[2022] FWC 346

The attached document replaces the document previously issued with the above code on 18 February 2022.

The word ‘first’ in paragraph [15] is changed to the word ‘wrote’.

Associate to Commissioner Wilson

Dated 21 February 2022

Fair Work Act 2009
s.739—Dispute resolution

Christopher Doyle; Julia Sant; Antonio Prosia
v
Melbourne Archdiocese Catholic Schools Ltd T/A MACS
(C2021/7842)

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]; whether consultation required following implementation of Victorian Chief Health Officer’s Directions about vaccination in the workplace; interaction of enterprise agreement obligations with contracts of employment; whether a dispute about allegations of breaches of general protections provisions and Privacy Act; and whether jurisdiction to determine

[1] Julia Sant, Christopher Doyle and Antonio Prosia (whom I shall refer to as the Applicants) are each employed at the Caroline Chisholm Catholic College (the College) in Braybrook, Victoria. Each filed applications to the Commission on 18 November 2021 (the Applications), alleging a dispute pursuant to s.739 of the Fair Work Act 2009 (FW Act) arising under an enterprise Agreement, the Victorian Catholic Education Multi-Enterprise Agreement 2018 1 (the Agreement). In short form the matter in dispute relates to the COVID-19 vaccination status of each person.

[2] The Applications were the subject of conciliation before me on 6 December 2021, which was unsuccessful in the resolving matters in dispute. A hearing on the Applications then took place on 27 January 2022. At the hearing each Applicant represented themselves. The Respondent, Melbourne Archdiocese Catholic Schools Ltd (MACS), was represented by Mr Andrew Denton, of Counsel, having sought and been granted permission by me pursuant to s.596(2)(a) of the FW Act.

[3] The Respondent did not require any of the Applicants for cross-examination, however the Applicants sought to cross-examine the College’s Principal, Mr Robert Brennan. No other person gave oral evidence in the proceedings.

[4] Numerous contentions are raised by the Applicants and dealt with by me in this decision, which may be summarised into six broad allegations of contravention of the Agreement by MACS.

1. There was no consultation with them about a major change, contrary to Clause 17;

2. MACS has unilaterally and impermissibly varied their respective contracts of employment;

3. Neither Applicant consented to take any leave, including leave without pay or long service leave with MACS contravening the Agreement when it placed them on leave;

4. MACS gave no consideration to the possibility of alternative work duties or work arrangements;

5. MACS has breached the FW Act’s general protections provisions (Part 3 – 1);

6. MACS requested private medical information in contravention of the Privacy Act 1988 (Cth) (the Privacy Act).

[5] After consideration of all the material before me and for the reasons set out below, I have found;

•  Topics 1 and 4 may be characterised as disputes about the application or interpretation of the Agreement. I have not found MACS was obligated to consult on the subjects, since they were not “major changes” within the meaning of Clause 17. I have also not found that MACS not considering the possibility of alternative work duties or work arrangements establishes a breach of the Agreement;

•  Topics 2, 3, 5 and 6 are not disputes about the application or interpretation of the Agreement.

QUESTION FOR DETERMINATION

[6] Prior to the hearing of the Applications attempts were made by me to identify the matters in dispute and thereby requiring determination by me. In particular I sought agreement by each party to a Draft Question for Determination. Unfortunately, no party concurred with the proposal made by me.

[7] For their part the Applicants’ proposed the following 13 questions;

1. Does the Privacy Act 1988 (Commonwealth) apply to the Applicants in the workplace?

2. Does the Privacy Act 1988 provide the Applicants with a lawful protection to decline the employer’s offer to supply information that is considered by the Applicants to be private and sensitive information?

3. Did the employer fail to recognise the protected attribute(s) held by the Applicants that exist and are protected by Federal Commonwealth legislation being the Privacy Act 1988?

4. Does the Public Health and Wellbeing Act (Vic) provide the employer with a lawful power to override the authority of the Privacy Act 1988?

5. Can the employer refuse the applicants’ entry into the workplace based on an assumption made by the employer about the Applicants’ COVID 19 vaccination status?

6. Did the employer have an obligation under the VCEMA to partake in a proper process of consultation with the Applicants prior to changing the conditions of the Applicants work contracts?

7. Did the employer have a lawful power to change the Applicants’ work contracts, unilaterally and without agreement or consent provided by any of the Applicants?

8. Did the employer have a duty to properly discuss the changes or the likely consequences of the changes to the Applicants’ work contracts?

9. Was the employer required in Clause 17 of the VCEMA to provide the Applicants with an opportunity to negotiate alternative work arrangements or work duties?

10. Can an employer unilaterally change the terms and conditions of an existing work contract that was created by agreement and signature by both parties and that was created pursuant to the Victorian Catholic Education Multi-Enterprise Agreement 2018 and made under the Fair Work Act 2009 after 1 July 2009.

11. Is there an identifiable clause in the Applicants’ work contracts that obligates the Applicants to provide the employer with private and sensitive medical information absent the consent of the Applicant?

12. Are the Applicants afforded the general protections and workplace rights as outlined in the Fair Work Act 2009?

13. Is the decision in the matter previously determined by the Fair Work Commission;

Construction, Forestry, Maritime, Mining and Energy Union,
Mr Matthew Howard
v
Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal
(C2021/7023) C2021/7023
Melbourne 3 December 2021

relevant to the Applicants’ matter in terms of

a. Privacy concerns and;

b. The lack of employer consultation with employees in the process?

[8] The Respondent proposed the following questions for determination:

“1.     Was the College’s: 

a.     direction to each Applicant to provide evidence of their COVID 19 vaccination status;

b.     refusal to consider alternative work duties or work arrangements for each Applicant (including for the possibility of working from home); 

(Disputed Conduct)

a “decision” made by the College within the meaning of clause 17 of the Victorian Catholic Education Multi-Enterprise Agreement 2018 (VCEMEA) (AE501904)? 

2.     Does a dispute arise about the Disputed Conduct under Clause 22 (Dispute procedures)?

3.    If the answer to both 1 and 2 is “yes”, in engaging in the Disputed Conduct, did the College fail to correctly apply or interpret Clause 17 (Introduction of Change) of the VCEMEA?

4.   If the answer to (3) is “yes”, having regard to the provisions of Clause 22.4 of the VCEMEA, what relief if any, may be granted to the Applicants?”

[9] Given the divergence between the parties on these matters I do not consider it appropriate to endeavour to resolve either sets of questions. Instead, I will consider the matter of jurisdiction and merit for each of the six broad allegations of contravention of the Agreement discerned from the Applicants’ submissions as set out above.

BACKGROUND

[10] Until the start of 2021 each Applicant’s contract of employment was with the College; however since at least 29 January 2021 it has been with MACS. As a result of an Order made by Commissioner Harper-Greenwell on 29 January 2021, the Agreement now covers non-transferring employees of MACS who perform transferring work for MACS. 2

[11] Ms Sant is employed by the College as a Learning Support Officer and Mr Doyle and Mr Prosia as teachers. The length of employment of each person varies; Mr Doyle has been employed since 17 April 2017; Mr Prosia since 27 January 2016; and Ms Sant since 18 August 1997. Mr Prosia and Mr Doyle are employed on a full-time basis and Ms Sant works part-time, working 4 days per week. 3

[12] The progression of the COVID-19 Pandemic in Victoria has included the issue of several directions by the Victorian Chief Health Officer (VCHO) under the Public Health and Wellbeing Act 2008 (Vic). The Directions include those issued in September 2021 and later which the College understood require certain action on its part, as recollected by its Principal, Mr Rob Brennan, with him referencing the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13) (Direction No. 13);

“9. I understand that the Directions require education, facilities, such as the College to:

a. collect, record and hold vaccination information;

b. prevent entry of unvaccinated workers to the school unless the worker holds a valid medical exemption; and

c. notify workers of these requirements as soon as reasonably practicable.

10. The Directions further imposed obligations on educational facilities, including requiring the Respondent to:

a. ensure that their staff, including the Applicant, unless medically exempted from so doing, either receive their first dose by 18 October 2021 or show evidence of a booking within a week of that date being 25 October;

b. ensure staff show evidence of having been fully vaccinated by 29 November 2021 unless medically exempted from so doing; and

c. collect information from staff regarding their vaccination status before allowing them to continue performing their duties.

11. The Directions further provide that where an educational facility does not hold information of a worker’s vaccination status, they are obliged to treat that work as though they are unvaccinated.” 4 (footnotes omitted)

[13] MACS note that contravention of the VCHO Directions would leave it liable under s.203 of the Public Health and Wellbeing Act 2008 (Vic) to a penalty of 600 penalty units (equating to $109,044 per Applicant). 5

[14] According to Mr Brennan there had been weekly virtual staff briefings for some time in 2021 at which vaccination issues have been mentioned on numerous occasions. 6 Once he understood the VCHO Directions to be a “mandate” he informed all staff of the need for them to be vaccinated against COVID-19 and to provide proof of vaccination.7 His evidence is that there were three briefings between the time of the mandate being issued and the date when vaccinations had to be undertaken if evidence is that invited staff to approach him if they had questions or concerns, following which three staff members approached him and “we were able to work through arrangements with them which was suitable under the circumstances”.8 None of the three Applicants approached Mr Brennan with him contending that none “ever spoke to me and in fact had ceased all communication with me even on a personal level”.9

[15] Mr Brennan wrote to each of Mr Doyle, Ms Sant and Mr Prosia on 14 October 2021 explaining the College’s views. The correspondence marked a process of engagement between each Applicant and the College over the following 2 to 3 weeks;

Christopher Doyle

[16] There was a similar but not identical chain of correspondence between Mr Prosia and Ms Sant on the one part and Mr Brennan on the other.

Julia Sant

Antonio Prosia

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE

[17] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it. 10 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.11

[18] In doing so, the Commission must examine whether an enterprise agreement’s dispute settlement procedure “requires or allows” the Commission to deal with the dispute. That task necessitates examination of the text of the dispute settlement procedure, understood in light of its industrial context and purpose, in order to determine whether the dispute, properly characterised, falls within it. 12 The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed since “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”13

[19] The Commission may only deal with a dispute if it is expressly authorised to do so. 14 If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5)15 and the agreement of the parties as recorded in the enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.16

[20] The Full Court summarised the principles for the interpretation of enterprise Agreements in Workpac v Skene as follows:

“The starting point for interpretation of an enterprise Agreement is the ordinary meaning of the words, read as a whole and in context:  City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular Agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial Agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)).  To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced:  see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” 17

[21] The principles enunciated by the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 18 usefully summarise the approach which should be taken in the task of ascertaining the construction of the words of an enterprise Agreement, however do not require repeating in this decision.

CONSIDERATION

[22] The Applicants’ case as set out in submissions filed on their behalf may be summarised as addressing six matters (set out in the order most convenient for me to deal with);

1. There was no consultation with them about a major change, contrary to Clause 17;

2. MACS has unilaterally and impermissibly varied their respective contracts of employment;

3. Neither Applicant consented to take any leave, including leave without pay or long service leave with MACS contravening the Agreement when it placed them on leave;

4. MACS gave no consideration to the possibility of alternative work duties or work arrangements;

5. MACS has breached the FW Act’s general protections provisions (Part 3 – 1);

6. MACS requested private medical information in contravention of the Privacy Act.

[23] MACS rejects each of these contentions as well as arguing that the Applications and the contentions made within them are beyond the jurisdiction of the Commission to determine. Its jurisdictional objection is based on its construction of the disputes procedure clause which limits the agitation and resolution of disputes to those about the application or interpretation of the Agreement or the National Employment Standards.

[24] For applications such as these to be within jurisdiction the alleged dispute must be one the Commission is authorised to resolve, in the manner set out above. The authorisation comes from the terms of the enterprise agreement and the dispute must be one which the term “requires or allows the FWC to deal with” the matter in dispute (s.739(1)). A dispute relating to flexible working arrangements or extensions to unpaid parental leave may only be dealt with in specific circumstances (s.739(2)). The section as a whole is in these terms;

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise Agreement or other written Agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise Agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[25] The Applicants submit that their dispute with the College includes a failure on its part to observe the Agreement’s Introduction of Change provisions, set out within Clause 17. For its part the College denies there has been a breach of the clause, or that there could be given the circumstances of what it has requested of its employees. The alleged dispute itself arises under Clause 22 which enables a person covered by the Agreement to seek the resolution of certain matters in dispute.

[26] The threshold question for consideration is whether, and to what extent, there is a term of the Agreement which “requires or allows the FWC to deal with” the matter in dispute. Clause 22 (Dispute procedures), within Part 2 (General Conditions of Service) provides such opportunity, however for the reasons I shall turn to shortly, such opportunity is limited.

[27] The clause starts by setting out the type of disputes which are encompassed by the procedures and then the procedures themselves;

“22 Dispute procedures

22.1 Dispute settling procedure

Where there is a dispute between an Employee (or Employees) and the Employer about:

(a) the application or interpretation of this Agreement (the matter in dispute); or

(b) the National Employment Standards;

the following procedures will apply.

22.2 Procedure Step 1

Every attempt shall be made to resolve a dispute, in the first instance, by discussions between the individual(s) directly involved at the workplace and the Employer. This does not preclude the right of either party to seek advice from outside the workplace, nor does it necessitate such an approach where this is impracticable.

22.3 Procedure Step 2

When a dispute is not resolved by Step 1, the Employee or the Employer may each seek the assistance of a representative in order that a further attempt can be made to resolve the matter. The Employee representative may include a union official or union delegate.

22.4 Procedure Step 3

(a) In the event that Steps 1 and 2 fail to resolve the matter, it may be referred by either party to the Commission for its assistance in resolving the matter by conciliation. The matter should not be referred by either party to the Commission prior to the completion of Steps 1 and 2.

(b) Until the dispute is determined, work shall continue normally in accordance with the custom or practice existing before the dispute arose, while discussions take place.

(c) No party shall be prejudiced as to the final settlement by the continuance of work. Health and safety matters are exempted from this sub-clause.

(d) Where the matter is not resolved by conciliation, either party may request that the Commission arbitrate the matter in dispute. Any such arbitration shall be subject to and in accordance with this clause.

(e) In arbitrating the dispute the Commission may only:

(i) give directions about the process to be followed within the school to resolve the matter in dispute; and/or

(ii) determine the matter in dispute consistent with the limits or standards set by the relevant provisions of this Agreement.”

[28] What may be drawn from the term and of relevance to these Applications is the following;

•  The procedures apply only to matters of “application or interpretation of this Agreement” or the National Employment Standards, being the rights and obligations set out in the FW Act’s Part 2 – 2;

•  The Commission’s role in dealing with the disputes is articulated in clause 22.4, (being “Procedure Step 3”), and is expressly confined, first to conciliation and then to arbitration upon the request of a party to a dispute. The Commission’s arbitral role is limited in the way set out within clause 22.4 (e) namely to “give directions about the process to be followed within the school to resolve the dispute” and/or to “determine the matter in dispute consistent with the limits or standards set by the relevant provisions of this Agreement”.

[29] The implication of these matters is that the capacity for the Applicants to bring their disputes and have them resolved by the Commission is a function entirely of the dispute procedures set out in clause 22 and in particular the matters set out in clause 22.1 and 22.4 (e). In short form unless the alleged dispute relates to the application or interpretation of the Agreement or to the National Employment Standards (NES) then the dispute will not be able to progress since it would not be within the Commission’s jurisdiction to resolve. In the event that the dispute does progress after it has been found to be within jurisdiction the Commission is constrained as to remedy in the manner set out in clause 22.4 (e).

[30] The other clause requiring consideration is Clause 17 (Introduction of Change), which is in the following terms;

“17. Introduction of change

17.1 Employer’s duty to notify in relation to the introduction of major change

(a) Where an Employer has made a definite decision to introduce major changes in program, organisation, curriculum, structure or technology that are likely to have significant effects on Employees, the Employer shall notify the Employees who may be affected by the proposed changes and the Union.

(i) “Significant effects” include: termination of employment; major changes in the composition, operation or size of the Employer’s 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.

(b) Provided that where the Agreement makes provision for alteration of any of the matters referred to herein, an alteration shall be deemed not to have significant effect.

17.2 Employer’s duty to discuss change

(a) The Employer shall discuss with the Employees affected and their Union, inter alia, the introduction of the changes referred to in clause 17.1, the effects the changes are likely to have on Employees and the measures to avert or mitigate the adverse effects of such changes on Employees, and shall give prompt consideration to matters raised by the Employees and, where relevant, the Union, in relation to the changes.

(b) The discussions shall commence as early as practicable after a definite decision has been made by the Employer to make the changes referred to in clause 17.1.

(c) For the purposes of such discussion, the Employer shall provide in writing to the Employees concerned and the Union all relevant information about the changes including:

(i) the nature of the changes proposed;

(ii) the expected effects of the changes on Employees; and

(iii) any other matters likely to affect Employees provided that any Employer shall not be required to disclose confidential information, the disclosure of which would be inimical to the Employer’s interests.

(d) Employees may be represented for the purposes of any discussions held in accordance with clause 17.2.

17.3 Change to regular roster or ordinary hours of work

(a) Where an Employer proposes to change an Employee’s regular roster or ordinary hours of work, the Employer must notify the Employee(s) who may be affected by the change (“the relevant Employees”) of the proposed change.

(b) The relevant Employees may appoint a representative for the purposes of the procedures in this clause. If a relevant Employee appoints, or relevant Employees appoint, a representative for the purposes of consultation and the Employee or Employees advise the Employer of the identity of the representative, the Employer must recognise the representative.

(c) As soon as practicable after proposing to introduce the change, the Employer must discuss with the relevant Employees the introduction of the change.

(d) For the purposes of the discussion, the Employer must provide to the relevant Employees all relevant information about the change, including the nature of the change, information about what the Employer reasonably believes will be the effects of the change on the Employees and information about any other matters that the Employer reasonably believes are likely to affect the Employees. However, the Employer is not required to disclose confidential or commercially sensitive information to the relevant Employees.

(e) The Employer must invite the relevant Employees to give their views about the impact of the change including any impact in relation to their family or caring responsibilities. The Employer must give prompt and genuine consideration to matters raised about the change by the relevant Employees.”

[31] The conduct of the College which is in dispute concerns two matters;

•  the direction to each Applicant to provide evidence of their COVID-19 vaccination status (the COVID-19 Vaccination Status Direction);

•  a refusal to consider alternative work duties or work arrangements for each Applicant (including for the possibility of working from home) (the Alternative Work Duties or Arrangements Decision).

[32] The evidence about the COVID-19 Vaccination Status Direction is relatively straightforward and comprises advice to each Applicant from Mr Brennan on Thursday, 14 October 2021. On that date Mr Brennan advised each of the Applicants that information he had received at a MACS briefing on 13 October 2021 included that “unvaccinated staff should be refused entry and asked to leave school grounds if they present to the school after this date” and that he needed to know if each intended to get vaccinated or instead wished to take leave as a result of their choice not to become vaccinated. 19 He put his position beyond doubt when he wrote to each on 15 October 2021 and informed them of these matters;

“The Victorian Chief Health Officer has determined that vaccination will be mandatory for staff who work in schools. This includes principals, teachers, administration and education support staff, casual relief teachers and pre-service teachers.

The Directions require employees of schools to have their first dose of COVID-19 vaccine by 18 October or a booking within one week of that date. All staff are required to be fully vaccinated by 29 November 2021, unless a medical exemption applies and employees will be required to show evidence of their vaccination status. Staff who do not get their first dose of COVID-19 vaccine by 18 October (or a booking within one week) will not be permitted to work in schools. The above dates are requirements of the Directions and the College cannot allow an unvaccinated worker to enter or remain on, the premises of the College for the purposes of working at the College following those dates.

For a worker who is, or may be, scheduled to work at the College on or after the 18th of October, the College must collect, record and hold vaccination information about the worker. This is required of the College in accordance with the directions pursuant to section 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic) (the Act). Further information is available within the Directions, see link enclosed;

https://www.dhhs.vic.gov.au/sites/default/files/documents/202110/covid-19-mandatory-vaccination-%28specified-facilities%29-directions-%28no-6%29.pdf

An employee who has not provided information regarding their vaccination status as set out above, will not be permitted to attend the College, as these employees will be considered unvaccinated, as per the Directions, Clause 5 (2). Vaccination information may be recorded in a variety of documents, such as a letter from a medical practitioner, a certificate of immunisation or an immunisation history statement obtained from the Australian Immunisation Register.

You are able to directly update your vaccination status to the Personal Record System (PRS) available on the CEVN website. To support employees to update their vaccination status on the PRS a video has been prepared to talk employees through the process. This video can be found by clicking on this link.

This request for information and your response is optional, although, unless a valid exception applies, the College is precluded by the Directions from allowing you to enter to work unless you have been vaccinated as specified in the Directions. By providing this vaccination information you will enable the College to determine whether or not it may allow you to enter the College as indicated. Should you not provide this vaccination information, the College is required to treat you as an unvaccinated worker in accordance with the Directions. I have enclosed for you a copy of the CECV data collection statement for your information.

Under the Act, the Chief Health Officer has emergency powers that can be exercised where a public health emergency has been declared - which is currently the case in Victoria. These powers include the ability to issue required health directions. In this instance, the Chief Health Officer has issued required health directions that require operators of schools to take all reasonable steps to ensure that employees who are not vaccinated do not attend the workplace. The College has therefore issued a lawful and reasonable direction to employees attending the College to ensure the required health directions have been met.

If an employee does not comply with vaccination requirements, they will be informed by the College that they must not attend the school premises. Between 18 October 2021 and 29 November 2021, an employee who does not comply with vaccination requirements will not be able to attend on site and will not be provided alternative duties, including remote work.

The vaccination directions provide that if schools do not hold vaccination information about a staff member, the school must proceed as if the staff member is unvaccinated. Therefore, in order for the College to fulfil its obligations detailed in the vaccination directions, you are directed to not attend on site on or after 18 October 2021 until you can demonstrate you comply with the vaccination directions.” 20 (underlining added)

[33] Although perhaps a little repetitive and imprecise in certain respects, the key messages of the communication are very clear both as to their purpose and the directions given;

•  Staff must have provided evidence of their first vaccination by 18 October 2021 and their second by 29 November 2021 and will not be permitted to work at the College if they fail to provide such evidence;

•  The direction is put forward as a lawful and reasonable direction of the College; and

•  An employee who does not comply with the College’s vaccination requirements will not be able to attend its site and will not be provided alternative duties, including remote work.

[34] The evidence about the Alternative Work Duties or Arrangements Decision is less clear. In the passage of the 15 October 2021 correspondence set out above the Applicants are informed that unvaccinated staff would not be permitted entry to the College’s site and “will not be provided alternative duties, including remote work”. It appears from the material before me that prior to this stipulation being made there had not been a specific request from any of the Applicants to continue to work from home or to have their duties varied, but that Mr Brennan had formed the view after discussions and exchanges with them individually that he needed to make the stipulation. His evidence was that by that time there had been a large amount of engagement with each of the Applicants about their situations and that from this engagement he surmised none of them intended to be vaccinated. It was also the case that by mid-October the College expected students to shortly return to its campus in order to finish the last weeks of the school year. Mr Brennan’s evidence was that senior students returned on site on 18 October and others on 25 November 2021. By that later date all students had returned to on-site learning which in itself was a Government mandated return. 21 Further, in response to a question from MACS’s Counsel, Mr Denton, Mr Brennan gave evidence that alternative work arrangements were not an option for two reasons;

“And just one follow up question, the alternative work arrangements which you gave evidence was not requested, and there's been as was described earlier, a challenge to the school about offering remote work arrangements, why were no remote learning options or alternative work arrangements offered by the school? There's two elements to that, Mr Denton, the first element is the direction from MACS was that that wasn't an option and the second element is the pragmatics or the practicalities of it is that once students return to school and they were on site, I needed teachers to be in classroom not only teaching them, delivering them curriculum but also carrying out other elements of their work and that is the supervision and the care of students on site. So they both - for those two reasons, they both weren't an option.” 22

Consultation about major change

[35] The Applicants argue there has not been consultation with them about major change as those things are dealt with in Clauses 17 (Introduction of Change), the terms of which are set out above. The Applicants refer to correspondence from Mr Brennan on 18 October 2021 making these submissions;

“… it was communicated to the applicants that the employer was then intending to fulfil his obligations detailed in the mandatory health directions by preventing the Applicants from gaining normal access to their regular work site, based on the employer’s assumption that the Applicants were unvaccinated. The period of enforcement for this arrangement was between Monday 18 October 2021 to Monday 29 November 2021.

At this time the employer did not supply the Applicants with any lawful exemption held by the employer to the authority of the Privacy Act.

At this time there was no prior consultation by the employer with any of the Applicants in relation to the major changes that were enforced on the Applicants’ existing work contract conditions and arrangements.” 23

[36] The Applicants submit MACS failed in its obligation under the Agreement to partake in any process of consultation before changing their conditions. Further these were major changes to their work contracts, made at short notice by MACS. The Respondent “did not properly discuss the changes or the likely consequences of the changes”. 24 They also contend the matter of CFMMEU v Mt Arthur Coal25 (Mt Arthur Coal) has relevance and application to their circumstances, reasoning that;

“In this decision the Fair Work Commission decided that BHP as employer had failed to properly consult its staff, including by giving them access to data, and therefore could not show that its mandate was reasonable.” 26

[37] The Respondent argues that there has been no such failure to consult chiefly because the prerequisite within Clause 17 to the effect that there has been “a definite decision to introduce major changes” is not present. Rather, what has occurred from the Respondent’s perspective is that it has implemented the things it is required by law to implement, namely the VCHO’s Directions which at the time included requirements to ascertain information as to employee’s vaccination status as well as to prevent the attendance at specified workplaces, including schools, of people who were not vaccinated. Further, MACS argue that the requirement for consultation is limited. 27

[38] The Applicants’ submissions that there was an obligation on the part of MACS to consult with them about major changes to their work contracts is a misapprehension as to the purpose of the consultation term and the rights and obligations conferred on the parties therein.

[39] While not conferring rights of consultation about contractual changes in and of themselves the term instead confers the right of employees to be consulted where “the introduction of the changes referred to in clause 17.1”. Subclause 17.1(a) requires notification to be given to employees of the proposed changes “[w]here an Employer has made a definite decision to introduce major changes in program, organisation, curriculum, structure or technology that are likely to have significant effects on Employees”. A definition of “significant effects” is set out in paragraph (i). Clause 17.1(b) provides that a provision in the Agreement to make the referenced changes means the changes are deemed not to have significant effects.

[40] In this case the things comprising the COVID-19 Vaccination Status Direction are not reasonably to be found as a definite decision on the part of MACS. The things set out within it are in substance no more than a statement by MACS of the steps it considers it needed to take in order to comply with the VCHO Directions. The Applicants do not in these proceedings challenge the VCHO Directions 28 and no party took me to any inconsistency between the content of the COVID-19 Vaccination Status Direction and the VCHO Directions.

[41] A finding to the effect that MACS made a definite decision to require the indicated vaccination steps is not open to me. Conforming to the law is not to be regarded as a discretionary step on the part of MACS about which it needs to make decisions of this type. MACS had no choice on the matter, at least in respect of the classes of employee who could be allowed on site after 29 November 2021. The two classes were those who were “fully vaccinated” and those who held a “medical exemption” or “valid exception”, 29 noting that the VCHO Directions refer to an “excepted person”, being one who holds certification from a medical practitioner of their inability to receive a vaccination dose.

[42] A subsidiary question is whether there should have been consultation with the Applicants over the matter of whether their work could be done from home. MACS argue that the possibility of such arrangement was not feasible, since at the time the VCHO Directions came into effect it was in the process of returning all students to the school campus and required its staff to similarly attend.

[43] The ordinary course of employment for the Applicants was to work from the College’s premises. Whereas there had been a lengthy period where work from home was imposed as a result of COVID-19, that was logically not permanent and would come to an end at some time. Despite what may have taken place and the habit of the Applicants working from home such does not amount to an arrangement under the Agreement that work can always be done from home, or for an extended period.

[44] Mr Brennan also pointed out that none of the Applicants asked to work from home or to otherwise have their working arrangements changed. Mr Denton, Counsel for MACS, coupled this with the qualitative nature of the consultation term; employees had certain rights to be consulted, which he argued had not been triggered, and on the other side of those rights the purpose of consultation was to provide an opportunity for the expression of views and offering of alternatives which the employer was obliged to consider. The opportunity had been given for dialogue between the Applicants and the College and it had never been said that they wanted to be considered to work from home indefinitely.

[45] Much of the Applicants’ correspondence with the College, replicated in their submissions to the Commission, is repetitive and tendentious and comprised of misdirected or rhetorical questions. For example, rather than saying “I don’t propose to be vaccinated” and then asking “in view of that, how can I still perform my job?”, they have put the College to the task of responding to innumerable faux debates, such as this extracted from Mr Doyle’s correspondence to Mr Brennan on 15 October 2021;

“Unfortunately, due to the nature of the request I am unable to supply this information, as it appears to contravene the Privacy Act 1988 (Commonwealth). The required information is classified as sensitive information and is afforded a higher level of protection than other personal information. (Please see link: What is personal information? - Home (oaic.gov.au). A person’s medical information is confidential and is between a patient and their medical practitioner, and this type of information is not normally required to be made public or provided to a third party without consent.

As I am afforded legislative protection to my medical privacy, I DO NOT consent to supplying this information.

However, if you have a lawful exemption which may impact or override the authority of the Privacy Act 1988, please supply me with a copy of this exemption, and I may then be able to fulfil your request.

Please note that without the requested information, any suggestion that I am unvaccinated will be based on speculation. Therefore, the statement that unvaccinated staff should be refused entry and asked to leave school grounds if they present to the school after this date (October 18, 2021) would not seem to apply to me.

If it does, can you please make this clear in your reply to this communication?” 30

[46] When Mr Brennan responded he endeavoured to reduce the scope for unbounded consideration, arguing to Mr Doyle in his covering email that his dealings were “relational and what I know is that this situation is very difficult and has no personal basis to it. As an employee of MACS, I am following the instructions I have been given in my given role” 31 His substantive response which was attached to the email is extracted above, draws the recipients’ attention to the need for vaccination or “a valid exception”. He characterised this as being a lawful and reasonable direction advising that an employee who failed to follow it would not be permitted entry to the College or provided alterative duties including remote work.32

[47] Mr Brennan’s 15 October 2021 correspondence unambiguously communicates a final position on the subject with it being an amalgam of a summary of the VCHO Directions (which are by no means easily summarised) and some additional matters which may be characterised as decisions by the College or MACS. The first page of the letter to Mr Doyle (with similar statements being made in separate correspondence to Mr Prosia and Ms Sant) is no more than a summary of the legal effect of the Directions. The second page deals with the following matters;

•  A direction, characterised as optional, to update Mr Doyle’s vaccination status to an extranet site operated by the Catholic Education Commission of Victoria Ltd. I consider this direction on the part of the College merely to be a facilitative direction for the purposes of compliance with the Directions. It is not one to which Clause 17 can be said to apply.

•  A statement that the consequence of the above direction, being optional, not being complied with indicates such an employee is treated as an unvaccinated worker under the Directions, and again is merely a statement of the College’s obligations;

•  An indication that upon non-compliance with the vaccination requirements the College will inform employees of such amounts to a decision on the part of the College, but hardly one that attracts the powers of Clause 17.

•  The statement that as a presumed unvaccinated person Mr Doyle may not attend the College “until you can demonstrate you comply with the vaccination directions” is not to be taken as a decision of the College, but a relay to him of what the College understood the law to be.

•  The page includes potentially two other matters that amount to decisions of the College;

•  “Between 18 October 2021 and 29 November 2021, an employee who does not comply with vaccination requirements will not be able to attend on site and will not be provided alternative duties, including remote work”, with the relevant decision being underlined; and

•  That in Mr Doyle’s case, since he did not have a current entitlement to long service leave he will be on leave without pay between 18 October 2021 and 29 November 2021

[48] The Respondent notes that between 14 October and 3 November 2021 Mr Brennan engaged in extensive consultations with the Applicants in an attempt to explain the effect of the Directions and to discuss their concerns, describing its efforts as “cogent consultation” as well as “proactive communications … with regards to the Directions and their effect on the Applicants’ employment”. 33 There had also been weekly meetings with the whole staff cohort with Mr Brennan giving this evidence in his witness statement about their purpose and content;

“13. The staff meet for a briefing every Monday morning which was held remotely for the vast majority of the year due to COVID recommendations. This meeting was used to update staff on the directions the College was receiving via MACS from the Government regards COVID amongst other items of the day.

14. The issue of vaccination was mentioned on numerous occasions even before the mandate being issued as all indications we were getting suggested that ultimately a mandate would be imposed on all staff in schools. On each of these occasions I emphasised these were not directions of the College and that all we were doing was informing staff of the directions we were being given. I always invited staff to come and see me if they were not comfortable with the information being provided or if they required clarification on any of the directions.

15. A number of staff took up this option and sort (sic) clarification or just talked through any issues they had. On receiving confirmation of the mandate I informed all staff of the need for them to be vaccinated and to provide proof of their vaccination.

16. This was repeated in each of the three briefings between the mandate being issued and the date where vaccination had to be undertaken. On each occasion I invited staff to come and see me if they had any questions or concerns, which three staff did and we were able to work through arrangements with them which were suitable under the circumstances.

17. None of the three applicants ever spoke to me and in fact had ceased all communication with me even on a personal level. All briefings were followed with a notice that outlined what had been discussed at the briefing and included directions as to where to find any corresponding information.” 34

[49] In its oral submissions the Respondent referred to the matters within Clause 17; namely the requirements to notify employees of whatever changes are being dealt with; to discuss the introduction of the proposed changes; to consider measures to avert or mitigate the adverse effects of what was discussed; and to give prompt consideration to matters raised by employees. Without conceding that the terms of the consultation provision applied to the situation MACS argues it did each of those things. MACS further argue that when afforded the opportunity to discuss matters with the College the Applicants did not take up the opportunity, putting forward that at no time did any of the Applicants make a request to the College to allow them to work from home or to put in place any remote alternative duties. 35

[50] The Respondent’s written submissions rejected the applicability of the Full Bench’s reasoning in Mt Arthur Coal putting forward the decision is not relevant to these matters;

“58. The dispute in Mt Arthur concerned an announcement by the Employer that all employees must be vaccinated to enter the work site. None of the parties in that dispute submitted that there were any public health orders that would provide the legal basis for the Site Access Requirement and it therefore derived from the implied term that employees must follow the lawful and reasonable direction. The Commission had jurisdiction to determine that issue as the dispute resolution procedure in Mt Arthur’s agreement was not limited to disputes about matters arising under the agreement but extended to ‘any dispute […] arising in the course of employment’.

59. In reaching its conclusion, the Full Bench expressly noted that the requirement for the direction to be lawful and reasonable (and therefore encapsulating consultation requirements) was in cases “absent a public health order.”

60. Mt Arthur is distinguishable as it concerned a definite decision of a private company, independent of any government mandate, to require its employees to be vaccinated. In those circumstances, the Full Bench that the Respondent had failed to consult its employees in mandating the vaccinations.

61. The present circumstance, as has been discussed, does not involve a definite decision of the Respondent but a mandate of the Victorian Government. It is not possible for the Respondent to have consulted with the Applicants prior to the Directions being issued in circumstances where they had no part in the decision-making process.” 36 (highlighting in original; footnotes omitted)

[51] I accept this reasoning, both as to the submissions made about the breadth of the dispute resolution procedure in effect at the Mt Arthur workplace and the distinction drawn about the absence of a public health order. I also accept the characterisation of the matters in dispute in this matter, being that there is no definite decision of the Respondent.

[52] Mt Arthur Coal noted both that there were no submissions before it that an obligation to be vaccinated flowed either from applicable public health orders of contracts of employment 37 and that the employer’s decision making was not imposed upon it through a public health order, but was instead made by the Respondent’s organisation-wide response to the COVID – 19 pandemic.38 With respect to the breadth of the dispute resolution procedure, the Full Bench noted that it “is not limited to disputes about matters arising under the Agreement and extends to ‘any dispute […] arising in the course of employment’”.39

[53] It its concluding remarks, the Full Bench in Mt Arthur Coal distinguished between circumstances in which vaccination as a condition for entry arose from public health or contractual matters and those in which it flowed from a direction by an employer seeking to rely upon its capacity to give lawful and reasonable directions to employees and require them to be complied with;

“[258] Absent a public health order or an express term in a contract of employment or industrial instrument, the basis for an employee to be vaccinated as a condition of entry to work premises must derive from the implied contractual term that employees obey the lawful and reasonable directions of their employer.

[259] 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.” (endnote omitted)

[54] It is apparent from the material in these Applications that MACS and the College’s Principal Mr Brennan were acting for the singular purpose of complying with the law as set out in the VCHO Directions. As demonstrated through Mr Brennan’s evidence, he understood the effect of the directions to be relatively simple, albeit subject to some nuance – attendance at the College after 29 November 2021 required vaccination against COVID-19 or provision of a valid exemption from the requirement. The indicated nuance concerned the circumstance of an employee who had arranged a booking for a vaccination but had not yet actually had it within a week of 18 October 2021.

[55] Those are not matters which may be found as a definite decision on the part of the College or MACS. I doubt that even if they were found to be a definite decision that they could then be characterised as major changes in program, organisation, curriculum, structure or technology that are likely to have significant effects on employees. The decision, if there was one, was to comply with the law. At some level compliance with the law may result in “major changes … likely to have significant effects” (for example, in the case of school which had its licence to operate withdrawn), however such does not appear to be the case here. The requirement imposed on employees was to disclose their vaccination or exemption status or to be barred from entry to the College’s campus. There may be an element of coercion to the requirement, in the sense of it being “a form of economic and social pressure”, 40 however it does not flow that such is a major change likely to have significant effects. It is foreseeable that the requirement may have individual, personal implications, however there is no evidence that it was foreseeable the requirement would be a major change with likely significant effects. Whether a particular change decided upon by an employer is a major change will require assessment of the all the circumstances.41

[56] In this case, the Applicants are 3 employees of MACS working at a large secondary College located in Braybrook, Victoria. Two are teachers, and the third is a Learning Support Officer. The College conducts its work from a single campus and, absent home-schooling orders, teaches its students when they are at its campus. There is nothing in the evidence or material before me that would suggest either that the College had historically worked through remote learning methods or that it would do so on a broad scale in the future. These matters go against a finding that a direction from the College that its employees must work from its campus would be a major change likely to have significant effects.

[57] The Alternative Work Duties or Arrangements Decision is also not a major change within the meaning of Clause 17, noting that the decision was to not offer those things to the Applicants. Since the alternatives are at best matters of effect mitigation it is not possible to characterise them as a major change. Consequently, there was no obligation caused by Clause 17 for MACS to consult about those matters. Even so, I note and accept the evidence of Mr Brennan about the feasibility of providing the Applicants with alternative work duties or arrangements. 42

[58] In conclusion, I find;

•  MACS did not have an obligation to consult with its employees about the implementation of the COVID-19 Vaccination Status Direction.

•  MACS also did not have an obligation to consult with its employees about the Alternative Work Duties or Arrangements Decision.

Contract of employment

[59] The Applicants advance several assertions about the unilateral variation of their contracts of employment. In particular it is argued that;

•  The change of employer from Caroline Chisholm Catholic College to MACS in 2021 did not disturb the underlying terms and conditions of their pre-existing contracts; 43

•  MACS’ requirement to provide proof of vaccination is a requirement to provide sensitive information protected by the Privacy Act and is not consistent with the any of the Applicant’s contract of employment; 44 and

•  MACS’ vaccination requirements were “enforced changes made by the employer to the contractual work arrangements were major changes that caused the applicants to experience significant adverse economic, psychological, medical, social, and health and wellbeing consequences”. 45

[60] It is of course the case that the terms of a contract of employment may be derived from several sources; there are “four sources of the rights and obligations of the parties to an employment contract: the contract’s express terms; the contract’s implied terms; statutes, including industrial instruments made pursuant to statutes; and the common law, including equity and tort. This simple classification belies the complexity in identifying all the obligations of the parties.” 46 Even so, “[s]tatutes and industrial instruments create statutory rights not contractual rights, subject to the exceptions discussed below. The FW Act does not directly import the NES or the terms of modern awards or enterprise agreements into employment contracts. A contravention of the NES or those industrial instruments gives rise to a statutory cause of action, not an action for breach of contract.”47

[61] Noting that the jurisdiction of the Commission in disputes arising under the Agreement is confined in the way set out in Clause 22 (Dispute procedures) to disputes either about the application or interpretation of the Agreement or the NES it is plainly the case that there is no jurisdiction for the Commission to deal with those aspects of the dispute advanced by the Applicants relating to unilateral changes to their contract of employment. The Agreement deals with matters of contract or contract of employment in relatively few places and in no case is its reference to contracts to be taken as an opportunity to advance a dispute about unilateral changes to a contract of employment generally.

[62] Accordingly I find the Applicants’ alleged disputes about unilateral changes to the contract of employment are not disputes falling within the scope of Clause 22 of the Agreement since they are not disputes about the application or interpretation of the Agreement. Therefore the Commission’s jurisdiction to deal with the alleged contractual disputes under Clause 22 and thereby under s.739 of the FW Act is not enlivened.

Consent to take leave

[63] Through his correspondence to the three Applicants on Thursday, 14 October 2021 Mr Brennan advised them that information he had received at a MACS briefing on 13 October 2021 included that “unvaccinated staff should be refused entry and asked to leave school grounds if they present to the school after this date” and that he needed to know whether each intended to get vaccinated or wished to take leave as a result of their choice not to become vaccinated. Mr Brennan further advised;

“If you decide to take leave please be reminded that you have two options for this leave: either LSL or Leave without pay.

For your information, my understanding is that these expectations will remain in place into next year unless there is a successful challenge or a change in direction by the government.” 48

[64] The Applicants replied to Mr Brennan on Friday, 15 October 2021 asserting a number of things about their rights as well as seeking information from MACS. It is convenient to focus on Mr Doyle’s version of the correspondence, which it is noted is almost identical to the other Applicants versions of the correspondence. He raised the question of being required to take leave and particularly long service leave or leave without pay in the following week. He asked which section of the Agreement or his employment conditions did MACS have the authority to force him to take such leave without his consent. Mr Doyle further made the point that based on his length of service he did not qualify for long service leave and that “imposing financial sanctions in the form of leave without pay will impose financial hardship and cause me undue anxiety and stress”. 49 Notwithstanding this advice Mr Brennan proceeded to advise the Applicants on Friday, 15 October 2021 that they were directed to not attend on-site on or after 18 October 2021, with the following set out in the correspondence to Mr Doyle (extracted in greater detail above);

“Therefore, in order for the College to fulfil its obligations detailed in the vaccination directions, you are directed to not attend on site on or after 18 October 2021 until you can demonstrate you comply with the vaccination directions.

I understand that you do not hold a current entitlement to long service leave. Therefore, you will be on leave without pay, during this period.” 50 (underlining added)

[65] The whole of the circumstances of the matter lead to the conclusion that this was a direction in two parts, firstly that he was not to attend the worksite from 18 October 2021 and 29 November 2021 and that secondly during the period he would be on leave without pay.

[66] Leave without pay is dealt with extensively in the Agreement as set out in Clause 26 (leave without pay), however it is not necessary for the purposes of this decision to replicate the clause in full since the circumstances contemplated by the various subclauses are quite different from those of Mr Doyle’s. Instead there is a single relevant subclause as follows;

“26.1 General provisions

(a) While an Employee has the right to apply for leave without pay, the granting of such leave is at the discretion of the Employer.”

[67] While granting employees the right to apply for leave without pay neither the clause nor any other part of the Agreement stipulates a right of the employer to require employees to progress on leave without pay. I doubt that such would lead to a finding that there is no ability for an employer to give such a direction; instead the only finding that may be made on the subject is that the Agreement countenances employee applications, but does not expressly deal with employer directions.

[68] As I have not found a term of the Agreement to have been contravened there is no jurisdiction for me to determine this element of the Applicants’ dispute.

Consideration of alternative work duties or work arrangements

[69] The Applicants submit the “lack of proper consultation by the employer prior to changes to the applicants’ contractual arrangements meant that there was no consideration or offer made to the applicants by the employer for alternative work duties or work arrangements during the nominated period Monday 18 October 2021 up until Monday 29 November 2021”. 51 In Mr Doyle’s correspondence to Mr Brennan on 15 October 2021, he argued that;

“Your deliberate coercion to force me to take a vaccine in order to attend the work place next week is completely unreasonable. In the absence of my disclosure of vaccination status due to my privacy concerns, you have made no offer of other reasonable alternatives (such as remote working) to continue with my employment duties.” 52

[70] Mr Brennan’s evidence on the subject is that he was never asked to consider alternatives and that no mention of alternative working arrangements was made until the Applications were commenced in the Commission. 53 It is noted however that Mr Brennan’s response to Mr Doyle on 15 October 2021 ruled out the possibility of alternative arrangements with him stating;

“Between 18 October 2021 and 29 November 2021, an employee who does not comply with vaccination requirements will not be able to attend on site and will not be provided alternative duties, including remote work.” 54

[71] This was reiterated to Mr Doyle in further correspondence from Mr Brennan dated 18 October 2021. 55

[72] At the Hearing, Mr Brennan gave evidence that once students returned to the classroom, the teachers had to be in the classroom as well. This was not only to teach the students, but to also supervise and care for them. 56

[73] Amongst other things MACS response on the subject includes that is not obliged to consider alternative work arrangements. 57 It argues as well, and correctly, that “to the extent that the Applicants has sought flexible work arrangements, pursuant to section 739(2) of the FW Act, the Commission cannot deal with a dispute of that nature as it does not form part of the Agreement”.58

[74] Such submission though appears to be a mischaracterisation of the Applicants’ case in this regard. Section 739(2) prevents the Commission from dealing, without explicit authorisation to do so to deal with a dispute “to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4)”. I do not take the Applicants to be arguing they sought a flexible working arrangement under s.65 and no question arises about unpaid parental leave, being the subject of s.76. While the Applicants certainly seek – now at least – alternative working arrangements, this is not to be taken as an application for a flexible working arrangement under s.65.

[75] I accept what Mr Brennan had to say on the matter of the consideration of alternatives. In October his College was moving apace to return teaching to its campus. He was endeavouring to comply with the Directions and to ensure employees established their vaccination status as required by the Directions. His options at the time were relatively limited; employees could be vaccinated and those who were not would be allowed to utilise their accrued long service leave, or failing that, to proceed on unpaid leave. These options had been identified to the staff generally, including the Applicants by at least 14 October 2021. None of the Applicants said to the College at the time that they wished to be considered for alternative working arrangements, or to continue working from home.

[76] In the context of these applications, the Agreement does not explicitly deal with an entitlement of employees to work remotely, although it is noted that Clause 59(b)(i) provides that teachers’ work “may be performed in other locations including, for example, the Employee's home”. The clause that follows provides the clarification that “There is no set attendance requirement for Teachers at the workplace beyond their scheduled duties including classroom teaching”. Taken together the clauses must be seen as permissive; while they enable some work to be done away from the classroom, it does not follow that a teacher could argue they had an entitlement to perform all their work remotely.

[77] As a result I do not find the Applicants’ contentions about the provision of alternative work duties or work arrangements are matters that may be the subject of arbitration under Clause 22.4(d).

[78] If I am wrong in that assessment, I would note the provisions of Clause 22.4(e) would necessarily confine what could be done as a result. The only feasible direction to be given “about the process to be followed within the school to resolve the matter in dispute” (Clause 22.4(e)(i)) would be a direction about consultation. There is also plainly no determination to be made within the “limits or standards set by the relevant provisions of this Agreement” (Clause 22.4(e)(ii)), other than perhaps a direction to engage in consultation.

[79] Consultation is for the purposes of exchanging information and views about proposed decisions before they are finally made. Even if arbitration about the provision of alternative work duties or work arrangements was within jurisdiction I would not, in the circumstances of this matter, direct or determine that it take place. The College has demonstrated it considered the position the Applicants’ hold about remote working and found it to be lacking in feasibility. The matter does not require further consideration.

General protections provisions

[80] In their submissions the Applicants contend that MACS has contravened the FW Act’s Part 3 – 1, comprising the general protections. It is said by them they have been subjected to adverse action for reason, it seems, of them having a protected attribute or workplace right or for the purposes of coercion.

[81] The protections within Part 3 – 1 are exercisable only upon specific application and, in the case of applications not connected with a dismissal (a “non-dismissal dispute”, commenced under s.372), provide the Commission only with the jurisdiction to conduct a conference, and then only if the parties to the dispute agree to participate (s.374).

[82] The Commission as presently constituted has no jurisdiction to determine those allegations.

Privacy Act

[83] The Applicants contend that when MACS issued its COVID-19 Vaccination Status Direction it contravened the Privacy Act, with it in turn being said that such is either a breach of their contracts of employment or the Agreement.

[84] The Applicants argue they declined MACS’ request for the provision of private medical information, in the form of advice of their COVID-19 vaccination status, because of the “unusual nature of the requested information”, viewing it as “sensitive information” under the Privacy Act, and in response they sought information from MACS about whether it had an exemption under that Act to seek the information. 59

[85] The Applicants’ case about the Privacy Act and its connection with the Agreement is unclear. They appear to be saying both that there has been no consultation about a major change, in the form of the requirement to disclose their vaccination status, as well as it being a unilateral change to their contract of employment. Finally, the Applicants’ submissions could be taken as an argument that the disputes procedure generally allows a determination that MACS may not ask for information in contravention of the Privacy Act.

[86] The matter of whether the COVID-19 Vaccination Status Direction required consultation under Clause 17 of the Agreement has already been dealt with. I am not satisfied there was an obligation on MACS to consult about the Direction.

[87] The question of the Direction for the provision of information about the Applicants’ vaccination status amounting to a unilateral change to the Applicants’ contracts of employment is addressed above, being found to be beyond the Commission’s jurisdiction to determine.

[88] There is also no right under the Agreement to pursue disputes pertaining to the employment relationship generally. As determined above, the Disputes procedure is confined in the way set out in Clause 22 to disputes either about the application or interpretation of the Agreement or the NES.

[89] While noting the lack of clarity about the Applicants’ case on the matter of the Privacy Act and that the subject was not sufficiently argued before me for a detailed response to be given to the subject, I note two matters.

[90] First, there is no proposition to be had to the effect that collection of the information by MACS is somehow optional. Instead the material before me shows amply that MACS has duties mandated by the VCHO Directions. There is no doubt on the subject and it must comply upon pain of civil penalty prosecution. The Privacy Act itself acknowledges there will be circumstances in which “the collection of the information is required or authorised by or under an Australian law or a court/tribunal order” (Australian Privacy Principle (APP) 3.4) and there is no argument to be had before me that such is inapplicable.

[91] Second, I note the detailed consideration given to the operation of the Privacy Act by Deputy President Asbury in CFMMEU & Ors v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance/BMA & Ors 60 (BMA) and consider her reasoning to have application to the matters in contest in these Applications as well.

[92] The context of BMA includes that the parties had agreed to seek a Recommendation from the Commission in the form of an answer to the following question: “Is the Site Access Requirement a lawful and reasonable direction or not, having regard to (1) the Privacy Act and (2) the right to bodily integrity?”. The Reasons given for the Recommendation carefully analysed the application of the Privacy Act, whether consent to the provision of private information could be implied or whether the provision of information had been directed, and whether the Privacy Act prevented a request for information.

[93] As with Mt Arthur Coal, the situation in BMA is appreciably different to that faced by MACS and the Applicants. As detailed above schools and other Victorian workplaces are subject to public health orders which require proof of vaccination or exemption prior to entry and prohibit entry of a person if such proof is not provided. This background did not apply in the former cases and so it was necessary to have regard to whether the directions issued by the respective employers were lawful and reasonable and whether consultation about the directions within the meaning of the applicable enterprise agreements had taken place.

[94] BMA noted the obligation arising under of s.15 of the Privacy Act that entities must not do an act or engage in a practice that breaches an Australian Privacy Principle with the applicable principle being Australian Privacy Principle 3.3 61 other than for reason of an exclusion set out within the Principle. In short an entity must not collect sensitive information about an individual unless the collection is excluded with Deputy President Asbury noting the exclusions consisted of two limbs. The first limb is that the individual consents to the collection of the information with “consent” meaning express or implied consent.62 The second limb requires that the sensitive information for which consent to collection has been provided by employees, is reasonably necessary for, or directly related to, one or more of the collector’s functions or activities, about which Deputy President Asbury distinguished between the information collected and the means by which the information was collected;

“[178] The second limb of APP 3.3 requires that the sensitive information for which consent to collection has been provided by employees, is reasonably necessary for, or directly related to, one or more of the Respondents’ functions or activities – APP 3.3(a)(ii). As the Respondents submit (in my view correctly), the second limb is concerned with whether sensitive information that is collected is reasonably necessary for, or directly related to, one or more of the Respondents’ functions or activities and not whether the method of collection per se is reasonably necessary for, or directly related to, such functions or activities. Nor is the second limb concerned with whether the method of collection is reasonable in a general sense. That this is the proper construction of APP 3.3 was not seriously contested in the proceedings. On the basis that a plain reading of the provision makes its meaning clear, I do not intend to embark on a construction exercise, but rather accept the construction advanced by the Respondents and the arguments in support of that construction.” 63

[95] The Deputy President then turned to the information proposed to be collected by BMA in order to conform with the employer’s Site Access Requirements (SAR);

[182] As previously discussed, there are four sources of information that the Respondent will accept as verification vaccination status. The critical point of distinction between the documents that will be accepted by the Respondents, and those which will not be accepted, is in addition to the name of the employee, the employee’s date of birth and the date the Certificate is valid from, that the acceptable forms of proof include vaccine type, both vaccine dose dates and the document number.

[183] The Unions’ proposal for an alternative method of verifying vaccination status, is that employees who do not consent to providing the information required by the Respondents, be permitted to verify their vaccination status, by showing their QR Check-in App displaying a green tick, to obtain entry to the site. The Unions assert that the information on the documents, is not reasonably necessary for, or directly related to, one or more of the Respondents’ functions or activities.

[184] I do not accept those submissions. To the contrary, I am satisfied and find, that the vaccination information is reasonably necessary for one or more of the Respondents’ functions or activities, for the following reasons. The SAR has as its object and purpose, the fulfilment of the Respondents’ statutory and common law functions in respect of the health and safety of employees. Specifically, the SAR, has been implemented to lessen or prevent a serious threat to the life, health and safety of individuals on the Respondents’ sites and to public health and safety. These are matters with which the Respondents are vitally concerned, as employers and corporate citizens. It is also a matter with which employees are vitally concerned as coal mine workers who owe duties to themselves and other coal mine workers in relation to safety and health.

[185] The SAR is intended to operate as part of a COVID – 19 Controls Framework now and in the future. In this regard, the sensitive information the Respondents seek to collect, is intended to assist in planning for the future including the escalation or de-escalation of COVID – 19 controls and to enable decisions to protect employees. Further, the information is necessary to inform decisions about the COVID – 19 controls framework itself.”

[96] After further consideration of the purpose of BMA’s collection of the vaccination information since collection was reasonably necessary for the employer’s functions or activities, Deputy President Asbury concluded what was being sought was not in contravention of the Privacy Act. 64

[97] I am not satisfied from the material before me that the Applicants have shown the dispute about the application of the Privacy Act is a dispute about the application or interpretation of the Agreement. Neither Applicant has been able to establish a positive duty arising from the Privacy Act with that duty then a matter which gives rise to a dispute about the application or interpretation of the Agreement. This aspect of the Applications fails since it is not a dispute about the application or interpretation of the Agreement.

CONCLUSION

[98] Having considered each of the Applicants’ six groups of allegations I am not satisfied that any may be determined by me. As set out above, and for the indicated reasons;

1. In relation to the allegation there was no consultation with them about a major change, contrary to Clause 17, the matter is a dispute capable of being agitated under Clause 22 (Disputes resolution), however there was no obligation to consult under Clause 17 about either the COVID-19 Vaccination Status Direction) or the Alternative Work Duties or Arrangements Decision;

2. The allegation MACS has unilaterally and impermissibly varied the Applicants’ contracts of employment is not a matter that may be raised or determined under Clause 22 (Disputes resolution) since it is not a dispute about the application or interpretation of the Agreement;

3. I do not find any contravention by MACS in relation to the Applicants’ allegations that the Applicants did not consent to take any leave, including leave without pay or long service leave. I have not found a term of the Agreement to have been contravened and so there is no jurisdiction for me to determine this element of the Applicants’ dispute since it is not a dispute about the application or interpretation of the Agreement;

4. The allegation of a dispute arising because MACS gave no consideration to the possibility of alternative work duties or work arrangements fails since there was no obligation under Clause 17 (Introduction of Change) and in any event the evidence shows there was consideration of the feasibility of remote working;

5. The allegation that MACS has breached the FW Act’s general protections provisions (Part 3 – 1) is not a matter that may be considered further by the Commission as presently constituted; and

6. The allegation of a dispute arising because MACS requested private medical information in contravention of the Privacy Act is not a matter that may be raised or determined under Clause 22 (Disputes resolution) since it is not a dispute about the application or interpretation of the Agreement.

[99] The dispute is determined accordingly. An Order 65 dismissing the Applications is issued with this decision.

COMMISSIONER

Appearances:

Mr C Doyle for himself.

Ms J Sant for herself.

Mr A Prosia for himself.

Mr A Denton for the Respondent.

Hearing details:

Melbourne (via video conference);

27 January 2022.

Final written submissions:

24 January 2022.

Printed by authority of the Commonwealth Government Printer

<PR738485>

 1   AE501904.

 2   PR726493.

 3   Transcript, PN 218-219.

 4   Exhibit R1, Witness Statement of Robert Brennan.

 5   Exhibit R2, Respondent Outline of Submissions, [7]; Hearing Book, p.76.

 6   Ibid, [14].

 7   Ibid, [15].

 8   Ibid, [16].

 9   Ibid, [17].

 10   Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30] – [32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82, [25].

 11   Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019, [52].

 12   CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

 13   SDA v Big W Discount Department Stores PR924554, [23].

 14   Fair Work Act 2009, s.595.

 15   The section requires the Commission not make a decision that is inconsistent with the Fair Work Act 2009, or a fair work instrument that applies to the parties.

 16   MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97, [31] - [32].

 17   [2018] FCAFC 131, [197], (2018) 280 IR 191, [197].

 18   [2017] FWCFB 3005, [114]; see also United Firefighters Union of Australia v Emergency Services Telecommunications Authority [2017] FWCFB 4537, [35].

 19   Exhibit R1, Attachment RB – 2; Hearing Book p.104.

 20   Exhibit R1, Attachment RB – 6; Hearing Book, pp.111 – 112.

 21   Transcript, PN 142 – 144.

 22   Transcript, PN 141.

 23   Exhibit A1, Applicants’ Outline of Submissions, Hearing Book, p.17.

 24   Ibid, [19].

 25   [2021] FWCFB 6059.

 26   Exhibit A1; Hearing Book, p.23.

 27   Transcript, PN 289-290.

 28   Exhibit A1, Hearing Book, p.15.

 29   Exhibit R1, Attachment RB – 6 (Brennan – 15 October 2021) and RB – 9 (Brennan – 18 October 2021); Hearing Book, pp.111 and 115.

 30   Exhibit R1, Attachment RB – 3; Hearing Book, p.105.

 31   Ibid, Attachment RB – 5; Hearing Book, p.110.

 32   Ibid, Attachment RB – 6; Hearing Book, pp.111 – 112.

 33   Exhibit R1, [11], [37] and [50]; Hearing Book, pp76, 81 and 83.

 34   Exhibit R1; Hearing Book, pp.87 – 88.

 35   Transcript, PN 324 – 336.

 36   Ibid; Hearing Book, p.84.

 37   [2021] FWCFB 6059, [64].

 38   Ibid, [200].

 39   Ibid, [256].

 40   Mt Arthur Coal, [2021] FWCFB 6059, [222]; BMA, [2022] FWC 81, [167].

 41   Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99, [143] and [186]; see also Australian Nursing and Midwifery Federation v Bupa Aged Care Australia Pty Ltd [2017] FCA 1246, [22] – [31].

 42   Transcript, PN 141.

 43   Exhibit A1; Hearing Book, p.16.

 44   Ibid; Hearing Book, pp.16 – 17.

 45   Ibid; Hearing Book, p.19.

 46   The Contract of Employment 2nd Edition (online version), Mark Irving QC, Lexis Nexis, 2019, ¶ 7.1

 47   Ibid, ¶ 7.56

 48   Exhibit R1, Attachment RB – 2; Hearing Book, p.104.

 49   Ibid, Attachment RB – 3; Hearing Book, p.108.

 50   Ibid, Attachment RB – 6; Hearing Book, p.112.

 51   Exhibit A1; Hearing Book, p.20.

 52   Exhibit R1, Attachment RB – 3; Hearing Book, p.108.

 53   Ibid, [18]; Hearing Book p.88.

 54   Ibid, Attachment RB – 6 (Brennan – 15 October 2021) and RB – 9 (Brennan – 18 October 2021); Hearing Book, pp.111 and 115.

 55   Ibid, Attachment RB – 9; Hearing Book, p.115.

 56   Transcript, PN 141.

 57   Exhibit R2,[35]; Hearing Book, p.81.

 58   Ibid.

 59   Exhibit A1; Hearing Book, p.16.

 60   [2022] FWC 81.

 61   Ibid, [154].

 62   Ibid, [155].

 63   Ibid.

 64   Ibid, [209].

 65   PR738486.