Fair Work Act 2009
 s.365—General protections

Christopher Mihailidis
v
Virgin Australia Airlines Pty Ltd
(C2021/8948)

Christopher David Douglass
v
Virgin Australia Airlines Pty Ltd
(C2021/8892)

Bianca Kristy Tannous
v
Virgin Australia Airlines Pty Ltd
(C2022/10)

Terry Atsas
v
Virgin Australia Airlines Pty Ltd
(C2022/248)

Kara Le
v
Virgin Australia Airlines Pty Ltd
(C2022/301)

Razaan Suleman
v
Virgin Australia Airlines Pty Ltd
(C2022/332)

Skye Fellows
v
Virgin Australia Airlines Pty Ltd
(C2022/363)

Captain Shane Murdock
v
Virgin Australia Airlines Pty Ltd
(C2022/1587)

General protections applications; request for statement of “material facts” from the Commission; whether certificate to be issued that applications would not have a reasonable prospect of success; whether certificate to be issued that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful

[1] This decision considers two procedural requests advanced by the parties to the above nine applications as well as whether a certificate should be issued stating that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful. It follows an earlier decision by me dealing with a request I recuse myself from further dealings with these matters. 1

[2] These nine matters (the Applications) have been referred to me for dealing with under the provisions of Part 3 – 1, Division 8 of the Fair Work Act 2009 (the FW Act) and were the subject of conciliation before me on 10 March 2022, conducted as a single conciliation of all matters. Each application is a general protections application made pursuant to s.365 of the FW Act, alleging contraventions involving dismissal by the applicants’ former employer, Virgin Australia Airlines Pty Ltd. The allegations pertain to the dismissal of each applicant (referred to collectively as the Applicants) for reasons which include their decision not to be vaccinated against COVID-19 or not to disclose their vaccination status or vaccination exemption status to Virgin Australia.

[3] Conciliation of each matter was unsuccessful and at the conclusion I advised the parties I was disposed to issue the certificate referred to in s.368(3)(a) to the effect that I was satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful. I advised the parties that the certificates would be issued at the time I finished dealing with the files. My reasons for doing so are set out at the end of this decision.

[4] After the conciliation I issued Directions for the filing of material to determine two extant matters; whether, as requested by the Applicants’ representative, Mr Glenn Floyd acting as an agent of the Applicants, the Commission would issue a written “opinion” as to the facts in these matters; and whether, as requested by Counsel for Virgin Australia, Mr Zielinksi, the Commission would issue in relation to some or all applications, the certificate provided for in s.368(3)(b) to the effect that after taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute(s) would not have a reasonable prospect of success (the Certificate Request). The request that the Commission issue an “opinion” was later amended to a request for a statement by the Commission of “material facts” (the Material Facts Request)

[5] The parties were afforded an opportunity to be heard about these matters and the recusal application on Thursday, 7 April 2022.

[6] Mr Floyd appeared at the hearing for the Applicants as their agent, and Mr Pawel Zielinski, of Counsel appeared for the Respondent. Virgin Australia had been given permission by me from the time of the conciliation for representation by lawyers pursuant to s.596(2), with me being satisfied of the criterion within paragraph (a) to the effect that a grant of permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. The grant of permission was not opposed by Mr Floyd, and I was satisfied that no unfairness would flow to him or the Applicants if permission for representation by lawyers were to be granted to the Respondent.

THE MATERIAL FACTS REQUEST

[7] Each of the originating applications sought certain “questions of law and fact” be referred by the President to the Full Bench. The President considered and rejected that application in the context of one of the matters now before me; Kara Le v Virgin Australia Airlines Pty Ltd 2 (Kara Le).

[8] In the course of the conciliation conference before me and afterwards the Applicants sought that I issue a “written opinion”. That request was later withdrawn and replaced by another seeking a statement by the Commission of “material facts”.

[9] The Applicants’ request for the issue of an “opinion” relied upon the matters stated in the note to s.368(1). It is unclear if the Applicants rely upon the note for the Material Facts Request. The note states the following;

“Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.”

[10] The Applicants have backed away from seeking the Commission express an opinion, now asserting;

“the Commission is obliged to officially state or ‘DETERMINE’ the ‘MATERIAL FACTS’ as prescribed by the Fair Work Commission Unfair Dismissals Benchbook (page 8 para 3 refers). See verbatim QUOTE: “Ultimately, the Commission is bound to determine whether, on the evidence provided, facts existed at the time of termination that justified the dismissal.” ENDQUOTE.”“ 3

[11] The Material Facts Request is poorly set out, both as to what is sought and the capacity of the Commission to do so under Part 3 – 1, with the Applicant’s representative presenting little more on the subject than a confused cacophony of pseudo-legal soundbites.

[12] The Material Facts Request seems to be premised on the view that the Commission is empowered to collate and state to the parties those things that may be regarded as fact. However what is sought appears to go well beyond matters of an obvious or uncontentious nature into things which could be viewed in no other way than highly contentious matters. The Applicants’ submissions about these matters included the following;

“The ‘MATERIAL FACTS’ raised herein (the Applicants argue), prove irrefutably, that the non-negotiable Demand of “get Injected or get out” AND sacking threat penalty ‘Condition’, in itself; PROHIBITED any Injecting Practitioner from Injecting any employee attending for Covid Injections under such a draconian sacking threat penalty ‘Condition’.

To properly consider the Applicants’ valid request for the Fair Work Commission to issue its ‘DETERMINATION’ of the definitive ‘MATERIAL FACTS’ as requested; the FWC must ALSO take submissions from the Respondent on these ‘MATERIAL FACTS’ raised, with their counter positions on why these ‘MATERIAL FACTS’ raised by the Applicant; are NOT ‘MATERIAL FACTS’.

Moreover, in such submissions, the Burden of Proof lies squarely upon the Respondent to demonstrably PROVE WITH SUPPORTING EVIDENCE to the FWC; that these are NOT ‘MATERIAL FACTS’ raised at all, and such an onerous Burden of Proof MUST require the respondent to rely on solid admissible evidence; to demonstrably PROVE this tenet, both Collectively and on each ‘MATERIAL FACT’ so raised.

Only AFTER this process of the FWC seeking such Respondent submissions to demonstrably PROVE to the FWC that these are NOT the definitive True and Correct ‘MATERIAL FACTS’ (as claimed and raised by the Applicants), can the FWC legitimately issue its ‘DETERMINATION’ on the True and Correct ‘MATERIAL FACTS’ of the sackings; and both parties must submit their position on what are the definitive ‘MATERIAL FACTS’ for the FWC to ultimately rule.

It is not merely incumbent upon; rather it behoves the FWC; to take such Respondent submissions; otherwise, it cannot equitably judge, and RULE the definitive True and Correct ‘MATERIAL FACTS’ as raised and claimed with evidence by the Applicants.

And the following demonstrates both the Applicants’ concise Questions of ‘MATERIAL FACTS’ raised and requested to be ‘DETERMINED’ by the Fair Work Commission; AND the exact corollary situation follows it; and this corollary set requires the Respondent to demonstrably prove that these are NOT the definitive ‘MATERIAL FACTS’ at all.

APPLICANT’S CONCISE QUESTIONS OF ‘MATERIAL FACTS’ RAISED TO

BE ‘DETERMINED’ BY THE FAIR WORK COMMISSION.

i. IS IT A ‘FACT’ THAT JAYNE HRDLICKA CEO VIRGIN AUSTRALIA AND CEO GARETH EVANS CEO JETSTAR AUSTRALIA, ISSUED EMPLOYEES A NON-NEGOTIABLE DEMAND TO BE COVID-INJECTED, WITH A (THREAT) PENALTY ‘CONDITION’, OF EMPLOYMENT TERMINATION, IF THEY ARE NOT COVID-INJECTED?

ii. IS IT A ‘FACT’ THAT ‘VALID-CONSENT’ IS REQUIRED AT LAW FOR ALL COVID-INJECTIONS, wherein ‘VALID-CONSENT’ is defined under Federal Immunisation Guidelines Criterion 2 where Injections MUST ONLY be voluntary, and in the absence of undue pressure, coercion or manipulation?

iii. IS IT A ‘FACT’ THAT Injecting-Practitioners ARE PROHIBITED by law to inject anyone WITHOUT ‘VALID CONSENT’ GIVEN VOLUNTARILY by employees and freely given in the absence of undue pressure, coercion or manipulation?

iv. IS IT A ‘FACT’ THAT All/ANY employment termination DEMAND (threats) ‘Conditions’ for Injection non-compliance, AS A CONSEQUENCE; AUTOMATICALLY OBLITERATES ‘MANDATORY’ LAWFULLY OBLIGATED ‘VALID-CONSENT’ TO ANY/ALL Injections?

v. IS IT A ‘FACT’ THAT VALID CONSENT CANNOT BE GIVEN BY ANY EMPLOYEE IF AN EMPLOYMENT TERMINATION THREAT PENALTY ‘CONDITION’ DRIVES ANY EMPLOYEE TO BE INJECTED WHEREIN THE EMPLOYEE NOTIFIES OF ATTANDANCE BEING SOLELY DUE TO THE EMPLOYMENT TERMINATION THREAT PENALTY ‘CONDITION’ FOR NON-INJECTION?

vi. IS IT A ‘FACT’ THAT JAYNE HRDLICKA CEO VIRGIN AUSTRALIA AND CEO GARETH EVANS CEO JETSTAR AUSTRALIA, KNEW OR OUGHT TO HAVE KNOWN OF EXISTING ‘BINDING’ LAW ON INJECTING PRACTITIONERS of the Federal Immunisation Guidelines Criterion 2 where Injections MUST ONLY be voluntary, and in the absence of undue pressure, coercion or manipulation?

vii. IS IT A FACT’ THAT THE ‘ONLY POSSIBLE’ TRANSMISSION OF ANY VIRUS CAN ONLY COME FROM AN INFECTED PERSON AND UNINJECTED PERSONS PER SE (BY OR IN ITSELF OR THEMSELVES INTRINSICALLY); CANNOT POSE ANY INFECTION RISK WHATSOEVER?” 4

[13] There is no possibility to determine these matters other than through an arbitration in this Commission or through proceedings in a Court. Such justification as is presented by the Applicants relies on the content referred to above from the Commission’s Unfair Dismissals Benchbook. Such submission is not competent and does nothing to assist the Applicants.

[14] The Applicants’ submissions were attached to an email to the Commission entitled in part: “Fair Work Commission Unfair Dismissals Benchbook BINDING OBLIGATION FOR THE FWC TO ‘DETERMINE’ THE MATERIAL FACTS” with the content of the submissions elaborating;

“The Applicants therefore request under binding obligations of the Fair Work Commission Unfair Dismissals Benchbook, page 8 para 3 refers); and under accepted Procedural Fairness and Natural Justice conventions; for the Fair Work Commission to issue its official ‘DETERMINATION’ of the definitive True and Correct ‘MATERIAL FACTS’ of the current non-negotiable Covid-Injection demand under a draconian sacking threat penalty condition.

This request for the Fair Work Commission to ‘DETERMINE’ the ‘MATERIAL FACTS’ under binding obligations of the Fair Work Commission Unfair Dismissals Benchbook, page 8 para 3 refers); is submitted for the compelling requirement for the FWC to immediately be cognisant of its obligations herein, to issue its RULING of the ‘MATERIAL FACTS’ as it must in any case brought before any jurisdiction.

#NB: It must be noted that there is no request whatsoever here that the FWC examine ANY Questions of Law, in this request for a ruling on the True and Correct ‘MATERIAL FACTS’. ALL QUESTIONS RAISED ARE SIMPLY ‘ARE THESE ‘MATERIAL FACTS’ OR NOT THE ‘MATERIAL FACTS’.” 5

[15] No justification is provided to support either the contention that the Unfair Dismissals Benchbook has application to these proceedings or even if they did that its contents amount to a “binding obligation” in these matters. I reject either that the Unfair Dismissals Benchbook has application to these Applications or that its contents establish a “binding obligation” in respect of the Material Facts Request; patently it does not.

[16] Leaving aside the problematic nature of the Applicants’ reference to the Commission’s Unfair Dismissals Benchbook instead of guidance material relating to general protections matters, the passage relied upon by Applicants deals with the ability of the Commission to take into account in determining unfair dismissal matters facts learned after the dismissal which existed at the time of termination that may have been relevant to the decision to dismiss. The Applicants in these matters appear to be saying that vaccination decisions by health practitioners involving persons completely unrelated to these matters are relevant to the disposition of these matters. Again, such matter could not be determined other than through an arbitration in this Commission or through proceedings in a Court.

[17] These matters of course are not unfair dismissal applications (which are made under the provisions of Part 3 – 2 of the Act), but rather general protections applications. The Commission’s capacity to deal with these matters is entirely dealt with in Part 3 – 1, and in particular as is set out in s.368(1) and (2) which enables conciliation or s.369 which enables consent arbitration. In the context of the application to him to refer “questions of law and fact” to a Full Bench, the President set out in Kara Le the following about the role of the Commission in dealing with general protections disputes involving dismissal;

“The Commission’s role in dealing with general protections disputes involving dismissal

The FW Act limits how the Commission may deal with general protections applications involving dismissal. Section 368(1) provides that if an application is made to the Commission under s.365, the Commission must deal with the dispute, other than by arbitration. The note to s.368(1) says that the Commission may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion.

The Commission only has jurisdiction to arbitrate, that is, to hear and make a binding determination, in relation to a general protections dismissal dispute if the preconditions in s.369(1) are satisfied, namely that:

•  the Commission has issued a certificate pursuant to s.368(3) of the FW Act (FW Act, s.369(1)(a)). The issue of such a certificate is also a precondition to the applicant making a general protections court application (FW Act, s.370),

•  the parties to the dispute must have notified the Commission that they agree to the Commission arbitrating the dispute (FW Act, s.369(1)(b)). This requires both the applicant and respondent’s consent,

•  the notification must comply with the Commission’s procedural rules and be given to the Commission within 14 days after the day the certificate was issued, or within such period as the Commission allows (FW Act, s.369(1)(c)), and

•  the provisions in the FW Act preventing multiple applications must not apply (FW Act, s.369(1)(d)).

Section 368(3) provides that if the Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then the Commission must issue a certificate to that effect. Further, if the Commission considers that arbitration by the Commission under s.369 or a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.

A s.368(3) certificate has not been issued to the Applicant or any of the other 9 individuals identified at [5] above, and the conditions in s.369(1) have not been satisfied in respect of the Applicant or any of the other 9 individuals. The Commission’s jurisdiction to deal with their applications is presently limited to dealing with them in a non-determinative way, such as by conference.” 6

[18] I concur with and adopt this reasoning in rejecting the Applicants’ Material Facts Request. The Commission as presently constituted has no jurisdiction to grant the Material Facts Request.

THE CERTIFICATE REQUEST

[19] Section 368(3)(b) provides for the Commission to issue a certificate to general protections parties if it, taking into account all the materials before it, determines that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success.

[20] Formation of such a view by the Commission must be objectively determined and a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable. 7 While a position advanced by a party may not be sustained upon proper analysis it does not follow the claim as being advanced without reasonable cause or having no reasonable prospects of success.8

[21] Each of the Applications assert contraventions of several sections of the FW Act’s general protections and in particular;

•  ss.340 and 341 – dealing with workplace rights;

•  s.343 – coercion;

•  s.344 – undue influence;

•  s.351 – discrimination, in the form of either or both religious or political discrimination.

[22] However, the Applications in most cases do not strongly connect the asserted breaches with the proscribed protection; that is, the applications vary to the extent to which they cogently show that the relevant person’s dismissal was because of the proscribed reason.

[23] Virgin Australia argue that the Applications rely on a mix of “alleged workplace rights”, with none of them recognised by the FW Act and with no attempt to connect the alleged rights with the limitations set out in s.341. Further, and to the extent to which breaches of s.344 are alleged, no account is taken of the fact the section does not extend to pressure placed on employees in relation to their employment at large. They also say that the allegations of adverse treatment because of religious or political beliefs are put only in template terms.

[24] In forming my views on Virgin Australia’s Certificate Request I have taken into account the content of each application and the numerous written submissions provided by the Applicants’ Representative. I have also taken account of the matters that were the subject of oral submission on 7 April 2022. The written and oral submissions as made by the Applicants’ representative though did not shed much light on the merits of the Applications. The material within the application forms provides some, but not great. particulars of the alleged breaches.

[25] What may be gleaned from the application forms is a strong sense of injustice for being required to be receive vaccination against COVID-19 or to provide details to the Respondent of a medical contraindication and then projecting the cause of that injustice to the Respondent. In that respect none of the Applications strongly connect the asserted adverse action of dismissal with the rights they held or asserted in the period prior to dismissal. Those matters alone though do not lead to a finding that the applications are manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable. It is relevant to note about the Applications and the other material available to me that they are poorly drafted and do not coherently present an effective or striking narrative or statement of claim.

[26] It is of course the case that at this stage of the proceedings I have not seen detailed evidence or made findings of fact as to the evidence which is brought forward on the merits of the application. Those things may only be done after the Commission has certified it is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful. The nature of the proceedings to date in which allegations are made but not particularised through formal pleadings or evidence means the likely merit of the assertions made by the Applicants so far is mostly above a characterisation of being manifestly untenable or groundless.

[27] That said, it is the case that some aspects of the Applications plainly do not have a reasonable prospect of success simply because they assert breaches of sections which have no application to them. In this regard the allegations that s.344 (undue influence or pressure) has been breached would not have a reasonable prospect of success, if only because the content of that section relates to the making of agreements or arrangements of various types.

[28] Other than that matter, I am not satisfied the applications would not have a reasonable prospect of success if they proceeded to an arbitration before the Commmission or to an application to a Court. Accordingly, I decline to issue the certificates referred to in s.368(3)(b).

UNSUCCESSFUL CONCILIATION CERTIFICATE

[29] Finally, and as alluded to at the start of this decision, I am satisfied the criteria for the issue of the certificates referred to in s.368(3)(a) has been met. In that regard I note the submission of the Applicants that they “do NOT wish a Certificate to be issued and wish Conciliation in good faith dialogue to continue”. 9 While that may be the case I do not see a purpose in continuing conciliation where the applicant, being the one who commenced the proceedings, chooses to not put forward a proposal for resolution of their alleged dispute. The conciliation before me was notable because of the complete unwillingness of the Applicants to put forward proposals for resolution, with it being maintained through their representative that they instead sought the Commission to issue an opinion on the matters they saw as being relevant to the applications. The Applicants’ representative, as well as each Applicant individually, was given an opportunity to advise the Respondent of terms upon which they were prepared to resolve their application. None did so. No conciliation in the sense of exchanging proposals for resolution and endeavouring to bring the parties together could take place. No proposal for resolution has been put forward by any Applicant since.

[30] Accordingly, the s.368(3)(a) certificates in each matter will be issued by me at the same time as this decision to the effect I am satisfied that all reasonable attempts to resolve the disputes (other than by arbitration) have been, or are likely to be, unsuccessful.

COMMISSIONER

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 1   [2022] FWC 740.

 2   [2022] FWC 269.

 3   Applicants’ Submission, 6 April 2022.

 4   Ibid.

 5   Ibid.

 6   [2022] FWC 269, [10] – [13].

 7   Baker v Salva Resources Pty Ltd [2011] FWAFB 4014, 211 IR 374, [10].

 8   Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2021] FWCFB 4970, [26].

 9   Email from Applicants’ representative to Commission, 6 April 2022.