoring operations (among others) be fully vaccinated against COVID-19 by particular dates. Each of the Applicants was dismissed following the adoption of the Vaccine Mandate because they:
(a) either (i) indicated to their employer that they were not and would not be vaccinated against COVID-19; or (ii) would not advise whether they had been vaccinated; and
(b) did not have a proper medical exemption.
[312] The Mandate has two critical purposes. The first is of course to protect worker safety. The second, which is more specific to DP World's operations, is to protect operational continuity of DP World's stevedoring terminals. These terminals are a critical link in the Australian import/export supply chain, and their reduced or interrupted operation disrupts vessel transits and planned container exchanges. That is to be avoided. There is a clear public interest in these terminals continuing to operate without interruption, with sufficient labour to meet customer needs at all times.
"A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal."[149]
[318] In the present case, the circumstances, practices, and surrounding matters are said to be as follows. In closing submissions the Respondents set out the background to the imposition of the Mandate stating that as a matter of notorious fact, since March 2020, Australia has faced a pandemic of viral illness on a scale not seen since the 1918 Spanish Flu outbreak. Every participant in this matter has been affected by the unprecedented public health response to the pandemic, up to and including "lockdowns" whereby whole cities have been subject to "stay at home orders" requiring that residents not leave their homes except briefly for a limited number of reasons. They have also been subject to a wide range of lesser, but still unprecedented and very significant, public health restrictions that have impacted on everyday life, including mask mandates, and wide-ranging limitations on individual movement.
[320] Throughout the restrictions described above, DP World employees remained entitled by law to attend for work when many other persons were not. It was critical and in the public interest that they did so. Australia is an island, and for the vast majority of its trade, depends on maritime freight, which is overwhelmingly containerised. Container shipping meets a bottleneck at port, with a limited number of terminals and skilled employees who work in stevedoring operations. DP World readily embraces what the Union said about this at the outset of the pandemic:
"With approximately 98 per cent of Australian imports arriving by sea, including essential medical supplies, food, fuel, and other household items, preventing the spread of this disease is vital to ensuring supply chains remain operational and freight continues to flow safely."[154]
[322] The Respondents submitted that the economic and social costs of stevedores not operating during the pandemic could have been devastating. Even with ports operating as best they could, Australians experienced bare shelves in supermarkets, dwindling supplies of everyday goods and significant wait times for electronics, vehicles and furniture. Circumstances could have been far worse. This was a case where, whatever criticism might be made of DP World in introducing the Mandate, its commercial interests were entirely at one with the public interest and the protection of its employees.
[323] Other relevant circumstances were set out in the Respondent's submissions on valid reason were as follows. First, the nature of the workplaces. As the evidence of Mr Eadie and Mr Hanley establishes, the two terminals in question are stevedoring facilities where vessels call in the course of voyages between multiple ports. Stevedoring employees board ships which also berth at foreign ports (and indeed multiple Australian ports) and have contact with ship's crew in a variety of settings. Brisbane in particular is a common first port of call. The potential for COVID-19 to spread through interaction with ship's crew has led to:
(a) specific public health orders in NSW, currently the Public Health (COVID-19 Maritime Quarantine) Order (No 4) 2021;
(b) a requirement in Western Australia that "exposed port workers" be vaccinated, which has now been replaced with a requirement for port workers across the board; and
[326] Third, the nature of COVID-19 and the public health responses to cases. The disease is potentially very serious, severe cases being much more likely in unvaccinated persons. Even in asymptomatic or mild cases, patients are required to isolate and cannot attend work for a minimum of a week, previously two weeks.
[328] Fifth, the knowledge at the relevant times that State and international borders would re-open, and inevitably Australia would see an increase in COVID-19 numbers. That has indeed occurred, aided by the emergence of the apparently more transmissible Omicron variant, with Queensland going from a total of 2,176 COVID-19 cases when borders reopened on 13 December 2021, to over 200,000 just over a month later.[165]
[330] Seventh, the need to extend a degree of latitude to employers, who bear:
(a) the "primary duty of care" under section 19 of the WHS Acts; and
(b) liability to pay compensation on a no-fault basis, albeit in circumstances where they must be insured, to employees who contract COVID-19 at work.
[332] These matters all support the contention that the Mandate was lawful and reasonable. Given their combined weight, there is little that could lead to a contrary conclusion. Each of the Applicants failed to comply with the Mandate. Either they did not obtain vaccinations, or they gave DP World no basis on which it could be satisfied that they had. Failure to comply with the Mandate can only be conscious and deliberate given the extensive communication between DP World and its employees. As such, in relation to each Applicant, there was a valid reason or dismissal at the relevant time. DP World submits that the Commission ought make that finding and proceed to consider any contentions based on s 387(b) - (h) of the FW Act.
[333] In reply submissions, the Respondents acknowledged that many (if not all) of the Applicants have particular beliefs, suspicions or concerns about the safety and efficacy of COVID - 19 vaccinations, but contended that based on publicly available material about the safety and efficacy of vaccinations, DP World was entitled to proceed based on the same premises as every Australian jurisdiction's approach to the pandemic since vaccines became available: that COVID-19 vaccines available in Australia reduce the risks that:
(a) a vaccinated person will be infected with COVID-19;
(b) an infected vaccinated person will transmit the infection to others; and
(c) if a vaccinated person is infected, they will become seriously ill or die.
[335] In relation to the allegations by the represented Applicants (and Mr MacDonald albeit to a lesser extent) that DP World did not consult with employees as required by the WHS Acts, the Respondents submit that from this, it is said by the MUA that the requirement to comply with the Mandate was unreasonable and hence failure to do is not a valid reason for dismissal. According to the Respondents, it is plain that heavy reliance is placed here upon the Full Bench decision in Mt Arthur Coal. The Respondents submit that there are two critical preliminary points to be made in this respect.
[336] First, the case for the employer in Mt Arthur Coal was based solely around the safety rationale for its Site Access Requirement (SAR) and the necessity, in the employer's view, of implementing the SAR for the purpose of compliance with the applicable WHS Act. As the Full Bench said:
"We accept that the object and purpose of the Site Access Requirement is to protect the health and safety of work of Mt Arthur's employees and other people at the Mine..."[171]
[337] While DP World relies on its Mandate in discharging its primary duty under the WHS Acts, that is not, however, the only reason for it. The immediate trigger for the implementation of the Mandate was an incident that highlighted issues of operational continuity. There is nothing problematic about that. DP World supplies an essential service, and it is critical that it continue to operate during a global pandemic. Labour availability is key to that requirement, and unvaccinated employees were at greater risk of having their availability curtailed.
[338] The Respondents submit that the case here is thus distinct from Mt Arthur Coal. Where one views the giving of a vaccination direction solely through a WHS prism, and indeed the employer defends the direction as required by the WHS Act, it is readily understood why an absence of consultation required under the WHS Act may pull materially toward a conclusion that the direction was reasonable. DP World's Mandate, however, had a dual focus.
[339] Second, the MUA appears to submit, in reliance on Mt Arthur Coal, that if an employer does not consult as required by the WHS Act in relation to implementing a direction which gives effect to a safety control, the direction is ipso facto unreasonable. That is not what Mt Arthur Coal says. Indeed, the Full Bench expressly repudiated that line of thinking, stating:
"Accordingly, it seems to us that a failure to consult in accordance with the WHS Act does not have the effect of invalidating a direction issued pursuant to an implied contractual power."[172]
b) The notion that there was no meaningful consultation after the announcement is denied. Messrs Hulme, Hanley and Eadie have given evidence about the consultation that occurred at a national, terminal and individual level. Safe Work NSW did not take issue with the consultation process. The approach to the Mandate was tweaked in some respects as a result, and DP World had an open mind regarding changes to its approach. The fact that the MUA and employees did not persuade DP World to change its approach does not prove anything to the contrary. The witnesses employed by DP World depose to the reasons that other COVID - 19 controls were not considered adequate. Otherwise, where objections to the Mandate were based on opposition to vaccination per se, those were not reasonable objections.
[341] The Respondents submit that DP World consulted with its employees to the extent reasonably practicable, as required by section 47(1) of the WHS Acts. What is reasonably practicable depends on all the circumstances, and is affected by a range of factors including, notably, the need to move quickly to ensure that the events following 15 September 2021 were not repeated if possible and future disruption was minimised. The consultation engaged with consultative mechanisms established under the Enterprise Agreements, consistent with section 47(2). The mere fact that the Applicants and their representatives did not like the outcome of consultation does not of itself make the consultation process "unfair" or "incomplete".
[342] Further, the dual purpose of DP World's Mandate as both a safety control and a means to ensure operational continuity is important. Indeed, the events of 15 September 2021 were the immediate trigger for the Mandate. What, then, if DP World did not believe there was any safety reason to implement a Mandate, but nonetheless decided to impose one to maximise labour availability and operational continuity, where this might be threatened by a COVID - 19 outbreak? DP World submits that direction would be reasonable, given the critical importance of its operations to the NSW and Queensland publics and economies, and the States' then practice of discriminating between the vaccinated and unvaccinated in determining who was a "close contact" and would need to isolate.
[343] Other criticisms of DP World include that it did not sufficiently educate employees about vaccination or vaccine myths, and that it did not debunk these myths. The Respondents submit that this is misconceived, for the following reasons:
a) Nothing in its consultation obligations requires DP World to "[provide] employees with [a] scientific basis" for the "bare statement" that vaccines are "a safe and effective form of protection... to reduce transmission and associated serious health impacts".
b) One might reasonably ask how DP World would even go about doing what the MUA demands. DP World does not employ doctors or scientists. It is not required to engage its own experts at great cost to replicate information already readily available from employees' own doctors, the Therapeutic Goods Administration (TGA), the Australian Technical Advisory Group on Immunisation (ATAGI), and every Australian and State government health agency, among many others. If employees do not wish to take any steps to access this information, or do not believe it, why would they listen to DP World?
c) As to vaccine myths, to put it bluntly, DP World is not responsible for debunking errant nonsense. The union cannot credibly say that consultation is deficient unless DP World goes out of its way to proactively combat ridiculous falsehoods. It is to BHP's credit that it did so at Mt Arthur, but it was not necessary (and did not save its SAR).
[344] The Respondents also contend that the submission that DP World failed to consult in accordance with the Enterprise Agreements takes the Applicants no further than the submissions on the WHS Acts. In relation to this submission, the Union relies on Part A, clause 21 of the Enterprise Agreements. Substantively, that provision effectively re-states consultation obligations which are familiar from the WHS Act. The submission that a reference to "health and safety specialists" in clause 21.4.1 means that DP World's obligations here are more extensive than those under the WHS Act is without substance. Clause 21.4.1 is a statement of aspiration and principle; it does not state that DP World will in all cases (or indeed at all) engage specialists; it states the obvious proposition that safety outcomes can be improved by drawing on expertise. Clause 21.4.1 introduces and informs the actual obligations imposed on DP World by the clause, which are as set out in clause 21.4.2 and qualified by clause 21.4.3. Plainly not every round of consultation on safety matters need involve health and safety specialists. It would simply be unnecessary in a great many cases.
[345] DP World did everything that was required by clause 21.4. It gave employees and their representatives information about what was proposed, gave them opportunities to have input on the proposal, and listened to and dealt with what they had to say. That it was not convinced to abandon the Mandate is unsurprising. For completeness, the Respondents submit that DP World has also met any consultation obligation under the more general Part A clause 27, which is a "TCR case" clause applicable only once DP World makes a definite decision to introduce changes in "production, program, organisation, structure or technology" that are "likely to have significant effects on employees" (clause 27.2.1). Further, should any Applicant agitate an argument not foreshadowed in its submissions that this obligation was applicable, DP World reserves its rights as to whether its Mandate was a change of the relevant kind or which was likely to have the requisite effect.
[346] In relation to the submission by the represented Applicants that the Mandate is of no effect because it is inconsistent with the intent of the Enterprise Agreements, particularly Part A clause 8.12, the Respondents repeated the response of DP World Sydney to the dispute where the MUA first tested out this argument, in matter C2021/6927, before discontinuing the matter. It is submitted that there are eight sub-clauses within Part A, clause 3.0 of the Enterprise Agreements, which is headed "Intent of Agreement". Various of these sub-clauses establish objective targets, set out steps that will be taken to achieve agreed goals; commit DP World to observing certain overarching criteria in respect of employment; and make aspirational and value statements not tied to the achievement of quantifiable goals. Clause 3.2 is however in the category of aspirational statements, as is accepted by the represented Applicants. The Respondents submit that several matters are of some importance in dealing with this clause and its interplay with clause 8.12:
a) Clause 3.2 deals with a wide range of matters, some of which will inevitably be in tension with one another from time to time and the approach contended for by the MUA would give the non-employer parties a right of veto that the Commission may safely assume was not intended.
b) Even if a single aspect of clause 3.2 could hypothetically be isolated as the only one relevant to a given policy, the goals stated are aspirational and broad and subject to debate - for example whether a particular measure will help achieve a safe workplace, job security, modern and flexible forms of work organisation, optimum use of resources, and so on.
[347] According to the Respondents, the MUA's submissions on the intent of the Enterprise Agreements are rather long on rhetoric and short on interpretation grounded in recognised interpretive principles and rest on two essential propositions:
a) that the purpose of clause 8.12 is to stop the Company from "implementing policies... without giving employees and the MUA an opportunity, not only consult, but bargain on the policy's terms" (the Purpose Proposition); and
b) that because clause 3.2 and 3.3 of the agreement reflect the importance of communication and constructive workplace relations, "the overarching intent of the EA is consultation between the Company, its employees and the MUA" (the Intent Proposition).
[349] Further, the Respondent's submit that the Intent Proposition is, if possible, weaker still. The Enterprise Agreements contain a provision stating, at length, what their intent is. That provision does not say that the intent of the documents is "consultation". The fact that the union calls in aid the appearance of the word "consultation" 26 times in one of the Enterprise Agreements - it is unclear which - shows the dearth of support for the proposition. The Respondent submit that the represented Applicants' submissions in this regard ought be rejected out of hand. The Mandate is in no way inconsistent with the intent of the Enterprise Agreements. While doubtless the MUA and employees would like to have a clause in their agreement that invalidates policies they do not like, or which they have not signed off on, that is not what clause 8.12 does. Notwithstanding all the above submissions, the MUA's complaint about the policy and the intent of the Enterprise Agreements is based on the procedure used to implement the Mandate rather than the content of the Mandate itself.
[352] As the Full Bench said in Mt Arthur Coal, the fact that the SAR (and the Mandate) applies such pressure to employees to (nonetheless voluntarily) surrender aspects of their right to bodily integrity is one matter going to the question of reasonableness. It is not determinative. In considering its overall impact, the Commission must consider all other relevant circumstances. Further, DP World submits that it would have regard to the following:
b) Second, a requirement to be vaccinated is of a species that is familiar and socially acceptable in Australia general. The Commission may take notice that the Commonwealth has, for many years, maintained a "No Jab, No Pay" policy with respect to certain Family Tax Benefit payments. Requiring vaccination against COVID-19 to attend the workplace has moreover been a feature of public health regimes in response to the COVID-19 pandemic in Victoria and Western Australia, as well as "areas of concern" in Greater Sydney for significant periods in 2021. A vast number of public health measures more broadly discriminate between vaccinated and unvaccinated persons.
[353] Neither of these matters mean that the Mandate ipso facto reasonable. They are however to be taken into account in considering the rhetorically forceful, but on examination highly nuanced, notion of "bodily integrity".
[354] The Respondents made the following submission relation to alleged breaches of the Privacy Act asserted in the submissions of the represented Applicants, and Mr Nemeth (whose submissions Mr Taylor adopts), contending that DP World has breached the Australian Privacy Principles (APPs), and thus the Privacy Act 1988 (Cth), by requiring that employees provide evidence of their vaccination status.
[355] APP 3.3 deals with the collection of "sensitive information". It is not controversial that information about whether a person is vaccinated against COVID-19 is "sensitive information" as defined in section 6 of the Privacy Act, because it is "health information". APP 3.3 thus provides that:
"An APP entity must not collect sensitive information about an individual unless:
(a) the individual consents to the collection of the information and:
(ii) if the entity is an organisation - the information is reasonably necessary for one or more of the entity's functions or activities; or
(b) subclause 3.4 applies in relation to the information."
[356] The Applicants' attack focuses on the need for consent under APP 3.3(a). In reliance on non-binding guidelines issued by the Office of the Australian Information Commissioner, it is said that consent must be given freely and voluntarily. It is said to follow that the voluntariness of consent is vitiated by the kind of economic pressure that a requirement to be vaccinated imposes on a person who may lose their employment if they do not prove that they are vaccinated.
[357] In a system of principles-based regulation where much depends on what is "reasonable" or "practicable" and every case turns on its facts, this kind of doctrinaire reasoning is untenable. It is moreover only possible on an acontextual reading of the Guidelines, ignoring both that:
a) APP 5 specifically requires the provision of information to persons from whom information is collected, including, where reasonable, the consequences of not providing it; and
b) the same Guidelines on which the Applicants rely state that:
"An individual must be aware of the implications of providing or withholding consent, for example, whether access to a service will be denied if consent is not given to collection of a specific item of personal information..."[182]
[358] The Respondents submit that not every form of pressure is coercive or operates to vitiate employees' consent. In Kassam v Hazzard, the NSW Supreme Court discussed the meaning of "consent" in the medical and criminal law contexts, in dealing with a submission that persons required to be vaccinated pursuant to public health orders were effective subject to a battery or assault. It concluded that:
"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."[183]
[359] The Respondents submit that the same applies to the provision of information about said vaccination. Employees in the present case had the opportunity to choose whether to provide the relevant information. They were aware of the consequences of not doing so (indeed, one may wonder what the Applicants would have said if DP World did not inform them that failing to supply this information would result in their termination). That there was additional pressure to supply the consent to the collection of sensitive information because of the possible consequences of making that choice does not mean it was not consensual.
b) DP World complied with APP 5, including by advising employees of the information that it was collecting and the uses to which it would be put; and
[361] The union's submissions on these matters essentially consist of bald statements that DP World's approach was "heavy-handed" compared to BHP (which, it ought to be noted, still proposed to exclude people from its sites and then dismiss them pursuant to the SAR). They do not engage with what DP World actually did.
[362] The submission that the Mandate was unnecessary is primarily advanced by the represented Applicants. It appears to assert that the Mandate was unnecessary at one or more of the Terminals because the rate of vaccination at the Terminal was already higher than among the general public. According to the Respondents, the submission is ridiculous. It is based on figures that are wrong, but more to the point, it is wildly wrongheaded. In this regard the union submits that:
"[61] When governments do not implement public health orders that restrict unvaccinated residents from attending places where vaccinated persons congregate, a mandatory vaccine policy does not make a worker any less likely to become infected than they would be if three percent of their co-workers remained unvaccinated. After all, when DP World employees shop for groceries in Sidney [sic], statistically, six percent of the patrons will be unvaccinated - double the percentage of unvaccinated workers that would work at the Company's operations had it not dismissed the Applicants.
[62] Thus, even if three percent of DP World's workforce remained unvaccinated, work is the safest public place where vaccinated workers could be. Likewise, because of the high vaccination rates at DP World, an unvaccinated worker would be less likely to get infected with COVID-19 while at work than when going about their daily lives."
[363] No part of this is logical. First, the Mandate recognises that employees may contract the virus causing COVID-19 outside of work. The point is that they may bring it to work. In the first instance, the chance of that occurring is to be minimised so far as is practicable. DP World cannot control what its employees do outside of work generally, but it can ensure that they are vaccinated. If that first line of defence fails, and a worker (presumably unknowingly) brings COVID-19 into a terminal, the Mandate then reduces the likelihood that they will transmit it to other workers. Should transmission nonetheless occur, the third function of the Mandate is to minimise to the extent practicable the risk that the second person will become gravely ill or die.
[365] In his submissions dated 30 January 2022, Mr Nemeth relies on section 51(xxiiiA) of the Australian Constitution. Mr MacDonald likewise refers to this provision in his submissions dated 29 January 2022. The Respondents submit that such arguments are misconceived. Section 51(xxiiiA) is a grant of legislative power to the Commonwealth to legislate on certain topics, with the qualifier that it does not authorise the making of Commonwealth laws for civil conscription. In this case:
a) no issue of Commonwealth legislative power arises;
b) no doctor or dentist is being required to do anything.
c) there is no relevant law on which DP World relies which is inconsistent with the Constitution or any law made pursuant to section 51(xxiiiA).
a) As the discussion of the argument at first instance in Kassam v Hazzard makes clear, the Supreme Court's conclusions were based on High Court authority. The High Court has held that civil conscription is "some form of compulsion or coercion, in a legal or practical sense, to carry out work or provide services".[191]
b) Section 51 of the Australian Constitution grants legislative power; it has no relevance whatsoever to a private actor such as DP World. The case is weaker than the "completely untenable" argument in Kassam v Hazzard, which relied on an alleged joint scheme between NSW and the Commonwealth.
[369] In relation to other submissions made by Mr MacDonald dated 29 January 2021, the Respondents submit that he did not file any evidence and the three links at the end of his document are to a law firm's summary of the High Court case dealt, to the High Court's own summary of that case, and to a transcript of the interview referred to in paragraph 70(b). At the outset, it is noted that Mr MacDonald characterises his dismissal as relating to "experimental technologies, gene therapy/transfection agents that should not be called vaccines". This view of the vaccines available in Australia appears to undergird much of the submissions that follow. This allegation is baseless, unsupported by evidence, and ought not be entertained.
[370] Otherwise, Mr MacDonald's material may broadly be divided into: factual assertions about his circumstances of which there are no particulars or evidence; unsupported and unparticularised allegations of wrongdoing and conspiracy; irrelevant material; and unsupported speculation. The submission also advances to propositions which might broadly be called legal comments. In relation to submissions about the Criminal Code Act 1995 (Cth), the Respondent submits that:
a) First, that Schedule to the Criminal Code Act 1995 (Cth) does not refer to clinical trials. Mr McDonald appears to be referring to provisions that create offences of engaging in war crimes in the form of conducting medical or scientific experiments.
b) Second, in any event, vaccinated persons are not participants in a clinical trial. Minister Hunt misspoke in the interview to which Mr McDonald refers. The gravamen of what he said, when read fairly and in context, is that given the uptake of COVID-19 vaccination we have vastly more safety information about the vaccines than we would normally have about a vaccine after this length of time. He also distinguished between clinical trials and "real-world data".[194]
[372] The Respondents also submitted that Mr Pintley filed what appears to be a combined witness statement and submission, which was largely concerned with factual matters not relevant to section 387(a) of the Fair Work Act 2009 (Cth). To the extent it deals with issues of consultation and the Privacy Act, the Respondents repeat their submissions on those matters.
[373] Several additional matters are however relevant.
a) First, DP World denies the unparticularised allegations of bullying and harassment.
b) Second, as the email sent by Mr Pintley to Mr Eadie (annexed as JPS [A003]) demonstrates, Mr Pintley had no interest in being vaccinated. In that light, it is unsurprising that his employment was terminated. There was no prospect of him returning to work once he recovered capacity.
d) Fourth, Brad Dunn (whose texts appear at Annexure A012 of Mr Pintley's submission, is not a DP World manager and is, in fact, an MUA official, and a witness in the proceedings.
[374] In closing submissions filed after the hearing, the Respondents said that the MUA's case is largely cast as though this matter were a dispute arbitration about whether DP World complied with obligations to consult employees on its Mandate. That is not the case. The present part of the proceedings concerns the broader question of whether there was a "valid reason" for the dismissal of the Applicants, within the meaning of the Fair Work Act 2009 (Cth).
[383] The local meetings proceeded as follows:
(iii) There is no evidence that any HSRs sought to have any input after the meeting on 23 September 2021, whether before or after the 28 September 2021 deadline set by Mr Hulme in his letter of 20 September 2021.
[390] It cannot be unfair to say that the MUA's case, as articulated in the MUA's closing submissions, proceeds almost entirely by reference to Mt Arthur Coal. Reliance on other matters is faintly pressed, if not abandoned. The authority evidently is the lynchpin of the union's attack on DP World's Mandate, with the union inviting the Commission to conclude, essentially, that:
a) BHP's SAR was not a lawful and reasonable policy, because contrary to the WHS Acts, BHP did not consult prior to making the decision to implement it;
b) DP World consulted even less than BHP; ergo
c) DP World's Mandate is not lawful and reasonable.
[391] Remaining unstated by the MUA is the assertion necessarily implicit here that BHP's obligations and DP World's are the same. It is critical however to deal with proposition (a) above first. It is encapsulated in the union's submissions as follows:
"In Mount Arthur Mines [sic], the Full Bench unambiguously held that ... the WHS Act requires an employer to consult with its employees before deciding to introduce a vaccine mandate, and that its failure to do so renders the direction unlawful and unreasonable."[246]
[395] Any inadequacy in consultation is thus to be considered in the overall assessment of whether a direction was "reasonable", and hence "lawful and reasonable" such that non-compliance might form a "valid reason or dismissal". The proposition that the consultation was inadequate is however a worthy subject of close attention, because these matters are more nuanced than the union would have the Commission consider.
[397] Considering the obligations set out in ss. 48(1) and (2) of the WHS Acts, the Respondents query what the vice in DP World's consultation was and contended that the MUA's submissions do not engage with that question. In this respect:
[403] The Respondents also contend that prior to the filing of the closing submissions on behalf of the represented Applicants, there was no indication that the Union would submit Mr Adam was the sole decision-maker or that it would contradict the evidence of others that he was not. DP World was not on notice that such contentions would be raised, inappropriately, at such a late stage. The choice not to call the CEO of DP World Australia is thus readily explicable, and there is no basis to draw the Jones v Dunkel inference for which the union contends. Further and in the alternative, even if one did draw such an inference, it is merely one that given evidence would not have assisted DP World's case. The inference cannot "fill gaps" in the union's case.
[410] What was reasonably practicable for BHP at one time is not the same as what is reasonably practicable for DP World at another. In that respect:
[416] Thirdly, as a continuation, there is the public interest in continuity of stevedoring operations. DP World supplies an essential service in each of NSW and Queensland. Without the performance of container stevedoring, of which DP World performs a significant proportion, import/export supply chain simply does not function. That is a matter of critical importance.
[418] As the events of mid-September 2021 laid bare, a handful of COVID-19 cases was enough to severely diminish DP World Sydney's labour availability. In circumstances where a person classed as a casual contact might miss a few days' work, but one classed as a close contact would miss two weeks, the Company inarguably had a legitimate interest, and indeed a duty in discharging its critical public function, in ensuring that in the unfortunate (but increasingly unavoidable looking forward to the liberalisation of public health restrictions) event that its employees were exposed to SARS-CoV-2, as few of them as possible would fall into the latter category. It was thus entirely lawful and reasonable to require that those who were medically able to be vaccinated did so, to avoid unnecessary and preventable extended absences.
[419] This is a separate basis on which the Commission could conclude that the Mandate was lawful and reasonable, without recourse to DP World's safety obligations under section 19 of the WHS Acts. Stevedoring terminals simply have to function. It was therefore within the scope of the Applicants' employment to require that employees take a step which would make it less likely that they would have to isolate for a full 14 days, and be unable to attend or perform work, if they were exposed to COVID-19. It was moreover reasonable given the public (rather than only commercial) interest in the efficient and effective stevedoring of cargo, and the other factors set out below.
[420] Fourthly, there is the nature of the Mandate and what it requires. It may be accepted that the Mandate requires employees to do something they may not otherwise have chosen, and involves a degree of interference with medical decision-making. This must however be viewed in full context. At the time the Mandate was implemented, NSW and Victoria were literally attempting to "vaccinate their way out" of lockdown arrangements. Persons who were not vaccinated were increasingly subject to a range of restrictions on civil liberties which did not apply to vaccinated persons. Two jurisdictions, Victoria and Western Australia, had enacted sweeping requirements that persons working in particular industries, including stevedoring (and very specifically stevedores in WA) be vaccinated in order to attend for work at their employers' premises. When the Mandate was being formulated, persons in Sydney LGAs of concern, including some 30% of the DP World workforce, could not leave their LGA to attend for work unless they were vaccinated. Any assertion that the Mandate was therefore somehow "beyond the pale" because it involved an interference with individual rights or "bodily integrity" is untenable. A much more nuanced view is required, which would include that:
[421] No attempt has been made to do this. As set out in DP World's original submissions,[317] the Company was entitled to proceed on the basis that vaccines approved by an Australian regulator and heavily promoted by medical bodies and every level of government are safe. Fifthly, there is the issue of consultation. DP World denies that it failed to comply with its consultation obligations under the WHS Acts. It consulted so far as was reasonably practical having regard to the urgency of the issues concerned, the nature of the workplace, and the effort required to reach all employees. The fact that it did so after an intended decision was announced is of no moment, so long as that decision was not fixed and DP World was open to change based on the outcomes of consultation.
[422] If the Commission is against the Respondents on this matter, any deficiency in consultation under the WHS Act does not automatically produce a result that the Mandate was not lawful and reasonable. It is one factor to be taken into account. While it would tell against a finding that the Mandate was lawful and reasonable, it is ultimately for the Commission to determine in all of the circumstances what weight it ought be accorded. In that regard, the Respondents submit that any failure in consultation is more than outweighed by factors pulling in the other direction. The fact that a different conclusion was reached in Mt Arthur Coal is of no moment for present purposes. Each case turned on its own facts and despite the union's attempts to equate them, what happened here was quite different to the way things unfolded at the Mt Arthur Mine and the nature of the proceedings the Commission was invited to consider.
[423] The Respondents also submit that it is plain on a reading of Mt Arthur Coal that the sole purpose of the SAR was to be enacted for the purpose of ensuring employee safety, and hence compliance with the WHS Act. A significant difficulty for BHP was that, having decided irrevocably that there was to be an SAR for this purpose (and indeed, in the belief that this was necessary for compliance), it nonetheless did not comply with prefatory requirements in the same legislation relating to consultation on the identification of hazards and controls (as the Commission construed them). Having based its entire rationale around compliance with the legislation, non-compliance with it presented a significant difficulty. In contrast, it is contended that DP World's Mandate, had a dual purpose - to protect employees' safety, including that of older employees and those who cannot be vaccinated and as a measure to mitigate against operational disruption, at economically critical facilities, at a time when close contacts were required to observe a 14-day isolation period, and unvaccinated persons were more likely to be classed as close contacts than vaccinated persons.
[425] Further, there was no evidence in Mt Arthur Coal of any particular urgency, save that the SAR was to be in place before the relaxation of restrictions and predicted wave of COVID-19 cases (which did of course eventuate). Absent a need to introduce the SAR when it did, BHP's failure to take time to consult in relation to it may be legitimately afforded greater weight than in other cases. Here, however, any positive case at any time (which had in fact occurred, unlike at the Mt Arthur Mine) was liable to require large parts of the workforce to isolate themselves. This had in fact happened in Sydney, and it was incumbent on DP World to take steps to minimise the impact when it inevitably happened again, as it could have done any day.
[432] To preserve its rights, DP World formally recorded its submission that the Full Bench in Mt Arthur Coal misconstrued the WHS Act, and the interplay between that Act and employees' contracts of employment, and made submissions that might appropriately be pursued in another forum, so as to preserve its rights. DP World also formally recorded its submission that observations of the Full Bench in Lee about the operation of the Privacy Act are obiter dicta and erroneous. It is not necessary that those submissions be repeated here. The Respondents made clear that it is not expected that a single Member of the Commission would depart from recent Full Bench authority and submitted that the Commission as presently constituted does not need to do so, as each case turns on its own facts. In that respect, the Respondents submit that this case is very different from Mt Arthur Coal and that contra the MUA's whole approach in its closing submissions, the present case is clearly distinguishable from Mt Arthur Coal: inter alia, in the criticality of the continuity rationale for the Mandate as opposed to a pure safety focus, in the circumstances concerned and hence what consultation was "reasonably practicable", and in the nature of the decisions announced to employees.
[437] For all the reasons given in DP World's submissions dated 31 January, 14 February and 6 May 2022, the Mandate was lawful and reasonable, and each of the Applicants knowingly and deliberately failed to comply with it. Regardless of other matters that they may wish to raise at another juncture in the hearing of their applications, this was a valid reason or dismissal. DP World respectfully submits that the Commission ought so hold, and, should the applications be pressed, program the matter for the filing of material and hearing going to the matters in ss 387(b) - (h).
Post-hearing Note - Vaccination Status and Isolation Periods
[438] After the hearing of closing submissions by the parties, the Respondents, at my request, provided a note summarising the effect of vaccination status on the periods of isolation required under the Public Health Orders in New South Wales and Queensland, as follows:
"From 6 September 2021 onwards, New South Wales was subject to various iterations of the Public Health (COVID-19 Self-Isolation) Order (No 3) 2021 (NSW Order (No 3)). Before 21 October 2021, a "close contact" of a person diagnosed with COVID-19 was required to isolate for a period determined by a contract tracer of up to 14 days. This was dealt with in clause 7(2) of the NSW Order (No 3).
From 21 October 2021 onwards, the isolation period for a "close contact" varied dependent on their vaccination status. This was dealt with in clause 8(3) of the Public Health (Covid-19 Self-Isolation) Order (No 4) 2021 (NSW Order (No 4)):
(a) for a close contact who as a "fully vaccinated person" at the time of contact, the maximum period was 7 day; and
(b) otherwise, the previous 14 day period continued to apply.
Under each NSW Order, a person was a "close contact" if they were informed that they had been identified as such by a contact tracer.
On 28 September 2021, the NSW Department of Health issued a revised document titled "Contact risk assessment for community and workplace settings" (Contact Risk Document). It sets out the way in which various factors, including vaccination status, affect the assessment of whether a person's interaction with a person who has tested positive for COVID-19 is low-risk, a casual contact, or a close contact. The document refers to, and notes that it builds on, guidelines issued by the Communicable Diseases Network Australia (CDNA) which define a "close contact".
In relation to Queensland, clause 6 of the Management of Close Contacts Direction (No 3) 2021 (Queensland Direction (No 3)), which was in force from 5 September to 21 December 2021, provided that a person who was informed they were a close contact must quarantine until the end of the 14th day after last having close contact (or after another specified time).
Queensland reduced the isolation period for fully vaccinated close contacts to 7 days later than did NSW, with effect from 22 December 2021. This was effected by clause 6(a) of the Management of Close Contacts Direction (No 4) 2021.
As such, it is apparent that Mr Hanley was referring to Queensland Direction (No 4) when he referred to "QLD Health's Guidelines" in his first statement.
For completeness, noting that Mr Hanley only spoke to his reasoning about the approach that Queensland would likely take in relation to who was or was not a "close contact":
(a) searches of relevant government departments have not revealed any guidance documentation provided as to how Queensland contact tracers determined who was a "close contact" at the relevant points in time;
(b) it appears that Queensland may have relied on the CDNA guidelines referred to in the NSW Contact Risk Document[346];
(c) these CDNA guidelines are published in their present iteration on the website of the Department of Health and Aged Care[347]. However, the CDNA does not appear to make past versions of its guidelines available. At the time of the Brisbane Applicants' dismissals, the relevant guideline would have been version 6.1; and
(d) while there is at least one Queensland government document referencing vaccination status as a consideration for classification of contacts, it evidently post-dates the dismissals and appears to have been prepared in contemplation of the Queensland Direction (No 4), i.e. in mid-late December 2021. DP World does not rely on it to prove facts in existence at the time of dismissal."
[439] In response to the above summary provided by the Respondents, the represented Applicants said that the announcement of Mr Adam on 16 September 2021 indicated that in light of a positive case at the Port Botany Terminal that week, 36 employees had been deemed close contacts using NSW Health Guidelines and were in self-isolation for a minimum of 14 days and that a further 63 employees and contractors have been deemed casual contacts and are unable to return to work until a negative COVID test. It was submitted that at the time that DP World made the decision to make vaccinations mandatory for all employees, the only information available to the company was that:
(a) Public Health Orders in both Queensland and New South Wales required close contacts of a person diagnosed with COVID-19 to isolate (or quarantine) for up to 14 days; and
(b) Neither the Queensland Government's nor the New South Wales Government's Public Health Orders required workers at DP World's operations at the Port of Brisbane and Port Botany, respectively, to be vaccinated as a condition of entry to work premises.
[440] Any amendments to Public Health Orders that took effect after DP World made the decision to make vaccinations mandatory are irrelevant to the question of whether the company had a valid reason to terminate the employment of those employees who did not comply with the vaccine mandate. Just as the Commission can't consider the fact that the approved vaccines are substantially less effective against today's dominant variants than they were against the Delta strain that was dominant at the time that DP World implemented its mandate, the Commission likewise can't consider the fact that Public Health Orders that were made after DP World decided to mandate vaccines treated "close contacts" differently based on their vaccination status.
[441] Finally, it was submitted for the represented Applicants that even had Public Health Orders been in place at the time DP World made the decision to mandate vaccines that distinguished between fully vaccinated and unvaccinated people, that distinction would be irrelevant to DP World's consultation obligations under Work Health and Safety Legislation. While such a distinction might support a decision to introduce a vaccine mandate, it would do nothing to release DP World from its statutory and contractual obligations to consult with employees prior to making a decision to introduce a vaccine mandate.
The approach to considering the matter in s. 387(a)
[442] This decision concerns only the question of whether, as provided in the statutory criterion in s. 387(a) of the FW Act, there was a valid reason for the dismissal of the Applicants. It does not consider in any final sense, the weight that should be afforded to any other matters in ss. 387(b) to (h) which may subsequently be found to be relevant. Nor does this decision determine whether, the dismissal of the Applicants was unfair. The matters in s. 387 generally deal with substantive, procedural and mitigating matters, and s. 387(h) allows the Commission to take into account any other matter it considers relevant.
[445] As previously noted, matters that are encompassed by the criteria in s. 387(b) - (h) should not be considered as relevant to s. 387(a). Accordingly, I consider that procedural and other matters raised by the Applicants are relevant in a limited way to these questions. This point is illustrated by the decision of the Full Bench in Hilder. In that case, the Full Bench found that the decision under appeal involved, inter alia, error of a consequential nature, on the basis that the Member at first instance determined whether there was a valid reason for dismissal by reference to irrelevant matters.
[446] The employee in that case was dismissed for breaching Sydney Trains' Drug and Alcohol Policy and Code of Conduct. The Policy relevantly stipulated that Sydney Trains has a random drug and alcohol testing policy, and that the test rating for drugs must be less than the cut off level stipulated in Australia/New Zealand Standard 4398 for drug tolerance. The employee had been subjected to a random test and returned a positive result. The Full Bench observed that there was no dispute as to the occurrence of the conduct and nor was it disputed that the employee breached the policy. The employee conceded that he was aware of the policy and its significance. The Full Bench stated that:
"[29] ... The only question to be resolved therefore was whether the breach of the Policy was a matter of sufficient gravity to constitute a sound, defensible, well-founded and therefore valid reason for dismissal. This required an assessment of the importance of the Policy in the context of Sydney Trains' operations and Mr Hilder's work duties."
[447] The Full Bench in Hilder found that this matter was not addressed in the decision in relation to s. 387(a) and that instead, the Member at first instance erroneously focused on the employer's "zero tolerance approach" to breaches of the policy and its apparent inconsistency with the employer's position, that it would consider any relevant mitigating circumstances before deciding on a disciplinary approach. The Full Bench said:
"[30] ... We do not consider that these were matters relevant to whether there was a valid reason for the dismissal, since they did not concern Mr Hilder's conduct but rather Sydney Trains procedural and substantive disciplinary response to that conduct. If the consequence of Sydney Trains' 'zero tolerance' was that it would not give any consideration to any mitigating circumstances advanced by any employee who has been found to have breached the Policy, that may be relevant to s 387(c) since it would arguably constitute a denial of a real opportunity to respond to the reason for the putative dismissal. If dismissal was a disproportionate response to the conduct in question because Sydney Trains had failed to take into account mitigating circumstances, that would be a matter relevant to s 387(h). But in the context of s 387(a), they were simply distractions."
[448] While not directly on point in a factual sense, the principles set out by the Full Bench in Hilder are analogous in the present case. It is common ground that the Applicants were dismissed for non-compliance with the requirements of the Mandate. The question for determination in the present case is not simply whether the Mandate was a lawful and reasonable direction or whether the Applicants refused to comply with a lawful and reasonable direction. Rather, the question requires consideration of whether the refusal of the Applicants to comply with the Mandate was a matter of sufficient gravity to constitute a sound, defensible, well-founded, and therefore valid reason for dismissal. I am also bound to consider the Respondents' contention that on the evidence provided, facts existed at the at the time of the dismissals that justified them. Whether the Mandate constituted a lawful and reasonable direction is relevant, but not determinative of these questions. I also note that both the represented and unrepresented Applicants have raised issues relating to the efficacy or rationality of the Mandate, which are also relevant to whether a failure to comply with the Mandate was a valid reason for dismissal.
[449] I accept that there are cases where a policy lacks a rational basis or seeks to regulate a matter that is trivial or is unreasonable so that non-compliance will not be a matter of sufficient gravity to constitute a valid reason for dismissal for the purposes of the criterion in s. 387(a). However, I do not accept that a procedural failure associated with the implementation of an otherwise lawful and objectively reasonable policy, necessarily invalidates the policy so that refusal to comply with it ceases to be a valid reason for dismissal for the purposes of s. 387(a).
[450] The following example illustrates this point. Where an employer has purported to establish a policy in a workplace that prohibits conduct that would objectively justify dismissal, a failure on the part of an employee to comply with that policy will generally constitute a valid reason for dismissal for the purposes s. 387(a). However, matters such as a deficiency in the way the policy was promulgated, or a failure to properly inform the employee about the policy or the ramifications of breach, or to warn the employee of the ramifications of future breaches or inconsistent application of the policy, or the employee being impacted by a personal issue or medical condition that affected his or her behaviour, may be relevant for the purposes of considering the criteria under one or more of ss. 387(b) - (h). However, these matters are not relevant to consideration of whether there was a valid reason for the dismissal in accordance with the criterion in s. 387(a).
[451] It may be said that in Hilder the validity of the Drug and Alcohol Policy was not challenged and nor was it contended that the direction or requirement for employees to comply with the Policy was not lawful and/or reasonable. This can be contrasted with the circumstances in the present case, where the Applicants contend that the Mandate is an unreasonable direction and that they are not required to comply with it. However, the substance of the attack on the Mandate mounted on behalf of the represented Applicants by the MUA, is the process by which the Mandate was established, rather than its substance.
[452] This is supported by the evidence of Mr Dunn, who despite maintaining that the MUA would not have agreed to the Mandate in circumstances where it resulted in the dismissal of employees, accepted that the Sydney Enterprise Agreement did not prevent DP World from implementing a mandatory vaccination policy provided that the Company complied with obligations under those Agreements. While Mr Dunn's evidence was somewhat ambivalent, the effect of his evidence was that compliance with the consultation would probably have resulted in the Mandate not being inconsistent with the terms of the Sydney Enterprise Agreement.
[453] Regardless of Mr Dunn's evidence and the extent of this concession, for reasons I develop later in this decision, I do not accept that any of the contentions of the MUA on behalf of the represented Applicants resulted in the Mandate being rendered an unlawful and/or unreasonable direction. Nor do I accept the contentions of the self-represented Applicants that the Mandate was illegal or invalid. However, procedural and other mitigating factors raised by the Applicants will be directly relevant to the subsequent consideration of the other matters in ss. 387(b) - (h).
[454] It is convenient to first consider the matters raised by the MUA before turning to those raised by the self-represented Applicants. I commence by considering the Full Bench decision in Mt Arthur Coal and the propositions the MUA asserts that the decision establishes.
The effect of the Full Bench decision in Mt Arthur Coal
[455] As I have previously noted, the MUA's primary submission on behalf of the represented Applicants is that the Full Bench decision in Mt Arthur Coal is dispositive in the present case and that if I follow that decision, I am bound to find that there was not a valid reason for the dismissal of the Applicants with the result that "DP World loses". I do not accept this submission for the following reasons. As the Respondents correctly point out, the decision in Mt Arthur Coal arose from an application under s. 739 of the Fair Work Act for the Commission to deal with a dispute arising under a dispute settlement procedure in an enterprise agreement.
[456] The issue for determination in Mt Arthur Coal and the statutory context in which it was determined, were fundamentally different to both the question I am required to determine and the relevant statutory provisions governing my consideration of that question. The Full Bench in Mt Arthur Coal derived its powers to deal with the dispute from the dispute settlement procedure in the relevant enterprise agreement and was confined in its consideration to the question for determination agreed by the parties. The question for arbitration in that case was whether the SAR was a lawful and reasonable direction with respect to employees. The statutory provisions relevant to the issues I am determining in the present case do not confine the issue in this way. The question I am required to determine is whether there was a valid reason for the dismissals of the Applicants in these proceedings. Further, while I am bound by Full Bench authority, and failure to follow it is an error, there are aspects of the findings in Mt Arthur Coal that are directly relevant and aspects that can be distinguished on the facts in the two cases.
[457] Of particular relevance is that the factual findings about medical, scientific and epidemiological matters made by the Full Bench in Mt Arthur Coal set out above at [50] - [52] are manifestly correct. Those findings are not geographically or occupationally limited and have general application. The point at which the Full Bench made these factual findings is closely proximate to the dates the Applicants in the present case were dismissed. Further, I note that these findings were not challenged on behalf of the represented Applicants and that to the contrary, I was urged to accept the Full Bench Decision in Mt Arthur Coal in its entirety. Accordingly, I have applied those factual findings in the present case. In doing so, I observe that the Full Bench was somewhat prescient in respect of the matters it anticipated with respect to the spread of COVID - 19 following the easing of restrictions.
[458] The Full Bench in Mt Arthur Coal concluded that the SAR was prima facie lawful. In this regard, the Mandate falls within the scope of the Applicants' employment and there is nothing illegal or unlawful about becoming vaccinated. Secondly, but for the failure to comply with consultation obligations under the WHS Acts and any relevant provisions of the Enterprise Agreements, the Full Bench found that there were other considerations that weighed in favour of a finding that the SAR was reasonable. The Full Bench also in that case found that the content of a requirement to consult is determined by context and that circumstances may dictate a quick response and a truncated process. In short, the Full Bench did not lay down a decision rule that a failure by an employer to consult or to comply with a requirement associated with the introduction of a workplace policy, will result in that policy being unreasonable for the purposes of deciding whether the policy is a lawful and reasonable direction with which employees are required to comply consistent with the duty described in Darling Island Stevedores and later cases.
[459] I now consider the matters raised by the MUA on behalf of the represented Applicants and those raised by the unrepresented Applicants in support of their contention that the Respondents did not have a valid reason for dismissing the Applicants.
Whether DP World complied with consultation requirements under WHS Acts
[460] I accept the submissions of the MUA on behalf of the represented Applicants, that DP World did not comply with the consultation requirements under the WHS Acts. This is apparent from a consideration of the consultation obligations detailed in the Mt Arthur Coal decision and the findings of the Full Bench on the facts in that case. Contrary to the Respondents' submissions, it is appropriate to conduct an analysis of this kind given the legal conclusions set out by the Full Bench in Mt Arthur Coal in relation to consultation obligations, which I am bound to follow. There is also force in the MUA submission that a comparison of the consultation processes engaged in by BHP as assessed by the Full Bench against the consultation obligations in the WHS Act on the one hand, and the steps taken by DP World in the present case, is indicative of whether DP World complied with the same obligations.
[461] In undertaking that analysis, I do not accept the MUA submission that if BHP did more than DP World and was found not to have complied, that ipso facto DP World did not comply. That submission ignores the important point made by the Full Bench in Mt Arthur Coal that the content of any specific requirement to consult is determined by the context, including factual matters relevant to the business and whether the circumstances dictate a quick response. This is a secondary question that is relevant to a finding about whether consultation obligations in the WHS Acts were met.
[462] The Full Bench in Mt Arthur Coal outlined the staged process by which BHP asserted it had met consultation obligations under the WHS Act. In summary, the first stage was termed the options phase during which BHP conducted an education program that promoted vaccination and its benefits, exposed common myths and provided information on how employees could book vaccination appointments. The "assessment phase" commenced on 31 August 2021, with BHP's announcement that it was "actively assessing whether to make vaccination a condition of entry to BHP workplaces in Australia", and that a risk-based assessment would be commenced of the proposed Site Access Requirement. At this point, BHP set up a central Vaccine Mailbox for use by all employees and invited their questions and comments regarding the proposed introduction of the SAR. BHP also conducted an implementation phase during which it asserted that consultation continued. While not mandating any particular approach, the analysis of the consultation process engaged in by BHP is instructive as to the content of consultation obligations under the WHS Acts and consultation terms of enterprise agreements.
[463] The evidence of witnesses for DP World does not establish consultation consistent with the requirements to meet its obligations under the WHS Acts as set out by the Full Bench in Mt Arthur Coal. Firstly, any consultation that Company engaged in did not commence until after the announcement that the Mandate would be implemented. Notwithstanding the evidence of witnesses for the Company, it is apparent from the language of the announcement that there was little if any capacity for the decision to be reconsidered. If there was a possibility that the Mandate would be reconsidered, it would have been relatively simple for the announcement to indicate this. It is apparent from the language of the announcement made by Mr Adam in the email of 16 October 2021, that the only matters open for consideration are the details of the policy, rather than whether it will be implemented. Further, the proposition that the Respondents' decision makers were open to reconsider the implementation of the Mandate is at odd with the evidence of the urgency of the situation and the imperatives that drove the decision. I also note that although Mr Hulme, Mr Eadie and Mr Hanley gave evidence of their involvement in the decision-making process, there is no evidence that they had any authority to decide not to implement the Mandate at either the Sydney or Brisbane Terminals subsequent to Mr Adams' announcement. I also note the spin put on the evidence of Mr Hulme and Mr Hanley that implementation in Brisbane was delayed in order to give employees more time to consider their options and to obtain the protection of vaccination. As the cross-examination made clear, the reason for this delay was the shortage of vaccinations in Queensland at the relevant time, a matter about which I am aware, given I live in Queensland.
[464] I also accept the evidence of Mr Dunn that the MUA was blindsided by the decision. In this regard I note that contrary to the facts in Mt Arthur Coal, in the present case, the MUA was not given a "heads up" or any indication that the Mandate was being considered. Further, contrary to their evidence, the bulletins tendered by Mr Hulme, Mr Eadie and Mr Hanley do not refer to vaccination as a "people measure" to combat COVID - 19 and there is no evidence of any reference to employees being vaccinated, until 26 March 2021 in the Bulletins to Brisbane employees and 26 August 2021 in the Bulletins to Sydney employees. Further, the references in the Bulletins and other communications before Mr Adam's announcement of the Mandate, can hardly be described as encouraging employees to be vaccinated and the evidence of DP World witnesses on this point is an overstatement.
[465] Rather, the Bulletins prior to the dates I have referred to, describe in detail control mechanisms to deal with COVID - 19 in the workplace, such as sanitisation, cleaning and social distancing measures. When vaccination is mentioned in the Bulletins referred to above, prior to the announcement of the Mandate, it is only in the context of a Queensland Government program to encourage vaccination in the maritime industry and restrictions placed on certain local government areas in New South Wales. Contrary to the evidence of encouragement, the Bulletin to Queensland employees on 26 March informs them that they are not obligated to provide vaccination details to Queensland Health.
[466] I found the evidence of the Respondents' witnesses about the timing of the decision to implement the Mandate to be improbable. Notwithstanding that this issue was not pressed in cross-examination, one only has to recount the evidence to illustrate its improbability. Mr Hulme's evidence is that the outbreak of COVID - 19 at Port Botany came to his attention on 15 September 2021. Mr Hulme, Mr Eadie and Mr Hanley all said that the management team decided on 16 September - the next day - to implement the Mandate. The email from Mr Adam announcing the Mandate tendered by Mr Dunn indicates that it was sent at 2.00 pm on that date. The email announcement of the Mandate states that DP World Australia has been reviewing risk controls and has decided to make vaccination a condition of engagement for all employees and contractors. Under cross-examination, Mr Hulme said that the Respondents did not rush the decision to introduce the Mandate which is at odds with the timeframe in his evidence. It is probable that the Mandate was under consideration before 15 September when the outbreak occurred. According to the Note about vaccination requirements filed by the Respondents after the hearing, the New South Wales contact tracing matrix did not, on 16 September 2021 when the Mandate was announced, require that vaccinated persons be treated differently from non-vaccinated persons. At the point the Mandate was announced, the requirement was that all close contacts isolate for a period of 14 days. Accordingly, I do not accept that this consideration could have been relevant to the decision to introduce the Mandate
[467] It is also the case that notwithstanding the urgency, the date by which employees were required to receive their first vaccination was not until some four weeks after the announcement and this should have been enough time to consult with employees in the way required by the WHS Acts. Instead, the decision to implement the Mandate was announced as a fait accompli and the communication of the announcement made clear that the Respondents were open to discuss the details of the policy rather than whether it would be implemented at all. Further, I am of the view that regardless of whether risk assessments had been carried out by the Company in the past, without the involvement of HSRs from the outset, there is no reason why this had to occur with respect to the Mandate. A risk assessment involving HSRs could, and should, have been conducted before the announcement of the Mandate was made. Further, the document setting out "Frequently Asked Questions" was generated from a single meeting, which in itself raises issues as to how the questions could be described as "frequently asked".
[468] DP World could, and should, at least, have given HSRs and the MUA notice that the Mandate was under contemplation and issued an announcement to that effect. This is so, notwithstanding that I accept, for reasons given later, that a truncated consultation process was necessary and reasonable in the circumstances that confronted the Company when the Mandate was implemented.
[469] Finally, I do not accept that there is a distinction in the present case with the facts in Mt Arthur Coal, on the basis that the Mandate served a dual purpose of discharging the Company's primary duty under the WHS Acts and supporting its operational continuity to enable the provision of an essential service to the Australian public. There is nothing in the WHS Acts that excuses a failure to consult because a safety initiative has another non-safety related purpose. To accept this submission would render the important consultation requirements in the Act otiose. The WHS Act recognises that health and safety initiatives may have non-safety related purposes by making clear that the content of the obligation to consult may differ in particular circumstances but does not allow for consultation requirements to be entirely avoided. I am also of the view that the evidence about the views expressed by SafeWork Inspectors does not provide a basis for me departing from the clear findings in Mt Arthur Coal in relation to the consultation requirements in the WHS Act. This evidence may be relevant to the other matters in s. 387 which remain to be considered.
Whether DP World complied with consultation requirements under Enterprise Agreements
[470] Clause 21.4 of the Enterprise Agreements constitutes a commitment by the Company to consult with employees and HSRs about matters which affect, or which are likely to affect, the health and safety of employees. The use of the term "likely to affect" makes clear that the clause is triggered prior to a decision being made in relation to a health and safety matter. While the clause is aspirational in some respects, the Mandate was in my view, a matter that was likely to affect the health and safety of employees and consultation should have occurred prior to the announcement and at the very least HSRs should have been given an opportunity prior to the announcement to express their views. It is apparent that this did not occur.
[471] However, I do not accept the MUA's submission that the Agreements require that a risk assessment be done in particular way and that the Company is prevented from drafting an assessment and providing it to employees. I note the uncontested evidence of Mr Eadie that but for one control - presumably the Mandate - the other controls and measures in the risk assessment were already in effect. While that evidence may excuse any failure by the Respondents to meet their consultation obligations under the Agreement, it also raises questions about why the risk assessment could not have been provided at an earlier time to enable the HSRs to consider it in more detail. On the evidence of the Respondent's witnesses, the risk assessment was completed at or around the time the Mandate was announced on 16 September 2021.
[472] I accept that after the decision to implement the Mandate had been announced, that DP World engaged in some consultation. However, it is arguable that the steps taken by the Company were not sufficient to meet its obligations under clause 27 of the Agreements. Consistent with the Full Bench Decision in Mt Arthur Coal, it is arguable that the Consultation terms in clause 27 of each of the Enterprise Agreements which deal with the Introduction of Change, were triggered by the definite decision to introduce the Mandate. Those obligations include steps to avoid and mitigate loss of employment.
[473] However, for reasons discussed above, it is not appropriate to reach a concluded position in relation to clause 27 in circumstances where the matter was not pressed by the MUA in relation to its argument about valid reason and the Respondents reserved their position on this point. Compliance with clause 27 is appropriate to be considered when other criteria under s. 387 are considered. Such consideration may also encompass the effect of the notice period for changes set out in clause 27.4 of the Enterprise Agreements. While not reaching a conclusion on this issue, I make the following provisional observations.
[474] Firstly, the responses to the questions posed by HSRs and representatives of employees at the meeting on 23 September 2021, as set out in the "Frequently Asked Questions" document, are brief. In some cases, more detail could and should have been provided. In other cases, responses were not appropriate in the context where the Mandate, which would have significant effects on employees including the loss of their employment for failure to comply, had been announced, without forewarning that it was being considered. In other cases, the responses were entirely appropriate.
[475] In this regard, the response to question 2 is unfair when the context is considered. Employees had not had since March 2021 to consider their vaccination plan in the context of the Mandate. At the point the meeting of 23 September was conducted, employees had only one weeks' notice of the Mandate, which would result in them not being offered further work if not vaccinated by a certain date. Accepting (as I do) that the imposition of the Mandate blindsided the MUA and employees and that there is little evidence of encouraging vaccination prior to 26 March in Brisbane and August in Sydney, that response was not reasonable.
[476] In relation to question 3, it was not reasonable to dismiss alternative vaccinations that may have been available out of hand, without considering the views of employees who would seek such alternatives and whether they had leave available to cover any likely waiting period. If this was not a viable option for the Respondents due to workforce requirements or shortages or for some other reason, more engagement on this point would have been reasonable. The response to question 4 left something to be desired given that it was later necessary to adjust the timing of deadlines for vaccination due to availability of vaccines. Question 13 could have been more fulsomely answered by referring to the WHS Acts and to the duty of employees at common law and under the Enterprise Agreements, to comply with lawful and reasonable directions.
[477] Question 14 could also have been more fulsomely answered given that it is well established that failure of an employee to comply with a lawful and reasonable direction will generally constitute a valid reason for dismissal and this was implemented within a relatively short time. Mr Hulme also gave evidence that prior to announcing the Mandate, the management team endorsed a process which included that disciplinary matter relating to employees who refused to comply with the Mandate would be dealt with by terminal managers. This indicates that the management team well knew that there was a likelihood that some employees would refuse to comply with the Mandate and that there would be a need for such refusal to be dealt with as a disciplinary matter. The response to question 19 does not engage completely with the question and does not address the question of leave being taken by unvaccinated workers.
[478] I am also of the view that the response to question 26 should have been answered differently. DP World has a Privacy Policy and I can only wonder at why this was not referred to in the answer. While I accept that Mr Dunn's position about getting information from HR was somewhat facetious, his underlying point is valid. Employees cannot be expected to go to a Company's HR department in search of a policy, in circumstances where they have not been informed that it exists and how to obtain a copy. Further, the answer to that question indicates that HR representatives are not available on site across all shifts. While this may be a legitimate argument for the Respondents to hold a copy of vaccination certificates rather than having them sighted by HR on each occasion an employee attends for work, it does not excuse the failure to point employees in the direction of the Privacy Policy.
[479] I am also of the view that while the MUA did not request a copy of the policy and that it had time to do so if issue was to be taken with compliance with the Privacy Act, the Frequently Asked Questions Document was intended to be a source of advice for employees. Accordingly, it should at least have included information about how their confidential medical data was to be stored. This is particularly so in circumstances where this issue has not been a live issue in workplaces generally, prior to the advent of the COVID - 19 Pandemic and the need to collect vaccination information.
[480] Conversely, the responses to questions 1, 5, 6, 7, 11, 12, 15 and 24 are unremarkable and reasonable. In relation to the remaining questions, all COVID - 19 vaccinations available at the time the dismissals were carried out, were approved for use in Australia and the fact that the approval is described as "provisional" does not render the approval doubtful. The Australian Technical Advisory Group on Immunisation (ATAGI) is responsible for providing advice to the Commonwealth Government and to the Australian public, on the National Immunisation Program and other immunisation issues. ATAGI's role also includes providing advice to research organisations on current immunisation research and areas that need more research and consulting with relevant organisations to produce the Australian Immunisation Handbook. Its membership comprises eminent experts in the field of immunisation and related disciplines and also includes persons with expertise in these areas as they relate to particular groups such as children, pregnant women and persons of Aboriginal and Torres Strait Islander descent.
[481] ATAGI has monitored and evaluated the progression of COVID - 19 in weekly meetings since the advent of the Pandemic and has updated its advice regularly. At the time the Mandate was implemented and the Applicants in this matter were dismissed, the advice from ATAGI was that vaccination was an intervention to "prevent infection, transmission and severe disease." According to ATAGI, provisional approval means that a full and thorough assessment has been made of the vaccinations, and they were approved by the Therapeutic Goods Administration (TGA) after a complete assessment of all available data. It is entirely understandable that in the midst of a global pandemic, scientists would be focused on progressing vaccinations and that as we are advised, the TGA has engaged early with pharmaceutical companies about vaccines and is accepting clinical data as it becomes available rather than at the end of trial processes, which speeds up the review process. The rapid movements in the approval process of vaccines is also understandable in circumstances where there has been unprecedented levels of funding as combatting the pandemic is a global priority.
[482] Employers cannot reasonably be expected to comment on the expertise of ATAGI or the conclusions it reaches in relation to scientific or epidemiological matters. Nor should employers be required to engage in debate with employees about information they have obtained from the internet that in their view, conflicts with the advice of ATAGI. It is entirely reasonable for employers to rely on the advice provided by ATAGI in relation to its areas of expertise and to refer employees to ATAGI as a source of such advice. If employees wish to obtain their own advice and to act accordingly, that is a matter for them, but a refusal to comply with a Mandate that directs vaccination consistent with ATAGI advice is liable to result in the employee being exposed to allegations of refusing to comply with a lawful and reasonable direction.
[483] Accordingly, the responses to questions 18 and 20 are perfectly reasonable in the circumstances. Similarly, there is no basis for employers to be required to provide "Material Safety Data Sheets" (MSDs) for various kinds of vaccinations or "Safe Work Methods" (SWMs) for the process of becoming vaccinated. MSDs are documents listing information relating to occupational health and safety issues. In a workplace context, they relate to chemicals and other products that are purchased by employers for use by employees in workplaces. Employers do not control the approval of vaccinations in Australia. Vaccinations cannot be compared with materials such as cleaning agents, chemicals or substances used in a w, which employers can choose to purchase for use in the workplace. I do not accept that a type of vaccination is a product that is susceptible to such information being provided by employers. Any information about the contents of vaccinations can be obtained from ATAGI.
[484] Neither is it reasonable to expect employers to assess a vaccine MSD (assuming that such a document exists) against the risk that it is sought to control. Again, that decision is made by ATAGI and it is reasonable for employers seeking to manage risks to health and safety and business operations, by reference to advice from body about the safety and efficacy of vaccinations. The response to questions 21 - 23 was therefore entirely reasonable. There is also no reasonable basis for employees to expect that DP World will indemnify them for any immediate or future reaction to vaccination. As the Company pointed out in its response, there is a Commonwealth scheme that operates in the unlikely event of adverse reaction to vaccination.
[485] It is also the case that DP World is not responsible for the risks associated with vaccination. What DP World is responsible for is the risk associated with the transmission and spread of COVID - 19 within its workforce. Accordingly, the answer to question 16 was perfectly reasonable.
[486] In relation to question 17, a requirement that an employee be vaccinated and provide evidence of such to his or her employer in circumstances where failure to do without reasonable excuse, will render the employee subject to disciplinary action including dismissal, is not coercion or duress at law. This was the decision of the Full Bench in Mt Arthur Coal which found that while the SAR did not constitute coercion in a legal sense, that employees were being pressured to undergo a medical treatment when they would prefer not to do so, was a form of economic and social pressure, involving a difficult choice for employees. As DP World pointed out in response to question 17, what DP World had asked of employees is not coercion or duress. That response is correct and was reasonable.
[487] It is also the case that the responses to all questions posed by the MUA and employees was provided on 28 September 2021, some 16 days prior to the first date for compliance with the Mandate and some 47 days prior to the final implementation date. The response provided by the MUA to the "Frequently Asked Questions" document simply stated that the answers were inadequate without posing further questions or indicating the extent of the inadequacies. If the MUA and/or HSRs wanted further information, they had ample opportunity to request it or to raise a dispute in relation to the matter. This did not occur or to the extent that it did, the dispute was withdrawn.
[488] Finally, I accept the submissions of DP World in relation to clauses 3.2 and 8.12 of the Enterprise Agreements. Clause 3.2 is aspirational, and the Mandate is not inconsistent with that clause. Clause 8.12 requires employees to be advised of policy changes rather than consulted about them and that policies will not operate to the extent that they are inconsistent with intent of the Agreement. Self-evidently, the intent of the Agreements is not consultation, notwithstanding the number of times that term appears in the Agreements. Other than the asserted failure to consult, no inconsistency with the Agreements is identified by the MUA. Further, any failure to consult is a procedural rather than a substantive issue and does not give rise to any inconsistency. I also note that the Enterprise Agreements clearly provide that any dispute about whether a change to a policy is inconsistent with their intent, is to be progressed through the Dispute Resolution Procedure in clause 29. Mr Eadie's uncontested evidence is that such a dispute was lodged with the Commission and withdrawn.
Effect of Mandate in relation to Bodily integrity
[218] The existence of such a right is uncontroversial but the right is not violated by the terms of the Site Access Requirement. Unlike the circumstances in Marion's Case, the Site Access Requirement does not purport to confer authority on anyone to perform a medical procedure on anyone else. As Beech-Jones CJ at CL said in Kassam v Hazzard:
'It can be accepted that there is room for debate at the boundaries of what external factors might vitiate a consent to medical treatment so as to render the treatment a battery and a violation of a person's right to bodily integrity. [...] 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 [Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No. 2) 2021 (NSW)] 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.' [Emphasis added]"
[491] Further, while the economic duress place on employees deciding not to comply with the Mandate is a relevant matter in assessing the reasonableness of the direction, it is not determinative of the question of reasonableness, but rather is a consideration to be weighed in the balance with the other relevant considerations. As also acknowledged by the Bench, the right to bodily integrity must be balanced against other rights. In my view those rights include:
[492] For reasons set out above, it is appropriate to apply the conclusions of the Full Bench in Mt Arthur Coal to the present case. It follows that the effect of the Mandate on the rights of employees to bodily integrity, is not of itself determinative of whether the SAR is unreasonable.
Whether DP World failed to comply with Privacy Act
[493] I do not accept that DP World failed to comply with the provisions of the Privacy Act. The MUA's contention to the contrary on the part of the represented Applicants is that they have not genuinely consented to the provision of information about their vaccination status. It is not in dispute that such information is "sensitive information" as defined in section 6 of the Privacy Act, because it is "health information".
[494] The MUA's submissions in rely on APP 3.3 which requires that an individual consent to the collection of sensitive information. I do not accept that employees being informed that failure to provide information to establish their vaccination status will result in disciplinary action up to and including termination of employment, vitiates consent to provide that information. As the Respondents point out, they are obligated to inform employees about the consequences of failing to provide the information required. The Respondents have complied with this requirement. Just as economic pressure associated with the fact that failure to comply may result in termination of employment does not vitiate consent to be vaccinated and a person's right to bodily integrity, it does not vitiate consent to provide sensitive information to an employer. The Full Bench in Mt Arthur Coal confirmed this is so when it determined that economic and social pressure applied to employees in relation to the SAR and the provision of sensitive information to their employer, was not coercion that vitiated consent on the part of employees, to provide sensitive information to their employer.
[496] It is also the case that DP World has a comprehensive privacy policy. While not being specifically referred to the Policy, Employees were informed in numerous general communications that the information they provided would be kept confidential and that security systems were high, data would be encrypted and access limited to Human Resources personnel only. The Frequently Asked Questions document included a reference to privacy. Individual letters reminding employees about the need to provide evidence of vaccination also referred to privacy and confidentiality of information. These communications advised employees of the information DP World was collecting and the uses to which it would be put. It also advised employees of the ramifications of not providing the information. The requirement that employees provide sensitive medical information in those circumstances does not, of itself, render the Mandate unreasonable.
[497] I do not accept the arguments advanced by the MEU about the effectiveness of the Mandate. To accept those arguments would be directly contrary to the factual findings made by the Full Bench in Mt Arthur Coal in relation to medical, epidemiological and scientific matters. As I have noted, those findings were made in relation to the same period in which the Mandate in the present case was implemented. The propositions mounted by the MUA are not arguable. I unreservedly accept the evidence of witnesses for DP World set out above, which I do not repeat, in relation to the operational matters which rendered other forms of controlling the spread of COVID - 19 less effective than vaccination and that vaccination is the most effective and efficient control.
[498] I also accept that none of the alternatives advanced by the MUA or the Applicants at the time they were dismissed, or in the present proceedings, provide an equal or better system of control. In particular, a requirement that unvaccinated workers undertake rapid antigen testing before commencing work does nothing to protect other persons in the workplace, or the unvaccinated. As the Full Bench in Mt Arthur Coal found, unvaccinated workers are more likely to catch COVID - 19 than vaccinated workers and increase the risk in a workplace that COVID - 19 will be spread to vaccinated workers and other unvaccinated workers. No evidence to the contrary was put in the present proceedings and applying the relevant findings in the decision in Mt Arthur Coal results in the same conclusion in relation to the efficacy and efficiency of vaccination as a control mechanism.
Further, the fact that DP World has allowed unvaccinated persons with approved contraindications to vaccination to enter the workplace is not a legitimate basis to find that the Mandate is not an effective control. The persons with approved contraindications to vaccination have complied with the Mandate by providing relevant documentation DP World Sydney and there is no basis to exclude those persons from the workplace. As Mr Eadie pointed out under cross-examination, the point of the Mandate is to limit as far as possible, the number of unvaccinated persons in the workplace. The fact that employees may be in contact with unvaccinated persons while going about their business in the community, is also not a legitimate basis for finding that the Mandate is unreasonable given the Medical, scientific and epidemiological findings made in Mt Arthur Coal.
Matters raised by self-represented Applicants
[499] In relation to the self-represented applicants, I commence by making some general findings. In their capacity as employers, the Respondents have a duty of to ensure, as far as is reasonably practicable, to ensure the health and safety of their employees. Employers have the right to implement policies and procedures consistent with their duty provided those policies and procedures are lawful and reasonable.
[500] The Fair Work Commission is not a Court. Members of the Fair Work Commission are bound by decisions of Full Benches of the Commission and by relevant decisions of other courts. Where an argument advanced to the Commission has been settled by a court or by a Full Bench of the Commission, then a single Member of the Commission should follow that precedent unless it can be distinguished on the facts. Many of the arguments advanced by the self-represented applicants have been determined by courts or Full Benches of the Commission in a manner that cannot be distinguished from this case and the conclusions in those matters are binding on me.
[501] Employees are subject to contracts of employment which consist of rights and obligations in legislation, industrial instruments (such as awards and enterprise agreements), written employment contracts (where they are entered into between an employer and employee) and matters that are agreed orally. The common law is derived from custom and decisions of courts rather than from legislation. The common law implies into every employment contract, an obligation to obey reasonable and lawful directions of an employer.
[502] Employers have a right to make such directions and employees have a right to choose whether to comply with them or not. An employee who has a personal belief that is in opposition to a lawful and reasonable policy implemented by an employer, must decide whether to comply with the policy. The fact that such a decision is made in circumstances where the employee may be disciplined or dismissed for refusing or failing to comply, does not mean that the employee has been coerced. Where an employer dismisses an employee and asserts that the dismissal is because the employee refused or failed to comply with a lawful and reasonable direction, and the employee makes an application for an unfair dismissal remedy, the Commission will generally find that a refusal to comply with such a direction is a valid reason for dismissal, unless (in summary):
[503] The case law about what constitutes a reasonable and lawful direction is set out elsewhere in this decision. It is conclusively established by a Full Bench of the Commission in Mt Arthur Coal that a decision by an employer to introduce a vaccination mandate (or a requirement however it is termed) to the effect that employees must be vaccinated against COVID - 19 to continue to work in a particular workplace, is on the surface, a lawful and reasonable direction with which employees must comply. This is so regardless of whether the existing contract of employment, award, or agreement contains such a provision.
[504] The Mandate implemented by DP World, is not, of itself, an unlawful or unreasonable direction simply because it mandates vaccination and provides that employees will be dismissed if they do not comply. I now turn to deal with the issues raised by the self-represented Applicants. Commencing with those raised by Mr Pintley, the fact that the Prime Minister may have stated that all Australians are responsible for their own health and that Australia does not have mandatory vaccinations, means that the Government is not mandating vaccination. This does not prevent employers from mandating vaccination in the workplaces they operate.
[505] A vaccination mandate in a workplace does not force any person to be vaccinated. A choice between having employment terminated for refusing without reasonable grounds, to comply with a lawful and reasonable direction or being dismissed, does not result in the employee confronted with that choice being coerced or subject to illegitimate pressure or manipulation. The employee concerned has the choice of complying or choosing not to comply with the result that his or her employment may be terminated. Where an employee is subject to a direction and chooses to be vaccinated as an alternative to being dismissed, the doctor who administers the vaccination is not liable for assault or battery or trespass against the person, and the employee has consented to vaccination, notwithstanding the pressure.
[506] The comment made by the former Health Minister Mr Greg Hunt has been twisted, misconstrued and misquoted. That is apparent when the full transcript of the interview is considered. The comment was made in the context of a criticism about how long the approval process for vaccinations had taken in Australia and the emphasis on safety of vaccines because of our thorough system of assessment. The comment was made after Mr Hunt emphasised that the international medical evidence at the time is that the safety impact of the two initial vaccines - Pfizer and AstraZeneca - for prevention of serious illness, hospitalisation and death, had been determined to be up to 100%. The reference to evidence and clinical trials was in relation to the transmission of vaccines and not their safety. What the Minister said, in its proper context, was as follows:
"You have coverage, you also have the question of the transmission capacity and impact, although the evidence coming out of the international studies now, both clinical trials and real world data, is that the different vaccines are showing a strong transmission impact.
But we always have to be aware of the capacity of the virus to mutate, and we have to look at what is called the longevity of the protection with regards to the antibodies that are developed and the world doesn't know that answer.
The world is engaged in the largest clinical trial, the largest global vaccination trial ever, and we will have enormous amounts of data.
But what's the message for the public? It's safe, it's effective, it will help protect you, but it will also help protect your mum, your dad, your grandparents, your nonna, all of Australia."
[507] To attempt to parlay those comments into a basis to refuse to be vaccinated on safety grounds is in my view, clutching at straws. The issue is not whether the vaccinations provide immunity. The findings of the Full Bench in Mt Arthur Coal as set out above, which were made in relation to the circumstances that existed in Australia at or around the time that DP World implemented its Mandate, are that unvaccinated workers are more likely to catch COVID - 19 than vaccinated workers and increase the risk in a workplace that COVID - 19 will be spread to vaccinated workers and other unvaccinated workers. That is the view of the authority in Australia responsible for the approval of vaccinations and which formulated the Immunisation Guide referred to by several of the unrepresented Applicants in their submissions.
[508] Unvaccinated workers have every right to decide not to be vaccinated and to treat themselves with anti-viral medications (assuming they are prepared to pay for them or are eligible to receive them) if they contract COVID - 19. They do not have the right to expose their work colleagues to COVID - 19 by virtue of being more likely to carry the virus and therefore to infect others in the workplace. Any assertion that COVID - 19 has not proven to be a significant threat to human health on a "nationally significant scale" or to the "so called pandemic" is at best wrong and at worst disrespectful and offensive to the many thousands of Australians who have lost their lives in the Pandemic and to their families and loved ones and to the countless people who have suffered loss and detriment because of the impacts of the pandemic and measures to control its effect.
[509] Searching the internet will doubtless uncover many theories about wrongdoing and alleged criminality on the part of drug manufacturers, none of which are relevant to the safety and efficacy of vaccinations approved for use in Australia by ATAGI. As I have noted above, the fact that the vaccinations are provisionally approved, does not impact the validity and integrity of the approval process and nor does it cast doubt on the efficacy of the vaccinations.
[510] In relation to the alleged breach of privacy referred to by Mr Pintley, while I do not doubt that he was distressed by the list of names found in the workplace, I do not accept that this is a matter that is relevant to the validity of the reason for his dismissal. In short, there is nothing to establish that DP World was responsible for the list or that it was found in the workplace. Mr Pintley has not been in the workplace for some time and did not state how he came to be in possession of the list. There is no evidence that the list was created as a result of a Privacy Breach. While Mr Pintley was entitled to take issue with the existence of the list and raise it with the Respondent, this is not relevant to whether there was a valid reason for Mr Pintley's dismissal. This does not mean that the list is irrelevant to the overall fairness or otherwise of the dismissal but simply that this is a matter relevant to the other matters required to be considered under s. 387, including that Mr Pintley did not receive a response to his grievance about the list. Further, the Respondent is not responsible for the conduct of Mr Dunn and Mr Pintley provides no evidence about how he came into possession of the text message he tendered in any event.
[511] Mr Eadie's comments about Mr Pintley's views on vaccination may also be relevant to other considerations in s. 387 but are not relevant to the validity of the reason for his dismissal. The fact that Mr Pintley was on Workers' Compensation leave at the time the events which led to his dismissal arose, is also not relevant to the validity of the reason. Those matters go to procedural fairness considerations in s. 387. Mr Pintley was dismissed because he refused to comply with the Mandate and the fairness of his dismissal turns on whether this was a valid reason for dismissal. Mr Taylor's evidence about this particular circumstance, while relevant to the procedural fairness of his dismissal and to mitigating factors, is also not relevant to whether there was a valid reason for his dismissal.
[512] Mr MacDonald has raised no issue going to the validity of the reason for his dismissal. For the reasons I have set out above, vaccinations approved for use in Australia (whether provisionally or otherwise) are not experimental gene technologies. Even if the allegations Mr MacDonald makes about regulatory agencies, governments and pharmaceutical companies are valid (which in my view they are not) such issues are not a matter for the Fair Work Commission and they are not relevant to the validity of the reason for Mr MacDonald's dismissal. The Respondent is not required to guarantee that he will not suffer an adverse reaction or die because of being vaccinated or for the fact that a decision to be vaccinated will cause him pain by reason that his skin is broken with a needle. The Mandate does not result in Mr MacDonald being subject to illegitimate coercion or duress. He is free to refuse to be vaccinated for whatever reason just as DP World is free to implement a Mandate which results in Mr MacDonald's choices rendering him unable to work for DP World.
[513] In relation to legal arguments advanced by Mr MacDonald:
[514] Other matters raised by Mr MacDonald are dealt with elsewhere in this Decision. In relation to Mr Nemeth's issues not otherwise dealt with in this decision, the Nuremberg Code has no relevance to the question of vaccination or the regime for approval of vaccinations in Australia. Suggestions that the Mandate in any way resembles the atrocities the Nuremberg Code was directed at are offensive to those who were subjected to them as is the assertion that the Mandate involves "Gestapo" like action. Not only is that assertion offensive to the victims of the Gestapo it is offensive to German people generally. The Criminal Code has no application to clinical trials and vaccinated persons are in any event, not participants in a clinical trial. The Biosecurity Act has no relevance as DP World does not need an order under that Act to issue the Mandate.
[515] Mr Nemeth and other persons who share his views have the right to decide to rely on their good health and natural immunity to safeguard their wellbeing and to refuse to be vaccinated. The majority of employees of the Respondents who do not share those views, or who are not as fortunate to be endowed with good health and natural immunity, are entitled to choose to comply with the Mandate and to go to work in an environment where all reasonable steps have been taken to minimise risk associated with transmitting and contracting COVID - 19. Further, a letter from the Therapeutic Goods Administration stating that it does not have copies of documents is not proof that the documents do not exist but only that the entity from which they were requested does not have such documents. Absent any explanation from Mr Nemeth about what the documents would demonstrate, it is equally probable that the documents are irrelevant to the work of the TGA or that they are irrelevant
[516] The represented Applicants and the Respondents are in furious agreement about the impact of the COVID - 19 Pandemic on Australia. As the MUA eloquently stated in post hearing written submissions, the COVID-19 Pandemic has had a devastating impact on our way of life. The MUA submits that the virus has sickened more than six million Australians and killed more than seven thousand. DP World submits that since March 2020 Australia has faced a pandemic of viral illness on a scale not seen since the Spanish Flu outbreak in 1918.
[517] After considering at length the evidence and submissions in this case, I have concluded that the Mandate was objectively a valid, sound, and defensible response to the circumstances confronting the Respondents in September 2021. I have also concluded that any failure on the part of the Respondents to consult employees as required by the WHS Acts and the terms of the relevant Enterprise Agreements, does not of itself necessitate a conclusion that a failure on the part of employees to comply with the Mandate was not a valid reason for the dismissal of the Applicants. For the reasons developed above, the Full Bench decision in Mt Arthur Coal does not necessitate that I reach the conclusion advocated by the MUA on behalf of the represented Applicants.
[518] Contrary to the submissions of the MUA the relevant point for considering whether there was a valid reason for dismissal is the date on which the Applicants were dismissed and not the date the Mandate was announced or implemented. In the case of the Sydney Applicants no dismissal took effect before 25 October 2021 with the majority taking effect on that date. In the case of the Brisbane Applicants no dismissal took effect before 8 November 2021 with the majority taking effect on 17 November 2022.
[519] I accept the comprehensive evidence advanced by the witnesses for DP World about the factual scenario that existed at the time the dismissals were effected. While the MUA witnesses and the self-represented Applicants took issue with the emphasis or weight that should be placed on those facts, no fact of any significance was disputed. The overwhelming weight of the evidence, which I do not repeat, establishes that at the time the Mandate was introduced and the dismissals were effected:
[520] In short compass, there were compelling reasons for DP World to introduce the Mandate and it is not to the point that other stevedoring companies did not take similar steps. It is also the case that consistent with the medical, scientific and epidemiological findings of the Full Bench in Mt Arthur Coal, vaccination was the most effective control to manage the adverse impacts of the virus.
[521] While consultation did not meet the requirements of the WHS Act and arguably the Enterprise Agreements, this is swamped by the contextual and factual circumstances demonstrated in the evidence before me. Any deficiencies in consultation are not determinative of whether there was a valid reason for the dismissal of the Applicants. This finding does not preclude a subsequent conclusion that all or some of the dismissals were unfair for other reasons based on procedural fairness and various potentially mitigating factors which will fall for consideration under ss. 387(b) - (h).
[522] The matter will be listed for a further mention to program subsequent proceedings and issue any necessary directions.
K Bond of the Construction, Forestry, Maritime, Mining and Energy Union - Maritime Union of Australia Division for 22 Applicants.
S Crilly of Seyfarth Shaw Australia for the Respondents.
Applications: Represented by the Maritime Union of Australia Division of the Construction Forestry Maritime Mining Energy Union
Mr Fletcher Pohuka Ellison Jones v DP World Sydney Limited
[2] Bishop v Bridgelands Securities Ltd (1990) 25 FCR 311 at 314.
[3] Exhibit MUA - 1 Witness Statement of Bradley John Dunn; Exhibit MUA - 2
[4] Exhibit MUA - 5 Witness Statement of Keiron Carty.
[5] Exhibit MUA - 3 Witness Statement of Matthew Lewis; Exhibit MUA - 4 Reply Witness Statement of Matthew Lewis.
[6] Exhibit A1 - Particulars of complaint of Adverse Action; Exhibit A2 - Response to Scott Eadie's Statement.
[7] Exhibit A3 -Material filed by Mr Kevin MacDonald.
[8] Exhibit A5 - Material filed by Mr Zoltan Nemeth.
[9] Exhibit R1 - Statement of Mark Shallcross Hulme.
[10] Exhibit R2 - Statement of Scott Eadie dated 31/01/22; Exhibit R3 - Statement of Scott Eadie dated 14/02/22.
[11] Exhibit R4 - Statement of Benjamin Hanley dated 31/01.22; Witness Statement of Benjamin Hanley dated 14/02/22.
[12] Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986)162 CLR 24
[13] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184_._
[15] Sydney Trains v Gary Hilder [2020] FWCFB 1373.
[16] CSL Limited T/A CSL Behring v Chris Papioannou [2018] FWCFB 1005.
[24] [1938] HCA 44; (1938) 60 CLR 601 at 621-2.
[26] Op. cit. at [79] citing the observation of a Full Bench in Briggs v AWH Pty Ltd [2013] FWCFB 3316.
[27] [1938] HCA 44; (1938) 60 CLR 601 at 622. See also NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [217] (Flick J).
[33] [2010] FCAFC 150; [2010] 204 IR 42.
[42] Exhibit R2 Witness Statement of Scott Eadie dated 31 January 2022 Annexure SE-004.
[43] Exhibit R2 Witness Statement of Scott Eadie 31 January 2021 Annexure SE - 006.
[44] Exhibit R4 Annexure BCH - 1 - Selection of bulletins published to DP World Brisbane employees.
[62] Transcript PN1398 - 1402, 1428 - 1430. 1438 - 1440..
[65] Exhibit R3- Witness Statement of Scott Eadie dated 14/02/22 Annexure SE 024.
[76] Exhibit R4 Statement of Benjamin Hanley Annexure BCH - 12.
[81] Exhibit R2 Statement of Scott Eadie paragraph 57.
[95] Exhibit 4 Reply Witness Statement of Mathew Lewis Annexure ML5.
[105] Mt Arthur Coal op. cit. at [103].
[106] Mt Arthur Coal op. cit. at [157].
[107] [1984] HCA 53; (1984) 154 CLR 472, at 493-494, cited in QR Ltd at [14].
[108] Mt Arthur Coal op. cit. at [198] citing [1984] HCA 53; (1984) 154 CLR 472.
[109] Exhibit MUA 1 Witness Statement of Brad Dunn paras [25] - [28].
[111] Construction, Forestry, Maritime, Mining and Energy Union & Ors v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA & Ors [2022] FWC 81 (21 January 2022).
[114] Exhibit MUA 5 Witness Statement of Keiron Carty at [15] and Annexure "KC - 3".
[121] 'Energy - Overview', Geoscience Australia (Web Page) .
[125] Respondents' closing submissions at [6.21] (p. 32).
[128] Witness Statement of Scott Eadie at [65], Court Book p. 422.
[129] Witness Statement of Scott Eadie at [72] - [76], Court Book p. 424.
[130] Ibid at [84], Court Book p. 425.
[131] Ibid at [74], Court Book p. 424.
[132] Respondents' closing submissions at [3.24] (p. 11); [6.27] (p. 34); and [6.29] (p. 35).
[133] Respondents' closing submissions at [5.9] (p. 19)
[134] Respondent's Closing submissions at [5.24] (p. 26).
[140] See for example Larter v Hazzard (No 2) [2021] NSWSC 1451 at [62] - [64].)
[141] Exhibit R1 - Statement of Mark Shallcross Hulme dated 28 January 2022 at [64].
[142] Exhibit R2 - Statement of Scott Eadie dated 31 January 2022 at [80] - [83].
[143] Exhibit R4 - Statement of Benjamin Charles Hanley dated 31 January 2022 at [72] - [73].
[144] Cox v DP World Brisbane Pty Ltd [2021] FCA 1335.
[145] Exhibit R4 - Hanley Annexure BCH-17 p. 114.
[146] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373.
[147] Miller v University of New South Wales [2003] FCAFC 180 at [13] - [15] per Gray J.
[148] Miller at [64] per Gyles and Ryan JJ; Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681 at 685.
[150] See also NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [216].
[151] [1938] HCA 44; (1938) 60 CLR 601 at 621 - 622.
[152] Briggs v AWH Pty Ltd [2013] FWCFB 3316 at [8].
[153] Exhibit R4, Statement of Benjamin Charles Hanley dated 31 January 2022 at [41]-[42] CB 278.
[154] Maritime Union of Australia (A Division of the Construction, Forestry, Maritime, Mining and Energy Union), COVID-19 - Waterfront Workers Information (27 March 2020) https://www.mua.org.au/news/covid-19-waterfront-workers-information, accessed 28 April 2022.
[155] Exhibit R1, Statement of Mark Shallcross Hulme dated 28 January 2022 at [13] CB 536.
[157] Exhibit R1, Hulme at [9] CB 536.
[158] That is, four of the nine berths: Exhibit R4, Hanley at [9] CB 273.
[160] Hanley at [18] - [19]; Eadie at [25].
[161] Hanley at [21] - [22]; Eadie at [27] - [28].
[162] See also Australian Competition and Consumer Commission, Container stevedoring monitoring report 2020-21, 4 November 2021, https://www.accc.gov.au/publications/container-stevedoring-monitoringreport/container-stevedoring-monitoring-report-2020-21> pp. 11 - 20.)
[164] Hanley at [23]; Eadie at [24].
[165] See Queensland Government, Queensland COVID-19 statistics, Queensland COVID-19 statistics | Health and wellbeing | Queensland Government (www.qld.gov.au).
[166] Eadie at [45] - [46], SE-006 pp. 28 - 31.
[167] McManus v Scott-Charlton [1996] FCA 1820; (1996) 70 FCR 16 at 27.
[168] Eadie at [72] - [76], SE-016 p. 56.) Darling Island Stevedoring (at 622)
[169] See e.g. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 449 - 450.
[170] Cosmos: A Personal Voyage, 'Encyclopaedia Galactica', Public Broadcasting Service, 14 December 1980.
[171] Mt Arthur Coal op. cit. at [85].
[174] That is, consultation clauses ultimately drawn from the Terminal, Change and Redundancy Case (1984) 8 IR 35 and (1984) 9 IR 115.
[175] Witness statement of Benjamin Charles Hanley dated 31 January 2022 at [62].
[176] Second Eadie Statement at [19], SE-025 (p. 46 - 55).
[179] Mt Arthur Coal at [217] - [218]; see also Kassam v Hazzard (2021) 393 ALR 664, [2021] NSWSC 1320 (Kassam v Hazzard SC) at [63]; Kassam v Hazzard (2021) 396 ALR 302, [2021] NSWCA 299 (Kassam v Hazzard CA) at [96] and [98] per Bell P.
[181] Department of Health & Community Services v JWB [1992] HCA 15; (1992) 175 CLR 218.
[182] Office of the Australian Information Commissioner, Australian Privacy Principles guidelines, Chapter B: Key concepts at [B.47].
[183] Kassam v Hazzard SC at [63]. Upheld on appeal in Kassam v Hazzard CA.
[184] [2022] FWC 81 at [156] - [158].
[185] (2019) 287 IR 368, [2019] FWCFB 2946.
[186] Exhibit R3 at SE-026 (p. 56ff); Exhibit R5 at BCH-22 (p. 17ff).
[187] Exhibit R 5 at [12(b)(ii)], BCH-19 (p. 5 -7).)
[188] Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14.
[190] Kassam v Hazzard SC at [261] - [286]; Kassam v Hazzard CA at [38] - [40].
[191] Wong v Commonwealth (2009) 236 CLR 573, [2009] HCA 3 at [60].)
[192] [2021] FWC 6587 at [26].
[193] Kassam v Hazzard CA at [166] - [167].
[194] Commonwealth Department of Health, Interview with David Speers on ABC Insiders on the COVID-19 vaccine rollout, 21 February 2021 Interview with David Speers on ABC Insiders on the COVID-19 vaccine rollout | Health and Aged Care Portfolio Ministers.)
[196] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [40] - [44]; quoting inter alia Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, [2014] HCA 32 at [1].
[197] Exhibit R3 - Second Eadie Statement at [24].
[198] Respondent's outline of submissions dated 31 January 2022 at [10] CB 247.
[199] Exhibit R1, Hulme MSH-2 CB 612ff.
[200] Exhibit R1, Hulme at [32]-[33] CB 540-541.
[201] Exhibit R1, Hulme MSH-7 CB 641 - see question 24.
[202] Exhibit R2, Statement of Scott Eadie dated 31 January 2022 at [39] CB 417.
[204] Exhibit R2, Eadie at [45]-[46].
[208] Exhibit R4, Hanley at [57]; Transcript PN1398-1402 (Eadie RXN).
[209] See Transcript at PN1222-1224 (Eadie XXN), PN1396-1402 (Eadie RXN), PN1428-1432 (Eadie FXXN), PN1611-1612 (Hanley XXN).
[210] Exhibit MUA3, Statement of Matthew Lewis dated 31 January 2022 at [10] CB 111.
[212] Exhibit MUA1, Dunn BD3 CB 219, emphasis in original.
[213] Exhibit R1, Hulme at [55] CB 546; Exhibit R4, Hanley at [60] CB 282; Exhibit R2, Eadie at [66] CB 423; Exhibit MUA3, Lewis at [17] CB 112; Exhibit MUA1, Dunn at [10] CB 128-129; Exhibit MUA5, Witness statement of Keiron Carty dated 31 January 2022 at [10] CB 233-234.
[214] Transcript PN943 (Hulme XXN). Mr Hulme answered to the effect that there were to be further discussions.
[215] Exhibit MUA1, Dunn at [11] CB 129.
[216] Exhibit MUA5, Carty at [13] CB 234.
[217] If indeed they are reflective of words actually said, rather than general mistrust or "the vibe".
[220] The matter is not, as Mr Dunn implied, one of simply choosing between the personal risks of getting COVID-19 versus that of an adverse vaccine reaction. It is not reasonable to expect to have an unfettered personal choice to be unvaccinated, have a higher risk of contracting COVID-19 and bringing it to work, and as a result make other employees sick and/or require them to isolate as contacts.
[221] The position in Victoria is at least potentially different as regards government mandates, due to that State's Charter of Rights and Freedoms: see Harding v Sutton [2021] VSC 741 at [161]. The case was never finally determined and there is no such legislation in the jurisdictions presently relevant.
[222] (2021) 393 ALR 664; (2021) 362 FLR 113; [2021] NSWSC 1320. On appeal to the same effect, see Kassam v Hazzard (2021) 396 ALR 302; (2021) 311 IR 233; [2021] NSWCA 299.
[223] Exhibit R2, Eadie at [65]; Exhibit MUA3, Statement of Matthew Lewis dated 31 January 2022 at [11]-[12]; Exhibit MUA1, Statement of Bradley Dunn dated 31 January 2022 at [10].
[226] Transcript PN413-419 (Lewis XXN).
[227] Such as employees who did not wish to be vaccinated, in circumstances where they doubtless had their own reasons but there is zero evidence that any Applicant medically could not be vaccinated.
[228] Work Health and Safety Act 2011 (NSW) and Work Health and Safety Act 2011 (Qld) ss 19(1) and (3)(a) in each case.
[229] Exhibit MUA2, Reply Statement of Bradley Dunn dated 14 February 2022 (Dunn Reply) at [6]-[7] CB 230.
[230] Transcript PN294-296 (Dunn XXN).
[233] Exhibit R5, Reply Statement of Benjamin Charles Hanley dated 14 February 2022 (Hanley Reply) at [9(c)-(d)] CB 389.
[234] Exhibit MUA4, Reply statement of Matthew Lewis dated 14 February 2022 ML5.
[235] Exhibit R2, Eadie at [72]-[76].
[236] Exhibit R2, Eadie at [38], [40]; Exhibit R4, Hanley at [35].
[237] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373.
[238] Miller v University of New South Wales [2003] FCAFC 180 at [13] - [15] per Gray J.
[239] Miller at [64] per Gyles and Ryan JJ; Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681 at 685.
[240] See B v Australian Postal Corporation (2013) 238 IR 1; [2013] FWCFB 6191 at [36].
[243] DP World Brisbane Enterprise Agreement 2020 and DP World Sydney Enterprise Agreement 2020 Part A, clause 21.2.2.
[244] [1938] HCA 44; (1938) 60 CLR 601 at 621-622.
[246] Union Closing Submissions at [8], emphasis added.
[247] Outline of reply submissions dated 14 February 2022 at [13] CB 254; Mt Arthur Coal at [96].
[248] Mt Arthur Coal at [84]-[85], [94].
[255] Thus, for instance, the High Court in R v Adams [1935] HCA 62; (1935) 53 CLR 563 held at 567-568 that where penal legislation is ambiguous, "it ought not to be construed as extending any penal category".
[258] See especially Transcript PN 243 (Dunn XXN). See also Transcript PN234, PN256 (Dunn XXN), PN1153 (Hulme RXN).
[259] Exhibit R4, Hanley at [79(e)] CB 285.
[260] See e.g. O'Toole v Australian Community Support Organisation Ltd [2022] FWC 477 at [77]; Hadjipavli v Dnata Airport Services Pty Ltd [2022] FWC 1013 at [46].
[261] Union Closing Submissions at [18]-[20]. DP World neither accepts that it can only prevail on the basis outlined, nor expects a single Member to depart from recent Full Bench authority. As is entirely conventional, it is required to record submissions that it may wish to advance in the event of any appeal - where a subsequent Full Bench might be invited to revisit such authority - so it cannot be put against it that the submissions underlying its appeal grounds were not advanced at first instance.
[263] Transcript PN880, PN910 (Hulme XXN).
[264] Union Closing Submissions at [22].
[266] Transcript PN867 (Hulme XXN), PN1563-1572 (Hanley XXN).
[268] Browne v Dunn (1893) 6 R 67 at 70-71 per Lord Herschell.
[269] Ibid at [39] per Gummow, Kirby and Callinan JJ.
[270] Jones v Dunkey (1959) 101 CLR 2198 at 321 per Windeyer J, citing R v Burdett (1820) 4 B & Ald 95 at 161-162 per Abbott CJ.
[271] See Hail Creek Coal Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2004] AIRC 670; (2004) 143 IR 354 at [48]- [50]. The approach in Hail Creek has been applied many times by the Commission - see e.g. Mackie v BHP Coal Pty Ltd [2013] FWCFB 8210 at [28]- [29] and Wong v Taitung Australia Pty Ltd (2017) 268 IR 145; [2017] FWCFB 990 at [31].
[272] Evidence Act 1995 (Cth) s 164(1).
[273] Exhibit MUA5, Carty at [12] CB 234.
[274] Transcript at PN731-732 (Carty XXN).
[275] Transcript at PN733-734 (Carty XXN).
[276] Transcript at PN1038-1039 (Hulme XXN).
[277] Exhibit R5, Hanley Reply at [6] CB 388-389; Transcript PN1041 (Hulme XXN), PN1208-1212 (Eadie XXN), PN1584 (Hanley XXN).
[278] Exhibit R3, Eadie Reply at [16] CB 475.
[281] Compare Exhibit R2, Eadie at [9]-[22] CB 411-414; Exhibit R4, Haney at [10]-[19] CB 273-275. As regards automation compare Hanley [8] and [13] CB 273 and Eadie [14]-[15] CB 412.
[283] Transcript PN1126, PN1147 (Hulme RXN).
[284] Exhibit R1, Hulme MSH-2 CB 613: "A regional COVID-19 assessment of at-risk groups and activities and prevention measure [sic] has been completed in the prevention measures section of this plan, this will be updated as new information becomes available." The measures (i.e. controls) are then listed under the hearings of Personal Hygiene, Cleaning, Traven and Conferences, Social Distancing, Personal Protective Equipment, and Procurement, Vendor and Contractor Management.
[285] NSW Government, How to manage work health and safety risks (August 2019) at [1.2] p. 8; Workplace Health and Safety Queensland, How to manage work health and safety risks Code of Practice 2021 at [1.2] p. 8.
[286] Whatever the impact of the new variant on vaccines' protection against transmission, there is little doubt that they are effective in reducing the likelihood of serious illness or death.
[287] Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWC 6309 (Mt Arthur Interlocutory Decision) at [27]
[288] The remaining two DP World terminals in Fremantle and Melbourne being subject to State government mandates requiring vaccination.
[289] For completeness, the CEPU does have some members at DP World Brisbane.
[290] Mt Arthur Interlocutory Decision at [30].
[291] Exhibit R2, Eadie at [42] CB 417; Exhibit R3, Reply Statement of Scott Eadie dated 14 February 2022 (Eadie Reply) at [6] CB 473-474.
[292] Mt Arthur Interlocutory Decision at [29].
[293] Exhibit R1, Hulme at [65(b)(i)] CB 547; Exhibit R2, Eadie at [65(a)] CB 424.
[294] Exhibit R4, Hanley at [54] CB 281.
[295] Exhibit R4, Hanley at [25]-[26] CB 276.
[296] See closing written submissions of Jason Pintley at [2].
[297] Transcript PN240-243 (Dunn XXN).
[301] Mt Arthur Coal at [231], quoting Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 305; [2001] HCA 6 at [52].
[302] Union submissions dated 31 January 2022 at [37] CB 95, in the context of the applicable enterprise agreement.
[303] See e.g. WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81; [2001] NSWIRComm 50 at [45] per Walton VP and Boland J: "The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable". Employers who seek to escape liability by blaming an injured or deceased worker fare poorly - see e.g. Morgenthal v Houghton [2010] NSWIRComm 192 at [75]- [77]. As a recent example where a worker's own actions did not prevent prosecution, see Orr v Cobar Management Pty Ltd [2019] NSWDC 224, where the Defendant was acquitted only after a lengthy trial (and a further attempt to refer the matter to the Court of Criminal Appeal - see (2020) 103 NSWLR 36; [2020] NSWCCA 220) notwithstanding the matters the court summarised by the District Court at [303]-[306].
[304] (2005) 145 IR 285 at [24].
[305] Exhibit R2, Eadie at [11], [15], [17], [21] CB 412-413; Exhibit R4, Hanley at [18]-[19] CB 274-275.
[306] Exhibit R2, Eadie at [24]-[25] CB 413-414; Exhibit R4, Hanley at [23] CB 276.
[307] Exhibit R1, Hulme at [15]-[26] CB 537-539.
[308] Exhibit R4, Hanley at [26] CB 276.
[309] Exhibit R2, Eadie at [12] CB 412.
[310] Exhibit R1, Hulme at [33] CB 540-541; Exhibit R2, Eadie at [12] CB 412; Exhibit R4, Hanley at [19(b)] CB 274-275..
[311] Exhibit R2, Eadie at [39] CB 417.
[312] Exhibit R2, Eadie at [30] CB 416.
[313] Including restrictions on the ability for children to attend at childcare or schools, and discrimination in eligibility for Family Tax Benefit payments - "No Jab No Play" and "No Jab No Pay", respectively..
[314] While Mr Dunn said in his statement that DP World refused "legitimate" medical certificates (Exhibit MUA1, Dunn at [24] CB 130), in cross-examination he rejected the notion that he was asserting that a "legitimate" certificate is necessarily "valid". He ultimately indicated that a "legitimate" medical certificate was simply one in a proper form: Transcript PN190-192 (Dunn XXN).
[316] [1938] HCA 44; (1938) 60 CLR 601 at 622.
[317] Outline of reply submissions dated 14 February 2022 at [4]-[5] CB 252-253.
[318] It may have required consultation under the Enterprise Agreements, matter on which the Union's closing submission is silent. If it did, then on any view DP World complied with them, as consultation under these instruments plainly permitted (and only required) after the making of a "definite decision".
[319] Mr Eadie does not give evidence of who made the complaint - this comes from Mr Lewis's reply statement dated 14 February 2022 (Exhibit MUA4), at [3] and ML5.
[320] Exhibit R2, Eadie [72]-[76].
[323] Exhibit MUA4, Lewis Reply at [4].
[324] Transcript PN310-318 (Dunn XXN).
[325] See Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2020] FWC 4623, which was a stand-down dispute relating to a period when a ship could not be worked at DP World Sydney due to prohibition notices issued by the Inspector concerned.
[326] Exhibit MUA2, Reply statement of Bradley Dunn dated 14 February 2022 at [8] CB 230.
[327] Transcript PN310 (Dunn XXN). When asked to confirm that the inspectors did not require DP World to re-do the risk assessment in the way that the union wanted - which is obviously correct - Mr Dunn said "Well, basically what [the Inspector] aid was that consultation's a loose term, basically said that, 'It happened to me at my work, they can just tell you what to do, it's not been good, but there's not much we can do about it.'"
[328] Exhibit R2, Eadie SE-016 CB 465.
[330] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 per Dixon J.
[331] Exhibit MUA4, Lewis Reply ML5 CB 126.
[332] Exhibit R2, Eadie at [74]-[75] CB 424.
[333] Darling Island Stevedoring at 622 per Dixon J, emphasis added.
[335] Exhibit A1, Mr Pintley's "Particulars of Complaint of Adverse Action in Breach of the Fair Work Act 2009" A003 CB 52-56.A007 CB 6
[336] Transcript PN215-218 (Dunn XXN).
[337] See e.g. Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd (2017) 268 IR 285; [2017] FWCFB 3005 at [62].
[339] Berri at [65], quoting Kucks v CSR Ltd (1996) 66 IR 182 at 184.
[341] Union's submissions dated 31 January 2022 at [38] CB 95.
[343] Exhibit R5, Hanley Reply at [16], BCH-22; Exhibit R3, Eadie Reply at [30], SE-026.
[344] Transcript at PN173, PN177-178 (Dunn XXN).
[345] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430; Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 471; Lane v Arrowcrest Group Ltd (1990) 27 FCR 427 at 455-456; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14:
[347] 'Coronavirus (COVID-19) - CDNA National Guidelines for Public Health Units", Department of Health and Aged Care, .
[349] Newton v Toll Transport Pty Ltd [2021] FWCFB 3457.
[355] Al-Munir Kassam and Others v Bradley Hazzard and Others No. S3 of 2022 [2022] HCATrans 131.
[357] Kassam and Others v Hazzard and Others; Henry and Others v Hazzard (20210 396 ALR 302; (2021) 311 IR 233; [2021] NSWCA 299.
[358] Al-Munir Kassam and Others v Bradley Hazzard and Others No. S3 of 2022 [2022] HCATrans 131.
Printed by authority of the Commonwealth Government Printer
Jason Pintley & Ors
DP World Sydney Limited & Ors [2023] FWC 65
"The duty of the employee at common law is to obey lawful orders. The "standard or test" by which the common law determines whether the order is lawful is one of reasonableness: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; (1938) 60 CLR 601 at 621. Dixon J explained at 621-2:
As Finn J observed in McManus v Scott-Charlton [1996] FCA 1820; (1996) 70 FCR 16 at 21:
(1938) 60 CLR 601
(1996) 70 FCR 16
(1987) 16 FCR 167
(2018) 262 FCR 527
(1984) 154 CLR 472
(1995) 62 IR 371
(1992) 110 ALR 449
(1984) 8 IR 35
(2017) 268 IR 285
(1998) 84 IR 1
(2021) 311 IR 233
(1990) 25 FCR 311
(1995) 185 CLR 410
(2018) 277 IR 23
(1996) 142 ALR 681
(2013) 238 IR 1
(1984) 9 IR 115
(2014) 245 IR 384
(2021) 393 ALR 664
(2021) 396 ALR 302
(2009) 236 CLR 573
(2015) 256 CLR 171
(2014) 253 CLR 169
(2021) 362 FLR 113
(1935) 53 CLR 563
(2001) 105 IR 81
(2020) 103 NSWLR 36
(1996) 66 IR 182
(1988) 80 ALR 455
(1990) 27 FCR 427
(1992) 175 CLR 218
(2019) 287 IR 368
(2021) 310 IR 399
(1959) 101 CLR 2198
(2004) 143 IR 354
(2017) 268 IR 145
(2001) 205 CLR 305
(2005) 145 IR 285
(1938) 60 CLR 336