Fair Work Act 2009

s.608 - Referring questions of law to the Federal Court

Application for the referral of questions of law to the Federal Court of Australia

• [1] Ms Krystle Giggs, who has applied for an unfair dismissal remedy in relation to the termination of her employment by St John Ambulance Western Australia Ltd (St John), has made an application for certain questions of law which are said to arise in her matter to be referred for the opinion of the Federal Court pursuant to s 608 of the Fair Work Act 2009 (FW Act). The President of the Commission has, pursuant to ss 584 and 582 of the FW Act, delegated to me his functions and powers under s 608 in relation to Ms Giggs' referral application, and has transferred to me the hearing and determination of the referral application.

• [2] Ms Giggs lodged her unfair dismissal application on 12 July 2021. Her application discloses that she was employed as an ambulance paramedic by St John until she was dismissed on 22 June 2021 for failing to comply with a lawful and reasonable direction to receive the 2020 influenza vaccination. Her application contends that her dismissal was unfair for the following reasons:

"1. The dismissal was harsh - declining an influenza vaccination because of a deep sense of morality and desire to maintain my bodily integrity is not punishable by the termination of one's employment.

Many reasonable adjustments and allowances have been made for members of staff who were deemed by St. John, WA 'not able to fulfil the inherent requirements of their roles. Some examples include medical conditions, such as diabetes or epilepsy, hypertension or sleep apnea. Other examples include criminal causes; loss of driving license due to convictions related to either drug or alcohol intoxication whilst controlling a motor vehicle. I have proof of alternative duties for many of my colleagues who have completed alternative tasks in the past. Some continue to work for St. John, WA, in alternative roles.

2. The dismissal was unjust - the alleged misconduct was never proven; I have been accused of non-compliance with the influenza vaccination policy. However, I repeatedly referred back to all relevant policies and associated procedures, noting that I had complied by lodging an exemption request. Furthermore, I frequently asked for clarification of the process post refusal of said exemption request, asking for specific instructions. I did not receive any detailed instructions or clarification of the due process.

3. The dismissal was unreasonable - I have many documents that prove my attempts for transparency and reasonable action. To this day, I have not received answers or responses to my original vaccination safety and efficacy concerns, nor have I received responses to a significant number of other questions regarding the fairness and validity of the whole process."

• [3] Ms Giggs also contends that her dismissal was not procedurally fair in a number of respects.

• [4] St John's response to Ms Giggs' unfair dismissal application was lodged on 22 July 2021 and, relevantly, states:

"4. In response to the COVID Pandemic, the Western Australian Government declared a Public Health Emergency in March 2020.

5. In April 2020, the Chief Health Officer of Western Australia issued the Visitors to Residential Aged Care Directions (Directions).

6. Relevantly, the directions made it mandatory for any person entering a residential aged care facility to have a current influenza vaccination. Exceptions are in place where the person is responding to an emergency, a vaccination is not reasonably available, or there is a medical contraindication.

7. Failure to comply with the directions is an offence punishable by fines of up to $20,000 for individuals and $100,000 for bodies corporate.

8. The Respondent's Ambulance and Patient Transport employees are required to enter residential aged care facilities under both emergency and non-emergency circumstances to perform their work.

9. In response to the Directions, the Respondent introduced a Mandatory Influenza Vaccination Policy (Policy) requiring all on road staff (including Paramedics) to have a current influenza vaccination. The Policy was widely communicated to all on road staff.

10. Staff who were unable to comply with the Policy were able to apply for an exemption.

19. The Applicant applied for an exemption on 8 August 2020 on the basis of:

1. A medical exemption (no medical evidence was provided); and

20. The Applicant's exemption application was declined on 21 August 2020 and the Applicant was instructed to comply with the Policy and obtain a vaccination.

25. In April 2021, the Applicant indicated she did not intend to comply with the Policy.

26. The Applicant was issued with a show cause notice on 4 May 2021 providing the Applicant a final opportunity to show cause why her employment should not end for the following reasons:

a. A failure to follow a lawful and reasonable direction to comply with the Policy; and

b. As a result of not being vaccinated, an inability to perform the inherent requirements of the role.

27. The Applicant provided a written response on 13 May 2021. No fresh or new information was provided and the Applicant continued to dispute the Policy.

28. The Respondent proceeded to end the Applicant's employment on 22 June 2021 with payment made in lieu of notice."

• [5] St John contends in its response that Ms Giggs was dismissed for a valid reason, being repeated refusal to comply with its Mandatory Influenza Vaccination Policy (Policy) despite multiple directions and opportunities, and the inability to perform the inherent requirements of her position in that she cannot lawfully access any residential aged care facility.

• [6] Ms Giggs' unfair dismissal application has been allocated to Commissioner Williams. On 17 August 2021, the Commissioner listed the matter for hearing on 8 October 2021, and made directions for the filing of evidence and submissions in advance of the hearing.

• [7] Ms Giggs lodged her referral application on 3 September 2021. The application sought the referral of the following questions (with subheadings removed and renumbered as 1-6):

1. Do employers have the authority to direct an employee to submit to a medical intervention, such as an influenza vaccination, in the absence of an underlying statutory requirement for them to do so?

2. Does a requirement for an employee to receive an influenza vaccination or other medical intervention place the employer in the shoes of either;

i. a medical body; or

ii. an enforcer of Public Health legislation?

3. Does the Respondent in this case, and do employers generally, hold the qualifications, skills, information and/or knowledge relevant to the risks and benefits of such medical intervention to mandate it within their workplaces?

4. Is the direction by an employer to mandate an influenza vaccination in these circumstances a measure within the meaning of the OHSA[1]? If not, then what degree of risk, if any, is permissible?

5. Is the Respondent's direction precluded by the employees' right to informed consent?

6. Is the Respondent liable to compensate an employee who is subject to such a requirement for any adverse reaction, injury or death which eventuates from such requirement? If not, is such a requirement appropriate?

• [8] On 16 September 2021, after Ms Giggs' referral application was listed for hearing before me on 24 September 2021, the Commissioner cancelled the substantive hearing listed for 8 October 2021.

• [9] Ms Giggs made extensive submissions about the merit of the propositions embedded in each of the proposed questions, but her submissions said very little in direct terms about how the questions arise from her unfair dismissal application or why they are appropriate for referral to the Federal Court. Her submissions included the following contentions:

• The requirement to comply with the Policy was not lawful or reasonable, and therefore Ms Giggs' termination was not lawful or reasonable in the circumstances.

• The facts of this matter give rise to several questions of law which should be referred to the Federal Court pursuant to s 608 of the FW Act.

• As to question 1, it is not reasonable for St John to require their employees to undergo an influenza vaccination, in circumstances where that requirement asserts a medical intervention for employees in ordinary circumstances which is additional to and more onerous even than the requirement placed on that same class of employee under emergency legislation designed to deal with emergency health crises.

• St John's decision to mandate influenza vaccinations has no lawful basis, or in the alternative, that it subverts and/or contradicts the law.

• As to question 2, it is inappropriate for an employer to stand in the shoes of either a medical body, or an enforcer of public health legislation, by requiring the vaccination of its employees in the absence of lawful authority or appropriate medical training.

• As to question 3, St John lacks the appropriate expertise or qualifications to make medical directions. St John's lack of compliance with its own Policy is indicative of a lack of the requisite expertise or knowledge to facilitate it. For example, for the health risks to an individual of a medical intervention to be weighed up against the benefits provided to the public, an expert in virology, immunology, or at least an appropriately experienced medical doctor, would be required to assess the circumstances of each individual employee against the circumstances the employer is trying to protect (in this case, residential aged care settings). This is well beyond the ambit and expertise of HR managers and executives, and generally the majority of employers.

• Question 3 could have far reaching implications given the current climate, although it is not expected that the Commission or indeed the Federal Court would make determinations which extend beyond the parameters of this case. Nonetheless, within the boundaries of this case, Ms Giggs has been mandated a medical procedure which is extra-statutory, and the question nonetheless arises as to why, in the absence of appropriate medical expertise or knowledge, the employer feels the need or duty to do this, or whether they have the capacity to do so at all.

• As to question 4, it is unclear whether the direction to receive a medical intervention could be classified as a "measure" under the OHSA legislation, however it appears to be inconsistent with the intention of that legislative framework. There are no other measures, for example, which require employees to undergo any kind of medical intervention, and the majority of measures have to do with either the work environment, or the training and skills of the employee.

• Even if the vaccination is considered as a prophylactic measure under OHSA laws and regulations (which is not suggested), the balancing of risks and the employer's ability and expertise to do so, becomes relevant. Consideration will turn on the effectiveness and utility of the influenza vaccination. In a situation where no reported deaths and hospitalisation have resulted from influenza since April 2021, the benefit/detriment analysis will be strictly stacked against the employer.

• As to question 5, the doctrine of informed consent is an internationally and domestically recognised ethical foundation for any form of medical treatment. In a situation where an employee has been directed by an employer to receive a vaccine, where there is no statutory basis for that recommendation, and no requirement in the enterprise agreement of same, a question arises as to whether the employer has a right to mandate for such treatment to occur as a condition of continued employment in the face of the employee's informed lack of consent. This question requires a balancing of the duties of the employer with the rights of the employee, but it also requires clarification as to the role of the employer when seeking to intrude into what is usually the domain of a patient and their doctor.

• Question 6 is an important question. There is an urgent need to clarify responsibility for injury. Despite Ms Giggs asking for such a clarification, the employer simply required her to get the influenza vaccination without detailing any consequences.

• [10] St John opposed the application for referral of the questions. It submitted that each of the questions is either a mixed question of fact and law, or a hypothetical question. It also submitted that a number of the questions rely on disputed factual premises or alternatively seek advisory opinions, and will not necessarily resolve the substantive application.

608 Referring questions of law to the Federal Court

(1) The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court.

(2) A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court.

(3) The FWC may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether the FWC may exercise powers in relation to the matter.

(4) Once the Federal Court has determined the question, the FWC may only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if the FWC has not already done so).

(5) However, if the FWC has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the FWC must vary the decision in such a way as to make it consistent with the opinion of the Federal Court.

• [12] The following principles are relevant to the determination of applications pursuant to s 608(1):

• • section 608 confers discretion on the President as to whether a question of law should be referred for the opinion of the Federal Court, subject to two preconditions being satisfied: first, the question must be one of "law" and, second, the question must be one "arising in a matter before the Commission";[2]

• • a question does not "arise" unless it pertains to an issue which actually exists, and a remote or merely possible relation of the question of law to the facts is not enough to make the question arise in the legal sense;[3]

• • the discretion conferred by s 608(1) should be exercised having regard to the purpose and objects of the FW Act and, having regard to s 577, it should be exercised where possible and appropriate in such a way as to avoid undue delay in the determination of matters before the Commission;[4] and

• • if there are outstanding evidentiary or factual issues which would inhibit the efficient determination of the question of law, that will be a discretionary matter likely to weigh against a referral pursuant to s 608(1).[5]

• [13] It is clear that a significant question arising in Ms Giggs' unfair dismissal application is whether St John's requirement that Ms Giggs comply with the Policy constituted a lawful and reasonable employment direction, such that her refusal to comply gave rise to a valid reason for dismissal within the meaning of s 387(a) of the FW Act. That is not of itself a question of law; it requires the application of a legal standard to the facts of the particular case, and is therefore a mixed question of fact and law. Whether a direction is lawful and reasonable cannot be determined in vacuo but only by reference to the subject matter and context. Accordingly, no determination can be made as to whether a particular direction is lawful and reasonable until the relevant factual findings have been made.[6]

• [14] In my view, the "questions of law" which Ms Giggs seeks to be referred for the opinion of the Federal Court are better characterised as tendentious propositions, masquerading as questions, raised in support of her case that she could not lawfully and reasonably be directed to comply with the Policy. None of them arises independently as a question of law which necessarily requires determination in the proceeding before the Commissioner. And, because they are (at best) simply facets of the larger question as to whether St John's direction for Ms Giggs to comply with the Policy was lawful and reasonable, the "questions" are not, either individually or collectively, necessarily determinative of that significant question. Nor, for the same reason, can the questions be determined without findings being made as to the facts bearing on the lawfulness and reasonableness of the direction to comply with the Policy.

• [15] Indeed, as submitted by St John, a number of the "questions" are clearly founded on disputed factual premises or require factual findings. For example, question 1 (which Ms Giggs characterised as the primary question) is premised upon "the absence of an underlying statutory requirement" as to vaccination. That is clearly contested by St John, which contends that the Policy was issued as a direct response to the vaccination requirement imposed on persons (including Ms Giggs) entering residential aged care premises by the Chief Health Officer of Western Australia. In relation to question 4, the question is conditioned on the identification of "these circumstances" (i.e. the circumstances of the case), and Ms Giggs' own submissions contend that its consideration "will turn on the effectiveness and utility of the influenza vaccination".

• [16] Referral of the "questions" would undoubtedly lead to considerable delay in the determination of Ms Giggs' unfair dismissal application. As earlier stated, the answers to the questions will not necessary be determinative of the question of whether the direction to comply with the Policy was lawful and reasonable. Further, the questions do not bear upon a number of other important questions which will arise in the matter, including whether Ms Giggs was capable of discharging the inherent requirements of her position, whether she was denied procedural fairness, and whether her dismissal was harsh in all the circumstances. Accordingly, this is not a case where the referral of the questions would aid the substantive determination of the proceedings. Additionally, I note that Ms Giggs seeks the remedy of reinstatement. Even if Ms Giggs ultimately succeeds in demonstrating that her dismissal was unfair, the award of reinstatement will from a practical perspective become more difficult with the passage of time. Ms Giggs has already lost an early hearing date on 8 October 2021 because of her referral application, and the grant of the application would undoubtedly cause the hearing of her substantive application to be further delayed until well into 2022.

• [17] In summary, I am not satisfied that any of the six "questions" constitutes a question of law arising in Ms Giggs' unfair dismissal application. That of itself means that the referral application cannot be granted. In any event, even if the discretion to grant the referral application was available, I would not exercise it. There have been no findings of fact as to the matters upon which the questions are premised or relate, the answers to the questions would not be determinative of Ms Giggs' unfair dismissal application or even substantially aid its determination, and the referral sought would cause unnecessary delay in the proceedings.

• [18] Accordingly, I decline to refer any of the six questions for the opinion of the Federal Court.

N Burmeister of counsel on behalf of the respondent.

[1] Occupational Safety and Health Act 1984 (WA)

[2] Application by Grabovsky [2015] FWC 5161 at [52]

[3] Hamzy v Tricon International Restaurants [2001] FCA 1589, 115 FCR 78 at [21]; Application by Restaurant and Catering Association of Victoria [2013] FWC 6705, 232 IR 433 at [11]

[4] Health Services Union v Liviende Inc [2013] FWC 4435 at [9]- [10]

[5] Country Fire Authority v United Firefighters' Union of Australia [2012] FWA 8803 at [9]- [14]

[6] See the analysis in the Federal Court decision (Flick J) in NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [215]- [221]

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