· 2021-11-10T14:16:29+0000 · 465 posts

Interlocutory Injunctive Relief Sought to Restrain Disciplinary Process

QNurses First Inc v Monash Health [2021] FCA 1372 (3 November 2021)

The Victorian Chief Health Officer issued a direction requiring that healthcare workers be vaccinated against COVID-19. Certain employees from Monash Health being unable or unwilling to meet vaccination requirement, requested consultation about vaccination requirement and alleged that no such consultation occurred. Monash Health has commenced disciplinary processes against them for not complying with the direction. The applicants thus sought urgent interlocutory injunctive relief to restrain Monash Health from giving effect to certain disciplinary processes.

Facts:

The first applicant (“QNurses”) is an association incorporated pursuant to the Associations Incorporation Act 1981 (Qld). Its objects include the representation of its members, some (and perhaps all) of whom are employed as nurses. The second applicant is one of its members. She is employed as a nurse by the respondent, Monash Health.

Since the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 10) was issued, Monash Health has taken various steps to inform its employees—including its nurses—of the steps that it intends to take in order to comply with it. On 5 October, it hosted an “online employee forum” during which it informed those present about the direction and its consequences (including that healthcare workers were required to be vaccinated by the identified deadline, after which they would not be able to continue working at Monash Health). Monash Health sent email correspondence to all of its employees issuing a direction that they be vaccinated against the COVID-19 virus and that they provide to their employer proof of their status as such. According to Monash Health, several dozen of its employees—including the second applicant and the other Relevant Employees—are alleged not to have complied with that direction. True to its word, Monash Health has commenced disciplinary processes against them.

The applicants seek urgent interlocutory injunctive relief to restrain Monash Health from giving effect to certain disciplinary processes that have been, or will imminently be, initiated against the second respondent and others whom QNurses represents (or purports to represent) through an originating application dated 28 October 2021. The disciplinary processes pertain to directions issued recently by the Chief Health Officer of Victoria (hereafter, the “CHO”) requiring that nurses (amongst others) be vaccinated against what has come to be known as the COVID-19 virus. Each of the second respondent and the other Relevant Employees is, at present, unable or unwilling to meet that requirement.

It is alleged that Monash Health intends to take action against those employees because, or for reasons that include that, they possess or have sought to exercise certain statutory rights of consultation; or, perhaps, in order to prevent them from exercising such a right. The application for urgent relief first came before a duty judge of the court on Friday, 22 October 2021 (before the originating application was filed). That hearing was adjourned until Monday, 1 November 2021; and then again to Wednesday, 3 November 2021. At the conclusion of the hearing, the application for interlocutory relief was dismissed. The applicants maintain that each of the Relevant Employees was entitled to be consulted in advance about the Vaccination Direction.

Issue:

Whether or not a prima facie case that respondent has contravened s 340(1) of the Fair Work Act is made.

Applicable law:

Fair Work Act 2009 (Cth) s 340 - provides that a person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
...

(b) to prevent the exercise of a workplace right by the other person.

Fair Work Act 2009 (Cth) s 341 - identifies the circumstances in which a person is to be understood as possessing a workplace right.

Fair Work Act 2009 (Cth) s 360 - provides that a person takes action for a particular reason if the reasons for the action include that reason.

Fair Work Act 2009 (Cth) s 570 - precludes the court from making an award of costs other than in limited circumstances.

Federal Court of Australia Act 1976 (Cth) s 23 - provides that the court has a broad discretion to grant an application for interlocutory injunctive relief.

Associations Incorporation Act 1981 (Qld) - pursuant to such Act an association may be made with objects including the representation of its members.

Health Services Act 1988 (Vic) - pursuant to which the Monash Health was established.

Occupational Health and Safety Act 2004 (Vic) - provides that an employer must so far as is reasonably practicable consult in accordance with this section with the employees of the employer who are or are likely to be directly affected by the employer doing that thing.

Public Health and Wellbeing Act 2008 (Vic) s 198 - pursuant to which the Victorian Minister for Health declared that Victoria had entered a state of emergency.

Public Health and Wellbeing Act 2008 (Vic) ss 199, 200 - pursuant to which the CHO is empowered to issue public health directions, the effect of which are binding upon persons throughout Victoria.

The Australian Manufacturing Workers’ Union (AMWU) & Anor v McCain Foods (Aust) Pty Ltd [2012] FCA 1126 - provides that it is not possible to know whether, or to what extent, that inconvenience will extend beyond financial considerations that could be addressed through awards of compensation in the event that the claim succeeds at trial.

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 - where it was held that in order to qualify for the relief that they seek, the applicants must demonstrate that they have a prima facie case and that the balance of convenience favours the grant of an injunction.

Blackadder v Ramsey [2005] HCA 22; (2005) 221 CLR 539 - relied upon in holding that the Relevant Employees look set to be deprived of the enjoyment that they might otherwise derive from their work.

Bullock v FFTSA [1985] FCA 19; (1985) 5 FCR 464 - Woodward J stated that an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even.

Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 - provides that an applicant for interlocutory injunctive relief must, in showing that the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy.

Samsung Electronics Co. Ltd v Apple Inc (2011) 217 FCR 238 - provides that whether there is a prima facie case is to be considered together with the balance of convenience.

Analysis:

The applicants maintain that at least some of the Relevant Employees have asserted a right to be consulted about the Vaccination Direction pursuant to s 35 of the OHS Act. Such an assertion, the applicants submit, constitutes the exercise of a workplace right within the meaning of s 340(1) of the FW Act. Monash Health accepted that there was a prima facie case, albeit a weak one, that each of the Relevant Employees had or has a right under s 35 of the OHS Act, and that that right qualified as a workplace right for the purposes s 340(1) of the FW Act (which at least some of them have exercised). There is no evidence to prove—nor even to suggest—that Monash Health intends to subject any of its employees to disciplinary action because, or for reasons that include the fact that, they possess or have exercised the workplace right that is relied upon (whether it qualifies as such or not). Similarly, there is no evidence to prove or suggest that it intends to take any action in order to prevent any such exercise.

The applicants suggestthat Monash Health has not led evidence to discount the possibility that one or more of them might have been actuated to do something for a reason or reasons proscribed by s 340(1) of the FW Act. However, here is no evidence to suggest that anybody within Monash Health other than Mr Stripp has had any role to play in the decisions that have led to the disciplinary processes that have been or will shortly be effected as against the Relevant Employees. On the other hand, Monash Health has led positive evidence that tends to demonstrate that its reasons for undertaking the disciplinary processes to which the present action relates have nothing whatsoever to do with the possession or exercise of any workplace rights.

Conclusion:

The applicants' application for interlocutory relief contained in the originating application of 28 October 2021 is dismissed. The costs of and pertaining to that application are reserved.

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