Applicants Oppose Disciplinary Processes of the Defendant
Nazih Beydoun & Ors v Northern Health & Ors [2021] FWC 6341 (13 November 2021)
The parties dispute matters arising under an enterprise agreement. The applicants lodged an application for interim orders concerning the undertaking of disciplinary processes arising out of alleged non-compliance by employees with directions given that they be vaccinated in compliance with directions of the Chief Health Officer of Victoria. The Court, in resolving this dispute, relied largely upon clause 99 of the Nurses Agreement and clause 113 of the Allied Agreement (OHS clauses).
Facts:
Applications were made before the Commission made pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with disputes under the dispute resolution procedures of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 (Nurses Agreement) and the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020 (Allied Agreement).
The Applicants, who are listed in Schedule A to this Decision, are variously employed under the mentioned agreements by one of Austin Health, Barwon Health, Peninsula Health, Monash Health or Northern Health (the Respondents).
On 16 March 2020, the Victorian Minister for Health issued a declaration pursuant to s 198(1) of the Public Health and Wellbeing Act 2008 (Vic) that Victoria had entered a state of emergency as a consequence of the COVID-19 pandemic (Declaration). Directions were issued by the Acting Chief Health Officer requiring healthcare operators to, as soon as reasonably practicable after 1 October 2021, collect, record and hold COVID-19 vaccination information about the healthcare workers they engage to work on their premises and to collect, record, and hold information as to when partially vaccinated and unvaccinated workers would, respectively, receive their first and second doses of vaccine.
Dispute resolution procedures in both agreements provided for conciliation. Mr Heffernan, representing the Applicants and Ms Beard, representing the Respondents, agreed to continue to engage directly with each other. During the discussion regarding their conciliation, Mr Heffernan advised the Court that some Applicants employed by one of the Respondents, Monash Health, had very recently had their employment terminated. The Applicants thus sought an undertaking from the Respondents that any disciplinary action presently being undertaken against any of them would be paused while conciliation was taking place. The Respondents’ position was that they would agree to conciliation only in the absence of such an undertaking.
The Applicants then requested that the Court make interim orders to prevent any further terminations. However, the Court made directions for the filing and service of material and listed a hearing for the next day, having regard to the representations that had been made by the Applicants regarding urgency. The nature of the interim orders sought by the Applicants were as follows: a direction that all parties engage in the consultation processes; that the Respondents allow collective consultation; and that all dispute procedures be followed.
Issue:
Whether or not a requirement to receive a vaccine outside of the workplace (while not performing work) gives rise to an obligation for the Respondents to consult with their employees pursuant to clause 99.3.
Applicable law:
Fair Work Act 2009 (Cth) s 50 - where the relevant health services were required to not contravene a term of an enterprise agreement.
Workplace Relations Act 1996 (Cth) s111(1)(p) - empowered the Australian Industrial Relations Commission to make an interim decision on a matter before it.
Public Health and Wellbeing Act 2008 (Vic) s.200(1)(d) - provides that where a state of emergency exists, the Chief Health Officer of Victoria may authorise the exercising of emergency powers, which include the issuing of directions.
CEPU v Telstra Corporation (PR933892) per Lawler VP at [88] - held that the approach taken by courts to applications for interlocutory injunctive relief are applicable to applications to the Commission for interim relief.
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [81]- [84] - provides that in order to qualify for the discretionary relief sought by the applicants, they must establish that they have a prima facie case and that the balance of convenience favours the grant of an injunction.
QNurses First Inc v Monash Health [2021] FCA 1372 at [19]- [20] - where the issue of whether there is a prima facie case and whether the balance of convenience favours the interim relief are related questions.
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] and [65]-[71] - provides that the applicants must establish a prima facie case, “in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief”.
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622-3 - where it does not involve any forecast of the likely result of the proceedings and does not require an applicant to satisfy the court about the likely ultimate balance of probability.
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 at [15] - provides that the obligation to consult in s.35 of the OHS Act is expressed to extend “so far as is reasonably practicable”, a term the High Court has held in the context of another provision of the OHS Act as indicating that the duty does not require an employer to take every possible step that could be taken.
AMWU v Eaton Electrical Systems Pty Ltd (2005) 139 IR 260 at 266 - relied upon in holding that it may ordinarily be accepted that Applicants who are dismissed would be deprived of non-remuneration benefits associated with working for the Respondents.
Bennett v President, Human Rights and Equal Opportunity Commission [2003] FCA 1433 - Finn J held that a direction issued by an Australian Government agency to employees will not be ‘lawful and reasonable’ where it infringes the implied constitutional guarantee of freedom of communication about government and political matters.
Bradley v Solarig Australia Pty Ltd [2021] FWC 2805 - held that not every breach of contract is a repudiation and repudiatory conduct is not to be inferred lightly.
Whittaker v Unisysis Australia Pty Ltd [2010] VSC 9 - provided that a repudiatory breach does not automatically terminate the contract but confers an elective right of termination on the innocent party.
Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 - provides that the test for repudiation is whether the conduct of the employee is such as to convey to a reasonable person, in the position of the employer, renunciation either of the contract as a whole or of a fundamental obligation under it.
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 - provided that the test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.
Kilminster v Sun Newspapers Ltd [1931] HCA 37; 46 CLR 284 - provided that contractual terms of employment may provide for additional benefits, but cannot be effective to derogate from the statute and the benefits that it confers, whether under the National Employment Standards, or under the Award.
Elmes v Carpentaria Shire Council [2016] QIRC 118 - stated that “In Qantas Airways Limited v Christie it was held that the inherent requirements of a position are primarily those which are essential and indispensable to carrying out the particular employment."
Analysis:
It is asserted by the Applicants that there is a prima facie case that the Respondents have failed to consult with them in relation to the CHO Directions. This failure, it appears to be submitted, means that the disciplinary procedure in clause 15 of the Nurses Agreement cannot be invoked.
The CHO Directions require the Respondents to take all reasonable steps to ensure an unvaccinated worker does not enter or remain on their premises for the purpose of working.
The CHO Directions do not supplant obligations under Occupational Health and Safety (OHS) laws to consult.
The submission appeared to be that the Applicants’ refusal to carry out the instruction of the Respondents to comply with the CHO Directions was not unlawful if the Respondents had not complied with their obligations to consult under the OHS Act.
The Applicants relied upon but quoted selectively from the preamble to “Workplace Direction 51” in this regard. The interim orders sought by the Applicants would effectively require the Respondents to continue to employ unvaccinated persons whom they are required by law to prevent performing work on their premises. This potential inability to assign unvaccinated persons either their usual or any useful work for the foreseeable future produces a potential financial detriment for the Respondents that would appear to be irrecoverable.
Conclusion:
The Court is not persuaded there is an arguable case that a requirement to receive a vaccine outside of the workplace (while not performing work) gives rise to an obligation for the Respondents to consult with their employees pursuant to clause 99.3. The application for interim orders is dismissed.
