Munn and Others v Health Secretary

Industrial Relations Commission (NSW)|2022-04-08|Before: Health J

decision

This decision involves the determination of two preliminary issues with respect to 24 separate unfair dismissal applications filed pursuant to section 84 of the Industrial Relations Act 1996 (the "IR Act"). In each of the applications, the applicant was dismissed by the respondent for alleged failure to comply with COVID-19 vaccination requirements.
The preliminary issues are: 1. In complying with the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021, Public Health (COVID-19 Vaccination of Health Care Workers) No 2 Order 2021, Public Health (COVID-19 Vaccination of Health Care Workers) No 3 Order 2021 and/or Health Secretary's Determination 33 of 2021 was the respondent(s) required to consult and/or undertake risk assessments in accordance with the provisions of the Work, Health and Safety Act 2011 (NSW); and 2. Does the operation of Public Health (COVID-19 Vaccination of Health Care Workers) No 3 Order 2021 and/or Health Secretary's Determination 33 of 2021 constrain the Industrial Relations Commission from providing the remedy of reinstatement or re-employment under section 89 of the Industrial Relations Act 1996 (NSW).
The determination of the preliminary issues will not conclusively determine all applications and each application will be listed for directions at a date to be fixed for the programming of the applications through to hearing.

The Applications

Each application had been the subject of conciliation undertaken by myself. In the course of these conciliations, each applicant confirmed that they intended to rely, in part, on a submission that their dismissal was unfair in that the respondent failed to consult and/or conduct a risk assessment which they allege was required by the Work Health and Safety Act 2011 (NSW) (the "WHS Act").
Additionally, I considered that the issue regarding the capacity of the Commission to order reinstatement or re-employment was an issue common to most, but not all of the applications.
Directions were made for the filing of written submissions by the parties and the matters were listed for hearing on the preliminary issues on 8 April 2022.
In accordance with the above directions, the following parties filed written submissions and/or materials: 1. the respondent; 2. those applicants represented by Supportah Australia t/a IR Claims ("Supportah Applicants"); 3. Michael Falson; 4. Kahli Pace; 5. Cherie Sullivan; 6. Caitlin Larter; 7. Kata Arapovic; 8. Sandra Sweeney; 9. Nicole Munn; 10. Warren Lambert; 11. Michael Wane; and 12. Leith Sabri
At the hearing on 8 April 2022, supplementary oral submissions were made by the respondent, the Supportah Applicants and a number of other applicants.
At the conclusion of the hearing on 8 April 2022, directions were made for the filing and serving of further written submissions for some applicants by 13 April 2022 and any reply by the respondent to these to be filed by 20 April 2022.
A further set of written submission were filed by Nicole Munn on 13 April 2022.

Relevance

There were a number of submissions advanced by some, but not all of the applicants, which were not relevant to the determination of the preliminary issues. For example, the Supportah Applicants in their written submissions raised the issue of stand down pursuant to section 126 of the IR Act.
I have not referred to those submissions which are not relevant to the preliminary issues in this decision, those submissions will be considered at the substantive hearing of each application if they are still pressed.

Consultation

The respondents' primary submission with respect to the first issue is found at paragraph [8] of their written submissions: 1. Implementation of and compliance with the Vaccination Requirements does not require prior consultation with workers pursuant to section 47 of the Work Health and Safety Act 2011 (NSW) (WHS Act).
In support of this submission, the respondent put that that the duty to consult in section 47 of the WHS Act is only engaged if any of the matters relating to health and safety listed at sub-sections 49 (a)-(f) of the WHS Act applied to the steps undertaken by the respondent acting in their capacity as a person conducting a business or undertaking ('PCBU"). Further, absent these circumstances the duty under section 47 does not arise.
As to section 49 of the WHS Act the respondent made the following submission: The Respondent accepts the Vaccination Requirements serve as work health and safety controls and mitigate risks associated with COVID-19 in the public health system. However, they were not made under the WHS Act. That is to say, the Vaccination Requirements were not 'hazards identified' or 'decisions made' nor 'changes proposed' by the Respondent. The Vaccination Requirements were, indeed, imposed on the Respondent under the PH Act and HS Act, and the Respondent was bound to comply.
The respondent submitted that the circumstances which existed in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd TI A Mt Arthur Coal [2021] FWCFB 6059 ("Mt Arthur") should be distinguished from that prevailing in relation to these applications.
The respondent also submitted that the decision of Commissioner Wilson in Christopher Doyle; Julia Sant; Antonio Prosia v Melbourne Archdiocese Catholic Schools Ltd TIA MACS [2022] FWC 346 ("MACS") should be followed. In particular the following passages from MCAS were relied upon: [50] The Respondent's written submissions rejected the applicability of the Full Bench's reasoning in Mt Arthur Coal putting forward the decision is not relevant to these matters; '58. The dispute in Mt Arthur concerned an announcement by the Employer that all employees must be vaccinated to enter the work site. None of the parties in that dispute submitted that there were any public health orders that would provide the legal basis for the Site Access Requirement and it therefore derived from the implied term that employees must follow the lawful and reasonable direction. The Commission had jurisdiction to determine that issue as the dispute resolution procedure in Mt Arthur's agreement was not limited to disputes about matters arising under the agreement but extended to 'any dispute[...] arising in the course of employment'. 59 In reaching its conclusion, the Full Bench expressly noted that the requirement for the direction to be lawful and reasonable (and therefore encapsulating consultation requirements) was in cases 'absent a public health order.' 60. Mt Arthur is distinguishable as it concerned a definite decision of a private company, independent of any government mandate, to require its employees to be vaccinated. In those circumstances, the Full Bench that the Respondent had failed to consult its employees in mandating the vaccinations. 61. The present circumstance, as has been discussed, does not involve a decision of the Respondent but a mandate of the Victorian Government. It is not possible for the Respondent to have consulted with the Applicants prior to the Directions being issued in circumstances where they had no part in the decision making process.' (footnotes omitted) [51] I accept this reasoning, both as to the submissions made about the breadth of the dispute resolution procedure in effect at the Mt Arthur workplace and the distinction drawn about the absence of a public health order. I also accept the characterisation of the matters in dispute in this matter. being that there is no definite decision of the Respondent. [53] It its concluding remarks, the Full Bench in Mt Arthur Coal distinguished between circumstances in which vaccination as a condition for entry arose from public health or contractual matters and those in which it flowed from a direction by an employer seeking to rely upon its capacity to give lawful and reasonable directions to employees and require them to be complied with: '[258] Absent a public health order or an express term in a contract of employment or industrial instrument, the basis for an employee to be vaccinated as a condition of entry to work premises must derive from the implied contractual term that employees obey the lawful and reasonable directions of their employer. [259] The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; the nature of the particular employment; the established usages affecting the employment; the common practices that exist; and the general provisions of any instrument governing the relationship.' (endnote omitted) [54] It is apparent from the material in these Applications that MACS and the College's Principal Mr Brennan were acting for the singular purpose of complying with the law as set out in the VCHO Directions. As demonstrated through Mr Brennan's evidence, he understood the effect of the directions to be relatively simple, albeit subject to some nuance - attendance at the College after 29 November 2021 required vaccination against COVID-19 or provision of valid exemption from the requirement. The indicated nuance concerned the circumstance of an employee who had arranged a booking for a vaccination but had not yet actually had it within a week of 18 October 2021. [55] Those are not matters which may be found as a definite decision on the part of the College or MACS. I doubt that even if they were found to be a definite decision that they could then be characterised as major changes in program, organisation, curriculum, structure or technology that are likely to have significant effects on employees The decision, if there was one was to comply with the law.
The respondent then made the following submission: The Respondent submits this Commission should adopt the reasoning of the FWC. in particular Commissioner Wilson in MACS, and submits that: 1. The preliminary issues ought be distinguished from the decision in Mt Arthur, 2. The Vaccination Requirements were not matters implemented by the decisions. changes or actions by the Respondent within the scope of section 49 of the WHS Act; rather, they were required by law; 3. The Respondent was obliged to comply, or risk incurring financial penalties under the PH Act and be in breach of the HS Act for failing to do so.
The Supportah Applicants submitted that the requirement to consult under section 47 of the WHS Act was engaged and in support of that proposition submitted: 29. The Public Health Order purported to create a condition precedent, being the requirement to be vaccinated or provide a valid exemption, that was directly related to: (a) an assessment of a risk to the health and safety to workers that arose from the work being carried out by the Respondent; and (b) the implementation of the Public Health Order required decisions about the elimination or minimization of such risks to workers; and/or (c) the implementation of the Public Health Order required proposing and implementing a change that affected the health or safety of workers. 30. The requirements of Section 4936 are, in the submission of the Applicants, enlivened by the relevant circumstances, being the Public Health Order and the implementation of same by the Respondent. 31. While the Public Health Order and Determination were made under the Public Health Act 2010 (NSW)37 and the Health Services Act 1991 (NSW),38 it does not follow that this does not enliven the requirements of the WHS Act39. 32. Any requirement that a 'change in workers' circumstances is made pursuant to the WHS Act 4° is entirely absent as a condition precedent of sections 47 to 49 of the WHS Act being implemented.
Additionally, the Supportah Applicants submitted that there was nothing in the Health Orders nor the Determination which displaced the operation of the WHS Act.
Reliance was placed on "Mt Arthur", where the Full Bench of the Fair Work Commission determined that the respondent was required to consult under the WHS Act before implementing its COVID vaccination policy. The Supportah Applicants submitted that the requirements in the Mt Arthur policy are substantially similar to the requirements of the Public Health Order and the clear inference of that submission is that the Respondent in these proceedings was also required to consult in accordance with the WHS Act.
Also, the Supportah Applicants relied upon the following passages from the decision of Mortimer J in QNurses First Inc v Monash Health (No 2) [2022] FCA 277 (QNurses) to support their contention regarding consultation requirements: [30]….Sitting behind the subject matter of the proceeding was a policy decision by the Victorian government to require individuals working in certain industries or facilities to be vaccinated against COV/0-19. On any view, it was a measure of some extremity, designed, in the Victorian government's opinion, to reflect the extreme nature of the threat faced by the Victorian community. While it is not the Court's role to evaluate that policy choice, the extremity of the step of requiring certain workers to be vaccinated before they could work, and of therefore setting the scene for employers to terminate the employment of those workers who refused to be vaccinated, can be recognised. Individual employees were faced with a choice between being vaccinated or potentially losing their employment ... [31] To make that observation is not to express any view about whether the termination was lawful or unlawful; rather, it is to note the fact that it occurred, and it occurred not for any reason related to the performance of employees' duties but their failure to comply with a directive related to the protection of the Victorian community as a whole from the effects of COVIO-19. Careful and informed consultation with employees about the benefits and risks of vaccination even if thev were ultimatletv going to have to be vaccinated to work mav not in principle have been an unreasonable or unjustifiable expectation, and in my opinion it is arguable that complaints about lack of consultation and lack of risk assessment by an employer were - in principle - capable of constituting a reason for adverse action, even if employer compliance with the Directions was another reason.
The submissions of those other applicants who addressed the issue of consultation, focused on the existence of the obligation in section 47 of the WHS Act and also a number relied on the overarching duty of care in section 19 of the WHS Act. The thrust of these submissions was that these sections in and by themselves imposed an obligation on the respondent to consult with workers in implementing the vVaccination Requirements.

Risk Assessment

The respondent's principal submission on this issue is: 1. The WHS Act does not create any specific obligation to conduct risk assessments, let alone individual risk assessments.
The respondent drew the Commissions attention to the SafeWork NSW, Code of Practice How to manage work health and safety risks and made the following submissions: 49. The SafeWork NSW, Code of Practice How to manage work health and safety risks (the Code) describes a risk assessment as follows: A risk assessment involves considering what could happen if someone is exposed to a hazard and the likelihood of it happening. A risk assessment can help you, as a person conducting a business or undertaking (PCBU), to determine: - how severe a risk is - whether any existing control measures are effective - what action you should take to control the risk, and - how urgently the action needs to be taken1 50. A risk assessment can inform the types of controls that could and should be implemented in certain circumstances. However, it is not a necessary prerequisite for the implementation of any and all workplace health and safety controls. Indeed, the Code specifically states: A risk assessment is not required when legislation requires a hazard or risk to be controlled in a specific way- these requirements must be complied with. 51. The Respondent submits the Vaccination Requirements and in particular, the PH Orders, are legislative requirements. The PH Orders dictated that vaccination against COVID-19 was a requirement to perform 'health care work'. These were obligations under law and not at the Respondent's discretion to decline to comply with- as such, a risk assessment was not required. Further, regardless of the outcome of any risk assessments, the Vaccination Requirements would still have to be adhered to.
Not all of the applicants addressed the issue of risk assessment, including the Supportah Applicants. Some applicants simply submitted that as part of their role they are required to undertake risk assessments to perform their duties and accordingly, the respondent should have undertaken one.
A number of applicants relied upon section 19 of the WHS Act and that a risk assessment was "reasonably practicable" exercise to fulfil the preliminary duty in section 19.
Additionally, Nicole Munn and Warren Lambert advanced an identical submission, which was that the Work Health and Safety Regulations 2017 (the "WHS Regulation") mandates that a risk assessment be undertaken for certain activities which are high risk. They did not however identify which regulation provided this requirement.

Reinstatement/Re-Employment

As to the second preliminary issue, the respondent submission is that: it is impracticable for the Commission to make orders of reinstatement or reemployment under section 89 of the IR Act where an Applicant remains non-compliant with the PH Orders and the Determination.
In oral submissions, the respondent agreed with the submission made on behalf of Michael Falson that the Health Orders and the Determination do not remove the Commissions jurisdiction under section 89 of the IR Act and the Commission is to determine whether it would make an order for reinstatement or reemployment based on the facts before the Commission at the time of considering that relief.
The Supportah Applicants submission was also that the Health orders and the Determination does not impose a jurisdictional bar on the remedy of reinstatement/re-employment. They further submitted that the Commission is required to consider each application separately based on the circumstances that exist at the time of the hearing.

Consultation

The question to be determined that falls from the submissions of the parties, is whether the duty to consult with workers under the WHS Act is engaged.
The duty to consult with workers is expressly provided in sub-section 47(1) of the WHS Act and not in the general duty under section 19 and is as follows: 47 Duty to consult worker (1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety [Note: Maximum penalty - (a) in the case of an individual - 230 penalty units, or (b) in the case of a body corporate - 1,155 penalty units.]
The circumstances in which the duty in sub-section 47(1) is engaged are listed in section 49 of the WHS Act: 49 When consultation is required Consultation under this Division is required in relation to the following health and safety matters - (a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking, (b) when making decisions about ways to eliminate or minimise those risks, (c) when making decisions about the adequacy of facilities for the welfare of workers, (d) when proposing changes that may affect the health or safety of workers, (e) when making decisions about the procedures for - (i) consulting with workers, or (ii) resolving work health or safety issues at the workplace, or (iii) monitoring the health of workers, or (iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or (v) providing information and training for workers, or (f) when carrying out any other activity prescribed by the regulations for the purposes of this section.
Regulation 575(f) of the WHS Regulations is the only regulation made in accordance with sub-section 49(f) and there is nothing in the consultation requirements of this regulation which would apply to the implementation of the Vaccination Requirements.
The Health Orders, provide identical grounds upon which the Health Minister relied upon in concluding there was a risk to public health. Relevantly, these included the following ground: (f) ensuring that health care workers are vaccinated will reduce - (i) the risk of infection, severe disease and death in the workers, and (ii) the risk of transmission of infection from workers to patients and other workers,
The above ground quite clearly brings the vaccination requirement within the circumstances in section 49 and in particular that in sub-section 49(c) and arguably 49(b).
The duty to consult under sub-section 47(1) of the WHS Act, is one which is held by the person conducting a business or undertaking, commonly referred to as a PCBU. Consequently, it is the actions of the relevant PCBU that must fall within the circumstances of section 49 of the WHS Act which enliven the duty to consult with workers.
Neither party addressed the Commission as to the identification of the relevant PCBU for the purposes of sub-section 47(1).
In determining who the relevant PCBU is, I have had regard to the decision of Strathdee DCJ in SafeWork NSW v Secretary of the Ministry of Health on behalf of the Ambulance Service of NSW [2021] NSWDC 397 ("SafeWork").
In SafeWork, the prosecutor had pleaded that the Health Secretary was the relevant PCBU for the alleged offences and then sought to amend the pleading to change the defendant and therefore the PCBU to that of the Crown in the right of New South Wales (the "Crown"). Ultimately, Strathdee DCJ found that the correct party was the Crown and permitted the amendment.
For the purposes of the WHS Act, sub-section 245(2) provides as follows: (2) For the purposes of this Act that any conduct engaged in on behalf of the Crown by an employee, agent or officer of the Crown acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the Crown.
Sub-section 247(2) excludes the Health Minister as an officer of the Crown for the purposes of the WHS Act and therefore his conduct is not taken to be conduct also engaged in by the Crown. It follows, that the conduct of the Health Minister in making the Health Orders is not conduct of the Crown and is not subject to the duty to consult under sub-section 47(1) of the WHS Act.
The Health Minister made the Health Orders which applied as of law upon the respondent. There were consequences for failure to comply with the Health Orders. The respondent, in complying with the Health Orders had a positive obligation place on it to take all reasonable steps to ensure that health care workers comply with the Vaccination Rrequirements. This is to be contrasted with the circumstances in the Mt Arthur case, where the vaccination policy was introduced in the absence of any public health order.
In the circumstances I find that the implementation of the Vaccination Requirements by the respondent did not fall within any of the circumstances listed in section 49 of the WHS Act and therefore the duty under sub-section 47(1) of the WHS Act to consult was not engaged and therefore the answer to the first preliminary issue is no.
For the sake of completeness, I agree with the submission of the respondent that the passage in QNurses sought to relied on by the Supportah Applicants is obiter and not binding.

Risk Assessment

Although the WHS Act does not expressly require that risk assessments be undertaken by PCBU's, the WHS Regulations do require that they are undertaken in relation to certain classes of hazards, tasks, things and circumstances.
The applicants have failed to identify how the vaccination requirements fall within any of the classes of hazards, tasks, things and circumstances set out in the WHS Regulations and accordingly I find that a risk assessment was not required.

Reinstatement

In considering whether to order reinstatement or re-employment as remedy following a finding that a dismissal is unfair, for the purposes of s 84 of the IR Act, s 89 requires the Commission to consider whether it is impracticable to order reinstatement or re-employment.
In Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 ("Dumas") at [34] a full bench of the Commission held that there are a large range of circumstances that may make reinstatement/re-employment unpracticable ranging from it being impossible to the break down in the relationship is beyond repair.
That the circumstances are to be assessed as the time the remedy is being considered is uncontroversial and accordingly, the answer to the second preliminary issue can not be determined at this time.
However, I note the recent decision of Commissioner Murphy in Griffin and others v Health Secretary; Thorncraft and others v Secretary of the Department of Education [2022] NSWIRComm 1027 ("Griffin").
In Griffin, Commissioner Murphy was dealing with a number of preliminary questions set out in paragraph [1], including the following: (a) The impact, if any, of public health orders promulgated by the State government on the capacity of this Commission to grant relief to dismissed employees pursuant to s 89 of the Industrial Relations Act 1996. (b) The impact, if any, of determinations made by the Secretaries of the Ministry of Health ("Health Secretary") and the Department of Education ("Education Secretary"), which have made it a condition of employment in both sectors for employees to be double vaccinated against COVID-19, on the capacity of this Commission to grant relief to dismissed employees pursuant to s 89 of the Industrial Relations Act 1996.
Commissioner Murphy at paragraph [48] considered reinstatement in the context of Public Health (COVID-19 Vaccination of Health Care Workers) Order 2022 (the "Fourth Health Order"), which also provided for the continuation of the vaccination requirements. The Commissioner found that reinstatement would be impracticable for those applicants who could not meet the Vaccination Requirements of the Fourth Health Order.
Similarly, at paragraph [49] Commissioner Murphy found that the reinstatement would be impracticable for those applicants who could not meet the Vaccination Requirements of the Determination
Commissioner Murphy went to determine at paragraph [56] that the Commissions power to make orders of compensation for those who do not meet the Vaccination Requirements remain available.
I agree with the Commissioner Murphy that reinstatement/re-employment would be impracticable for those who cannot meet the Vaccination Requirements. However, should the Vaccination Requirements, not exist at the time for considering any remedy under section 89 of the IR Act, then reinstatement/re-instatement maybe available. Daniel O'Sullivan Commissioner

Schedule A 2021/00364661 Nicole Doborah Munn v Secretary, Ministry of Health in respect of Hunter New England Local Health District 2021/00364670 Emma Newman v Secretary, Ministry of Health in respect of Hunter New England Local Health District 2021/00364705 Warren John Lambert v Secretary, Ministry of Health in respect of Hunter New England Local Health District 2022/00008234 Stephanie Steele v Secretary, Ministry of Health in respect of Western NSW Local Health District 2022/00008271 Caitlin Brigid Larter v Secretary, Ministry of Health in respect of Murrumbidgee Local Health District 2022/00008292 Ann Fleming (Lamperts) v Secretary, Ministry of Health in respect of Western Sydney Local Health District 2022/00008404 Joanne Smith v Secretary, Ministry of Health in respect of Western NSW Local Health District 2022/00008638 Rossana Untaru v Secretary, Ministry of Health in respect of Hunter New England Local Health District 2022/00008752 Lisa Nealon v Northern Sydney Local Health District 2022/00009431 Kata Arapovic v Secretary, Ministry of Health in respect of 2022/00009651 Michael Lee Fallson v Secretary, Ministry of Health in respect of Hunter New England Local Health District 2022/00009770 Sonya Wallace v Secretary, Ministry of Health in respect of Nepean Blue Mountains Local Health District 2022/00010492 Sandra Louise Sweeney v Secretary, Ministry of Health in respect of HealthShare NSW 2022/00010602 Kahli Maree Pace v Secretary, Ministry of Health in respect of Hunter New England Local Health District 2022/00010606 Augusta Toscano v Secretary, Ministry of Health in respect of South Western Sydney Local Health of Nepean Blue Mountains Local Health District 2022/00012042 Michael Wane v NSW Ambulance 2022/00020740 Leith Sabri v Secretary, Ministry of Health in respect of South Western Sydney Local Health District 2022/00032997 Alyson Gray v NSW Ministry of Health in respect of Hunter New England Local Health District 2022/00040632 Jessica Tavae v Secretary, Ministry of Health in respect of Western Sydney Local Health District 2022/00048523 Cherie Florence Sullivan v Secretary, Ministry of Health in respect of Western Sydney Local Health District DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2022

Work, Health and Safety Act 2011(NSW)

Health Services Act 1991(NSW)

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