Tilley v State of Queensland

Health Employment Directive 12/21 Employee COVID-19 vaccination requirements

Hospital and Health Boards Act 2011 (Qld) s 51B

Industrial Relations Act 2016 (Qld) s 562A

Industrial Relations (Tribunals) Rules 2011 (Qld) r 97

Work Health and Safety Act 2011 (Qld)

Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 167

Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058.

• [1] Ms Vera Tilley is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Laboratory Technician, Chemical Pathology, Pathology Queensland, Queensland Public Health and Scientific Services.

• [2] On 11 September 2021, the Health Employment Directive 12/21 Employee COVID-19 vaccination requirements ('the directive') came into effect. The directive provides inter alia that employees must have received:

• the first dose of a COVID-19 vaccine by 30 September 2021; and

• the second dose of a COVID-19 vaccine by 31 October 2021.

• [3] As a Laboratory Technician, Ms Tilley was subject to the mandatory vaccination requirements.

• [4] On 21 September 2021, Ms Tilley applied for an exemption to the directive on the basis that she had a:

• medical contraindication to COVID-19 vaccines; and

• [5] On 18 July 2022, Ms Tilley's application for an exemption was provisionally approved for a period of seven days so that she could obtain written specialist medical advice with respect to her medical contraindication to COVID-19 vaccines. This provisional approval was extended until September 2022.

• [6] On 13 September 2022, Ms Tilley advised the Respondent that she was unable to obtain specialist medical advice with respect to her medical contraindication to COVID-19 vaccines.

• [7] On 28 October 2022, Ms Tilley's application for an exemption was denied.

• [8] On 10 November 2022, Ms Tilley requested an internal review of the decision to deny her application for an exemption, which was later confirmed on 30 January 2023.

• [10] Having reviewed the material contained within Ms Tilley's appeal notice a mention of the matter was listed for 28 February 2023. The Commission advised Ms Tilley at that mention that consideration was being given to the exercise of the discretion available under s 562A of the Industrial Relations Act 2016 (Qld) ('IR Act') to not hear her appeal.

• [11] Consistent with the requirements of s 562A of the IR Act, Ms Tilley was then required to provide submissions outlining why she has an arguable case for the appeal.[1]

• [12] Directions to that effect were issued on 1 March 2023.

• [13] Section 562A of the IR Act provides:

562A Commission may decide not to hear particular public service appeals

(3) The commission may decide it will not hear a public service appeal against a decision if -

(a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or

(b) the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal -

(iii) should not be heard for another compelling reason.

• [14] The basis of Ms Tilley's submission that she has an arguable case pursuant to s 562A of the IR Act is summarised by her as follows:

"I did not comply with [the directive] because no rational person, including myself can give informed consent to receive a covid vaccine because there is no information to base our decision on. In all conscience, I cannot base my decision because the people who wrote the mandates and directives 'told me to do so'."

• [15] The remainder of Ms Tilley's submissions traverse familiar propositions that have been considered and dismissed by the Commission on multiple occasions.[2] For this reason it is not necessary to comprehensively summarise them. In short terms Ms Tilley submits inter alia that:

• the vaccine does not prevent or reduce the transmission of COVID-19; and

• Ms Tilley has been discriminated against on the grounds of her religious beliefs and her 'natural immunity' to COVID-19.

• [16] Relevantly, Ms Tilley's submissions also include a request to apply for an exemption on grounds of 'Extenuating Circumstances' on the basis that, in the past, Ms Tilley has had to visit a hospital after receiving a vaccine.

• [17] The Respondent opens its submissions by contending that the matters raised by Ms Tilley in her appeal have been considered and determined by the Commission in numerous public service appeals and in the collective reinstatement matter of Mocnik & Ors v State of Queensland (Queensland Health) ('Mocnik').[3] The Respondent highlights that none of the matters raised by Ms Tilley have been found in favour of employees or former employees.

• [18] In respect of each of Ms Tilley's applications for an exemption, the Respondent submits that:

• it has not received any medical evidence of circumstances specific to Ms Tilley that means she is unable to be safely administered a COVID-19 vaccine. This is despite the fact that Ms Tilley was provided a generous period of time to seek specialist medical advice regarding her medical contraindication; and

• it was open to the decision maker to be satisfied that Ms Tilley's genuinely held religious beliefs did not outweigh or take precedence over the objectives and requirements of the directive.

• [19] The Respondent submits (with reference to previous decisions of the Commission) that:

• it is not incumbent on the Respondent to accept Ms Tilley's views in respect of the COVID-19 vaccine;

• Ms Tilley's concerns of adverse reactions to not justify the granting of an exemption;

• it is not the Respondent's responsibility to allay Ms Tilley's concerns about receiving a COVID-19 vaccine; and

• the Respondent is not required to provide Ms Tilley with assurances concerning the safety or efficacy of the COVID-19 vaccines.

• [20] The Respondent submits that vaccine hesitancy is not an exceptional circumstance and does not constitute a reasonable excuse. In these circumstances, the Respondent contends it was justified in refusing to grant Ms Tilley an exemption.

• [21] In relation to Ms Tilley's submissions concerning consent and coercion, the Respondent submits that Ms Tilley is free to not receive a COVID-19 vaccine. The Respondent contends, however, that while Ms Tilley is employed by the Respondent, she is obliged to comply with reasonable and lawful directions issued to her.

• [22] Contrary to Ms Tilley's submissions in respect of a lack of consultation, the Respondent submits that the decision of Mocnik confirmed there had been no breach of the Work Health and Safety Act 2011 (Qld) established with respect to consultation.

• [23] In response to Ms Tilley's submission that she has been discriminated against on the grounds of her religious beliefs and her 'natural immunity' to COVID-19, the Respondent submits that:

• the decision of Mocnik confirmed that the directive is not an unreasonable term within the meaning of s 11(1)(c) of the Anti-Discrimination Act 1991 (Qld) ('AD Act') nor is it inconsistent with the AD Act within the meaning of s 51B of the Hospital and Health Boards Act 2011 (Qld); and

• a public sector appeal is not the correct avenue to raise a complaint of discrimination and therefore, Ms Tilley's submission is misconceived.

• [24] The Respondent closes its submissions my contending that the Commission does not have the jurisdiction to grant Ms Tilley an exemption from having to comply with the directive on account of extenuating circumstances.

• [25] Ms Tilley opens her submissions in reply by contending that, in light of the World Health Organisation ('WHO') declaring an end to the global health emergency, there is "no reason to not revoke the mandate or at least to give real consideration (not just standard quotes from policies) for an exemption."

• [26] In reply to the Respondent's submission regarding the safety and efficacy of the COVID-19 vaccine, Ms Tilley submits that a document exists that disproves the Therapeutic Goods Administration's ('TGA') approval of COVID-19 vaccines.

• [27] Ms Tilley submits that the Respondent is unable to provide assurances concerning the safety and efficacy of the COVID-19 vaccine as "[it does not] have the data, and real-world data shows, the vaccines are not safe and effective, a matter of public record."

• [28] Ms Tilley appears to submit that an adequate risk assessment was not performed prior to the directive coming into effect. On this point, Ms Tilley says:

"The authors with the undertaking of implementing the directive, ought to do a thorough risk assessment before bringing in a disruptive control measure that significantly limits human rights. They failed to consider a sufficient level of evidence to inform themselves of the invasive and ethically dubious vaccination mandates."

• [29] Ms Tilley closes her submissions in reply by contending that:

• it is "unreasonable, illogical and irrational determination" to enforce the directive; and

• the directive is not supported by probative evidence.

• [30] Despite an overwhelming body of law being brought to her attention by both the Respondent and the Commission, Ms Tilley continues to make assertions in her reply submission that wholly ignore this compelling line of precedents. Ms Tilley is plainly beyond any rational discussion on the question of vaccine safety and the lawfulness of the directive.

• [31] Further, Ms Tilley's reply submission seeks to rely on recent developments regarding the formal declaration of the end of the pandemic which misunderstands that this appeal relates to a review of a decision originally made in October 2022. The fairness or otherwise of the decision can only be evaluated in the context of the prevailing circumstances in October 2022.

• [32] Ms Tilley has not made a single unique argument in support of her appeal. Rather, in what appears to be an act of sheer obstinance, she has simply elected to repeat her own personal beliefs about vaccines and the directive which are wholly inconsistent with mainstream scientific and medical opinion, and unsupported by the law.

• [33] The Commission's resources must be reserved for matters of genuine controversy. They ought not to be made available to unreasonable individuals who, despite overwhelming legal precedent and accepted mainstream medical and scientific opinions, insist on arguing (and re-arguing) the same tedious points in a vain attempt to have their baseless views affirmed, or to delay the inevitable sanctions awaiting them for their non-compliance with a lawful direction.

• [34] There is nothing about Ms Tilley's appeal that warrants expending any further resources of the Commission. Consequently, the appeal will not be dealt with.

• [35] At the conclusion of the submissions accompanying her appeal notice, Ms Tilley makes a request for the suppression of her identity in any published decision concerning her appeal. At a mention of this matter on 28 February 2023, Ms Tilley indicated that she made this request 'because the appeal guide' said she could. [4]

• [36] Despite two opportunities in her subsequent submissions, Ms Tilley offers no further argument for suppression.

• [37] Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) provides as follows:

Rule 97 Publish decisions etc.

(3) The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate -

(b) modify a document, before publication, in a way that does not affect the essence of the document.

• [31] In Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs),[5] Deputy President Hartigan summarised the principles that apply to the exercise of the Commission's discretion for suppression:

[23] The Queensland Court of Appeal in the case of J v L & A Services Pty Ltd (No 2), ('J v L& A Services Pty Ltd') established six principles governing the exercise of discretion to issue suppression orders which are as follows:

1. Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.

1. The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility...

1. The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.

1. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.

1. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:

(a) Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information...

(b) A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.

(c) An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.

1. ... information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public...

• [24] In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd ('Aurizon') the respondent sought to have the names of the individual workers who were involved in the dispute to be de-identified. The application was supported by the applicant union. His Honour, O'Connor VP relevantly held as follows:
  • [41] The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; 'that justice should not only be done but should manifestly and undoubtedly be seen to be done'. This is a central feature of the administration of justice under the common law.
  • [42] The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure, it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted, and decisions pronounced, in 'open court'; second, that evidence is communicated publicly to those present in the court; and third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.
  • [43] However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions.

• [44] The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so. Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power.

• [45] It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm.

[45] In my opinion, the application to withhold the names of the two workers can be best explained on the basis that in the absence of a restriction on publicity, damage will be caused to the individuals to such an extent and of such a kind as requiring some relief, in the interests of justice.

[46] As was observed by Mahoney J in John Fairfax Group Pty Ltd v The Local Court of New South Wales, these are the 'unacceptable' consequences that sometimes arise in litigation. Of course, as observed by Pincus JA in J v L A Services Pty Ltd (No 2), 'there is a balancing exercise involved, with an initial heavy weighting in favour of publicity - an exercise involving considerations of fairness'.

• [32] In the absence of any compelling argument, I am not prepared to subvert the principles of open justice by suppressing Ms Tilley's identity just because she has asked for it.

• [33] In all of the above circumstances it is ordered:

1. Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) the appeal will not be heard.

1. The application for suppression is refused.

[1] Industrial Relations Act 2016 (Qld) s 562A(3).

[2] See for example: Thorley v State of Queensland (Department of Education) [2022] QIRC 133; Schimke v State of Queensland (Department of Education) [2022] QIRC 136; Allison v State of Queensland (Department of Education) [2022] QIRC 152; Nicholas v State of Queensland (Department of Education) [2022] QIRC 157; Tadeo v State of Queensland (Department of Education) [2022] QIRC 177; Carr v State of Queensland (Department of Education) [2022] QIRC 188; Gorry v State of Queensland (Department of Education) [2022] QIRC 196; Tribe v State of Queensland (Department of Education) [2022] QIRC 203; Prentis v State of Queensland (Department of Education) [2022] QIRC 212; Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269; Brailey v State of Queensland (Department of Education) [2022] QIRC 401; Graf and Ors v State of Queensland (Department of Education] [2022] QIRC 451.

[3] [2023] QIRC 058.

[5] [2023] QIRC 167, [22] - [24]. Citations omitted.