Fair Work Act 2009
s.394—Unfair dismissal

Jason Pintley & Ors
v
DP World Sydney Limited & Ors
(U2021/10151 & Ors)

Applications for an unfair dismissal remedy – Whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees), within the meaning of s. 387(a) of the Fair Work Act 2009.

Overview

[1] This decision concerns applications to the Fair Work Commission (Commission) made by 25 former employees of DP World Sydney Limited (DP World Sydney) and DP World Brisbane Pty Ltd (DP World Brisbane) (collectively, the Respondents/DP World/Company). The applications were made under s. 394 of the Fair Work Act 2009 (the FW Act) and each of the Applicants seeks a remedy for unfair dismissal.

[2] The Respondents are subsidiary companies wholly owned by DP World Australia Limited (DP World). DP World is the holding company of a national container stevedoring business which operates at four different shipping container terminals in Sydney, Brisbane, Melbourne and Fremantle with each terminal operated by a separate and wholly owned subsidiary. The Respondents respectively operate the Sydney Terminal located at Port Botany and the Brisbane Terminal located on Fisherman Island.

[3] From 21 October 2021, the DP World Australia COVID – 19 Vaccination Mandate (Mandate) was adopted, requiring that employees be vaccinated against COVID – 19 by dates specified in the Mandate, which varied, depending on their location. Employees were also required to inform DP World of their vaccination status and provide evidence of this. Each of the Applicants was dismissed for non-compliance with the Mandate. The information set out in the Form F2 Applications filed by each Applicant indicates that dismissals of those employed in New South Wales mostly took effect on or around 25 October 2021, while most of the Applicants employed in Queensland were notified and dismissed with effect from 17 November 2021.

[4] The Construction, Forestry, Maritime, Mining and Energy Union – Maritime Union of Australia Division (MUA) represented 22 Applicants. The case for those Applicants was conducted by the MUA’s National Legal Officer, Mr Kirk Bond. Four of the Applicants were self-represented. The names of each Applicant, the matter numbers for each application and details of representation, are set out in Appendix A to this Decision. For reasons set out in the procedural history below, permission was granted pursuant to s. 596 of the FW Act for the Respondent to be legally represented and Mr Steven Crilly of Seyfarth Shaw Australia represented the Respondents. Also as detailed in the procedural history, only the question of whether there was a valid reason for the dismissals within the provisions of s. 387(a) is determined in this decision.

[5] In summary, the Applicants represented by the MUA contended that the Mandate was not reasonable direction because the Respondents failed to comply with consultation requirements in the Work Health and Safety Act 2011 (NSW) and the Work Health and Safety Act 2011 (Qld) (collectively the WHS Acts). The MUA also contended on behalf of those it represented that the Respondents failed to comply with consultation requirements in relevant enterprise agreements concerning changes to workplace health and safety matters and that the Mandate was inconsistent with the intent of the Agreements. The MUA did not contend that the Respondents failed to meet obligations to consult under the general consultation provisions in the Agreements. This omission is a matter to which I will return later in this decision.

[6] Further, the MUA contended that the Mandate was inconsistent with the provisions of the Privacy Act 1988 (Cth) and that it infringed the rights of the represented Applicants to bodily integrity. These matters were said to “buttress” the MUA’s submission that the Mandate was not a reasonable direction. Accordingly, a refusal on the part of the Applicants to comply with the Mandate was not a valid reason for dismissal.

[7] Central to that contention was the proposition that the decision of a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal 1 (Mt Arthur Coal) is dispositive of the issue for determination, and that if I follow that decision, as I am required to do, “DP World loses”. This proposition was founded on the following assertions:

•  The Site Access Requirement (SAR) considered by the Full Bench in Mt Arthur Coal has the same effect as the Mandate in the present case;

•  The Full Bench in Mt Arthur Coal found that the SAR was not a lawful and reasonable direction due to a failure on the part of the employer to comply with consultation obligations under the same terms of the WHS Acts relevant in the present case;

•  The consultation engaged in by the employer in Mt Arthur Coal was comprehensive compared to a total lack of consultation engaged in by DP World; and

•  Consistent with the decision of the Full Bench in Mt Arthur Coal, I am bound to find that failure on the part of employees to comply with the Mandate is not a refusal to follow a lawful and reasonable direction and therefore does not constitute a valid reason for dismissal as encompassed in the consideration in s. 387(a) of the FW Act.

[8] The self-represented Applicants raised various additional issues relating to the lawfulness and reasonableness of the Mandate. These can be broadly categorised as: medical and scientific issues, going to the efficacy, effects and the approval of various vaccinations for use; legal issues said to arise under Australian and international law; and practical issues including the necessity of implementing the Mandate and whether other control measures could have been taken to mitigate the risks of COVID – 19 to the Respondents’ workforce.

[9] Section 396 of the FW Act requires that I be satisfied of specified matters before considering the merits of the application. In relation to each of the applications subject of this Decision, I am satisfied that:

a) the applications were made within the time required in s. 394(2);

b) other than Mr Clarke in matter U2021/11009, it is not in dispute that the Applicants are persons protected from unfair dismissal;

c) the Respondents are not small businesses and the Small Business Fair Dismissal Code does not apply; and

d) the Applicants were not dismissed on the ground of redundancy.

[10] Before considering the question for determination, it is necessary to set out some of the procedural history of the applications.

Procedural history

Legal Representation

[11] Section 596(2) of the FW Act allows the Commission discretion to grant permission for a person to be represented by a lawyer, in a matter where the Commission is satisfied that any of three circumstances set out in the section is present, and provides as follows:

“596 Representation by lawyers and paid agents

(2)  The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a)  it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or      

(b)  it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c)  it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”

[12] As previously noted, the Respondents sought permission to be represented in the proceedings by lawyer. In support of permission being granted, the Respondents relied on s. 596(2)(a) and submitted that legal representation would allow the matter to be dealt with more efficiently, having regard to its complexity and other features and pointed to the following matters in issue in these proceedings, in support of this submission:

“(a) The root question of whether the impugned vaccine mandate was lawful and reasonable, which is an issue subject to a lengthy and at times complex corpus of authorities.

(b) Whether DP World complied with unspecified consultation obligations, which is a mixed question of fact and law dependent on the construction of the relevant enterprise agreement and/or legislation, and any relevant authorities called in aid by the parties.

(c) Whether the mandate was inconsistent with the intent of the DP World Sydney Enterprise Agreement 2020 and the DP World Brisbane Enterprise Agreement 2020 each of which contain specific provisions dealing with policies inconsistent with the intention. This issue was the subject of separate (now discontinued) proceedings in matter C2021/6927, in which DP World’s present solicitors also acted.

(d) A range of matters raised in applications by unrepresented parties, which raise a range of legal issues including, without limitation, the relevance of the Commonwealth Criminal Code, the construction of the Australian Constitution section 51(xxiiiA), and recourse to international law.”

[13] This was said to be more than an arbitral decision being applied to a simple factual contest and to call for the Commission to form opinions in relation to significant questions of law. The Respondents also submitted that while the present matter is complex, this is not a requirement. Further, the Respondents submitted that in the present case there are a large number of applications and there is a continued dispute about how those applications are to be case managed and heard so that the assistance of legal practitioners experienced in conducting larger scale litigation will assist in dealing with the matters efficiently.

[14] The MUA filed a detailed submission in opposition to the Respondents being granted permission to be legally represented. The MEU referred to qualifications of various in-house industrial relations and human resource management specialists employed by the Respondent and contended that the Commission should find that:

“It is disingenuous and arbitrary to claim that the Respondents are not large companies, and that their experienced internal staff are incapable of representing the Respondents due to other commitments. It is unreasonable to suggest that the Respondents’ experienced internal advocates “cannot be expected to dedicate all of their time to running litigation” whilst the MUA’s internal legal officer is expected to.”

[15] The MUA also submitted that it is the Respondents who created this cumbersome situation by dismissing employees “en masse” and that the Respondents knew, or should have known, that a large number of those employees would lodge unfair dismissal applications and that the Company would have to represent itself in those proceedings unless it could obtain permission from the Commission to be represented by lawyers. The Company cannot say that it would be burdensome for it to self-represent when both the Commission and the MUA are burdened by the Company’s decisions.

[16] It was also submitted that the MUA’s legal officer has about 4 months of Australian legal practice experience compared to the Respondents’ internal human resources and legal advocate resources being extensive and well-experienced and that on this basis it could not be reasonably suggested that denying permission for external legal representation would manifest any unfairness between the parties. Further, it was submitted that whilst the Applicants may be represented by an MUA legal officer, s 596(3) does not require permission for representation be made by the MUA. For this reason, any comparison between representation for the Respondents and for the MUA’s members is irrelevant in any consideration of fairness between the parties.

[17] After considering the submissions of the parties I granted permission for the Respondent to be represented by a lawyer on the basis that I was satisfied that it would enable the matter to be dealt with more efficiently having regard to its complexity. In reaching this conclusion I had regard to the central question in dispute as to whether the Mandate was lawful and reasonable, and the competing submissions of the parties in relation to the relevance and application of Full Bench authority. I also had regard to the duty of legal practitioners to assist justice being done according to law and to the fact that the MUA members were represented by the Union’s National Legal Officer, who is legally qualified. Further, I noted that the Applicants who were not represented by the MUA initially sought to be represented by lawyers who then withdrew from the proceedings. Further, I had regard to the plethora of matters raised by the self-represented Applicants, many of which had been determined in proceedings before Courts and the Commission, in a manner that is binding on me, and the need to ensure that this did not disrupt and extend the proceedings. Four Applicants, namely, Mr Jason Pintley, Mr Kevin MacDonald, Mr Zoltan Nemeth and Mr Richard Taylor, are self-represented.

Hearing of applications

[18] After the applications were allocated to me for determination, I conducted a case management hearing for all matters on the basis that they involve common factual circumstances. At the case management hearing conducted on 22 December 2021, it was agreed between the parties that, before listing each matter for a hearing to determine whether each individual Applicant was unfairly dismissed, an initial hearing would be conducted for the purpose of determining whether there was a valid reason for the dismissals related to the employees’ capacity or conduct (including its effect on the safety and welfare of other employees), as provided in s. 387(a) of the FW Act (valid reason).

[19] I expressed a provisional view that the most efficient and cost-effective manner for the initial hearing in relation to valid reason to be conducted would be for all matters to be heard concurrently at a single hearing so that evidence could be given at a single hearing, rather than at multiple hearings. While the Respondent and some of the self-represented Applicants agreed with this approach, it was opposed by the MUA. Given the disagreement between the parties as to the form of the initial hearing, Directions were issued on 24 December 2021 requiring any party who opposed the initial hearing of the matters being held concurrently to file an outline of submissions setting out the basis of their opposition. Parties were also given the opportunity to provide any written submissions in response.

[20] The MUA contended that the applications brought against DP World Sydney should be heard separately from those brought against DP World Brisbane and that self-represented Applicants or those represented by outside lawyers or paid agents should have their matters dealt with separately. The MUA maintained that combining all matters into a single hearing would be unfair to the Applicants represented by the MUA. In this regard, the MUA submitted that it was relying on narrow and specific grounds within the jurisdiction of the Commission to challenge the dismissals while at least some of the other Applicants intended to challenge the termination of their employment on a wide range of grounds.

[21] The MUA submitted that it intended to show that the Respondents did not have a valid reason for terminating the employment of its members for reasons including lack of consultation with the MUA pursuant to the health and safety provisions of relevant enterprise agreements. The MUA and its members should not have to participate in proceedings dealing with evidence that is irrelevant to their applications and the Union’s National Legal Officer should not have to spend his time participating in lengthy proceedings involving persons who are not union members and are pursuing arguments that the Union believes are baseless. Further, it was submitted that MUA members who have paid Union fees should not have their cases joined with persons who have not paid union fees or have ceased to do so because they were unhappy with the way the Union had dealt with the Respondents in relation to the Mandate.

[22] The Respondents supported a concurrent hearing of the applications, submitting that the Commission has a broad discretion to inform itself in relation to any matter before it in such manner as it considers appropriate, including in relation to the taking of evidence and holding of hearings. Reference was also made to the objects of the FW Act and equity, good conscience, and the merits of the matter and to s. 577 which requires the Commission to perform its function in a way that is fair and just, quick and informal and avoids unnecessary technicalities. The Respondents also submitted that the issue before the Commission is not whether there should be a joinder of parties to a proceeding, but rather whether separate proceedings should be heard together. Regardless, the overall principle is to achieve a just resolution of the dispute having regard to the desirability of limiting costs and delay. 2

[23] In response to specific issues identified by the MUA, it was submitted that the decisions made by each Respondent are not unconnected and there is no reason why the hearing of evidence germane to the cases against each Respondent separately is more cost-effective than a common hearing, relevant provisions of the enterprise agreements are common and it will be more efficient and cost-effective to have a single hearing, as conceded by the Union. The wide range of matters that may be agitated by the unrepresented parties will not necessarily delay proceedings given that many of these issues have been rejected by courts in an overwhelmingly persuasive way or dealt with by the Commission and are self-evidently wrong and can be dealt with briefly in written submissions.

[24] The submission that Union members should not have to contend with the presence of parties who are hostile to them was said to be irrelevant and contrary to the realities of the Australian waterfront, a notoriously robust environment. The MUA submission objecting to “free riders” should not be countenanced based on freedom of association provisions in the FW Act. Further, the Respondent submitted that the question of whether there was a valid reason for the dismissals will turn on common issues and should not have a different answer depending on who is representing an Applicant. Like cases should be treated alike and the Commission should have the opportunity to consider all arguments relating to valid reason together. Otherwise, either those cases considered first are in a lesser position, or the Commission must delay the resolution of their applications. According to the Respondent, there is no compelling reason for the Commission adopting a course other than hearing the applications together.

[25] On 6 January 2022, Mr Jason Pintley, one of the self-represented Applicants, set out in his email correspondence that he disagreed with the initial hearing of the matters being held concurrently. Mr Pintley contended that the fact that his employment was terminated based on his non-compliance with the Mandate, while he was on a period of absence on workers’ compensation, meant that his individual circumstances raised different issues from the other applications and thus his matter should be separately heard.

[26] At a second case management hearing conducted on 25 February 2022, Mr Crilly submitted that, while the individual circumstance of Mr Pintley may be a matter that Mr Pintley may wish to raise and would no doubt form part of the assessment of the individual circumstances of his dismissal, the issue of whether the non-compliance with the Mandate provided a valid reason for the dismissals remains a core question that requires determination and is equally relevant to Mr Pintley’s case as to the cases of all other Applicants in these proceedings.

[27] Having considered the submissions and material, I indicated to the parties that I was satisfied that conducting a hearing of the matters concurrently to determine the issue of valid reason was the most efficient way to deal with the matters and is consistent with the discretion of the Commission to inform itself as it considers appropriate, pursuant to s. 590 of the FW Act, including determining the manner in which evidence is taken and a hearing is conducted. In reaching this decision, I also had regard to s. 577 of the FW Act which requires the Commission to perform its functions and exercise its power in a manner that is fair and just; quick, informal and avoids unnecessary technicalities; and open and transparent. I was satisfied that a single hearing would be the most efficient use of Commission resources as well as the resources of the parties and would achieve a time- and cost-effective resolution of key aspects of the dispute so that the common issues would not be required to be dealt with in different or separate proceedings. I was also satisfied that an initial hearing, conducted in this manner, would not create any impediment to the case the parties are seeking to run and would not result in any injustice to any of the parties.

Directions for hearing

[28] Directions issued on 24 December 2021 required the filing and service of outlines of submissions and the witness statements each party intends to rely on at the initial hearing addressing the matters in s. 387(a) of the FW Act pertaining to valid reason. The parties were also directed to provide material in reply to the material filed by the other party.

[29] The MUA filed witness statements from the following persons in support of the Applicants it represents:

•  Mr Bradley Dunn, Divisional Assistant Sydney Branch Secretary of the MUA 3; and

• Mr Matthew Lewis, MUA member and an employee of DP World Sydney who is appointed as a Health and Safety Representative and Chairman of the Work Health Safety Committee 4; and

• Mr Keiron Carty, MUA member and an employee of DP World Brisbane who was appointed as a Health and Safety Representative until July 2021 5.

[30] Material was filed by Mr Jason Pintley 6, Mr Kevin MacDonald7 and Mr Zoltan Nemeth8. Mr Richard Taylor did not file material but indicated his support for the submissions of Mr Nemeth. In February 2022, material in reply was received from the Respondents, Mr MacDonald, Mr Nemeth and Mr Pintley and the MUA on behalf of the 22 represented Applicants. Notwithstanding that the material filed by the self-represented Applicants did not delineate submissions from evidence, I received it and I have considered the matters raised by those Applicants.

[31] Witness Statements for the Respondents were made by:

•  Mr Mark Hulme, Chief Operating Officer – Terminals for DP World Australia Limited; 9

• Mr Scott Eddie, General Manager Operations for DP World Sydney 10; and

•  Mr Benjamin Hanley, General Manager Operations for DP World Brisbane 11.

[32] The hearing was conducted by video on 30 and 31 March. Post hearing closing submissions were filed in writing in June and an oral hearing was conducted on 9 September 2022 due to the parties not being available for an earlier date on which I sought to schedule the hearing.

Relevant legislative provisions and case law

Section 387 matters required to be taken into account

[33] In considering whether an employee was unfairly dismissed on the basis that the dismissal was harsh, unjust or unreasonable, s. 387 of the FW Act requires the Commission to take into account each of the matters set out in subsections (a) – (h). To take a matter into account means that it is a “relevant consideration” 12 in the Peko Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters means that each matter set out in s. 387(a) – (h), insofar as it is relevant, must be treated as a matter of significance in the decision making process. This involves evaluating each matter and giving it due weight having regard to all the other relevant factors.13

[34] As a Full Bench of the Commission said in Sydney Trains v Gary Hilder 14 (Hilder):

[24] … Section 387 requires that in in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account each of the matters set out in paragraphs (a)-(h) of the section. That requirement can only be read as applicable to each element of the trilogy – that is, a finding that a dismissal is or not harsh, is or is not unjust, or is or is not unreasonable must in each case be founded on a consideration of all the matters set out in s 387(a)-(h).

[35] Relevantly, Section 387(a) requires the Commission to consider “whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)”. Where a dismissal relates to conduct of the employee, it is necessary to determine whether the matter was of sufficient gravity to constitute a sound, defensible and well-founded (and therefor valid) reason for dismissal. 15 Where the dismissal relates to the capacity of the employee to do his or her job, the Commission is required to consider and make findings on whether, at the time of the dismissal, the Applicant suffered from the alleged incapacity based on relevant medical and other evidence before the Commission.16 In short, in all circumstances the focus in s. 387(a) is on facts and circumstances existing at the time of the dismissal.

[36] In Sydney Trains v Gary Hilder, 17 a Full Bench of the Commission set out the principles applicable to the consideration required under s. 387(a) as follows:

“(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.”

[37] In Newton v Toll Transport Pty Ltd, a Full Bench of the Commission said: (citations omitted):

“[65] The Commission is bound to determine whether, on the evidence provided, facts existed at the time of termination that justified the dismissal. Contrary to the Appellant’s submission, in determining whether there was a valid reason for the dismissal the Commission is not confined to the reason advanced by the employer (either at the time of dismissal or during the course of the subsequent hearing). A valid reason for dismissal can be any valid reason underpinned by the evidence provided to the Commission.” 18

[38] In support of this conclusion, the Full Bench in Newton v Toll Transport Pty Ltd cited Byrne v Australian Airlines Ltd. 19 In that case, Brennan, Dawson and Toohey JJ held that “…facts which existed at the time of a dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable”.20 McHugh and Gummow JJ in similar terms held that the respondent employer could resist the allegation of breach of an award requirement that termination of employment not be harsh, unjust or unreasonable, provided that the evidence concerned circumstances in existence when the decision to terminate employment was made.21

[39] It is well established that a refusal on the part of an employee to comply with a lawful and reasonable direction, will generally constitute a valid reason for dismissal. The seminal decision concerning the requirement of employees to follow their employer’s lawful and reasonable directions is R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday 22 (Darling Island Stevedoring) in which Dixon J summarised the common law position as follows:

“Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable.

In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.”

[40] Darling Island Stevedoring and later cases considering the duty of employees to follow lawful and reasonable directions given by their employer, were extensively considered in Mt Arthur Coal and are relevant in the present case. Given the central relevance to the MEU’s case of the Full Bench decision in Mt Arthur Coal, it is necessary to consider that decision in detail.

Mt Arthur Coal

Context in which Mt Arthur Coal was decided

[41] I commence with an examination of the context in which Mt Arthur Coal decided. The Full Bench was determining an application for the Commission to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement. The dispute concerned the announcement by Mt Arthur Coal of the implementation of a Site Access Requirement (SAR) on 7 October 2021, which required employees to have one dose of an approved COVID-19 Vaccination by 9 November 2021 and to be fully vaccinated by 20 January 2022 and to provide evidence of their compliance by those dates. The question for determination, as agreed by the parties, was whether the SAR was a lawful and reasonable direction with respect to employees at the Mine covered by an enterprise agreement.

[42] The Applicant in the matter was the Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division (MEU). The application was made on 21 October 2021 – some 20 days in advance of the date the requirement was to commence. On 2 November 2021, the MEU applied to the Commission for interim relief, the effect of which was to permit employees who were unvaccinated to work at the Mine without satisfying the requirement. The Full Bench refused to grant relief in the form sought by the MEU and instead accepted undertakings from the employer including that the outcomes of any disciplinary process associated with a refusal to comply with the requirement would not be implemented until the Full Bench had delivered its decision and employees were given an opportunity to consider their position in light of the decision. The matter was heard on 24 and 25 November 2021 and the decision of the Full Bench was delivered on 3 December. In its decision the Full Bench made findings which can be characterised as conclusions of a legal character and findings of fact in relation to medical, scientific and epidemiological justification for the SAR.

The approach to deciding whether a direction was lawful and reasonable

[43] In terms of legal conclusions, the Full Bench noted that there was nothing in public health orders, the relevant enterprise agreement or express terms of the employees’ contracts, that would provide a legal basis for the SAR. Accordingly, the Full Bench observed that the basis for the SAR must derive from the term implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of their employer and that such a term is implied, by law, in the absence of a contrary intention of the parties.

[44] After setting out passages from Darling Island Stevedoring¸ the Full Bench noted that the Full Federal Court in One Key Workforce Pty Ltd v CFMEU 23 adopted a slightly different formulation of the implied term stating that:

“The duty of the employee at common law is to obey lawful orders. The “standard or test” by which the common law determines whether the order is lawful is one of reasonableness: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621. Dixon J explained at 621–2:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.

As Finn J observed in McManus v Scott-Charlton (1996) 70 FCR 16 at 21:

The need for some such limitation is patent: employment does not entail the total subordination of an employee’s autonomy to the commands of the employer. As was said by the President in Australian Tramway Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42:

A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.

There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case.” 24 

[45] The Full Bench went on to make some general observations, which can be summarised as follows:

•  A lawful direction falls within the scope of the employee’s employment and includes instructions incidental to that work;

•  Employer directions which endanger an employee’s s life or health, or which the employee reasonably believes will endanger his or her life or health are not lawful orders unless the nature of the work is inherently dangerous and the employee has contracted to undertake the risk;

•  The order or direction must be lawful in the sense that the employee cannot be instructed to do something that is unlawful;

•  Employees are only obliged to comply with employer directions that are lawful and reasonable;

•  Reasonableness is a question of fact having regard to all the circumstances, and what is reasonable may depend, among other things, on the nature of the particular employment; 25

• The employer is not required to demonstrate that the direction issued was the preferable or most appropriate course of action or in accordance with best practice, or in the interests of the parties. 26

[46] The Full Bench in Mt Arthur Coal also cited the following passage from the judgment of Dixon J in Darling Island Stevedoring:

“But what is reasonable is not to be determined so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service.” 27 

[47] The Full Bench went on to conclude that:

[96] Whether a particular direction is reasonable is not to be determined in a vacuum, it requires consideration of all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship. In NSW, this would include consideration of obligations in the WHS Act, which governs employment relationships in that jurisdiction. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis. The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction.

Consultation obligations

[48] The Full Bench in Mt Arthur Coal considered cases about what constitutes consultation for the purposes of the WHS Act (NSW) and consultation terms found in industrial instruments, and drew from those cases, the following propositions (citations omitted):

•  the content of any specific requirement to consult is necessarily dictated by the precise terms in which such a requirement is expressed; the nature of the factual or legal issues the subject of the requirement; and the factual context in which the requirement is exercised, including the particular circumstances of the persons with whom there must be consultation;

•  a responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account;

•  the consultation needs to be real; it must not be a merely formal or perfunctory exercise;

•  even though management retained the right to make the final decision, it is not to be assumed that the required consultation was to be a formality. Management has no monopoly of knowledge and understanding of how a business operates, or of the wisdom to make the right decisions about it. The process of consultation is designed to assist management, by giving it access to ideas from employees, as well as to assist employees to point out aspects of a proposal that will produce negative consequences and suggest ways to eliminate or alleviate those consequences;

•  the party to be consulted [must] be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon;

•  while the word ‘consultation’ always carries with it a consequential requirement for the affording of a meaningful opportunity to the party being consulted to present those views, what will constitute such an opportunity will vary according [to] the nature and circumstances of the case. In other words, what will amount to ‘consultation’ has about it an inherent flexibility;

•  a right to be consulted, though a valuable right, is not a right of veto;

•  the consultation obligation is not concerned with a likelihood of success of the process, only to ensure that it occurs before a decision is made to implement a proposal;

•  an ordinary understanding of the word “consult” would suggest that the obligation to consult does not carry with it any obligation either to seek or to reach agreement on the subject for consultation. Consultation is not an exercise in collaborative decision-making. All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made;

•  the requirement to consult affected workers would … not be satisfied by providing the employees with a mere opportunity to be heard; the requirement involves both extending to affected workers an opportunity to be heard and an entitlement to have their views taken into account when a decision is made;

•  genuine consultation would generally take place where a process of decision-making is still at a formative stage;

•  the opportunity to consult must be a real opportunity not simply an after thought;

•  consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal;

•  there is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, ‘this is what is going to be done’ and saying to that person ‘I’m thinking of doing this; what have you got to say about that?’. Only in the latter case is there ‘consultation’;

•  it is implicit in the obligation to consult that a genuine opportunity be provided for the affected party to attempt to persuade the decision-maker to adopt a different course of action. If a change has already been implemented or if the employer has already made a definite or irrevocable decision to implement a change then subsequent ‘consultation’ is robbed of this essential characteristic; and

•  any offer to consult in relation to the matter was in the context that the respondent had already made an irrevocable decision, then the party had not, to use his Honour's words, consulted about the decision in any meaningful way.” 

[49] The Full Bench went on to find that these propositions contain contextual material relevant to consultation obligations and that the content of any specific requirement to consult is determined by context, including the precise terms in which it is expressed in an applicable industrial instrument, contract or legislation, including the circumstances in which the consultation obligation is enlivened. Also relevant is the factual context in which the requirement arises, including the size and nature of the business, the nature of the change and the impact of that change on persons who are required to be consulted, and whether the factual circumstances dictate a quick response. 28

Medical, scientific and epidemiological findings

[50] The Full Bench found that the following uncontentious factual propositions were established on the evidence:

“1. COVID-19 involves a high burden of disease, greater than influenza.

2. Any infected person is at risk of developing serious illness from the virus, which may lead to death.

3. The risks posed by COVID-19 have changed with the rapid rise of the Delta variant which is more infectious and has more severe health effects than previous variants.

4. All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection, including from the Delta variant.

5. All COVID-19 vaccines currently available in Australia substantially reduce the risk of serious illness or death, including from the Delta variant.

6. All COVID-19 vaccines currently available in Australia are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.

7. An unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person.

8. While other measures, such as mask wearing, and social distancing, are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquires an infection.

9. Vaccination is the most effective and efficient control available to combat the risks posed by COVID-19.

10. Even with high vaccine rates in the community, COVID-19 will remain a significant hazard in any workplace in which there is a possibility that people will interact or use the same common spaces (even at separate times). The Mine is clearly such a workplace.” 29

[51] The Full Bench did not accept a contested proposition advanced by the employer that: “The idea that higher rates of vaccination decrease the risks to an unvaccinated person inform the submissions of the [unions]. This idea is a dangerous fallacy that if accepted, would put everyone at risk.” However, the Full Bench did accept eight subsidiary propositions as follows:

“1. Herd immunity will never be achieved.

2. A vaccinated person can be infected with COVID-19.

3. A vaccinated person who is infected can efficiently transmit the virus.

4. Vaccination shortens the period when a person is infectious, for which reason vaccination reduces the overall risk of infection.

5. Notwithstanding that vaccination reduces the overall risk of infection, there is still a risk that an unvaccinated person will be infected.

6. Once a vaccinated person is infected, there is a substantially reduced risk of serious illness or death.

7. Once an unvaccinated person is infected, there is no such control against the risk of serious infection or death. Vaccination is the only protection against serious illness or death, the only control that protects against serious illness or death once a person is infected.

8. Vaccination is the most effective control measure currently available.” 30

[52] While not accepting the contested proposition, the Full Bench went on to find that:

“[61] … an unvaccinated person is more likely to acquire COVID-19 from another unvaccinated person, rather than a vaccinated person. It follows, as a matter of logic, from this proposition that higher rates of vaccination decrease the chance that an unvaccinated person will acquire COVID-19 because an unvaccinated person is less likely to acquire COVID-19 from a vaccinated person than an unvaccinated person.  In this sense, higher rates of vaccination do decrease the risks to an unvaccinated person. However, as Professor McLaws and Witness R5 made clear in their evidence, higher rates of vaccination do not remove the risk of COVID-19 infection for unvaccinated workers. That is because unvaccinated workers are at risk of catching COVID-19 from other unvaccinated workers and fully vaccinated workers, who can acquire COVID-19 and efficiently transmit the disease to others. Indeed, unvaccinated people are more likely to acquire COVID-19 compared with vaccinated people. Further, unvaccinated workers on a work site increase the risk of spreading COVID-19 to vaccinated workers and other unvaccinated workers. In turn, those persons are at risk of spreading COVID-19 outside the workplace to their families and friends.

[62] …the rates of infection of COVID-19…throughout Australia, are likely to increase over time as movement restrictions ease, with the result that it is inevitable that everyone who works on the Mine will come into contact with someone – probably many people – who are infected with COVID-19. Witness R5 [an expert medical witness] went on to express his opinion that ‘with reopening the virus will spread through Australia, and [although] the timing in the given locations [is] not exact, but in time it will spread to all locations, and be present in all work places’. When COVID-19 does so spread, those who remain unvaccinated are at greatest risk of acquiring COVID-19, becoming seriously ill or dying from acquiring COVID-19, and infecting other people with whom they come into contact. We note here that the likely spread of COVID-19 with the easing of travel restrictions and the associated uncertainty.”

Workplace Health and Safety Acts

[53] The WHS Act (NSW) considered by the Full Bench in Mt Arthur Coal and the WHS Act Queensland (which is also relevant in the present case) are relevantly identical and are based on model laws which have been enacted in all jurisdictions except Victoria and Western Australia. The following requirements in relation to consultation, are found s. ss. 47 – 49.

“47 Duty to consult workers

(1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

Maximum penalty—

(a) in the case of an individual—230 penalty units, or

(b) in the case of a body corporate—1,155 penalty units.

(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

(3) The agreed procedures must not be inconsistent with section 48.”

“48 Nature of consultation 

(1)   Consultation under this Division requires—

(a) that relevant information about the matter is shared with workers, and

(b) that workers be given a reasonable opportunity—

(i) to express their views and to raise work health or safety issues in relation to the matter, and

(ii) to contribute to the decision-making process relating to the matter, and

(c) that the views of workers are taken into account by the person conducting the business or undertaking, and

(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.

(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.”

“49 When consultation is required

Consultation under this Division is required in relation to the following health and safety matters—

(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking,

(b) when making decisions about ways to eliminate or minimise those risks,

(c) when making decisions about the adequacy of facilities for the welfare of workers,

(d) when proposing changes that may affect the health or safety of workers,

(e) when making decisions about the procedures for—

(i) consulting with workers, or

(ii) resolving work health or safety issues at the workplace, or

(iii) monitoring the health of workers, or

(iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or

(v) providing information and training for workers, or

(f) when carrying out any other activity prescribed by the regulations for the purposes of this section.”

[54] The Full Bench in Mt Arthur Coal said that provisions required the employer to consult, so far as reasonably practicable, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. The Full Bench also observed that consultation is treated as a matter of substance, which is to occur prior to implementation and that s. 48(2) requires that the consultation involve a Health and Safety Representative (HSR). Further, the Full Bench observed that this consultation requirement is extended by s. 70(1) of the WHS Act which includes an obligation under s. 70(1)(c) on the employer to allow a HSR access to information ‘relating to’ hazards (including associated risks) at the workplace affecting workers in the workgroup and the health and safety of the workers in the workgroup. 31  

[55] The Full Bench made clear that the WHS Act required employees to be given a reasonable opportunity to express their views and to raise workplace health and safety issues, or to contribute to the decision making process relating to the decision to introduce the SAR and to be provided with reasons, rationale and data supporting the proposal and given a copy of a risk assessment that had been undertaken by the employer rather than to simply comment on the ultimate question as to whether the SAR should be imposed. 32 The Full Bench also said:

“[113] … we recognise that the content of any specific requirement to consult is determined by the context, including:

•  the precise terms in which such a requirement is expressed in the applicable industrial instrument, contract or legislation, including the circumstances in which the obligation is enlivened,

•  the factual context in which the requirement arises, including the size and nature of the business and the nature of the change which is the subject of the consultation and the impact of that change on the persons who are required to be consulted, and

•  whether the factual circumstances dictate a quick response.

[114] As to the last point, if there was a surge in COVID-19 cases such that the risk of transmission substantially increased or if a new, more transmissible or virulent, COVID-19 variant became prevalent then such circumstances may warrant a truncated consultation process. This is recognised in the qualification in s.47 of the WHS Act that consultation take place ‘so far as is reasonably practicable’…”

[56] It is implicit in the decision that in contrast with consultation requirements under awards and model consultation terms in enterprise agreements, that consultation for the purposes of the WHS Acts is required to be undertaken before a decision to implement a change is made. In contrast, the standard terms in awards and the model term required to be included in enterprise agreements, requires consultation when a definite decision has been made.

[57] In relation to the significance of consultation, the Full Bench went on to cite with approval the judgement of Keane CJ and Marshall J in QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 33 who held that while there may have been little likelihood at a different position would be taken by the employers in that case, a term in an enterprise agreement requiring consultation about major change, is not concerned with the likelihood of success of the consultative process, but simply to ensure that consultation occurs before a decision is made to implement a proposal.

Conclusions in Mt Arthur Coal

[58] In addition to the medical, scientific and epidemiological conclusions set out above, the conclusions of the Full Bench in Mt Arthur Coal can be summarised as follows:

1. The SAR was prima facie “lawful” because:

•  it fell within the scope of the employment, and

•  there is nothing “illegal” or unlawful about becoming vaccinated.

2. Consultation obligations under the WHS Acts arose prior to the implementation of the SAR.

3. Consultation obligations arose under the model consultation term in the relevant enterprise agreement, when a definite decision to implement the SAR was made.

4. The SAR was not a reasonable direction because the Company did not consult “as far as reasonably practicable” or in a “meaningful” way during an assessment phase, when the Company announced that it was “actively assessing whether to make vaccination a condition of entry to BHP worksites in Australia”.

5. The consultation process was deficient because:

•  the decision to implement the SAR as communicated to employees was not open for reconsideration.

•  employees were not given a reasonable opportunity to express their views and to raise work health or safety issues, or to contribute to the decision-making process relating to the introduction of the SAR;

•  employees were not provided with information relating to the reasons, rationale and data supporting the proposal;

•  employees were not given a copy of the risk assessment or informed of the analysis that informed that assessment; and

•  in effect, employees were only asked to comment on the ultimate question: should the Site Access Requirement be imposed?

6. The inadequacy of the consultation with employees prior to announcement of the SAR is relevant to its reasonableness for the purposes of determining whether it was a lawful and reasonable direction.

7. The employer’s authority to issue the direction in the form of the SAR was not derived from the WHS Act nor any industrial instrument, but from the exercise of an implied contractual power to direct.

8. No concluded view was expressed on whether a failure to comply with the statutory duties to consult in the WHS Act, goes to the lawfulness of a direction but such failure plainly goes to reasonableness.

9. The relevance of a failure to consult to the assessment of the reasonableness of a direction is not determined by the likelihood of the success of further consultation, it is sufficient if the failure to consult denied the Employees the possibility of a different outcome.

10. The Full Bench did not express a concluded view about whether the employer had breached its obligations under the Privacy Act.

11. The right of employees to bodily integrity was not violated by the terms of the SAR but the practical effect of the SAR to apply pressure to employees to surrender their bodily integrity was relevant to an assessment of the reasonableness of the SAR.

12. Factual propositions established on the evidence including those relating to the seriousness of COVID – 19 and the effectiveness of available vaccinations are also relevant to the reasonableness of the Site Access Requirement, particularly in relation to the protections offered by the COVID-19 vaccination.

13. Reasonableness is a question of fact having regard to all the circumstances including the nature of the particular employment, the common practices that exist and the general provisions of any instrument governing the relationship.

14. There were a range of considerations that otherwise weighed in favour of a finding that the SAR was reasonable including that:

•  It is directed at ensuring the health and safety of workers of the Mine.

•  It has a logical and understandable basis.

•  It is a reasonably proportionate response to the risk created by COVID-19.

•  It was developed having regard to the circumstances at the Mine, including the fact that Mine workers cannot work from home and come into contact with other workers whilst at work.

•  The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time.

•  It was only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the Mine.

[59] The Full Bench also noted that the content of a requirement to consult is determined by context and that circumstances may dictate a quick response and a truncated consultation process.

DP World Enterprise Agreements

[60] In the present case, relevant consultation requirements are found in the WHS Acts and the DP World Sydney Enterprise Agreement 2020 (Sydney Agreement) and the DP World Brisbane Enterprise Agreement 2020 (Brisbane Agreement) (collectively the Enterprise Agreements) which covered the Applicants and the MUA as bargaining representative and are in identical terms. The specific provisions are considered below.

[61] The consultation provisions relied on by the MUA in submissions on behalf of the represented Applicants, are in clause 21.4 of both the Sydney Agreement and the Brisbane Agreement in the following terms:

“21.4 Consultation

21.4.1 The parties recognise that communication and consultation is an essential part of managing health and safety risks. A safe workplace is more easily achieved when everyone involved in the work communicates with each other to identify hazards and risks, talks about any health and safety concerns and works together to find solutions. By drawing on the knowledge and experience of Employees and health and safety specialists, more informed decisions can be made about how to carry out work safely.

21.4.2 The Company commits to communicate and consult with employees and HSRs about matters which affect, or are likely to affect, the health and safety of employees. This consultation will include sharing with the employees and HSRs information about health and safety matters; giving the employees a reasonable opportunity to express their views; and taking into account those views.

21.4.3 Consultation with Employees will be done as effectively and as far as reasonably practicable. This does not necessarily mean it is feasible to discuss with every:

(a) Employee; or

(b) Elected HSR’s; or

(c) Safety Facilitator.”

…

21.5 Consultative mechanisms

21.5.1 The parties agree to establish consultative mechanisms as a vehicle for consultation and to contribute to improved health and safety in the workplace. Consultative mechanisms will include Health and Safety Representatives (HSR’s), a Health, Safety and Environment Committee and Safety Facilitators where applicable.

21.5.2 HSRs shall be elected to represent fellow employees by fellow employees in respect of Work Health and Safety matters.

21.5.3 Elected HSRs shall choose a regulator-approved course of training, in accordance with the provisions set down in Legislation. The timing of the training will be scheduled in consultation with the Company, taking into account operational needs, and in normal circumstances within three (3) months of being requested.

21.5.4 A Health, Safety and Environment Committee shall be established at each site.

21.5.5 At least half of the members of the Health, Safety and Environment Committee must be workers who are elected by the Employees. The Health, Safety and Environment Committee will develop a constitution, consistent with local regulations.

21.5.6 The Parties will ensure that Safety Facilitators, where applicable, are as effective as possible in promoting safety and adherence to all relevant Acts, Regulations, Codes of Practice, Marine Orders, Guidelines and policies.

21.6 Facilities and assistance to promote consultation

21.6.1 The Company will provide HSRs, Committee members, and Facilitators with access to such resources, facilities, information and assistance that are reasonably necessary to exercise their powers and perform their functions.

21.7 Procedures for Dealing with Health and Safety Issues and Incidents

21.7.1 All employees have a responsibility to report concerns regarding health and safety in accordance with Company reporting mechanisms. An employee must raise any safety incident or issue with their foreman or equivalent and subsequently to the person in charge (PIC) or shift supervisor or shift manager without undue delay. Where it relates to a concern and it cannot be immediately addressed, a similar process must be followed.

21.7.2 Where a hazard is identified, all employees, management and their representatives must take immediate steps to prevent others from being harmed, including but not limited to:-

(a) Removing or fixing the hazard immediately;

(b) Following established procedures including communicating as set out in 21.7.1 above;

(c) Immediately removing personnel from the affected area;

(d) Getting someone to warn others while attempts are made to control the hazards; and

(e) Putting up temporary barriers or signs or other forms of control measures.

21.7.3 Where Employees have a reasonable concern of a serious risk arising from immediate, imminent or impending hazard, work may cease in the immediate vicinity until the issue is investigated and dealt with in accordance with established processes.

21.7.4 During any period for which work has ceased, the employer may assign any employees whose work is affected to suitable alternative work. There shall be no loss of pay where work has ceased consistent with the procedure set out in Clause 21.7.

21.7.5 Employees have the right at any stage of the processes described herein to be represented by a Union official however this does not preclude the continuation of operations/work. The Company will continue to recognise that a HSR or employee nominated safety representative may participate in the process.”

[62] Clause 8.12 of the Enterprise Agreements provides as follows in relation to change of policies by the Company.

“8.12 The Company may from time to time change its policies that apply to Employees in addition to this Agreement. In the event of a policy change that may have any impact on the terms of conditions of employment (other than where those terms and conditions are expressly contained within this Agreement), each Employee will be appropriately advised of the change. Nothing contained in a policy or procedure shall be operative nor shall it have any effect to the extent that its inclusion or implementation is inconsistent with the intent of this Agreement. Prior to any change being inserted into a policy, any dispute or disagreement by Employees or the Union in relation to intended change policies and/or procedures shall be progressed through clause 29.0 Dispute Resolution.”

[63] As I have previously noted, the MUA submissions did not refer to the general consultation terms required by the FW Act to be included in enterprise agreements. Both Agreements contain consultation provisions of the kind required by s. 205 of the FW Act to be included in enterprise agreements. Relevantly, clause 27 of both Agreements provides as follows:

“27.0 INTRODUCTION OF CHANGE

27.1 This Agreement recognises that Company management is obligated to carry out its responsibilities in accordance with Company policies and additionally, where such policies relating to production, program, organisation or technology may also affect the rights and interests of its Employees, Company management is also obligated to consider the rights and interests of its Employees in the implementation of such policies. Any change implemented in accordance with this clause shall not be inconsistent with the intent of this Agreement and shall not erode or diminish conditions of employment.

27.2 Company duty to notify

27.2.1 Where the Company has made a definite decision to introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on Employees, the Company undertakes to notify the Employees who may be affected by the proposed changes and the National Secretary/National Official and relevant Branch Secretary/Official of the Union. For avoidance of doubt where clause 8.13 has been triggered then this clause will not apply to the proposed changes.

27.2.2 Without limiting the generality thereof, significant effects includes termination of employment, changes in the composition, operation or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of Employees to other work or locations and the restructuring of jobs and the use of contractors.

27.3 Company duty to discuss change

27.3.1 The Company undertakes to discuss with the Employees affected and the Union, inter alia, the introduction of the changes referred to in clause 27.2, the effects the changes are likely to have on Employees, measures to avert or mitigate any adverse effects of such changes on Employees and give prompt consideration to matters raised by the Employees and/or the Union in relation to the changes. The discussion shall commence as early as practicable after a decision has been made by the Company to make the changes referred to in clause 27.2. For the purposes of such discussion, the Company undertakes to provide in writing to the Employees concerned and the Union, all appropriate information about the changes including the nature of the proposed changes, the expected effects of the changes on Employees and any other matters likely to affect Employees.

27.4 Implementation of change

27.4.1 It is agreed between the parties that after the above notification and discussion have taken place that the Company, after careful consideration of the views of Employees may implement the change with sixty (60) days’ notice.

27.4.2 Where subject to the provisions of the clause, the Company exercises its rights to implement change in the workplace and the Union disagrees with that decision, subject to there being no stoppage of work as a result of the decision of the Company, the Union may refer the matter in dispute to FWC for conciliation and arbitration if necessary.”

[64] The Full Bench in Mt Arthur Coal found that the consultation term in the enterprise agreement in that case (which does not appear to be substantively or relevantly different to the term in clause 27 of the Agreements in the present case) was engaged by the decision of the employer to introduce the SAR. However, the Full Bench found that given its findings in relation to consultation under the WHS Acts, it was not necessary to express a concluded view on whether those requirements had been met in the circumstances of that case and instead observed that it appeared Mt Arthur Coal had substantially met its obligations under the Agreement in that it consulted employees after it had made a definite decision to introduce the Mandate.

[65] I also note that clause 29 of the Enterprise Agreements in the present case set out a dispute settlement procedure, which allows disputes arising in the workplace in regard to the application of the Agreement, to be raised at workplace and national level and referred to the Commission for conciliation or arbitration.

The positions of the parties and the issues in dispute

[66] It is not disputed that the Applicants did not comply with the requirements set out in the Mandate. The MUA contends that the represented Applicants were not required to comply because the Mandate was a “manifestly unreasonable” direction to employees. As a result, the failure to comply with the Mandate was not a valid reason for dismissing the Applicants. In this respect, the MUA advanced the following arguments in support of its position:

•  DP World failed to comply with the consultation requirements under the relevant Work Health and Safety legislation of New South Wales and Queensland;

•  DP World failed to comply with its consultation obligation under clause 21 of the Enterprise Agreements which deals with the subject of “Safety Issues and Incidents”;

•  DP World failed to comply with clause 8.12 of the Enterprise Agreements by unilaterally implementing a policy that impacts on the terms and conditions of employment and is contrary to the intent of the Agreements;

•  The direction pressured employees into surrendering their bodily integrity without considering their concerns;

•  DP World failed to comply with its obligations under the Privacy Principles and the Privacy Act 1988 (Cth); and

•  The mandatory vaccine policy is ineffective as a control measure with respect to COVID - 19.

[67] As I have previously noted, the MUA on behalf of the represented Applicants did not specifically refer to the general consultation obligations in clause 27 of the Agreements nor contend that they were relevant in the determination of the matters in dispute. This is surprising given that an alleged failure to consult is central to the MUA’s contention that the Mandate was not a reasonable direction. It is also surprising given that a clause covering general consultation obligations, such as clause 27 of the DP World Agreements, is a mandatory clause which is required to be included in enterprise agreements. Further, the Full Bench in Mt Arthur Coal found that the SAR in that case triggered those obligations. I also note that the Respondents reserved their position in relation to whether the clauses were engaged by the decision to implement the Mandate if the MUA or the self-represented Applicants specifically pressed this argument at some later stage. This did not occur. However, for reasons which will be apparent it is not necessary that I reach a conclusion on this point for the purposes of considering whether there was a valid reason to dismiss the Applicants.

[68] The cases advanced by the unrepresented Applicants can be summarised as follows. Mr Pintley contends that DP World Australia failed to consult him in respect of the Mandate. He further contends circulating in the terminal was a list of names of employees who had not provided their vaccination status or were unvaccinated and that this was a breach of privacy on the basis that medical information of employees was not stored in a private and secure manner and was disclosed. Mr Pintley also argues that his employment was terminated while he was on a period of absence on workers’ compensation, which meant that the dismissal “had no relation to [his] capacity or conduct at work” as he would have posed no “risk on the health, safety and welfare of other employees.”

[69] Mr MacDonald raised numerous contentions in his material. Firstly, he contends that it was unreasonable for DP World to require vaccination because COVID – 19 vaccines are experimental drugs, unsafe and ineffective. Information from various sources was cited by Mr MacDonald to support this contention. Secondly, it is contended that nothing in his contract of employment or the enterprise agreement permits DP World Australia to impose a Mandate as to vaccination and, consequently, DP World Australia was in breach of his employment contract. Thirdly, DP World Australia failed to give adequate consideration to the fact that Stevedores frequently work alone with minimal interaction with other persons and that other control measures had already been put in place, including social distancing and multiple COVID – 19 protocols with which ship crews must comply before they are allowed to berth at any Port or Terminal in Australia. As such, Mr MacDonald argued that the risk of infection is “absolutely miniscule”. Fourthly, Mr MacDonald appears to contend on constitutional grounds that the Mandate “is inconsistent with the Fair Work Act 2009” and that “this matter should fall exclusively under Federal Legislation”.

[70] The material filed by Mr Nemeth, consists of a series of statements but their relevance to the present matter, as it relates to valid reason under s. 387(a) of the FW Act, has not been explained. Mr Nemeth states that COVID – 19 vaccines are experimental drugs, unsafe and ineffective and that “forced, coerced, and mandated medical interventions” violate the Nuremberg Code. He further cited s. 51(xxiiiA) of the Constitution stating that “no medical service can be forced against [his] free will”. Section 109 of the Constitution, which deals with the inconsistency between a law of the State and a law of the Commonwealth, was also cited though its relevance to the Mandate in the context of s. 387(a) of the FW Act is not explained.

[71] The position of the Respondents is that failure on the part of the Applicants to comply with the Mandate, without a proper medical exemption, was a valid reason for the dismissals. As to the Mandate, the Respondents contend it was a lawful and reasonable direction given the nature of the workplaces – as stevedoring employees board ships which also berth at foreign ports and the potential for COVID-19 to spread through interaction with ship’s crew; the critical place of container stevedoring in the Australian supply chain as container shipping is enormously important to Australia – the significant public interest in protecting terminal operations from disruption particularly in circumstances where the pandemic has placed an enormous strain on supply chains; the nature of COVID-19 and the public health responses to cases – the potential severity being more likely in unvaccinated persons; the age profile of the Respondents’ stevedores who are on average older than the workforce generally and may therefore be more at risk; the knowledge at the relevant times that State and international borders would re-open, and inevitably Australia would see an increase in COVID-19 numbers; the difference at relevant times in how State governments treated vaccinated versus unvaccinated persons who were contacts with COVID-19 cases – the Respondents’ perception of this was informed by direct experience of managing positive cases at the Sydney Terminal in September 2021, when the NSW government’s contact tracing matrix more readily classified unvaccinated persons as close contacts, and hence subject to lengthy self-isolation requirements that took them out of the workforce for a period; the need to extend a degree of latitude to employers who bear the “primary duty of care” under s. 19 of the Work Health and Safety and liability to pay compensation on a no-fault basis, albeit in circumstances where they must be insured, to employees who contract COVID-19 at work; and that a specialist safety regulator which was aware of the Mandate and the process by which it was introduced took no issue with it.

Evidence

Background and context

[72] Mr Hulme gave evidence about the background and context in which the Mandate was introduced which can be summarised as follows. DP World Australia is one of the two large “legacy” container stevedores in Australia and in any given year, it is either the largest or second-largest provider of stevedoring services by volume, alternating with Patrick Terminals. In the calendar year 2021, DP World held approximately 42% of the market share across the four ports where it operates.

[73] Each of the ports where DP World Australia operates is the only dedicated container port in that State. Both the Port of Brisbane and Port Botany are common entry ports for vessels making a first port of call in Australia on the east coast. The Port of Fremantle is the usual first call in Australia for vessels initially calling on the west coast. Ships stevedored by DP World generally come to Australia from ports in China, Hong Kong, Japan, Korea, Indonesia, Taiwan, Singapore, Auckland, Tauranga, various Pacific Island ports, and ports in Europe and the United States.

[74] DP World Australia operates one of three container stevedoring terminals at the Ports of Brisbane, Sydney, and Melbourne. The others are operated by Patrick Terminals, Hutchison Ports in Brisbane and Sydney, and Victoria International Container Terminal (VICT) in Melbourne. DP World Australia’s market share in these three locations is said to fluctuate from time to time and varies somewhat between ports. Mr Hulme states that generally, however, it is between 35 – 40% of the container stevedoring market and this is partly an effect of physical constraints as DP World generally holds somewhere between a third and a half of container vessel berths available at each port. As a result, if any Terminal was unable to operate at full capacity or at all, the impact to the relevant State’s container stevedoring capacity would be significant.

[75] All employees of DP World Australia and its operational subsidiaries are required to meet several common safety standards and accountabilities in accordance with each of the applicable Enterprise Agreements and work health and safety legislation to ensure the best achievable level of health and safety is maintained within the operations of DP World Australia. Similarly, all employees are required to ensure that safe work practices are adhered to and comply with all reasonable instructions of DP World Australia relating to workplace health and safety, including applicable workplace health and safety laws and policies, as these are the terms set out in the letters of offer to employees.

[76] DP World stevedores regularly interact with members of foreign crews to carry out their duties. The foreign crews may have been in a significant number of ports, including in high-risk countries, prior to docking in Australia and since the beginning of the Pandemic both the Federal Government and the State Governments had placed restrictions on portside workers for the purposes of preventing the importation of COVID-19 into Australia or limiting the spread of COVID-19 within Australia.

[77] Mr Hulme stated that throughout the Pandemic, the ability of shipping services and seafarers to deliver vital goods, including medical and food supplies, was critical. As ports played a critical role in the Pandemic response, it was critical to ensure that the flow of commerce by sea and supply chains were not unnecessarily disrupted whilst maintaining the safety of every person at the docks and those who transit through the ports. Since the beginning of the COVID-19 pandemic, DP World has been guided by circulars, guidance notices, information bulletins and mandates from a range of departments and authorities, including the International Maritime Organisation; World Health Organisation; Australian Border Force; Health Departments of the States and port authorities across Australia.

[78] Mr Hulme agreed under cross-examination, that DP World is the only major stevedoring Company operating in Australia, that has implemented a mandatory vaccination policy. 34 Mr Hulme also agreed that DP World has not mandated boosters and that as time goes by vaccination is less effective in preventing transmission of COVID – 19 and that any employee who complied with the Mandate and received a second dose by October 20121, would be less protected against COVID – 19 than when first vaccinated.35 Further, Mr Hulme agreed that when the Mandate was introduced it was probable that the virus would mutate but maintained that this was taken into account in the national risk assessment and had the following exchange with Mr Bond for the MUA:

“You didn't consider in the risk assessment that there is a possibility of mutation and that the vaccines wouldn't be effective against those mutations?---We introduced a mandate at a certain point in time based upon the information that was in front of us and the medical evidence that was available, and advice from many parties, right, in formulating our decision and the process that we went through from a consultation perspective with our employees.  It was dynamic, it changed over many months and many years, and I think that's evidenced by governments not only within Australia, they - the goalposts were consistently moving throughout the process of when COVID became a challenge for the - not just Australia but for the world.

Yes, even though those goalposts were moving, you at DP World decided to make a decision to mandate vaccines are a particular point in time without considering how the goalpost might change in the future, right?---No, we made - no, that's not correct.  We made a decision at the time based upon the information that was in front of us.  Mr Bond - yes, I think I've answered the question.

You would agree that the company rushed through this process, right?---I absolutely disagree with that sentiment. 36

[79] Mr Eadie said that as DPW Sydney (along with the other DP World terminals) provides an essential service, including that the cargo onboard the vessels it stevedores includes a range of products and other items which have been in short supply at various times over the last two years (e.g. medical and testing supplies, PPE, foodstuffs) it was (and remains) critical that DP World continued to operate during the pandemic period. The nature of the work is such that employees must continue to attend the workplace. DP World therefore takes a range of steps to mitigate risks associated with COVID-19 for employees. Following the decisions by various state and territory governments and the Federal Government to open up Australia to the rest of the world, DP World is facing a period of significant increase in operations and increased traffic at the Terminal. As such, DPW Sydney has remained very mindful of the risks of COVID-19 and the risks of transmissibility of COVID-19 and the potential impact of an outbreak on its employees, customers, and operations.

[80] Mr Hulme detailed clearance processes for vessels implemented by the Australian Border Force to manage the risks of transmission of COVID-19 by foreign crews. In addition, Mr Hulme said that the relevant Health Departments in Victoria, Western Australia, New South Wales and Queensland – the jurisdictions in which DP World Australia has operations – issued various Public Health Orders, including Orders specific to maritime port operations. As different requirements were imposed by the Public Health Orders, Mr Hulme distinguished the approaches taken in Western Australia and Victoria from those taken in New South Wales and Queensland. In the former jurisdictions, vaccination was mandated for port workers, whereas in the latter jurisdictions, vaccination was only recommended. Mr Hulme summarised the positions as follows:

•  For Western Australia, on 2 June 2021, the Western Australia government introduced stringent rules to manage “Exposed On-Board Workers”. These obligations included isolation and quarantine requirements for certain employees providing work on a vessel berthed in Western Australia.

•  On 22 September 2021, the Western Australian Government introduced mandatory COVID19 vaccination requirements for “Exposed On-Board Workers”. This mandate included all employees providing work on a vessel berthed in Western Australia.

•  On 22 October 2021, the Western Australian Government introduced mandatory vaccines for the majority of occupations and industries in Western Australia. This further mandate captured any employee of DP World not previously subject to the mandate.

•  For Victoria, on 1 October 2021, the Victorian Government also announced mandatory vaccines for maritime and port workers. The relevant COVID-19 Mandatory Vaccination (Workers) Directions were first issued under the Public Health and Wellbeing Act 2008 (Vic) on 8 October 2021. These directions have now been replaced by Orders made by the relevant Minister under legislation.

•  The position of New South Wales Health at all material times was that it strongly recommends vaccination for all port workers, especially those who have direct contact with international seafarers. To assist port workers be vaccinated, they were given priority access, alongside frontline health workers, to the available COVID-19 vaccines. Mr Hulme stated that for much of the second half of 2021 NSW Health Orders prohibited unvaccinated workers living in particular “areas of concern” from leaving the local government area in which they lived in order to attend work.

•  The position of Queensland Health was that it strongly recommends vaccination for all port workers. Queensland Health granted priority access to the vaccine to port workers.

[81] From around March 2020, Mr Hulme was part of the DP World management team that was involved in discussions around the safe management of COVID-19 in the workplace to keep employees safe and ensure that the terminals continued to operate. The management team met twice a week to discuss various matters, including Work, Health and Safety and terminal operations. Mr Hulme said that the subject of COVID-19 and safe management of COVID-19 arose frequently in discussions. Mr Hulme also outlined an education program conducted by DP World about how employees could protect themselves against COVID-19 and the control measures which were put in place to mitigate against the risks.

[82] DP World developed a COVID-19 Prevention and Response Plan (Response Plan) in early March 2021, having regard to government and industry advice and consultation with other participants in the maritime supply chain. In summary, the Response Plan introduced controls in terms of sanitising and operating procedures to mitigate against the evolving COVID-19 situation. The processes for dealing or engaging with the crew of vessels were also changed to minimise interaction between staff and the ship crews. Mr Hulme’s evidence was that as each State and Territory announced its position on the rollout of vaccines, DP World Australia promoted COVID-19 vaccination to all its employees across its Australian operations. This included the regular circulation of bulletins that informed employees of the health and safety benefits of vaccination and provided information about how employees could book their vaccination appointments.

[83] According to Mr Eadie’s evidence, since 17 March 2020, DP World Sydney has issued over 40 such bulletins to employees updating and educating them on COVID-19 safety measures to be taken at the Terminal. These bulletins have covered topics such as hygiene, PPE, social distancing, changes to work practices, information on Local Government areas of concern, travel restrictions etc. The bulletins were affixed to designated COVID-19 noticeboards that have been established in the Amenities, the Workshop, Administration and at the Terminal Access/Egress turnstiles. During the period March 2021 until 16 September 2021, a further 11 bulletins were issued to employees encouraging them to get vaccinated and reminding them about compliance with various public health orders, as they changed.

[84] The COVID – 19 Prevention and Response Plan tendered by Mr Hulme does not refer to vaccination. 37 The Bulletins tendered by Mr Hulme also do not refer to vaccination until Bulletin 2397 dated 26 March 2021 when Brisbane employees were informed that the Company had been contacted by Maritime Safety Queensland (MSQ) in relation to a vaccination rollout. The information in the Bulletin is somewhat unclear but appears to indicate that MSQ is collecting contact information for employees for the purposes of contacting them about a vaccination rollout and has requested that information from DP World. It is unclear whether the reference to information being stored securely appears to refer to storage by MSQ. The Bulletin refers employees to a website about the vaccination initiative and informing them that there is a vast amount of information available from various sources including their GP, before going on to state:

“Consistent with the right of every individual to choose whether to be vaccinated, when you are contacted by Queensland Health you may elect to ‘opt out’, as receiving the COVID – 19 vaccination is not compulsory by the Queensland Government.” 38

[85] The further Bulletin on this topic – 2408 – was sent to Brisbane employees on 28 May 2021 and provided information about how to register to be vaccinated and to book a vaccination and this information was again provided in Bulletin 2421 issued on Tuesday 20 July 2021.

[86] Mr Hanley also tendered a document dated 7 September 2021 headed “COVID – 19 Vaccinations and Certificates” 39 advising employees that as communicated on 5 September 2021 they are required to provide their COVID – 19 Digital Certificate as confirmation they had received their first dose, by 29 October 2021 and their second dose by 26 November and that employees who did not provide their status by 9.00 am on Friday 29 October, would not be allocated to work from Saturday 30 October 2021. I assume that given this Bulletin is dated 5 September 2021 and the Mandate was not announced until 16 September 2021, that the date is an error and that the Bulletin was issued on 7 October 2021. Mr Hulme also tendered a Bulletin numbered 2429 dated 13 September 2021 advising employees about how to book a vaccination as part of the rollout by MSQ referred to in earlier bulletins. An email in essentially similar terms was also sent to employees on 23 September 2021. Accordingly, both of these emails were sent after the Mandate was announced.

[87] DP World witnesses also gave evidence that in August and September 2021, the Delta variant of COVID-19 was rapidly spreading and the number of daily cases in Australia, particularly in NSW, were rapidly increasing. At the start of August 2021, Australia had 229 daily new cases. By the start of September 2021, there were 1,741 daily new cases.

Terminal operations

[88] Evidence about the operations at the Sydney and Brisbane Terminals was given by Mr Eadie and Mr Hanley. That evidence was essentially the same and can be summarised as follows. Mr Eadie is the General Manager Operations for DP World Sydney and was appointed to the role in April 2021. Mr Eadie is responsible for the general management of operations for the DP World Sydney Terminal at Port Botany, including overseeing quayside and landside (road/yard) management, maintenance and the workforce. Mr Hanley is the General Manager - Operations for DP World’s stevedoring terminal at the Port of Brisbane (Fisherman Islands), Queensland (Brisbane Terminal). Mr Hanley has been employed as General Manager – Operations since June 2021 (in an acting capacity until November 2021). Mr Hanley is responsible for all aspects of the Brisbane Terminal’s operations, including planning, scheduling and resourcing, and managing employees, contractors and visitors. Mr Eadie and Mr Hanley report directly to Mr Hulme.

[89] Work is performed at the Sydney and Brisbane Terminals in several areas:

(a) the quayside, where large rail-mounted cranes called quays, ship-to-shore or quay cranes load and unload containers onto and from ships;

(b) a storage area called the “yard” or “yard stack”, where containers are stored temporarily after discharge or before being loaded onto a ship; and

(c) receival and delivery areas where trucks are loaded and unloaded with containers so that containers can enter or leave the Terminal by road.

[90] As a container stevedoring facility, containers carrying exports enter the Terminals by road where they are unloaded from trucks and loaded onto ships before leaving the Terminal by sea. “Import” containers enter by sea and leave by road, in the reverse process. Mr Eadie said that the Sydney Terminal acts as mostly the second Australian stop for vessel services, but it can also be the first port of call. The ships largely come from Asia, in particular China, Singapore and Korea. Mr Hanley’s evidence is that unlike other Terminals, the Brisbane Terminal is partly automated and uses automatic stacking cranes to move containers in the yard. Brisbane is the only container port in Queensland. There are two other container terminals at Brisbane operated by Patrick Terminals and Hutchison Ports. There are 9 container berths at the Port of Brisbane of which DP World has 4 – almost half of Queensland’s container stevedoring capacity.

[91] Mr Eadie and Mr Hanley described categories of work performed by employees at the Terminals as follows: (a) general duties; (b) operation of heavy machinery and yard equipment; (c) clerical work; and (d) crane driving. General duties typically involve tasks such as “lashing” and “unlashing” or working as a pin man (or woman). Lashing or unlashing is the process whereby metal bars are latched onto or detached from containers stacked on a vessel. The pin man (or woman) is responsible for fitting or removing devices from the underside corners of containers.

[92] Employees performing general duties work together in teams or “gangs” when referring to a specific lashing group. They are required to be in close proximity with one another and when performing the lashing or unlashing task, person-to-person and face-to-face, contact is almost always at a distance of less than 80cm for extended periods of time and significant physical exertion by both persons is required. Mr Eadie and Mr Hanley further explained that lashing and unlashing tasks are required to be performed by employees aboard the vessels on which the containers are stowed and consequently, employees are in contact with members of the crews on the vessels and the areas in which the crew work on the vessel. While contact with crew has been minimised, it cannot be fully avoided. Mr Eadie also noted that the majority (if not all) of the crew members on ships that call at the Sydney Terminal are foreign crew and there is no requirement for them to declare any vaccination status to DP World.

[93] At the Sydney Terminal, stevedores use Quay Cranes, Rubber Tyred Gantry Cranes (RTGs), Heavy Forklifts, and Internal Transfer Vehicles (ITV’s) to perform container movements. In normal circumstances, a rotation of drivers through the one machine occurs across an 8-hour shift. Mr Hanley said that at the Brisbane Terminal, machinery operators drive quay shuttle carriers that move containers between the wharf and the ASC interchange area and reach stackers used to manually move containers. Employees performing this work are in close proximity at shift changeover. At both Terminals, during training or re-certification for compliance purposes, more than one person is required to be in the cabin of the relevant machine. Additionally, in the event of a machine breakdown or emergency, a maintenance specialist may be required to be in the cabin with the driver.

[94] The role of crane drivers is to operate the quay cranes which move the containers from the wharf onto the vessels, and from the vessels onto the wharf. At both Terminals, crane drivers generally work in one or two-hour blocks, after which they rotate with the second crane driver assigned to their crane team. The rotation involves “swapping over” with a driver in or adjacent to the cabin.

[95] At both locations, clerical work performed by stevedores is mostly indoor office-based work and typically involves data entry tasks and directing yard and vessel operations. The work requires basic computer skills and involves the use of a two-way radio. Clerical employees come in contact with other employees at mealtimes, at their workstations with other clerical staff, with supervisory or management staff, and with any employees or contractors that may enter the control room, such as Foreman. Maintenance employees perform both planned maintenance on machines at the terminal, such as routine servicing, and resolve breakdowns. Frequently maintenance employees work in pairs in completing routine maintenance and engineering tasks. This involves employees transiting to and from their point of work in single cab utes and working in close contact and in confined work areas. In addition there are foreman roles on each shift. Foremen work onboard vessels providing direction to crane drivers, responsible for the operation of cranes, and engaging with external truck drivers. There are also additional roles such as specific cargo care duties involving reefer [refrigerated] freight, first aid, and bus driving.

[96] Both Mr Eadie and Mr Hanley said that whilst some of the work done by employees at the Terminals occurs outside, a significant amount of time is spent by employees indoors or in enclosed spaces, such as equipment cabins. This includes:

a) At toolbox talks, where a Supervisor will speak to Operational or Engineering employees on a shift together before they begin their work.

b) During breaks, which are taken in an indoor amenities room at the Terminal administration building. DPW Sydney has sought to reduce COVID-19 transmission risks by working cranes “continuously”, so that not all employees are taking breaks simultaneously, but there are still multiple employees taking breaks at the same time.

c) On buses and in dual-cab utilities where employees are driven from the administration building where they start a shift and take breaks to or from their points of work.

d) In office space within the administrative buildings, training offices or other smaller buildings where employees are performing clerical work, seeking first aid, holding discussions with managers, or otherwise engaging with others.

e) On the deck and in the hold of vessels where employees are performing lashing.

f) During meetings held indoors - disciplinary or performance meetings, Employee Representative Committee and Health and Safety Committee meetings, and other ad hoc matters as required.

[97] There are other times where employees may be working outside but need to be in reasonably close proximity with others, including: at toolbox talks; on board ships where it is unavoidable and necessary to interact with the ship’s crews. This occurs when a duty officer takes the names of stevedores boarding a ship at the top of a gangway, where there is a need to discuss safety or other issues onboard, and where crews are required to turn refrigerated containers on or off. Mr Eadie and Mr Hanley also gave evidence about the way that the rostering and allocation of labour works at the Terminals and said that this means it is not feasible to separate the shifts of employees and ensure that they do not mix, so as to quarantine the safety risks and operational disruption of a given COVID-19 transmission event to one shift or group of employees. This is because there is a combination of full time rostered Fixed Salary Employees (FSEs) mostly working 24/7 continuous shift work, casuals allocated on an irregular basis and indicative and actual allocations of labour on a shift which occurs, in the majority of instances, the afternoon prior to the following days shifts, to deal with changing volume and productivity requirements which are subject to a range of impacts including weather and both planned and unplanned absences of employees.

[98] Mr Eadie said that all employees are multi-skilled and work in different Terminal operations from day to day. Allocations of employees to particular tasks occur on a day-by-day basis, and can change at short notice e.g. in response to unplanned absences. As a result, while FSEs may see others from their own roster panel more frequently, they will also mix with the broader group of employees working across shifts as needed, and from themselves or others working overtime.

[99] Mr Eadie consulted with DPW Sydney’s human resources records for the purpose of preparing his statement and established that as of September 2021, DPW Sydney had 586 employees covered by the Sydney EA – 517 in operations and 69 in maintenance. The average age is 47 years, and there are 261 employees over 50 years of age, 60 employees over 60 years of age, and 2 employees over the age of 70. The vast majority of these employees are men (95.05% compared to 4.93% women). Mr Hanley said that he reviewed HR records for the purpose of this proceeding and as of September 2021, DP World Brisbane employed 199 stevedores covered by the Brisbane EA. The average (mean) age of a stevedore at DPW Brisbane was 49 years, with 107 employees over the age of 50 and 23 employees over the age of 60.

Impact of COVID–19 at Sydney Terminal

[100] In August and September 2021, NSW was dealing with the Delta strain of COVID-19, which was rapidly spreading. Mr Eadie was extremely concerned at this development and the potential risk of exposure and transmissibility at the Terminal. On 4 August 2021, Mr Eadie was advised that crewmembers of a vessel which had berthed at Port Botany Terminal on 26 and 27 July 2021, had tested positive to COVID-19. Subsequently, 81 Terminal Operations employees were identified as Casual Contacts and were required to get tested and self-isolate until they received a negative result. This had a major impact on the business, as DP World Sydney was unable to man sufficient cranes to work vessels to schedule. These delays rolled on to subsequent vessels and ports, and it took several days to recover. Following this outbreak, on 5 August 2021, Mr Adam sent an email to DP World employees encouraging them to be vaccinated, particularly in light of the Delta variant and the NSW Government’s direction that stevedores were essential workers and could be vaccinated as part of the priority vaccinations in the COVID-19 vaccine rollout. The email stated that DP World Australia strongly supports the National COVID-19 Vaccine Rollout and strongly encourages employees to be vaccinated. 40 Mr Eadie also tendered an email from an employee expressing concern that only employees in affected areas were being asked to provide proof of vaccination and that this was risky.

[101] Mr Eadie is aware that on or around 24 August 2021, an SMS message was sent by representatives of the MUA to DP World employees encouraging them to get vaccinated and to supply information regarding their vaccination status to DP World. Mr Eadie also appended Bulletins distributed to employees to his witness statement. In a Bulletin numbered issue No. 32 dated 26 August 2021, Sydney employees were advised that:

•  The best way to prevent serious illness and the potential of hospitalisation due to COVID – 19 is through vaccination and this has been strongly encouraged by the Company with DP World Sydney employees having priority access to vaccinations;

•  Provision of a link for priority booking services announced by NSW Health for Seaport workers;

•  DP World had concluded that it was impractical to mobilise Rapid Antigen Testing on site and the previous method of 3 day PCR testing is no longer prescribed in the update Public Health Order;

•  As such, and in line with the Public Health Order, employees living in an area of concern must have received their first vaccination prior to Monday 30 August 2021 in order to attend work and employees had until 2.00 pm on Sunday 29 August to provide the Company with evidence of their vaccination;

•  Employees from an LGA of concern who had not provided evidence of their first vaccination would not be authorised to attend the Terminal for any reason including for shifts commencing 6.00 am Monday 30 August 2021;

•  Employees who have yet to provide their COVID – 19 digital certificate were requested to do so urgently; and

•  Employees who resided in an LGA of concern and were booked to receive their first vaccination after 30 August 2021 were requested to email HR with a copy of the booking confirmation and HR would be in contact to discuss available options pending vaccination. 41

[102] From 30 August 2021 until 11 October 2021, various NSW public health orders prevented employees who lived in “areas of concern” (some 30% of the Sydney terminal workforce) from leaving their Local Government Area (LGA) to attend work, unless they had received at least one dose of a COVID-19 vaccination or had a validly certified medical contraindication. Around 39 employees were unable to attend for work for this reason. This restricted the number of cranes able to be manned and caused ongoing delays to vessel operations. As a result, on 3 and 6 September 2021, Mr Eadie sent a communication to DPW Sydney employees living in an LGA of concern, advising that they needed to provide evidence of their vaccination status by 8 September 2021, or they would not be rostered to work 42.

[103] On 15 September 2021, Mr Eadie was notified that two employees at the Terminal had tested positive to COVID-19. As a result of one of these cases 35 employees were required to get tested and self-isolate for 14 days as Close Contacts in accordance with the NSW public health orders in place at that time and a further 53 employees were required to get tested and self-isolate as Casual Contacts until they received a negative result. The classification of 88 operational employees as Close or Casual Contacts resulted in approximately 20% of DPW Sydney’s operational workforce being unable to attend work for periods ranging from 2 days to 14 days. This had a significant impact on Terminal operations and resulted in major delays to vessels and trucks, slowing and delaying the flow of imports and exports through the Terminal.

[104] The “Close and Casual Contact status” of each employee was determined using an assessment tool provided by the Public Health Unit of NSW Health, which was tendered by Mr Eadie 43. It was apparent to Mr Eadie, that when filling in the required information, each employees’ vaccination status was a key factor in determining whether they were a Close or Casual Contact, with those who were fully vaccinated far less likely to be defined as a Close Contact and therefore not required to isolate for 14 days.

[105] Since these positive cases, a further 57 employees have been required at various times to self-isolate due to being deemed a close contact of a positive case. The impact of employees being absent from the workplace for 14 days as a result of being deemed a Close Contact due to COVID-19 are significant. These unplanned absences result in lost productivity, delays in loading and unloading cargo which flow to subsequent ports and disrupts the supply of imports and exports. Other results include fellow employees working harder to cover absences and higher costs due to overtime rates or the requirement to engage supplementary labour.

[106] On 20 September 2021, the Sydney Terminal Operations Manager informed Mr Eadie that 6 employees at Hutchison Ports Sydney had tested positive to COVID-19, and that approximately 60 employees had been classified as Close Contacts as a result. On 23 September 2021, Mr Eadie was also made aware via email from the MUA that in mid-September 2021, VICT in Melbourne had a COVID-19 outbreak “with a large portion of the workforce now in 14 days isolation” and that confirmed cases may have worked aboard up to 4 vessels, 2 of which were bound for Sydney, and 2 for Brisbane. In early October 2021, Mr Eadie learned from the DP World General Manager, Customer Centre, that there was a COVID-19 outbreak at Patrick Terminals in Melbourne. As a result, Patrick Terminals was required to operate with 20% reduced capacity for approximately a week following the outbreak.

Impact of COVID – 19 at Brisbane Terminal

[107] Mr Hanley’s evidence about the impact of COVID – 19 at the Brisbane Terminal can be summarised as follows. Mr Hanley has been conscious of the risks of COVID-19 transmission at the Brisbane Terminal since early 2020 and the potential impact of an outbreak on its employees and their families, customers and stevedoring operations.

[108] While performing work at the Terminal, DPW Brisbane employees often work in close contact with other employees, and also with the crew of the ships. The crew of the ships are largely from outside of Australia and sail to Brisbane from other ports, including directly from overseas ports (largely in Asia). Of the 10 shipping services for which DPW Brisbane currently provides stevedoring services, 6 are making their first call in Australia at Brisbane. As a result, DPW Brisbane has been concerned by the increased risk of transmissibility of COVID-19 to stevedores that these interactions create. Mr Hanley outlined that from around March 2020, DP World's national management team (DP World Management), of which he is a part, has been discussing the safe management of COVID-19 in DP World workplaces to keep employees safe and facilities operating. This has included working with Border Force Australia, the Queensland Government, Maritime Safety Queensland and the Port of Brisbane to ensure that the maintenance of a safe place of work for employees and foreign crews during the COVID-19 pandemic.

[109] Each week, the DP World Management team specifically meets on Mondays to discuss work health and safety, and on Thursdays to discuss terminal operations. From Mr Hanley’s experience attending those meetings, the topic of COVID-19 and safe management of COVID-19 arises frequently. To assist DPW Brisbane in managing the risks associated with the spread of COVID-19 in the workplace, Mr Hanley and his predecessors have regularly published bulletins to DPW Brisbane employees to help educate them on good hygiene, wearing of masks, social distancing protocols, changes to work practices etc.

[110] These bulletins are read out in the toolbox meetings at the start of each shift and were placed on noticeboards around the Terminal. Approximately 55 bulletins have been issued to employees at the Terminal since March 2020. 44 Mr Hanley tendered a selection of the bulletins issued to employees. In around March 2021, the Queensland Government and MSQ deemed Port workers and freight and logistic workers (which would include all DP World employees) to be a part of the “Quarantine and Border Worker” cohort as part of the Part 1A and 1B of the COVID – 19 Vaccine Rollout and provided priority vaccination booking codes to employees. Following this declaration, DP World began informing employees of this priority vaccine eligibility and providing the early booking codes to those who wanted them and advised employees of these measures in a bulletin.45 The Bulletins tendered by Mr Hanley were the same as those tendered by Mr Hulme. As I have previously noted there is no reference to vaccination in the Bulletins prior to the March 2021 Bulletin issued to Brisbane employees in connection with the MSQ COVID – 19 vaccination rollout and they contain nothing that could be described as encouragement to employees to be vaccinated and also note their rights to refuse to provide information to the Queensland Government.

[111] On or around 15 September 2021, Mr Hanley became aware of a positive case of COVID-19 at the Port Botany terminal and was informed by Mr Eadie that approximately 35 employees were required to self-isolate for 14 days in accordance with NSW Health Directives and a further 57 employees were sent home from work because they were casual contacts. These employees were required to produce a negative COVID-19 test result before returning to work.

[112] Mr Hanley was also aware from bi–weekly Management Team meetings and from reading the media that in mid–September 2021, Victoria International Container Terminal (VICT) in Melbourne had a COVID-19 outbreak and was required to close operations for one day of cleaning and in early October 2021, there was a COVID-19 outbreak at the Patrick Terminals in Melbourne resulting in the Patrick Terminals being required to operate with 20% reduced capacity for approximately a week following the outbreak. In light of these events, along with the planned QLD border opening in December 2021, Mr Hanley and the DP World Management team became increasingly worried about the risk of COVID-19 transmitting into Queensland and particularly at the Terminal, due to the nature of the work and exposure of employees to crews and freight from outside Queensland. Mr Hanley said that his concern about transmission in Queensland was borne out by events that followed. He has consulted Queensland government data, and notes that while Queensland had around 2,200 cases of COVID-19 when the border opened on 13 December 2021, as of the date of his statement in these proceedings, the number is over 246,000.

[113] Mr Hanley also said that as a result of the Port Botany COVID – 19 outbreak, it appeared likely to the DP World Management team that similar outbreaks in the future at Port Botany and other terminals would create a serious community transition risk and disrupt DP World's continuous operations. Mr Hanley reasoned (and believes that other members of the team shared his view) that logically if a similar outbreak were to occur at DP World Brisbane, Queensland Health would take a similar, if not more stringent approach, to the management of the outbreak as that taken by NSW Health.

[114] Mr Hanley believes that these concerns have been subsequently borne out. During the week commencing 20 December 2021, there were 3 positive cases of COVID-19 at the Brisbane Terminal and a close and casual contact tracing exercise was conducted. As a result of these cases approximately 8 employees were required to self-isolate for 7 days in accordance with OLD Health guidelines and a further 12 employees were sent home from work because they were casual contacts. These employees were required to produce a negative COVID – 19 test result before returning to work. QLD Health's Guidelines determined there were different required isolation periods for vaccinated and unvaccinated persons. As all Terminal Employees were vaccinated, the maximum number of required days in isolation was 7 days. Mr Hanley tendered two bulletins sent by him to employees of the Terminal following these positive cases. 46

Decision to introduce Mandate

[115] On or around 15 September 2021, Mr Hulme was made aware of 3 positive cases of COVID – 19 detected at the Port Botany terminal and was informed by Mr Eadie that approximately 35 employees were required to self-isolate for 14 days in accordance with NSW Health directions. A further 57 employees were sent home because they were deemed casual contacts and those employees were required to produce a negative COVID-19 test result before returning to work. Mr Hulme was also aware that there had been at least 2 outbreaks at other container stevedoring terminals – one at the VICT in September 2021 which resulted in a one-day closure of its operation so that cleaning could be carried out and another one at the Patrick Terminal in Melbourne with the result that the Patrick Terminal was required to operate with around 20% reduced capacity for approximately a week.

[116] Mr Hulme said that due to the outbreak at Port Botany and outbreaks in other terminals, it became clear to him and the management team that any future outbreaks at Port Botany or at any other DP World terminals would pose a serious risk of community transmission and create disruptions to DP World’s continuous operations. Based on the advice from NSW Health at the time, Mr Hulme formed the view that employees who were vaccinated were less likely to be considered close contacts in the event of an outbreak in the workplace, and therefore less likely to be required to self-isolate for an extended period.

[117] Mr Hulme, Mr Eadie and Mr Hanley recounted that the management team decided on 16 September 2021, to proceed with a Mandate requiring COVID-19 vaccinations in the workplace, subject to a risk assessment being completed that validated the thinking and consultation occurring with [DP World] workforce before making a final decision to direct employees to follow the Mandate. The decision was said by each of them to have been made, taking into account the following factors:

“(a) the COVID-19 outbreak at Port Botany, which placed employees at risk and disrupted operations;

(b) the importance of DPWA, as an essential service provider and important part of the supply chain, to effectively protect its operations from disruptions caused by a COVID-19 outbreak;

(c) the precedent of NSW Health’s contact tracing matrix treating vaccinated versus unvaccinated employee contacts of positive COVID-19 cases differently in the event of an exposure event;

(d) the effectiveness of the COVID-19 vaccine as a higher order control based on the Draft Risk Assessment, which was then in progress;

(e) that since around March 2021, the Australian Government Department of Health had deemed stevedores as priority workers to receive a Pfizer COVID-19 vaccination, therefore vaccinations were readily available to our employees;

(f) the Delta variant was significantly more contagious than previous strains of COVID19 and there is emerging evidence that it leads to more severe outcomes, than the Alpha variant. The rapid evolution of different variants of this highly contagious virus posed a real and imminent hazard in terms of exposure to the virus in the workplace;

(g) People who have not been fully vaccinated against COVID-19 are most at risk; and

(h) DP World Australia was aware that the Governments in both Victoria and Western Australia were considering mandated vaccinations for stevedores and this in fact subsequently occurred.”

[118] The requirements of the Mandate applied to all employees at DP World entities, including in its logistics business, head office and operations and the Mandate was not limited to stevedoring employees. Mr Hulme stressed that at all times, employees of DP World entities “were aware and given the choice as to whether they would be vaccinated or not”. At the same time, it was made clear to the employees that “a corollary of a choice not to be vaccinated would be that they could not work for DP World”.

[119] On 16 September 2021, Mr Adam, sent an email to all employees advising them of the Company’s intention to implement the Mandate across the workforce and that consultation would be commenced with employees and HSRs in relation to risk assessment. Mr Hulme stated that the general approach, endorsed by the management team in relation to the implementation of mandatory vaccines, was to deal with the implementation locally at each of the terminals. Mr Hulme broadly noted that the process endorsed by the management team was that:

“(a) employees would be sent an email reminding them to submit their COVID-19 Digital Vaccination Certificate by the relevant date;

(b) employees would then be sent a further reminder to submit their COVID-19 Digital Vaccination Certificate by the relevant date;

(c) employees would be able to ask their managers questions and would be reminded by their managers to submit their COVID-19 Digital Vaccination Certificate;

(d) bulletins would be posted around the terminals to encourage employees to make vaccination bookings and to comply with COVID-19 safety requirements.

(e) disciplinary matters relating to employees who refused to provide evidence of having received a COVID-19 first or second dose vaccination would be dealt with by terminal managers at the respective terminals.”

[120] The timeframes for compliance with the mandate were said to be based on the then availability of the primary dose course (i.e. two doses), noting that stevedoring employees were provided with early and, in some States, priority access to vaccines. Mr Hulme said that those timelines were subsequently adjusted during the consultation process.

[121] Mr Eadie said under cross-examination that prior to 16 September 2021, he was involved in several meetings of the executive leadership team at which the vaccination mandate was discussed. The decision to implement the Mandate was not put to a vote and Mr Eadie was not aware of how the decision was made. In response to the proposition that he found out about the Mandate on 16 September 2021 when Mr Adam announced it, Mr Eadie said that he may have been forewarned about the announcement but could not recall when this occurred. 47

Introduction of Mandate

[122] On 16 September 2021, an email was sent by the CEO of DP World Australia, Mr Andrew Adam, to all employees of DP World entities announcing the introduction of the DP World Australia COVID – 19 Vaccination Mandate. The email, which set out the terms of the Mandate, stated:

“DP World Australia COVID – 19 Vaccination Mandate

Dear Colleagues,

As you are aware, the continued impact of COVID-19 in the community has challenged many aspects of our day to day lives in the past 17 months. The impact of the current COVID-19 Delta strain has significantly increased the risk of community and workplace transmission.

Consistent with the Australian Government's advice, COVID-19 vaccinations are a safe and effective form of protection for our people and the community to reduce transmission and associated serious health impacts. It also plays a critical role in our road map towards living with COVID-19, along with other safe measures. We have been strongly encouraging vaccination and we are pleased that so many of you have already taken up the opportunity to receive a vaccination as priority workers, along with family members.

DP World Australia has been reviewing our risk controls to ensure the ongoing safety of our People and maintaining operational continuity to keep vital supplies moving across the Australian supply chain. We have made the decision to make COVID-19 vaccination for all employees and contractors a condition of engagement. Across all DP World Australia businesses, employees and contractors are required to provide their COVID-19 digital certificate as confirmation they have received their first dose by Friday, 15 October 2021 and for their second dose by no later than Monday, 15 November 2021.

Whilst some people will be unable to receive a vaccination due to medical contraindication, we expect these cases to be very rare. This decision has not been made lightly, however is essential in ensuring the safety of our People and ensure business continuity.

We will commence consultation with employees and health and safety representatives in the coming weeks on the details of the policy.

With your continued ongoing support, we can all stay safe together.” (emphasis added)

[123] On 5 October 2021, a further email was sent to the workforce by the CEO of DP World Australia. In that correspondence, updates on the requirements of the Mandate and the dates of compliance were set out as follows:

“DP World Australia COVID-19 Vaccination Mandate

Dear Colleagues,

Following on from our recent announcement to mandate COVID-19 vaccination for all employees, I would like to provide an update on our progress, along with confirming relevant updates from State Governments.

Our priority remains the safety of our People, contractors and the community as we transition to living with COVID.

The recent positive COVID-19 cases across multiple sites and Health Guidelines in New South Wales have highlighted and reinforced the key role vaccination status plays in reducing risk exposure in relation to testing and isolation requirements for employees who are exposed in the workplace. This has an impact on our ability to maintain business continuity.

In addition, both the Western Australian and Victorian governments have moved to mandate vaccination for our People through relevant State Health Orders, which is consistent with our approach.

I would like to thank all those employees who have obtained vaccination and submitted your COVID-19 digital certificates as confirmation.

Sydney

Employees and contractors are required to provide their COVID-19 digital certificate as confirmation they have received their first dose by Friday, 15 October 2021 and for their second dose by no later than Monday, 15 November 2021.

Those employees who do not provide first dose status by 9am, Friday 15 October 2021 will not be allocated to work from Saturday 16 October 2021.

…

Brisbane

Given the delays Queensland has had in moving to vaccinate people compared to NSW and Victoria, we have made the following minor adjustment to dates to finalise vaccination.

Employees and contractors are required to provide their COVID-19 digital certificate as confirmation they have received their first dose by Friday, 29 October 2021 and for their second dose by no later than Friday, 26 November 2021.

Those employees who do not provide first dose status by 9am, Friday 29 October 2021 will not be allocated to work from Saturday 30 October 2021.

…

We have already commenced consultation with employees about the implementation of our decision and health and safety representatives, which will continue across the upcoming weeks and enclose some Frequently Asked Questions for your reference.

With your continued ongoing support, we can all stay safe together.”

[124] Under cross-examination, Mr Hulme maintained that notwithstanding the wording of Mr Adams’ email announcing the implementation of the Mandate and made clear that the consultation would be about the with the details of the policy. 48 In response to the proposition that there was nothing in the announcement to indicate that DP World was open to reversing the decision, Mr Hulme said that there was nothing to say that the Company was not open to an alternative.49

Risk Assessment

[125] Mr Hulme, Mr Eadie and Mr Hanley gave similar evidence about risk assessments conducted by DP World, which can be summarised as follows. Risk assessments are a common procedure undertaken at DP World Australia and can take a number of forms:

a) hazards (things that could cause harm if a person is exposed to them) and the risks associated with them (the specific ways that harm could eventuate) are identified;

b) risks are assessed based on both the likelihood of occurrence and the significance of the consequences if they do occur, and plotted on a matrix having regard to both aspects of the assessment;

c) controls to reduce the likelihood or severity of the risk are identified; and

d) the risk is again assessed on the basis of those controls being in place, to determine the “residual risk”. This is how one determines whether the risk can be controlled to an extent that allows it to be brought down to an acceptable level.

[126] The process of conducting a risk assessment in relation to a particular risk or hazard in the workplace may include the following steps:

a) a draft risk assessment is prepared in consultation with business leaders nationally at each site;

b) the draft risk assessment is then tabled at a Heath, Safety and Environment meeting (HSE Meeting) at each terminal;

c) employee Health and Safety Representatives are given the opportunity to comment on the draft risk assessment as make suggestions for changes; and

d) following consultation between DPWA and the Health and Safety Representatives, the risk assessment is finalised.

[127] The process outlined above was said to have been followed and a draft risk assessment relating to workplace transmission of COVID-19 during a community outbreak (Draft Risk Assessment) was produced on or about 21 September 2021 by the Company’s National Health, Safety and Environment Committee. The Draft Risk Assessment was said to identify the potential risks of injury or illness in the workplace arising from a community outbreak of COVID-19. Mr Hulme noted that, for the majority of those risks, excluding only those hazards that have the potential to cause psychological injury, vaccination for employees and contractors was identified as a control.

[128] Mr Hulme pointed out some of the observations from the risk assessment as follows:

•  For all work scenarios, except when working alone without coming into contact with any other individuals, in a low prevalence COVID-19 case environment the current controls provide a tolerable, but not acceptable level of safety and health risk. By requiring individuals who are required to work in these scenarios to be fully vaccinated against COVID-19 the level of safety and health risk may be considered as low as reasonably practicable / as low as reasonably achievable.

•  For all work scenarios, except when working alone without coming into contact with any other individuals, in a high prevalence COVID-19 case environment the current controls do not achieve an acceptable level of risk. Due to the long lead times associated with the introduction of vaccination as an additional control, it would be unreasonable to wait until there is a high case prevalence before implementing additional controls.

[129] Mr Hulme agreed that the initial risk assessment was not conducted with HSRs or the MUA but maintained that it was conducted with employees. 50 Mr Hulme also said that he was not aware of whether there was any discussion with employees at Terminals about mandated vaccination before 16 September 2021 but maintained that he had answered questions about this topic from individuals and groups of employees before that date.51 Mr Hulme said that the initial risk assessment was conducted by 16 September and in response to a question as to why it was not provided until a week later, said that decisions were taken at local level about when to provide the risk assessment.52 Mr Hulme said that at the time the meeting with HSRs was conducted on 23 September he was not aware that they had not been provided with the risk assessment in advance of the meeting but was aware of it now.53

[130] In response to a proposition that he could not identify a single example of a risk assessment having been conducted in the manner of the assessment relating to the Mandate, Mr Hulme referred to the introduction of a new quay crane and said that purchases are made all the time based on a draft risk assessment which is then discussed on site once the equipment arrives. Mr Hulme also gave examples of quay crane operation, ITV operation and lashing to attempt to get uniformity across the Terminal. 54 Mr Hulme accepted that he had not attached those assessments to his statement.55 Mr Hulme also maintained that the content of the risk assessment conducted by the Company included measures that had already been implemented with the involvement of HSRs such as sanitisation and other changes to work organisation to minimise transmission of COVID – 19.

[131] After the Draft Risk Assessment was released, Mr Hulme said DP World Australia met and engaged with HSRs at all Terminals. Feedback was provided orally at meetings. Mr Hulme said that the feedback was considered, responses were provided, and the MUA was also consulted. Mr Hulme also spoke to Mr Evans personally on the subject. Mr Hulme indicated that each of the General Managers for the Terminals met with each crew to consult with them about the Policy and that he was informed by each General Manager that employees were given the opportunity to ask questions.

[132] On 23 September 2021, Mr Hulme attended a national conference with Mr Evans, several employee representatives and HSRs. Also on 23 September 2021, Mr Hulme said he received an email from Mr Evans which contained 26 questions to which responses from DP World Australia were requested. On 28 September 2021, Ms Kakoschke provided response to the questions in Mr Evans’ email. On 28 September 2021, Mr Hulme received a further email from Mr Dunn in relation to the Company’s responses to those questions.

[133] Under cross-examination, Mr Hulme agreed that the email from Mr Dunn expressed disappointment at what he viewed as lack of consultation and that he did not respond to Mr Dunn’s email and was not aware of any response to Mr Dunn. 56 Mr Hulme maintained that he had continued to consult with union officials regarding matters concerning individual employees but said that he had not attached details of these to his witness statement.57

[134] Following the questions raised by the MUA, Mr Hulme said that DP World prepared a Frequently Asked Questions (FAQs) document, which was circulated to all DP World employees via email on 29 September 2021. Mr Hulme stated that as consultation continued, feedback raised in the national forums by HSRs and individuals on 5 – 6 October 2021 was also taken into account. As a result, Mr Adam sent another email communication to all employees confirming that compliance dates for the vaccination requirements were revised and extended. Mr Hulme said the extension to the timeframe was for several reasons, including giving DP World enough time to work with employees or contractors who had indicated that they did not intend to be vaccinated and make any necessary operational changes in the event of non-compliance by staff, including considering the need to bring in additional staff to meet operational needs.

[135] On 7 October 2021, Mr Hulme wrote to Mr Evans, stating that the Company had met and engaged with HSRs at all sites, feedback had been received and considered and appropriate responses had been provided at a local level. The letter also referred to earlier meetings and the FAQs distributed by the Company developed following questions raised by the MUA. The letter went on to state that the consultation process was concluded and contended that officials of the MUA were supporting (and in some cases encouraging) small groups of employees to refuse to be vaccinated. The letter concluded by making clear that DP World would not provide ex gratia pay nor permit unlimited paid leave to persons who were not vaccinated, and that disciplinary action was being considered for persons who were not compliant with the Mandate.

[136] Mr Hulme said that through the process, all employees were given an opportunity to express their views and to raise work health or safety issues and contribute to the decision-making process relating to the decision to introduce the Mandate. Mr Hulme noted that the Company was willing to amend its approach to the Mandate where there was a sufficiently compelling reason to do so, for example, the extension to the compliance dates.

[137] In relation to other aspects of the Mandate, Mr Hulme indicated that the Company did not ultimately consider that there was any basis for substantial changes. In this respect, the Company considered that:

a) DP World takes its work health and safety obligations and its place in the supply chain very seriously. Where there is a suite of safe, free and available vaccines available to employees, reputable guidance is that they reduce the risk of transmitting/contracting a serious illness and reduce the severity of illness if it is contracted, and States have discriminated between vaccinated and unvaccinated persons in their public health measures, there is strong reason for us to adopt a Mandate.

b) Other risk controls that were suggested as alternatives:

i. were not practicable (e.g. daily rapid antigen testing, which would have been required across multiple shifts and at a time when medical professionals were required to administer tests);

ii. were only practicable to an extent (e.g. social distancing, given that DP World employees in a variety of situations, such as lashing among many others, cannot avoid being in close proximity to one another or others);

iii. had already been implemented but did not affect risks to operational continuity if positive cases were introduced to a terminal and employees were required to isolate as contacts (e.g. mask-wearing); and/or

iv. were complementary to but not a substitute for the higher-order control of vaccination.

c) Delaying the process and allowing unvaccinated employees to work would lead to increased risk if there were greater further spread and transmission of COVID-19 before the Mandate was in place. That is what would have happened if, for example, DP World had held off on implementation of the Mandate while awaiting the approval of Novavax (provisionally approved by the TGA on 20 January 2022) as an alternative vaccination option, given the enormous increase in cases in all jurisdictions other than WA since December 2021.

d) Allowing employees to take indefinite leave without a clear idea of whether or when they would be back at work is not feasible given the way that DP World plans, rosters and allocates labour. Significant flexibility is required in stevedoring and access to labour resources as and when required is critical.

[138] Mr Hulme said that as of 15 October 2021, 91% of DP World employees had provided evidence of their vaccination status and only approximately 50 employees had advised that they would not be vaccinated or refused to indicate whether they were or would be vaccinated, with the result that DP World had to assume they were not. After the Mandate was implemented, Mr Hulme said he had spoken to many employees, who were vaccinated, to seek their views on the Mandate and he had not received any negative feedback from them. Under cross-examination, Mr Hulme agreed that the effect of the Mandate was “no jab, no job”. In response to the proposition that no-one communicated to employees during the implementation stage that DP World has a privacy policy, Mr Hulme said that employees have access to policies and it is outlined in employment letters. Mr Hulme also maintained that when employees were informed of the requirement to provide their vaccination status to the Company, HR departments around the country went through matters with regard to how those vaccine certificates would be stored and held. 58

[139] In relation to the risk assessment conducted by the Company, Mr Eadie maintained that there were national risk assessments where the same process was conducted but agreed that there had never been a situation where a national risk assessment was provided to WHS representatives at a local level and they were given to opportunity to do anything but comment on it. Mr Eadie also maintained that he forwarded the risk assessment prepared by DP World management to employees prior to the meeting on 23 September for their consideration. In response to the proposition that the risk assessment was a complex document that would require a day or multiple days to go through, Mr Eadie said that the risk assessment, with the exception of one control measure, was made up of measures that had already been in place for up to two years and that the HSRs were well across those measures. 59

[140] Mr Eadie did not agree with the proposition put to him under cross-examination, that all that occurred at the meeting prior to the zoom meeting on 23 September was an unscheduled meeting with a few HSRs to allow them to comment on what had been created at a national level. Mr Eadie said that at the morning meeting on 23 September, they worked through the risk assessment document and discussed alternative control mechanisms. Mr Eadie also said that this meeting was preceded by a meeting on 22 September where the risk assessment was handed to HSRs at the Health and Safety Environment Committee Meeting about the document and the process that would be followed the next day. In response to a question as to why there was no working through the document on 22 September, Mr Eadie said that there was a full agenda for the meeting, and he wanted the HSRs to have an opportunity to read the risk assessment document before they started working through it on 23 September. 60

[141] Mr Eadie agreed that he scheduled a meeting with four of seven HSRs at the Terminal for the following day (23 September) and that protests were made at that meeting that the document was not a proper risk assessment. Mr Eadie agreed that this process had not been followed before. When the meeting with HSRs concluded, Mr Eadie went straight into the national meeting which was conducted video conference. 61 Mr Eadie agreed that questions were asked of the Company at this meeting and not all questions were answered and it was agreed that the Union would provide a list of questions to which the Company would respond. Mr Eadie did not recall a commitment to meet again when the Union had received the Company had responded. Mr Eadie agreed that since the meeting of 23 September there had been no other formal consultation with WHS representatives. In re-examination, Mr Eadie said that the risk assessment prepared by DP World management had been sent to all HSRs in the Company on 21 September 2021. In further cross-examination arising from a response to a question from me, Mr Eadie accepted that he had not included this in his witness statement and in further re-examination was taken to the statement of Mr Lewis who said that he met with Mr Eadie on 21 September to discuss a risk assessment matrix that was being circulated.62

[142] Mr Hanley provided a second witness statement in which he disputed the evidence of Mr Carty and said that there is no reason why a risk calculation sheet must be developed from scratch by HSRs and that on many occasions the Company has formulated a draft and provided it to HSRs for review, including a draft quay crane assessment on 12 November 2021 and a draft vessel operations risk assessment on 16 November 2021. Mr Hanley said that he assumes that Mr Dunn knows this given his use of the term “usually” in his evidence about the process for risk assessments.

[143] Under cross-examination, Mr Hanley maintained that the National Health and Safety and Environment Committee develops draft risk assessments for anything that will be influencing the business nationally and gave examples of a number that had been developed in this way before being shared locally. In response to a question as to how the risk assessment in relation to the Mandate was distributed to Brisbane HSRs, Mr Hanley said that it was emailed to them two days prior to 23 September but did not do this himself. Mr Hanley agreed that a lot of questions were asked that could not be answered and said that his understanding was that the questions would be forwarded to the Company and a response given before the next meetings with local HSC Committees. Mr Hanley also agreed that there was not a lot of “back and forth” about the assessment given Mr Carty’s comment that he had nothing to say about it. Mr Hanley further agreed that between 24 September and 7 October the WHS Committee did not meet again other than on 24^th in respect of the National risk assessment. Mr Hanley maintained that there were ongoing discussions after 24^th September with various employee representatives and communication was not closed.

[144] Mr Hanley agreed Under cross-examination that when the Mandate was implemented there were not substantial outbreaks and hard lockdowns in Queensland in comparison to New South Wales. 63 Mr Hanley did not accept that had the Brisbane WHS Committee done a risk assessment solely considering the conditions in Brisbane, that the Mandate would not be imposed. Mr Hanley maintained that the risk assessment was not based on current conditions in Queensland and was a consideration of managing the risk of COVID at the Brisbane facility. Mr Hanley had the following exchange with Mr Bond in relation to this issue:

“Nationally, at all of the ports, that draft risk assessment applied equally in Sydney and Brisbane and Fremantle?---Yes.

Okay, so had the individual workplace health and safety reps been able to conduct their own risk assessment using that as a template, you would agree that the final result most likely would have markedly differed between Brisbane and Sydney considering the separate conditions?---I don't know what it would have looked like.

Well, we'll never know the answer to that question, because the individual workplace health and safety committees in Sydney and Brisbane weren't given that opportunity to prepare a risk assessment, were they?---Not from scratch, no Mr Bond.

Not at all.  There was no risk assessment performed by the workplace health and safety committee in Brisbane, right?---They were invited to participate in the review of the risk assessment.

Upon a single day.  You never reconvened it, or gave them an opportunity to change the risk assessment that had been dictated to them, right?---Well, we were open to any feedback which none presented.

So, they didn't on the day, you never called another meeting to try to elaborate on the risk assessment that had been provided to you, right?---No, we didn't.” 64

Implementation of Mandate at Sydney Terminal

[145] Mr Eadie understands that a mandate in the same terms was adopted by all DP World entities, including in its logistics business, head office and terminal operations in other ports. In Fremantle and Melbourne there were (and are) public health measures in place which require that stevedores be vaccinated in any case. Mr Eadie stated that the email from Mr Adam advising employees of the introduction of the Mandate made clear that consultation would occur with employees and that a full risk assessment was being undertaken. Copies of the email were posted on Notice Boards and distributed within the Terminal. It was also regularly raised at pre-shift toolbox meetings. This was to ensure that all employees of the Terminal were aware of the Mandate and the opportunity to provide feedback and consult on the proposed Mandate

[146] In the period after 16 September 2021, Mr Eadie’s Management Team, the HR Team, and himself had at least 20 interactions with employees each day regarding the Mandate. These conversations would often involve receiving feedback from the employees about the vaccine mandate and considering this feedback, discussing risks associated with COVID-19 raised by the employees and taking these into consideration in the risk assessment and answering questions about the Mandate or the priority vaccine bookings. Mr Eadie said that at the time of Mr Adam sending his email dated 16 September 2021, approximately 77% of the employees at the Terminal had notified DPW Sydney that they had received their first vaccine.

[147] On 22 September 2021, Mr Eadie emailed a Bulletin to every Terminal employee reminding them of the vaccine mandate and asking them to supply a copy of their vaccination certificate. On 23 September 2021, Mr Eadie arranged and attended a consultation meeting with HSRs to review and discuss the Risk Assessment. In attendance at this meeting were three HSRs from Operations including the Chairman of the Safety Committee, one HSR from Maintenance, and one HSR from the Supervisors. At this meeting, various risks and issues were discussed at length, and three main alternative control measures were put forward and weighed up, including;

a) Rapid Antigen Testing of every employee prior to each shift. This was considered impractical for a number of reasons including;

i. the number of employees involved (over 600), These employees have multiple start times across a 24/7 operation and the time required at the start of each shift was considered unmanageable;

ii. the Public Health Guidelines at that time required a medical professional to administer the testing. Given the 24/7 nature of our operation, this was not considered practical or achievable; and

iii. Rapid Antigen Tests had only just been introduced, and supply of the numbers of test kits involved up to 400 per day for an indefinite period was not assured.

b) Weekly PCR testing of every employee. This was considered impractical due to the potential for an employee with Covid-19 to attend work while infectious in the period between tests

c) Waiting for the Novavax vaccine to be released in 2022. This was considered impractical for a number of reasons including:

i. the timeframe involved, which was anticipated would be at least 4 months until the earliest potential introduction. This turned out to be accurate, as Novavax received provisional approval from the Therapeutic Goods Administration on 20 January 2022;

ii. there was at the time no guarantee that the Novavax would be available or approved for use at all; and

iii. there was no guarantee that all or any of the unvaccinated employees would be vaccinated if and when Novavax became available.

[148] On 23 September 2021, Mr Eadie attended a National consultation meeting regarding the Mandate. At this meeting, there were representatives from the MUA from QLD, NSW, VIC & WA as well as National MUA Officials and Delegates from all 4 DP World Terminals. Mr. Lewis, the Chairman of the Port Botany Health and Safety Committee, attended this meeting as the MUA delegate for Sydney. At this meeting, the MUA representatives asked questions which were consolidated into a list of 24 Frequently Asked Questions (FAQs). These were subsequently responded to and distributed to employees via email and in the workplace. They were also attached to an email sent by Mr Adams to employees on 5 October. On 27 September 2021 an email was sent to Sydney employees who had not advised their vaccination status or had only received one dose. On 5 October 2021, Mr Adam sent a further email confirming that for some terminals there had been an extension to the dates by which they were to be vaccinated. There was no change to the dates for the Sydney Terminal. On 12 October 2021, Mr Eadie sent a communication to employees regarding the Mandate and requiring them to confirm their vaccination status by 15 October 2021. Mr Eadie also tendered an email from Mr Dunn sent on 23 September 2021 advising of vessels on which “positive cases” may have worked and requesting that HSRs be advised if any of the named vessels called at DP World.

[149] On 13 October 2021, COVID-19 vaccine control measures including the Mandate were discussed with the elected Employee Representatives at the Employee Representative Committee Meeting. According to Mr Eadie, the bulk of the conversation during this meeting was around how the Mandate would be applied to ships crews, truck drivers, and contractors. The answer to this question that was provided is that DP World has no control over ships crews, but otherwise will allow unvaccinated drivers or contractors to attend the Sydney Terminal only where this can be done in a “contactless” manner that creates no risk of transmission to employees.

[150] Mr Eadie also gave evidence about an attendance at the Sydney Terminal on 19 October 2021, by Inspectors from SafeWork NSW in respect to the consultation which had occurred over the Mandate. One of the Inspectors was said by Mr Eadie to be regularly involved where there is a need for DP World Sydney to interact with SafeWork and to be familiar with DP World Sydney operations, and he introduced the other Inspector as his Manager. Also attending the meeting was Mr. Robert Stamenkovic, HSR from Operations, and Mr Bradley Dunn of the MUA. Mr Eadie took notes of this meeting and referred to those notes to prepare his witness statement.

[151] At this meeting, Mr Eadie went through the consultation which had occurred, as detailed in his evidence in these proceedings. According to Mr Eadie, the Inspectors expressed no concerns regarding the information they were provided and one Inspector said words to the effect that “consultation has occurred and the workforce included in the process”, and “our employer has also mandated vaccinations and followed almost the same process”. The Inspectors requested copies of documents relating to the consultation meetings including the attendance register, the Draft Risk Assessment, the Final Risk Assessment, and the FAQs with answers and these were provided by email on 26 October 2021. The Inspectors did not issue any Process Improvement Notices or any directions to DPW Sydney regarding the consultation process that had occurred, either on the day of their visit or subsequently.

Termination of Sydney employees

[152] On 19 October 2021, Mr Eadie caused a letter to be sent to each of the Sydney Applicants inviting each of them to “show cause” as to why their employment ought not be terminated. Mr Eadie directed the employees to “show cause” because:

a) DPW Sydney had adopted the Mandate, following the Risk Assessment and consultation process

b) despite the Mandate, the Applicants had not provided evidence to DPW Sydney of their vaccination status and/or they had indicated that they were not and would not be vaccinated;

c) at no time did any Applicant provide to DPW Sydney the required evidence that they were medically exempt.

[153] On 24 October 2021, the MUA filed a dispute notification with the Commission, which was assigned matter number C2021/6927. The dispute notification alleged non-compliance with Part A, clause 21 of the Sydney EA, which deals with workplace safety. The Dispute was listed before Deputy President Bull for a conciliation conference on 1 November 2021. Subsequently, the MUA filed an amended dispute notification, now alleging solely that the Mandate was void because it was inconsistent with the intent of the Sydney EA and therefore excluded by Part A, clause 8.12. The MUA did not take any steps seeking to prevent the termination of any employees, and ultimately discontinued matter C2021/6927.

[154] On 25 October 2021, a letter was sent to each of the Applicants advising of the termination of their employment. One employee who requested a meeting to discuss the situation, was granted a further period in which to comply with the Mandate. That employee did not provide any evidence of their vaccination status and was ultimately terminated. Mr Eadie stated that he takes the decision to dismiss any employee very seriously. Before reaching this decision, he considered all of the facts and circumstances, responses provided by the Employees and the impact that the termination may have on them. Mr Eadie also considered whether there was any option other than termination. Mr Eadie said that he made the decision to terminate the Sydney Applicants’ employment for the following reasons:

a) DPW Sydney had experienced first-hand the significant impact that COVID-19 can have on the workplace and the risks associated with COVID-19 outbreaks in the workplace;

b) Sydney was in the midst of a significant outbreak of the Delta variant of COVID-19;

c) the Sydney Applicants failed to comply with the vaccination Mandate in that they failed to provide evidence of their vaccination status by the relevant dates. This is despite, each of the Sydney Applicants being given multiple opportunities to provide this information;

d) a number of Applicants provided the same pro forma email to Mr Eadie on 3 October outlining that they chose not to get vaccinated. The email was a statement outlining their concerns about the COVID-19 vaccines. These emails contained information commonly found on anti-vaccine websites and were not evidence of a medical exemption from receiving a COVID-19 vaccine, as required by the Mandate. While Mr Eadie considered this information and the views of the Sydney Applicants, it did not displace the requirements of the Mandate or the risks identified in the Risk Assessment, it did not form evidence of a medical exemption request, and Mr Eadie did not consider that the matters raised in it provided any proper reason for DPW Sydney to reconsider the Mandate. Much of it struck Mr Eadie as conspiracy thinking; and

e) the Sydney Applicants who sought to rely on a medical exemption did not provide the required level of evidence, being a completed Australian Immunisation Register immunisation medical exemption (IM011) Form that was valid under Australian Technical Advisory Group on Immunisation guidelines.

[155] In his statement of evidence in reply, Mr Eadie said that while Mr Dunn’s evidence that the NSW Health Order did not mandate vaccination for NSW stevedores and no other stevedoring Company in Botany had mandated a vaccination policy, what Mr Dunn did not state was that at the relevant time, an employee who lived in an LGA designated as an area of concern, could not leave the LGA to work unless vaccinated, and this affected 183 stevedores at DP World Sydney, or 30% of its workforce.

[156] In response to Mr Dunn’s assertion that concerns of Applicants raised in their show cause responses were not addressed or alleviated, Mr Eadie said that the majority of responses contained varying degrees of “anti-vaccination sentiment” which while taken into account did not warrant a response. Some asked for an extension or pointed to their past work history but did not indicate an intention that they were to be vaccinated or would seek a contra-indication certificate. Two Applicants provided a reasonable basis to request a further period and this was granted but the employees were subsequently dismissed. In relation to Mr Dunn’s assertions about the process for validating contra-indication certificates, Mr Eadie said that the medical certificates were deidentified and sent for independent review by Dr David Gorman of MLCOA. A review conducted by Dr Gorman, including his credentials was tendered by Mr Eadie indicating inter alia that Dr Gorman is a Consultant General Physician, Pain Management Physician and Medical Oncologist and is a Permanent Impairment Assessor with WorkCover NSW – SIRA, NSW Motor Accidents SIRA, NSW Workers Compensation Commission, WorkCover Tasmania and Comcare. A review undertaken by Dr Gorman indicated that he had conducted a detailed examination of documentation provided in relation to a de-identified employee and had concluded that the employee did not have a COVID – 19 Vaccine Medical Contra-indication within the scope of the guidelines issued by ATAGI and other relevant bodies and that the medical reason of extreme anxiety and fear of vaccine is not within the scope of those guidelines. The Review also acknowledges that Dr Gorman has read the Expert Witness Code of Conduct and agrees to be bound by it. 65

[157] In relation to Mr Dunn’s assertion that by the Company’s own admission the vaccination rate in the Sydney Terminal was and remains above community vaccination rates and citing percentages, Mr Eadie said that the article cites that 97% of DP World’s Sydney workforce and 93% of its Brisbane Workforce had provided evidence of their vaccination status, and not that those percentages of employees were vaccinated. Mr Eadie said that as at 22 October 2021, 86.7% of the overall workforce and 84.7% of the operations workforce was vaccinated. Mr Eadie also reiterated that the risk assessment process that DPW Sydney undertook, included the Chairman of the HSE Committee and three HSRS and HSRs were invited to provide feedback on the risk assessment as evidenced by the letter tendered by Mr Dunn. 66

[158] Mr Dunn also disputed Mr Lewis’ evidence that other controls were not discussed at the meeting on 23 September 2021 and referred to his notes of the meeting in this regard. Further, Mr Dunn disputed the evidence of Mr Lewis that a risk assessment had not been done in that way before and said that this had occurred from time to time in Brisbane and Sydney and gave examples referred to as the Mode Change Project, when all new machinery and versions of operations was introduced. Mr Eadie also queried Mr Lewis’ evidence that repeated attempts were made to get notes of the 23 September meeting from Mr Eadie and said that he is aware of only one attempt being made to obtain the notes as evidenced by an email chain tendered by Mr Lewis. 67 In relation to Mr Lewis’ comment that about lack of educational opportunities or updates on benefits and drawbacks of vaccinations, and lack of consultation about the concerns the workforce may have had concerning work health and safety and vaccines, Mr Eadie said that he is not sure what Mr Eadie means given that over 50 Bulletins and updates in relation to COVID – 19 have been distributed at the Terminal and vaccinations have regularly been discussed in HSE and ERC meetings. Mr Eadie also contended that Mr Lewis’ views in this regard are influenced by his own opinion on vaccination, evidence by emails tendered by Mr Eadie. Those emails raise many of the issues, and some are in substantially the same form, as those provided in these proceedings by the self-represented Applicants.68

[159] Under cross-examination, Mr Eadie said that six or eight employees at the Sydney Terminal were found to have valid contraindications to vaccination and that this process was undertaken by a panel of three doctors. Mr Eadie agreed that these six to eight employees continued to be employed at worked normally at the Terminal. Further, Mr Eadie agreed that an unvaccinated employee would present the same risk as someone with a contraindication to vaccination that had been deemed to be valid. Mr Eadie maintained that this protected employees’ safety and operational continuity by decreasing exposure and meant that there would be less people that were unvaccinated in the workplace. There were also additional control measures in relation to wearing masks. 69 Mr Eadie agreed that following the dismissals, there was a 99% vaccination rate at Port Botany with six to eight employees having valid contraindications to vaccination.70 Mr Eadie also agreed that many employees who had participated in the show cause process had told him they had reservations about getting vaccinated and that some had also stated that they were hardworking and loved their jobs. Mr Eadie said that he had no doubt as to the genuineness of what he was told by these employees. Mr Eadie agreed that he did not invite any of these employees to discuss their concerns with him on a one-on-one basis but he did meet with one employee who initiated a meeting.71 Mr Eadie further agreed that he did not meet with any employee who did not request a meeting notwithstanding that he was provided with details of the individual circumstances of those employees.

[160] Mr Eadie said that he understands that the alleged bullying referred to emanated from Mr Pintley being directed to wear a facemask as per public health guidelines and Terminal COVID – 19 procedures. In response to Mr Pintley’s assertion about lack of response to an email he sent on 3 October raising “valid concerns … in regards to his health and safety and of taking COVID – 19 vaccinations”. Mr Eadie said that the email concerned is identical to 51 other emails he received over the space of a few hours on 3 October 2021, in the middle of the labour day long weekend. That email is said by Mr Eadie to contain a statement and did not seek a response. Mr Pintley said that he later discovered that the email appeared to be copied in its entirety from a website called “Human Rights Advocates Australia” which appears to provide a number of free and paid templates to persons who are against vaccination and wearing masks. The terms of that email are set out at [194] below. 72 I also note that the same, or substantially the same text, is set out in the email exchange between Mr Eadie and Mr Lewis and that this email was sent by Mr Lewis on 3 October 2021.73

[161] In response to Mr Pintley’s evidence about the list of employees upon which his name appeared, Mr Eadie said he became aware of this list from text messages sent to him and described it as a list of employees who were thought to be unvaccinated that was circulating in the Terminal. Mr Eadie denied that it is a DP World document or that it was created through privacy breach. From his review of the list, it is clear to Mr Eadie that employees had simply listed all the persons in their crew who were absent from work and that it included some employees who had been vaccinated but were on long term leave. The matter was investigated, and DP World was unable to identify the source of the list. Mr Eadie gave directions for a search to be conducted to ensure that no copies of the list were in the workplace and none were located.

[162] Mr Eadie denied that there is a culture of condemnation against employees who are vaccine hesitant and maintained that at all times, he has respected the choice of those employees, notwithstanding that the consequence is that they cannot work for DP World. Mr Eadie also maintained that the privacy of employees and the security of their vaccination certificates has been protected. With respect to Mr Pintley’s comments about Mr Dunn, Mr Eadie pointed out that Mr Dunn is not an employee of DP World and is an employee of the MUA. Any feelings that Mr Pintley had about Mr Dunn’s communication are a reflection on Mr Dunn and the MUA and not on DP World. Mr Eadie also tendered a copy of DP World’s Privacy Policy which he stated can be obtained by employees on the Company webpages or from HR.

[163] Under cross-examination by Ms Pintley on behalf of Mr Pintley, Mr Eadie agreed that Mr Pintley was not placing the health and safety of workers on the front line at risk while he was at home on sick leave and then workers’ compensation but maintained that Mr Pintley’s dismissal was not futile because he would have returned to work ain some capacity. Mr Eadie also maintained that Mr Pintley indicated that he had no intention of being vaccinated and that he understood this from Mr Pintley’s email correspondence. In response to a question as to why he had not consulted Mr Pintley about his emails, Mr Eadie said that the emails were statements that were quite categorical and did not elicit a response. In reply to a further proposition that Mr Pintley’s emails were still responses, Mr Eadie said that he did not consider it worthwhile to engage further with Mr Pintley.

[164] Mr Eadie also stated that to warrant a reply, Mr Pintley could have asked for further information or requested a meeting or asked to discuss the matter further or indicated that he was willing to get vaccinated. In response to a question about the process for consulting employees who are on workers compensation and are not members of the MUA, Mr Eadie said that his understanding is that HSRs represent all employees regardless of whether they are members of the Union or not. Mr Eadie also said that Mr Pintley received the same correspondence as every other employee and should have found out about what was happening at the workplace by that method. Mr Eadie maintained that email correspondence was appropriate for consultation with Mr Pintley. 74

Implementation of the Mandate at the Brisbane Terminal

[165] Mr Hanley’s evidence about the implementation of the Mandate at the Brisbane Terminal was that after the details of the Mandate were advised to employees by Mr Adam on 16 September 2021, he sent an email to all employees at the Brisbane Terminal on 22 September 2021, asking them to confirm their vaccination status by 15 October 2021. On 23 September 2021, Mr Hanley sent an email attaching Bulletin 2431 to all employees at the Terminal advising them of the steps of how to book their COVID-19 vaccination and confirming they had priority booking as a category 1b worker – “Quarantine and Border Workers” and provided them with the registration code required to make an early vaccination booking.

[166] Mr Hanley also attended the national meeting on 23 September 2021 and confirmed Mr Eadie’s evidence in relation to the 24 questions and the responses provided as FAQs and circulated to all employees at DP World via email on 29 September 2021. On 24 September 2021, Mr Hanley attended a HSE Meeting at the Brisbane Terminal. Local management and HSRs attended this meeting. The Draft Risk Assessment was tabled during this meeting. During this meeting, Mr Hanley recalled that, in relation to the draft Risk Assessment, Mr Carty said words to the effect: “We have nothing to say at this stage on the Risk Assessment.”

[167] On 5 October 2021, Mr Adam sent an email to all employees advising them of an extended deadline to provide the confirmation of their first COVID-19 vaccination by 29 October 2021 and confirmation of their second dose by 26 November 2021. On around 12 October 2021, Mr Hanley caused a letter to be sent to employees of DP World Brisbane regarding their vaccination status and its implications under the Mandate. Mr Hanley said that the letter was sent to all Brisbane Applicants in these proceedings, on or around that date. In summary, the letter advised employees that by 9.00 am on 28 October 2021, they were required to provide DP World with either a full vaccination certificate or a certificate demonstrating that the employee had received one vaccination dose and had a booking for a second dose. Any medical exemptions were requested to be urgently supplied to the Company and information about the privacy of that material was also provided. The letter stated that that alternative work would not be provided to employees who had not complied with the Mandate. The letter concluded with the following:

“Next steps

We are committed to proceeding with our vaccination mandate, it is our genuine wish that you do everything possible to comply with the directive.

The direction is lawful and reasonable and is designed to ensure that we can adequately manage the safety risks and continue our operations. You will not be able to work at DP World if you fail to comply with the requirements by the above due date.

If you are experiencing genuine hardship in complying with the directive you may request one (1) additional week of annual leave (if you have an available balance) to permit you to obtain your vaccination by no later than 7 November 2021. If you have no paid leave you may request to be placed on leave without pay for the week. Any request for Annual Leave needs to be made via Microster.

If you have not supplied information by the above date, and do not make a request for approved leave, you will be required to provide reasons why your employment should not be terminated by no later than 5 pm 1 November 2021.”

[168] The directions in these letters were referred to by Mr Hanley as the Vaccination Direction. On 15 October 2021, Mr Hanley received a letter from Mr Jason Miners, Acting Branch Secretary of the MUA Queensland Branch, in relation to concerns around the Vaccination Direction. 75 The letter was addressed “Dear Queensland Terminal Operator” and stated that the MUA had concerns about directions to employees to be vaccinated as follows:

1. The directions may not be lawful and reasonable particular given that it appeared to the Union that workers had not been properly consulted;

2. It appeared there had been no consultation with HSRs and Terminal specific Health and Safety Committees;

3. In terms of safety consultation, no risk assessments had been undertaken or provided to the workforce or to the relevant HSRs and Health and Safety Committees; and

4. It appeared that workers will be required to divulge their personal information in circumstances where it may not be lawful for employers to request certain types of information, particularly if the directions are not lawful and reasonable.

[169] The letter went on to state the view of the MUA that before any direction for compulsory vaccinations, all Queensland Terminals should firstly agree to undertake rapid antigen testing at the commencement of each shift, which in the view of the Union would significantly mitigate the risk of COVID – 19 in the various workplaces. The letter also referred to recent advice from the Fair Work Ombudsman stipulating that it may not be lawful and reasonable to direct every employee to be vaccinated in every circumstance and that workers at the Queensland Terminals are likely to be Tier 3 workers and at lower risk than those in higher tiers. The letter went on to point out that if any Queensland Terminal and associated employer sought to introduce mandatory vaccination in the absence of a public health order, consultation with workers and safety committees would be required. The MUA letter sought that any directions which had been prematurely provided should be “paused” until proper consultation occurs and issues are addressed. The letter concluded with the MUA reserving its rights to take action without further notice to protect members’ rights, if directions were not “paused”. 76

[170] On 20 October 2021, Mr Hanley responded to Mr Miners’ letter stating that it was a generic letter that did not reflect any of the communication and consultation that had occurred at the DP World Brisbane Terminal. The response pointed out that DP World had commenced consultation on 16 September 2021 and since that date, had consulted with HSRs locally and also hosted a national consultation form attended by HSRs including from Queensland, answered questions and engaged in multiple individual discussions and communications to the workforce. The response also stated that as a result of that process the dates for the vaccination program had been adjusted. The response further stated that:

•  The Vaccination Direction is a reasonable and proportionate response to the risk outlined in the risk assessment already provided to the MUA;

•  Consultation had occurred;

•  HSRs had been provided with a draft risk assessment and had provided their feedback to it and the rollout program for the Brisbane Terminal was adjusted based on that feedback; and

•  The request for information about vaccination status is reasonably necessary to effect the successful implementation of the vaccination program.

[171] In response to the proposal for rapid antigen testing, Mr Hanley’s response stated that this was not a viable alternative to vaccination given: the cost of engaging specialist personnel to administer tests; the more deleterious effect if there is a community outbreak as unvaccinated employees are usually required to isolate at home for longer while vaccinated employees can return sooner resulting in business continuity; and that this proposal did not enable employees to avoid the rise of serious injury and death as a result of contracting COVID. The response pointed out that the FWO “advice” referred to by the MUA came with a disclaimer to the effect that it is general in nature and a generic opinion did not take into account the rise assessment of the industry and workplace. Mr Hanley’s response concluded by stating that individual employees who had a personal preference not to be vaccinated would not be accommodated, and the Company would be continuing with its vaccination program. 77 Mr Miners did not respond to Mr Hanley’s 20 October 2021 letter and Mr Hanley has not heard from him further in relation to the issue.

[172] On or around 26 October 2021, Mr Hanley caused a further email to be sent to employees of DPW Brisbane from Greg Muscat (Human Resources Manager) regarding their vaccination status and its implications under the Mandate. The letter advised that if employees did not provide evidence of vaccination consistent with the Mandate, by 28 October 2021, they would not be allocated any further shifts.

[173] Mr Hanley also maintained that consultation continued between the announcement date and the implementation date of the Mandate and that all requests and concerns were raised and considered. Mr Hanley also said that as a result of matters raised in consultation the date for DP World Brisbane employees to have their first vaccine dose was moved back by two weeks. Mr Hanley had individual counselling meetings with employees during this time at which he discussed their concerns and questions about the Mandate. Employees were also directed to Queensland Health and encouraged to discuss vaccination with their GPs or medical practitioners. Mr Hanley stated that he is not sure what the Company could have done to educate employees on the benefits of vaccines given that these are well known and employees who do not accept that will not be convinced on hearing it from Mr Hanley or another DP World Manager.

[174] Mr Hanley also said that where employees raised issues of privacy with respect to their information these were addressed, and that DP World has communicated with employees generally in this respect. Mr Hanley pointed to references in Bulletins and written communication to employees about security of information and said that an employee who requested a copy of the Privacy Policy was provided with it. Mr Hanley also disputed the assertion that DP World Brisbane had not responded to individual objections or concerns raised by employees and said that this was done in writing in termination letters or in written responses to matters raised in solicitors letters on behalf of some employees during the show cause period. Mr Hanley also confirmed that no Brisbane employee presented a contraindication certificate. Further, Mr Hanley appended a copy of DP World’s privacy policy to his further statement.

[175] Mr Hulme said in his evidence that Brisbane employees were provided with a further period to comply with the Mandate so that they could make an informed decision and that the Company was willing to amend its approach to the Mandate if sufficiently compelling reasons were presented. Mr Hulme agreed under cross-examination that the reasons for the further period in Brisbane included the lack of availability of vaccines and that he had not stated this in his witness statement but maintained that this was only one of the reasons for the extension being granted. 78 Mr Hanley maintained under cross-examination that the reason for the date for compliance being moved back in Brisbane was to allow employees additional time to be vaccinated but agreed that this was due to concerns about the slow rollout of vaccinations in Queensland generally.79 In response to a question from me, Mr Hanley accepted that it was his suggestion to move the compliance date for Brisbane back because of the lack of availability of vaccines and it was not as a result of a suggestion from employees in consultation.80

Termination of Brisbane employees

[176] On 2 November 2021, Mr Hanley caused a letter to be sent to each of the Brisbane Applicants inviting each of them to “show cause” as to why their employment ought not be terminated due to their failure to comply with the Vaccination Direction. Mr Hanley states that he directed the employees to “show cause” because:

a) DP World Brisbane had adopted the Mandate following the Risk Assessment and an employee consultation process;

b) despite the Vaccination Direction, the Applicants had not provided evidence to DP World Brisbane of their vaccination status;

c) at no time did any Applicant indicate to DP World Brisbane that they are medically exempt from receiving a COVID–19 vaccination and provide the required medical exemption information; and

d) with the exception of Mr Orel and Mr Wright, no employee requested more time to comply with Vaccination Direction or obtain a medical exemption.

[177] On 5 November 2021, a group of employees (including some Applicants in the present case) commenced proceedings in the Federal Court of Australia alleging that the proposed termination of their employment was unlawful and in breach of their employment contracts. The Federal Court matter number was QUD 365 of 2021. The FCA Applicants sought interlocutory orders that pending a trial, DP World be (1) restrained from dismissing them based on their vaccination status, and (2) required to pay them if it continued to exclude them from the Brisbane Terminal.

[178] DP World gave undertakings to the effect that it would not dismiss the FCA Applicants by reason of their vaccination status pending trial, but not to pay them. At a hearing on 11 November 2021, the Court dismissed the employees’ interlocutory application. Although the Court proceedings were listed for trial on 21 and 22 December 2021, the FCA Applicants discontinued them. On 16 November 2021, DP World was released from its undertaking.

[179] On 17 November 2021, Mr Hanley caused a letter to be sent to each of the Applicants giving notice of the termination of their employment with DPW Brisbane, on the basis that they failed to comply with the terms of the Mandate and for failing to comply with a lawful and reasonable direction. A letter in essentially the same terms was sent to every other Applicant in these proceedings on or around 17 November 2021.

[180] Mr Hanley stated that he takes any decision to terminate the employment of any employee extremely seriously, and before making this decision, reviewed all available information such as relevant policies, length of service, disciplinary history and any information provided during the show cause process. Mr Hanley also took into account the effect the dismissal may have on the employee and their personal circumstances. He also gave due consideration as to whether another form of disciplinary action would be more appropriate. Mr Hanley said that he made the decision to terminate each of the Applicants’ employment for the following reasons:

a) DPW Brisbane had adopted the Mandate following the Risk Assessment and consultation process;

b) despite the Mandate, each Applicant either not did provide evidence to DPW Brisbane of their vaccination status, or indicated that he was not vaccinated and would remain unvaccinated;

c) at no time did any Applicant indicate to DPW Brisbane that they are medically exempt from vaccination and/or provide the required information, being a completed Australian Immunisation Register immunisation medical exemption (IM011) Form and confirmation from the AIR that their exemption has been recorded in the AIR database;

d) while one Applicant (whose application was filed more than 21 days after his dismissal and is subject to a separate hearing seeking an extension of time) provided a statement that he would not be vaccinated for religious reasons, consistent with the Mandate, only medical exemptions were accepted; and

e) two Applicants (Mr Orel and Mr Wright) requested to take paid leave until the Novavax vaccine was approved, which they said would occur in December 2021.

[181] In relation to Novavax, Mr Hanley looked into its status, and was not aware of the basis (if any) for that statement at the time. The Novavax vaccine was then still undergoing evaluation by the TGA, and there was no indication of whether or when it would be approved for use in Australia. It was in fact provisionally approved by the TGA on 20 January 2022. Given that DP World relies on accessing labour from a shiftwork roster system that operates with significant labour flexibility and irregularity, the Company cannot afford to have employees unavailable for an indeterminate period (if indeed they will return to work at all). Mr Handley also needed to backfill roles if that was to occur. For these reasons, the request made by Mr Orel and Mr Wright was refused and their employment was also terminated.

Evidence for represented Applicants

[182] Mr Dunn is the Divisional Assistant Sydney Branch Secretary for the MUA and responsible for representing and advancing the industrial interests of MUA members employed in the maritime industry, including by DP World Sydney. Prior to his role with the MUA, Mr Dunn was employed by DP World Sydney as a stevedore for about 25 years and as a Safety Facilitator for the last 8 years. During his employment with DP World Sydney, Mr Dunn was on the Work Health and Safety (WHS) Committee for a time and a WHS Delegate involved in a range of tasks, such as risk assessments, contractor management on site, communicating safety outcomes and creating safety bulletins.

[183] Mr Dunn said that he first heard about the Mandate on 16 September 2021 through the email announcement made by the CEO of DP World Australia, Mr Adam. Mr Dunn expressed the view that there was no consultation before this announcement or any indication that such an announcement would be made imminently and said that “the MUA, the WHS Committee and members of the MUA were completely blindsided” by the announcement.

[184] According to Mr Dunn, the NSW Health Order at the time of the announcement did not mandate NSW stevedores be vaccinated, and neither did any other stevedore Company in Botany mandate a vaccination policy. Mr Dunn also said that Patrick Stevedores Holdings Pty Ltd (Patrick), Sydney International Container Terminal Pty Ltd and Brisbane Container Terminals Pty Ltd (Hutchison Ports) did not have a mandatory vaccination policy at their waterfront operations in Australia.

[185] On 20 September 2021, Mr Adrian Evans forwarded to Mr Dunn a copy of a letter from Mr Mark Hulme, Chief Operating Officer for DP World Australia, and addressed to Mr Evans. In the letter, Mr Hulme stated that he could be available for a meeting on 23 September 2021 to discuss the Company’s COVID – 19 safety management plans and the updated risk assessment.

[186] On 23 September 2021, Mr Dunn attended a national conference meeting via Zoom. Mr Dunn said that a number of persons were present at the Zoom meeting, including Mr Hulme, Ms Tory Kakoschke (Head of People for DP World Australia), Mr Evans, Mr Matt Lewis (MUA member), Mr Shane Stevens (MUA Victorian Branch Secretary), Mr Aaron Johnston (Relieving Official for the MUA Queensland Branch) as well as Health Safety Representatives (HSRs). Mr Dunn said that “in all there was one MUA official from each MUA branch and one employee representative from each DP World site.”

[187] At that meeting, Mr Dunn said that many questions were raised by the MUA about the Mandate. The MUA was shown a sheet the Company representatives “deemed to be a risk assessment matrix”. In Mr Dunn’s view, it was not a proper risk assessment but merely an introduction to the policy and it was the first time such a risk assessment matrix was shown to the MUA. Mr Dunn said that “it was clear from the meeting that the company had already decided to implement their policy without consideration of our views or concerns”.

[188] The Company was asked during the meeting how it would manage contraindication certificates from employees and Mr Dunn said the response from the Company was that they would consider contraindications that were acceptable to the Company. Mr Dunn said that later it was revealed by the Company that it had put together a panel of “what they deemed ‘experts’ on vaccine contraindications” and that no consultation was conducted about this process. On 23 September 2021, Mr Dunn was copied into an email sent by Mr Evans to Mr Hulme after the meeting in which Mr Evans said:

“Hello Mark

Here are the questions that were raised at today’s initial consultation meeting around your announcement of mandatory covid vaccination. As you are well aware the EA, the OHS Act and the FWC guidance on covid vaccination require DPW to properly consult prior to implementing any policy that will have significant impact on employees.

Given the sense of urgency around your fast approaching timelines, we would expect responses ASAP but no later than COB Wednesday 29 September as per the commitment you made today. And as agreed today a further consultation meeting should occur after we have had the opportunity to digest your responses, which I will leave to Brad Dunn to arrange in my absence.

The below questions regarding the proposed mandatory vaccination policy are collated from members around the country and each question deserves to be answered by DPW. Your answers will guide further discussions between the parties and/ or legal response.”

[189] A total of 26 questions under the headings of “Policy Clarification”, “Application of Policy”, “Legal Framework”, “Risk Based Assessment” and “Privacy Concerns” were raised in relation to the Mandate in Mr Evans’ email to Mr Hulme. On 28 September 2021, Ms Kakoschke provided a response to each of the questions. The questions and responses are as follows:

[190] On 28 September 2021, Mr Dunn emailed Ms Kakoschke and Mr Hulme in reply to the responses provided by Ms Kakoschke on behalf of DP World Australia. In that email, Mr Dunn said that:

“Whilst we appreciate DPW timely response the content is disappointing. Consistent with DPW’s Policy announcement it seems that consultation was by name only not by nature with zero consideration given to the many options discussed. To compound matters since we discussed this issue the NSW Government have further outlined their roadmap to freedom which includes December 1 as the date where there will be no discrimination between the unvaccinated and vaccinated. If this is acceptable in society, why not the workplace?

There has been further announcements re rapid testing, costs and the change to requiring medical oversight. DPW needs to explain why if it applies to a very small percentage of employees why alternatives to vaccination are being dismissed.”

[191] In addition, Mr Dunn made further comments to some of the responses provided by Ms Kakoschke. Mr Dunn said that his comments were not responded to by Ms Kakoschke or Mr Hulme. Those comments were as follows:

•  In relation to the Company’s view on the choice of COVID-19 vaccines, Mr Dunn said, “despite your assessment that Astra and Novavax are the same there seems to be a substantial difference and regardless many have indicated they want this brand. Will DPW allow access to paid leave/approved LWP (provided members have accruals) until their chosen vaccine becomes available?”

•  In relation to the Company’s comment that employees who do not take steps to be vaccinated will not be allocated to work from 15 October, Mr Dunn said that “this is a poor explanation of how DPW intend to treat employees who choose not be vaccinated by proposed Policy dates. What will be the employment status of these employees? Why can’t they access accruals of their leave?”

•  Mr Dunn described the Company’s assertion that the Mandate does not amount to duress or coercion as “laughable” and said that “to be even remotely truthful your statement would need to see employees stood down on paid leave (pending accruals) of which you confirmed will not be the case. You are unreasonably withholding employees’ accruals.”

•  In response to the Company’s position that it had no plan to introduce Rapid Antigen Tests or to agree to paid leave for unvaccinated employees, Mr Dunn said that “it is unreasonable to deny access to accruals. Please explain why DPW insists on this approach? Many health professionals are also very supportive of Rapid testing with announcements having been made since we last met, including home rapid testing without medical supervision. Why can’t this option be implemented rather than what YOU consider best for YOUR body?”

•  With respect to the approval status of COVID-19 vaccines, Mr Dunn commented that “TGA has only provisionally approved the vaccine as per their website information.”

•  In relation to the Company’s requirement that employees must provide a copy of their vaccination certificates and the comment that it was not practicable for the certificate to merely be sighted, Mr Dunn said “your excuse for not providing the legal option of displaying one’s proof of vaccination (rather than providing a copy) is rubbish. Each site could name a manager and a window daily or weekly to facilitate this with ease.”

[192] Mr Dunn received a letter from Mr Hulme dated 7 October 2021, which stated that “The consultation process is now completed”. Mr Dunn expressed the view that in his 25 years’ experience with DP World Sydney, this was the first risk assessment that was conducted without consultation with the MUA or HSRs and that “not one single HSR was properly consulted”. Mr Dunn further stated that at the time the policy was announced, the practice and Agreement dictated that an HSR was to be consulted in the creation of a risk assessment. This was said to have been agreed between the WHS Committee and management many years ago and the practice continued up until the mandate was announced.

[193] In relation to privacy concerns surrounding the information about employees’ vaccination status, Mr Dunn expressed the view that DP World Australia did not consult with the MUA, the Health and Safety Committee, or employees about how the Company intended to protect, keep confidential, and limit who would have access to each employee’s private medical records regarding their vaccination status, as required by the Privacy Act 1988 (Cth). In this respect, Mr Dunn said that:

•  The only consideration DP World gave to concerns around privacy was Ms Kakoschke’s response, provided on 28 September 2021, to the questions raised by the MUA;

•  No consultation had been undertaken between DP World, HSRs, the MUA or the Health and Safety Committee regarding obtaining employees’ consent to providing private medical records pertaining to vaccination status, or whether any of the Applicants understood what they were being asked to provide;

•  Having personally spoken to the Applicants in these proceedings, DP World had not considered or responded to the individual objections raised by any of the Applicants; and

•  The only choice the Applicants had “was to provide the information or be terminated”. Mr Dunn expressed the view that “the provision of the Applicants’ private medical information on their vaccination status was clearly not voluntary”.

[194] In addition, Mr Dunn commented that many of the Applicants “have great concerns about their right to their bodily integrity and voiced their fears in responses to show cause letters they received from the company” and that the Company did not respond to any of the concerns expressed by any of the Applicants, nor did the Company “care why any of the Applicants was hesitant or unwilling to get vaccinated – it cared only whether they got vaccinated”.

[195] In Mr Dunn’s opinion, the Company failed to address any of the concerns raised by the Applicants in their respective responses to the show cause letters, and also failed to do anything to alleviate the concerns that the Applicants had raised, by educating the Applicants about the safety of the vaccines or communicating to them that their fears were misplaced. Mr Dunn said, “DP World rejected their concerns out of hand and summarily dismissed them.” It is also asserted by Mr Dunn that a number of legitimate contraindication certificates from employees were arbitrarily rejected by the Company, with the employees being given 3 days to respond or get vaccinated. Mr Dunn further asserts that employees who did not provide a contraindication certificate were not given the same time period to respond or be vaccinated, but rather, they were just terminated.

[196] In relation to clause 8.12 of the Enterprise Agreements, Mr Dunn’s understanding is that the clause was first introduced into a previous DP World Sydney enterprise agreement in 2003 and has been in every successive agreement. Mr Dunn said that he was involved in negotiations for every enterprise agreement with DP World Sydney since at least 2003. In Mr Dunn’s view, the clause was introduced so that the Union could have some assurance that it would have a right to challenge any unfair policies that the Company may implement which would impact members’ terms and conditions of employment. Mr Dunn is also of the view that the Mandate violates the intent of the Agreement as it was over and above the NSW Health Orders, there was no consultation, it diminished employment opportunities for those who did not want to be vaccinated, and at no stage did the Health Order state that stevedores had to be vaccinated.

[197] In his witness statement in reply, Mr Dunn said that in his experience the process of undertaking a risk assessment as described by Mr Eadie, does not happen. Mr Dunn also rejected Mr Eadie’s comment that the decision to implement the Mandate was subject to employee consultation the conduct of the risk assessment, 81 and said that the Memorandum from Mr Adam made it clear that the decision was made prior to and not subject to employee consultation and discussion of risk assessment and Mr Eadie’s comment is simply untrue and contradicts the Memorandum. Mr Dunn also said that the risk assessment referred to by Mr Eadie was clearly developed and finalised prior to, and without employee consultation, prior to the distribution of the Memorandum implementing the Mandate. The risk assessment did not change in content after the Memorandum.

[198] In relation to Mr Eadie’s evidence about the impracticality of administering RATs to all employees prior to shifts commencing, Mr Dunn said that this was not the suggestion made by the MUA. Rather, the suggestion was that a RAT could be administered to unvaccinated employees only, at the expense of those employees and outside working hours. RATs were widely available at accessible to the community at this time and Mr Dunn said that this was a realistic and management alternative control measure that the Respondents’ simply refused to consider. Mr Dunn also said that the Government mandates referred to by Mr Hulme in his witness statement at paragraphs 21 to 23 are irrelevant as they were introduced after the DP World Mandate was announced. Mr Dunn rejected Mr Hulme’s statement that the Mandate was to proceed subject to a risk assessment that validated the thinking of DP World Management and consultation with the workforce before a final decision to direct employees to follow the Mandate was made. Mr Dunn said that this contradicted the Memorandum issued by Mr Adam on 16 September 2021 and what happened regarding any purported consultation.

[199] Mr Dunn also rejected Mr Hulme’s evidence at paragraph 40(iii)(d) of this witness statement in relation to the process for medical exemption and said that there had not been such a process previously implemented at DP World Sydney. Further, Mr Dunn said that there were several MUA members who received valid COVID – 19 contraindication certificates and these members were subject to an expert panel of medical practitioners employed by the Respondents who would make a decision on whether the contraindications were “valid”. If the Respondents were told that they were not valid, according to their panel then the contraindication certificates were rejected with no opportunity to appeal. In response to Mr Hulme’s evidence about the risk assessment process undertaken by DP World in relation to the implementation of the Mandate, Mr Dunn said that in his experience the process described by Mr Hulme does not happen. In response to Mr Hulme’s evidence that there were meetings with HSRs at all Terminals after the risk assessment, and that feedback was provided orally at these meetings and written responses received to MUA questions, Mr Dunn said that the discussions as described did not occur. Regarding Mr Hulme’s statement that the extension of timeframes in Mr Adam’s email of 5 October 2021 gave the Company an opportunity to work with employees and contractors who did not want to be vaccinated, by holding one on one meetings or providing them with additional information, Mr Dunn said that he is not aware of any such meetings.

[200] In response to Mr Hulme’s statement that suggested alternative risk controls had already been implemented but did not affect risks to operational continuity if positive cases were introduced to a terminal, Mr Dunn said that this clearly demonstrates that the Respondents’ priority in implementing the Mandate was not employee or community safety, but risks to operational continuity and subsequent productivity should a positive case be present in their workforce. Mr Dunn also rejected Mr Hulme’s assertion that he has not engaged with employees since the implementation of the Mandate and has not received negative feedback, Mr Dunn said that a number of MUA members have clearly voiced their concerns and provided negative feedback to terminal managers, if not directly to Mr Hulme, on multiple occasions.

[201] Under cross-examination, Mr Dunn accepted that consultation may take different forms depending on the circumstances in which it occurs and the nature of the relevant change. Mr Dunn also agreed that when DP world consults employees about something it will not always change its mind and this does not mean that consultation has not occurred. In response to the proposition that there is no reason why a draft risk assessment cannot be prepared by management for comment by employees, Mr Dunn said that in his 25 years history he has not seen this occur and that in Sydney there was a local arrangement whereby risk assessments were done with at least one HSR. Mr Dunn said that there were commitments around this, and it is written down and that Mr Lewis would be able to give evidence about this given that he was the chair of the OHS Committee. Mr Dunn also said that his reference to “Agreement” in this respect is not to the Sydney Enterprise Agreement but rather to local arrangements notwithstanding his use of a capital letter in that term and that he should not have used a capital letter in that part of his statement. Mr Dunn accepted that the Sydney Enterprise Agreement states that HSRs or committee members will be involved in risk assessments where appropriate and this does not mean that this would occur in all cases. 82

[202] Mr Dunn also accepted that contrary to his witness statement, the Privacy Act does not contain an obligation for employers to consult with the MUA, the OH&S Committee or employees about how it intends to keep their information confidential and said that “not much pertains to employers these days” 83 and he did not doubt that the Privacy Act does not support employees over employers. Mr Dunn maintained that to the best of his knowledge, DP World did not consult with employees about a privacy policy.84 Mr Dunn had the following exchange with Mr Crilly on behalf of DP World in relation to the Privacy Act and consultation:

“Mr Dunn, I put it to you that there is no way any employee could have had any doubt about what it was they were being asked to provide?---Yes.

Sorry, Mr Dunn, what do you mean by 'Yes'?---Well, I don't know, I thought you - I was waiting for you to ask a question, but, yes, they were in no doubt that they were asked to provide vaccination status proof.

Then why was there a need for the Company to consult with anyone about whether the Applicants understood what they were being asked to provide?---There was no consultation about the Company requesting vaccination status or proof in regards to how that would then be stored, kept, there was no - that I know of anyway.  None of the members who had concerns were ever provided with any Company privacy policy.  I mean, at the end of the day, people knew what they were providing, but they weren't consulted around it.

People knew what they were providing.  Just in relation to something you have just said, Mr Dunn, can I please put it to you that there is an employee privacy policy which has at all times been available to employees on an internal portal or from HR?---If you say so.

If I say so?  You don't know?---You try and go to HR and get a policy and see how you go.

Mr Dunn, that's not the question I asked you.  You don't know whether there is a privacy policy of that kind?---I know that DP World's tabled one since.  There's been conjecture about whether or not they consulted and supplied it and I know that they've since supplied it as part of the evidence, but up until - - -

Do you contest that that document - - -?---Up until - - -

- - - existed?---It wasn't freely available and around the traps, no, people weren't supplied with it and concerns weren't allayed by the provision of it, no.

Mr Dunn, do you accept that an employee could have accessed that from an internal portal or from HR during the relevant period?---Not particularly, no.

Why is that?---Because, in my experience, you go to HR, it's either closed or they can't provide it, and half the time the portal doesn't - no, I wouldn't - there's 600 members out there and I reckon there would be five or six, given their positions out there in a clerical sort of aspect, that would have even accessed the portal.  I reckon there'd be 600 who wouldn't have even heard of the portal out of 650.” 85

[203] Mr Dunn further accepted that his evidence that employees who did not comply with the Mandate were “summarily dismissed” was incorrect and that employees received payment in lieu of notice. However, Mr Dunn maintained that by using the term he meant that:

“Well, they dismissed them, they dismissed them without actual due process.  The difference between, say, the way that a few of the members were dismissed that put in a contra-indication, they were rejected, the contra-indications were rejected and they were subsequently then told of that and they were given potentially three or four days, off memory, to either show proof of vaccination or they'd be terminated.  The rest of the members who didn't provide contra-indications, they were asked to show cause, which many of them did by requesting leave, explaining, you know, pouring their heart out, explaining their family situations and all that sort of stuff.  They were never then consulted.  The first they heard back from the Company was a termination.  They were never written back to, they were never consulted as individuals, respected as individuals, they were never called in and had a meeting, they were never - none of that.  They were just written back and terminated in what was callous and came across as if the Company didn't even read the show causes; they weren't interested.” 86

[204] Mr Dunn agreed that the Sydney Enterprise Agreement does not state that its intent is that DP World should not be able to implement any measures that go beyond New South Wales Public Health Orders and nor does it state that the intention of the Agreement is consultation, but this is Mr Dunn’s understanding of how the clause is intended to work. 87 In response to a question about whether if the Company had consulted the MUA before introducing the Mandate that would be contrary to the intent of the Agreement, Mr Dunn said that the MUA would never have agreed to a policy in the terms of the Mandate. Later, Mr Dunn had the following exchange with Mr Crilly:

“If DP World had come to its employees and the MUA and said, 'We are thinking of implementing a vaccine mandate' and had consulted in a way that you, Mr Dunn, regard as being appropriate to discharge its obligations and then, even though the union and employees did not agree, they implemented that policy which it has in fact implemented, would that be contrary to the intent of the agreement?---If they'd have come to the MUA and said they wanted the mandate and consulted generally whereby we had input into its rollout, whereby nobody lost their job and we potentially didn't agree with the mandate still, but no one lost their job and we had a say in its rollout, we would then agree that it's probably within the intent clauses, but that didn't happen and people did lose their job and there was no - there was no allowance for any of the measures that would have mitigated job loss, or even to the point where people were prepared to take three to four months of their own entitlements.

They should have - you know, if the company had come to us and consulted and said, 'Listen, anyone who doesn't want to have the vaccine can use their own leave entitlements until such time as they run out and then they're on leave without pay until the environment or the landscape changes' and we would have come to agreement around all of those facets, we may not have agreed with the mandate still, but we would have been in no position to say that there's no consultation and no one would have lost their job and we wouldn't be here in the first place.

MR CRILLY:  Mr Dunn, did I understand you to be saying that any consultation was necessarily invalid if a result of it was that the policy that was implemented or the mandate that was implemented led to people losing their jobs?---Well, what I'm saying is that proper consultation may well have led to that predicament.  There was no proper consultation, there was no consultation whatsoever in regards to the rolling out of this mandate.  I mean - - -”  88

[205] In response to a question from me, Mr Dunn said that the Agreement probably does allow the Mandate if there was genuine consultation. 89 Mr Dunn accepted that if only unvaccinated employees were taking rapid antigen tests you would not know whether employees who are vaccinated may have contracted COVID and that if those people bring COVID to work testing does nothing to stop them from catching COVID if they encounter it in the workplace. Mr Dunn also maintained that DP World was never concerned about the vaccinated and were only worried about unvaccinated persons entering the workplace and that is why the MUA suggested that unvaccinated employees could undertake a RAT in their own time, which DP World rejected and terminated people. Mr Dunn further maintained that if HSRs were involved in risk assessment option such as this would have been considered. Mr Dunn also had the following exchange with Mr Crilly about his evidence in this regard:

“Mr Dunn, I put it to you that DP World was not just interested in whether unvaccinated people brought COVID to the terminal, it was also concerned about them catching it there?---I think they were more concerned about productivity and isolation of people that were unvaccinated as per New South Wales Health, to be brutally honest.

Well - - -?---And that's cleared up, too, well - well before the people were terminated.

Even assuming that's the case, Mr Dunn, that would leave them to be concerned if they have unvaccinated people catching COVID at the workplace, wouldn't it?---If you say so.

Mr Dunn, I'm putting it to you squarely that the control measure was not realistic, feasible or manageable because it actually did nothing to address the concerns that DP World had, as you understood them?---A bit like a mandated vaccine has done nothing either.  Plenty of people have had it.  Nearly everyone there's had it, they've isolated, they've gone back to work.  The other two terminals who didn't mandate, pretty much the exact same positions.

Mr Dunn, do I take it that that was an agreement to the proposition I put to you?---No.” 90

[206] In relation to his evidence about the visit of SafeWork to the Sydney Terminal, Mr Dunn maintained that the Inspector told him that what DP World had done was “not good” but agreed that he had not said this in his original statement and had covered the subject off by referring to the Inspector’s comment that consultation was a loose term. 91 Mr Dunn also said that he was disappointed in the meeting because they didn’t do what is in the best interests of safety – having HSR involvement in the risk assessment.92 In re-examination, Mr Dunn said that what the MUA was seeking from SafeWork was for them to come out and say: “redo the risk assessment but have HSR involvement” so that there could be a discussion about mitigating terminations and rapid antigen testing and those things could have been explored.93 Mr Dunn also said that the high take-up of vaccination at the Port Botany terminal made the Mandate “even madder” because it applied to only a small portion of the workforce that could have been worked around.94

[207] Mr Lewis is a longstanding stevedoring employee of DP World Sydney and has been employed since about 1999 when the terminal was operated by P&O Ports. Mr Lewis is also a MUA member and was a Health and Safety Representative (HSR) since the introduction of the role. Mr Lewis was on the Work Health Safety committee for about 12 years and the Chairman for the WHS committee for about 6 years. Mr Lewis said that in his HSR and committee roles, he was responsible for the health and safety of the workers, procedures and risk assessments in the terminal. The WHS committee has monthly meeting to oversee all things to do with safety in the terminal. The committee is made up of a representative from management and 9 employees from operations and maintenance.

[208] According to Mr Lewis and based on his experience, a risk assessment is a risk-based analysis undertaken in relation to issues or procedures that are identified at the terminal. Mr Lewis said that there is a longstanding agreement between the committee and the Company that one committee member is to be involved with the formulation of the risk assessment from start to finish as a collaborative effort between the committee and the Company.

[209] On 16 September 2021, Mr Lewis received the email from Mr Adam announcing the introduction of the Mandate. The email also stated that employees and HSRs would be consulted. Mr Lewis stated that he had no idea that such an announcement would be made as it was the first time the Company had made an announcement of this nature without first consulting the WHS committee. Following the announcement, there were extensive discussions amongst the Committee members about the lack of consultation on the implementation of a mandatory vaccination policy. Mr Lewis said he was inundated with phone calls and messages from the workforce raising concerns about this decision.

[210] On 21 September 2021, Mr Lewis had a meeting with Mr Eadie, to discuss a risk assessment matrix relating to incidents of a close and casual contacts of COVID – 19 in the Terminal. Mr Lewis was told by Mr Eadie that there would be a COVID – 19 site risk assessment later in the week that required the involvement of Mr Lewis. Mr Lewis said that he thought he would be involved in the formulation of the risk assessment matrix from start to finish.

[211] Mr Lewis received an email on 22 September 2021 from Mr Peter Armenis, HSSE Manager for DP World Sydney, advising that a 2 hour meeting had been scheduled for 8:30 am the next day to conduct the COVID – 19 risk assessment review. Mr Lewis was of the view that this was “strange” because of the short amount of time allocated to the risk assessment as typically risk assessments are all day exercises. On 23 September 2021, Mr Lewis was notified that the meeting would be postponed to 9:00 am and in Mr Lewis’ view, it was an unusually short time frame for a risk assessment meeting.

[212] Mr Lewis recounted that the meeting was attended by Mr Eadie and other representatives from management and about 4 other members of the WHS Committee. At the meeting, Mr Lewis said they only had time read through an information sheet prepared by DP World Sydney and discussed each of the points. They did not “get to go through the proposed controls mentioned by the HSR’s such as Rapid Antigen Testing (RAT), PCR testing, air monitoring or risks from taking a COVID – 19 vaccine” and there was “no risk analysis at all”. Mr Lewis stated that he raised objections on the basis that this was not how a risk assessment was to be undertaken. Mr Eadie told Mr Lewis that notes will be passed on to management and to the WHS committee.

[213] Mr Lewis has been on many risk assessment committees in his career and said that “the company has never done a risk assessment like this before”. According to Mr Lewis, “risk assessments are very complex tasks that always involve the input of WHS committee members” and “this was nowhere near to being a normal…risk assessment”. On 23 September 2021, Mr Lewis attended a meeting via Zoom with Mr Hulme, Mr Evans, Ms Kakoschke and members of the MUA Sydney Branch and members from each other branch of the MUA in states where DP World Australia had workforces. At that meeting, Mr Lewis said that the MUA raised the issue that no consultation in relation to the vaccination mandate had been undertaken and requested that the Company put the mandate on hold to enable proper consultation. This was refused by the Company.

[214] On 7 October 2021, Mr Lewis received email communication from Mr Hulme stating that “the Company has met and engaged with HSRs at all sites, and feedback has been received and considered. Appropriate responses have been provided at a local level.” On 12 October 2021, Mr Lewis emailed Mr Eadie expressing the view that a proper risk assessment had not been conducted by the Company in relation to the Mandate:

“Hi Scott,

We had a meeting on 16th September.

Re: Covid-19 risk assessment. In my opinion what DPW provided was nothing more than an information sheet, it definitely cannot be considered a risk assessment. It lacked the differentiation between current controls and proposed controls. Nothing about change with risk analysis.

A proper risk assessment is achieved by identifying and analysing potential hazards then formulating a plan to best mitigate those risks. This is to be done in a combined effort with HSRs.

None of this took place at that meeting

All the company did was read over the information sheet and take notes from the HSRs

Nothing about tolerability & risk analysis which could influence the risk evaluation.

It was a mere box ticking exercise to justify company consultation rather than a genuine RA with genuine consultation.”

[215] Also on 12 October 2021, Mr Lewis sent another email to Mr Eadie requesting the notes from the risk assessment meeting on 23 September 2021 which Mr Eadie had said would be provided to the WHS committee. Mr Lewis said that despite attempts to obtain those notes from Mr Eadie, they were not provided and that despite “the complete absence of proper consultation, the vaccination mandate went ahead”. Mr Lewis further stated that the Company had “never provided any educational opportunities to the workforce on vaccinations”, that “there were no regular updates on any benefits or drawbacks from a COVID-19 vaccination”, and that “there was no consultation as to any concerns the workforce may have had concerning work health and safety and the vaccines”.

[216] In response to Mr Eadie’s evidence about the meeting with SafeWork Inspectors on 19 October 2021, to the effect that the Inspectors expressed no concerns and the material requested was emailed to them on 26 October, Mr Lewis said that on 5 October he emailed Mr Eadie notifying him of a contravention of the WHS Act (NSW) and of his intention to seek WorkSafe intervention pursuant to s. 80 Division 5. Mr Lewis said that he put this contravention on as there was no consultation and they wanted the regulator to sit down with the Company and consult properly with the HSRs. The email which was appended to Mr Lewis’ reply statement was in the following terms:

“Hi Scott,

DPW has failed to comply with the NSW Work Health and Safety Act Part 5 consultation, division 1 and 2. With that being the case I’m informing DPW of my intention to seek Worksafe intervention under section 80 Division 5 Issue Resolution.

This matter relates to DPW producing a Mandatory Vaccination Risk Assessment which had no involvement of HSRs. In line with the objective of the Act the WHS Comm/HSRs seek the assistance of the MUA in resolving the matter.” 95

[217] Mr Lewis said that while he was not involved with WorkSafe when they attended the site, he received a call from an Inspector after the attendance who told him that the Company said they had consulted while the HSRs say they have not and that “you guys are definitely in the right here, but consultation is a loose term.”

[218] Mr Lewis accepted under cross-examination that the Agreement does not state that a HSR must be involved in a risk assessment from start to finish but maintained that there was a separate agreement to this effect at the Sydney Terminal. Mr Lewis also accepted that some risk assessments are less complex than others. Further, Mr Lewis accepted that there is nothing the Agreement that prevents the Company from preparing a draft risk assessment and providing that to employees for their input. In response to questions in re-examination Mr Lewis said that a simple risk assessment may involve something like a slippery floor but in his eyes, the Mandate was the most important risk assessment or policy that had ever come through DP World and should have been treated like every other risk assessment and done in the proper way.

[219] In response to a question from me, Mr Lewis said that a risk assessment is usually done by sitting down with input from both sides to come to agreement around risk scores and proposed controls. A complex risk assessment would usually take a day and Mr Lewis’ view was that a risk assessment associated with the Mandate would have taken two days from start to finish. 96

[220] Mr Carty is a member of the MUA and a longstanding employee of DP World Brisbane for approximately 18 years. Mr Carty is currently employed in the role of straddle driver on a full-time basis and has been a HSR at DP World Brisbane since about July 2021. Mr Carty said that in his HSR role, he was responsible for working with managers and employees at DP World Brisbane to resolve safety issues that were brought to their attention. Mr Carty explained that meetings would occur about once a month which usually consisted of feedback and cooperation from the group.

[221] On 16 September 2021, Mr Carty received the email announcement made by Mr Adam which stated that DP World Australia has “made the decision to make COVID-19 vaccination for all employees and contractors a condition of engagement” and that DP World Australia “will commence consultation with employees and health and safety representatives in the coming weeks on the details of the policy”. Mr Carty said that this was the first time he had heard of a COVID-19 vaccination mandate and this surprised him because no prior meetings or consultation had taken place prior to the decision being made at the corporate level. Mr Carty said that the decision was made without involving HSRs or the Health and Safety committee at the local levels.

[222] Mr Carty was of the view that Mr Adam, in making the announcement by email, was attempting to create an impression as if proper consultation had occurred or would occur. Mr Carty asserted that this was completely contradictory to the process because DP World Australia “had clearly already made the decision to introduce mandatory COVID-19 vaccinations without meeting its consultation obligations”.

[223] Mr Carty said that a conference was scheduled by management with HSRs and the MUA after the Company had received complaints from the MUA and HSRs across the country that the Company had not fulfilled their consultation obligations under Work Health and Safety legislation or the enterprise agreements. Mr Carty attended a national conference via Zoom on 23 September 2021 with representatives from DP World Australia, officials of the MUA and HSRs. In Mr Carty’s view, the conference was treated as the first consultation meeting and many concerns and questions were put to DP World Australia. Mr Carty voiced their concerns and disappointment at the conference about the lack of consultation prior to the making of the announcement by Mr Adam. Mr Carty stated that management did not provide direct answers to the majority of questions and instead responded with words to the effect, “we will revert later”.

[224] According to Mr Carty, a Risk Calculation Sheet (RCS) was presented at the meeting. This is a matrix scoring system detailing identified risks and proposed measures to counter them. Mr Carty said that he had never seen this RCS before and noted that an RCS is supposed to be formulated during consultation with the HSC, HSRs, other employees and the MUA. Mr Carty expressed the view that they “were essentially stonewalled at every opportunity in the meeting and that it completely contradicted how normal consultation with HSRs was supposed to happen”. Mr Carty felt that the conference did not go anywhere and there were no direct answers to their questions and their opinions were not requested or heard at the time. After the conference, Mr Carty was copied into an email that Mr Evans had sent Mr Hulme detailing 26 unanswered questions from MUA members which had been raised at the meeting.

[225] In relation to Ms Kakoschke’s responses to the questions raised by the MUA, Mr Carty was of the view that “the answers… were non-committal, negative or vague and in [his] opinion raised more concerns than providing answers” During a rostered nightshift on 29 September 2021, Mr Carty said that he saw copies of a document titled Covid Vaccination Mandate FAQs (the FAQs) on the tables in the smoko room. Mr Carty said that he did not receive the FAQs by email and described the document as “an attempt to answer their concerns arising from the meeting on 23 September 2021”. Mr Carty stated that DP World Australia implemented the Mandate, despite the concerns raised by him and others, without conducting consultation in relation to the RCS or receiving real input from the MUA, HSRs or the workforce.

[226] Under cross-examination, Mr Carty accepted that the memorandum from Mr Adam dated 16 September 2021 announcing the Mandate stated that consultation would occur and said that his statement that the Company only consulted because it received complaints from the MUA may not be strictly accurate. Mr Carty said that he is not aware of whether the WHS Act requires that a risk calculation sheet must be formulated during consultation with a committee, HSRs or a Union and that he had not pointed to any document about how consultation with HSRs is supposed to occur at DP World. Mr Carty agreed that that consultation can take different forms, depending on the matter and that you would need to tailor consultation to the issues involved. Mr Carty said that a complex risk assessment may take between four and eight hours and that in the single meeting where the Mandate was discussed HSRs were given only a short window of time to read the risk assessment provided by the Company.

Unrepresented Applicants

[227] As previously noted, the material filed by the unrepresented Applicants was in the form of submissions, which were taken as evidence to the extent that this was possible. However, most of the material consisted of assertions about COVID – 19 vaccinations which appeared to have been sourced from the internet rather than being based on any direct knowledge or expertise on the part of the unrepresented Applicants. Other matters canvassed in that material were legal arguments that have been rejected by Courts and the Commission in decisions that are binding on me.

[228] Mr Justin Pintley commenced employment with DP World in 2009 and had intended to remain employed by the Company for the foreseeable future. Mr Pintley states that he has been an honest, reliable and hardworking member of the team and commenced his role as a full time employee in 2018. Mr Pintley’s contentions can be summarised as follows. The Respondent took adverse action against him by terminating his employment as a result of the exercise of his workplace right to engage in genuine consultation in regard to personal medical, health and safety information.

[229] On 28 June 2021, Mr Pintley went on personal leave due to bullying and harassment he had been experiencing and submitted a workers compensation claim which was approved on 22 October 2021. Mr Pintley’s employment was terminated while he was on sick leave which then formally progressed to workers compensation leave. Mr Pintley tendered a letter from icare/GIO dated 22 October 2021, stating that liability for an injury he incurred on 28 June 2021 had been accepted. 97 Mr Pintley said that due to his condition, he did not have the capacity to keep abreast with constant emails coercing him to be vaccinated or be terminated. Mr Pintley also said that this caused further stress and anxiety and as a result, he did not check his emails consistently during this time. Further, Mr Pintley said that at no point did the Respondent make a genuine attempt to consult with him, considering that it was known that he was on personal leave and did not have capacity to work.

[230] Mr Pintley submits that his dismissal had no relation to his capacity or conduct, given that he was on workers compensation at the time he was dismissed and had not been at work since 26 June 2021 and presented no negative risk to the health, safety and welfare of other employees. Mr Pintley also submits that despite stating in an email of 16 September 2021 that it would commence consultation with employees about the Mandate, this did not occur, notwithstanding that Mr Pintley sent two emails during this period. There was no reply to these emails which is said to involve a breach by the Respondent of s. 387(c) of the Fair Work Act 2009. Both emails were tendered by Mr Pintley. The first email dated 3 October 2021, addressed to Mr Eadie and the HR Team, is said to be in reference to correspondence received by Mr Pintley dated 27 September 2021. The email, which spans some four A4 pages, states in summary:

•  The Australian Prime Minister Mr Scott Morrison has stated to the media that all Australians are responsible for their own health and that is why we do not have mandatory vaccinations;

•  Consent cannot be given in circumstances of duress and coercion and if Mr Pintley were able to freely choose, he would not elect or choose to be injected with any of the currently available COVID – 19 vaccinations;

•  The threat that he may lose his job if not vaccinated may amount to unconscionable and illegitimate economic duress and is contrary to the Australian Immunisation Handbook which states that for consent to be legally valid, it must be given voluntarily in the absence of undue pressure, coercion or manipulation;

•  Consent to a medical procedure requires the patient or recipient, after being informed of the risks and benefits of the procedure, being able to freely choose or decline the procedure;

•  In the circumstances of economic duress being exerted on him, Mr Pintley is unable to provide consent to be vaccinated and as duress vitiates consent performing the procedure could amount to the person performing the procedure being liable for battery or trespass against the person;

•  On 22 February 2021, the Health Minister Mr Greg Hunt described Australia’s COVID – 19 vaccination rollout as being part of a global clinical trial which Mr Pintley does not consent to participating in;

•  The vaccines being trialled in Australia do not provide immunity against the SARS-CoV-2 virus or any of its variants and do not prevent transmission and therefore present Mr Pintley with an unnecessary health risk for no perceived benefit;

•  There are antiviral treatments available that provide protection and also treat symptoms of the virus which Mr Pintley would consider using before taking the vaccination;

•  COVID – 19 has not proven to be a significant threat to human health on a nationally significant scale and Mr Pintley is not part of the very small portion of the population at serious risk – namely the elderly and those who are already sick;

•  Details of various sources of information published by the TGA which was said to reveal numerous issues with COVID – 19 vaccinations and their effects particularly uncertainties surrounding the safety and efficacy;

•  Allegations about criminal conduct on the part of pharmaceutical companies who manufacture vaccines;

•  There is lack of clarity about insurance coverage if Mr Pintley suffers an injury and no comprehensive no-fault vaccine injury compensation scheme;

•  There are numerous laws, regulations and policies protecting the right of informed consent to receiving a vaccination including s. 51(xxiiiA) of the Constitution, the Biosecurity Act 2015, Article 6 of the UNESCO Statement on Bioethics and Human Rights, the Nuremburg Code, the Siracusa Principles and the Criminal Code (Cth). 98

[231] A second email was sent by Mr Pintley on 20 October 2022, addressed to Human Resources, pointing out that Mr Pintley is on sick leave and has had several psychological appointments and two psychiatric appointments in relation to incidents that occurred at DP World. The email goes on to state that a list of names of employees who are presumed to be unvaccinated or have not disclosed their status, including the name of Mr Pintley, is circulating in the Terminal and that this is inconsistent with assurances given to employees in a letter of 12 October 2021 that their private medical data will be kept confidential and not disclosed to third parties without his consent. The email states Mr Pintley’s disgust and distress and that he is being coerced to provide private medical information when he cannot return to work and is not a safety concern and concludes with a statement that DP World has already breached Mr Pintley’s privacy and he has concluded that he will not provide his vaccination status “with consideration to these valid and very important points”. 99

[232] Mr Pintley states that he did not receive a response to either of these emails and his concerns were not addressed. Mr Pintley also tendered an email from Mr Dunn, sent to him and other persons on 12 July 2021, with a subject line “Application for Resignation – Jason Pintley”, in which Mr Dunn states: “I see – Pintley. An anti-vaxxer who refuses to wear a mask regardless of the fact that he has no medical exemption” 100 and a section of a text message said to be from Mr Dunn in which the following statement appears:

“…information to the company upon return to work. they need to buy time but they also need to know that DPW is moving to terminate and if the (sic) can get the vax they should. Either way we will continue the case in the FWC and run unfair dismissals but that may not get members jobs back…Can you share this in your anti vax group please.” 101

[233] Mr Pintley said that this made him feel that his concerns would not be genuinely heard. Mr Pintley also referred to Mr Eadie’s witness statement wherein he referred to Mr Pintley’s first email of as being “pro forma” and “conspiracy thinking” … “found on anti-vaccine websites” when this is incorrect and the TGA website clearly states (for example) that the vaccinations have “provisional approval”. Mr Pintley contended that DP World had not met consultation requirements as required in the Enterprise Agreement and referred to the Full Bench decision in Mt Arthur Coal in support of this. The remedy sought by Mr Pintley was said to be compensation for loss and damage resulting from ongoing loss of income, diminished employment prospects and reputational damage, stress and anxiety and humiliation, pain and suffering arising from his unlawful treatment.

[234] In oral evidence at the hearing, Mr Pintley said that he was on workers compensation leave when the Mandate was implemented, right up until the date his employment was terminated. Mr Pintley said that he was a Union member until 12 July and no communication or consultation took place with him about the Mandate. The only emails or correspondence Mr Pintley received from DP World were the generic emails that were sent out to all the employees of DP World, in September leading up to October. Mr Pintley said that his absence meant that he had unique circumstances. Mr Pintley was still in receipt of workers compensation payments when this matter was heard.

[235] Under cross-examination, Mr Pintley agreed that one of the main goals of the workers compensation framework is to get injured workers back to work and that when he returned to work the issue of the Mandate would have arisen if it was valid at the time. 102 Mr Pintley accepted that he could not identify who wrote the list upon which his name appeared and that he tendered in these proceedings.103 Mr Taylor said in his oral evidence that he and other dismissed employees were subject to being called “anti-vax and conspiracy theorists” and at no stage was consideration given to any individual’s personal circumstances. Mr Taylor said that he has a young special needs boy who requires care for the rest of his life and not only have they been impacted financially by the loss of his job but by health implications of the vaccine for his partner. In cross-examination Mr Taylor was asked whether he raised these matters with DP World and said that he was not given that opportunity. In this regard, Mr Taylor said that the only exemption the Company was going to give was medical and it had already been stated that nothing else would be considered.104

[236] Mr Kevin MacDonald commenced employment with the Respondent in September or October 2009 and planned to work for the Respondent until he retired. Mr MacDonald was one of a group of employees who challenged the Mandate in the Federal Court and states that the case was ultimately withdrawn for financial reasons. In summary the material filed by Mr MacDonald makes the following assertions. Mr MacDonald argues that the substances the Mandate required him to inject into his body are “experimental technologies” and “gene therapy/transfection agents that should not be called vaccines”. Mr MacDonald also argues that the vaccines are “a concoction of completely unknown and potentially harmful substances”. Further, Mr MacDonald argues that none of the ingredients that are supposedly known are reasonable or safe for anyone to demand that he puts into his body. In refusing to be injected with these substances Mr MacDonald denies that he has done anything wrong or that he has engaged in misconduct.

[237] Mr MacDonald contends that the regulatory agencies that approved these products for market are funded by the very companies they are supposed to regulate, thereby creating a massive conflict of interest. In addition, Mr MacDonald contends that Governments are heavily influenced by pharmaceutical companies and that he has chosen to “call out liars and criminals” and has been punished for this. Mr MacDonald also contends that Government officials have blocked attempts made by the public to access data they have used to justify their decisions. Mr MacDonald also cited statistics about adverse reactions and deaths attributed to COVID – 19 and questions the lack of compensation for this. Mr MacDonalds questions whether DP World or anyone can guarantee that he will not suffer an adverse reaction, or die, because of being vaccinated and whether it is reasonable to subject an employee to unnecessary pain of any kind, including breaking his skin with a needle. Mr MacDonald also questions whether anyone has the right to tell him to put something into his body that can never be removed, given that DP World is only his employer for 8 hours per day. Further, Mr MacDonald contends that unlike personal protective equipment such as boots and hard hats, “an experimental MNRA, gene therapy/agent product” is not something that he can leave behind at the workplace at the end of a shift. Mr MacDonald maintains he should not have to risk adverse effects of these products and that “where there is risk there must be choice”.

[238] After setting out allegations including criminality on the part of manufacturers of vaccines, animal deaths following experimentation, and referring to the “so called Pandemic”, Mr MacDonald contends that under the Australian Immunisation Handbook, the requirement for consent to be legally valid include that it is given voluntarily, in the absence of undue pressure, coercion or manipulation. Mr MacDonald said in relation to consultation, that the MUA and HSRs do not speak on his behalf and that he did not respond to the majority of correspondence on the subject of vaccines from DP World, because he was struggling with his mental health and was off work for the majority of the time and needed to get back to work for financial reasons and did not want to give the Company any new reason to continue to leave him at home to “burn through” his personal leave after already being off for months due to another matter. Mr MacDonald also said that he did indicate that he would comply with any lawful directive, but he did not, and still does not, believe that the Mandate is lawful, reasonable or even necessary.

[239] Legal arguments raised by Mr MacDonald can be summarised as follows:

•  According to the Commonwealth Criminal Code Act 1995, participation in a clinical trial must be voluntary and the Federal Health Minister Mr Greg Hunt publicly stated in a press conference in 2020 that “the world is engaged in the largest clinical trial, the largest global vaccination trial ever and we will have enormous amounts of data.”

•  The outcome in Kassam v Hazzard was not in the highest jurisdiction in the country and the ruling on section 51(xxiiiA) of the Commonwealth Constitution in relation to medical conscription is not necessarily final, and nor does it invalidate any of the previous rulings of the High Court on this subject.

•  If the Government does not have the power to force medical procedures on Mr MacDonald then neither does DP World.

•  There is nothing in Mr MacDonald’s employment contract or the EA to warrant the Mandate and the Company is likely in breach of contract.

•  The term “mandate” is defined in legal and other dictionaries as a written command to another person by which one person requests another to agree voluntarily to a service and only becomes effective on agreement and as Mr MacDonald does not agree, the Mandate is not binding on him.

•  The Mandate is inconsistent with the Fair Work Act 2009 and because DP World is a corporation within the meaning in section 51(xx) of the Constitution the matter should fall exclusively under Federal legislation.

•  There has been no consideration of the ramifications of COVID injections on life and health insurance premiums and coverage and DP World has no right to require Mr MacDonald to take all the risk of injecting a vaccine into his body as a condition of his continued employment when it takes none of the liability.

•  Consideration should be given to a recent decision of the New Zealand High Court in relation to the Bill of Rights in that Country, which is relevant in the present case, as such rights exist even if not written into legislation.

[240] Other issues raised by Mr MacDonald are that none of the current products on the market are effective to prevent COVID transmissions especially for new variants and purportedly all the so called vaccines do is reduce symptoms of the person who has taken the jab, so that it should be a personal decision whether someone chooses to be jabbed as technically they are the only ones at risk. The group of employees from DP World Brisbane offered to do rapid antigen testing at their own expense and considering that a very high proportion of the work they did was alone, operating machinery, that should have been given serious consideration as a control measure. Multiple COVID protocols applicable to foreign crews also meant that the risks for everyone were very low. Mr MacDonald also stated that other countries and Australia have started rolling back Mandates and other restrictions on travel and contact tracing requirements.

[241] Mr Zoltan Nemeth was employed by the Respondent from 28 July 2018. In summary, Mr Nemeth states that he did not provide a reason why his employment should not be terminated as he was represented by lawyers acting for a group of employees who challenged the Mandate by taking action in the Federal Court. That case was discontinued for financial reasons. Mr Nemeth contends that the COVID – 19 injections are not vaccines as defined by the World Health Organisation and ATAGI has stated that they will not prevent recipients from getting the disease. Mr Nemeth also refers to purported overwhelming evidence of complications and deaths caused by the injections and maintains that there is no definitive proof of benefit as persons who receive the injection are still getting COVID – 19 and dying from, or with, this illness. Further, Mr Nemeth asserts that the COVID – 19 injection contains genetic technology that has been previously tested on cancers but not on infectious diseases. Two of the presently used “injected drugs” are said to codify information capsules for making a spike protein which is delivered by a molecule that may have potential to marry with the DNA of recipients. Mr Nemeth contends that pharmaceutical companies have stated that they have not done trials that have investigated the effect of this medical intervention on reproductive organs or on the carcinogenicity or toxicology of this injected drug in the human body. According to Mr Nemeth, this makes the COVID – 19 mandatory injection policy of DP World a clinical experiment that is in violation of medical ethics.

[242] Further, Mr Nemeth points to the fact that the TGA website categorises the Pfizer vaccine in the “black triangle scheme” meaning that it is provisionally registered product still in clinical trials and remains experimental. In relation to legal arguments, Mr Nemeth contends that medical freedom is an inalienable right and the policy of mandatory injections is contrary to such law as demonstrated by the following points:

•  Forced, coerced or mandated medical interventions are in violation of the Nuremberg Code which includes a provision that: “In no case should a collective community agreement, or the consent of a community leader or other authority, substitute for an individual’s informed consent”.

•  The Australian Government’s Immunisation Handbook which states that for consent to be legally valid it must be given voluntarily in the absence of undue pressure, coercion or manipulation.

•  The Commonwealth Criminal Code requires that participation in medical trials is voluntary.

•  Mandatory medical interventions are a breach of basic human rights and medical freedoms, and persons should be entitled to go about their everyday lives without being coerced into being injected with an experimental drug.

[243] Mr Nemeth went on to contend that the Mandate amounted to bullying, harassment, gaslighting, segregation and “Gestapo like action” inflicted on non-vaccinated humans. In conclusion, Mr Nemeth stated that it is his considered position that he serves himself and his family best if he refuses an experimental drug with known and unknown toxins and rely on his good health and natural immunity to safeguard his wellbeing. Mr Nemeth also states that he protests the interference of a medical service on him of unknown consequences and the inspection that violates his medical privacy. Finally, Mr Nemeth stated that he did not receive material safety data sheets or any substantial scientific evidence.

[244] In a written submission filed in response to directions Mr Nemeth also said that his personal medical information is protected under Federal law including, but not limited to, the Privacy Act 1988. Mr Nemeth also referred to section 51(xxiiiA) of the Constitution which guarantees protections and prohibitions within the Commonwealth of Australia and submitted that all State constitutions, laws, acts, rules and mandates are subject to that provision by virtue of s. 109 of the Constitution which provides that Commonwealth law prevails over State law to the extent of any inconsistency. Accordingly, the Mandate is rendered null and void. Mr Nemeth contends that all Australian business, courts, judges and people are bound by laws of the Commonwealth. Further, Mr Nemeth said that “where no biosecurity order has been made against me, the individual living Man, Woman or any variation thereof (person in law), under the directions by an authorised Bio Security officer and consistent with the specific directions of that order under the Bio Security Act 2015, no other order can lawfully be imposed at any time”. Finally, Mr Nemeth stated that any threats imposed on him – “the living man, woman or any variation thereof (person in law) directing me to self-harm against my will, or restrict or invalidate my inalienable human rights to decline such offers creates an unlawful and unreasonable discriminatory burden upon the person(s) in law at all times”.

[245] Mr Nemeth also tendered a redacted document said to be a letter sent by the Department of Health Therapeutic Goods Administration, to a person who had requested documents described as:

“1. All documents relating to the TGA’s assessment of the risk of and/or presence of micro-RNA sequence (miRNA) comprised within the Comirnaty mRNA active ingredient (mRNA genomic sequence).

2. All documents relating to the TGA’s assessment of the risk of and/or presence of Oncomirs (oncogenic miRNA – microRNA) comprised within the Comirnaty mRNA active ingredient (mRNA genomic sequence).

3. All documents relating to the TGA’s assessment of the risk of and/or presence of Stop Codon read-through (suppression of stop codon activity) arising as a result of the use of pseudouridine in the Comirnaty miRNA active ingredient (mRNA genomic sequence).

4. Any document showing that the TGA has assessed the composition of the final protein product (molecular weight and amino acid sequence) produced following injection of the Comirnaty mRNA product in human subjects.

5. All documents relating to the TGA’s assessment of the risk of the use of the AES-mtRNR1 3’ untranslated region of the Comirnaty mRNA product in human subjects.”

[246] The response to the request stated that the request could not be processed because the documents did not exist.

[247] Mr Taylor was employed by the DP World Brisbane from 17 July 2017 and intended to remain employed by the Company until his retirement. Mr Taylor was part of the group of employees who challenged the Mandate in the Federal Court but said that the case was withdrawn for financial reasons. In summary Mr Taylor states that the gene therapy/transfection agents do not meet the definition of vaccines and finds the fact that the official definition of vaccine was changed after their release to the market, disturbing. The Therapeutic Goods Administration has confirmed that this medical information will not prevent people from contracting COVID – 19 and nor will it prevent transmission in the community. Mr Taylor raises the issue of the Commonwealth Criminal Code Act 1995 providing that participation in a clinical trial must be voluntary and contends that: “Suppressing known safe and viable alternative treatments to justify pushing an experimental product, purely for profit, is a crime worthy of prosecution.”

[248] Mr Taylor states that the long-term health effects of these products is not known and cannot be known for several years and the fact that death is listed as a possible reaction, in itself, no matter how low the likelihood, should be sufficient grounds to refuse to participate in a clinical trial. Mr Taylor queries how, in circumstances where section 51(xxiiiA) of the Constitution strictly prohibits medical conscription and there are no Human Biosecurity Control Orders issued under the Biosecurity Act, a private company can derive legal powers that the Australian Government doesn’t have. Mr Taylor points to the fact that there was no State Government requirement in Queensland to justify the imposition of a forced medical procedure to DP World employees in order to keep their jobs and even if there was, section 109 of the Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail.

[249] Further, Mr Taylor referred to the Immunisation Handbook, which provides that consent to immunisation must be voluntarily given and the Privacy Act which makes it unlawful to require someone to provide their private medical information unless they provide consent. Finally, Mr Taylor stated that he was part of a group of employees who offered to do rapid antigen testing at their own expense before the start of every shift, which is actually better than being vaccinated. It is also relevant that DP World does not require truck drivers or contractors to be vaccinated. Mr Taylor also said that the MUA asked the Company perfectly reasonable questions and requested copies of material safety data sheets for various types of vaccinations and safe work method statements that technically should have been written before DP World took this course of action. According to Mr Taylor, the Company’s response to this communication was completely lacking in substance and was a clear attempt to deflect liability.

Submissions

Represented Applicants

[250] The MEU filed written submissions on 31 January 2022, 14 February 2022 and 13 May 2022. The MEU submits that the following facts are established. On 16 September 2021 DP World posted on its website a report that it had decided to implement a mandatory COVID-19 vaccination policy for all employees and contractors. Despite the Company’s announcement that it had commenced consultation with its workforce and health and safety representatives (HSRs), in fact, it had not consulted with its employees, its HSRs, or the MUA as the union that represents the interests of DP World employees. The same day that the Company announced on its website its decision to mandate vaccinations, DP World Australia CEO, Mr Adam, issued a bulletin in which he notified employees that the Company had “made the decision to make COVID-19 vaccination for all employees and contractors a condition of engagement”. He also informed employees that: We will commence consultation with employees and health and safety representatives in the coming weeks on the details of the policy. Thus, as Mr Adam freely acknowledged, DP World failed to consult with employees and HSRs prior to making a firm decision to implement its vaccine mandate. In fact, at no time did the Company ever engage in meaningful discussions with its employees, its HSRs or the MUA before implementing the policy.

[251] On 20 September 2021, four days after the Company declared its intention to implement the vaccine mandate, Mr Hulme, DP World’s Chief Operating Officer – Terminals, wrote to Mr Evans of the MUA, informing him that the Company had unilaterally conducted a “risk assessment” and invited HSRs to do nothing more than “provide their feedback” to the assessment. In response, Mr Evans and HSRs from ports around the country met with Mr Hulme and other Company managers via video link on 23 September 2021. At the meeting Mr Hulme provided the attendees with a “Risk Assessment Form” that the Company completed without any input from, or consultation with, HSRs or the MUA. HSRs at the meeting objected to the risk assessment that was provided to them on the basis that the document wasn’t a “risk assessment” because it did not result from any risk analysis by the Workplace Health and Safety Committee.

[252] After the meeting Mr Evans wrote to Mr Hulme appending questions raised at “today’s initial consultation meeting” around the announcement of mandatory covid vaccination pointing out the obligation to properly consult in relation to any policy that will have significant impact on employees. The letter stated that given the sense of urgency around the Company’s fast approaching timelines, the MUA expected responses ASAP but no later than COB Wednesday 29 September as per the commitment made that day. The letter further stated that, as agreed that day, a further consultation meeting should occur after the MUA had the opportunity to digest responses. The MUA submitted that the Company responded via e-mail with a one or two sentence response to each question and that rather than considering Mr Evans’ questions as a starting point for meaningful consultation, DP World considered its inadequate response as meeting its obligation to consult – under both the WHS Acts and the consultation provisions contained in the respective Enterprise Agreements.

[253] The Sydney Branch of the MUA, acting through Assistant Branch Secretary, Brad Dunn, repeatedly protested that the Company had not meaningfully consulted with HSRs as is required by both the Work Health Safety Act and the EA. Nonetheless, the Company notified the MUA on 7 October 2021 that the consultation process had concluded. On roughly 19 October 2021 DP World sent letters to those Sydney based employees who had not provided proof of their vaccination status by the Company’s nominated deadline, inviting them to show cause why their employment should not be terminated. Except for a handful of employees whose contraindication certificates were accepted, approximately one week after sending out the show cause letters, DP World terminated the careers of those employees who failed to provide proof that they had been vaccinated against COVID-19. Likewise, in early November DP World sent letters to those Brisbane based employees who had not provided proof that they had been vaccinated inviting them to show cause why their employment should not be terminated. Shortly thereafter, DP World terminated their careers as well.

[254] The MUA submits that DP World’s direction to get vaccinated could only provide the Company with a valid reason for dismissing those employees who did not provide proof that they had gotten vaccinated by the Company’s nominated cut-off date if the direction was both lawful and reasonable and that the direction was manifestly unreasonable. The MUA submitted that consistent with the Full Bench Decision in Mt Arthur Coal the direction was not reasonable because DP World failed to:

a. comply with its consultation obligations under both the New South Wales and Queensland Work Health and Safety Acts;

b. comply with its consultation obligations under the EA;

c. comply with clause 8.12 of the EA by unilaterally implementing a policy that impacts on the terms of conditions of employment and is contrary to the intent of the EA;

d. take into account the views of employees who feel strongly about bodily integrity and do not wish to be vaccinated; and

e. comply with its obligations under the Privacy Act 1988 (Cth) (Privacy Act).

[255] The Company’s failures render its direction to employees to supply proof that they had gotten vaccinated unreasonable, thereby establishing that the vaccine mandate did not provide DP World with a valid reason to dismiss any of the Applicants.

[256] In relation to consultation, the MUA submits that both New South Wales and Queensland have implemented the Model Work Health and Safety laws developed by Safe Work Australia. It is undeniable that DP World’s vaccine mandate triggered the consultation requirements of New South Wales and Queensland Work Health and Safety legislation set out in ss. 47 – 49. The MUA pointed to the decision in Mt Arthur Coal, where the Full Bench stressed that “[c]onsultation is treated by the WHS Act as a matter of substance which is to occur prior to implementation” and that “[s]ection 48(2) requires that the consultation involve a HSR”. 105 The MUA also referred to the principles set out in Mt Arthur Coal in relation to the extent of an employer’s duty to consult under WHS Acts and contended that DP World inarguably failed to meet its consultation obligations. First, rather than consulting with HSRs, employees, or the Union prior to implementing the mandatory vaccine policy, the Company announced that the Company had unilaterally “made the decision to make COVID-19 vaccination for all employees and contractors a condition of engagement”.

[257] This could be contrasted with the facts in Mt Arthur Coal, where the Company had, prior to implementing its mandatory vaccine policy:

“…commenced an education program and promoted COVID-19 vaccination to all of its employees across its Australian operations, including those employed by Mt Arthur. This included the regular circulation of announcements and videos that informed employees of the health and safety benefits of vaccination, exposed common myths about COVID-19 vaccines, and provided information about how employees could book their vaccination appointments.”

[258] The MUA submitted that DP World did not do any of those things. While, in the bulletin that Mr Adams sent to DP World employees, he assured them that “COVID-19 vaccinations are a safe and effective form of protection for our people and the community to reduce transmission and associated serious health impacts”, the Company provided employees with no scientific basis for that bare conclusion. Importantly, even though the Company knew, or should have known, that a plethora of vaccine myths proliferated on social media sites, DP World took no steps to attempt to debunk any of them. Had the Company met its consultation requirements, HSRs almost certainly would have made an education campaign based on science a fundamental element of any vaccine mandate.

[259] When DP World management did finally meet with Mr Evans and HSRs via video link, the meeting did not amount to anything that could be reasonably described as consultation. The Company did nothing more than provide the Union and HSRs with copies of a “Risk Assessment Form” that DP World had completed without any input from its employees, HSRs, or the Union. In other words, DP World said, “we are going to implement a mandatory vaccine policy based on this risk assessment that we performed”; not, “we are considering implementing a mandatory vaccine policy based on our risk assessment, will you please provide us with feedback”?

[260] In sum, the entirety of DP World’s consultation process consisted of a single meeting via video link with the MUA and HSRs one week after the Company had made a firm decision to implement the vaccine mandate; and (2) providing a brief written response to questions that arose as a result of the meeting. The MUA contended that quite obviously, DP World’s consultation process was not just inadequate. It was non-existent. As was the case in Mt Arthur Coal, the language of the Company’s announcement that it was implementing a mandatory vaccine policy “demonstrates that the decision was ‘irrevocable’ and ‘not amenable to consultation’”. 106

[261] Because the Company failed to comply with its consultation obligations under Work Health and Safety legislation prior to implementing its mandatory vaccination policy, DP World’s direction to employees to get vaccinated was unreasonable. As such, a failure by employees to comply with the direction did not provide the Company with a valid reason to dismiss them. The MUA also submitted that in addition to its obligation to consult under the New South Wales and Queensland Work Health and Safety Acts, DP World agreed in enterprise bargaining to make consultation with the Union and employees the foundation of its health and safety obligations, as evidenced in clause 21.4 of the Enterprise Agreements.

[262] Even if the Commission somehow determined that the Company complied with its consultation obligations under the WHS Acts, the Company’s level of consultation with employees could not be said to fulfil DP World’s acknowledgment that “consultation is an essential part of managing health and safety risks”, and its undertaking “to communicate and consult with employees and HSRs about matters which affect, or are likely to affect, the health and safety of employees”. The EA goes substantially further than the Work Health and Safety Act by requiring DP world to draw, not only on the knowledge and experience of employees, but also the experience of “health and safety specialists”.

[263] DP World’s strong commitment to consult with its employees in matters relating to their health and safety serves as an acknowledgment that employees are entitled to the dignity that comes with having a voice in decisions that affect their health and safety, and the opportunity to influence their employer in its decision-making processes. The importance of consultation provisions in both legislation and enterprise agreements has long been recognised by Australian courts and tribunals. In Federated Clerks’ Union (Aust) v Victorian Employers’ Federation, 107 a case cited favourably in Mt Arthur Coal, Murphy J said:

“During this generation, there has been an accelerating trend towards concentration of economic power in fewer and fewer persons. The growth of the great national corporations, their mergers and expansion into transnationals have transformed the methods of production, distribution and exchange. The power of the greatest corporations transcends that of most governments. A reaction to the submergence of the individual worker is the demand by organized workers for some share in deciding what work is to be done, by whom and when, where, and how it is to be done. The thrust of the demand is not merely the improvement in existing pay and conditions. It extends to the protection of jobs, for themselves treated as more than wage-hands – to be treated as men and women who should be informed about decisions which might materially affect their future, and to be consulted on them. It is a demand to be emancipated from the industrial serfdom which will otherwise be produced by the domination of the corporations; a demand to be treated with respect and dignity.” 108

[264] In sum, the same evidence that establishes that DP World failed to comply with its consultation obligations under WHS Acts leads to the conclusion that the Company also failed to comply with its consultation obligations under the terms of the Enterprise Agreements. That failure makes the Company’s direction for its employees to get vaccinated unreasonable and renders invalid the reason that the Company relied on to dismiss each of the Applicants.

[265] In relation to the submission that the mandatory vaccine policy is inoperative because it fails to comply with the intent of the Enterprise Agreements, the MUA referred to clause 8.12, emphasising the part of the clause which states that: “Nothing contained in a policy or procedure shall be operative nor shall it have any effect to the extent that its inclusion or implementation is inconsistent with the intent of this Agreement.”

[266] The MUA contends that clause 8.12 was bargained into the agreement in approximately 2003 for the specific purpose of preventing the Company from implementing policies like the mandatory vaccine policy without giving employees and the MUA an opportunity to, not only consult, but bargain the policy’s terms. 109 In relation to clause 3 of the Enterprise Agreements which set out the intent, the MUA referred to subclauses 3.2 and 3.3 and submitted that while the clause is aspirational in nature and not an exhaustive catalogue of matters that define the intent of the agreement, the clause highlights the importance of “genuine communication with the employees and the union” and bringing about “more constructive and collective workplace relationships between management and Employees”. To achieve those aspirational goals, DP World must consult with its employees and the Union that represents them.

[267] The MUA also contends that the overarching intent of the Enterprise Agreements is consultation between the Company, its employees, and the MUA and the heart of the health and safety provision is consultation. In this regard the Union pointed to the fact that the word “consultation” appears in the Enterprise Agreements 26 times. While DP World, no doubt, will argue that it implemented the policy to protect the health and safety of its employees, and to comply with its obligations under a myriad of health and safety laws and regulations. That assertion is uncontroversial. Despite the Company’s intentions, its “Big Brother” approach to protecting the health and safety of its employees is prohibited by the Enterprise Agreements. While accepting that the intent of the Agreements includes an intention to keep employees safe – especially during a worldwide pandemic in which millions of lives have been lost – the mechanism for achieving this is consultation with employees and HSRs – not the heavy-handed dictates of an employer – no matter how well intentioned.

[268] Moreover, the mandatory vaccine policy could not be more contrary to the job security provisions of the agreement. In this regard, a policy that results in the summary dismissal of employees who have worked for DP World for many years, and in some cases, decades, is antithetical to job security – a core objective of the agreement. As noted above, clause 8.12 of the agreement is even broader than the consultation obligations contained in the health and safety provisions. It declares that any policy that the Company implements that is inconsistent with the intent of the EA is inoperative and without effect. Inherent in that provision is a requirement that DP World refrain from implementing policies like the mandatory vaccine policy without bargaining with employees and the Union, or having the employees and the Union sign off on the policy as complying with the intent of the EA.

[269] In sum, the MUA contends that in addition to the other reasons discussed in its submissions, the Mandate is unreasonable because it is contrary to clause 8.12 of the EA and, therefore, cannot provide DP World with a valid reason to terminate any employee. In this regard, the process undertaken by DP World in relation to its decision to implement the mandatory vaccine policy was “woefully inadequate”. Employees were not given a reasonable opportunity to express their views, to raise work health or safety issues, or to contribute to the decision-making process relating to the decision to introduce the vaccine mandate. They were not provided with information relating to the reasons, rationale and data supporting the proposal, nor were they informed of the analysis that informed the Company’s unilaterally performed risk assessment. They were not invited to comment on the Company’s plans, let alone engage in a consultation process. Rather, they were merely informed that the Company had decided to implement the policy.

[270] DP World’s failure to meet its consultation obligations under both Work Health and Safety legislation, and the Enterprise Agreements that govern the working conditions of its employees, renders the mandatory vaccination policy unreasonable. In no circumstances can a failure to comply with such an unreasonable policy provide an employer with a valid reason for dismissing an employee.

[271] The MUA also contends that DP World exacerbated the unreasonableness of the vaccine mandate by pressuring employees into surrendering their bodily integrity and failing to consider their concerns. In Mt Arthur Coal, the Union argued that the employer’s mandatory vaccine policy “at least impacts upon the choice of an individual to undergo a medical procedure” and hence engages the common law right to personal and bodily autonomy and integrity”. The MUA contends that the Full Bench agreed and said the following:

“[222] While we would demur from the proposition that the Site Access Requirement constitutes coercion in the legal sense, we accept that it is a form of economic and social pressure.

[223] The practical effect of the Site Access Requirement is to apply pressure to employees to surrender their bodily integrity (by undergoing medical treatment) in circumstances where they would prefer not to do so. In our view, this is plainly a relevant matter in assessing the reasonableness of the direction. However, we also accept that this factor is not determinative of the question of reasonableness; it is a consideration to be weighed in the balance with the other relevant considerations. As counsel for the Respondent put it in the course of oral argument:

Mt Arthur Coal acknowledges, that every worker on the mine has a right to their bodily integrity, but, as we have pointed out in our written submissions, that is a right that in every case must be balanced against other rights …

[224] The practical effect of the Site Access Requirement also underscores the significance of the failure to meaningfully consult with the Employees prior to the decision to introduce the Requirement. It is common knowledge that some citizens feel very strongly about their bodily integrity and do not wish to be vaccinated. A minority of the Employees appear to hold such views. It is particularly important that these employees be heard; that they be consulted and their views be taken into account.”

[272] The fact that DP World implemented a policy that imposes a practical compulsion to get vaccinated in order for its employees to retain their employment, and its failure to consult with, let alone take into account, the views of employees who feel strongly about bodily integrity and do not wish to be vaccinated, when combined with the Company’s failure to meet its consultation requirements, weighs heavily in favour of a conclusion that the policy is unreasonable.

[273] Further, the MUA contends that DP World failed to comply with its obligations under the Privacy Act and the associated Privacy Principles. In this regard, DP World, as an APP entity under s. 6 of the Privacy Act is required to comply with the Australian Privacy Principles (APPs) in relation to collection of personal information from its employees. 110 APP 3.3 provides that an APP entity that is an organisation must not collect “sensitive information” about an individual unless the individual consents. As explained by the Full Bench in Mt Arthur Coal:

“Consent’ in APP 3.3. means ‘express or implied consent’. The Australian Privacy Principles Guidelines issued by the Australian Information Commissioner under s. 28(1) of the Privacy Act explain:

… The four key elements of consent are:

•  the individual is adequately informed before giving consent

•  the individual gives consent voluntarily

•  the consent is current and specific, and

•  the individual has the capacity to understand and communicate their consent.

Guidance issued by the Office of the Australian Information Commissioner on COVID19 vaccinations and privacy obligations explains:

Consent to collecting vaccination status information must be freely given and constitute valid consent. You must make sure that your employees understand why you need to collect this information, what you will use it for, and give them a genuine opportunity to provide or withhold consent. You should exercise caution in seeking consent in these circumstances given the imbalance of power in the employment relationship that may cause employees to feel pressured or obligated to provide their consent.”

[274] The MUA also referred to the decision of the Commission as presently constituted 111, after the Mt Arthur Coal decision, here the issue for resolution was:

“whether, in circumstances where employees are liable to termination of their employment for refusal to provide the information sought in the manner required, any consent they may give (or have given) to provide the vaccination information pursuant to the direction, is vitiated because it is not voluntary or it is the result of coercion or duress.” 112

[275] The employer in BHP Coal required employees to either (a) upload their vaccine digital certificate, or (b) visit designated stations on-site at which authorised personnel could sight their digital certificate. Moreover, employees were asked whether they would give their express consent to the collection of the information via the following consent notice:

“Declaration and Consent

To keep you and our workforce safe and healthy BHP wishes to collect and process information about your COVID-19 vaccination status. This will assist us to plan for the future and escalate or deescalate our COVID-19 controls and enable us to make decisions about workplace and site access in order to protect you and other BHP workers against COVID-19 infection risk.

By [checking the box], you consent to BHP:

1. collecting and processing information about your COVID-19 vaccination status for the purposes described above; and

2. where necessary, disclosing this information to third parties (health, security, site access and travel service providers); and

3. storing this information in BHP systems in line with our Global Privacy Notice for BHP Workers.

Giving your consent is voluntary and you are free to withdraw, alter or restrict your consent at any time by notifying BHP in writing. However, it would be helpful for you to share your vaccination status with us, as it will assist BHP to identify controls to continue to keep our workers as safe and healthy as possible. Without access to this information, we may assume that you have not received the COVID-19 vaccine for the purpose of our controls, including workplace entry controls.

We will manage all of your information in accordance with privacy laws. Your information will be stored securely and only accessible by the BHP Health Team. For more about BHP privacy management practices, and about your rights in relation to information held by BHP, please see the Global Privacy Notice for BHP Workers and Our Requirements for Information Governance and Controlled Documents.”

[276] The Commission had no problem concluding that the employer in BHP Coal complied with its obligations under the Privacy Act and concluded:

“It is clear from the material before me that individual employees have been more than adequately informed about relevant matters pertaining to consent identified in the APP and relevant guidance issued by the OAIC. Explanations provided to employees include why the Respondents need to collect the information and what it will be used for. Consultation has been extensive and comprehensive, and the Respondents have utilised multiple methods of disseminating information. Employees have also received explanations about how the information is proposed to be collected and stored including safeguards relating to confidentiality. There has been consultation about issues, concerns and suggestions raised by employees. There is no suggestion in the case of employees who have given consent (or have complied with the request to signify their agreement to providing the information) that the consent is not current and specific. Nor is it in dispute that any relevant employee has capacity to understand and communicate their consent.” 113

[277] Comparing the measured, informative approach that the employer took in BHP Coal, with the heavy-handed ultimatum issued by DP World, is a study in contrasts. While BHP Coal gave its employees enough information for them to make an informed choice, DP World did nothing more than threaten to terminate any employee who refused to provide a copy of their government issued vaccine certificate. As far as any of the Applicants are aware, the only information that the Company provided to them in relation to their rights under the Privacy Act is the following that was provided in a bulletin labelled “COVID VACCINATION MANDATE – FAQs”:

The Privacy Act has limited application to employment, all records relating to your employment are not regulated by the Privacy Act. Having said that, DP World takes its obligations to protect your health information seriously. We have been clear it will be used for a very limited purpose, held securely and have very restricted access. IT security statements are available on request. If an employee doesn't wish to provide a COPY of the certificate, HR will still need to record their status and view their certificate so employees still need to advise of their vaccination status - this approach is not currently practicable as HR is not available on site across all shifts to site information. 114

[278] The MUA contends that unlike the employer in BHP Coal, DP World did not adequately inform its employees about relevant matters pertaining to consent identified in the APP and relevant guidance issued by the OAIC. The Company offered no explanation to employees as to why it needed to collect the information and what it would be used for. Consultation was non-existent, and other than the response to the FAQ above, the Company did not disseminate any information.

[279] In BHP Coal the Unions relied on the following finding by the Full Bench in Lee v Superior Wood Pty Ltd (Lee) (26 [2019] FWCFB 2946.) to argue that the employer’s direction to provide copies of their vaccination certificate was unlawful:

“[58] For the reasons set out above, we consider the direction to Mr Lee to submit to the collection of his fingerprint data, in circumstances where he did not consent to that collection, was not a lawful direction. Moreover, we consider that any ‘consent’ that he might have given once told that he faced discipline or dismissal would likely have been vitiated by the threat. It would not have been genuine consent. Given this finding, it is not necessary to consider whether the direction was reasonable. Nonetheless had it been necessary to do so we conclude the direction was unreasonable. A necessary counterpart to a right to consent to a thing is a right to refuse it. A direction to a person to give consent does not vest in that person a meaningful right at all. Such a direction is in the circumstances of this case, unreasonable. It was not a valid reason for dismissal.”

[280] The Commission rejected the Unions’ reliance on Lee on the basis that “the finding of unlawfulness [in Lee] was based on failure to comply with notification and other procedural requirements of the Privacy Act while the finding of unreasonableness was limited to matters related to consent” 115. The “notification and procedural requirements” in Lee that the Commission referred to in BHP Coal include the following breaches of the Privacy Act by the employer in that it failed to:

•  have a privacy policy as required by APP 1;

•  issue a Privacy Collection Notice to employees as required by APP 5; and

•  notify the Appellant of matters in APP 5 including about complaints he might have made in relation to privacy. 116

[281] Unlike the employer in BHP Coal, DP World, as far as the MUA and the Applicants are aware, does not have a privacy policy as required by APP 1, did not issue a Privacy Notice to employees as required by APP 5, and did not notify any of the Applicants of matters in APP 5 including about complaints they might have made in relation to privacy. Accordingly, as was the case in Lee, the direction to the Applicants to provide proof of their vaccination status in circumstances where they did not consent to that collection was neither lawful nor reasonable.

[282] In sum, DP World’s failure to comply with the consent requirements under the Privacy Act and attendant Privacy Principles establish that the direction for employees to produce their digital vaccine certificate was unreasonable. Likewise, the Company’s failure to comply with the notification and procedural requirements of the Privacy Act makes the direction to produce digital vaccine certificates unlawful. As discussed above, an unlawful or unreasonable direction can never serve as a valid reason for dismissal.

[283] The MUA’s final contention is that the Mandate is ineffective. In this regard, reference was made to an article published in a 31 October 2021 Financial Review article that reported the dismissals of “almost two dozen wharfies”, in which a DP World spokesperson was quoted as stating that 97 percent of the Company’s employees had provided evidence of their vaccination status, including 93 percent of their Brisbane workforce. 117 Thus, when DP World terminated the Applicants, vaccination rates at DP World’s operations greatly exceeded vaccination rates within the community. In addition, approximately one week after DP World’s announcement that the Company had achieved a 97% vaccination rate, the NSW Premier announced that the State had achieved a 90% vaccination rate and would fully open for both vaccinated and unvaccinated residents no later than 15 December 2021.118

[284] Thus, in Sydney at least, DP World employees are mingling in the community with unvaccinated persons as they go about their daily lives. When governments do not implement public health orders that restrict unvaccinated residents from attending places where vaccinated persons congregate, a mandatory vaccine policy does not make a worker any less likely to become infected than they would be if three percent of their co-workers remained unvaccinated. After all, when DP World employees shop for groceries in Sydney, statistically, six percent of the patrons will be unvaccinated – double the percentage of unvaccinated workers that would work at the Company’s operations had it not dismissed the Applicants.

[285] Thus, even if three percent of DP World’s workforce remained unvaccinated, work is the safest public place where vaccinated workers could be. Likewise, because of the high vaccination rates at DP World, an unvaccinated worker would be less likely to get infected with COVID-19 while at work than when going about their daily lives. While the Queensland government still has restrictions in place for unvaccinated people, soon when vaccination rates hit 95 percent those restrictions will undoubtedly get lifted. When that happens, just as in New South Wales, a reasonable justification for a mandatory vaccine policy is difficult to ascertain.

[286] The MUA submits that the reality is that a small percentage of Australians will never get vaccinated against COVID–19. Without extraordinary government action that results in the permanent segregation of unvaccinated people from the vaccinated, unvaccinated people will live and work and play in the community with their vaccinated neighbours. Once governments decide that the unvaccinated and the vaccinated will co-exist, a Company cannot make their employees safer by mandating vaccines. In short, DP World’s mandatory vaccine policy is unreasonable because it does not achieve its claimed purpose of keeping its employees safer than if the policy had not been implemented.

[287] In post-hearing written closing submissions, the MUA said:

“The Respondents wax poetic about the sufferings that Australians have endured throughout a pandemic that has upended our very way of life. It is not controversial that COVID-19 has sickened more than six million of us and killed more than seven- thousand of those infected. But the seriousness of the pandemic is not in issue and does not justify the Respondent’s failure to comply with its obligations under the law. We remain a nation that values the rights that our forebears shed their blood, sweat and tears to pass on to future generations. In the workplace, they fought for better wages and working conditions. They fought for individual worker rights. And, they fought for laws that gave workers a say in matters of their health and safety – especially in a time of a public health crisis. Gone are the days when workers do not have a seat at the table when employers propose to introduce policies that impact the health and safety of their workforce.

DP World suggests that the pandemic created a health care catastrophe that compelled it to act decisively by mandating that employees surrender their bodily integrity and their rights under privacy laws by getting injected with two doses of a vaccine – without first consulting with the affected workers. That authoritarian approach to health and safety in the workplace is prohibited by the WHS Act. The Full Bench in Mount Arthur Coal explicitly confirmed that to be the case, noting:

Management has no monopoly of knowledge and understanding of how a business operates, or of the wisdom to make the right decisions about it. The process of consultation is designed to assist management, by giving it access to ideas from employees, as well as to assist employees to point out aspects of a proposal that will produce negative consequences and suggest ways to eliminate or alleviate those consequences. 119

DP World also emphasises that its operations are critical to getting essential supplies to the inhabitants of this island nation, and suggests that the company should be pardoned for its failure to consult with its employees before deciding what was best for them because it was tasked with the weighty responsibility during a public health crisis of ensuring the free flow of goods and saving the Australian economy from near certain collapse.

That assertion does not stand up to scrutiny. It is the role of government to ensure that food and medicine and other goods reach our shores – not a publicly held company. And, as Mark Hulme acknowledged, none of the other stevedoring companies operating in Australia – all of which are also responsible for ensuring that goods flow into and out of our borders – introduced a vaccine mandate. 120

The importance to stevedoring companies to Australia are just as obvious as the importance of coal mining companies. Australia's primary energy consumption is dominated by coal (around 40 per cent). 121 Despite the potentially catastrophic effects to Australia if its largest coal mining company was shut down due to mass infections in its workforce, the Mount Arthur Coal Full Bench had no trouble concluding that, so vital is the duty to consult with employees before deciding to implement a vaccine mandate, that a threat to the company’s ability to provide the fossil fuels upon which Australia depends to meet its energy needs did not extinguish its obligation to consult with its employees before it dictated that they get vaccinated.

For all its talk of concern for its employees’ health and safety, and the critical role that it plays in relation to the Australian economy, it is clear that DP World’s primary concern in implementing the mandate was its own economic interests. The Respondent’s lawyer acknowledged as much, boasting that “DP World makes no apologies for the fact that it has a commercial interest” 122 in continuing “to operate effectively and efficiently and that it minimise the extent to which problems with labour availability disrupt its operations”.123

In other words, for all of its lofty justifications for spurning its duty to consult with its workforce before dictating that they get injected with two doses of a vaccine that many of its employees did not want to get injected with, DP World’s decision to mandate vaccines was an economic one. While dressed up with fancy phrases like “operational continuity” and the “public interest in continuity of stevedoring operations”, the company chose not to bother with what it considered the minutia of consulting with its employees in matters related to their health and safety because doing so might adversely affect the bottom line of DP World shareholders.

To be clear, the represented Applicants do not criticise DP World for looking after its commercial interests. After all, we live in a capitalistic society and the directors of publicly traded companies owe fiduciary duties to shareholders. What the represented Applicants do object to, however, is the fact that DP World deceptively maintains that its failure to consult with employees stemmed from its overarching benevolent duties to protect the health and safety of its workforce and to ensure that essential goods reach every Australian household. DP World need not apologise for pursuing its commercial interests. What it should apologise for, however, is placing its commercial interests over the workplace health and safety rights of its workers. What it should further apologise for is sacking twenty-two hard-working wharfies who were given no opportunity to express their views prior to the company’s decision to implement a policy that affected their health and safety.”

[288] The submissions went on to make the following points in response to the Respondent’s submissions. Firstly, the assertion that the facts in Mount Arthur Coal are distinguishable from the facts presented here should be rejected. In this regard, the MUA submits that the Respondents devote 42 pages attempting to distinguish Mount Arthur Coal 124, and arguing that the Full Bench got it wrong when it held that consultation needs to take place prior to when an employer makes the decision to introduce a vaccine mandate.

[289] According to DP World, its mandate can be distinguished on the basis that it was introduced for the dual purpose of protecting employee safety and mitigating against operational disruption. 125 Because the second rationale for introducing the mandate is unrelated to health and safety, so the argument goes, DP World somehow has a lesser consultation obligation than did the employer in Mount Arthur Coal. The MUA contends that this submission is absurd, for the following reasons.

[290] It goes without saying that, whenever an employer implements a vaccine mandate, it does so for the purpose of operational continuity. For profit corporations exist for the purpose of making money. When large numbers of employees need to self-isolate because of exposure to COVID-19, employers’ bottom lines are affected because they do not have enough available labour to perform the work that needs doing. That is the case whether the employer is a coal mine, a meat packing Company, or a stevedoring operation. Thus, while the employer in Mount Arthur Coal acknowledged that it implemented its vaccine mandate for health and safety reasons, inherent in its decision to introduce the mandate was the dual purpose of maintaining operational continuity so as to maximise for shareholders a financial return on their investment.

[291] This is submitted to be self-evident from the fact that the employer in Mount Arthur Coal went to tremendous lengths to continue its mining operation at full force during a worldwide pandemic. If the Company’s sole concern was the health of its employees, it would have ceased its operations and directed its employees to stay home rather than risk getting infected at work. Moreover, DP World fails to support with logic or precedent its assertion that it has a reduced consultation obligation under the WHS Act because it had a secondary purpose for introducing a mandate. Section 49(d) of the WHS Act provides that consultation is required “when proposing changes that may affect the health or safety of workers”. Thus, the obligation to consult is not triggered by the Company’s stated purpose or purposes for implementing a vaccine mandate, and its obligation to consult is not reduced because one of the reasons for implementing the mandate is not safety related. Rather, what triggers the obligation to consult is a proposed change “that may affect the health or safety of workers”.

[292] Second, the Respondents attempt to distinguish Mount Arthur Coal by suggesting that there was somehow a greater sense of urgency to implement a vaccine mandate at DP World than there was at the employer’s operations in Mount Arthur Coal. According to DP World, the fact that two of its Sydney employees tested positive on 15 September 2021 created a state of emergency that required it to implement a vaccine mandate in, not only Sydney, but Brisbane, Melbourne, and Fremantle. DP World seems to argue that the purported state of emergency made it impractical, or impossible, for the Company to consult with employees, their Union, and HSR’s before making a firm decision to introduce the mandate.

[293] That argument is specious. The same exigent circumstances for implementing the vaccine mandate at DP World existed for the employer in Mount Arthur Coal. The crisis was a worldwide pandemic – not the fact that two employees at one of DP World’s ports tested positive. The Full Bench in Mount Arthur Coal described the dire consequences that all Australian employers faced as a result of the pandemic and the likelihood of the virus spreading when movement restrictions ceased and that those who remain unvaccinated are at greatest risk of acquiring COVID-19, becoming seriously ill or dying from acquiring COVID-19, and infecting other people with whom they come into contact. 126 Moreover, even on the evidence of the unrepresented Applicants, consultation need not take weeks or months. Under questioning from the Deputy President, Mr Lewis, HSR at Port Botany, testified that a complex risk assessment would take, at most, two days.127

[294] The MUA submits that DP World did not even meet with the Union and HSRs until 23 September 2021 128 – a full week after Mr Adam announced that the Company had “made the decision to make COVID-19 vaccination for all employees and contractors a condition of engagement”. The Company obviously could have complied with its WHS obligations by consulting with employees, the Union and HSR’s over the course of a day or two, then announced the mandate if that was the course that the Company decided to take after conducting risk assessments with the involvement of HSRs. The MUA submits that any suggestion by DP World that it was not reasonably practical for it to consult prior to making a firm decision to implement the mandate because of emergency circumstances that were unique to its operations is contrived and unpersuasive.

[295] Next, DP World strenuously argues that, in the case of the Sydney based Applicants, SafeWork NSW somehow determined that the Company had complied with the consultation provisions of the WHS Act. The MUA contends that SafeWork did no such thing and was in fact, powerless to do anything to compel DP World to engage in further consultation regarding the Mandate. By the time the Company met with a NSW SafeWork Inspector on 19 October 2021, DP World had already implemented the policy and the 15 October 2021 deadline for getting a first jab had already come and gone. It was also submitted that the same day that DP World met with a NSW SafeWork Inspector, Mr Eadie sent letters to each of the represented Applicants asking them to show cause why their employment should not be terminated for failing to comply with the direction to get a first dose of the vaccine by 15 October 2021. 129 Moreover, the Company terminated the employment of unvaccinated employees on 25 October 2021130, the day before DP World provided SafeWork NSW with documents that it requested – copies of documents relating to the consultation meetings including the attendance register, the Draft Risk Assessment, the Final Risk Assessment, and the FAQ’s with answers.131 The MUA contends that that “since DP World had already implemented the vaccine mandate and terminated the employment of those employees who failed to comply, what possibly could SafeWork NSW have done to put the genie back in the bottle? Absolutely nothing, of course.”

[296] In relation to the Respondents’ suggestion that SafeWork NSW not issuing any Improvement Notices pursuant to section 191 of the WHS Act is “a powerful factor tending to indicate that the direction given by DP World in the form of the Mandate was lawful and reasonable” 132 the MUA contends that this is an overstatement highlighting the desperation of DP World’s position. In relation to this assertion, the MUA points to s. 191 of the WHS Act, which provides:

“191 Issue of improvement notices

(1) This section applies if an inspector reasonably believes that a person—

(a) is contravening a provision of this Act, or

(b) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.

(2) The inspector may issue an improvement notice requiring the person to—

(a) remedy the contravention, or

(b) prevent a likely contravention from occurring, or

(c) remedy the things or operations causing the contravention or likely contravention.”

[297] The MUA contends that by the time SafeWork NSW got involved, the damage had already been done, and the Agency was powerless to do anything about DP World’s failure to consult. SafeWork could not issue an improvement notice that would (a) remedy the Company’s failure to consult, (b) prevent a likely contravention from occurring, or (3) remedy the harm that resulted from DP World’s failure to consult. SafeWork NSW did not issue an improvement notice because it would have been pointless to do so. In sum, the fact that SafeWork did not issue an after-the-fact improvement notice is irrelevant to a determination of whether DP World met its consultation obligations under the WHS Act. It would serve as a dangerous precedent for the Commission to infer from a state agency’s inaction that it had made a positive determination that a Company had complied with its consultation obligations under the WHS Act. With due respect, it’s the role of the Commission to determine that question, not SafeWork NSW.

[298] The MUA also contends that if DP World’s argument were to prevail, then we would be left with the bizarre result of the mandate being declared unreasonable because of a lack of consultation in the case of the Brisbane Applicants, but reasonable in the case of the Sydney Applicants – even though the level of consultation was nearly identical in both locations. Further, the MUA contends that DP World’s assertion that it was open to reconsidering its vaccine mandate after consulting with employees is contradicted by all credible evidence. In this regard, the Respondents correctly note that the “trump card”15 that the Applicant’s hold is the fact that all the consultation occurred after Mr Adam unambiguously announced the decision to implement the Mandate.

[299] The vaccine mandate was announced by a person who the Respondents describe as “the CEO of the Company and hence its public face”. 133 Despite Mr Adams’ clear announcement that DP World had “made the decision to make COVID-19 vaccination for all employees and contractors a condition of engagement” and that it would “commence consultation . . . in the coming weeks on the details of the policy”, the Respondents disingenuously argue that, while DP World “announced its intended decision prior to consultation, it was subject to a consultation process and it was prepared to revisit those decisions”.134 The MUA submits that suggestion is utter nonsense. In this regard, the only evidence that is contained in the record that would suggest that Mr Adams’ announcement that the Company was “prepared to revisit” its decision to make vaccination a condition of engagement is the nonsensical evidence given by Mark Hulme who agreed under cross-examination that Mr Adams’ announcement indicated a willingness to consult with employees only on the details of the Mandate. Further, in response to the proposition that nothing in Mr Adams’ clear announcement suggests that DP World was open to reversing the decision to implement the Mandate, Mr Hulme said that there was nothing to say that the Company was not open to the alternative. 135

[300] The MUA submits that nearly identical facts arose in Mount Arthur Coal. There, the employer’s CEO, Mr Basto, sent out a bulletin containing language practically mirroring the language contained in Andrew Adams’ bulletin:

“Based on the findings of our assessment, the Company will introduce a requirement for COVID-19 vaccination as a condition of entry to BHP workplaces in Australia for all workers and visitors. [emphasis in original]” 136

[301] Despite that unambiguous language, as here, witnesses less senior than the CEO gave evidence that the employer remained open to revisit its decision to mandate vaccines. 137 The Full Bench rejected such evidence, stating “[w]e do not accept evidence to the contrary given by managers less senior than Mr Basto”.138 Instead, the Full Bench accepted that the Company meant what it said when announcing the mandate, and that: “the language of this announcement demonstrates that the decision was ‘irrevocable’ and ‘not amenable to consultation’; ‘it wasn't even amenable to consultation about dates”.139

[302] The MUA submits that Mr Hulme’s suggestion that the Company remained open to reversing its decision to mandate vaccines should be rejected because it flies in the face of the clear language contained in the bulletin sent out by DP World’s CEO and “public face”. If the Company remained open to reversing Mr Adams’ announcement, only he could credibly say so. It simply isn’t credible for anyone less senior that Mr Adams to testify that Mr Adams did not really mean what he said when he announced that the Company had decided to make vaccination a condition of employment. Such evidence is self-serving and speculative.

[303] In conclusion, the MUA submits that DP World stubbornly clings to the argument that Mount Arthur Coal does not stand for the proposition that, when a Company decides to introduce a vaccine mandate before consulting with its employees, the mandate is unreasonable, and employees therefore need not follow it. That position is belied by the language used in the Full Bench decision in that case in its conclusion in relation to the reasonableness of the direction. In particular, the MUA points to the fact that the determinative consideration in the finding that the Site Access Requirement was not a reasonable direction was that the Full Bench was not satisfied that there was consultation in accordance with ss. 47 and 48 of the WHS Acts. The MUA submitted that other than the fact that the Company in Mount Arthur Coal consulted comprehensively with its employees when compared to the total lack of consultation between DP World and its workforce, the facts in Mount Arthur Coal are indistinguishable from those presented here. As such, the Commission should reach the same result. That is, DP World’s vaccine mandate is unreasonable and did not provide the Company with a valid reason to dismiss any employee who failed to comply with it.

[304] The MUA also submitted that the Respondents’ submissions to the effect that its case proceeded almost entirely by reference to the Mt Arthur Coal and that reliance on other matters is “faintly pressed” should be rejected, and the represented Applicants have not abandoned any aspect of their earlier submissions as was made clear in the post-hearing submissions but had rather chosen not to replicate those earlier submissions. For these reasons and those in previous submissions, the represented Applicants respectfully request that the Commission hold that DP World’s vaccine mandate did not provide the Company with a valid reason to dismiss them.

[305] Notwithstanding this submission, in oral closing submissions, the MUA contended that the Full Bench Decision in Mt Arthur Coal is dispositive of whether there was a valid reason for the dismissal of the Applicants and the contention that if I follow the decision in Mt Arthur Coal, as I am required to do, “DP World loses” and that the only way the Company can prevail is if I refuse to follow that Decision. The MUA also emphasised that a direction is required to be both lawful and reasonable before employees can be required to comply with it, and that the direction to the Applicants to comply with the Mandate was not reasonable because of failures on the part of the Respondents to comply with: consultation requirements in relevant enterprise agreements; the provisions of the Privacy Act 1988 (Cth); and the rights of the Applicants to bodily integrity. These matters were said to buttress the MUA’s submission that the direction was unreasonable based on the failure of the Respondents to comply with consultative requirements in the WHS Acts.

Self-represented Applicants

[306] As previously noted, the submissions of the self-represented Applicants were intertwined with statements of evidence which I have earlier summarised. In addition to consultation issues, the self-represented Applicants made various contentions which can broadly be categorised as medical, legal and operational concerns about the Mandate and COVID – 19 vaccinations generally. In relation to medical issues, the contentions included that gene therapy/transfection agents are not vaccines; long term health effects attributable to these products cannot be known for several years; vaccine companies’ trial study data and surveillance data from overseas reveals numerous adverse health events linked to the vaccines; the Respondents did not provide material safety data sheets or safe work method statements for “vaccine” products. Various assertions were also made about the properties of the COVID – 19 injections including their capacity to marry with human DNA; adverse effects suffered by many people after taking the injections; lack of trials and clinical testing; the fact that the approval of the injections is “provisional”; COVID – 19 has not proven to be a significant threat to human health and safety on a nationally significant scale; and lack of clinical trials in humans to establish whether there are benefits that over-ride risks.

[307] It was also contended that vaccines have been rushed through based on an emergency and have not gone through proper safeguard trials. Copies were tendered by some Applicants of a Decision in relation to a Freedom of Information Request made to the Therapeutic Goods Administration (TGA) for documents relating to various matters including micro-RNA sequences; OnComirs; Stop-codon read-through; the assessment of the final composition of the protein product including molecular weight and amino acid sequence following injection into human beings; evidence of assessment of the final protein product and TGA’s assessment of the risk of the use of the AES-MRRNR1 3 untranslated region of the Comirnaty MRNA product in human subjects. The Decision stated that the request could not be processed because the documents requested do not exist.

[308] Legal arguments advanced included that: there is no authority to override the Australian Constitution which prohibits medical conscription at s. 51(xxiiiA); there was no State Government requirement within Queensland to justify the imposition of a forced medical procedure on the Respondents’ employees in order for them to keep their jobs; if there was such a requirement s. 109 of the Australian Constitution provides that when a law of the Commonwealth is inconsistent with the law of a State then the former shall prevail; the immunisation Handbook provides that for consent to be legally valid it must be given voluntarily; and the High Court of New Zealand had found that vaccine mandates were unlawful. Reference was also made to: the Nuremburg Code in relation to voluntary consent; the Siracusa Principles guiding restrictions on government responses that restrict human rights for reasons public health and national emergency; and provisions of the Commonwealth Criminal Code relating to interfering with political liberty. Further, it was asserted that the requirement to advise the Respondents of vaccination status breached the provisions of the Privacy Act.

[309] In relation to operational matters, it was asserted that these products do not stop a vaccinated person from contracting and spreading COVID; the Respondents have no vaccination requirements for truck drivers and contractors who regularly enter the terminal; and alternatives such as rapid antigen testing or anti-viral medications were not considered. Miscellaneous matters included that: consideration was not given to the ramifications of COVID – 19 vaccinations on life and health insurance premiums and coverage and alleged criminal conduct on the part of companies manufacturing vaccines.

[310] In addition to raising the issue of lack of consultation and similar medical and legal contentions to those raised by other self-represented Applicants, Mr Pintley contended that his dismissal was not for a valid reason on the basis that his employment was terminated while he was absent from the workplace on personal leave and later workers’ compensation leave, and that his vaccination status posed no risk to the Respondents.

Respondents

[311] DP World filed submissions on 31 January, 14 February and 6 May 2022. In summary, DP World contends that it properly adopted a requirement that all employees in stevedoring operations (among others) be fully vaccinated against COVID-19 by particular dates. Each of the Applicants was dismissed following the adoption of the Vaccine Mandate because they:

(a) either (i) indicated to their employer that they were not and would not be vaccinated against COVID-19; or (ii) would not advise whether they had been vaccinated; and

(b) did not have a proper medical exemption.

[312] The Mandate has two critical purposes. The first is of course to protect worker safety. The second, which is more specific to DP World’s operations, is to protect operational continuity of DP World’s stevedoring terminals. These terminals are a critical link in the Australian import/export supply chain, and their reduced or interrupted operation disrupts vessel transits and planned container exchanges. That is to be avoided. There is a clear public interest in these terminals continuing to operate without interruption, with sufficient labour to meet customer needs at all times.

[313] The Mandate was subject to genuine medical exemptions, in the form of a doctor-certified medical contraindication to vaccination. While several Applicants raised alleged medical issues, none of them established a medical exemption to the required standard. The Mandate did not allow for religious exemptions. That is unsurprising in circumstances where no major religion enjoins COVID-19 vaccinations, and Churches which have historically had moral objections to vaccines developed with the aid of aborted foetal tissue or stem cell research have encouraged their congregants to be vaccinated 140. Only one Applicant sought a religious exemption, where there was no cogent basis to prevent him being vaccinated or for an exemption to be granted.

[314] In relation to announcement, adoption and consultation, the Respondents submit that the Mandate was initially raised in a communication from the CEO of the respondents’ parent Company on 16 September 2021. It was subject to a process of consultation and a risk assessment. That process concluded by 7 October 2021. DP World held meetings with HSRs and the MUA, the union of which most of the Applicants are members. It provided information about the proposed Mandate, answered questions that were put to it in correspondence, and modified its approach to the times by which employees were required to be vaccinated in light of issues such as vaccine availability that became apparent during the process, as established by the evidence of Mr Hulme. 141

[315] The Respondents submit that while the MUA advanced objections to the Mandate on behalf of its members, these efforts were largely desultory. The MUA advanced a dispute regarding the validity of the Mandate only in Sydney, where that dispute was withdrawn and no legal action was taken to prevent the dismissal of employees. 142 Eleven employees in Brisbane commenced their own Federal Court action seeking not to be dismissed, and to continue to be paid if DP World excluded them form the workforce.143 That action failed144, they discontinued the application, and indeed they consented to DP World being released from an undertaking that it would not terminate their employment pending trial.145

[316] The Respondents submit that for the purposes of section 387(a), a “valid reason” is one which is “sound, defensible or well-founded”, as opposed to one which is “capricious, fanciful, spiteful or prejudiced”.  146 The question is not whether the employer had a legal right to dismiss the employee147, or whether the Commission would have made the same decision in the employer’s place.148 Reference was also made to what the plurality said in B v Australian Postal Corporation:

“A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.” 149

[317] The Respondents also submit that “lawful and reasonable” is a compound expression. On one view, what is “reasonable” simply informs what is ultimately “lawful”. 150 A direction that employees be vaccinated against COVID-19 is certainly literally lawful, in the sense that it involves no illegality. Whether it is “lawful and reasonable” – or perhaps, whether it is reasonable and thus lawful – turns on the matters set out in Darling Island Stevedoring including the nature of the employment.151 Further, an enquiry into whether a direction is lawful and reasonable does not involve an abstract or unconfined assessment as to the justice or merit of the direction or require the employer to establish that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties.152

[318] In the present case, the circumstances, practices, and surrounding matters are said to be as follows. In closing submissions the Respondents set out the background to the imposition of the Mandate stating that as a matter of notorious fact, since March 2020, Australia has faced a pandemic of viral illness on a scale not seen since the 1918 Spanish Flu outbreak. Every participant in this matter has been affected by the unprecedented public health response to the pandemic, up to and including “lockdowns” whereby whole cities have been subject to “stay at home orders” requiring that residents not leave their homes except briefly for a limited number of reasons. They have also been subject to a wide range of lesser, but still unprecedented and very significant, public health restrictions that have impacted on everyday life, including mask mandates, and wide-ranging limitations on individual movement.

[319] In the second half of 2021, Sydney experienced an outbreak of COVID-19 caused by the Delta variant of the SARS-CoV-2 virus. The Delta variant was generally accepted to be more transmissible than the original (“Alpha”) form of the virus and appears to have had more severe health impacts. Resultantly, many residents of Sydney were “locked down” for over 100 days. For a period, residents of local government areas (LGAs) where COVID-19 transmission was highest - “areas of concern” - were not permitted to leave the LGA in which they resided to attend work unless they were vaccinated. These measures eased progressively, over a significant period, tied to the attainment of targets for given percentages of the population to have been vaccinated against COVID-19. The experience in Queensland was different, owing (for better or worse) to strict controls on free movement between Queensland and the more significantly COVID-affected States of NSW and Victoria. These restrictions largely ended in mid-December 2021. Predictably – and indeed as DP World Brisbane did predict 153 – the prevalence of COVID-19 in Queensland increased exponentially once the border controls were lifted.

[320] Throughout the restrictions described above, DP World employees remained entitled by law to attend for work when many other persons were not. It was critical and in the public interest that they did so. Australia is an island, and for the vast majority of its trade, depends on maritime freight, which is overwhelmingly containerised. Container shipping meets a bottleneck at port, with a limited number of terminals and skilled employees who work in stevedoring operations. DP World readily embraces what the Union said about this at the outset of the pandemic:

“With approximately 98 per cent of Australian imports arriving by sea, including essential medical supplies, food, fuel, and other household items, preventing the spread of this disease is vital to ensuring supply chains remain operational and freight continues to flow safely.” 154

[321] This aspect of the supply chain is concentrated and therefore fragile. Australia has only five container ports, between which there are a total of 12 container stevedoring terminals. DP World operates ⅓ of those 12 terminals. Its operations account for approximately 35-40% of Australia’s container stevedoring market in the East Coast ports, 155 holding approximately 42% market share nationally.156 Each port where it operates is the only container port in that State,157 and in each instance it holds significant market share - operating, for example, 44.4% of container berths in Queensland.158

[322] The Respondents submitted that the economic and social costs of stevedores not operating during the pandemic could have been devastating. Even with ports operating as best they could, Australians experienced bare shelves in supermarkets, dwindling supplies of everyday goods and significant wait times for electronics, vehicles and furniture. Circumstances could have been far worse. This was a case where, whatever criticism might be made of DP World in introducing the Mandate, its commercial interests were entirely at one with the public interest and the protection of its employees.

[323] Other relevant circumstances were set out in the Respondent’s submissions on valid reason were as follows. First, the nature of the workplaces. As the evidence of Mr Eadie and Mr Hanley establishes, the two terminals in question are stevedoring facilities where vessels call in the course of voyages between multiple ports. Stevedoring employees board ships which also berth at foreign ports (and indeed multiple Australian ports) and have contact with ship’s crew in a variety of settings. Brisbane in particular is a common first port of call. The potential for COVID-19 to spread through interaction with ship’s crew has led to:

(a) specific public health orders in NSW, currently the Public Health (COVID-19 Maritime Quarantine) Order (No 4) 2021;

(b) a requirement in Western Australia that “exposed port workers” be vaccinated, which has now been replaced with a requirement for port workers across the board; and

(c) a requirement in Victoria that port workers be vaccinated in order to attend for work. 159

[324] Employees cannot avoid being in close contact with one another at times, notwithstanding the other extensive controls that DP World has put in place to manage the risk of COVID-19 transmission. 160 Nor can it sustainably quarantine any COVID-19 outbreak to a single roster panel, given the irregular nature of work by many employees and the need to source overtime labour.161 In short, the employees have regular and unavoidable contact with a significant number of their co-workers. The risk of transmission is high.

[325] Second, as detailed in the Respondent’s closing submissions, the critical place of container stevedoring in the Australian supply chain and the concentrated nature of stevedoring operations. The Respondent also submitted that there is a significant public interest in protecting terminal operations from disruption, particularly in circumstances where, as the Commission may take notice, the pandemic has placed enormous strain on supply chains. 162 Simply put, without working ports Australian businesses and consumers cannot get the things that they need, and businesses cannot export their products at a time when many of them are under stress. DP World holds around 42% of national market share.163 It is a key player in a highly-concentrated industry, and its need to operate goes well beyond the private interests of its shareholders.

[326] Third, the nature of COVID-19 and the public health responses to cases. The disease is potentially very serious, severe cases being much more likely in unvaccinated persons. Even in asymptomatic or mild cases, patients are required to isolate and cannot attend work for a minimum of a week, previously two weeks.

[327] Fourth, the age profile of DP World stevedores, who are on average older than the workforce generally and may therefore be more at risk of a serious case of COVID-19. 164

[328] Fifth, the knowledge at the relevant times that State and international borders would re-open, and inevitably Australia would see an increase in COVID-19 numbers. That has indeed occurred, aided by the emergence of the apparently more transmissible Omicron variant, with Queensland going from a total of 2,176 COVID-19 cases when borders reopened on 13 December 2021, to over 200,000 just over a month later. 165

[329] Sixth, the difference at relevant times in how State governments treated vaccinated versus unvaccinated persons who were contacts with COVID-19 cases. DP World’s perception of this was informed by direct experience of managing positive cases at the Sydney Terminal in September 2021, when the NSW government’s contact tracing matrix more readily classified unvaccinated persons as close contacts, and hence subject to lengthy self-isolation requirements that took them out of the workforce for a period. 166

[330] Seventh, the need to extend a degree of latitude to employers, who bear:

(a) the “primary duty of care” under section 19 of the WHS Acts; and

(b) liability to pay compensation on a no-fault basis, albeit in circumstances where they must be insured, to employees who contract COVID-19 at work.

[331] Resultantly, employees’ vaccination status is “a subject of legitimate interest” to DP World. 167 Eighth, that a specialist safety regulator which was aware of the Mandate and the process by which it was introduced took no issue with it. This is a matter that was also relevant in Darling Island Stevedoring where the Court had regard to the fact that a Board of Reference had decided that a direction to perform certain work did not impose undue strain on employees, was a circumstance that was proper to be considered on the question of whether a direction of the employer was reasonable.168

[332] These matters all support the contention that the Mandate was lawful and reasonable. Given their combined weight, there is little that could lead to a contrary conclusion. Each of the Applicants failed to comply with the Mandate. Either they did not obtain vaccinations, or they gave DP World no basis on which it could be satisfied that they had. Failure to comply with the Mandate can only be conscious and deliberate given the extensive communication between DP World and its employees. As such, in relation to each Applicant, there was a valid reason or dismissal at the relevant time. DP World submits that the Commission ought make that finding and proceed to consider any contentions based on s 387(b) - (h) of the FW Act.

[333] In reply submissions, the Respondents acknowledged that many (if not all) of the Applicants have particular beliefs, suspicions or concerns about the safety and efficacy of COVID – 19 vaccinations, but contended that based on publicly available material about the safety and efficacy of vaccinations, DP World was entitled to proceed based on the same premises as every Australian jurisdiction’s approach to the pandemic since vaccines became available: that COVID-19 vaccines available in Australia reduce the risks that:

(a) a vaccinated person will be infected with COVID-19;

(b) an infected vaccinated person will transmit the infection to others; and

(c) if a vaccinated person is infected, they will become seriously ill or die.

[334] It is further entitled to proceed on the basis that COVID-19 vaccinations are generally safe, that most side-effects are minor, and that while serious adverse effects can occur in a minority of cases, they are very rare and generally treatable. None of the Applicants have taken steps, either leading up to the termination process or in this proceeding, to prove that their beliefs about COVID-19 vaccines are correct, and thus that DP World’s Mandate was unreasonable by that reason. As Dr Carl Sagan famously said, encapsulating familiar legal principles, 169 “extraordinary claims require extraordinary evidence”.170 DP World was not required to give any particular credence to beliefs or concerns that were without foundation. Such propositions based on unsourced allegations of conspiracy are properly dismissed out of hand. DP World respectfully submits that the Commission ought to do the same.

[335] In relation to the allegations by the represented Applicants (and Mr MacDonald albeit to a lesser extent) that DP World did not consult with employees as required by the WHS Acts, the Respondents submit that from this, it is said by the MUA that the requirement to comply with the Mandate was unreasonable and hence failure to do is not a valid reason for dismissal. According to the Respondents, it is plain that heavy reliance is placed here upon the Full Bench decision in Mt Arthur Coal. The Respondents submit that there are two critical preliminary points to be made in this respect.

[336] First, the case for the employer in Mt Arthur Coal was based solely around the safety rationale for its Site Access Requirement (SAR) and the necessity, in the employer’s view, of implementing the SAR for the purpose of compliance with the applicable WHS Act. As the Full Bench said:

“We accept that the object and purpose of the Site Access Requirement is to protect the health and safety of work of Mt Arthur’s employees and other people at the Mine…” 171

[337] While DP World relies on its Mandate in discharging its primary duty under the WHS Acts, that is not, however, the only reason for it. The immediate trigger for the implementation of the Mandate was an incident that highlighted issues of operational continuity. There is nothing problematic about that. DP World supplies an essential service, and it is critical that it continue to operate during a global pandemic. Labour availability is key to that requirement, and unvaccinated employees were at greater risk of having their availability curtailed.

[338] The Respondents submit that the case here is thus distinct from Mt Arthur Coal. Where one views the giving of a vaccination direction solely through a WHS prism, and indeed the employer defends the direction as required by the WHS Act, it is readily understood why an absence of consultation required under the WHS Act may pull materially toward a conclusion that the direction was reasonable. DP World’s Mandate, however, had a dual focus.

[339] Second, the MUA appears to submit, in reliance on Mt Arthur Coal, that if an employer does not consult as required by the WHS Act in relation to implementing a direction which gives effect to a safety control, the direction is ipso facto unreasonable. That is not what Mt Arthur Coal says. Indeed, the Full Bench expressly repudiated that line of thinking, stating:

“Accordingly, it seems to us that a failure to consult in accordance with the WHS Act does not have the effect of invalidating a direction issued pursuant to an implied contractual power.” 172

[340] Deficiency in the consultation process simply told against a conclusion that the direction was reasonable. 173 Whether a direction is ultimately reasonable depends on all the circumstances in a case, of which any lack of consultation may be one. The weight to be given to any such failure will likewise vary from case to case. Going then to the substance of the criticism, the union submissions begin by positing that because the Mandate was announced the day that DP World also announced it was commencing consultation, there is an acknowledge failure “to consult with employees and HSRs prior to making a firm decision to implement the vaccine mandate”. That is not however the end of the matter. In this respect:

a) Any bare proposition that can be no consultation where a decision has been announced is self-evidently wrong. Indeed, the many industrial cases on which the Full Bench (and the union here) relied are based on “TCR case clauses” 174 which require consultation after the making of a “definite decision”. The question is not a binary one of whether there was or was not consultation. Implicit in the union’s submission is that there was a duty prior to making any decision, even on a preliminary or conditional basis.

b) The notion that there was no meaningful consultation after the announcement is denied. Messrs Hulme, Hanley and Eadie have given evidence about the consultation that occurred at a national, terminal and individual level. Safe Work NSW did not take issue with the consultation process. The approach to the Mandate was tweaked in some respects as a result, and DP World had an open mind regarding changes to its approach. The fact that the MUA and employees did not persuade DP World to change its approach does not prove anything to the contrary. The witnesses employed by DP World depose to the reasons that other COVID – 19 controls were not considered adequate. Otherwise, where objections to the Mandate were based on opposition to vaccination per se, those were not reasonable objections.

[341] The Respondents submit that DP World consulted with its employees to the extent reasonably practicable, as required by section 47(1) of the WHS Acts. What is reasonably practicable depends on all the circumstances, and is affected by a range of factors including, notably, the need to move quickly to ensure that the events following 15 September 2021 were not repeated if possible and future disruption was minimised. The consultation engaged with consultative mechanisms established under the Enterprise Agreements, consistent with section 47(2). The mere fact that the Applicants and their representatives did not like the outcome of consultation does not of itself make the consultation process “unfair” or “incomplete”.

[342] Further, the dual purpose of DP World’s Mandate as both a safety control and a means to ensure operational continuity is important. Indeed, the events of 15 September 2021 were the immediate trigger for the Mandate. What, then, if DP World did not believe there was any safety reason to implement a Mandate, but nonetheless decided to impose one to maximise labour availability and operational continuity, where this might be threatened by a COVID – 19 outbreak? DP World submits that direction would be reasonable, given the critical importance of its operations to the NSW and Queensland publics and economies, and the States’ then practice of discriminating between the vaccinated and unvaccinated in determining who was a “close contact” and would need to isolate.

[343] Other criticisms of DP World include that it did not sufficiently educate employees about vaccination or vaccine myths, and that it did not debunk these myths. The Respondents submit that this is misconceived, for the following reasons:

a) Nothing in its consultation obligations requires DP World to “[provide] employees with [a] scientific basis” for the “bare statement” that vaccines are “a safe and effective form of protection… to reduce transmission and associated serious health impacts”.

b) One might reasonably ask how DP World would even go about doing what the MUA demands. DP World does not employ doctors or scientists. It is not required to engage its own experts at great cost to replicate information already readily available from employees’ own doctors, the Therapeutic Goods Administration (TGA), the Australian Technical Advisory Group on Immunisation (ATAGI), and every Australian and State government health agency, among many others. If employees do not wish to take any steps to access this information, or do not believe it, why would they listen to DP World?

c) As to vaccine myths, to put it bluntly, DP World is not responsible for debunking errant nonsense. The union cannot credibly say that consultation is deficient unless DP World goes out of its way to proactively combat ridiculous falsehoods. It is to BHP’s credit that it did so at Mt Arthur, but it was not necessary (and did not save its SAR).

d) Finally, the notion that “HSRs almost certainly would have made an education campaign based on science a fundamental element of any vaccine mandate” is unsupported and baseless. Two witnesses who have given evidence are HSRs, neither of them says they would have done this. It would be quite surprising from Mr Carty, who did not make any comment on DP World’s draft risk assessment when it was presented to him 175, and more so from Mr Lewis, given his own views on vaccination.176

[344] The Respondents also contend that the submission that DP World failed to consult in accordance with the Enterprise Agreements takes the Applicants no further than the submissions on the WHS Acts. In relation to this submission, the Union relies on Part A, clause 21 of the Enterprise Agreements. Substantively, that provision effectively re-states consultation obligations which are familiar from the WHS Act. The submission that a reference to “health and safety specialists” in clause 21.4.1 means that DP World’s obligations here are more extensive than those under the WHS Act is without substance. Clause 21.4.1 is a statement of aspiration and principle; it does not state that DP World will in all cases (or indeed at all) engage specialists; it states the obvious proposition that safety outcomes can be improved by drawing on expertise. Clause 21.4.1 introduces and informs the actual obligations imposed on DP World by the clause, which are as set out in clause 21.4.2 and qualified by clause 21.4.3. Plainly not every round of consultation on safety matters need involve health and safety specialists. It would simply be unnecessary in a great many cases.

[345] DP World did everything that was required by clause 21.4. It gave employees and their representatives information about what was proposed, gave them opportunities to have input on the proposal, and listened to and dealt with what they had to say. That it was not convinced to abandon the Mandate is unsurprising. For completeness, the Respondents submit that DP World has also met any consultation obligation under the more general Part A clause 27, which is a “TCR case” clause applicable only once DP World makes a definite decision to introduce changes in “production, program, organisation, structure or technology” that are “likely to have significant effects on employees” (clause 27.2.1). Further, should any Applicant agitate an argument not foreshadowed in its submissions that this obligation was applicable, DP World reserves its rights as to whether its Mandate was a change of the relevant kind or which was likely to have the requisite effect.

[346] In relation to the submission by the represented Applicants that the Mandate is of no effect because it is inconsistent with the intent of the Enterprise Agreements, particularly Part A clause 8.12, the Respondents repeated the response of DP World Sydney to the dispute where the MUA first tested out this argument, in matter C2021/6927, before discontinuing the matter. It is submitted that there are eight sub-clauses within Part A, clause 3.0 of the Enterprise Agreements, which is headed “Intent of Agreement”. Various of these sub-clauses establish objective targets, set out steps that will be taken to achieve agreed goals; commit DP World to observing certain overarching criteria in respect of employment; and make aspirational and value statements not tied to the achievement of quantifiable goals. Clause 3.2 is however in the category of aspirational statements, as is accepted by the represented Applicants. The Respondents submit that several matters are of some importance in dealing with this clause and its interplay with clause 8.12:

a) Clause 3.2 deals with a wide range of matters, some of which will inevitably be in tension with one another from time to time and the approach contended for by the MUA would give the non-employer parties a right of veto that the Commission may safely assume was not intended.

b) Even if a single aspect of clause 3.2 could hypothetically be isolated as the only one relevant to a given policy, the goals stated are aspirational and broad and subject to debate – for example whether a particular measure will help achieve a safe workplace, job security, modern and flexible forms of work organisation, optimum use of resources, and so on.

[347] According to the Respondents, the MUA’s submissions on the intent of the Enterprise Agreements are rather long on rhetoric and short on interpretation grounded in recognised interpretive principles and rest on two essential propositions:

a) that the purpose of clause 8.12 is to stop the Company from “implementing policies… without giving employees and the MUA an opportunity, not only consult, but bargain on the policy’s terms” (the Purpose Proposition); and

b) that because clause 3.2 and 3.3 of the agreement reflect the importance of communication and constructive workplace relations, “the overarching intent of the EA is consultation between the Company, its employees and the MUA” (the Intent Proposition).

[348] The Respondents submit that the Purpose Proposition is totally baseless. It is not made out on the face of clause 8.12, or anywhere else in the Enterprise Agreements. All that clause 8.12 itself establishes is that policies will not operate if they are inconsistent with the intent of the agreement. The MUA then seeks to rely on Mr Dunn’s evidence as to the purpose of the clause. That evidence is plainly inadmissible on the well-known principles summarised by the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd. 177 It does not illuminate any ambiguity in the Enterprise Agreements, of which there is relevantly none. Mr Dunn further only sets out his subjective view of what a predecessor to clause 8.12, in an unnamed agreement, was intended to do 19 years ago, and not anything going to the objective common intention of the parties in each negotiation since 2003. It is, in short, an attempt to re-write the agreement by reference to extraneous, subjective evidence.

[349] Further, the Respondent’s submit that the Intent Proposition is, if possible, weaker still. The Enterprise Agreements contain a provision stating, at length, what their intent is. That provision does not say that the intent of the documents is “consultation”. The fact that the union calls in aid the appearance of the word “consultation” 26 times in one of the Enterprise Agreements – it is unclear which – shows the dearth of support for the proposition. The Respondent submit that the represented Applicants’ submissions in this regard ought be rejected out of hand. The Mandate is in no way inconsistent with the intent of the Enterprise Agreements. While doubtless the MUA and employees would like to have a clause in their agreement that invalidates policies they do not like, or which they have not signed off on, that is not what clause 8.12 does. Notwithstanding all the above submissions, the MUA’s complaint about the policy and the intent of the Enterprise Agreements is based on the procedure used to implement the Mandate rather than the content of the Mandate itself.

[350] Finally, the submission that clause 8.12 ensures policy changes must be bargained for or agreed by the union/employees is said by the Respondents to be audacious to a degree one rarely sees. It is inconsistent with the preceding sentences of clause 8.12, which expressly recognise DP World’s right to change its policies from time to time, without bargaining for this or obtaining the MUA’s approval. It is plainly inconsistent with the Full Bench’s conclusion in DP World Brisbane Pty Ltd v Maritime Union of Australia 178 that DP World was entitled to implement an Alcohol and Other Drugs Policy that the union opposed, and in which Mr Dunn’s theory of clause 8.12 does not feature at all. Had the union’s submissions on this issue been advanced in isolation in matter C2021/6927, DP World submits that the Commission would have real questions about the costs of that proceeding.

[351] In relation to the submission by the represented Applicants and some of the unrepresented Applicants, that the Mandate is unreasonable in part because of its interference with employees’ bodily integrity, the Respondents point to the finding of the Full Bench in Mt Arthur Coal respect to the BHP SAR, a policy such as the Mandate does not violate the right to bodily integrity as specifically recognised and protected by the courts. 179 The Respondents did not have any method to force employees to be vaccinated; as the Full Bench put it in Mt Arthur Coal, the direction is rather a form of “economic and social pressure”.180 It may be accepted that the Mandate created a substantial degree of pressure for the Applicants to obtain a vaccination they evidently did not wish to have.

[352] As the Full Bench said in Mt Arthur Coal, the fact that the SAR (and the Mandate) applies such pressure to employees to (nonetheless voluntarily) surrender aspects of their right to bodily integrity is one matter going to the question of reasonableness. It is not determinative. In considering its overall impact, the Commission must consider all other relevant circumstances. Further, DP World submits that it would have regard to the following:

a) First, that the degree of intrusion is small compared to seminal “bodily integrity” cases like Marion’s Case 181 (quoted in Mt Arthur Coal), which concerned involuntary sterilisation; or

b) Second, a requirement to be vaccinated is of a species that is familiar and socially acceptable in Australia general. The Commission may take notice that the Commonwealth has, for many years, maintained a “No Jab, No Pay” policy with respect to certain Family Tax Benefit payments. Requiring vaccination against COVID-19 to attend the workplace has moreover been a feature of public health regimes in response to the COVID-19 pandemic in Victoria and Western Australia, as well as “areas of concern” in Greater Sydney for significant periods in 2021. A vast number of public health measures more broadly discriminate between vaccinated and unvaccinated persons.

[353] Neither of these matters mean that the Mandate ipso facto reasonable. They are however to be taken into account in considering the rhetorically forceful, but on examination highly nuanced, notion of “bodily integrity”.

[354] The Respondents made the following submission relation to alleged breaches of the Privacy Act asserted in the submissions of the represented Applicants, and Mr Nemeth (whose submissions Mr Taylor adopts), contending that DP World has breached the Australian Privacy Principles (APPs), and thus the Privacy Act 1988 (Cth), by requiring that employees provide evidence of their vaccination status.

[355] APP 3.3 deals with the collection of “sensitive information”. It is not controversial that information about whether a person is vaccinated against COVID-19 is “sensitive information” as defined in section 6 of the Privacy Act, because it is “health information”. APP 3.3 thus provides that:

“An APP entity must not collect sensitive information about an individual unless:

(a) the individual consents to the collection of the information and:

…

(ii) if the entity is an organisation – the information is reasonably necessary for one or more of the entity’s functions or activities; or

(b) subclause 3.4 applies in relation to the information.”

[356] The Applicants’ attack focuses on the need for consent under APP 3.3(a). In reliance on non-binding guidelines issued by the Office of the Australian Information Commissioner, it is said that consent must be given freely and voluntarily. It is said to follow that the voluntariness of consent is vitiated by the kind of economic pressure that a requirement to be vaccinated imposes on a person who may lose their employment if they do not prove that they are vaccinated.

[357] In a system of principles-based regulation where much depends on what is “reasonable” or “practicable” and every case turns on its facts, this kind of doctrinaire reasoning is untenable. It is moreover only possible on an acontextual reading of the Guidelines, ignoring both that:

a) APP 5 specifically requires the provision of information to persons from whom information is collected, including, where reasonable, the consequences of not providing it; and

b) the same Guidelines on which the Applicants rely state that:

“An individual must be aware of the implications of providing or withholding consent, for example, whether access to a service will be denied if consent is not given to collection of a specific item of personal information…” 182

[358] The Respondents submit that not every form of pressure is coercive or operates to vitiate employees’ consent. In Kassam v Hazzard, the NSW Supreme Court discussed the meaning of “consent” in the medical and criminal law contexts, in dealing with a submission that persons required to be vaccinated pursuant to public health orders were effective subject to a battery or assault. It concluded that:

“People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault. So far as this case is concerned, a consent to a vaccination is not vitiated and a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site.” 183

[359] The Respondents submit that the same applies to the provision of information about said vaccination. Employees in the present case had the opportunity to choose whether to provide the relevant information. They were aware of the consequences of not doing so (indeed, one may wonder what the Applicants would have said if DP World did not inform them that failing to supply this information would result in their termination). That there was additional pressure to supply the consent to the collection of sensitive information because of the possible consequences of making that choice does not mean it was not consensual.

[360] All of this was recognised by the Commission in Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd. 184 The Applicants attempt to distinguish BHP Coal on the basis that the Commission’s observations at [162] - [164] about the differences between the circumstances before it and those in Lee v Superior Wood Pty Ltd185are not applicable here and that that attempt founders because:

a) DP World does have a comprehensive privacy policy, specifically addressed to employees 186 (although this is not required by APP 1);

b) DP World complied with APP 5, including by advising employees of the information that it was collecting and the uses to which it would be put; and

c) DP World has significant protocols in place to ensure personal data is kept secure, and provided those protocols to the sole employee who asked about them. 187

[361] The union’s submissions on these matters essentially consist of bald statements that DP World’s approach was “heavy-handed” compared to BHP (which, it ought to be noted, still proposed to exclude people from its sites and then dismiss them pursuant to the SAR). They do not engage with what DP World actually did.

[362] The submission that the Mandate was unnecessary is primarily advanced by the represented Applicants. It appears to assert that the Mandate was unnecessary at one or more of the Terminals because the rate of vaccination at the Terminal was already higher than among the general public. According to the Respondents, the submission is ridiculous. It is based on figures that are wrong, but more to the point, it is wildly wrongheaded. In this regard the union submits that:

“[61] When governments do not implement public health orders that restrict unvaccinated residents from attending places where vaccinated persons congregate, a mandatory vaccine policy does not make a worker any less likely to become infected than they would be if three percent of their co-workers remained unvaccinated. After all, when DP World employees shop for groceries in Sidney [sic], statistically, six percent of the patrons will be unvaccinated – double the percentage of unvaccinated workers that would work at the Company’s operations had it not dismissed the Applicants.

[62] Thus, even if three percent of DP World’s workforce remained unvaccinated, work is the safest public place where vaccinated workers could be. Likewise, because of the high vaccination rates at DP World, an unvaccinated worker would be less likely to get infected with COVID-19 while at work than when going about their daily lives.”

[363] No part of this is logical. First, the Mandate recognises that employees may contract the virus causing COVID-19 outside of work. The point is that they may bring it to work. In the first instance, the chance of that occurring is to be minimised so far as is practicable. DP World cannot control what its employees do outside of work generally, but it can ensure that they are vaccinated. If that first line of defence fails, and a worker (presumably unknowingly) brings COVID-19 into a terminal, the Mandate then reduces the likelihood that they will transmit it to other workers. Should transmission nonetheless occur, the third function of the Mandate is to minimise to the extent practicable the risk that the second person will become gravely ill or die.

[364] Second, the Union’s submissions do not engage at all with DP World’s requirements for operational continuity and the impact of unvaccinated persons being more readily classified as close contacts. Indeed, the Union’s entire case ignores this rationale for the Mandate, notwithstanding that it has been prominent in all of DP World’s messaging. The union then also apparently invites the Commission to consider future events in determining whether the Mandate was reasonable. That approach is erroneous. Whether there is a valid reason for dismissal depends on facts in existence at the time of dismissal. 188. In any event, DP World embraces what the Commission said in BHP Coal about the circumstances that have unfolded since early December 2021.189 In the face of these kinds of objections, it is readily apparent why the consultation process did not change DP World’s mind. It was not because DP World’s mind was closed to reasonable arguments.

[365] In his submissions dated 30 January 2022, Mr Nemeth relies on section 51(xxiiiA) of the Australian Constitution. Mr MacDonald likewise refers to this provision in his submissions dated 29 January 2022. The Respondents submit that such arguments are misconceived. Section 51(xxiiiA) is a grant of legislative power to the Commonwealth to legislate on certain topics, with the qualifier that it does not authorise the making of Commonwealth laws for civil conscription. In this case:

a) no issue of Commonwealth legislative power arises;

b) no doctor or dentist is being required to do anything.

c) there is no relevant law on which DP World relies which is inconsistent with the Constitution or any law made pursuant to section 51(xxiiiA).

[366] In short, the argument is “completely untenable” for the reasons given by the NSW Supreme Court in Kassam v Hazzard, and by the Court of Appeal subsequently. 190 Regarding Mr MacDonald’s submissions, one is not free to disregard Kassam v Hazzard merely because the High Court might hypothetically say something different. The Court of Appeal’s judgment is binding and conclusive unless and until that happens. There will in any event be no such overturning, because it is manifestly correct. Further and in any event:

a) As the discussion of the argument at first instance in Kassam v Hazzard makes clear, the Supreme Court’s conclusions were based on High Court authority. The High Court has held that civil conscription is “some form of compulsion or coercion, in a legal or practical sense, to carry out work or provide services”. 191

b) Section 51 of the Australian Constitution grants legislative power; it has no relevance whatsoever to a private actor such as DP World. The case is weaker than the “completely untenable” argument in Kassam v Hazzard, which relied on an alleged joint scheme between NSW and the Commonwealth.

[367] In response to other matters raised by Mr Nemeth, DP World does not need an order under the Biosecurity Act 2015 (Cth) to issue a direction that its employees be vaccinated if they wish to continue to work for it. That Act serves an entirely different purpose and has nothing to do with the right of an employer to give a lawful and reasonable direction to its employees. As the Commission found in Cohen v Davidsons Garage Pty Ltd, the Act is “utterly irrelevant to the situation”. 192 The allegation that a requirement to undergo an invasive medical procedure would constitute an assault or battery is wrong, for the same reasons given by the Supreme Court in Kassam v Hazzard. There is no evidentiary basis for anything that Mr Nemeth says about the effects of the requirement on him.

[368] The bare assertion that the requirement to be vaccinated creates “an unlawful and unreasonable discriminatory burden” is unsupported by law. Vaccination status per se if not protected by State/Territory or Commonwealth anti-discrimination law. Mere assertions about one’s “rights” do not go very far, for the reasons given by Leeming JA when Kassam v Hazzard reached the Court of Appeal. 193

[369] In relation to other submissions made by Mr MacDonald dated 29 January 2021, the Respondents submit that he did not file any evidence and the three links at the end of his document are to a law firm’s summary of the High Court case dealt, to the High Court’s own summary of that case, and to a transcript of the interview referred to in paragraph 70(b). At the outset, it is noted that Mr MacDonald characterises his dismissal as relating to “experimental technologies, gene therapy/transfection agents that should not be called vaccines”. This view of the vaccines available in Australia appears to undergird much of the submissions that follow. This allegation is baseless, unsupported by evidence, and ought not be entertained.

[370] Otherwise, Mr MacDonald’s material may broadly be divided into: factual assertions about his circumstances of which there are no particulars or evidence; unsupported and unparticularised allegations of wrongdoing and conspiracy; irrelevant material; and unsupported speculation. The submission also advances to propositions which might broadly be called legal comments. In relation to submissions about the Criminal Code Act 1995 (Cth), the Respondent submits that:

a) First, that Schedule to the Criminal Code Act 1995 (Cth) does not refer to clinical trials. Mr McDonald appears to be referring to provisions that create offences of engaging in war crimes in the form of conducting medical or scientific experiments.

b) Second, in any event, vaccinated persons are not participants in a clinical trial. Minister Hunt misspoke in the interview to which Mr McDonald refers. The gravamen of what he said, when read fairly and in context, is that given the uptake of COVID-19 vaccination we have vastly more safety information about the vaccines than we would normally have about a vaccine after this length of time. He also distinguished between clinical trials and “real-world data”. 194

[371] Second, Mr MacDonald’s submission in relation to alleged inconsistency between the Mandate and the Fair Work Act is fundamentally misconceived. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail 195 cited by Mr MacDonald, concerned whether the entity in question was a trading corporation, and hence subject to the Fair Work Act 2009 (Cth) rather than Queensland State industrial relations legislation. It has no further application than that. It does not mean that there can be no regulation of employees’ conditions and obligations other than by or under the federal legislation. Every employment relationship is underpinned by a contract, a point reiterated very recently by the High Court.196

[372] The Respondents also submitted that Mr Pintley filed what appears to be a combined witness statement and submission, which was largely concerned with factual matters not relevant to section 387(a) of the Fair Work Act 2009 (Cth). To the extent it deals with issues of consultation and the Privacy Act, the Respondents repeat their submissions on those matters.

[373] Several additional matters are however relevant.

a) First, DP World denies the unparticularised allegations of bullying and harassment.

b) Second, as the email sent by Mr Pintley to Mr Eadie (annexed as JPS [A003]) demonstrates, Mr Pintley had no interest in being vaccinated. In that light, it is unsurprising that his employment was terminated. There was no prospect of him returning to work once he recovered capacity.

c) Third, DP World did not post or authorise the posting of the list which is referred to at JPS [A007] and annexed at JPS [A008]. If it occurred, it ought not have done so, and DP World took steps to ensure it was taken down if it was present on DP World notice boards. 197

d) Fourth, Brad Dunn (whose texts appear at Annexure A012 of Mr Pintley’s submission, is not a DP World manager and is, in fact, an MUA official, and a witness in the proceedings.

[374] In closing submissions filed after the hearing, the Respondents said that the MUA’s case is largely cast as though this matter were a dispute arbitration about whether DP World complied with obligations to consult employees on its Mandate. That is not the case. The present part of the proceedings concerns the broader question of whether there was a “valid reason” for the dismissal of the Applicants, within the meaning of the Fair Work Act 2009 (Cth).

[375] The Respondents accept that the question of consultation is of course relevant to that issue but contend that the Commission would err if it took the approach apparently urged on it by the union: that there was not sufficient consultation because what occurred here was, in its submission, “lesser” than in another case, that ipso facto the Mandate was not lawful and reasonable, and hence that the Applicants must prevail. The Respondents submit that embedded in the Union’s closing submissions are several erroneous propositions including that if the Commission is not satisfied that DP World consulted as required by the WHS Acts, it necessarily follows that the Mandate was not lawful and reasonable. 198

[376] In the circumstances prevailing in September 2021, DP World senior management closely monitored developments relating to COVID-19. A detailed COVID-19 Prevention and Response Plan was developed, 199 and numerous control measures were put in place to reduce the risks of workplace COVID-19 transmission eventuating.200 The MUA was generally supportive of such controls and, indeed, one of its responses to the proposed Mandate was to ask whether previous controls would be reinstated.201 The rapid evolution of different variants of COVID-19 posed a real and imminent risk of exposure to SARS-CoV-2. As the pandemic progressed, the Delta (and now Omicron) variant emerging, the limited notice provided by state governments of their changed public health controls measures and the general ‘novel’ status, of SARS-CoV-2 required DP World to adopt an agile approach to ensure that the COVID-19 Prevention and Response Plan evolved to deal with emergent issues.

[377] DP World’s employees and operations in Sydney began to be directly affected by COVID-19, and the consequences of persons being exposed to it (even if they did not contract the disease) from around early August 2021. COVID–19 cases among a ship’s crew in late July 2021 resulted in 81 stevedores being classed as “casual contacts” who were required to isolate until they received a negative PCR test. This caused an absence of the labour necessary to operate cranes and stevedore vessels as planned. 202 DP World was not the only stevedore affected at around this time. Both Patrick and VICT in Melbourne were significantly affected by COVID-19 outbreaks in September–October 2021.203 Around 15 September 2021, two employees at DP World Sydney tested positive for COVID-19. In applying the mandatory NSW Health contact tracing matrix, 35 employees were considered “close contacts” and had to isolate at home for 14 days, while another 53 were “casual contacts” and had to isolate until they had received a negative PCR test.204

[378] That NSW Health matrix was in evidence before the Commission. 205 The matrix took a person’s vaccination status into account in determining whether they are a “close contact”, “casual contact” or otherwise. The uncontradicted evidence of Mr Hanley was that the approach in Queensland likewise discriminated between persons who were and were not vaccinated.206 The exposure event on around 15 September 2021 at Port Botany was a watershed moment for DP World, and ultimately for this case. It highlighted that controls adopted by DP World to stop the virus spreading among employees never prevented employees who were infected elsewhere from bringing the virus into the workplace and became increasingly inapt for dealing with increases in community transmission. It also highlighted that two employees bringing the virus to work could take 88 of their colleagues out of action for between a few days and two weeks, regardless of whether anyone actually became sick, and experience that was subsequently repeated. As at 30 March 2022, 96 employees in Sydney had been required to isolate as close contacts, and up to 96 employees had been unavailable at a given time.207 That is without considering the number of casual contacts, who might in some cases have been designated as close contacts if they were not vaccinated.

[379] The Respondent contended that this was the catalyst for the adoption of the Mandate. The Mandate was a superior, higher- order control to those others which had been adopted (and employees subsequently suggested). Simultaneously, with the announcement of the Mandate, DP World was produced a draft risk assessment relating to the risks of workplace COVID-19 transmission and incorporating vaccination as a proposed control. This was completed on around 21 September 2021, and provided to HSRs in advance of meetings at both a national and local level to discuss. 208 Despite lengthy attempts to extract concessions from the DP World managers that the Draft Risk Assessment was handed to HSRs only in the local meetings, that is clearly not what happened. It is inconsistent with what DP World said that it would do, no concession to that effect was made,209 and indeed, Matthew Lewis (HSR and Chair of the relevant safety committee in Sydney) deposed to meeting Scott Eadie (General Manager – Operations, DP World Sydney) on 21 September 2021 to “discuss a risk assessment matrix that was being circulated…”210 That being the case, there was no basis for the proposition put to Mr Eadie that his oral evidence to the same effect was not truthful,211 and the Commission should accept that the document was circulated on or about 21 September 2021, in advance of the local meetings.

[380] On 20 September 2021, Mark Hulme, Chief Operating Officer - Terminals, wrote to Adrian Evans (MUA Divisional Assistant National Secretary) to solicit HSRs’ feedback on the risk assessment that he indicated DP World intended to provide the next day (which, again, it did).  212 Consistent with Mr Hulme’s letter of 20 September 2021, a national consultation meeting was arranged to occur by Zoom on 23 September 2021. In attendance were representatives of DP World and union national management, as well as management and a HSR from each terminal.213 Regarding this meeting, it is common ground that union and employee representatives asked questions and DP World committed to revert with answers, and that the union representatives complained about a lack of consultation prior to Mr Adam’s email of 16 September 2021. DP World does not, and the Commission should not, accept that there was a commitment to meet again - there was no concession to this effect.214

[381] The Commission is not assisted by assertions that, for example, “it was clear from the meeting that the Company had already decided to implement their policy…”,  215 or “we were essentially stonewalled…”216 Those are simply Messrs Dunn and Carty’s respective opinions. The Commission has no evidence about the actual statements by DP World personnel on which they are based,217 so as to make its own assessment and determine whether the witnesses’ perceptions were reasonable. The only matter to which the witnesses’ assertions is relevant is their perception of events at the time; as such, the weight to be accorded to them is at best extremely limited, if not (as DP World submits ought be the case) nil.

[382] DP World did answer the union’s questions formally in writing and distributed these in a format accessible to all employees, in what Mr Dunn called a “timely response” in his email of 29 September 2021. 218 Obviously Mr Dunn did not like some of those answers. To that, the following may be said. Some of the original questions219 were nonsensical and/or designed to be unanswerable (e.g. question 22, which shows that the author either does not know what a safety data sheet shows, or is attempting to muddy the waters); asked questions to which all concerned knew the answers and/or knew that the information was readily accessible in the public domain (question 20, to which Mr Dunn’s “follow- up” shows the union knew the answer), or were in the nature of industrial demands (e.g. questions 13-15). The same may be said of Mr Dunn’s follow-up “questions”. The follow-up on question 1, for example, raises an issue that DP World had already dealt with squarely in response to question 3. His addition to questions 21-23 are simply argumentative – the answer to why this balancing of risks can’t be an individual choice is obvious when one considers the matter for even a moment.220 It is also submitted that some of Mr Dunn’s insertions did not ask questions at all, and are simply his commentary. For instance, he calls the answer to question 17a “laughable”, notwithstanding that Ms Kakoschke’s answer is plainly correct as a matter of law in NSW and Queensland221 following the Kassam v Hazzard222 litigation. It is unclear what more DP World might usefully have said in response to this kind of input. Further, many of Mr Dunn’s questions have nothing to do with whether the Mandate was a safe or reasonably practicable control – his additions to question 14 and 17b regarding access to leave, for example.

[383] The local meetings proceeded as follows:

•  DP World Sydney management met with HSRs on 23 September 2021. 223 The draft risk assessment was discussed, and employees proposed additional controls as alternatives to vaccination. Mr Eadie explains cogently in his evidence why those proposals were not practicable.224 Criticism of DP World in relation to these meetings is unreasonable and overstated:

(i) While Mr Lewis (HSR and Chair of the Health, Safety and Environment Committee at DP World Sydney) deposed that HSRs did not “get to go through” alternative controls, 225 in cross-examination the picture was clarified. These controls were discussed; Mr Lewis’s complaint appears to be that the meeting did not involve a discussion of the proposed control from the perspective of how it reduced the “scoring of risk”.226 This seems however to be premised on a surprising misunderstanding of DP World’s duty to which risk assessments are ultimately related. DP World is not to reduce risk to some level that it, HSRs or other persons227 arbitrarily consider acceptable, but rather to “ensure, so far as is reasonably practicable, the health and safety of” workers, including “the provision and maintenance of a work environment without risks to health and safety”.228 Where a control exists, the test is twofold: will it reduce risk so as to help ensure workers’ safety, and is it reasonably practicable to be implemented? If the answer to each question is yes, then that is quite properly the end of the enquiry.

(ii) Brad Dunn (MUA Divisional Assistant Branch Secretary) said that Mr Eadie’s evidence was inaccurate about one proposal, because it was not proposed that all employees take rapid antigen tests (RATs) before each shift. Rather, Mr Dunn says that the proposal was for only unvaccinated employees to take tests. 229 It is readily apparent that this makes no difference to the workability of the control. Following a non-responsive answer in the first instance, Mr Dunn ultimately accepted that rapid antigen testing only unvaccinated employees before each shift would not protect them from infection if COVID-19 were introduced to the terminal.230 Nor, from the perspective of operational continuity, would it ameliorate the effect of their non-vaccination on their close/casual status if COVID-19 were nonetheless introduced to the terminal.

(iii) There is no evidence that any HSRs sought to have any input after the meeting on 23 September 2021, whether before or after the 28 September 2021 deadline set by Mr Hulme in his letter of 20 September 2021.

•  DP World Brisbane management met with HSRs on 24 September 2021. Keiron Carty (HSR and DP World Brisbane employee) attended this meeting, but conspicuously did not give any evidence about it in his initial statement, and no reply statement was filed for him. As such, the uncontradicted evidence of Mr Hanley must be accepted: the HSRs’ contribution to the discussion, as conveyed by Mr Carty himself, was “we have nothing to say at this stage on the risk assessment”. 231 There is no evidence that they ever sought to say anything (or even convey the protests about the process now made to the Commission) at any “stage”, whether before or after the 28 September 2021 deadline set in Mr Hulme’s letter of 20 September 2021.

[384] At a terminal level, managers held discussions with numerous employees. Mr Eadie’s management team in Sydney had interactions with at least 20 employees per day, canvassing issues such as the Mandate and the risks of COVID-19 transmission. 232 Mr Hanley spoke to employees collectively at DP World Brisbane, and had individual counselling sessions (of up to 30 minutes in one case) with employees.233 There is no reason in law or principle that this ought not be considered as part of a consultation process. While a consultation process under the WHS Acts must involve any relevant HSRs, that does not preclude less formal or individual discussions from forming part of the process. Indeed, this type of broad ranging consultation and discussion is precisely what the WHS Acts envisage as part of an approach to managing safety at a workplace level, which is dealt with later in these submissions.

[385] Consultation closed on 7 October 2021. This gave unvaccinated employees in Sydney an additional week, with the knowledge that the Mandate would be coming into force, to obtain a vaccination before the first-dose deadline. Brisbane employees had two weeks longer, as the Mandate was appropriately adapted to the reality on the ground. After the end of the process, on 19 October 2021, two SafeWork NSW inspectors attended the Sydney terminal following a request by Mr Lewis for assistance in resolving a dispute about what SafeWork was told, was non-compliance with DP World’s consultation obligations. 234 At the meeting, the inspectors said that consultation had occurred, and that SafeWork itself had followed a similar process. They requested documentation about the process, which was provided, and did not at any time take any steps to issue Improvement Notices.235

[386] There could be no doubt that employees knew what was required of them by the time the “show cause” and termination processes occurred from late October (in Sydney) and November (in Brisbane) 2021. Nor could there be any doubt that they chose not to comply with the Mandate, there being no evidence of any medical contraindication amongst the Applicants. For their own reasons, employees did not obtain vaccinations to which they had priority access from an early stage, due to the critical role they played and the public interest in ensuring that the work of stevedores continued. 236 The employees appear to have ‘bet the house’ on the Mandate being invalid.

[387] For the purposes of the FW Act s 387(a), a “valid reason” is one which is “sound, defensible or well-founded”, as opposed to one which is “capricious, fanciful, spiteful or prejudiced”. 237 The question is not whether the employer had a legal right to dismiss the employee,238 or whether the Commission would have made the same decision in the employer’s place.239 Failure to comply with a requirement or policy imposed by an employer will “often, if not usually” be a valid reason for dismissal, as a fundamental breach of the central duty implied in employment contracts (if not stated expressly) that employees must comply with the lawful and reasonable directions of their employer.240 It is not controversial that DP World employees have such a contractual duty; further, they are required:

•  under the WHS Acts, to “comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with [the relevant WHS Act]”; 241

•  likewise, to “co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers”; 242 and

•  under the applicable enterprise agreements, to “comply with reasonable instructions cooperate with relevant Company Policies and procedures.” 243

[388] Failure to comply with a reasonable instruction or policy directed to the attainment of a safe workplace is therefore also a breach of both the relevant WHS Act and Enterprise Agreement. The allegation in this case by the Applicants is that DP World’s Mandate was not a lawful and reasonable direction, and so the deliberate and knowing failure by the Applicants to comply with it was not a valid reason for dismissal. 244

[389] Consistent with case law, the Respondents submit that a range of factors are relevant to whether the Mandate was a lawful and reasonable direction. In the first instance, however, it is necessary to deal for the first time with the submissions made by the union in relation to the decision of a Full Bench of the Commission in Mt Arthur Coal. 245 Notoriously, this was an arbitration of a dispute under a very broadly- phrased disputes provision of an enterprise agreement, in which a Full Bench of the Commission concluded that BHP’s Site Attendance Requirement (SAR) was not a lawful and reasonable direction.

[390] It cannot be unfair to say that the MUA’s case, as articulated in the MUA’s closing submissions, proceeds almost entirely by reference to Mt Arthur Coal. Reliance on other matters is faintly pressed, if not abandoned. The authority evidently is the lynchpin of the union’s attack on DP World’s Mandate, with the union inviting the Commission to conclude, essentially, that:

a) BHP’s SAR was not a lawful and reasonable policy, because contrary to the WHS Acts, BHP did not consult prior to making the decision to implement it;

b) DP World consulted even less than BHP; ergo

c) DP World’s Mandate is not lawful and reasonable.

[391] Remaining unstated by the MUA is the assertion necessarily implicit here that BHP’s obligations and DP World’s are the same. It is critical however to deal with proposition (a) above first. It is encapsulated in the union’s submissions as follows:

“In Mount Arthur Mines [sic], the Full Bench unambiguously held that … the WHS Act requires an employer to consult with its employees before deciding to introduce a vaccine mandate, and that its failure to do so renders the direction unlawful and unreasonable.” 246

[392] The underlined statement above is not correct. Mt Arthur Coal does not stand for the proposition that a direction or policy becomes either unlawful or unreasonable simply because the consultation preceding it is insufficient or nil. It is difficult to understand how the Applicants continue to make submissions of this kind when they are directly contrary to Mt Arthur Coal, and this has already been pointed out. 247

[393] In making this statement, the Full Bench was rejecting a submission by the employer that because it was a duty holder under the WHS Act, any direction it gave for the purpose of ensuring, so far as is reasonably practicable, the health and safety of workers was axiomatically lawful and reasonable. 248 The Full Bench went on to hold that: “A failure to consult in accordance with the WHS Act does not have the effect of invalidating a direction issued pursuant to an implied contractual power.”249 The Full Bench also stated that it did not need to express any concluded view on whether a failure to comply with the statutory duties in the WHS Act goes to the lawfulness of a direction,250 and concluded that: “The deficiencies in the consultation process tell against a conclusion that the Site Access Requirement was a reasonable direction.”251 Ultimately it was the “most telling factor” in that regard.252

[394] The Respondent also contended that it is the failure to consult in accordance with the WHS Acts which may constitute an offence,  253 not the subsequent engagement in conduct that may have required consultation. Indeed, consultation may be relevant to a range of matters where no direction may be given at all. The actus reus of the offence is a failure to consult, not the giving of a direction. Part 5 Division 2 of the WHS Acts does not make any given direction unlawful; rather, it penalises duty-holders for failing to take any required prefatory steps. Offences under these Acts carry strict liability,254 and one does not “read in” a penalisation of conduct where this is not provided for in legislation, penal provisions being the paradigm case where a strict approach to construction is required.255

[395] Any inadequacy in consultation is thus to be considered in the overall assessment of whether a direction was “reasonable”, and hence “lawful and reasonable” such that non-compliance might form a “valid reason or dismissal”. The proposition that the consultation was inadequate is however a worthy subject of close attention, because these matters are more nuanced than the union would have the Commission consider.

[396] The union says that the consultation process was inadequate to discharge DP World’s obligations under the WHS Acts. Curiously, it does so without reference to the relevant provisions of that legislation and in particular the requirement in s. 47(1) of the WHS Acts for the person conducting the business or undertaking to consult as far as is reasonably practicable with workers who are, or are likely to be, directly affected by a matter relating to work health and safety. The Respondents submit that the Full Bench in Mt Arthur Coal was alive to the significance of those words. It recognised that the specific content of a consultation obligation is affected by factual matters including “whether the factual circumstances dictate a quick response”, 256 and went on to say that a truncated consultation process may be warranted if there was a surge in COVID-19 cases such that the risk of transmission substantially increased or if a new, more transmissible or virulent, COVID–19 variant became prevalent.257

[397] Considering the obligations set out in ss. 48(1) and (2) of the WHS Acts, the Respondents query what the vice in DP World’s consultation was and contended that the MUA’s submissions do not engage with that question. In this respect:

•  The Company shared information with workers, in the form of the draft risk assessment, detail of the proposed Mandate and answers to questions posed by the MUA and there is no suggestion that information was withheld.

•  DP World gave HSRs a week with the draft risk assessment to express their views, as set out by Mr Hulme in his letter of 20 September 2021, whereby he indicated that the draft would be provided on around the next day (which it was) and asked for comments by 28 September 2021. DP World met with HSRs on 23 September 2021 both nationally and in Sydney, and the next day in Brisbane. HSRs were invited to express their views, raise issues, and contribute to the decision-making process.

•  While the union complains that this was inadequate, it makes no effort to explain why.

•  There was no written material received from the HSRs in advance of 28 September 2021 or since. In Brisbane, the HSRs did not comment on the risk assessment whatsoever raising a question as to how many times DP World should reiterate a call for written material, or meet with HSRs who have “no comment at this stage” after having a document for several days and non-participation of HSRs cannot be laid at DP World’s feet.

•  Where the views of workers were actually conveyed to it (i.e. in Sydney), DP World considered the matters that they raised, and had cogent reasons not to accept the alternative controls proposed by HSRs, but they did not persuade DP World that a different course was appropriate, and that is not surprising.

•  There is no contention that employees were not advised of the outcome of consultation.

•  The MUA’s complaints should be seen in light of the plain fact that, on the evidence, the only position even tolerable to the MUA was that no employee lose their job as a result of any Mandate. 258 DP World has led evidence dealing with why that position, and the indefinite leave that would have entailed for unvaccinated employees, was not tolerable.259 As in cases where public health orders do not permit an employee to attend for work, expecting to take leave indefinitely in the hope of some change to the legal landscape is not reasonable.260

[398] The Union’s supposed trump card is the proposition that all of this consultation occurred after the announcement in Mr Adam’s email of 16 September 2021. Again, the submissions misconstrue Mt Arthur Coal (and seek to put words in DP World’s mouth 261). While it is correct that the Full Bench held consultation must occur before the making of a definite decision, it did not state that a duty-holder cannot indicate what it intends to do and then consult prior to making a final decision. It simply found on the evidence in that case, including evidence of a witness that he did not have a choice other than to introduce the SAR at the Mine, that as a matter of fact that had not happened.262

[399] In the present case, DP World submits that Mr Hulme gave evidence that the Company was open to reversing course, and that following consultation, it considered what was put to it and a decision was taken to continue with the decision to introduce the Mandate. 263 The union’s submission that this is a “self-serving assertion made by a witness who didn’t make the decision to implement the mandate”264 should not be accepted. Mr Hulme’s evidence is not inherently improbable. While it may have taken something very compelling to change DP World’s intended course, there is nothing to indicate it would have behaved unreasonably if such material was presented and no real attempt was made to undermine this evidence, by either putting questions about particular factors to Mr Hulme to ascertain whether they might have changed his mind, or by seeking orders for the production of documents. The only basis for challenging it is the terms in which Mr Adam’s email was couched. There is no evidence whatsoever for the assertion that Mr Adam alone made the decision to introduce the Mandate and is the sole person who can speak to the thinking concerned.265 It is directly contrary to evidence that the union adduced in cross-examination, where Mr Hulme and Mr Hanley both gave evidence about their involvement in the decision-making process.266

[400] The Respondents contend that the MUA’s submissions in the last regard above are an obvious attempt to twist the facts to fit the Mt Arthur Coal mould and identify Mr Adam with Edgar Basto in the analogy. The attempt flounders when one reads Mt Arthur Coal side-by-side with the evidence in this case. The MUA’s submissions that Mr Adam was the sole decision-maker have one basis and one basis alone: that he sent the email on 16 September 2021. To that, there is an obvious reply: of course he did. He is the CEO of the Company and hence its public face. It is not evidence of how the decision was made. In Mt Arthur Coal, Mr Basto did much more than send an email announcing the BHP SAR. Both BHP’s own submissions and other witnesses’ evidence made it clear that the decision to implement the requirement was his. 267 In this case, conversely, the decision to implement the Mandate was made by consensus of the DP World Management Team.

[401] It is also contended that the proposition was not put to Mr Hulme or Mr Hanley that they did not in fact participate in the decision- making process, or that contrary to their evidence, Mr Adam alone made the decision to introduce the Mandate. There was no contrary material in the statements of Messrs Dunn, Lewis or Carty, or even the union’s submissions, that would have put the witnesses on notice that they were to be contradicted in that way. The rule in Browne v Dunn ought therefore prevent the union from making that submission now. 268 As a corollary, the Commission “should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it”.269

[402] Further, the Respondents submit that there is no unexplained failure on their part to call Mr Adam, by the simple reason that the union has made submissions about his involvement far too late in the piece. A Jones v Dunkel inference only arises if a party is required to “explain or contradict” something. 270 Here, DP World called multiple persons who were in a position to give evidence about the reasoning underlying the announcement of the Mandate and the nature of the consultation process, including the Chief Operating Officer - Terminals responsible for the relevant terminals, and they did so. Insofar as the rules of evidence supply useful guidance,271 there is no such rule that evidence must be corroborated that would require a party to call all potentially relevant witnesses.272

[403] The Respondents also contend that prior to the filing of the closing submissions on behalf of the represented Applicants, there was no indication that the Union would submit Mr Adam was the sole decision-maker or that it would contradict the evidence of others that he was not. DP World was not on notice that such contentions would be raised, inappropriately, at such a late stage. The choice not to call the CEO of DP World Australia is thus readily explicable, and there is no basis to draw the Jones v Dunkel inference for which the union contends. Further and in the alternative, even if one did draw such an inference, it is merely one that given evidence would not have assisted DP World’s case. The inference cannot “fill gaps” in the union’s case.

[404] The other limb of the case that consultation was inadequate, desultory or tokenistic is the nature of the consultation meetings. The MUA’s narrative of this is of DP World national management “cooking up” a risk assessment that was “imposed” on the local terminals, contrary to longstanding practice. For all its outrage, however, the MUA case was rather light on support for the notion that what DP World did was unprecedented or wrong. In this regard, despite being adamant there was an agreement that one Health and Safety Committee member be involved in a risk assessment from start to finish, Mr Lewis could not identify where this was recorded in the Enterprise Agreement. It is also the case that Mr Carty did not identify any basis for his assertion that risk calculation sheets “are supposed to be formulated during consultation with the HSC, HSRs, other employees and the MUA”. 273 He appropriately conceded in cross-examination that he had not provided any document establishing this.274

[405] Further, no basis has been set out whatsoever for a proposition that risk assessments must be done in a particular way or according to a particular procedure. No witness could or purported to point to a provision of the relevant enterprise agreement or WHS Act that did so. The union has not done so in submissions. Nor is this required by any given Code of Practice, which of course stress the importance of consultation but do not descend to the level of whether one can prepare a draft for comment as a first step. As a matter of common sense, there is no reason why not. As Mr Carty conceded, consultation can take different forms, and needs to be tailored to the issues involved. 275 It is also submitted that assertions by employee witnesses that risk assessments had never been done in a given way in their lengthy periods of employment cannot stand in the face of concrete examples to the contrary given by DP World managers, on which their evidence was not contradicted: risk assessments when purchasing a quay crane,276 national reviews of various operations to ensure uniformity across terminals,277 and the partial automation of the DP World Brisbane operation.278

[406] Further, the assertion that risk assessments are necessarily local 279 makes no sense when the nature of a given risk is not inherently terminal-specific. While the question may ultimately have been “one for trial”,280 there is no probative evidence that the nature of the risk to be controlled for in Sydney was substantially different as at Brisbane. The work done at the two terminals is not materially different, save that some work done manually in Sydney is automated in Brisbane.281 Insofar as the objection is that COVID-19 was not prevalent in Brisbane in the way that it was in Sydney, again, DP World prudently took into account what would happen when the Queensland border opened.

[407] There was then the notion put by the union that in order to be ‘valid’ a risk assessment must necessarily take a long time. As Mr Carty however properly accepted, the degree of complexity involved in a risk assessment will depend on the circumstances. 282 The process is less complex where the measure is in the nature of an update rather than dealing with hazards from scratch. Mr Hulme made the obvious point in re-examination that the risk of COVID-19 transmission at work was not a new one and that numerous controls were already in place,283 as noted in the COVID-19 Prevention and Response Plan.284 The Draft Risk Assessment simply added a new and higher order control to the existing suite, namely all workers being vaccinated.

[408] The Respondents also point to the fact that the Code of Practice on “How to Manage Work Health and Safety Risks”, as adopted under both WHS Acts, recognises that many hazards and their associated risks are recognised and known and have established control measures, making a formal risk assessment necessary. 285 While other controls in place at the time focussed primarily on limiting the transmission of COVID-19 within the workplace in the event that it did become present, vaccination reduced the likelihood that both:

•  COVID-19 would enter the terminal in the first place, because vaccinated stevedores were less likely to contract the virus outside of work and bring it there. In this respect the Commission is not assisted by the dubious and unproven complaint that vaccines do not prevent transmission of the SARS-CoV-2 Omicron variant 286 - the question is whether there was a valid reason for dismissal at the time they occurred, in November 2021; and

employees who were exposed to the virus at work (notwithstanding other controls) would either contract COVID-19, or if they did, become severely ill.

[409] Further, it cannot simply be accepted that (to paraphrase the MUA’s closing submissions) DP World consulted less than BHP and BHP still lost, so the Mandate cannot have been reasonable. That submission overlooks the relevance of the totality of the circumstances in each case not only to the question of reasonableness and valid reason generally, but also to the content of an employer’s consultation obligations. 287 This is because the WHS Acts s 47(1), the provision which actually creates an obligation to consult, applies “to the extent reasonably practicable”.

[410] What was reasonably practicable for BHP at one time is not the same as what is reasonably practicable for DP World at another. In that respect:

•  BHP is notoriously one of the largest employers in Australia, its employees are represented by a wide range of unions and the SAR in that case applied to all coal mines in Australia. Conversely, by the time it came into force, the Mandate effectively only applied to two stevedoring terminals (though in practice it achieved consistency between DP World employees across Australia) 288 with one dominant union and 289 As a result, the quantity of communication and meetings to “cover all bases” was vastly less for DP World.

• There is no sign in the Mt Arthur Coal decision that the economic importance of the mine, whatever its ultimate importance to the Australian community might be, or labour availability were averted to. Here, conversely, there is both evidence and notorious fact establishing that DP World performs more than 40% of the country’s container stevedoring, controlling 44% of berth capacity in Queensland and a material proportion in NSW.

• As at 9 November 2021, there had been no cases of COVID-19 detected at the Mt Arthur mine. 290 While it is impossible to say definitively why that was, it is consistent with the facts that (i) the Mt Arthur Mine is not in the metropolitan Sydney area most affected by the Delta outbreak at that time, whereas DP World Sydney’s terminal is at Port Botany, near Sydney Airport, and approximately 30% of its employees lived in “areas of concern”;291 and (ii) Mt Arthur had adopted a control, universal rapid antigen testing before entry to the mine every day,292 that was not feasible for DP World.293 Unsurprisingly given these differences, DP World Sydney had experienced positive cases, and their very significant consequences for operational continuity, by the time the Mandate was introduced. There is evidence before the Commission of the deleterious effects on labour availability when persons infected with COVID-19 attended the terminal for work, with a handful of positive tests in September 2021 resulting in 88 employees becoming unavailable, 35 of them for two weeks. It was incumbent on DP World to take steps to mitigate these effects and the prospect of their repetition as much as possible, and without delay. Time was, in other words, of the essence. The timing of the first dose requirement had to balance this with the need for DP World to manage the process and manage the consequences of unvaccinated employees ceasing to be available.294

•  Employees at BHP Mt Arthur did not interact with people who were determined as having an elevated risk of being infected with COVID-19. Employees of DP World regularly interact with foreign crews who at times have come from ‘hotspots’ within Asia. 295

[411] DP World submits that in all the circumstances consultation obligations under the WHS Acts were discharged. It consulted so far as was reasonably practicable. It was not required to consult with individuals, 296 but properly did so through their representatives (i.e. HSRs) and ensuring that employees all received the same information. While it announced its intended decision prior to consultation, it was subject to a consultation process and it was prepared to revisit those decisions. That it did not do so is unsurprising given the participation of HSRs, which was limited in Sydney and simply absent in Brisbane, the approach taken by the union (which it is now clear was premised on a refusal to accept any outcome that might result those who did not comply with the Mandate losing their employment297), the importance of vaccination as a higher-order control, and the impracticability of alternative controls. Finally, the specialist safety regulator in NSW was aware of what had been done and the employees’ concerns, and did not intervene despite having ample power to do so if it considered that non-compliance with the WHS Act is occurring. It would be surprising if the Commission reached a contrary conclusion.

[412] In relation to the question of what the Commission ought properly consider in determining the “valid reason” issue, having discounted the erroneous substitute test proposed by the union of “was there sufficient consultation?” A range of factors must obviously be taken into account in determining the ultimate question of whether the Mandate was a “lawful and reasonable” direction. Firstly, the Respondents refer to the duties of DP World to provide a safe workplace as required by s. 19(1) of the WHS Acts of a “person conducting a business or undertaking”, to “ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the person” while they are at work in the undertaking. This includes “the provision and maintenance of a work environment without risks to health and safety”. 298 Failure to comply with this duty can result in criminal prosecution, fines in the millions of dollars299 and the prosecution of DP World officers.300 The Full Bench in Mt Arthur Coal accepted that the duty is a heavy one, being a “much higher standard than the exercise of reasonable care”.301

[413] The Respondents submit that in light of that duty, an exercise of determining whether a direction is lawful and reasonable must not overly stress factors that may be influential in other contexts. It is not a proper mode of analysis to say, for instance, that safety cannot be the subject of a “Big Brother approach” or the “heavy-handed dictates of an employer - no matter how well intentioned”. 302 That is plainly wrong. While employers must consult, they must ultimately take whatever steps are available and reasonably practicable to protect their employees’ safety, regardless of how the employees may feel about it. These are non-delegable obligations, backed up by strict liability criminal offences. Employers can be and have been prosecuted and convicted for alleged failures to “save people from themselves”.303 It is also submitted that libertarianism has little place in the WHS Acts; employees’ personal theories of epidemiology perhaps even less so.

[414] It is therefore proper for a tribunal to give weight to the need for an employer to have some leeway in deciding what is to be done to provide a safe workplace. While not every measure introduced to ensure compliance with these obligations will be reasonable (and Mt Arthur Coal says as much), only so much “second guessing” should be entertained where a Company has in good faith identified and decided to implement a safety control. 304

[415] The Respondents also reiterated factors including: the nature of the workplaces in question and the inability to avoid (even with significant controls in place) persons being in close proximity and working together; 305 the higher average age of the workforce which includes persons in their sixties (and in Sydney, seventies),306 who as a matter of notorious fact are more likely to become severely ill with COVID-19 than younger persons; and the interaction between stevedores and ship’s crew307 placing DP World employees (particularly in Brisbane308) among the small percentage of Australians who regularly came into contact with persons recently arrived from overseas, at a time when international borders had been closed for some 18 months. In this regard, DP World said that it did not know and had no control over whether these persons were vaccinated,309 and it was not possible to avoid all such interactions despite the imposition of significant operational changes as controls.310 Indeed, positive cases among the crew of the Rio De La Plata required 81 DP World Sydney stevedores to isolate as casual contacts.311 This exposure to crews arriving from overseas is plainly not a feature of the workplace at Mt Arthur.

[416] Thirdly, as a continuation, there is the public interest in continuity of stevedoring operations. DP World supplies an essential service in each of NSW and Queensland. Without the performance of container stevedoring, of which DP World performs a significant proportion, import/export supply chain simply does not function. That is a matter of critical importance.

[417] Without effective and efficient container stevedoring, the Australian economy simply cannot operate. Imports do not leave the country and exports do not enter it. That would be an intolerable outcome for the Australian economy and all the persons residing in this island nation at any time. At the risk of repetition, this was not simply any time - Australia was in the midst of a serious COVID-19 outbreak affecting half of the country’s population, during a period when supply chains generally were notoriously stressed. The goods being shipped in via DP World terminals included imported foodstuffs and medical supplies 312 of the kind where again, notoriously, Australia had not previously experienced serious shortages.

[418] As the events of mid-September 2021 laid bare, a handful of COVID-19 cases was enough to severely diminish DP World Sydney’s labour availability. In circumstances where a person classed as a casual contact might miss a few days’ work, but one classed as a close contact would miss two weeks, the Company inarguably had a legitimate interest, and indeed a duty in discharging its critical public function, in ensuring that in the unfortunate (but increasingly unavoidable looking forward to the liberalisation of public health restrictions) event that its employees were exposed to SARS-CoV-2, as few of them as possible would fall into the latter category. It was thus entirely lawful and reasonable to require that those who were medically able to be vaccinated did so, to avoid unnecessary and preventable extended absences.

[419] This is a separate basis on which the Commission could conclude that the Mandate was lawful and reasonable, without recourse to DP World’s safety obligations under section 19 of the WHS Acts. Stevedoring terminals simply have to function. It was therefore within the scope of the Applicants’ employment to require that employees take a step which would make it less likely that they would have to isolate for a full 14 days, and be unable to attend or perform work, if they were exposed to COVID-19. It was moreover reasonable given the public (rather than only commercial) interest in the efficient and effective stevedoring of cargo, and the other factors set out below.

[420] Fourthly, there is the nature of the Mandate and what it requires. It may be accepted that the Mandate requires employees to do something they may not otherwise have chosen, and involves a degree of interference with medical decision-making. This must however be viewed in full context. At the time the Mandate was implemented, NSW and Victoria were literally attempting to “vaccinate their way out” of lockdown arrangements. Persons who were not vaccinated were increasingly subject to a range of restrictions on civil liberties which did not apply to vaccinated persons. Two jurisdictions, Victoria and Western Australia, had enacted sweeping requirements that persons working in particular industries, including stevedoring (and very specifically stevedores in WA) be vaccinated in order to attend for work at their employers’ premises. When the Mandate was being formulated, persons in Sydney LGAs of concern, including some 30% of the DP World workforce, could not leave their LGA to attend for work unless they were vaccinated. Any assertion that the Mandate was therefore somehow “beyond the pale” because it involved an interference with individual rights or “bodily integrity” is untenable. A much more nuanced view is required, which would include that:

•  Significant limitations on the rights of persons who choose not to be vaccinated against a given disease are not unknown to Australia, including before the present pandemic. 313

•  There is no evidence that for any of the Applicants, the decision not to be vaccinated was not volitional. 314 It was, in each case, a choice. The Mandate made allowance for persons who genuinely could not be vaccinated against COVID-19, and there are a small number of such persons working in Sydney.315 Those persons do not have the luxury of choosing whether to be vaccinated, and indeed, other persons choosing not to be places them at an increased risk.

• Insofar as any Applicant says that he was entitled to refuse to comply with the Mandate because COVID-19 vaccines are dangerous, he bore the onus of proof in relation to that matter. 316

[421] No attempt has been made to do this. As set out in DP World’s original submissions, 317 the Company was entitled to proceed on the basis that vaccines approved by an Australian regulator and heavily promoted by medical bodies and every level of government are safe. Fifthly, there is the issue of consultation. DP World denies that it failed to comply with its consultation obligations under the WHS Acts. It consulted so far as was reasonably practical having regard to the urgency of the issues concerned, the nature of the workplace, and the effort required to reach all employees. The fact that it did so after an intended decision was announced is of no moment, so long as that decision was not fixed and DP World was open to change based on the outcomes of consultation.

[422] If the Commission is against the Respondents on this matter, any deficiency in consultation under the WHS Act does not automatically produce a result that the Mandate was not lawful and reasonable. It is one factor to be taken into account. While it would tell against a finding that the Mandate was lawful and reasonable, it is ultimately for the Commission to determine in all of the circumstances what weight it ought be accorded. In that regard, the Respondents submit that any failure in consultation is more than outweighed by factors pulling in the other direction. The fact that a different conclusion was reached in Mt Arthur Coal is of no moment for present purposes. Each case turned on its own facts and despite the union’s attempts to equate them, what happened here was quite different to the way things unfolded at the Mt Arthur Mine and the nature of the proceedings the Commission was invited to consider.

[423] The Respondents also submit that it is plain on a reading of Mt Arthur Coal that the sole purpose of the SAR was to be enacted for the purpose of ensuring employee safety, and hence compliance with the WHS Act. A significant difficulty for BHP was that, having decided irrevocably that there was to be an SAR for this purpose (and indeed, in the belief that this was necessary for compliance), it nonetheless did not comply with prefatory requirements in the same legislation relating to consultation on the identification of hazards and controls (as the Commission construed them). Having based its entire rationale around compliance with the legislation, non-compliance with it presented a significant difficulty. In contrast, it is contended that DP World’s Mandate, had a dual purpose - to protect employees’ safety, including that of older employees and those who cannot be vaccinated and as a measure to mitigate against operational disruption, at economically critical facilities, at a time when close contacts were required to observe a 14-day isolation period, and unvaccinated persons were more likely to be classed as close contacts than vaccinated persons.

[424] That second aspect of the Mandate does not involve safety considerations (although, again, the Mandate achieves a dual benefit and the two purposes are not in tension). It did not involve the assessment of hazards or identification of controls, or any other matter identified in Part 5 of the WHS Acts. The making of a decision to introduce the Mandate solely on this ground would not have enlivened any consultation obligation under the WHS Acts. 318 On that basis, DP World says that it could have enacted the Mandate solely on the basis of its operational requirements, and the importance of those requirements being met to the States and industries that the terminals service, without any need for consultation under the WHS Act. That being the case, it is nonsensical that the existence of a second safety-related purpose, and lack of “sufficient” consultation in the opinion of a union and two HSRs, should mean that the direction embodied in the Mandate somehow nonetheless becomes unreasonable. That would be in effect to say that a failure to consult on an issuing involving a safety component invalidates any subsequent direction on that issue, which the Full Bench in Mt Arthur Coal did not accept.

[425] Further, there was no evidence in Mt Arthur Coal of any particular urgency, save that the SAR was to be in place before the relaxation of restrictions and predicted wave of COVID-19 cases (which did of course eventuate). Absent a need to introduce the SAR when it did, BHP’s failure to take time to consult in relation to it may be legitimately afforded greater weight than in other cases. Here, however, any positive case at any time (which had in fact occurred, unlike at the Mt Arthur Mine) was liable to require large parts of the workforce to isolate themselves. This had in fact happened in Sydney, and it was incumbent on DP World to take steps to minimise the impact when it inevitably happened again, as it could have done any day.

[426] Finally, in connection with the issue of consultation, there is the approval by the NSW safety regulator of DP World’s approach. There has been no contradiction of Mr Eadie’s evidence that, following a complaint by Mr Lewis in relation to consultation, 319 SafeWork NSW attended the DP World Sydney terminal and took no action in relation to the consultation process the Company had carried out.320 In relation to Mr Dunn’s evidence that SafeWork had essentially washed its hands of the situation,321 the Respondents submitted that this is a very serious allegation, in circumstances where the regulator is responsible for monitoring and enforcing compliance with the WHS Acts and fostering a co-operative, consultative relationship between duty holders and persons to whom they owe duties.322 As with much of Mr Dunn’s evidence, it is his perception, not an objective statement of fact, and was not (at least in his statements) substantiated by reference to any statement that he recounts by the Inspectors.

[427] The Respondents further submit that the Commission should not accept Mr Lewis’s evidence that an Inspector, in a call after the meeting on-site (that Mr Lewis did not attend), said that “you guys are definitely in the right here”, 323 or Mr Dunn’s evidence that he said words at the meeting on 19 October 2021 to the effect that the consultation was “not good”.324 In this regard the evidence is inherently improbable, given the uncontradicted evidence of Mr Eadie that the Inspector said words to the effect of “consultation has occurred and the workforce included in the process”, which would appear entirely at odds with what Mr Lewis claims the Inspector subsequently told him and the fact that the Inspectors did not issue a Provisional Improvement Notice or any other notice. This was also submitted to be inconsistent with past situations where improvement notices have been issued where the Inspector concerned felt it was warranted, specifically in response to a union complaint about DP World Sydney.325 Further, Mr Dunn did not include any version of the “not good” comment in a reply witness statement where he specifically addressed Mr Eadie’s evidence about the meeting with SafeWork. In fact, his reply statement says that Inspector Whatman “heard the concerns from the HSRs and from the Company, but did not provide a decision or opinion”.326 That is directly contrary to the version of events that Mr Dunn came up with for the first time in cross-examination, in preference to making a simple and obvious concession.327

[428] Mr Dunn’s version of events was not put to Mr Eadie in cross-examination. As a matter of fairness it cannot be accepted now, having regard to the rule in Browne v Dunn. Mr Eadie’s evidence would be preferred in any event, as he took unchallenged contemporaneous notes with which his evidence his consistent. 328 Allegations that two SafeWork Inspectors failed to discharge their statutory duties329 are serious matters, and not matters of which the Commission would be satisfied based on the proffered “inexact proofs, indefinite testimony [and] indirect inferences”.330

[429] In any event, the fact is that Mr Lewis very clearly stated his concerns that “[DP World] has failed to comply with the NSW Work Health and Safety Act Part 5 Consultation, division 1 and 2” and sought SafeWork’s assistance in resolving a dispute, 331 and having met with the parties, SafeWork did not issue notices or take any other steps to require DP World to do anything. The Inspectors had ample opportunity to do so, having sought and been provided with documentation after the consultation process.332 That cannot be discarded due to the subjective view of the witnesses that the inspectors who did not give them what they wanted had washed their hands of the process.

[430] The conscious decision by the specialist regulator not to intervene, when armed with the relevant documents and having heard the employees’ concerns, is a powerful factor tending to indicate that the direction given by DP World in the form of the Mandate was lawful and reasonable. In making that assessment based on the circumstances at the time – and not looking back with an unrealistic standard of perfection in hindsight – it is enormously significant that the very body charged with resolving safety disputes and ensuring compliance with the WHS Act in NSW saw nothing wrong with DP World’s process. In this respect the case is analogous to Darling Island Stevedoring where Justice Dixon found that the fact that a Board of convened in response to the dispute did not adopt the employees’ position: “was a relevant evidentiary circumstance properly to be considered upon the question whether the subsequent order of the employers was a reasonable instruction. An order given in the light of the board’s refusal to interfere with the practice could not be held so unreasonable as to justify disobedience, unless the circumstances were very exceptional. 333 In the present case, absent “very exceptional” circumstances, it cannot be said that a direction (and course of consultation) which has been green-lit by the safety regulator is then unreasonable for failure to comply with the very Act that regulator is charged with enforcing. To make that finding places DP World in an entirely unworkable position.

[431] The Respondents also submit that it is not an answer to all the above that an individual employee may have been absent from the workplace. This is a matter raised by Mr Pintley, who counters that he was absent on workers’ compensation and posed no threat to anyone. The short response is that the workers’ compensation framework is intended to effect a return to work, 334 and on the available evidence, it was entirely reasonable for DP World to conclude that Mr Pintley did not intend to be vaccinated and/or disclose his vaccination status.335 It is thus not reasonable to expect that DP World “wait and see” when it has decided to issue a direction, Mr Pintley has deliberately not complied with it, and there is zero basis to believe that either state of affairs will change.

[432] To preserve its rights, DP World formally recorded its submission that the Full Bench in Mt Arthur Coal misconstrued the WHS Act, and the interplay between that Act and employees’ contracts of employment, and made submissions that might appropriately be pursued in another forum, so as to preserve its rights. DP World also formally recorded its submission that observations of the Full Bench in Lee about the operation of the Privacy Act are obiter dicta and erroneous. It is not necessary that those submissions be repeated here. The Respondents made clear that it is not expected that a single Member of the Commission would depart from recent Full Bench authority and submitted that the Commission as presently constituted does not need to do so, as each case turns on its own facts. In that respect, the Respondents submit that this case is very different from Mt Arthur Coal and that contra the MUA’s whole approach in its closing submissions, the present case is clearly distinguishable from Mt Arthur Coal: inter alia, in the criticality of the continuity rationale for the Mandate as opposed to a pure safety focus, in the circumstances concerned and hence what consultation was “reasonably practicable”, and in the nature of the decisions announced to employees.

[433] In addition to the earlier submissions in relation to the assertion that the Mandate is inconsistent with the intent of the Enterprise Agreements, the Respondents made some further observations arising from the cross-examination of Mr Dunn. Mr Dunn confirmed that the views set out in his first witness statement about the purpose of Part A, clause 8.12 of the Enterprise Agreements were his views, and what he presumed would be the view of others if one conducted a straw poll (which he conceded he had not done). 336 The Respondents submit that this “evidence” is plainly not admissible on the construction of clause 8.12 and is the kind of evidence that the authoritative cases say must be avoided, namely, subjective views held by one participant in bargaining (in this case nearly 20 years ago) about what a clause was meant to do.337 There is zero material whatsoever on which the Commission could conclude that objectively this was the parties’ shared understanding. Ultimately, as Mr Dunn himself volunteered, “the clause says what the clause says”,338 and his views cannot countermand its actual words.339

[434] Second, after many non-responsive answers and objections, Mr Dunn indicated that in his view the Enterprise Agreements did not permit the introduction of the Mandate because of what he says is an absence of consultation – not because of the substance of the Mandate. 340 If that is now the union’s position, this is not how clause 8.12 operates. The clause deals with material “contained in a policy or procedure” - that is, what the policy or procedure says, its substance, and not the process by which such a policy or procedure is implemented. There is no basis to say that the substance of the Mandate is inconsistent with the intent of the Enterprise Agreements, and Mr Dunn did not ultimately say that it was (though the union’s original submissions did,341 and at points Mr Dunn seemed to suggest that a Mandate that “failed to mitigate” loss of employment was ipso facto unreasonable342.

[435] The Respondents submit that the MUA’s closing submissions on behalf of the represented Applicants do not deal with alleged breaches of the Privacy Act at all and it is not clear that this issue is pressed. However, on the basis that the submissions have not been expressly withdrawn, the Respondents proceed on the basis that the Union relies on its previous written submissions and do likewise. In addition, the Respondents submit that the evidence took this matter no further. There was no contradiction of Mr Eadie and Mr Hanley’s reply evidence regarding the existence and availability of a dedicated privacy policy. 343 Mr Dunn’s evidence disputing the accessibility of this policy essentially amounted to an unsubstantiated allegation that DP World HR did not do their job and DP World maintains an employee portal that only a handful of clerical employees access.344 His answer was baseless and the evidence ought not be accepted.

[436] In relation to the MUA’s contention that the Mandate was unnecessary, the Respondents submit that the Union’s submissions do not engage at all with DP World’s requirements for operational continuity and the impact of unvaccinated persons being more readily classified as close contacts. In response to comments about the efficacy of vaccines and the Omicron variant at the hearing, DP World reiterates its submission that whether there is a valid reason for dismissal depends on facts in existence at the time of dismissal. 345

[437] For all the reasons given in DP World’s submissions dated 31 January, 14 February and 6 May 2022, the Mandate was lawful and reasonable, and each of the Applicants knowingly and deliberately failed to comply with it. Regardless of other matters that they may wish to raise at another juncture in the hearing of their applications, this was a valid reason or dismissal. DP World respectfully submits that the Commission ought so hold, and, should the applications be pressed, program the matter for the filing of material and hearing going to the matters in ss 387(b) - (h).

Post-hearing Note – Vaccination Status and Isolation Periods

[438] After the hearing of closing submissions by the parties, the Respondents, at my request, provided a note summarising the effect of vaccination status on the periods of isolation required under the Public Health Orders in New South Wales and Queensland, as follows:

“From 6 September 2021 onwards, New South Wales was subject to various iterations of the Public Health (COVID-19 Self-Isolation) Order (No 3) 2021 (NSW Order (No 3)). Before 21 October 2021, a “close contact” of a person diagnosed with COVID-19 was required to isolate for a period determined by a contract tracer of up to 14 days. This was dealt with in clause 7(2) of the NSW Order (No 3).

From 21 October 2021 onwards, the isolation period for a “close contact” varied dependent on their vaccination status. This was dealt with in clause 8(3) of the Public Health (Covid-19 Self-Isolation) Order (No 4) 2021 (NSW Order (No 4)):

(a) for a close contact who as a “fully vaccinated person” at the time of contact, the maximum period was 7 day; and

(b) otherwise, the previous 14 day period continued to apply.

Under each NSW Order, a person was a “close contact” if they were informed that they had been identified as such by a contact tracer.

On 28 September 2021, the NSW Department of Health issued a revised document titled “Contact risk assessment for community and workplace settings” (Contact Risk Document). It sets out the way in which various factors, including vaccination status, affect the assessment of whether a person’s interaction with a person who has tested positive for COVID-19 is low-risk, a casual contact, or a close contact. The document refers to, and notes that it builds on, guidelines issued by the Communicable Diseases Network Australia (CDNA) which define a “close contact”.

In relation to Queensland, clause 6 of the Management of Close Contacts Direction (No 3) 2021 (Queensland Direction (No 3)), which was in force from 5 September to 21 December 2021, provided that a person who was informed they were a close contact must quarantine until the end of the 14^th day after last having close contact (or after another specified time).

Queensland reduced the isolation period for fully vaccinated close contacts to 7 days later than did NSW, with effect from 22 December 2021. This was effected by clause 6(a) of the Management of Close Contacts Direction (No 4) 2021.

As such, it is apparent that Mr Hanley was referring to Queensland Direction (No 4) when he referred to “QLD Health’s Guidelines” in his first statement.

For completeness, noting that Mr Hanley only spoke to his reasoning about the approach that Queensland would likely take in relation to who was or was not a “close contact”:

(a) searches of relevant government departments have not revealed any guidance documentation provided as to how Queensland contact tracers determined who was a “close contact” at the relevant points in time;

(b) it appears that Queensland may have relied on the CDNA guidelines referred to in the NSW Contact Risk Document 346;

(c) these CDNA guidelines are published in their present iteration on the website of the Department of Health and Aged Care 347. However, the CDNA does not appear to make past versions of its guidelines available. At the time of the Brisbane Applicants’ dismissals, the relevant guideline would have been version 6.1; and

(d) while there is at least one Queensland government document referencing vaccination status as a consideration for classification of contacts, it evidently post-dates the dismissals and appears to have been prepared in contemplation of the Queensland Direction (No 4), i.e. in mid-late December 2021. DP World does not rely on it to prove facts in existence at the time of dismissal.”

[439] In response to the above summary provided by the Respondents, the represented Applicants said that the announcement of Mr Adam on 16 September 2021 indicated that in light of a positive case at the Port Botany Terminal that week, 36 employees had been deemed close contacts using NSW Health Guidelines and were in self-isolation for a minimum of 14 days and that a further 63 employees and contractors have been deemed casual contacts and are unable to return to work until a negative COVID test. It was submitted that at the time that DP World made the decision to make vaccinations mandatory for all employees, the only information available to the company was that:

(a) Public Health Orders in both Queensland and New South Wales required close contacts of a person diagnosed with COVID-19 to isolate (or quarantine) for up to 14 days; and

(b) Neither the Queensland Government’s nor the New South Wales Government’s Public Health Orders required workers at DP World’s operations at the Port of Brisbane and Port Botany, respectively, to be vaccinated as a condition of entry to work premises.

[440] Any amendments to Public Health Orders that took effect after DP World made the decision to make vaccinations mandatory are irrelevant to the question of whether the company had a valid reason to terminate the employment of those employees who did not comply with the vaccine mandate. Just as the Commission can’t consider the fact that the approved vaccines are substantially less effective against today’s dominant variants than they were against the Delta strain that was dominant at the time that DP World implemented its mandate, the Commission likewise can’t consider the fact that Public Health Orders that were made after DP World decided to mandate vaccines treated “close contacts” differently based on their vaccination status.

[441] Finally, it was submitted for the represented Applicants that even had Public Health Orders been in place at the time DP World made the decision to mandate vaccines that distinguished between fully vaccinated and unvaccinated people, that distinction would be irrelevant to DP World’s consultation obligations under Work Health and Safety Legislation. While such a distinction might support a decision to introduce a vaccine mandate, it would do nothing to release DP World from its statutory and contractual obligations to consult with employees prior to making a decision to introduce a vaccine mandate.

Consideration

The approach to considering the matter in s. 387(a)

[442] This decision concerns only the question of whether, as provided in the statutory criterion in s. 387(a) of the FW Act, there was a valid reason for the dismissal of the Applicants. It does not consider in any final sense, the weight that should be afforded to any other matters in ss. 387(b) to (h) which may subsequently be found to be relevant. Nor does this decision determine whether, the dismissal of the Applicants was unfair. The matters in s. 387 generally deal with substantive, procedural and mitigating matters, and s. 387(h) allows the Commission to take into account any other matter it considers relevant.

[443] It is axiomatic that each of the criteria should be considered separately, and findings made. A conclusion should not be reached in relation to overall unfairness until all the criteria have been considered and weighed. A failure to consider the matters in this way constitutes a significant error of law that is jurisdictional in nature. 348 Section 387(a) is concerned with the substantive aspects of a dismissal rather than the procedure by which it was carried out or any mitigating or otherwise relevant matters.

[444] In the present case, the Applicants were dismissed based on their conduct in failing to comply with the Mandate. However, the focus of the inquiry required by s. 387(a) is whether, on the evidence provided, facts existed at the time a dismissal was carried out, that justified dismissal. Further, a valid reason for dismissal can be any valid reason underpinned by evidence provided to the Commission. 349 In the present case, the date at which validity is assessed is not the date the Mandate was implemented or announced, but rather, the date that the employees were dismissed.

[445] As previously noted, matters that are encompassed by the criteria in s. 387(b) – (h) should not be considered as relevant to s. 387(a). Accordingly, I consider that procedural and other matters raised by the Applicants are relevant in a limited way to these questions. This point is illustrated by the decision of the Full Bench in Hilder. In that case, the Full Bench found that the decision under appeal involved, inter alia, error of a consequential nature, on the basis that the Member at first instance determined whether there was a valid reason for dismissal by reference to irrelevant matters.

[446] The employee in that case was dismissed for breaching Sydney Trains’ Drug and Alcohol Policy and Code of Conduct. The Policy relevantly stipulated that Sydney Trains has a random drug and alcohol testing policy, and that the test rating for drugs must be less than the cut off level stipulated in Australia/New Zealand Standard 4398 for drug tolerance. The employee had been subjected to a random test and returned a positive result. The Full Bench observed that there was no dispute as to the occurrence of the conduct and nor was it disputed that the employee breached the policy. The employee conceded that he was aware of the policy and its significance. The Full Bench stated that:

“[29] … The only question to be resolved therefore was whether the breach of the Policy was a matter of sufficient gravity to constitute a sound, defensible, well-founded and therefore valid reason for dismissal. This required an assessment of the importance of the Policy in the context of Sydney Trains’ operations and Mr Hilder’s work duties.”

[447] The Full Bench in Hilder found that this matter was not addressed in the decision in relation to s. 387(a) and that instead, the Member at first instance erroneously focused on the employer’s “zero tolerance approach” to breaches of the policy and its apparent inconsistency with the employer’s position, that it would consider any relevant mitigating circumstances before deciding on a disciplinary approach. The Full Bench said:

“[30] … We do not consider that these were matters relevant to whether there was a valid reason for the dismissal, since they did not concern Mr Hilder’s conduct but rather Sydney Trains procedural and substantive disciplinary response to that conduct. If the consequence of Sydney Trains’ ‘zero tolerance’ was that it would not give any consideration to any mitigating circumstances advanced by any employee who has been found to have breached the Policy, that may be relevant to s 387(c) since it would arguably constitute a denial of a real opportunity to respond to the reason for the putative dismissal. If dismissal was a disproportionate response to the conduct in question because Sydney Trains had failed to take into account mitigating circumstances, that would be a matter relevant to s 387(h). But in the context of s 387(a), they were simply distractions.”

[448] While not directly on point in a factual sense, the principles set out by the Full Bench in Hilder are analogous in the present case. It is common ground that the Applicants were dismissed for non-compliance with the requirements of the Mandate. The question for determination in the present case is not simply whether the Mandate was a lawful and reasonable direction or whether the Applicants refused to comply with a lawful and reasonable direction. Rather, the question requires consideration of whether the refusal of the Applicants to comply with the Mandate was a matter of sufficient gravity to constitute a sound, defensible, well-founded, and therefore valid reason for dismissal. I am also bound to consider the Respondents’ contention that on the evidence provided, facts existed at the at the time of the dismissals that justified them. Whether the Mandate constituted a lawful and reasonable direction is relevant, but not determinative of these questions. I also note that both the represented and unrepresented Applicants have raised issues relating to the efficacy or rationality of the Mandate, which are also relevant to whether a failure to comply with the Mandate was a valid reason for dismissal.

[449] I accept that there are cases where a policy lacks a rational basis or seeks to regulate a matter that is trivial or is unreasonable so that non-compliance will not be a matter of sufficient gravity to constitute a valid reason for dismissal for the purposes of the criterion in s. 387(a). However, I do not accept that a procedural failure associated with the implementation of an otherwise lawful and objectively reasonable policy, necessarily invalidates the policy so that refusal to comply with it ceases to be a valid reason for dismissal for the purposes of s. 387(a).

[450] The following example illustrates this point. Where an employer has purported to establish a policy in a workplace that prohibits conduct that would objectively justify dismissal, a failure on the part of an employee to comply with that policy will generally constitute a valid reason for dismissal for the purposes s. 387(a). However, matters such as a deficiency in the way the policy was promulgated, or a failure to properly inform the employee about the policy or the ramifications of breach, or to warn the employee of the ramifications of future breaches or inconsistent application of the policy, or the employee being impacted by a personal issue or medical condition that affected his or her behaviour, may be relevant for the purposes of considering the criteria under one or more of ss. 387(b) – (h). However, these matters are not relevant to consideration of whether there was a valid reason for the dismissal in accordance with the criterion in s. 387(a).

[451] It may be said that in Hilder the validity of the Drug and Alcohol Policy was not challenged and nor was it contended that the direction or requirement for employees to comply with the Policy was not lawful and/or reasonable. This can be contrasted with the circumstances in the present case, where the Applicants contend that the Mandate is an unreasonable direction and that they are not required to comply with it. However, the substance of the attack on the Mandate mounted on behalf of the represented Applicants by the MUA, is the process by which the Mandate was established, rather than its substance.

[452] This is supported by the evidence of Mr Dunn, who despite maintaining that the MUA would not have agreed to the Mandate in circumstances where it resulted in the dismissal of employees, accepted that the Sydney Enterprise Agreement did not prevent DP World from implementing a mandatory vaccination policy provided that the Company complied with obligations under those Agreements. While Mr Dunn’s evidence was somewhat ambivalent, the effect of his evidence was that compliance with the consultation would probably have resulted in the Mandate not being inconsistent with the terms of the Sydney Enterprise Agreement.

[453] Regardless of Mr Dunn’s evidence and the extent of this concession, for reasons I develop later in this decision, I do not accept that any of the contentions of the MUA on behalf of the represented Applicants resulted in the Mandate being rendered an unlawful and/or unreasonable direction. Nor do I accept the contentions of the self-represented Applicants that the Mandate was illegal or invalid. However, procedural and other mitigating factors raised by the Applicants will be directly relevant to the subsequent consideration of the other matters in ss. 387(b) – (h).

[454] It is convenient to first consider the matters raised by the MUA before turning to those raised by the self-represented Applicants. I commence by considering the Full Bench decision in Mt Arthur Coal and the propositions the MUA asserts that the decision establishes.

The effect of the Full Bench decision in Mt Arthur Coal

[455] As I have previously noted, the MUA’s primary submission on behalf of the represented Applicants is that the Full Bench decision in Mt Arthur Coal is dispositive in the present case and that if I follow that decision, I am bound to find that there was not a valid reason for the dismissal of the Applicants with the result that “DP World loses”. I do not accept this submission for the following reasons. As the Respondents correctly point out, the decision in Mt Arthur Coal arose from an application under s. 739 of the Fair Work Act for the Commission to deal with a dispute arising under a dispute settlement procedure in an enterprise agreement.

[456] The issue for determination in Mt Arthur Coal and the statutory context in which it was determined, were fundamentally different to both the question I am required to determine and the relevant statutory provisions governing my consideration of that question. The Full Bench in Mt Arthur Coal derived its powers to deal with the dispute from the dispute settlement procedure in the relevant enterprise agreement and was confined in its consideration to the question for determination agreed by the parties. The question for arbitration in that case was whether the SAR was a lawful and reasonable direction with respect to employees. The statutory provisions relevant to the issues I am determining in the present case do not confine the issue in this way. The question I am required to determine is whether there was a valid reason for the dismissals of the Applicants in these proceedings. Further, while I am bound by Full Bench authority, and failure to follow it is an error, there are aspects of the findings in Mt Arthur Coal that are directly relevant and aspects that can be distinguished on the facts in the two cases.

[457] Of particular relevance is that the factual findings about medical, scientific and epidemiological matters made by the Full Bench in Mt Arthur Coal set out above at [50] – [52] are manifestly correct. Those findings are not geographically or occupationally limited and have general application. The point at which the Full Bench made these factual findings is closely proximate to the dates the Applicants in the present case were dismissed. Further, I note that these findings were not challenged on behalf of the represented Applicants and that to the contrary, I was urged to accept the Full Bench Decision in Mt Arthur Coal in its entirety. Accordingly, I have applied those factual findings in the present case. In doing so, I observe that the Full Bench was somewhat prescient in respect of the matters it anticipated with respect to the spread of COVID – 19 following the easing of restrictions.

[458] The Full Bench in Mt Arthur Coal concluded that the SAR was prima facie lawful. In this regard, the Mandate falls within the scope of the Applicants’ employment and there is nothing illegal or unlawful about becoming vaccinated. Secondly, but for the failure to comply with consultation obligations under the WHS Acts and any relevant provisions of the Enterprise Agreements, the Full Bench found that there were other considerations that weighed in favour of a finding that the SAR was reasonable. The Full Bench also in that case found that the content of a requirement to consult is determined by context and that circumstances may dictate a quick response and a truncated process. In short, the Full Bench did not lay down a decision rule that a failure by an employer to consult or to comply with a requirement associated with the introduction of a workplace policy, will result in that policy being unreasonable for the purposes of deciding whether the policy is a lawful and reasonable direction with which employees are required to comply consistent with the duty described in Darling Island Stevedores and later cases.

[459] I now consider the matters raised by the MUA on behalf of the represented Applicants and those raised by the unrepresented Applicants in support of their contention that the Respondents did not have a valid reason for dismissing the Applicants.

Whether DP World complied with consultation requirements under WHS Acts

[460] I accept the submissions of the MUA on behalf of the represented Applicants, that DP World did not comply with the consultation requirements under the WHS Acts. This is apparent from a consideration of the consultation obligations detailed in the Mt Arthur Coal decision and the findings of the Full Bench on the facts in that case. Contrary to the Respondents’ submissions, it is appropriate to conduct an analysis of this kind given the legal conclusions set out by the Full Bench in Mt Arthur Coal in relation to consultation obligations, which I am bound to follow. There is also force in the MUA submission that a comparison of the consultation processes engaged in by BHP as assessed by the Full Bench against the consultation obligations in the WHS Act on the one hand, and the steps taken by DP World in the present case, is indicative of whether DP World complied with the same obligations.

[461] In undertaking that analysis, I do not accept the MUA submission that if BHP did more than DP World and was found not to have complied, that ipso facto DP World did not comply. That submission ignores the important point made by the Full Bench in Mt Arthur Coal that the content of any specific requirement to consult is determined by the context, including factual matters relevant to the business and whether the circumstances dictate a quick response. This is a secondary question that is relevant to a finding about whether consultation obligations in the WHS Acts were met.

[462] The Full Bench in Mt Arthur Coal outlined the staged process by which BHP asserted it had met consultation obligations under the WHS Act. In summary, the first stage was termed the options phase during which BHP conducted an education program that promoted vaccination and its benefits, exposed common myths and provided information on how employees could book vaccination appointments. The “assessment phase” commenced on 31 August 2021, with BHP’s announcement that it was “actively assessing whether to make vaccination a condition of entry to BHP workplaces in Australia”, and that a risk-based assessment would be commenced of the proposed Site Access Requirement. At this point, BHP set up a central Vaccine Mailbox for use by all employees and invited their questions and comments regarding the proposed introduction of the SAR. BHP also conducted an implementation phase during which it asserted that consultation continued. While not mandating any particular approach, the analysis of the consultation process engaged in by BHP is instructive as to the content of consultation obligations under the WHS Acts and consultation terms of enterprise agreements.

[463] The evidence of witnesses for DP World does not establish consultation consistent with the requirements to meet its obligations under the WHS Acts as set out by the Full Bench in Mt Arthur Coal. Firstly, any consultation that Company engaged in did not commence until after the announcement that the Mandate would be implemented. Notwithstanding the evidence of witnesses for the Company, it is apparent from the language of the announcement that there was little if any capacity for the decision to be reconsidered. If there was a possibility that the Mandate would be reconsidered, it would have been relatively simple for the announcement to indicate this. It is apparent from the language of the announcement made by Mr Adam in the email of 16 October 2021, that the only matters open for consideration are the details of the policy, rather than whether it will be implemented. Further, the proposition that the Respondents’ decision makers were open to reconsider the implementation of the Mandate is at odd with the evidence of the urgency of the situation and the imperatives that drove the decision. I also note that although Mr Hulme, Mr Eadie and Mr Hanley gave evidence of their involvement in the decision-making process, there is no evidence that they had any authority to decide not to implement the Mandate at either the Sydney or Brisbane Terminals subsequent to Mr Adams’ announcement. I also note the spin put on the evidence of Mr Hulme and Mr Hanley that implementation in Brisbane was delayed in order to give employees more time to consider their options and to obtain the protection of vaccination. As the cross-examination made clear, the reason for this delay was the shortage of vaccinations in Queensland at the relevant time, a matter about which I am aware, given I live in Queensland.

[464] I also accept the evidence of Mr Dunn that the MUA was blindsided by the decision. In this regard I note that contrary to the facts in Mt Arthur Coal, in the present case, the MUA was not given a “heads up” or any indication that the Mandate was being considered. Further, contrary to their evidence, the bulletins tendered by Mr Hulme, Mr Eadie and Mr Hanley do not refer to vaccination as a “people measure” to combat COVID – 19 and there is no evidence of any reference to employees being vaccinated, until 26 March 2021 in the Bulletins to Brisbane employees and 26 August 2021 in the Bulletins to Sydney employees. Further, the references in the Bulletins and other communications before Mr Adam’s announcement of the Mandate, can hardly be described as encouraging employees to be vaccinated and the evidence of DP World witnesses on this point is an overstatement.

[465] Rather, the Bulletins prior to the dates I have referred to, describe in detail control mechanisms to deal with COVID – 19 in the workplace, such as sanitisation, cleaning and social distancing measures. When vaccination is mentioned in the Bulletins referred to above, prior to the announcement of the Mandate, it is only in the context of a Queensland Government program to encourage vaccination in the maritime industry and restrictions placed on certain local government areas in New South Wales. Contrary to the evidence of encouragement, the Bulletin to Queensland employees on 26 March informs them that they are not obligated to provide vaccination details to Queensland Health.

[466] I found the evidence of the Respondents’ witnesses about the timing of the decision to implement the Mandate to be improbable. Notwithstanding that this issue was not pressed in cross-examination, one only has to recount the evidence to illustrate its improbability. Mr Hulme’s evidence is that the outbreak of COVID – 19 at Port Botany came to his attention on 15 September 2021. Mr Hulme, Mr Eadie and Mr Hanley all said that the management team decided on 16 September – the next day – to implement the Mandate. The email from Mr Adam announcing the Mandate tendered by Mr Dunn indicates that it was sent at 2.00 pm on that date. The email announcement of the Mandate states that DP World Australia has been reviewing risk controls and has decided to make vaccination a condition of engagement for all employees and contractors. Under cross-examination, Mr Hulme said that the Respondents did not rush the decision to introduce the Mandate which is at odds with the timeframe in his evidence. It is probable that the Mandate was under consideration before 15 September when the outbreak occurred. According to the Note about vaccination requirements filed by the Respondents after the hearing, the New South Wales contact tracing matrix did not, on 16 September 2021 when the Mandate was announced, require that vaccinated persons be treated differently from non-vaccinated persons. At the point the Mandate was announced, the requirement was that all close contacts isolate for a period of 14 days. Accordingly, I do not accept that this consideration could have been relevant to the decision to introduce the Mandate

[467] It is also the case that notwithstanding the urgency, the date by which employees were required to receive their first vaccination was not until some four weeks after the announcement and this should have been enough time to consult with employees in the way required by the WHS Acts. Instead, the decision to implement the Mandate was announced as a fait accompli and the communication of the announcement made clear that the Respondents were open to discuss the details of the policy rather than whether it would be implemented at all. Further, I am of the view that regardless of whether risk assessments had been carried out by the Company in the past, without the involvement of HSRs from the outset, there is no reason why this had to occur with respect to the Mandate. A risk assessment involving HSRs could, and should, have been conducted before the announcement of the Mandate was made. Further, the document setting out “Frequently Asked Questions” was generated from a single meeting, which in itself raises issues as to how the questions could be described as “frequently asked”.

[468] DP World could, and should, at least, have given HSRs and the MUA notice that the Mandate was under contemplation and issued an announcement to that effect. This is so, notwithstanding that I accept, for reasons given later, that a truncated consultation process was necessary and reasonable in the circumstances that confronted the Company when the Mandate was implemented.

[469] Finally, I do not accept that there is a distinction in the present case with the facts in Mt Arthur Coal, on the basis that the Mandate served a dual purpose of discharging the Company’s primary duty under the WHS Acts and supporting its operational continuity to enable the provision of an essential service to the Australian public. There is nothing in the WHS Acts that excuses a failure to consult because a safety initiative has another non-safety related purpose. To accept this submission would render the important consultation requirements in the Act otiose. The WHS Act recognises that health and safety initiatives may have non-safety related purposes by making clear that the content of the obligation to consult may differ in particular circumstances but does not allow for consultation requirements to be entirely avoided. I am also of the view that the evidence about the views expressed by SafeWork Inspectors does not provide a basis for me departing from the clear findings in Mt Arthur Coal in relation to the consultation requirements in the WHS Act. This evidence may be relevant to the other matters in s. 387 which remain to be considered.

Whether DP World complied with consultation requirements under Enterprise Agreements

[470] Clause 21.4 of the Enterprise Agreements constitutes a commitment by the Company to consult with employees and HSRs about matters which affect, or which are likely to affect, the health and safety of employees. The use of the term “likely to affect” makes clear that the clause is triggered prior to a decision being made in relation to a health and safety matter. While the clause is aspirational in some respects, the Mandate was in my view, a matter that was likely to affect the health and safety of employees and consultation should have occurred prior to the announcement and at the very least HSRs should have been given an opportunity prior to the announcement to express their views. It is apparent that this did not occur.

[471] However, I do not accept the MUA’s submission that the Agreements require that a risk assessment be done in particular way and that the Company is prevented from drafting an assessment and providing it to employees. I note the uncontested evidence of Mr Eadie that but for one control – presumably the Mandate – the other controls and measures in the risk assessment were already in effect. While that evidence may excuse any failure by the Respondents to meet their consultation obligations under the Agreement, it also raises questions about why the risk assessment could not have been provided at an earlier time to enable the HSRs to consider it in more detail. On the evidence of the Respondent’s witnesses, the risk assessment was completed at or around the time the Mandate was announced on 16 September 2021.

[472] I accept that after the decision to implement the Mandate had been announced, that DP World engaged in some consultation. However, it is arguable that the steps taken by the Company were not sufficient to meet its obligations under clause 27 of the Agreements. Consistent with the Full Bench Decision in Mt Arthur Coal, it is arguable that the Consultation terms in clause 27 of each of the Enterprise Agreements which deal with the Introduction of Change, were triggered by the definite decision to introduce the Mandate. Those obligations include steps to avoid and mitigate loss of employment.

[473] However, for reasons discussed above, it is not appropriate to reach a concluded position in relation to clause 27 in circumstances where the matter was not pressed by the MUA in relation to its argument about valid reason and the Respondents reserved their position on this point. Compliance with clause 27 is appropriate to be considered when other criteria under s. 387 are considered. Such consideration may also encompass the effect of the notice period for changes set out in clause 27.4 of the Enterprise Agreements. While not reaching a conclusion on this issue, I make the following provisional observations.

[474] Firstly, the responses to the questions posed by HSRs and representatives of employees at the meeting on 23 September 2021, as set out in the “Frequently Asked Questions” document, are brief. In some cases, more detail could and should have been provided. In other cases, responses were not appropriate in the context where the Mandate, which would have significant effects on employees including the loss of their employment for failure to comply, had been announced, without forewarning that it was being considered. In other cases, the responses were entirely appropriate.

[475] In this regard, the response to question 2 is unfair when the context is considered. Employees had not had since March 2021 to consider their vaccination plan in the context of the Mandate. At the point the meeting of 23 September was conducted, employees had only one weeks’ notice of the Mandate, which would result in them not being offered further work if not vaccinated by a certain date. Accepting (as I do) that the imposition of the Mandate blindsided the MUA and employees and that there is little evidence of encouraging vaccination prior to 26 March in Brisbane and August in Sydney, that response was not reasonable.

[476] In relation to question 3, it was not reasonable to dismiss alternative vaccinations that may have been available out of hand, without considering the views of employees who would seek such alternatives and whether they had leave available to cover any likely waiting period. If this was not a viable option for the Respondents due to workforce requirements or shortages or for some other reason, more engagement on this point would have been reasonable. The response to question 4 left something to be desired given that it was later necessary to adjust the timing of deadlines for vaccination due to availability of vaccines. Question 13 could have been more fulsomely answered by referring to the WHS Acts and to the duty of employees at common law and under the Enterprise Agreements, to comply with lawful and reasonable directions.

[477] Question 14 could also have been more fulsomely answered given that it is well established that failure of an employee to comply with a lawful and reasonable direction will generally constitute a valid reason for dismissal and this was implemented within a relatively short time. Mr Hulme also gave evidence that prior to announcing the Mandate, the management team endorsed a process which included that disciplinary matter relating to employees who refused to comply with the Mandate would be dealt with by terminal managers. This indicates that the management team well knew that there was a likelihood that some employees would refuse to comply with the Mandate and that there would be a need for such refusal to be dealt with as a disciplinary matter. The response to question 19 does not engage completely with the question and does not address the question of leave being taken by unvaccinated workers.

[478] I am also of the view that the response to question 26 should have been answered differently. DP World has a Privacy Policy and I can only wonder at why this was not referred to in the answer. While I accept that Mr Dunn’s position about getting information from HR was somewhat facetious, his underlying point is valid. Employees cannot be expected to go to a Company’s HR department in search of a policy, in circumstances where they have not been informed that it exists and how to obtain a copy. Further, the answer to that question indicates that HR representatives are not available on site across all shifts. While this may be a legitimate argument for the Respondents to hold a copy of vaccination certificates rather than having them sighted by HR on each occasion an employee attends for work, it does not excuse the failure to point employees in the direction of the Privacy Policy.

[479] I am also of the view that while the MUA did not request a copy of the policy and that it had time to do so if issue was to be taken with compliance with the Privacy Act, the Frequently Asked Questions Document was intended to be a source of advice for employees. Accordingly, it should at least have included information about how their confidential medical data was to be stored. This is particularly so in circumstances where this issue has not been a live issue in workplaces generally, prior to the advent of the COVID – 19 Pandemic and the need to collect vaccination information.
[480] Conversely, the responses to questions 1, 5, 6, 7, 11, 12, 15 and 24 are unremarkable and reasonable. In relation to the remaining questions, all COVID – 19 vaccinations available at the time the dismissals were carried out, were approved for use in Australia and the fact that the approval is described as “provisional” does not render the approval doubtful. The Australian Technical Advisory Group on Immunisation (ATAGI) is responsible for providing advice to the Commonwealth Government and to the Australian public, on the National Immunisation Program and other immunisation issues. ATAGI’s role also includes providing advice to research organisations on current immunisation research and areas that need more research and consulting with relevant organisations to produce the Australian Immunisation Handbook. Its membership comprises eminent experts in the field of immunisation and related disciplines and also includes persons with expertise in these areas as they relate to particular groups such as children, pregnant women and persons of Aboriginal and Torres Strait Islander descent.

[481] ATAGI has monitored and evaluated the progression of COVID – 19 in weekly meetings since the advent of the Pandemic and has updated its advice regularly. At the time the Mandate was implemented and the Applicants in this matter were dismissed, the advice from ATAGI was that vaccination was an intervention to “prevent infection, transmission and severe disease.” According to ATAGI, provisional approval means that a full and thorough assessment has been made of the vaccinations, and they were approved by the Therapeutic Goods Administration (TGA) after a complete assessment of all available data. It is entirely understandable that in the midst of a global pandemic, scientists would be focused on progressing vaccinations and that as we are advised, the TGA has engaged early with pharmaceutical companies about vaccines and is accepting clinical data as it becomes available rather than at the end of trial processes, which speeds up the review process. The rapid movements in the approval process of vaccines is also understandable in circumstances where there has been unprecedented levels of funding as combatting the pandemic is a global priority.

[482] Employers cannot reasonably be expected to comment on the expertise of ATAGI or the conclusions it reaches in relation to scientific or epidemiological matters. Nor should employers be required to engage in debate with employees about information they have obtained from the internet that in their view, conflicts with the advice of ATAGI. It is entirely reasonable for employers to rely on the advice provided by ATAGI in relation to its areas of expertise and to refer employees to ATAGI as a source of such advice. If employees wish to obtain their own advice and to act accordingly, that is a matter for them, but a refusal to comply with a Mandate that directs vaccination consistent with ATAGI advice is liable to result in the employee being exposed to allegations of refusing to comply with a lawful and reasonable direction.

[483] Accordingly, the responses to questions 18 and 20 are perfectly reasonable in the circumstances. Similarly, there is no basis for employers to be required to provide “Material Safety Data Sheets” (MSDs) for various kinds of vaccinations or “Safe Work Methods” (SWMs) for the process of becoming vaccinated. MSDs are documents listing information relating to occupational health and safety issues. In a workplace context, they relate to chemicals and other products that are purchased by employers for use by employees in workplaces. Employers do not control the approval of vaccinations in Australia. Vaccinations cannot be compared with materials such as cleaning agents, chemicals or substances used in a w, which employers can choose to purchase for use in the workplace. I do not accept that a type of vaccination is a product that is susceptible to such information being provided by employers. Any information about the contents of vaccinations can be obtained from ATAGI.

[484] Neither is it reasonable to expect employers to assess a vaccine MSD (assuming that such a document exists) against the risk that it is sought to control. Again, that decision is made by ATAGI and it is reasonable for employers seeking to manage risks to health and safety and business operations, by reference to advice from body about the safety and efficacy of vaccinations. The response to questions 21 – 23 was therefore entirely reasonable. There is also no reasonable basis for employees to expect that DP World will indemnify them for any immediate or future reaction to vaccination. As the Company pointed out in its response, there is a Commonwealth scheme that operates in the unlikely event of adverse reaction to vaccination.

[485] It is also the case that DP World is not responsible for the risks associated with vaccination. What DP World is responsible for is the risk associated with the transmission and spread of COVID – 19 within its workforce. Accordingly, the answer to question 16 was perfectly reasonable.

[486] In relation to question 17, a requirement that an employee be vaccinated and provide evidence of such to his or her employer in circumstances where failure to do without reasonable excuse, will render the employee subject to disciplinary action including dismissal, is not coercion or duress at law. This was the decision of the Full Bench in Mt Arthur Coal which found that while the SAR did not constitute coercion in a legal sense, that employees were being pressured to undergo a medical treatment when they would prefer not to do so, was a form of economic and social pressure, involving a difficult choice for employees. As DP World pointed out in response to question 17, what DP World had asked of employees is not coercion or duress. That response is correct and was reasonable.

[487] It is also the case that the responses to all questions posed by the MUA and employees was provided on 28 September 2021, some 16 days prior to the first date for compliance with the Mandate and some 47 days prior to the final implementation date. The response provided by the MUA to the “Frequently Asked Questions” document simply stated that the answers were inadequate without posing further questions or indicating the extent of the inadequacies. If the MUA and/or HSRs wanted further information, they had ample opportunity to request it or to raise a dispute in relation to the matter. This did not occur or to the extent that it did, the dispute was withdrawn.

[488] Finally, I accept the submissions of DP World in relation to clauses 3.2 and 8.12 of the Enterprise Agreements. Clause 3.2 is aspirational, and the Mandate is not inconsistent with that clause. Clause 8.12 requires employees to be advised of policy changes rather than consulted about them and that policies will not operate to the extent that they are inconsistent with intent of the Agreement. Self-evidently, the intent of the Agreements is not consultation, notwithstanding the number of times that term appears in the Agreements. Other than the asserted failure to consult, no inconsistency with the Agreements is identified by the MUA. Further, any failure to consult is a procedural rather than a substantive issue and does not give rise to any inconsistency. I also note that the Enterprise Agreements clearly provide that any dispute about whether a change to a policy is inconsistent with their intent, is to be progressed through the Dispute Resolution Procedure in clause 29. Mr Eadie’s uncontested evidence is that such a dispute was lodged with the Commission and withdrawn.

Effect of Mandate in relation to Bodily integrity

[489] As I set out in CFMEU v BHP, the Full Bench in Mt Arthur Coal dealt with a contention by Union Interveners (including the AMWU and the CEPU) that the Mt Arthur SAR “at least impacts upon the choice of an individual to undergo a medical procedure” and hence engages the common law right to personal and bodily autonomy and integrity. 350  In relation to this right, the Full Bench cited the judgement of Mason CJ, Dawson, Toohey and Gaudron JJ in Secretary, Department of Health and Community Services (NT) v JWB and SMB (Marion’s Case),351 which identified a “right in each person to bodily integrity [t]hat is to say, the right to an individual to choose what occurs with respect to his or her own person”352.  As the Full Bench observed Marion’s Case concerned the power of the Family Court to authorise a medical procedure where there was no capacity for the person concerned to consent and was determined in circumstances where medical procedure undertaken without consent is a violation of the right to bodily integrity and prima facie an assault.353 The Full Bench in Mt Arthur Coal said (citations omitted):

[218] The existence of such a right is uncontroversial but the right is not violated by the terms of the Site Access Requirement. Unlike the circumstances in Marion’s Case, the Site Access Requirement does not purport to confer authority on anyone to perform a medical procedure on anyone else. As Beech-Jones CJ at CL said in Kassam v Hazzard:

‘It can be accepted that there is room for debate at the boundaries of what external factors might vitiate a consent to medical treatment so as to render the treatment a battery and a violation of a person’s right to bodily integrity. [...] People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault. So far as this case is concerned, a consent to a vaccination is not vitiated and a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site. Clauses 4.3 and 5.8 of [Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No. 2) 2021 (NSW)] do not violate any person’s right to bodily integrity any more than a provision requiring a person undergo a medical examination before commencing employment does.’ [Emphasis added]” 

[490] I note that the judgment of Beech-Jones CJ in Kassam v Hazzard was upheld by the Court of Appeal in New South Wales. 354 Further, on 12 August 2022, prior to the hearing of final submissions in this matter, the High Court refused an application by the Kassam applicants for special leave to appeal.355 As in that case, the Mandate in the present case, does not, force any employee to undergo vaccination and it remains open to an employee to decline to become vaccinated. It is also the case that absent medical contraindications, employees had a choice between being vaccinated and continuing to be employed. Consistent with the findings of the Full Bench the Mandate does not constitute coercion in the legal sense and is a form of economic and social pressure. I accept it is a difficult decision for employees to make, but it is a decision they are free to make, nonetheless. I do not accept that the difficulty of the decision faced by employees who choose not to comply with the Mandate should trump the rights of their fellow employees to work in an environment where every reasonable attempt has been made, consistent with the advice of the appropriate authority – ATAGI – to provide a safe workplace.

[491] Further, while the economic duress place on employees deciding not to comply with the Mandate is a relevant matter in assessing the reasonableness of the direction, it is not determinative of the question of reasonableness, but rather is a consideration to be weighed in the balance with the other relevant considerations. As also acknowledged by the Bench, the right to bodily integrity must be balanced against other rights. In my view those rights include:

•  the aforementioned rights of employees to work in an environment where every reasonable step has been taken to mitigate or minimise risks to their health and safety;

•  the rights of DP World to manage the risk flowing from their non-delegable duty to provide a safe work environment and systems of work to employees; and

•  the rights of DP World to manage its business and to ensure continuity of operations during a global pandemic.

[492] For reasons set out above, it is appropriate to apply the conclusions of the Full Bench in Mt Arthur Coal to the present case. It follows that the effect of the Mandate on the rights of employees to bodily integrity, is not of itself determinative of whether the SAR is unreasonable.

Whether DP World failed to comply with Privacy Act

[493] I do not accept that DP World failed to comply with the provisions of the Privacy Act. The MUA’s contention to the contrary on the part of the represented Applicants is that they have not genuinely consented to the provision of information about their vaccination status. It is not in dispute that such information is “sensitive information” as defined in section 6 of the Privacy Act, because it is “health information”.

[494] The MUA’s submissions in rely on APP 3.3 which requires that an individual consent to the collection of sensitive information. I do not accept that employees being informed that failure to provide information to establish their vaccination status will result in disciplinary action up to and including termination of employment, vitiates consent to provide that information. As the Respondents point out, they are obligated to inform employees about the consequences of failing to provide the information required. The Respondents have complied with this requirement. Just as economic pressure associated with the fact that failure to comply may result in termination of employment does not vitiate consent to be vaccinated and a person’s right to bodily integrity, it does not vitiate consent to provide sensitive information to an employer. The Full Bench in Mt Arthur Coal confirmed this is so when it determined that economic and social pressure applied to employees in relation to the SAR and the provision of sensitive information to their employer, was not coercion that vitiated consent on the part of employees, to provide sensitive information to their employer.

[495] Further, the interaction between the Privacy Act and the provision of information about vaccination status by employees was considered by Beech-Jones CJ in Kassam v Hazzard; Henry v Hazzard 356 in the passage set out above. Notwithstanding that this consideration was in the context of a public health order mandating vaccination, his Honour’s findings, confirmed on appeal357, are apposite in the present case. As noted above, the High Court refused an application by the Kassam applicants for special leave to appeal.358

[496] It is also the case that DP World has a comprehensive privacy policy. While not being specifically referred to the Policy, Employees were informed in numerous general communications that the information they provided would be kept confidential and that security systems were high, data would be encrypted and access limited to Human Resources personnel only. The Frequently Asked Questions document included a reference to privacy. Individual letters reminding employees about the need to provide evidence of vaccination also referred to privacy and confidentiality of information. These communications advised employees of the information DP World was collecting and the uses to which it would be put. It also advised employees of the ramifications of not providing the information. The requirement that employees provide sensitive medical information in those circumstances does not, of itself, render the Mandate unreasonable.

Effectiveness of the Mandate

[497] I do not accept the arguments advanced by the MEU about the effectiveness of the Mandate. To accept those arguments would be directly contrary to the factual findings made by the Full Bench in Mt Arthur Coal in relation to medical, epidemiological and scientific matters. As I have noted, those findings were made in relation to the same period in which the Mandate in the present case was implemented. The propositions mounted by the MUA are not arguable. I unreservedly accept the evidence of witnesses for DP World set out above, which I do not repeat, in relation to the operational matters which rendered other forms of controlling the spread of COVID – 19 less effective than vaccination and that vaccination is the most effective and efficient control.

[498] I also accept that none of the alternatives advanced by the MUA or the Applicants at the time they were dismissed, or in the present proceedings, provide an equal or better system of control. In particular, a requirement that unvaccinated workers undertake rapid antigen testing before commencing work does nothing to protect other persons in the workplace, or the unvaccinated. As the Full Bench in Mt Arthur Coal found, unvaccinated workers are more likely to catch COVID – 19 than vaccinated workers and increase the risk in a workplace that COVID – 19 will be spread to vaccinated workers and other unvaccinated workers. No evidence to the contrary was put in the present proceedings and applying the relevant findings in the decision in Mt Arthur Coal results in the same conclusion in relation to the efficacy and efficiency of vaccination as a control mechanism.

Further, the fact that DP World has allowed unvaccinated persons with approved contraindications to vaccination to enter the workplace is not a legitimate basis to find that the Mandate is not an effective control. The persons with approved contraindications to vaccination have complied with the Mandate by providing relevant documentation DP World Sydney and there is no basis to exclude those persons from the workplace. As Mr Eadie pointed out under cross-examination, the point of the Mandate is to limit as far as possible, the number of unvaccinated persons in the workplace. The fact that employees may be in contact with unvaccinated persons while going about their business in the community, is also not a legitimate basis for finding that the Mandate is unreasonable given the Medical, scientific and epidemiological findings made in Mt Arthur Coal.

Matters raised by self-represented Applicants

[499] In relation to the self-represented applicants, I commence by making some general findings. In their capacity as employers, the Respondents have a duty of to ensure, as far as is reasonably practicable, to ensure the health and safety of their employees. Employers have the right to implement policies and procedures consistent with their duty provided those policies and procedures are lawful and reasonable.

[500] The Fair Work Commission is not a Court. Members of the Fair Work Commission are bound by decisions of Full Benches of the Commission and by relevant decisions of other courts. Where an argument advanced to the Commission has been settled by a court or by a Full Bench of the Commission, then a single Member of the Commission should follow that precedent unless it can be distinguished on the facts. Many of the arguments advanced by the self-represented applicants have been determined by courts or Full Benches of the Commission in a manner that cannot be distinguished from this case and the conclusions in those matters are binding on me.

[501] Employees are subject to contracts of employment which consist of rights and obligations in legislation, industrial instruments (such as awards and enterprise agreements), written employment contracts (where they are entered into between an employer and employee) and matters that are agreed orally. The common law is derived from custom and decisions of courts rather than from legislation. The common law implies into every employment contract, an obligation to obey reasonable and lawful directions of an employer.

[502] Employers have a right to make such directions and employees have a right to choose whether to comply with them or not. An employee who has a personal belief that is in opposition to a lawful and reasonable policy implemented by an employer, must decide whether to comply with the policy. The fact that such a decision is made in circumstances where the employee may be disciplined or dismissed for refusing or failing to comply, does not mean that the employee has been coerced. Where an employer dismisses an employee and asserts that the dismissal is because the employee refused or failed to comply with a lawful and reasonable direction, and the employee makes an application for an unfair dismissal remedy, the Commission will generally find that a refusal to comply with such a direction is a valid reason for dismissal, unless (in summary):

1. The direction is found to be not lawful and reasonable;

2. The policy is irrational or nonsensical so that refusal to comply with it is not a valid reason for dismissal; or

3. The dismissed employee has a reasonable excuse for failing or refusing to comply.

[503] The case law about what constitutes a reasonable and lawful direction is set out elsewhere in this decision. It is conclusively established by a Full Bench of the Commission in Mt Arthur Coal that a decision by an employer to introduce a vaccination mandate (or a requirement however it is termed) to the effect that employees must be vaccinated against COVID – 19 to continue to work in a particular workplace, is on the surface, a lawful and reasonable direction with which employees must comply. This is so regardless of whether the existing contract of employment, award, or agreement contains such a provision.

[504] The Mandate implemented by DP World, is not, of itself, an unlawful or unreasonable direction simply because it mandates vaccination and provides that employees will be dismissed if they do not comply. I now turn to deal with the issues raised by the self-represented Applicants. Commencing with those raised by Mr Pintley, the fact that the Prime Minister may have stated that all Australians are responsible for their own health and that Australia does not have mandatory vaccinations, means that the Government is not mandating vaccination. This does not prevent employers from mandating vaccination in the workplaces they operate.

[505] A vaccination mandate in a workplace does not force any person to be vaccinated. A choice between having employment terminated for refusing without reasonable grounds, to comply with a lawful and reasonable direction or being dismissed, does not result in the employee confronted with that choice being coerced or subject to illegitimate pressure or manipulation. The employee concerned has the choice of complying or choosing not to comply with the result that his or her employment may be terminated. Where an employee is subject to a direction and chooses to be vaccinated as an alternative to being dismissed, the doctor who administers the vaccination is not liable for assault or battery or trespass against the person, and the employee has consented to vaccination, notwithstanding the pressure.

[506] The comment made by the former Health Minister Mr Greg Hunt has been twisted, misconstrued and misquoted. That is apparent when the full transcript of the interview is considered. The comment was made in the context of a criticism about how long the approval process for vaccinations had taken in Australia and the emphasis on safety of vaccines because of our thorough system of assessment. The comment was made after Mr Hunt emphasised that the international medical evidence at the time is that the safety impact of the two initial vaccines – Pfizer and AstraZeneca – for prevention of serious illness, hospitalisation and death, had been determined to be up to 100%. The reference to evidence and clinical trials was in relation to the transmission of vaccines and not their safety. What the Minister said, in its proper context, was as follows:

“You have coverage, you also have the question of the transmission capacity and impact, although the evidence coming out of the international studies now, both clinical trials and real world data, is that the different vaccines are showing a strong transmission impact.

But we always have to be aware of the capacity of the virus to mutate, and we have to look at what is called the longevity of the protection with regards to the antibodies that are developed and the world doesn’t know that answer.

The world is engaged in the largest clinical trial, the largest global vaccination trial ever, and we will have enormous amounts of data.

But what’s the message for the public? It’s safe, it’s effective, it will help protect you, but it will also help protect your mum, your dad, your grandparents, your nonna, all of Australia.”

[507] To attempt to parlay those comments into a basis to refuse to be vaccinated on safety grounds is in my view, clutching at straws. The issue is not whether the vaccinations provide immunity. The findings of the Full Bench in Mt Arthur Coal as set out above, which were made in relation to the circumstances that existed in Australia at or around the time that DP World implemented its Mandate, are that unvaccinated workers are more likely to catch COVID – 19 than vaccinated workers and increase the risk in a workplace that COVID – 19 will be spread to vaccinated workers and other unvaccinated workers. That is the view of the authority in Australia responsible for the approval of vaccinations and which formulated the Immunisation Guide referred to by several of the unrepresented Applicants in their submissions.

[508] Unvaccinated workers have every right to decide not to be vaccinated and to treat themselves with anti-viral medications (assuming they are prepared to pay for them or are eligible to receive them) if they contract COVID - 19. They do not have the right to expose their work colleagues to COVID – 19 by virtue of being more likely to carry the virus and therefore to infect others in the workplace. Any assertion that COVID – 19 has not proven to be a significant threat to human health on a “nationally significant scale” or to the “so called pandemic” is at best wrong and at worst disrespectful and offensive to the many thousands of Australians who have lost their lives in the Pandemic and to their families and loved ones and to the countless people who have suffered loss and detriment because of the impacts of the pandemic and measures to control its effect.

[509] Searching the internet will doubtless uncover many theories about wrongdoing and alleged criminality on the part of drug manufacturers, none of which are relevant to the safety and efficacy of vaccinations approved for use in Australia by ATAGI. As I have noted above, the fact that the vaccinations are provisionally approved, does not impact the validity and integrity of the approval process and nor does it cast doubt on the efficacy of the vaccinations.

[510] In relation to the alleged breach of privacy referred to by Mr Pintley, while I do not doubt that he was distressed by the list of names found in the workplace, I do not accept that this is a matter that is relevant to the validity of the reason for his dismissal. In short, there is nothing to establish that DP World was responsible for the list or that it was found in the workplace. Mr Pintley has not been in the workplace for some time and did not state how he came to be in possession of the list. There is no evidence that the list was created as a result of a Privacy Breach. While Mr Pintley was entitled to take issue with the existence of the list and raise it with the Respondent, this is not relevant to whether there was a valid reason for Mr Pintley’s dismissal. This does not mean that the list is irrelevant to the overall fairness or otherwise of the dismissal but simply that this is a matter relevant to the other matters required to be considered under s. 387, including that Mr Pintley did not receive a response to his grievance about the list. Further, the Respondent is not responsible for the conduct of Mr Dunn and Mr Pintley provides no evidence about how he came into possession of the text message he tendered in any event.

[511] Mr Eadie’s comments about Mr Pintley’s views on vaccination may also be relevant to other considerations in s. 387 but are not relevant to the validity of the reason for his dismissal. The fact that Mr Pintley was on Workers’ Compensation leave at the time the events which led to his dismissal arose, is also not relevant to the validity of the reason. Those matters go to procedural fairness considerations in s. 387. Mr Pintley was dismissed because he refused to comply with the Mandate and the fairness of his dismissal turns on whether this was a valid reason for dismissal. Mr Taylor’s evidence about this particular circumstance, while relevant to the procedural fairness of his dismissal and to mitigating factors, is also not relevant to whether there was a valid reason for his dismissal.

[512] Mr MacDonald has raised no issue going to the validity of the reason for his dismissal. For the reasons I have set out above, vaccinations approved for use in Australia (whether provisionally or otherwise) are not experimental gene technologies. Even if the allegations Mr MacDonald makes about regulatory agencies, governments and pharmaceutical companies are valid (which in my view they are not) such issues are not a matter for the Fair Work Commission and they are not relevant to the validity of the reason for Mr MacDonald’s dismissal. The Respondent is not required to guarantee that he will not suffer an adverse reaction or die because of being vaccinated or for the fact that a decision to be vaccinated will cause him pain by reason that his skin is broken with a needle. The Mandate does not result in Mr MacDonald being subject to illegitimate coercion or duress. He is free to refuse to be vaccinated for whatever reason just as DP World is free to implement a Mandate which results in Mr MacDonald’s choices rendering him unable to work for DP World.

[513] In relation to legal arguments advanced by Mr MacDonald:

•  For reasons set out above, the comments then Health Minister Mr Greg Hunt have been misconstrued (see above).

•  Special leave for the applicants in the Kassam v Hazzard litigation has been refused by the High Court ending the litigation in that case.

•  The medical conscription argument based on s. 51(xxiiiA) of the Constitution has been rejected by every court and the Fair Work Commission and as the Supreme Court of NSW – Court of Appeal put the matter in Kassam v Hazzard – is untenable as it applies to the provision of medical services and no doctor or dentist is being forced to do anything. As previously noted special to appeal this decision was refused by the High Court.

•  The Mandate is not binding on Mr MacDonald and he cannot be compelled against his will to be vaccinated. However the result of his refusal prevents him from working for DP World in circumstances where it has the right to implement the Mandate.

•  The Mandate is not a law of a State and it is not inconsistent with the Fair Work Act or any other law of the Commonwealth by virtue of s. 109 of the Australian Constitution.

•  A decision of the New Zealand High Court is not binding on the Fair Work Commission, Australia does not have a Bill of Rights and Mr MacDonald has pointed to no other legitimate or valid right that is infringed by the Mandate.

[514] Other matters raised by Mr MacDonald are dealt with elsewhere in this Decision. In relation to Mr Nemeth’s issues not otherwise dealt with in this decision, the Nuremberg Code has no relevance to the question of vaccination or the regime for approval of vaccinations in Australia. Suggestions that the Mandate in any way resembles the atrocities the Nuremberg Code was directed at are offensive to those who were subjected to them as is the assertion that the Mandate involves “Gestapo” like action. Not only is that assertion offensive to the victims of the Gestapo it is offensive to German people generally. The Criminal Code has no application to clinical trials and vaccinated persons are in any event, not participants in a clinical trial. The Biosecurity Act has no relevance as DP World does not need an order under that Act to issue the Mandate.

[515] Mr Nemeth and other persons who share his views have the right to decide to rely on their good health and natural immunity to safeguard their wellbeing and to refuse to be vaccinated. The majority of employees of the Respondents who do not share those views, or who are not as fortunate to be endowed with good health and natural immunity, are entitled to choose to comply with the Mandate and to go to work in an environment where all reasonable steps have been taken to minimise risk associated with transmitting and contracting COVID – 19. Further, a letter from the Therapeutic Goods Administration stating that it does not have copies of documents is not proof that the documents do not exist but only that the entity from which they were requested does not have such documents. Absent any explanation from Mr Nemeth about what the documents would demonstrate, it is equally probable that the documents are irrelevant to the work of the TGA or that they are irrelevant

Conclusion in relation to valid reason

[516] The represented Applicants and the Respondents are in furious agreement about the impact of the COVID – 19 Pandemic on Australia. As the MUA eloquently stated in post hearing written submissions, the COVID-19 Pandemic has had a devastating impact on our way of life. The MUA submits that the virus has sickened more than six million Australians and killed more than seven thousand. DP World submits that since March 2020 Australia has faced a pandemic of viral illness on a scale not seen since the Spanish Flu outbreak in 1918.

[517] After considering at length the evidence and submissions in this case, I have concluded that the Mandate was objectively a valid, sound, and defensible response to the circumstances confronting the Respondents in September 2021. I have also concluded that any failure on the part of the Respondents to consult employees as required by the WHS Acts and the terms of the relevant Enterprise Agreements, does not of itself necessitate a conclusion that a failure on the part of employees to comply with the Mandate was not a valid reason for the dismissal of the Applicants. For the reasons developed above, the Full Bench decision in Mt Arthur Coal does not necessitate that I reach the conclusion advocated by the MUA on behalf of the represented Applicants.

[518] Contrary to the submissions of the MUA the relevant point for considering whether there was a valid reason for dismissal is the date on which the Applicants were dismissed and not the date the Mandate was announced or implemented. In the case of the Sydney Applicants no dismissal took effect before 25 October 2021 with the majority taking effect on that date. In the case of the Brisbane Applicants no dismissal took effect before 8 November 2021 with the majority taking effect on 17 November 2022.

[519] I accept the comprehensive evidence advanced by the witnesses for DP World about the factual scenario that existed at the time the dismissals were effected. While the MUA witnesses and the self-represented Applicants took issue with the emphasis or weight that should be placed on those facts, no fact of any significance was disputed. The overwhelming weight of the evidence, which I do not repeat, establishes that at the time the Mandate was introduced and the dismissals were effected:

•  The Respondents operated 1/3 of the container terminals in Australia and its operations accounted for 42% of the National market share and 35 – 40 % in the East Coast Ports.

•  The economic and social costs of DP World not operating or being impacted at this time could have been devastating in terms of supplies of goods which included essential supplies of food and medical items as well as necessary goods to keep industry working and Australians employed.

•  In the second half of 2021, Sydney experienced an outbreak of COVID-19 caused by the Delta variant of the SARS-CoV-2 virus. The Delta variant was generally accepted to be more transmissible than the original (“Alpha”) form of the virus and appears to have had more severe health impacts.

•  From 6 September 2021 onwards, New South Wales was subject to various iterations of the Public Health (COVID-19 Self-Isolation) Order with close contacts required to isolate for up to 14 days.

•  On or around 15 September two employees at DP World Sydney tested positive for COVID – 19 which resulted in 35 employees being required to isolate at home for 14 days and another 53 employees being required to isolate until they received a negative PCR test graphically illustrating the effect on the Respondents’ operations.

•  This effect was compounded by the impact of restrictions on movement for unvaccinated persons outside local government areas which comprise a significant proportion of DP World Sydney’s Workforce.

•  The potential for such impact increased by the point that the Sydney dismissals took effect because of changes to the contact tracing requirements effective from 21 October which meant that unvaccinated persons were required to isolate for longer periods than those who were vaccinated.

•  It was likely that cases in Queensland would increase exponentially when borders opened and similar restrictions to those applicable in New South Wales may have been imposed at any time given the fluidity of the situation.

[520] In short compass, there were compelling reasons for DP World to introduce the Mandate and it is not to the point that other stevedoring companies did not take similar steps. It is also the case that consistent with the medical, scientific and epidemiological findings of the Full Bench in Mt Arthur Coal, vaccination was the most effective control to manage the adverse impacts of the virus.

[521] While consultation did not meet the requirements of the WHS Act and arguably the Enterprise Agreements, this is swamped by the contextual and factual circumstances demonstrated in the evidence before me. Any deficiencies in consultation are not determinative of whether there was a valid reason for the dismissal of the Applicants. This finding does not preclude a subsequent conclusion that all or some of the dismissals were unfair for other reasons based on procedural fairness and various potentially mitigating factors which will fall for consideration under ss. 387(b) – (h).

Next Steps

[522] The matter will be listed for a further mention to program subsequent proceedings and issue any necessary directions.

DEPUTY PRESIDENT

Appearances:

K Bond of the Construction, Forestry, Maritime, Mining and Energy Union – Maritime Union of Australia Division for 22 Applicants.
K MacDonald, Applicant.
Z Nemeth, Applicant.
J Pintley, Applicant.
R Taylor, Applicant.
S Crilly of Seyfarth Shaw Australia for the Respondents.

Hearing details:

2022.
Brisbane (by video):
March 30, 31 and September 9.

Final written submissions:

Applicants, 16 September 2022.
Respondents, 13 September 2022.

Printed by authority of the Commonwealth Government Printer

<PR749533>

SCHEDULE A

Applications: Represented by the Maritime Union of Australia Division of the Construction Forestry Maritime Mining Energy Union

Applications: Self-represented

 1   [2021] FWCFB 6059.

 2   Bishop v Bridgelands Securities Ltd (1990) 25 FCR 311 at 314.

 3   Exhibit MUA – 1 Witness Statement of Bradley John Dunn; Exhibit MUA – 2

 4   Exhibit MUA – 5 Witness Statement of Keiron Carty.

 5   Exhibit MUA – 3 Witness Statement of Matthew Lewis; Exhibit MUA – 4 Reply Witness Statement of Matthew Lewis.

 6   Exhibit A1 – Particulars of complaint of Adverse Action; Exhibit A2 – Response to Scott Eadie’s Statement.

 7   Exhibit A3 –Material filed by Mr Kevin MacDonald.

 8   Exhibit A5 – Material filed by Mr Zoltan Nemeth.

 9   Exhibit R1 – Statement of Mark Shallcross Hulme.

 10   Exhibit R2 – Statement of Scott Eadie dated 31/01/22; Exhibit R3 – Statement of Scott Eadie dated 14/02/22.

 11   Exhibit R4 – Statement of Benjamin Hanley dated 31/01.22; Witness Statement of Benjamin Hanley dated 14/02/22.

 12   Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986)162 CLR 24

 13   Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184.

 14   [2020] FWCFB 1373.

 15   Sydney Trains v Gary Hilder [2020] FWCFB 1373.

 16   CSL Limited T/A CSL Behring v Chris Papioannou [2018] FWCFB 1005.

 17   [2020] FWCFB 1373.

 18   [2021] FWCFB 3457.

 19   (1995) 185 CLR 410.

 20   Ibid at 430.

 21   Ibid at 465.

 22   (1938) 60 CLR 601.

 23   [2018] FCAFC 77; (2018) 262 FCR 527; (2018) 277 IR 23 at [187].

 24   (1938) 60 CLR 601 at 621–2.

 25   Op. cit. at [68] – [70].

 26   Op. cit. at [79] citing the observation of a Full Bench in Briggs v AWH Pty Ltd  [2013] FWCFB 3316.

 27   (1938) 60 CLR 601 at 622. See also NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [217] (Flick J).

 28   Op. cit. at [113].

 29   Ibid at [29]

 30   Ibid at [60] – [61].

 31   Op. cit. at [102] – [104].

 32   Op. cit. at [174].

 33   [2010] FCAFC 150; [2010] 204 IR 42.

 34   Transcript PN837.

 35   Transcript PN862 – 863.

 36   Transcript PN867 – 869.

 37   Exhibit R1 Annexure MSH2.

 38   Ibid Annexure MSH3.

 39   Ibid at Court Book page 623l.

 40   Exhibit R2 Annexure SE-003.

 41   Exhibit R2 Annexure SE-002.

 42   Exhibit R2 Witness Statement of Scott Eadie dated 31 January 2022 Annexure SE-004.

 43   Exhibit R2 Witness Statement of Scott Eadie 31 January 2021 Annexure SE – 006.

 44   Exhibit R4 Annexure BCH – 1 – Selection of bulletins published to DP World Brisbane employees.

 45   Exhibit R4 Annexure BCH – 2.

 46   Exhibit R4 Annexure BCH – 4.

 47   Transcript PN1253 – 1261.

 48   Transcript PN899.

 49   Transcript PN900.

 50   Transcript PN918.

 51   Transcript PN922.

 52   Transcript PN926.

 53   Transcript PN931.

 54   Transcript PN1039 - 1041

 55   Transcript PN1050.

 56   Transcript PN955.

 57   Transcript PN961.

 58   Transcript PN1077.

 59   PN1233 – 1234.

 60   Transcript PN1278 – 1280.

 61   Transcript PN1283 – 1285.

 62   Transcript PN1398 – 1402, 1428 – 1430. 1438 – 1440..

 63   Transcript PN1672 – 1673.

 64   Transcript PN1679 – 1684.

 65   Exhibit R3- Witness Statement of Scott Eadie dated 14/02/22 Annexure SE 024.

 66   Exhibit MUA 1 Annexure BD3.

 67   Exhibit MUA 3 Annexure ML4.

 68   Exhibit R3 Annexure SE025.

 69   Transcript PN1306 – 1308.

 70   Transcript PN1351 – 1354.

 71   Transcript PN1367 – 1369.

 72   Exhibit A2 Annexure A003.

 73   Exhibit R3 Annexure SE025.

 74   Transcript PN1734 – 1779.

 75   Exhibit R4 Annexure “BCH – 12”.

 76   Exhibit R4 Statement of Benjamin Hanley Annexure BCH – 12.

 77   Exhibit R4 Annexure BCH – 12.

 78   Transcript PN1095 – 1098.

 79   Transcript PN1705 – 1707/

 80   Transcript PN1714 – 1715.

 81   Exhibit R2 Statement of Scott Eadie paragraph 57.

 82   Transcript PN158.

 83   Transcript PN164.

 84   Transcript PN165 – 166.

 85   Transcript PN169 – 178.

 86   Transcript PN181.

 87   Transcript PN211 – 217.

 88   Transcript PN242 – 245.

 89   Transcript PN259 – 263.

 90   Transcript PN300 – 304.

 91   Transcript PN136.

 92   Transcript PN338.

 93   Transcript PN338 – 339.

 94   Transcript PN343.

 95   Exhibit 4 Reply Witness Statement of Mathew Lewis Annexure ML5.

 96   Transcript PN453 – 455.

 97   Exhibit A2 Annexure A001.

 98   Exhibit A2 Annexure A003.

 99   Ibid Annexure A007.

 100   Ibid Annexure A011.

 101   Exhibit A2 Annexure A012.

 102   Transcript PN571.

 103   Transcript PN575.

 104   Transcript PN661.

 105   Mt Arthur Coal op. cit. at [103].

 106   Mt Arthur Coal op. cit. at [157].

 107   (1984) 154 CLR 472, at 493-494, cited in QR Ltd at [14].

 108   Mt Arthur Coal op. cit. at [198] citing (1984) 154 CLR 472.

 109   Exhibit MUA 1 Witness Statement of Brad Dunn paras [25] – [28].

 110   Privacy Act, s.15.

 111   Construction, Forestry, Maritime, Mining and Energy Union & Ors v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA & Ors [2022] FWC 81 (21 January 2022).

 112   Ibid at [25].

 113   Ibid at [152].

 114   Exhibit MUA 5 Witness Statement of Keiron Carty at [15] and Annexure “KC – 3”.

 115   BHP Coal op. cit. at [164].

 116   Ibid at [162].

 117   https://www.afr.com/work-and-careers/workplace/wharfies-sacked-for-refusing-covid-19-jab-20211031-p594mx

 118   https://www.abc.net.au/news/2021-12-15/nsw-covid-restrictions-ease-for-vaccinated-and-unvaccinated/100685704)

 119   [2021] FWCFB 6059 at [108].

 120   Transcript at PN837.

 121   ‘Energy – Overview’, Geoscience Australia (Web Page) < https://www.ga.gov.au/scientific-topics/energy/overview>.

 122   Transcript at PN801.

 123   Transcript at PN800.

 124   [2021] FWCFB 6059.

 125   Respondents’ closing submissions at [6.21] (p. 32).

 126   Op. cit. at [62].

 127   PN454.

 128   Witness Statement of Scott Eadie at [65], Court Book p. 422.

 129   Witness Statement of Scott Eadie at [72] – [76], Court Book p. 424.

 130   Ibid at [84], Court Book p. 425.

 131   Ibid at [74], Court Book p. 424.

 132   Respondents’ closing submissions at [3.24] (p. 11); [6.27] (p. 34); and [6.29] (p. 35).

 133   Respondents’ closing submissions at [5.9] (p. 19)

 134   Respondent’s Closing submissions at [5.24] (p. 26).

 135   PN897 – 900.

 136   Mount Arthur Coal at [156].

 137   ibid at [172].

 138   ibid.

 139   ibid at [157].

 140   See for example Larter v Hazzard (No 2) [2021] NSWSC 1451 at [62] - [64].)

 141   Exhibit R1 – Statement of Mark Shallcross Hulme dated 28 January 2022 at [64].

 142   Exhibit R2 – Statement of Scott Eadie dated 31 January 2022 at [80] - [83].

 143   Exhibit R4 – Statement of Benjamin Charles Hanley dated 31 January 2022 at [72] - [73].

 144   Cox v DP World Brisbane Pty Ltd [2021] FCA 1335.

 145   Exhibit R4 – Hanley Annexure BCH-17 p. 114.

 146   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 147   Miller v University of New South Wales [2003] FCAFC 180 at [13] - [15] per Gray J.

 148   Miller at [64] per Gyles and Ryan JJ; Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.

 149   (2013) 238 IR 1, [2013] FWCFB 6191 at [36].

 150   See also NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [216].

 151   (1938) 60 CLR 601 at 621 - 622.

 152   Briggs v AWH Pty Ltd [2013] FWCFB 3316 at [8].

 153   Exhibit R4, Statement of Benjamin Charles Hanley dated 31 January 2022 at [41]-[42] CB 278.

 154   Maritime Union of Australia (A Division of the Construction, Forestry, Maritime, Mining and Energy Union), COVID-19 - Waterfront Workers Information (27 March 2020) https://www.mua.org.au/news/covid-19-waterfront-workers-information, accessed 28 April 2022.

 155   Exhibit R1, Statement of Mark Shallcross Hulme dated 28 January 2022 at [13] CB 536.

 156   Exhibit R1, Hulme at [4] CB 535. The apparent discrepancy between this and the 35-40% figure for market share in the East Coast ports is DP World’s 49% market share in Fremantle, where there are only two terminals: see [14] CB 537.

 157   Exhibit R1, Hulme at [9] CB 536.

 158   That is, four of the nine berths: Exhibit R4, Hanley at [9] CB 273.

 159   Hulme at [19] - [23].

 160   Hanley at [18] - [19]; Eadie at [25].

 161   Hanley at [21] - [22]; Eadie at [27] - [28].

 162   See also Australian Competition and Consumer Commission, Container stevedoring monitoring report 2020-21, 4 November 2021, https://www.accc.gov.au/publications/container-stevedoring-monitoringreport/container-stevedoring-monitoring-report-2020-21> pp. 11 - 20.)

 163   Hulme at [4].

 164   Hanley at [23]; Eadie at [24].

 165   See Queensland Government, Queensland COVID-19 statistics, Queensland COVID-19 statistics | Health and wellbeing | Queensland Government (www.qld.gov.au).

 166   Eadie at [45] - [46], SE-006 pp. 28 - 31.

 167   McManus v Scott-Charlton (1996) 70 FCR 16 at 27.

 168   Eadie at [72] - [76], SE-016 p. 56.) Darling Island Stevedoring (at 622)

 169   See e.g. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449 - 450.

 170   Cosmos: A Personal Voyage, ‘Encyclopaedia Galactica’, Public Broadcasting Service, 14 December 1980.

 171   Mt Arthur Coal op. cit. at [85].

 172   Ibid at [188].

 173   Ibid at [201].

 174   That is, consultation clauses ultimately drawn from the Terminal, Change and Redundancy Case (1984) 8 IR 35 and (1984) 9 IR 115.

 175   Witness statement of Benjamin Charles Hanley dated 31 January 2022 at [62].

 176   Second Eadie Statement at [19], SE-025 (p. 46 - 55).

 177   (2017) 268 IR 285, [2017] FWCFB 3005 at [114].

 178   (2014) 245 IR 384, [2014] FWCFB 7889.

 179   Mt Arthur Coal at [217] - [218]; see also Kassam v Hazzard (2021) 393 ALR 664, [2021] NSWSC 1320 (Kassam v Hazzard SC) at [63]; Kassam v Hazzard (2021) 396 ALR 302, [2021] NSWCA 299 (Kassam v Hazzard CA) at [96] and [98] per Bell P.

 180   Mt Arthur Coal at [222].

 181   Department of Health & Community Services v JWB (1992) 175 CLR 218.

 182   Office of the Australian Information Commissioner, Australian Privacy Principles guidelines, Chapter B: Key concepts at [B.47].

 183   Kassam v Hazzard SC at [63]. Upheld on appeal in Kassam v Hazzard CA.

 184   [2022] FWC 81 at [156] - [158].

 185   (2019) 287 IR 368, [2019] FWCFB 2946.

 186   Exhibit R3 at SE-026 (p. 56ff); Exhibit R5 at BCH-22 (p. 17ff).

 187   Exhibit R 5 at [12(b)(ii)], BCH-19 (p. 5 -7).)

 188   Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14.

 189   Op. cit. at [136].

 190   Kassam v Hazzard SC at [261] - [286]; Kassam v Hazzard CA at [38] - [40].

 191   Wong v Commonwealth (2009) 236 CLR 573, [2009] HCA 3 at [60].)

 192   [2021] FWC 6587 at [26].

 193   Kassam v Hazzard CA at [166] - [167].

 194   Commonwealth Department of Health, Interview with David Speers on ABC Insiders on the COVID-19 vaccine rollout, 21 February 2021 Interview with David Speers on ABC Insiders on the COVID-19 vaccine rollout | Health and Aged Care Portfolio Ministers.)

 195   (2015) 256 CLR 171, [2015] HCA 11.

 196   Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [40] - [44]; quoting inter alia Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, [2014] HCA 32 at [1].

 197   Exhibit R3 – Second Eadie Statement at [24].

 198   Respondent’s outline of submissions dated 31 January 2022 at [10] CB 247.

 199   Exhibit R1, Hulme MSH-2 CB 612ff.

 200   Exhibit R1, Hulme at [32]-[33] CB 540-541.

 201   Exhibit R1, Hulme MSH-7 CB 641 - see question 24.

 202   Exhibit R2, Statement of Scott Eadie dated 31 January 2022 at [39] CB 417.

 203   Exhibit R1, Hulme at [36].

 204   Exhibit R2, Eadie at [45]-[46].

 205   Exhibit R2, Eadie SE-0006.

 206   Exhibit R4, Hanley at [44].

 207   Transcript PN1181 (Eadie XN).

 208   Exhibit R4, Hanley at [57]; Transcript PN1398-1402 (Eadie RXN).

 209   See Transcript at PN1222-1224 (Eadie XXN), PN1396-1402 (Eadie RXN), PN1428-1432 (Eadie FXXN), PN1611-1612 (Hanley XXN).

 210   Exhibit MUA3, Statement of Matthew Lewis dated 31 January 2022 at [10] CB 111.

 211   Transcript PN1432 (Eadie FXXN).

 212   Exhibit MUA1, Dunn BD3 CB 219, emphasis in original.

 213   Exhibit R1, Hulme at [55] CB 546; Exhibit R4, Hanley at [60] CB 282; Exhibit R2, Eadie at [66] CB 423; Exhibit MUA3, Lewis at [17] CB 112; Exhibit MUA1, Dunn at [10] CB 128-129; Exhibit MUA5, Witness statement of Keiron Carty dated 31 January 2022 at [10] CB 233-234.

 214   Transcript PN943 (Hulme XXN). Mr Hulme answered to the effect that there were to be further discussions.

 215   Exhibit MUA1, Dunn at [11] CB 129.

 216   Exhibit MUA5, Carty at [13] CB 234.

 217   If indeed they are reflective of words actually said, rather than general mistrust or “the vibe”.

 218   Exhibit R1, MSH-8 CB 642.

 219   Exhibit R1, MSH-7 CB 640-641.

 220   The matter is not, as Mr Dunn implied, one of simply choosing between the personal risks of getting COVID-19 versus that of an adverse vaccine reaction. It is not reasonable to expect to have an unfettered personal choice to be unvaccinated, have a higher risk of contracting COVID-19 and bringing it to work, and as a result make other employees sick and/or require them to isolate as contacts.

 221   The position in Victoria is at least potentially different as regards government mandates, due to that State’s Charter of Rights and Freedoms: see Harding v Sutton [2021] VSC 741 at [161]. The case was never finally determined and there is no such legislation in the jurisdictions presently relevant.

 222   (2021) 393 ALR 664; (2021) 362 FLR 113; [2021] NSWSC 1320. On appeal to the same effect, see Kassam v Hazzard (2021) 396 ALR 302; (2021) 311 IR 233; [2021] NSWCA 299.

 223   Exhibit R2, Eadie at [65]; Exhibit MUA3, Statement of Matthew Lewis dated 31 January 2022 at [11]-[12]; Exhibit MUA1, Statement of Bradley Dunn dated 31 January 2022 at [10].

 224   Exhibit R2, Eadie at [65].

 225   Exhibit MUA3, Lewis at [14]..

 226   Transcript PN413-419 (Lewis XXN).

 227   Such as employees who did not wish to be vaccinated, in circumstances where they doubtless had their own reasons but there is zero evidence that any Applicant medically could not be vaccinated.

 228   Work Health and Safety Act 2011 (NSW) and Work Health and Safety Act 2011 (Qld) ss 19(1) and (3)(a) in each case.

 229   Exhibit MUA2, Reply Statement of Bradley Dunn dated 14 February 2022 (Dunn Reply) at [6]-[7] CB 230.

 230   Transcript PN294-296 (Dunn XXN).

 231   Exhibit R4, Hanley at [62].

 232   Exhibit R2, Eadie at [62].

 233   Exhibit R5, Reply Statement of Benjamin Charles Hanley dated 14 February 2022 (Hanley Reply) at [9(c)-(d)] CB 389.

 234   Exhibit MUA4, Reply statement of Matthew Lewis dated 14 February 2022 ML5.

 235   Exhibit R2, Eadie at [72]-[76].

 236   Exhibit R2, Eadie at [38], [40]; Exhibit R4, Hanley at [35].

 237   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 238   Miller v University of New South Wales [2003] FCAFC 180 at [13] - [15] per Gray J.

 239   Miller at [64] per Gyles and Ryan JJ; Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.

 240   See B v Australian Postal Corporation (2013) 238 IR 1; [2013] FWCFB 6191 at [36].

 241   WHS Acts s 28(c).

 242   WHS Acts s 28(d).

 243   DP World Brisbane Enterprise Agreement 2020 and DP World Sydney Enterprise Agreement 2020 Part A, clause 21.2.2.

 244   (1938) 60 CLR 601 at 621-622.

 245   (2021) 310 IR 399; [2021] FWCFB 6059.

 246   Union Closing Submissions at [8], emphasis added.

 247   Outline of reply submissions dated 14 February 2022 at [13] CB 254; Mt Arthur Coal at [96].

 248   Mt Arthur Coal at [84]-[85], [94].

 249   Mt Arthur Coal at [188].

 250   Mt Arthur Coal at [191].

 251   Mt Arthur Coal at [201].

 252   Mt Arthur Coal at [249].

 253   WHS Act s 47(1).

 254   WHS Acts s 12A.

 255   Thus, for instance, the High Court in R v Adams (1935) 53 CLR 563 held at 567-568 that where penal legislation is ambiguous, “it ought not to be construed as extending any penal category”.

 256   Mt Arthur Coal at [113].

 257   Mt Arthur Coal at [114].

 258   See especially Transcript PN 243 (Dunn XXN). See also Transcript PN234, PN256 (Dunn XXN), PN1153 (Hulme RXN).

 259   Exhibit R4, Hanley at [79(e)] CB 285.

 260   See e.g. O’Toole v Australian Community Support Organisation Ltd [2022] FWC 477 at [77]; Hadjipavli v Dnata Airport Services Pty Ltd [2022] FWC 1013 at [46].

 261   Union Closing Submissions at [18]-[20]. DP World neither accepts that it can only prevail on the basis outlined, nor expects a single Member to depart from recent Full Bench authority. As is entirely conventional, it is required to record submissions that it may wish to advance in the event of any appeal - where a subsequent Full Bench might be invited to revisit such authority - so it cannot be put against it that the submissions underlying its appeal grounds were not advanced at first instance.

 262   Mt Arthur Coal at [172].

 263   Transcript PN880, PN910 (Hulme XXN).

 264   Union Closing Submissions at [22].

 265   UCS at [23].

 266   Transcript PN867 (Hulme XXN), PN1563-1572 (Hanley XXN).

 267   Mt Arthur Coal at [168].

 268   Browne v Dunn (1893) 6 R 67 at 70-71 per Lord Herschell.

 269   Ibid at [39] per Gummow, Kirby and Callinan JJ.

 270   Jones v Dunkey (1959) 101 CLR 2198 at 321 per Windeyer J, citing R v Burdett (1820) 4 B & Ald 95 at 161-162 per Abbott CJ.

 271   See Hail Creek Coal Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2004) 143 IR 354 at [48]-[50]. The approach in Hail Creek has been applied many times by the Commission - see e.g. Mackie v BHP Coal Pty Ltd [2013] FWCFB 8210 at [28]-[29] and Wong v Taitung Australia Pty Ltd (2017) 268 IR 145; [2017] FWCFB 990 at [31].

 272   Evidence Act 1995 (Cth) s 164(1).

 273   Exhibit MUA5, Carty at [12] CB 234.

 274   Transcript at PN731-732 (Carty XXN).

 275   Transcript at PN733-734 (Carty XXN).

 276   Transcript at PN1038-1039 (Hulme XXN).

 277   Exhibit R5, Hanley Reply at [6] CB 388-389; Transcript PN1041 (Hulme XXN), PN1208-1212 (Eadie XXN), PN1584 (Hanley XXN).

 278   Exhibit R3, Eadie Reply at [16] CB 475.

 279   See UCS at [29].

 280   Ibid.

 281   Compare Exhibit R2, Eadie at [9]-[22] CB 411-414; Exhibit R4, Haney at [10]-[19] CB 273-275. As regards automation compare Hanley [8] and [13] CB 273 and Eadie [14]-[15] CB 412.

 282   Transcript PN735 (Carty XXN).

 283   Transcript PN1126, PN1147 (Hulme RXN).

 284   Exhibit R1, Hulme MSH-2 CB 613: “A regional COVID-19 assessment of at-risk groups and activities and prevention measure [sic] has been completed in the prevention measures section of this plan, this will be updated as new information becomes available.” The measures (i.e. controls) are then listed under the hearings of Personal Hygiene, Cleaning, Traven and Conferences, Social Distancing, Personal Protective Equipment, and Procurement, Vendor and Contractor Management.

 285   NSW Government, How to manage work health and safety risks (August 2019) at [1.2] p. 8; Workplace Health and Safety Queensland, How to manage work health and safety risks Code of Practice 2021 at [1.2] p. 8.

 286   Whatever the impact of the new variant on vaccines’ protection against transmission, there is little doubt that they are effective in reducing the likelihood of serious illness or death.

 287   Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWC 6309 (Mt Arthur Interlocutory Decision) at [27]

 288   The remaining two DP World terminals in Fremantle and Melbourne being subject to State government mandates requiring vaccination.

 289   For completeness, the CEPU does have some members at DP World Brisbane.

 290   Mt Arthur Interlocutory Decision at [30].

 291   Exhibit R2, Eadie at [42] CB 417; Exhibit R3, Reply Statement of Scott Eadie dated 14 February 2022 (Eadie Reply) at [6] CB 473-474.

 292   Mt Arthur Interlocutory Decision at [29].

 293   Exhibit R1, Hulme at [65(b)(i)] CB 547; Exhibit R2, Eadie at [65(a)] CB 424.

 294   Exhibit R4, Hanley at [54] CB 281.

 295   Exhibit R4, Hanley at [25]-[26] CB 276.

 296   See closing written submissions of Jason Pintley at [2].

 297   Transcript PN240-243 (Dunn XXN).

 298   WHS Acts s 19(3)(a).

 299   WHS Acts Part 4, Division 5.

 300   WHS Acts s 27.

 301   Mt Arthur Coal at [231], quoting Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 305; [2001] HCA 6 at [52].

 302   Union submissions dated 31 January 2022 at [37] CB 95, in the context of the applicable enterprise agreement.

 303   See e.g. WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81; [2001] NSWIRComm 50 at [45] per Walton VP and Boland J: “The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable”. Employers who seek to escape liability by blaming an injured or deceased worker fare poorly - see e.g. Morgenthal v Houghton [2010] NSWIRComm 192 at [75]-[77]. As a recent example where a worker’s own actions did not prevent prosecution, see Orr v Cobar Management Pty Ltd [2019] NSWDC 224, where the Defendant was acquitted only after a lengthy trial (and a further attempt to refer the matter to the Court of Criminal Appeal - see (2020) 103 NSWLR 36; [2020] NSWCCA 220) notwithstanding the matters the court summarised by the District Court at [303]-[306].

 304   (2005) 145 IR 285 at [24].

 305   Exhibit R2, Eadie at [11], [15], [17], [21] CB 412-413; Exhibit R4, Hanley at [18]-[19] CB 274-275.

 306   Exhibit R2, Eadie at [24]-[25] CB 413-414; Exhibit R4, Hanley at [23] CB 276.

 307   Exhibit R1, Hulme at [15]-[26] CB 537-539.

 308   Exhibit R4, Hanley at [26] CB 276.

 309   Exhibit R2, Eadie at [12] CB 412.

 310   Exhibit R1, Hulme at [33] CB 540-541; Exhibit R2, Eadie at [12] CB 412; Exhibit R4, Hanley at [19(b)] CB 274-275..

 311   Exhibit R2, Eadie at [39] CB 417.

 312   Exhibit R2, Eadie at [30] CB 416.

 313   Including restrictions on the ability for children to attend at childcare or schools, and discrimination in eligibility for Family Tax Benefit payments - “No Jab No Play” and “No Jab No Pay”, respectively..

 314   While Mr Dunn said in his statement that DP World refused “legitimate” medical certificates (Exhibit MUA1, Dunn at [24] CB 130), in cross-examination he rejected the notion that he was asserting that a “legitimate” certificate is necessarily “valid”. He ultimately indicated that a “legitimate” medical certificate was simply one in a proper form: Transcript PN190-192 (Dunn XXN).

 315   PN974-975 (Hulme XXN).

 316   (1938) 60 CLR 601 at 622.

 317  Outline of reply submissions dated 14 February 2022 at [4]-[5] CB 252-253.

 318   It may have required consultation under the Enterprise Agreements, matter on which the Union’s closing submission is silent. If it did, then on any view DP World complied with them, as consultation under these instruments plainly permitted (and only required) after the making of a “definite decision”.

 319   Mr Eadie does not give evidence of who made the complaint - this comes from Mr Lewis’s reply statement dated 14 February 2022 (Exhibit MUA4), at [3] and ML5.

 320   Exhibit R2, Eadie [72]-[76].

 321   Exhibit MUA1, Dunn at [8].

 322   WHS Acts s 152(a) and (e), and 160 as to Inspectors’ functions.

 323   Exhibit MUA4, Lewis Reply at [4].

 324   Transcript PN310-318 (Dunn XXN).

 325   See Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2020] FWC 4623, which was a stand-down dispute relating to a period when a ship could not be worked at DP World Sydney due to prohibition notices issued by the Inspector concerned.

 326   Exhibit MUA2, Reply statement of Bradley Dunn dated 14 February 2022 at [8] CB 230.

 327   Transcript PN310 (Dunn XXN). When asked to confirm that the inspectors did not require DP World to re-do the risk assessment in the way that the union wanted - which is obviously correct - Mr Dunn said “Well, basically what [the Inspector] aid was that consultation’s a loose term, basically said that, ‘It happened to me at my work, they can just tell you what to do, it’s not been good, but there’s not much we can do about it.’”

 328   Exhibit R2, Eadie SE-016 CB 465.

 329   WHS Acts s 160.

 330   Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J.

 331   Exhibit MUA4, Lewis Reply ML5 CB 126.

 332   Exhibit R2, Eadie at [74]-[75] CB 424.

 333   Darling Island Stevedoring at 622 per Dixon J, emphasis added.

 334   Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 3(b), 41(1).

 335   Exhibit A1, Mr Pintley’s “Particulars of Complaint of Adverse Action in Breach of the Fair Work Act 2009” A003 CB 52-56.A007 CB 6

 336   Transcript PN215-218 (Dunn XXN).

 337   See e.g. Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd (2017) 268 IR 285; [2017] FWCFB 3005 at [62].

 338   Transcript PN198 (Dunn XXN).

 339   Berri at [65], quoting Kucks v CSR Ltd (1996) 66 IR 182 at 184.

 340   Transcript PN259 (Dunn XXN).

 341   Union’s submissions dated 31 January 2022 at [38] CB 95.

 342   Transcript at PN255 (Dunn XXN).

 343   Exhibit R5, Hanley Reply at [16], BCH-22; Exhibit R3, Eadie Reply at [30], SE-026.

 344   Transcript at PN173, PN177-178 (Dunn XXN).

 345   Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430; Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 471; Lane v Arrowcrest Group Ltd (1990) 27 FCR 427 at 455-456; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14:

 346   See reference at <http://diseasecontrol.health.qld.gov.au/condition/837/covid-19>.

 347   ‘Coronavirus (COVID-19) – CDNA National Guidelines for Public Health Units”, Department of Health and Aged Care, <https://www.health.gov.au/resources/publications/coronavirus-covid-19-cdna-nationalguidelines>.

 348   Ibid at [24].

 349   Newton v Toll Transport Pty Ltd [2021] FWCFB 3457.

 350   Op. cit. at [215]/

 351   (1992) 175 CLR 218.

 352   Ibid at 233.

 353   Ibid.

 354   [2021] NSWCA 299.

 355   Al-Munir Kassam and Others v Bradley Hazzard and Others No. S3 of 2022 [2022] HCATrans 131.

 356   [2021] NSWSC 1320.

 357   Kassam and Others v Hazzard and Others; Henry and Others v Hazzard (20210 396 ALR 302; (2021) 311 IR 233; [2021] NSWCA 299.

 358   Al-Munir Kassam and Others v Bradley Hazzard and Others No. S3 of 2022 [2022] HCATrans 131.