DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Nazih Beydoun & Ors
v
Northern Health & Ors
(C2021/7446)

Alleged dispute about matters arising under an enterprise agreement - 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 - application for interim relief refused.

[1] This decision concerns 37 applications 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).

[2] The Applicants, who are listed in Schedule A to this Decision, are variously employed under classifications in either the Nurses Agreement or the Allied Agreement by one of Austin Health, Barwon Health, Peninsula Health, Monash Health or Northern Health (the Respondents). Most of the Applicants are covered by the Nurses Agreement, with some covered by the Allied Agreement. The Respondents operate public health services in Victoria pursuant to the Health Services Act 1988 (Vic).

[3] It is not in dispute that 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). The Declaration has been extended numerous times over the past 20 months, most recently until 11.59pm Thursday 18 November 2021. It is put that at that point, it is likely to be extended again.

[4] 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. 1 Relevant to this proceeding are directions issued by the Acting Chief Health Officer which commenced operation at 11.59pm on 29 September 2021 and are entitled the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 4) (CHO Directions). The CHO Directions require healthcare operators in Victoria (such as each of the Respondents) 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.

[5] Healthcare operators are also required to take all reasonable steps to ensure that, on or after 15 October 2021, healthcare workers who are not vaccinated do not enter, or remain on, the operator’s premises for the purpose of working there. Additionally, healthcare workers in respect of whom no such vaccination information is held are to be treated as if they are unvaccinated, subject to an exemption where the unvaccinated healthcare worker had a booking to receive the first dose of a COVID-19 vaccine by 29 October 2021.

[6] Under the CHO Directions a healthcare worker is not treated as being unvaccinated or partially vaccinated if he or she is an excepted person”. To be an excepted person requires medical certification from a medical practitioner that the person is unable to receive a vaccine due to a medical contraindication or an acute medical illness. It is not asserted that any of the Applicants are an excepted person.

[7] It is not contended that the obligations imposed on the Respondents have been altered in any material effect by successive instruments. The most recent, and current, iteration of the CHO Directions are the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 12).

[8] The Respondents summarise their position as having given a direction to their respective employees that they be fully vaccinated within a timeline that was compliant with the CHO Directions and for those employees that did not comply with the direction, they have initiated disciplinary action.

[9] Given the number of applicants and the number of healthcare operators named as Respondents, I conducted a Mention for all applications on 11 November 2021, the purpose of which was to provide the parties an opportunity to discuss the logistics and further case management of the applications. With two exceptions, the Applicants were represented by Mr Miles Heffernan of Supportah Australia Pty Ltd. The Respondents were represented by Mr Chris O’Grady QC and Eastern Health, another healthcare operator named as respondent to a further six applications, was represented by Ms Sally Beard. During initial discussion, the Applicants foreshadowed the possibility they would apply for interim orders and I indicated that if that was to eventuate, I would require the parties to put material before the Commission.

[10] Noting the dispute resolution procedures in both agreements provided for conciliation, I indicated the availability of the Commission to assist in this regard early in the week commencing 15 November 2021. At that point, separate discussions between Mr Heffernan and Ms Beard resulted in their agreeing to continue to engage directly with each other. During the broader discussion regarding conciliation that would involve the Applicants and the Respondents, I was advised by Mr Heffernan that some Applicants employed by one of the Respondents, Monash Health, had very recently had their employment terminated. This had the effect of the Applicants seeking 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. This resulted in the Applicants requesting I immediately make interim orders to prevent any further terminations. However, consistent with my earlier indication, I 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.

[11] The Applicants filed an Outline of Argument and an unsworn statement of Ms Prathnaa Haripersad dated 11 November 2021 which purported to outline when each of the Respondents were first notified of a dispute and attached various pieces of correspondence passing between the parties. The Respondents filed an Outline of Submissions and an annexure containing a purported chronology of actions taken by each of the Respondents in relation to each of the Applicants as a result of the CHO Directions.

[12] In the Applicants’ Outline of Argument, the nature of the interim orders was outlined as follows:

•  A direction that all parties engage in the consultation processes outlined in clause 99 of the Nurses Agreement and clause 113 of the Allied Agreement;

•  A direction that the Respondents allow collective consultation with respective industrial associations and members;

•  A direction that all dispute procedures be followed.

[13] At the hearing, it appeared the Applicants effectively seek an order that prevents their dismissal pending the resolution of their disputes so that consultation regarding the CHO Directions can take place.

[14] It is not possible to fairly summarise the Outline of Argument of the Applicants. It is set out in full in Schedule B to this decision. At the hearing, the Applicants relied broadly upon the following in support of its application for interim orders:

1. Alleged contravention of clause 99 of the Nurses Agreement and clause 113 of the Allied Agreement (OHS clauses);

2. Alleged contravention of clause 15 of the Nurses Agreement and clause 8 of the Allied Agreement (Disciplinary clauses); and

3. The operation of clause 13.2 of the Nurses Agreement and clause 7.2 of the Allied Agreement (status quo clauses).

[15] The principles applicable to applications for interlocutory relief were helpfully and succinctly outlined by Deputy President Saunders in the recent decision in Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal 2 as follows:

“[24] The approach taken by courts to applications for interlocutory injunctive relief are applicable to applications to the Commission for interim relief. 3 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.4 The issue of whether there is a prima facie case and whether the balance of convenience favours the interim relief are related questions.5

[25] 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”. 6 The degree of probability of success required involves an impressionistic assessment of the apparent sufficiency of the applicant’s evidence. That assessment will be influenced both by the nature of the proceedings and the nature of the orders sought.7 But 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.8”

Prima facie case

[16] As to the OHS clauses, the emphasis of the Applicants was focussed on the operation of clause 99.3 of the Nurses Agreement, which states:

“99.3 Those covered by this Agreement recognise that consultation with nurses, midwives and their representatives is crucial to achieving a healthy and safe work environment. To this end, Employers will consult with nurses, midwives and their representatives around matters relating to health and safety in the workplace.”

(my emphasis)

[17] 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. As a matter of construction, I am not persuaded this is sustainable. The text of clause 99 of the Nurses Agreement is instructive:

“99.1 Those covered by this Agreement will take a pro-active approach to the prevention and management of workplace injuries to the highest level of protection reasonably practicable in the circumstances, and to the achievement of a reduction in workplace injuries through the implementation of risk management systems incorporating hazard identification, risk assessment and control, and safe work practices.

99.2 The Employer will implement the hierarchy of controls to control hazards and will eliminate the hazard at the source wherever practicable.

99.3 Those covered by this Agreement recognise that consultation with nurses, midwives and their representatives is crucial to achieving a healthy and safe work environment. To this end, Employers will consult with nurses, midwives and their representatives around matters relating to health and safety in the workplace.

99.4 This Agreement recognises that hazards include, but are not limited to:

a) safe patient and manual handling;

b) occupational violence and aggression;

c) circumstances that give rise to adverse effects on psychological health, including bullying, workplace stress and fatigue;

d) unsafe design and layout of health workplaces;

e) slips, trips and falls;

f) blood borne and other infectious diseases; sharps; and

hazardous substances.

99.5 The Employer will provide such information, education, training and supervision to all Employees of the Employer required to enable them to perform their work in a manner which is safe and without risks to health. This will occur on a regular basis as required to enable Employees to remain informed in relation to health and safety hazards, policies and procedures.”

[18] Having regard to the full text of clause 99, it can be discerned that the clause is concerned with injuries that might occur at the workplace and during the performance of work, hazards in the workplace and the prevention of them, and the safe performance of work. Similarly, the text of clause 113 of the Allied Agreement speaks to the work environment and the performance of work. By way of contrast, 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. I am 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 and that failing such consultation, the Respondents are prevented from invoking the disciplinary procedure in clause 15 of the Nurses Agreement. I see no basis for a conclusion that there is an issue of compliance with clause 99.3 of the Nurses Agreement or clause 113 of the Allied Agreement that impacts on the capacity of the Respondents to initiate disciplinary action in respect of a failure of an employee to carry out instructions arising from the CHO Directions.

[19] The Applicants’ complaint regarding the Disciplinary clauses seemed to be based upon the proposition that the instruction by the Respondents that the Applicants comply with the CHO Directions was not lawful and reasonable. This proposition appears in turn to be based upon a contention that 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 entire preamble to Workplace Directions (No 51), which operated until 11.59pm on 21 October 2021, read:

“Preamble

(1) The presence of a person with a positive diagnosis of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) at a Work Premises is considered to pose an immediate risk of transmission to persons who attend, or may attend, the Work Premises.

(2) The purpose of these directions is to limit the number of Victorians attending Work Premises to assist in reducing the frequency and scale of outbreaks of SARS-CoV-2 in Victorian workplaces and to establish more specific obligations on employers and workers in relation to managing the risk associated with SARS-CoV-2.

(3) These directions must be read together with the Directions currently in force.

(4) These directions are intended to supplement any obligation an employer may have under the OHS Act and are not intended to derogate from any such obligations.

(5) These directions replace the Workplace Directions (No 50).”

[20] It is apparent that Workplace Directions (No 51) were concerned with managing the risk associated COVID-19 by limiting the number of Victorians attending work premises. It is stated that they, not the CHO Directions, were not intended to derogate from employer obligations under the Occupational Health and Safety Act 2004 (Vic) (OHS Act).

[21] I consider a review of the text of s.35 of the OHS Act is instructive when evaluating the submissions of the Applicants in relation to a statutory duty of the Respondents to consult in relation to the CHO Directions. Firstly, 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. 9 Secondly, s.35 speaks of the duties of employers to consult when doing certain defined things described variously as risks, hazards, issues and conditions “under the employer’s management and control”. This duty appears to be distinguishable from the CHO Directions, which impose obligations with which the Respondents simply must comply.

[22] As to obligations of the Respondents under OHS laws, the following may be said:

•  The CHO Directions are not stated to operate subject to consultation obligations under OHS laws; and

•  neither the Nurses Agreement nor the Allied Agreement incorporate OHS laws and as such, any alleged breach of an OHS law is not a matter that enlivens the Commission’s jurisdiction to make interim orders in relation to the Applications.

[23] Finally, I am not persuaded that the text of the status quo clauses assists the Applicants for the purposes of the application for interim orders. A submission to the effect that the instigation of a disciplinary process has impacted or would impact the usual work practice is not sustainable. I consider the use of the words “work will continue normally according to the usual practice that existed before the dispute, until the dispute is resolved” limits the application of the status quo to the performance of work, not the entire state of affairs.

[24] Based on the material currently relied upon and the arguments advanced before me, I am not persuaded the Applicants have established a prima facie case that there have been breaches of either the OHS clauses or the Disciplinary clauses or that any disciplinary processes are impacted by the status quo clauses.

Balance of Convenience

[25] As has been recently observed, the issue of whether there is a prima facie case and whether the balance of convenience favours the interim relief are related questions. 10

[26] It has been submitted by the Applicants that if the interim relief they seek is not granted their employment will be terminated or that they are at least at grave risk of dismissal. If it is assumed that dismissals will occur, it would normally be expected that this would have a significant effect on the affected Applicants due to financial consequences, albeit the extent of this will vary from case to case and could be addressed through the pursuit of various causes of action which have compensation and reinstatement as available remedies. Further, it may also ordinarily be accepted that Applicants who are dismissed would be deprived of non-remuneration benefits associated with working for the Respondents. 11

[27] I have inserted the caveat above because of the overlay of the CHO Directions. The current reality is that the Respondents are required by the CHO Directions to take all reasonable steps to ensure that any of the Applicants who continue to elect not to receive a COVID-19 vaccine or provide the vaccination information do not enter or remain on their premises for the purposes of working. Any Applicants remaining unvaccinated within the meaning of the CHO Directions will not presently be working for any of the Respondents and nor was it seriously suggested they will be performing work for any of them in the foreseeable future.

[28] 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.

[29] While the parties have not put material before me that makes it possible for me to accurately assess the financial impacts of either granting or not granting the interim orders sought by the Applicant, it is of significance that at least the financial impact on the Applicants resulting from dismissal could be adequately compensated by orders for reinstatement and/or compensation. For the foregoing reasons and having regard to my finding above that a prima facie case has not been established by the Applicants, the balance of convenience does not favour the making of the orders sought.

Conclusion

[30] For the reasons outlined above, the application for interim orders is dismissed.

[31] The Commission as presently constituted remains available to assist the parties to settle the dispute by conducting conciliation on any of 16, 18 or 19 November 2021. The parties are requested to confirm with my Chambers their views regarding conciliation pursuant to clause 13.6 of the Nurses Agreement and clause 7.6 of the Allied Agreement and advise regarding their availability at their earliest convenience.

DEPUTY PRESIDENT

Appearances:

Mr M Heffernan (Supportah Australia Pty Ltd) for the applicants.
Mr C O’Grady QC and Mr M Garozzo of counsel for the respondents.

Hearing details:

2021.
Melbourne (via Microsoft Teams).
November 12.

Printed by authority of the Commonwealth Government Printer

<PR735771>

SCHEDULE A

SCHEDULE B

Outline of Arguments by the Applicants

Section 739 Applications against Monash Health, Austin Health, Peninsula Health, Northern Health and Barwon Health (Multiple Matters)

C2021/7450 and other matters in the Fair Work Commission

Before Deputy President Clancy

Outline of Argument for the Fair Work Commission in Performing its Functions, Exercising of Powers Including Acting on its Own Motion and Dispute Resolution

Summary of the Applicants’ Understanding of the Respondents Position

1. The Respondents are denying there is a dispute within the meaning of s 739 of the FWA because:

(a) They don’t accept there is one; and/or

(b) The Applications are an abuse of process, at least against one Respondent, Monash Health; and in any event

(c) The Staged Dispute process does not need to be followed because they have issued lawful and reasonable workplace Instructions that defeat any dispute settling procedures.

2. Separately the Respondents suggest that on the ground efforts to resolve the dispute are not relevant and that any delays caused by this are:

(a) Of the Applicants’ own making by the decisions.

3. This is despite the Respondents agreeing to Enterprise Agreements approved in accordance with s.54 of the Fair Work Act that inserted legislation or regulation into the agreement that was entirely discretionary and giving these laws and regulations an additional role of being a workplace right, but for their inclusion would not have been able to be the subject of dispute resolution.

4. The Respondents position is further expanded to appear to suggest they are each the ultimate arbiter of what can be called characterised as a dispute under the respective EAs.

5. This is despite the Fair Work Bill 2008 Explanatory Memorandum¹² Para 782 Explanatory Memorandum: “Paragraph 186(6)(a) requires FWA to be satisfied that the agreement includes a term that provides a procedure that requires or allows FWA or another person independent of the persons covered by the agreement to settle disputes about any matters arising under the agreement.”

Summary of the Applicants’ Position of the Respondents’ Approach to Dispute EA Items

6. The practical effect of the above or similar position is that the employer gets to say what is a dispute and when the dispute procedure can be followed and which representatives it will deal with.

7. When referred to the FWC as part of the dispute resolution process that is a statutory right, the Respondents then ask the Commission to rely on a wrong principle but suggesting an interim injunction is being sought when it is not.

8. The Application seeks only for the Collective Purpose issue to return to the workplace as either Stage 1 or Stage 2 in the dispute process, as was agreed in the approved Enterprise Agreements.

9. And as these submissions expand on, as the very definition of discipline and, critically, whether the order or any instruction was lawful and reasonable forms part of the dispute, that cannot be finalised unless by agreement, or by arbitration.

10. All in circumstances when the Respondents appear to have ‘plotted’ a course which entirely denies the relevance of approved enterprise agreements, which incorporates conditions precedent for investigating misconduct, decision making on conduct, including for serious misconduct, reasonable adjustments when ill, and critically on OH&S consultation and despite those conditions not being met, and are the subject of the dispute, they can act unilaterally.

11. There was no requirement for misconduct or serious misconduct to be in the Enterprise Agreements and by inserting them in, the Respondents gave up the capacity to make a unilateral decision on this conduct.

12. In expanding on these points below, underlining is to emphasise as time is of the essence.

13. If the Respondents maintain that they can discipline and terminate employees, despite those very terms and contained in the Enterprise Agreements it makes a sham of the disputes procedure as it removes the Commission and makes the Respondents the only arbiter.

14. This exact issue factored into the Explanatory Memorandum where it outlined this [at 783]: “A disputes procedure could not, for example, provide for disputes to be resolved by the managing director of the employer”

15. That is precisely what has happened at Monash Health and is at the precipice of the other Health Service Respondents.

16. The Applicants are not fraudsters, thieves, assaulters or the like and this case is distinguished to:

(a) Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2012], FWA 2045 at [27]-[28]; and

(b) by the Federal Circuit Court in CEPU v Tasmanian Water Sewerage Corporation Pty Ltd [2015] FCCA 2382 at [61]; because

(i) There is no mens rea with any applicant:and

(ii) the specific drafting of the EBAs make this plain as it relates to consultation, the “Investigation Procedure” has not been followed and nor has the “Disciplinary Procedure” and critically the definition of serious misconduct.

Legislative Background

17. The State of Victoria transferred powers via the Fair Work (Commonwealth Powers) Act 2009 (Vic)¹³:

(a) 3A Fundamental workplace relations principles

(i) The following are the fundamental workplace relations principles under this Act—

that the Commonwealth Fair Work Act should provide for, and continue to provide for, the following—

(i) a strong, simple and enforceable safety net of minimum employment standards;

(ii) genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities;

(iii) collective bargaining at the enterprise level with no provision for individual statutory agreements;

(iv) fair and effective remedies available through an independent umpire;

(v) protection from unfair dismissal;

(vi) that there should be, and continue to be, in connection with the operation of the Commonwealth Fair Work Act, the following—

(i) an independent tribunal system;

(ii) an independent authority able to assist employers and employees within a national workplace relations system

18. Referred subject matters:

(a) Any of the following:

(i) rights and responsibilities of persons, including employees, employers, independent contractors, outworkers, outworker entities, associations of employees or associations of employers, being rights and responsibilities relating to any of the following—

(1) freedom of association in the context of workplace relations, and related protections;

(2) protection from discrimination relating to employment;

(3) termination of employment;

(4) industrial action;

(5) protection from payment of fees for services related to bargaining;

(6) sham independent contractor arrangements;

(7) standing down employees without pay;

(8) union rights of entry and rights of access to records;

19. Victoria State Employees matter

(a) Section 5: (1) A matter referred by section 4(1) does not include—

(i) State subject matters means the following subject matters—

(1) (a) a matter dealt with in the Equal Opportunity Act 2010;

(2) (m) regulation of any of the following—

a. employee association

(ii) State of emergency means—

(1) any state of emergency or emergency

a. situation that is declared under an Acton 5(i):the following matters relating to provision of essential services or to a state of

i. Emergency—

ii. (i) directions to employees of a public sector body to perform work (including to perform work at a particular time or place, or in a particular way), being directions that are given under the Act under which the relevant proclamation or declaration is made;

iii. (ii) directions to employees of a public sector body not to perform work (including not to perform work at a particular time or place, or in a particular way), being directions that are given under the Act under which the relevant proclamation or declaration is made

Relationship between Public Health Directives include Workplace Direction 51

20. On or about 16 March 2020, the Minister for Health for the State of Victoria (Minister), in exercise of the power granted by section 198(1) of the Public Health and Wellbeing Act 2008 (Vic)¹⁴ (PHW Act) declared a state of emergency in the whole of the State of Victoria (Declaration) in connection with severe acute respiratory syndrome coronavirus 2 (COVID).

21. The period of the Declaration has been extended on several occasions and was most recently extended until midnight on 18 November 2021 by act of the Minister under section 198(7)(c) of the PHW Act on 21 October 2021.

22. The Acting Chief Health Officer for Victoria has promulgated several sets of directions pursuant to section 200(1)(d) of the PHW Act (Directions).

23. Those have included COVID-19 Mandatory Vaccination Directions (No 6) (Direction No 6).¹⁵

24. Clause 5 of Direction No 6 relevantly provided at the time:

(a) An operator of a specified facility must take all reasonable steps to ensure that, on or after the relevant date, a worker who is unvaccinated does not enter, or remain on, the premises of a specified facility for the purposes of working at the facility.

(b) For the purposes of subclause (1), if an operator does not hold vaccination information about a worker, the operator must treat the worker as if the worker is unvaccinated.

25. The common theme of relevant directions is the imposition of an obligation on an employer not to permit an unvaccinated employee to attend a workplace for the purpose of working at that workplace.¹⁶

26. Workplace Direction 51:

(a) These directions must be read together with the Directions currently in force.

(b) These directions are intended to supplement any obligation an employer may have under the OHS Act and are not intended to derogate from any such obligations.

(c) Operation of a Work Premises (1) An employer in respect of a Work Premises in the Restricted Area:

(i) may only permit a worker to perform work at the employer’s Work Premises if:

27. The Victorian health services governance handbook

(a) Devolved governance for service delivery Page 6

(i) Boards interact with the Minister for Health, to whom they are responsible for the effective and efficient governance of their health service. In addition, the Department of Health also interacts with boards and health service management to give effect to the governance framework outlined in this handbook.

(ii) Devolved governance allows health services to make local decisions to meet local needs, recognising that a solution in one place – with a unique combination of patients and service demand, culture or workforce – may not be the most effective solution in another environment.

(iii) “Other Legal Obligations” Page 22 states

(1) The board is responsible for ensuring the health service complies with all relevant legislative law. Numerous Acts of Parliament apply to public sector health services. In addition to the HSA, other Acts include:

(iv) legislation to improve safety and protect rights of employees, such as Equal Opportunity Act 1995 and the Occupational Health and Safety Act 2004.

(v) Various other federal and state legislative laws may impose duties upon directors in certain prescribed circumstances. An example are the obligations to employees under the Fair Work Act 2009

(b) It is simply not possible for a course to be charted from around 12 October 2021 by any Health Service CEO that denied rights under the FWA or OH&S Laws on that basis.

28. State of emergency exclusions to referral under the FWA allows for work not to be done.

(a) To the extent the referral powers exclude state of emergency for any condition of employment, the directions are not conditions of employment, rather the enforcement in the manner they are is management prerogative:

(b) The directions do not suspend any OH&S or workplace law:

(i) Referral powers under a State of Emergency do not suspend:

(1) Industrial Action; or

(2) Collective action.

29. The fact that, properly construed, the Directions:

(a) precluded Employees from attending any workplace to discharge their employment roles;

(b) critically, did not require termination of the Relevant Employees’ employment;

(c) the fact that each of the Relevant Employees:

(i) had the right to be consulted, which right was a workplace right;

(ii) expressly sought to exercise that right by seeking to be consulted on the imposition of the Requirements and have their EBA rights enlivened including on similar terms;

(iii) The Health Services refused to acknowledge those workplace rights including to act collectively; and

(1) following on from that, they failure to honour multiple workplace rights;

(d) The HHSs determination in spite of the attempted exercise of the workplace rights to impose the Requirements and then use failure to comply with those as a justification to terminate;

30. The relevant industrial instruments:

(a) The Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 (Nurses EBA).

(b) The Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020 (Allied EBA).

31. Both EBAs enliven Proscribed Disciplinary Process:

(a) Nurses 15.1

(i) 15.1 Application (a) Where an Employer has concerns about:

(1) (i) the conduct of an Employee; or

(2) (ii) a performance issue that may constitute misconduct,

(ii) the following procedure will apply.

(1) (b) There are two steps in a disciplinary process under this clause as follows:

(2) (i) investigative procedure; and

(3) (ii) disciplinary procedure.

(4) (c) An Employee will be provided a reasonable opportunity to be represented at any

(5) time (including by a Union) with respect to all matters set out in this clause.

32. Both EBAs enliven the dispute process:

(a) Resolution of disputes and grievances

(b) (a) For the purpose of this clause 7, a dispute includes a grievance.

(c) (b) This dispute resolution procedure will apply to any dispute arising in relation to:

(i) (i) this Agreement;

(ii) (ii) the NES;

(iii) (iii) a request for an additional 12 months parental leave; or

(iv) (iv) a request for flexible working arrangements.

(1) (c) A party to the dispute may choose to be represented at any stage by a representative including the HWU or employer organisation. A representative, including the HWU or employer organisation on behalf of an Employer, may initiate a dispute.

33. The matters in the EBAs relate to:

(a) Anti-Discrimination;

(b) Dispute Resolution;

(c) Discipline, in three cascading parts:

(i) Investigation process;

(ii) Findings process;

(iii) The distinct definition of wilful and deliberate departing from r 1.07 of the Fair Work Regulations and if;

(1) The lawfulness of the Instruction;

(2) The reasonableness of the Instruction;

(3) Whether the Instruction was ‘refused’ and

(4) If all of the above is met, whether the refusal was inconsistent with the continuation of the employment contract.

(d) Consultation on risk;

(e) Occupational Health and Safety; and

(f) Representation and this includes Collective Representation.

34. Management Prerogative vs Condition of Employment

(a) The Directions Are Likely Not a Term or Condition of Employment

(i) In Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) [2021] QIRC 356¹⁷ at [65] and referring to R v Darling Island Stevedoring and Lighter; ex parte Halliday and Sullivan (1948) 60 CLR 601¹⁸ at 621-622.

(1) “A direction given to an employee does not, without more, become a term or condition of employment. This is made clear in the management prerogative cases. Where a directive is within the scope of employment and it is not contrary to the employment contract, the award or any certified agreement, the direction must be obeyed provided compliance does not involve illegality and the directive is reasonable.

35. Disputed Lawful and Reasonable Instruction

(a) Under the Nurses EA at 15.2(d)(5) and Under the Allied EA at 8.2(d)(v):

(i) the Employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment

(b) The specific instruction is contained in the materials before the FWC and does not refer to Workplace Direction 51 and it needed to in the Applicants’ respectful submission.

(c) To make the definition, all four elements need to be be made out, being the Instruction is:

(i) Lawful; and

(ii) Reasonable; and only then:

(1) The employee refuses the instruction; and then

(2) By refusing, that conduct is so serious as to be inconsistent with the contract of employment, which is essentially a repudiation of the employment contract test.

(iii) To frame this, The Applicants refer the Deputy President to Bennett v President, Human Rights and Equal Opportunity Commission¹⁹, 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.

(1) As expressed by Finn J: “It is not sufficient simply to contend that [an agency] gave lawful and reasonable directions with which [the employee] was bound to comply when there would be a real issue between the parties as to whether the directions given were lawful and reasonable”.

(d) Conduct that repudiates the contract of employment:

(i) Bradley v Solarig Australia Pty Ltd [2021] FWC 2805²⁰, Deputy President Anderson:

(1) At [113] Whittaker v Unisysis Australia Pty Ltd [2010] VSC 9²¹ at 33 - 36 “Not every breach of contract is a repudiation and repudiatory conduct is not to be inferred lightly. A repudiatory breach does not automatically terminate the contract but confers an elective right of termination on the innocent party. An actual intention to repudiate is not necessary; the issue is resolved objectively by reference to the effect it would have on a reasonable person.

(2) referred to the Full Bench decision in Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092²² at [119] “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. The issue turns upon objective acts and omissions and not on uncommunicated intention.

(ii) The High Court of Australia in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115²³ at 44:

(1) “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.”

(e) In the case of Monash Health, which appears to be the early adopter of the “path”, as its CEO Mr Stripp told the Federal Court in QNurses First Inc v Monash Health [2021] FCA 1372²⁴ (3 November 2021). His Honour Justice Snaden said [at 37]:

(i) “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. Mr Stripp— who describes himself as the architect of the Vaccination Direction and the course that Monash Health has plotted in respect of those who have failed to comply with it —deposes in his affidavit as to why Monash Health intends to do as it has foreshadowed. In short, it has charted the course it has because it has formed the view that the CHO’s directions do not permit of any other alternative”.

(f) All other Respondents (other than Eastern Health who are not included or referred to in this submission), are at different stages of the “path” of Mr Stripp’s “architecture”.

(g) Irrespective of the architect, or his, her, they or its design, however nobly formed, does not suspend the Fair Work Act, the EBAs, and the OH&S laws.

(h) These very issues, uses the very words on the page must trigger the EA Dispute resolution clause.

Dispute Resolution is Not for One Party to Refuse to Engage In

36. The Dispute Resolution procedure was enlivened with each of the Five Health Services, being:

(a) Monash Health;

(b) Austin Health;

(c) Northern Health;

(d) Peninsular Health; and

(e) Barwon Health.

37. The Health Services were each first advised of a dispute on the following dates:

(a) Monash Health -

(i) 6 October 2021, specifically by Ms Tania Howard²⁵; and

(ii) 6 October 2021, specifically by Ms Tracey Bailey²⁶;

(b) Austin Health -

(i) 4 October 2021, specifically by Ms Joy Steenveld²⁷;

(ii) 6 October 2021, specifically by Ms Aimee Cummings²⁸.

(c) Northern Health -

(i) 5 October 2021, specifically by Ms Nazih Beydoun²⁹;

(ii) 16 October 2021, specifically by Yen-Hsiang Perkoulidis³⁰.

(d) Peninsular Health

(i) 10 October 2021, specifically by Ms Sandra Duffield³¹; and

(ii) 14 October 2021, specifically by Ms Jennifer Walsh³².

(e) Barwon Health -

(i) 13 October 2021, specifically by Ms Kylie Hayes³³.

38. The Health Services each first responded to the requests for risk assessments on the following dates:

(a) Monash Health -

(i) 8 October 2021, specifically from Mr Peter Ryan³⁴.

(b) Austin Health -

(i) 4 and 5 October 2021, specifically from Ms Emma Wadeson³⁵;

(ii) 11 October 2021, specifically from Ms Rosemary Interlandi³⁶.

(c) Northern Health -

(i) 29 October 2021, specifically from Ms Michelle Fenwick³⁷;

(ii) 19 October 2021, specifically from Mr Agnieszka Kuciel³⁸.

(d) Peninsular Health -

(i) 12 October 2021, specifically from Mr Gill Duxon³⁹ and 25 October 2021, specifically from Simone Harris⁴⁰.

(ii) 14 October 2021, specifically by Ms Amanda Armstrong⁴¹.

39. After being advised of the industrial dispute, the Health Services were advised of the following additional parties in each matter:

(i) Monash Health⁴²:

(1) Tracey Bailey

(2) Tania Howard

(3) Sandy Gray

(4) Andrew Dilabio

(5) Tania Lancaster

(6) Katherine Arias-Senel

(7) Sarah Stevens

(8) Robyn Graham

(9) Angela Kallista

(10) Emma Enticott

(11) Meagan Young

(12) Jacquie Morgan

(13) Michelle Hiskins

(14) Julie McCamish

(15) Theodora Bitsolas

(16) Kerrie Riches

(17) Dorota Waryszewska

(18) Renata Papiernik

(19) Melissa Florey

(ii) Austin Health⁴³:

(1) Benjamin Van Den Berge

(2) Aimee Cummings

(3) Jennifer Cavanagh

(4) Rachelle Moore

(5) Anna Cummings

(6) Sylvia Jobson

(7) Snezana Vaselinovski

(8) Bethany Young

(9) Joy Steenveld

(10) Mark Capp-Perucic

(11) David Arsov

(iii) Northern Health⁴⁴:

(1) Nazih Beydoun

(2) Yen-Hsiang Perkoulidis

(3) Rose Phan

(iv) Peninsular Health⁴⁵:

(1) Nina Niedźwiedzka

(2) Martha Cleary

(3) Joyce Harris

(4) Shayne McCarthy

(5) Jennifer Walsh

(6) Michelle Sweatman

(7) Susan Findlay

(8) Sandra Duffield

(9) Amanda Toth

(10) Natalia Pidgeon

(v) Barwon Health⁴⁶:

(1) Rachel McCoy

(2) Sarah Hill

(3) Kylie Hayes

(4) Andisha Butterfiled

(5) Milijana Drenoski

(6) Bernie Franke

(7) Emma Zurawel

(8) Bernadette Jones

(9) Debra Farrell

(10) David Vuckovic

40. As outlined, the date of the raising of these disputes predated the directions by each Health Service to the initiating employee.

41. The correct process for the Dispute Process involved:

(a) Discussions in the first instance between the employee/s and the relevant supervisor; and

(b) If unresolved, by discussions between the Employee’s and more senior levels of local management.

42. These discussions are to take place within 14 days unless a longer time frame is mutually agreed.

43. No such additional timeframe was agreed by the Applicant’s.

44. After this time period the dispute can be referred to the Commission.

The Discipline Process

45. At all times, in accordance with Section 50⁴⁷ of the Fair Work Act, the relevant health services were required to not contravene a term of an enterprise agreement.

(a) The EBAs above apply to the staff that are the subject of the Industrial Dispute before the Commission in accordance with Section 52⁴⁸ of the Act.

(b) The EBAs above apply to the employing health services that are the subject of the Industrial Dispute before the Commission in accordance with Section 52⁴⁹ of the Act.

(c) The EBAs above are currently in operation in accordance with Section 54⁵⁰ of the Act.

46. With regard to Discipline, the relevant Clauses of the EBAs state:

(a) There are two steps in a disciplinary process under this clause as follows:

(i) Investigative Procedure; and

(ii) Disciplinary Procedure.

47. The Clause that relates to Discipline is to be read in conjunction with the People and Culture Performance and Behaviour Procedures, noting that:

(a) Nothing in the People and Culture Performance and Behaviour Procedures contradicts the relevant discipline clauses of the EBAs; and

(b) The People and Culture Performance and Behaviour Procedures only supplements, expands and provides the relevant context for the relevant discipline clauses of the EBAs.

48. As stated at [15] of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Telstra Corporation (C2003/2130)⁵¹ the “task of construing an agreement involves a search for the intention of the parties objectively determined. In the first instance that intention is to be discerned from the word of the agreement given their ordinary meaning”.

49. Separately, as initially outlined in Kilminster v Sun Newspapers Ltd [1931] HCA 37; 46 CLR 284⁵² and recently confirmed in Warren v Secretary, Attorney-General’s Department [2021] FCA 89⁵³ at [93]:

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

50. By analogy, such a distinction also refers to a benefit under an Enterprise Agreement.

51. The EBAs as outlined above have made a critical distinction as to the definition of misconduct and serious misconduct, providing an additional benefit to employees as they would have otherwise received under their Contract of Employment, National Employment Standards, the Fair Work Act 2009 (Cth) or he the Fair Work Regulations 2009 (Cth).

52. Serious Misconduct as referred to in the EBA’s is stated to be as defined in the act and that is both wilful and deliberate (emphasis ours).

53. In circumstances where the EBAs have deliberately amended the definition as found elsewhere in statutory instruments or any contract of employment, such amendment evidences the objective intention of the parties to be bound by such a change.

54. As such, Serious Misconduct for employees bound by these EBAs requires that in order to find such conduct is serious misconduct, it must be both wilful and deliberate.

55. It is submitted that this two step process, in addition to the process outlined further under the relevant clauses as they relate to investigation and discipline, also enlivens the People and Culture Performance and Behaviour Procedures, the procedure which states that it applied to all relevant Health employees.

56. Separately, the clauses as contained within the EBAs have not replicated the model clause under Schedule 6.1 of the Fair Work Regulations 2009 (Cth).

57. The parties to the EBA have made a conscious choice to expand upon the powers ordinarily conferred by the model disputes resolution clause.

58. In circumstances where parties have actively sought to include an expansive clause with regard to Dispute Resolution, there is a clear objective intention that can be drawn from such conduct, with such intention being that there is an intention to be bound by such an amended dispute resolution clause.

59. Both EBA’s include reference to to conduct of matters before the Commission and that the Commission will conduct the matter in accordance with:

(a) Section 577 of the Fair Work Act;

(b) Section 578 of the Fair Work Act; and

(c) Subdivision B of Division r of Parth 5-1 of the Fair Work Act, encompassing section 589 to 595 of the Fair Work Act.

60. 7.2 Allied Status quo and usual practice:

(a) While the dispute resolution procedure is being conducted work will continue normally according to the usual practice that existed before the dispute, until the dispute is resolved.

61. Finally Being Vaccinated is not an inherent requirement

(a) Gummow and Hayne JJ in X v Commonwealth⁵⁴ where it is stated at [101]:

(i) “Section 15(4)(a) contains a number of elements that must be taken into account in seeking to apply it. First, the inquiry is whether “because of [the person’s] disability” he or she would be unable to carry out the inherent requirements of the particular employment. That is, the search is for a causal relationship between disability and being unable to carry out the inherent requirements of that employment. Secondly, the provision applies only if the person would be unable to carry out those requirements. No doubt inability must be assessed in a practical way but it is inability, not difficulty, that must be demonstrated. Thirdly, the requirements to which reference must be made are the “inherent requirements of the particular employment”.”


(b) Elmes v Carpentaria Shire Council⁵⁵ where it is stated at [96]:

(i) “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. Gaudron J wrote that a practical method of determining whether or not a requirement is an “ inherent requirement “ in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with.”

62. Basis of Dispute:

(a) As to paragraph 17(a), Monash Health does not accept that your letter properly raises a relevant dispute so as to properly enliven the dispute resolution procedure under the Nurses EA. Other than referring to various clauses, your letter does not articulate any dispute in fact, arising in relation to the Nurses EA, the NES” and similar comments relating to administration staff.

(b) Your client also claims “it is clearly enough a colourable attempt to continue to restrain the potential termination of employment of persons you allege that you represent, sent less than 30 minutes after the Federal Court had rejected an application seeking to achieve that very outcome.”

(c) “Fair Work Commission in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2012], FWA 2045⁵⁶ at [27]-[28] and by the Federal Circuit Court in CEPU v Tasmanian Water Sewerage Corporation Pty Ltd [2015] FCCA 2382⁵⁷ at [61] due to the specific drafting of the EBAs as it relates to consultation and critically the definition of and specifically misconduct (eg in the case of nurses at clause 15.2.), as the “Investigation Procedure” has not been followed and nor has the disciplinary procedure, and the allegation arises on for the employer refusing to follow clause 99.

(d) The Investigation Procedure forms part of the dispute.

(e) The Disciplinary Procedure forms part of the dispute

(i) Procedure

(1) This procedure must be read in conjunction with any applicable industrial instrument (for example applicable enterprise agreement, award or contract of employment). This procedure is not intended to override any disciplinary process set out in the applicable industrial instrument but rather provides a minimum requirement in the event that no process is set out in the applicable industrial instrument.

(ii) Both EBAs Enlivens each other another policy - refer to

(1) Deliberate “done consciously and intentionally”.

(2) “Wilful (of a bad or harmful act) intentional”

(f) The reasonable steps form part of the dispute.

(i) Clause 99 forms part of the dispute (as it relates to your nurses reference to Nurses

(1) Those covered by this Agreement will take a pro-active approach to the prevention and management of workplace injuries to the highest level of protection reasonably practicable in the circumstances, and to the achievement of a reduction in workplace injuries through the implementation of risk management systems incorporating hazard identification, risk assessment and control, and safe work practices.

(2) 99.2 The Employer will implement the hierarchy of controls to control hazards and will eliminate the hazard at the source wherever practicable.

(ii) Clause 113 - Allied:

(1) The provisions of this Agreement will be read and interpreted in conjunction with the OHS Act as varied from time to time and the WIRC Act as varied from time to time, provided that where there is any inconsistency between a provision of this agreement and the aforementioned Victorian Acts, the Victorian Acts will prevail to the extent of any inconsistency.

(iii) 113.4 The parties to the Agreement recognise that consultation with Employees and their representatives is crucial to achieving a healthy and safe work environment for health and allied services Employees.

63. Jurisdiction

64. The matters that are the subject of the Industrial Disputes currently before the Fair Work Commission are subject to the jurisdiction of the Fair Work Commission as:

(a) Pursuant to the Dispute Resolution procedures of each EBA, discussions were attempted at the Workplace regarding the application of the EBAs, however the Health Services declined to engage or seek resolution of the matters in dispute despite repeated engagement;

(b) In the absence of engagement from the Health Services, there was no resolution at the Workplace; and

(c) As the matter was not resolved in the Workplace, the matter was properly referred to the Fair Work Commission for progression of the matter.

65. It is submitted that the agreements, being the EBAs as stated, apply in the particular circumstances of this matter.

66. Accordingly, the matter has been appropriately referred to the Fair Work Commission for conciliation and, in the absence of a conciliated outcome, arbitration.

67. As the matter now sits before the Fair Work Commission for dispute resolution, the matter is properly subject to the EBA clauses that relate to matters before the Commission.

68. The sections of the Fair Work Act that have been specifically enlivened in such a matter are:

(a) Section 577:

(i) The FWC must perform its functions and exercise its powers in a manner that:

(1) is fair and just; and

(2) is quick, informal and avoids unnecessary technicalities; and

(3) is open and transparent; and

(4) promotes harmonious and cooperative workplace relations.

(b) Section 578:

(i) In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(1) the objects of this Act, and any objects of the part of this Act; and

(2) equity, good conscience and the merits of the matter; and

(3) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

(c) As referred to in Section 578, the objects of the Act, being Section 3, which state that:

(i) The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(1) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(2) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(3) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(4) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(5) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(6) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(7) acknowledging the special circumstances of small and medium-sized businesses.

69. Accordingly, now that the matter is before the Commission, the Commission has broad powers as they relate to the matters being conducted.

70. In accordance with Section 589 of the Act, with regard to Procedural and Interim Decisions:

(a) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(b) The FWC may make an interim decision in relation to a matter before it.

(c) The FWC may make a decision under this section:

(i) on its own initiative; or

(ii) on application.

(d) This section does not limit the FWC’s power to make decisions.

Procedural and interim decisions Section 589(a).

71. The Respondents’ conduct, led by Monash warrants an interim decision in our respectful submission.

72. It is open to the Commission to make a decision about how the matter is to be dealt with.

73. As stated above, the correct process for the initial stages of this dispute were:

(a) Discussions in the first instance between the employee/s and the relevant supervisor; and

(b) If unresolved, by discussions between the Employee’s and more senior levels of local management; with

(c) These discussions are to take place within 14 days unless a longer time frame is mutually agreed.

74. Such conduct is entirely consistent with the EBA dispute resolution clauses as written, and would accord with the conduct that should take place prior to a conciliation by the Fair Work Commission.

75. There is no requirement that the Commission conduct such a conciliation in advance of making such a decision about how, when and where a matter is to be dealt with, including referring the matter back to the workplace for the process to be escalated in the matter envisioned by the EBAs.

76. Section 589(b).

77. In the matters currently before the Commission an interim decision in accordance with section 589(b) is being sought.

78. Section 589(b) of the Fair Work Act replicates section 111(1)(p)⁵⁸ of the Workplace Relations Act 1996 (Cth) in that it empowered the Australian Industrial Relations Commission to make an interim decision on a matter before it.

79. As stated at [57] of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Telstra Corporation (C2003/2130)⁵⁹:

provided there is a “proceeding before the Commission” s.111 applied as if the references in s.111 to “industrial dispute” includes a reference to that proceeding “unless the context otherwise requires” and it matters no whether the proceeding is “under [the] Act… or otherwise”.

80. It was also noted by the Commission at [64] of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Telstra Corporation (C2003/2130)⁶⁰:

In the absence of an indication to the contrary in the agreement, and particularly where the agreement is silent as to the power that the Commission may exercise in dealing with such disputes, it may be presumed that the parties intended the Commission to have such powers as are conferred on the Commission byu the Act that are necessary and appropriate for the resolution of disputes over the application of the agreement. This presumption is analogous to the presumption that operates where legislation confers a jurisdiction on an established court of tribunal as it finds it, with all incidents:

81. Accordingly, the Commission has the requisite powers to make such a decision as is being sought below.

82. It follows that it is within the power of the Commission to make such an interim decision in the matters currently before it that would allow for a decision that was made in order to facilitate an outcome that:

(a) is fair and just;

(b) promotes harmonious and cooperative workplace relations;

(c) is done in the furtherance, and in recognition of, equity, good conscience and the merits of the matter; and

(d) accounts for the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

83. The “Conveyor Belt’ nature of the actions of the Respondent’s, with specific reference to Monash Health and their continued termination of employees, including after these proceedings were commenced and were being heard, favours a interim order to pause the current proceedings and allow the Industrial Dispute processes, as required by the EBAs, to take place.

84. The nature of the interim order being sought is to:

(a) Direct all parties to engage in the consultation process as outlined in:

(i) Clause 99 of the Nurses EBA;

(ii) Clause 113 of the Allied Health and General Staff EBA;

(b) Direct the Respondent’s to allow collective consultation with respective industrial associations and members; and

(c) Direct that all dispute procedures are followed.

85. As part of the interim order, or as a separate interim order, the Applicant’s also seek specific disclosure from the Respondent that relates to:

(a) all HHS acting uniformly; and

(b) investigation policy and performance policies being disclosed.

86. Such an approach is consistent with:

(a) Functions Section 576(2aa) (2a):

(b) The FWC also has the following functions:

(i) (aa) promoting cooperative and productive workplace relations and preventing disputes;

(ii) (a) dealing with disputes as referred to in section 595;

(c) The EAs in question gave the Commission the most broad powers under s 595, expressly authorising same, in accordance with another provision of this Act; as the language is clear:

(d) Conduct of matters before the Commission

(i) Subject to any agreement between the parties to the dispute in relation to a particular dispute or grievance and the provisions of this clause, in dealing with a dispute or grievance through conciliation or arbitration, the Commission will conduct the matter in accordance with sections 577, 578 and Subdivision B of Division 3 of Part 5-1 of the Act.

(ii) A party to the dispute may choose to be represented at any stage by a representative including a Union or employer organisation. A representative, including a Union or employer organisation on behalf of an Employer, may initiate a dispute.

(e) Obligations

(i) The parties to the dispute and their representatives must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.

(f) Conduct of matters before the Commission

(i) Subject to any agreement between the parties to the dispute in relation to a particular dispute or grievance and the provisions of this clause, in dealing with a dispute or grievance through conciliation or arbitration, the Commission will conduct the matter in accordance with sections 577, 578 and Subdivision B of Division 3 of Part 5-1 of the Act.

May it please the Commission

Filed on behalf of the Applicants

 1   Public Health and Wellbeing Act 2008 (Vic), s.200(1)(d).

 2   [2021] FWC 6309 at [24]-[25]

 3   CEPU v Telstra Corporation (PR933892) per Lawler VP at [88]

 4   Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [81]-[84]

 5   QNurses First Inc v Monash Health [2021] FCA 1372 at [19]-[20]

 6   Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19] and [65]-[71]; Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at [153]

 7   Ibid at [65]-[71]

 8   Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-3.

 9   Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 at [15]

 10   Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWC 6309 at [24], citing Snaden J in QNurses First Inc v Monash Health [2021] FCA 1372 at [19]

 11   AMWU v Eaton Electrical Systems Pty Ltd (2005) 139 IR 260 at 266; CFMMEU v BHP Coal Pty Ltd [2011] FCA 971 at [29]; QNurses First Inc v Monash Health [2021] FCA 1372 at [39]

¹² Explanatory Memorandum, Fair Work Bill 2009 (Cth).

¹³

Fair Work (Commonwealth Powers) Act 2009 (Vic).

¹⁴ Public Health and Wellbeing Act 2008 (Vic).

¹⁵ Affidavit of Heffernan, affirmed 22 October 2021 [4], [17].

¹⁶ See, for example, COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 10) (Annexure MH-4 to the Affidavit of Heffernan affirmed 22 October 2021).

¹⁷ Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) [2021] QIRC 356.

¹⁸ R v Darling Island Stevedoring and Lighter; ex parte Halliday and Sullivan (1948) 60 CLR 601.

¹⁹ Bennett v President, Human Rights and Equal Opportunity Commission [2003] FCA 1433.

²⁰ Bradley v Solarig Australia Pty Ltd [2021] FWC 2805.

²¹ Whittaker v Unisysis Australia Pty Ltd [2010] VSC 9.

²² Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092.

²³ Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115.

²⁴ QNurses First Inc v Monash Health [2021] FCA 1372.

²⁵ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-01.

²⁶ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-03.

²⁷ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-04.

²⁸ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-06.

²⁹ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-08.

³⁰ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-10.

³¹ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-12.

³² Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-15.

³³ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-17

³⁴ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-02.

³⁵ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-05.

³⁶ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-07.

³⁷ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-09.

³⁸ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-11.

³⁹ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-13.

⁴⁰ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-14.

⁴¹ Witness Statement of Prathnaa Sita Haripersad Dated 11 November 2021, Annexure PH-16.

⁴² As per Schedule A - Nurses and Schedule A - Allied Health filed on 2 November 2021.

⁴³ As per Schedule A - Nurses and Schedule A - Allied Health filed on 8 November 2021.

⁴⁴ As per Schedule A - Nurses and Schedule A - Allied Health filed on 5 November 2021.

⁴⁵ As per Schedule A - Nurses and Schedule A - Allied Health filed on 5 November 2021.

⁴⁶ As per Schedule A - Nurses and Schedule A - Allied Health filed on 8 November 2021.

⁴⁷ Fair Work Act 2009 (Cth) s50.

⁴⁸ Ibid s52.

⁴⁹ Ibid.

⁵⁰ Ibid s54.

⁵¹ Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Telstra Corporation (C2003/2130.

⁵² Kilminster v Sun Newspapers Ltd [1931] HCA 37; 46 CLR 284.

⁵³ Warren v Secretary, Attorney-General’s Department [2021] FCA 89.

⁵⁴ X v Commonwealth [1999] HCA 63.

⁵⁵ Elmes v Carpentaria Shire Council [2016] QIRC 118.

⁵⁶ Fair Work Commission in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2012], FWA 2045.

⁵⁷ CEPU v Tasmanian Water Sewerage Corporation Pty Ltd [2015] FCCA 2382.

⁵⁸ Workplace Relations Act 1996 (Cth) s111(1)(p).

⁵⁹ Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Telstra Corporation (C2003/2130).

⁶⁰ ibid.