FairWorkAct 2009
s.739—Dispute resolution

Lyndon Clark
v
Port Authority of New South Wales
(C2022/1316)

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – introduction of a policy requiring vaccination against COVID-19 – whether direction is lawful and reasonable – dispute resolution procedure – jurisdictional objection – whether all mandatory steps of dispute resolution have been complied with – requirement to discuss the dispute with the line manager – employer direction that the employee contacts a different manager to pursue his grievance – mandatory steps of dispute resolution procedure met – adequate consultation – policy not unreasonable – policy contained a lawful and reasonable direction.

Background

[1] Mr Lyndon Clark is a Marine Pilot employed by Port Authority of New South Wales to pilot vessels in Sydney Harbour and Port Botany. In December 2021 the Port Authority of New South Wales introduced a COVID-19 Control Policy requiring its employees, including marine pilots, to be vaccinated against COVID-19.

[2] Mr Clark is not vaccinated. Mr Clark has been disciplined about his failure to comply with the COVID-19 Control Policy (“Policy”) and faces imminent dismissal. The Port Authority of New South Wales Sydney Marine Pilots Enterprise Agreement 2019-2023 (“the Agreement”) applies to Mr Clark’s employment, as does the new Policy. A dispute is said to have arisen about the application of the Agreement in relation to the Policy.

[3] Mr Clark alleges that the direction contained within the Policy is not a reasonable direction. He claims that the terms of the Agreement allow him to challenge the reasonableness of the direction in the Fair Work Commission, that the Commission can and should declare that the direction was not reasonable, and that the status quo provisions within the dispute resolution procedure in the Agreement require the Port Authority to rescind its show cause and termination notices.

[4] The Port Authority says that the jurisdiction of the Commission has not been properly engaged, that it properly consulted with relevant stakeholders before introducing the Policy, that the Policy constitutes a lawful and reasonable direction, and that the Commission should find in the Port Authority’s favour so that it can finalise its disciplinary process against Mr Clark.

[5] For the reasons that follow I find:

(a) the terms of the dispute resolution procedure in the Agreement have been met and Mr Clark’s application properly engages the jurisdiction of the Commission to deal with the dispute;

(b) the Port Authority adequately consulted with its workforce, including Mr Clark, prior to introducing the Policy;

(c) the Policy is not unreasonable because of any shortfall in the Port Authority’s consultation processes; and

(d) the Policy is otherwise a lawful and reasonable direction in the circumstances of the time at which the direction was given.

Jurisdictional Objection

Clause 1.2.2

[6] The Port Authority argued that the Commission was not properly seized of jurisdiction to deal with Mr Clark’s dispute because Mr Clark had not undertaken one of the mandatory steps under the dispute resolution procedure in the Agreement. The Port Authority argued that it was incumbent upon Mr Clark to make good the proposition that the Commission’s jurisdiction exists and that “it is not for [the Port Authority] to assist of Mr Clark in establishing, as a matter of fact, the necessary preconditions to the exercise of the FWC’s powers to hear and determine the application.”

[7] The relevant clauses of the Dispute Resolution Procedure in the Agreement are:

“2.7.3 The matter in dispute shall, in the first instance, be discussed between the Marine Pilot(s) and their line Manager for resolution.

2.7.4 If the matter is still not resolved, then the matter can be referred to the Marine Pilot(s) elected representatives and the Harbour Master.

…

2.7.6 If a resolution cannot be reached any outstanding dispute may then be referred by either party to the FWC for conciliation and / or arbitration. Each party will be bound by the decision of the FWC subject to either party exercising their right of appeal to the Full Bench of the FWC.

…

2.7.8 During a dispute under this clause, the parties agree that work will continue on the basis that it was conducted before the dispute commenced.”

[8] The Port Authority is a State-Owned Corporation and presumably subject to the NSW Government’s model litigant policy. The Port Authority’s jurisdictional objection is without merit, wasted considerable hearing time and unnecessarily caused Mr Clark to incur additional legal expense to defend.

[9] Specifically, the Port Authority argued that Mr Clark failed to “discuss” his dispute with his line manager “for resolution” (per clause 2.7.3) and therefore was not entitled to refer the dispute to the Commission (per clause 2.7.6).

[10] On 14 December 2021 Mr Clark sent an email to Mr Fernandes in terms that explicitly invoked and unambiguously enlivened the Dispute Settlement Procedure under the Agreement. Mr Clark’s email included the following:

“I would like to invoke the dispute resolution clause in our EA with regards to the PANSW COVID‐19 Control Policy and the following issues;

1. This policy constitutes a major change under clause 1.3.2.

2. The direction of the policy is not reasonable nor lawful.

3. Consultation and consideration with the Marine Pilots Representatives was not genuine or in good faith.

4. The risk assessment process was not completed prior to the drafting of the PANSW COVID‐19 Control Policy as is required by SafeWork NSW

Currently I will be representing myself in this matter but should this change, I will inform you at the earliest convenience.

I would also like to remind you and the Port Authority of clause 2.7.8 from our EA as is copied below.

1. 2.7.8 During a dispute under this clause, the parties agree that work will continue on the basis that it was conducted before the dispute commenced.

As such, subject to my current sick leave, I expect that work shall continue for myself and everyone else affected by this policy as was before the policy was enforced until the dispute resolution process has concluded.

Please let me know how you would like to proceed with this request.”

[Emphasis added]

[11] Mr Clark received an email from Mr Josh Keech, who is the Head of People & Culture for the Port Authority. Mr Keech’s email included the following:

“Without prejudice

Hi Lyndon

Port Authority confirms receipt of your email today to Myron Fernandes in relation to a dispute. I am the point of contact for this dispute and please direct any further correspondence to me.

Port Authority is comfortable with its approach. We have consulted on this policy widely and genuinely, and am confident in our ability to defend this point. To pre-empt any further discussion, Port Authority will not be moving away from its position within the policy and the policy remains in force. We adhere to the requirements of status quo by the ongoing implementation of the COVID-19 Control Policy as implemented prior to this dispute being made.

My understanding is that you have not submitted proof of vaccination for your first vaccination nor sought an exemption. Therefore you will not be able to return to the workplace until you are able to comply with the COVID-19 Control Policy, or are otherwise approved by myself, the Sydney Harbour Master, the Chief Operating Officer or Chief Executive Officer (and no one else) . To avoid any uncertainty, this is a lawful and reasonable direction made by your employer. On the expiration of sick leave, you would be required to either make an application for leave without pay, access annual leave or access long service leave.

It is prudent to foreshadow that an outcome of failing to abide by the COVID-19 Control Policy may be that at some stage you may be considered in breach of your employment obligations and/or inherent requirements of your role. We are willing to work with you to mitigate these impacts, including looking at a timeline to assist you receiving your second vaccination provided that you receive your first before 10 January 2022. We hope to avoid this but can only do this if we work together.

Sincerely.”

[12] Quite plainly Mr Clark asked to discuss his dispute with Mr Fernandes and specifically asked “please let me know how you would like to proceed with this request” but was told not to direct any further correspondence to Mr Fernandes about the dispute.

[13] Mr Keech did not try to speak to Mr Clark or arrange try to arrange a time to discuss the dispute. In fact there is no evidence of Mr Fernandes or Mr Keech ever making themselves available to discuss Mr Clark’s dispute. Both men gave evidence in the proceedings but neither referred to their dealings with Mr Clark under the dispute resolution procedure of the Agreement.

[14] The dispute resolution procedure in the Agreement does not explicitly require a line manager to discuss a dispute with an employee who invokes the procedure. On the Port Authority’s construction of the Agreement, if a line manager is unwilling or unable to discuss a dispute raised by an employee, then the aggrieved employee has no right to escalate the matter any further, and certainly no right to refer the dispute to the Commission.

[15] If this is correct then the purposes of the dispute resolution procedure are easily defeated by the Port Authority directing an employee not to discuss a matter with their line manager, or by the Port Authority simply refusing to discuss the matter at all.

[16] The message Mr Clark received from Mr Keech’s sincerely without prejudice response was that the Head of People & Culture for the Port Authority had zero interest in or preparedness to discuss his dispute, despite the terms of the Agreement.

[17] A further email exchange occurred between Mr Clark and Mr Keech. Mr Clark replied to the above email as follows:

“Hello Josh,

Thank you for your reply and concern in this dispute matter.

I note that you infer that Port Authority is quite comfortable with their position and as such no mediation will take place.

As such, I will file the required F10 form with the Fair Work Commission today to request dispute resolution under my enterprise agreement.”

[18] On 15 December 2021 Mr Keech replied as follows:

“Hi Lyndon

Please be advised that Port Authority does not consent to you stepping over any of the requirements in the Agreement in relation to the dispute.

Further, due to the time of year and Corporate Office shut down, Port Authority will not be in a position to address this matter (either in the Fair Work Commission or elsewhere) until at least Monday 10 January 2022.

I again request and direct that you comply with the COVID-19 Control Policy. Please be aware that failure to comply with the policy is likely to result in performance matters being raised, which may lead to disciplinary action.

Sincerely”

[19] When one notes that the requirement under the policy was that all staff must have two doses of a vaccine by 10 January 2022, Mr Keech’s response to Mr Clark was poor. Worse still, the final sentence of Mr Keech’s email appears to threaten Mr Clark with disciplinary action about unspecified “performance matters” if he continues to pursue his rights under the dispute resolution procedure.

[20] The reference to “stepping over any of the requirements of the Agreement” is ironic given Mr Keech’s own disregard for the dispute resolution procedure invoked by Mr Clark.

[21] The Port Authority’s decision to maintain its jurisdictional objection based on the assertion that there was no “discussion” with Mr Fernandes is even more unsatisfactory in the face of the evidence that there was in fact a “discussion” between Mr Clark and Mr Ernst prior to Mr Clark’s application to the Commission.

[22] Mr Peter Ernst, Head of Regional Ports, sent an email to Mr Clark on 25 January 2022 advising him that Mr Ernst had “been asked to step in to replace Josh Keech as the point of contact in this matter”. Mr Ernst’s email indicated amongst other things that “Port Authority may be open to making a special case for you where it is reasonable, safe and practicable to do so.” Mr Ernst and Mr Clark met on 15 February 2022 for this very purpose. On any assessment of the evidence of the meeting on 15 February 2022, there was a discussion “for resolution” of Mr Clark’s dispute.

[23] By the time Mr Clark referred the matter to the Commission on 22 February 2022, he had:

(a) discussed informally his concerns with Mr Fernandes prior to the Policy taking effect;

(b) formally written to Mr Fernandes to engage the dispute resolution procedure;

(c) written to Mr Fernandes’ designated replacement “point of contact” (Mr Keech) about his dispute as directed by the Port Authority; and

(d) met with Mr Fernandes’ designated replacement’s replacement (Mr Ernst) as directed by the Port Authority; and

(e) discussed his dispute with Mr Ernst for resolution.

[24] The distinction maintained by the Port Authority is that even though both Mr Keech and Mr Ernst represented themselves to Mr Clark as being the “point of contact” for his dispute, neither person was literally Mr Clark’s line manager.

[25] Under clause 2.7 employees cannot pick and choose which management representative they would like to discuss their disputes with. In order to invoke the benefits and protection of the dispute resolution procedure, employees must properly comply with the stated requirements at each stage of the process. Mr Clark did so.

[26] However, the Port Authority issued certain directions to Mr Clark in relation to the dispute, including a direction about where he must direct his correspondence. The Port Authority delegated authority to other management representatives to stand in the shoes of the line manager for the purposes of the dispute resolution procedure and Mr Clark is entitled to hold the Port Authority to those delegations and directions.

[27] Needless to say I am content to find that for the purposes of the dispute resolution procedure Mr Clark discussed his dispute with his line manager, as directed by the Port Authority to be Mr Ernst in substitute for Mr Fernandes, and the requirement of clause 2.7.3 of the Agreement was met.

[28] In the face of the jurisdictional objection pursued by the Port Authority, Mr Clark’s legal representatives also provided thorough written and oral submissions arguing that the Port Authority was estopped from asserting that the requirements of the dispute resolution procedure had not been met. In light of the above findings I do not need to address those submissions.

The Agreement – Reasonable and lawful directions

[29] Clause 1.2.2. of the Agreement is in the following terms:

“1.2.2 Code of Conduct, Rules and Policies

All the rules and policies of Port Authority, including its Code of Conduct, are applicable to Marine Pilots covered by this Agreement. Marine Pilots are required to comply with and uphold the Code of Conduct and these rules and policies as implemented or varied from time to time.

Marine Pilots will comply with the Ports and Maritime Administration Act 1995 (NSW), the Marine Safety Act 1998 (NSW) and NSW Marine Pilotage Code or the successor to any of these Acts and Regulations.

Marine Pilots will be required to comply with any policies and procedures developed through consultation between the parties, relating to Marine Pilots employed by Port Authority and will comply with any reasonable and lawful direction issued by management.

Port Authority and the nominated Marine Pilot Representatives will make every effort to ensure a work environment free of industrial disputes and that consultation occurs on key business issues.”

[Emphasis added].

[30] The parties agree that clause 1.2.2 of the Agreement imposes an enforceable obligation on Mr Clark to comply with any reasonable and lawful direction issued by management. I am sceptical of this interpretation but I am prepared to assume it to be correct for present purposes.

[31] Mr Clark disputes that the direction under the Policy is reasonable. He says that his dispute is about a matter arising under the Agreement, being the obligation in clause 1.2.2 to comply with any reasonable and lawful direction, and therefore is able to be dealt with under the dispute settlement procedure.

Background – the Policy

[32] On 30 August 2021 the NSW Department of Premier and Cabinet issued a circular to all departments and State-Owned Corporations providing “guidance to agencies to assist them in determining if their employees should be directed to be vaccinated against COVID-19.” In September and October 2021 community vaccination rates were rising and NSW Health was starting to ease restrictions following its ‘roadmap to recovery’.

[33] Some of the Port Authority’s stakeholders raised the possibility that they would impose vaccination mandates on persons accessing their sites or vessels. In late September the cruise industry peak body, Cruise Lines International Association Australia, indicated to the Port Authority that cruise liners might require full vaccination as a condition of entry to vessels - which would obviously impact the work of marine pilots. Cruising did not resume until December 2021 but plans were being made in anticipation. In October DP World imposed a vaccine mandate on all employees and contractors and visitors to their sites.

[34] In October a project group was set up within the NSW Transport Cluster to explore mandatory vaccination. The NSW Transport Cluster is an ‘extended network of State Government agencies and State Owned Corporations that work together to deliver transport services’.

[35] As Mr Ernst explains:

“[The Port Authority’s Executive Team] subsequently resolved to consider whether the PANSW should take steps to implement mandatory vaccination as a safety control measure across its workforce. As a first step it was agreed that PANSW would approach TfNSW and ask them for copies of any work that they had done in relation to the implementation of such a requirement. It was also decided that Dirk Ovenden, General Manger Work, Health and Safety would lead the team considering the implementation of mandatory vaccination as a suitable safety control measure.

…

Towards the end of October or in early November 2021 Mr Ovenden prepared a draft policy for the working team to consider, which was based largely on the work that TfNSW had already done. Changes were made to address our individual circumstances and assessments were made during regular meetings. He also prepared an executive paper seeking endorsement to begin consultation on the proposed policy.”

[36] Mr Ernst says that at a meeting of the Executive Team on 8 November 2021 the team considered the terms of a draft policy and agreed to endorse a recommendation that a consultation process be undertaken about the draft policy. The minutes of the meeting included the following ‘Note’ and ‘Action’:

“[AGENDA ITEM] NOTE:

Covid Vaccination Policy

Recommendation to proceed to consultation on the draft policy. N Green is currently working on the communication package.

95% employees have confirmed their vaccination status. Still waiting on 15 people to confirm their status.

[AGENDA ITEM] ACTION:

•  [Mr Ovenden] will clarify with Border Force their position on vaccinations.

•  Comms plan to be discussed at meeting on Thu 11 Nov.

•  Collateral to be sent out on Fri 12 Nov. First meeting on 17 Nov. By 16 Dec if you’re not vaccinated, you can’t come to work.”

[37] Mr Clark contends that the words “By 16 Dec if you’re not vaccinated, you can’t come to work” are proof that the Port Authority made a final decision to mandate vaccination at this meeting on 8 November 2021. I shall return to this contention shortly.

[38] After the Executive Team meeting on 8 November 2021 there was in fact considerable consultation about the proposed policy. Appendix A to this decision is an excerpt from the Port Authority’s closing submissions that outlines in much more detail the particular consultation that occurred.

[39] In short:

(a) senior union officials were consulted;

(b) on 12 November 2021 a draft copy of the proposed policy was published, accompanied by a draft case management flowchart and a FAQ document. Staff were encouraged to provide feedback on the policy and its implementation;

(c) a summary of the risk analysis was provided to employees;

(d) the Joint Consultative Committee convened several meetings about the policy;

(e) further updates were sent to all staff in relation to the progress of the consultation, and staff were again encouraged to have their say;

(f) collated answers to questions put by staff were provided to all staff;

(g) an extraordinary all-site Work Health and Safety Committee meeting was held to discuss the proposed policy, attended by relevant Workplace Health and Safety Representatives; and

(h) some employees, including Mr Clark, provided individual feedback and the employee feedback was discussed at meetings of the Port Authority’s COVID Control Working Group.

[40] Mr Clark was considerably active during the consultation process. In cross examination Mr Clark accepted that he had attended a number of meetings in relation to the proposed policy prior to the Policy taking effect. He agreed that he was able to question and raise concerns about any issue connected to the proposed policy and that he was given the opportunity to persuade the Port Authority that what it was doing was wrong and that it should take a different course of action. He was also able to ask questions and had access to information in relation to risk assessments and the like.

[41] On 19 November 2021 the Port Authority invited employees including Mr Clark to make further comments and provide further feedback and encouraged employees to raise any concerns with representatives prior to the next meeting consultation meeting. Mr Clark did so.

[42] Mr Clark attended a meeting on 26 November 2021 and in cross-examination agreed that:

(a) he again represented 22 other employees at that meeting;

(b) the meeting again lasted approximately three hours;

(c) delegates of the MUA and the AMOU attended;

(d) Mr Clark had the opportunity to speak in relation to the Policy and took that opportunity wherein he raised WH&S concerns about the policy;

(e) he once again had the opportunity to persuade the employer to take a different course; and

(f) Mr Clark and other employees were able to seek further information.

[43] The Policy commenced on 3 December 2021 and required employees to have received at least one dose of an Australian government approved vaccine by 15 December 2021, and to have a second dose by no later than 10 January 2022. The policy allows for employees to apply for an exemption.

Failure to Consult

[44] Mr Clark says that the consultation was inadequate in two particular ways:

(a) that the Port Authority made a decision to mandate vaccination prior to engaging in any consultation with employees or their representatives, and therefore made its decision without any consultation at all; and

(b) that the consultation undertaken by the Port Authority was a “box ticking exercise”.

[45] Mr Clark relies on the words “By 16 Dec if you’re not vaccinated, you can’t come to work” in the minutes of the Executive Team meeting on 8 November 2021 is proof that the Port Authority made its final decision to introduce the vaccine mandate on that day.

[46] There is no evidence to suggest that Mr Clark knew about this notation at the time that he decided not to comply with the direction. When Mr Clark referred his dispute to the Commission and commenced his challenge to the Port Authority’s consultation process, he could only have speculated about when the final decision was made. As referred to above, he had actively participated in much of the consultation undertaken by the Port Authority and had taken up many opportunities to ask questions and have his say. The parts of the consultation process that Mr Clark had witnessed and participated in were extensive.

[47] Two people from the Executive Team meeting on 8 November 2021 gave evidence in the proceedings and were cross-examined about those words. Neither witness said that a decision to mandate vaccination was made at this time, recognising that at the meeting the Executive Team did decide to take significant steps towards a vaccine mandate.

[48] On the evidence before me I cannot find that the Port Authority decided to impose a mandatory vaccination policy on 8 November 2021.

[49] I understand the minutes to indicate that the resolution of the meeting was to “proceed to consultation on the draft policy”, as recorded. The action items arising from the resolution, as contained in the minutes, were that a communications plan would be discussed on 11 November and the first communications would be sent on 12 November – which is what happened. The reference to “By 16 Dec if you’re not vaccinated, you can’t come to work” is the short version of what the Executive Team agreed the communications would contain. Sure enough the draft policy distributed on 11 and 12 November 2021 included the following words:

“From 15 December 2021 it will be a requirement for all persons in the scope of this policy … to have received at least one dose of an Australian Government approved vaccine [and] provide evidence of vaccination status via an accepted Government source.”

[50] Mr Clark’s case is that the Port Authority only pretended to consult between the meeting on 8 November 2021 and the finalisation of the policy on 3 December 2021, and that the notation on 8 November reveals the true decision made at that meeting. Implicit in this proposition is that the minutes of the Executive Team meeting record the Port Authority’s true intention. The flaw in this logic is that the same minutes also record the decision to “proceed to consultation” rather than, for example, proceed to mandate or similar.

[51] Mr Clark claims that the consultation that did occur was merely a “box ticking exercise”. At its core this second limb is basically a restatement of the first limb because it relies upon the notion that the Port Authority’s mind was already closed to considering anything that might arise during consultation and that it was simply going through the motions.

[52] On any view of it the consultation undertaken by the Port Authority was extensive. The Port Authority provided adequate information to employees and their representatives, including health and safety representatives, and provided many forums within which stakeholders could express their views so that these views may be taken into account. The content and the focus of the consultation evolved over the course of the process – later meetings and publications recognised, collated and responded to feedback and input obtained from stakeholders.

[53] I do not need to collate and recite the authorities on how the Commission must assess the adequacy of consultation in the present context because the finer distinctions made in the authorities have no material bearing on the outcome for Mr Clark. I am satisfied that the consultation process undertaken by the Port Authority prior to the finalisation of the Policy on 3 December 2021 was comprehensive, appropriate and sufficient to meet the Port Authority’s obligations under WHS legislation and under the Agreement.

[54] As such I find that any direction to Mr Clark arising from the Policy was not rendered unreasonable because of any deficiency in the Port Authority’s consultation process.

Otherwise Unreasonable Direction

[55] Mr Clark claims that the direction under the Policy was otherwise unreasonable.

[56] The direction was given to all staff and allowed for exemptions on a case by case basis and can be assessed in this light. The direction was also given at a time when the Delta variant was dominant, although the Omicron variant was emerging.

[57] Mr Clark argues that mandatory vaccination at the workplace is but one control measure available to respond to the serious risks associated with the COVID-19 pandemic. He argues that the Port Authority could have implemented adequate control measures other than mandating vaccination to achieve the same objective. Mr Clark argues that because compulsory vaccination squarely collides with other very important rights and principles, such as bodily integrity, the direction that all staff must be vaccinated was not a reasonable direction.

[58] I accept as a matter of logic that if an employer has two available options, both equally effective but one option imposing a significant disruption or dislocation to an employee or group of employees, the employer’s selection of the disruptive option might be unreasonable.

[59] Mr Clark relied heavily on evidence from Professor Marilyn Anne Cruickshank. Professor Cruickshank has over 30 years’ experience as a Registered Nurse and over 10 years’ experience in policy development and implementation of national infection control and antimicrobial resistance programs. Professor Cruickshank has been credentialed as an Expert in infection control and awarded Fellowship of the Australasian College for Infection Prevention and Control for her contribution to the infection prevention and control profession through education, research and leadership including Presidency of the College. She has served on numerous national and international infection control advisory groups including as Chair of the Antimicrobial Resistance Standing Committee and a member of the Australian Health Protection Principal Committee and served as a technical advisor for the World Health Organisation (WHO) in the areas of infection control, antimicrobial stewardship, infection control guideline development, and healthcare-associated infection.

[60] Mr Clark provided the following summary of Professor Cruickshank’s evidence:

“Professor Cruickshank’s evidence establishes the following:

(i) in the context of the Omicron variant, the evidence is unclear as to the cumulative benefits of vaccination over and above other strategies involving face masks and physical distancing. Given that the purpose of the Policy is to minimise the risk of exposure of Covid-19 in the workplace it is not at all clear nor has it been established by the respondent that vaccination minimises the risk of exposure to the Omicron variant of Covid-19;

(ii) the value of vaccination in 2022 is significantly less, due to the existence of demonstrated preventative strategies in the workplace. Vaccination alone does not prevent the spread of Covid-19. Studies suggest that being vaccinated (as required by the Covid Control Policy) does not decrease the transmission of the Omicron variant, with transmission rates for unvaccinated individuals being 29% as compared to full vaccinated individuals 32%. Professor Cruickshank explains that Covid-19 vaccines were not designed to prevent onward transmission by reducing viral load. In her oral evidence, Professor Cruickshank detailed that vaccines were designed to prevent serious illness and death after contracting Covid-19, rather than transmission of the virus. She also noted that having a booster dose (i.e. a third shot) reduces the likelihood of transmission of the Omicron variant, but that there was no evidence that ‘primacy vaccination’, i.e. two shots did (being what is required by the COVID-19 Control Policy);

(iii) the use by Mr Clark of a face mask, eye wear and gloves, as well as engaging in social distancing, would be very adequate to prevent transmission should he become infected whilst asymptomatic. In this connection, the chance of infection: when using a face mask was 3.1% as compared to 17.4% with no face mask; when socially distancing over 1 metre was 2.6%; when wearing eye protection was 5.5% as compared to 16% without eye protection;

(iv) the use by Mr Clark of daily RATs is more than adequate to detect an infection while asymptomatic. RATs are effective in providing real time information to ensure that infectious individuals are proactively monitored and screened. Professor Cruickshank notes a Canadian study which found that undertaking two RATs in a 7-day period should detect most asymptomatic cases. It is significant that Mr Clark proposes to undertake daily RATs. This is over and above the twice weekly RATs previously required by the respondent. The use of protective clothing (such as a gown, overalls and gloves) is only necessary to prevent transmission if Mr Clark is, in fact positive with Covid-19. Daily RATs can appropriately detect whether Mr Clark is Covid-19 positive;

(v) the risk of transmission of the virus from Mr Clark to another person if he dons the PPE and adheres to a daily RAT regime are the same as if he were vaccinated;

Professor Cruickshank does set out that vaccination does lower the chance of transmission from one person to another (although it does not prevent it).

The fact that vaccination has, as Professor Cruikshank explained, positive consequences for a person in terms of reducing the severity of a Covid-19 infection, including hospitalisation, is neither here nor there.

…

Significantly, Professor Cruickshank opines that Mr Clark does not fall with the ‘Tier 2’ category of worker as determined by the respondent, on the basis that he does not have close contact with persons who are particularly vulnerable to the health impacts of Covid-19 whilst at work.”

[61] The Port Authority also provided the following summary of Professor Cruickshank’s evidence:

“The evidence of Professor Cruickshank is inter alia:

a. COVID-19 may cause asymptomatic or mild disease, but can also cause severe illness, such as hypoxia, critical illness, death and “Long COVID”;

b. COVID-19 is a vaccine preventable disease;

c. the Omicron variant is more infectious than other variants of COVID-19;

d. vaccination does protect against Omicron but to a lesser extent than perhaps previous strains of the virus;

e. whilst Omicron has a protein structure that reduces the efficacy of primary vaccination, being two doses of a vaccine, the protection is increased against the Omicron variant with a booster dose;

f. a booster dose reduces the likelihood of transmission of Omicron and reduces the likelihood of infection with Omicron, and reduces the risk of serious illness, critical illness and death;

g. primary vaccination reduces the risk of COVID-19 disease and transmission in the workplace and community;

h. employees who have been vaccinated are less likely than unvaccinated employees to transmit COVID-19 in a workplace; and

i. PPE and social distancing were important strategies to prevent transmission before vaccination. Now vaccination is available, vaccination is another control to reduce transmission of COVID-19.”

[62] Both summaries are correct and reflect the significant assistance Professor Cruickshank’s expert evidence provided in this matter.

[63] In cross-examination Professor Cruikshank gave the following evidence:

“Vaccination generally, that is, a primary vaccination being two doses, reduces the risk of COVID-19 disease and transmission in the community and the workplace?---Yes.

A booster dose, or a third dose of a COVID-19 vaccine reduces that risk even further?---Yes.

Other than the benefits associated with a reduction in the transmissibility of the virus, the vaccination has a number of other benefits, doesn't it?---Yes, it does.

That includes a reduce likelihood of ending up in intensive care?---Yes.

A high likelihood of experiencing mild symptoms if one catches COVID?---Yes.

And the halving in the rate of long COVID?---I'm not sure that I can agree about the halving of long COVID. I'm not sure that there's enough evidence about that. But one would expect that there would be a decrease in long COVID if one was immunised, yes.

But in your view, it at least helps, in respect of long COVID?---Well, theoretically, yes, it should. I think we're still very early in the disease process to have a good understanding of what might happen in long COVID, given that we haven't had that time period to fully understand the effects of long COVID.

…

Compared to a person that is not vaccinated, a person who has had their primary dose, that is two doses, of a COVID-19 vaccine, are less likely to transmit COVID if they get it?---If they're vaccinated, yes, than an unvaccinated person, yes.

So, it follows, doesn't it, that if a person is less likely to catch the disease if you're vaccinated?---Yes.

That there is a reduced likelihood of that person being required to go into isolation as a result of contracting the disease?---Well, they would have to go into isolation if they had the disease, whether they were vaccinated or not, but I guess it follows that if you don't get the virus then you don't need to go into isolation.

Yes, and if you are vaccinated, that is the primary two dose vaccination, you have less likelihood of transmitting the virus to other staff or clients in a workplace setting?---Again, you can only transmit the virus if you have it, yes.” 1

[64] Professor Cruickshank’s evidence explores in some detail the degree of effectiveness of vaccination as a control measure in dealing with risks to work health and safety arising from the COVID 19 pandemic, and also the degree of effectiveness of other control measures deployed or deployable by the Port Authority.

[65] Ultimately Mr Clark’s argument is that a more reasonable course of action was available to the Port Authority. The availability of this more reasonable suite of control measures, he says, meant that the Port Authority’s decision to mandate vaccination was unreasonable.

[66] In CFMMEU v Mt Arthur Coal Pty Ltd 2 (“Mt Arthur Coal”) the Full Bench considered amongst other things whether the introduction of a site access policy containing a COVID-19 vaccine mandate contained a reasonable direction to employees captured by it. The Full Bench made the following broad observations regarding directions given by employers3:

“The reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations; 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.

We note that, absent a consideration of all the relevant circumstances it is not appropriate to make general statements about whether a direction of a particular character is a lawful and reasonable direction. That said; we think there is some utility in making some broad observations.

If the object and purpose of such a direction is to protect the health and safety at work of employees and other persons frequenting the premises then such a direction is likely to be lawful. This is so because it falls within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated. But such a direction must also be reasonable.

As Flick J observed in NSW Trains v Australian Rail, Tram and Bus Industry Union the determination of whether an employer direction is lawful and reasonable can only be made by reference to the subject matter and context; it cannot be made ‘in vacuo’. 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.

A direction lacking an evident or intelligible justification is not a reasonable direction but that is not the only basis upon which unreasonableness can be established. It is an objective assessment of the reasonableness of the direction, having regard to all of the circumstances.

In any particular context there may be a range of directions open to an employer within the bounds of reasonableness. Further, to establish that a direction is reasonable it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interest of the parties.”

[Emphasis added, footnotes omitted]

[67] There is no contest that a vaccination mandate is an effective control measure. On the strength of Professor Cruickshank’s evidence and in general terms there is a logical and understandable basis for the direction.

[68] In the Port Authority’s operation there were a number of factors in November and December 2021 that support the contention that the Policy was reasonable:

(a) a significant number of stakeholders had introduced or were likely to introduce site-access or vessel-access requirements that would affect the capacity of the Port Authority’s employees to perform their duties;

(b) some of the employees, such as pilots and port officers, perform critical essential services insofar as a failure to deliver services has a direct impact on trade and the State economy; and

(c) there was an identified greater potential for unvaccinated pilots passing on the virus to vulnerable seafarers than vaccinated pilots.

[69] The Port Authority deployed other safety measures, such as mask mandates and the like that were also effective control measures.

[70] Mr Clark submits that compulsory vaccination squarely collides with other very important rights and principles, such as principles of bodily integrity, which point against finding that a direction that all staff must be vaccinated was a reasonable direction.

[71] I recognise that some members of the workforce hold strong views against COVID-19 vaccination, and that the medical, legal or even logical soundness of those views varies considerably.

[72] In Mt Arthur Coal the Full Bench found that the site access requirement that mandated vaccination did not violate any common law right to bodily integrity (at [218]), but noted that: 4

“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.

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 …’”

[Emphasis added, footnotes omitted]

[73] Overall I am satisfied that the Policy is a reasonable policy and that the direction within the Policy is a lawful and reasonable direction.

Matters beyond the scope of the Direction

[74] This dispute starts and ends with a consideration of the reasonableness of the direction issued on 3 December 2021. The reasonableness of the direction can only be assessed by reference to the circumstances at that time.

[75] Several events occurred after 3 December 2021 that are significant to Mr Clark’s ongoing employment but are not significant to the reasonableness of the direction itself.

[76] Mr Clark’s meeting with Mr Ernst on 15 February 2022 made considerable progress in almost reaching a compromise position that both parties could accept. The final sticking point seems to be whether introducing a requirement that Mr Clark wear a facemask and goggles when using ladders to board and deboard vessels presented a new and unacceptable safety risk. The Port Authority’s attempt to differentiate between Mr Clark wearing goggles and wearing spectacles/sunglasses was less than convincing.

[77] On 21 March 2022 Mr Clark revealed to the Port Authority that one month earlier his doctor submitted a Contraindication Certificate to the Australian Immunisation Register on behalf of Mr Clark. Mr Clark’s explanation for why he concealed his contraindication certificate for so long was also less than convincing.

[78] On 9 April 2022 Mr Clark tested positive for COVID-19. Mr Clark then applied for an exemption from the vaccination under the Policy for a period but this application was rejected.

[79] I am acutely aware of the context in which the Commission is called upon to determine this matter: the termination of Mr Clark’s employment may well be imminent. My findings should not be understood as giving the Port Authority an imprimatur to dismiss Mr Clark from his employment. The events that took place after the direction was issued on 3 December 2021, including the matters referred to above, may well have a substantial impact on the fairness of any decision to dismiss Mr Clark from his employment.

[80] It is beyond the scope of this decision to speculate on such matters – these proceedings are not a dress rehearsal for an unfair dismissal or general protections claim. More precisely, it is beyond the jurisdiction of the Commission to make any determination beyond my finding that the direction issued on 3 December 2021 was lawful and reasonable.

[81] Finally, and in light of my findings on the reasonableness of the direction issued by Port Authority on 3 December 2021, it is not necessary to resolve the dispute between the parties about the effect of the status quo provision in the dispute resolution procedure in the Agreement.

DEPUTY PRESIDENT

Appearances:

Mr P Boncardo of Counsel instructed by Mr K Bolwell of Work Lawyers for the Applicant
Mr M Minucci of Counsel for the Respondent instructed by Ms L Shanahan of Kingston Reid for the Respondent

Hearing details:

2022.
Sydney (By Video using Microsoft Teams)
May 5, 25.

Final written submissions:

Applicant: 18 May 2022
Respondent: 24 May 2022

Annexure A

PANSW then commenced a period of consultation with employees and the relevant unions in accordance with the terms of the Agreement. To begin the consultation process, Mr Ovenden and Mr Ernst spoke to Mr Garrett from the Maritime Union of Australia (MUA), Glen Williams and Mick Cross from the CFMMEU and Marty McEvilly from the AMOU. Mr Garrett said to Mr Ovenden words to the effect that the MUA fully supported vaccination and actively encouraged members to get vaccinated, however he noted that some of the MUA members may have concerns about the policy.

On 12 November 2021, PANSW sent an email to all staff advising them of the proposed implementation of the COVID-19 Control Policy. Staff were invited to provide PANSW with feedback in relation to the policy and its implementation. The email to staff attached:

a. a copy of the draft COVID-19 Control Policy;

b. a copy of a draft case management flowchart; and

c. a copy of an FAQ document

On 16 November 2021, Mr Ovenden prepared a summary of the analysis he had done of the impact of the addition of the control of vaccination to all existing risk assessments. A copy of this summary was provided to employees via email.

On 17 November 2021, PANSW discussed the proposed COVD-19 Control Policy at the Joint Consultative Committee. The meeting was attended by delegates of the MUA and the Australian Maritime Officers Union (AMOU). It also included the relevant Workplace Health and Safety Representatives. Mr Clark was also in attendance.

On 19 November 2021, PANSW issued an update to all staff in relation to the progress of consultation on the proposed COVD-19 Control Policy. Relevantly, PANSW:

a. encouraged employees to “have their say”;

b. provided a document collating answers to questions that had been asked in relation to the proposed COVID-19 Control Policy; and

c. reminded employees they had until 26 November 2021 to submit any further comments or feedback and set out the relevant ways in which any comments or feedback could be provided.

On 26 November 2021, again discussed the proposed COVD-19 Control Policy at the Joint Consultative Committee. Again, the meeting was attended by delegates of the MUA, AMOU, and included relevant Workplace Health and Safety Representatives. Mr Clark was also in attendance.

PANSW also exchanged correspondence with the MUA directly in relation to the COVID-19 Control Policy.

On 30 November 2021, an extraordinary all-site Workplace Health and Safety Committee meeting was held with the Workplace Health and Safety Representatives to discuss the proposed COVD-19 Control Policy. The meeting was attended by relevant Workplace Health and Safety Representatives.

PANSW also received feedback from several employees in relation to the COVID-19 Control Policy, including Mr Clark.

During the consultation period, the CCWG met on 15, 18, 23, 24 and 25 November 2021. During these meetings, the CCWG discussed the feedback received from employees and considered any responses, including whether the draft policy should be amended.

In addition, the CCWG uploaded a Q&A document onto PANSW’s internal intranet system, Dockside. This document was constantly reviewed and updated during the consultation process and following consideration of feedback received about the Policy and was able to be accessed by all employees.68 All feedback received during the consultation period was considered.

Printed by authority of the Commonwealth Government Printer

<PR744007>

 1   Transcript, 5 May 2022 at [PN860] – [PN865], [PN867], [PN871], [PN873] – [PN875].

 2   (2021) 310 IR 399 at 458, [2021] FWCFB 6059 at [224].

 3   Ibid [259]-[264].

 4   (2021) 310 IR 399 at 457-458, [2021] FWCFB 6059 at [222]-[224].