Fair Work Act 2009
s.604—Appeal of decision

Barbara Roman
v
Mercy Hospitals Victoria Ltd
(C2022/2476)

Appeal against decision [2022] FWC 711 of Deputy President Colman at Melbourne on 31 March 2022 in matter number U2021/11846

Introduction and background

[1] Ms Barbara Roman has applied, pursuant to s 604 of the Fair Work Act 2009 (Cth) (FW Act) for permission to appeal a decision made by Deputy President Colman on 31 March 2022 1 to dismiss Ms Roman’s application for an unfair dismissal remedy against Mercy Hospitals Victoria Ltd (Mercy).

[2] The key facts in this matter are straightforward and non-controversial. Ms Roman, prior to her dismissal, had been employed by Mercy as a hospital services attendant at its Werribee hospital since 1999. On 29 September 2021, in the context of the COVID-19 pandemic, the Acting Chief Health Officer of Victoria issued the COVID-19 Mandatory Vaccination Directions (No 4) (No 4 Directions) pursuant to s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act). The No 4 Directions relevantly required operators of healthcare facilities not to allow workers to attend for work on or after 15 October 2021 unless they had provided evidence to the employer of having been vaccinated against COVID-19, had a booking to receive a vaccination by 29 October 2021, or had provided a certificate stating that they were unable to receive a vaccination due to a medical contraindication. Any breach of the No 4 Directions exposed the operator to substantial financial penalties. The No 4 Directions applied to the healthcare facilities operated by Mercy in Victoria, including the Werribee hospital. Subsequent directions were made replacing the No 4 Directions, with the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13) (No 13 Directions) being operative at the time of Ms Roman’s dismissal, but for relevant purposes they had the same effect (and are variously referred to as “the Directions” in this decision).

[3] Ms Roman’s principal duties were to assist with the delivery of patient meals to wards, carry out general cleaning duties, provide transport assistance for patients to locations within the hospital, and to remove linen for external collection. All these duties required her personal attendance at the Werribee hospital.

[4] The management of Mercy sent emails to all staff on 21 September, 28 September, 5 October, 8 October and 12 October 2021 requesting that they provide evidence of their vaccination status as soon as possible. The 8 and 12 October emails advised that if a worker was not intending to be vaccinated, they should make an appointment with their manager as soon as possible and that they would not be able to undertake on-site work after midnight on 14 October 2021.

[5] Ms Roman did not comply with these requirements. She was suspended with pay from 15 October 2021 and, on 26 October 2021, Mercy commenced an investigative process in respect of allegations that Mr Roman had not complied with a lawful and reasonable direction and, consequently, did not have the capacity to perform the inherent requirements of her job.

[6] On 13 October 2021, Ms Roman wrote to Mercy stating among other things that the Directions did not apply to her because she was an essential worker and that the Directions were invalid because they were inconsistent with federal privacy legislation. In a letter in response dated 14 October 2021, Mercy directed Ms Roman to provide evidence of her vaccination status or of a medical exemption by 15 October 2021 and advised that if she did not meet this requirement, she would not be able to continue working for Mercy because the Directions prohibited Mercy from allowing Ms Roman to access her workplace. There followed various meetings and exchanges of correspondence about these allegations. On 29 November 2021, Ms Roman was advised that it had been concluded that she had failed to comply with a lawful and reasonable direction and that Mercy was concerned that Ms Roman was unable to perform her job because she could not be allowed to attend her workplace. On 2 December 2021, at a Zoom meeting, Ms Roman was advised that her employment was terminated with immediate effect. Ms Roman was sent a termination letter later that day which stated that she had been dismissed for failing to comply with a lawful and reasonable direction but that Mercy had made no finding as to its concern that she did not have the capacity to perform the inherent requirements of her position.

The decision

[7] In his decision, after setting out the non-controversial facts, the Deputy President addressed those issues of fact which were in dispute. His first finding in this respect was as follows:

“[16] … First, I find that Ms Roman’s job could not be done from home. Ms Daniela Roman suggested that because certain training tasks could have been performed online, her mother’s job could be done remotely. I reject this. The fact that some minor tasks could be done remotely is irrelevant. Ms Roman was a hospital attendant. She had to attend the hospital to do her job. In my view, this is obvious.”

[8] The Deputy President then dealt with some contested issues concerning the communications between the parties leading up to Ms Roman’s dismissal. The Deputy President’s findings in this respect included that Ms Roman had refused to say at the final meeting on 2 December 2021 whether she was vaccinated (with Ms Roman’s daughter Daniela Roman subsequently confirming in her evidence before the Commission that Ms Roman was not vaccinated). 2 Finally, the Deputy President addressed a contest about whether a position description for Ms Roman’s job attached to the witness statement of Ms Linda Townsend, Ms Roman’s manager, was accurate. The Deputy President made the following findings:

“[20] Fifthly, I accept Ms Townsend’s evidence that the position description attached to her witness statement was the correct document, and that the description of Ms Roman’s actual duties in her witness statement was accurate. I do not accept Ms Daniela Roman’s hearsay evidence that, according to her mother, she did not assist patients to open containers or take their meal orders. But in any event, these are minor matters. Even if I had accepted Ms Daniela Roman’s evidence, it would not have affected my finding that Ms Roman’s job had to be done at the hospital. Finally, I found Ms Townsend to be an entirely credible witness. I reject the suggestion of Ms Roman that some of Ms Townsend’s evidence was untruthful.”

[9] The Deputy President then addressed the matters requiring consideration under s 387 of the FW Act. The Deputy President found, for the purpose of s 387(a), that Mercy had a valid reason to dismiss Ms Roman because she was unable to do her job. The Deputy President said:

“[27] To do her job, Ms Roman had to be able to attend the hospital. But from 15 October 2021, the hospital was required by law to prevent her from attending its premises for work. Ms Roman was within her rights to decline to become vaccinated or to provide Mercy with proof of vaccination. But her choice in this regard had the consequence that she rendered herself unable to perform her job. If Mercy had allowed Ms Roman to attend the workplace from 15 October 2021, it would have broken the law, and exposed itself to financial penalties.”

[10] The Deputy President rejected Ms Roman’s contention that the exceptions in the Directions which covered workers “required to fill a vacancy to provide urgent care, to maintain quality of care and / or continue essential operations at the facility due to an emergency situation or a critical unforeseen circumstance” or “required to perform urgent and essential work at the facility to protect the health and safety of workers or members of the public”. 3 In relation to Ms Roman’s contentions that the Directions were invalid, the Deputy President said:

“[28] …the Directions have not been declared by a court to be invalid, and the Commission, which is an administrative tribunal, must carry out its functions according to law. It proceeds on the basis that legislation and delegated legislation is valid until a court says otherwise.”

[11] The Deputy President also found that Mercy’s direction for Ms Roman to provide evidence of her vaccination status was lawful and reasonable, and that Ms Roman’s non-compliance with this direction provided a further valid reason for dismissal. 4 The Deputy President also accepted Mercy’s contention that Ms Roman’s participation in secretly recording the 2 December 2021 meeting (the fact of which emerged only as a result of Ms Roman’s unfair dismissal application referring to a transcript of the meeting) entailed misconduct and constituted a further valid reason for the dismissal.5

[12] In relation to s 387(b) and (c), the Deputy President found that Mr Roman had been notified of, and given an opportunity to respond to, the reasons for her dismissal relating to her non-compliance with a lawful and reasonable direction and her incapacity to perform her job, but added that, had it been otherwise, it would not have affected his assessment of the matter. In relation to s 387(d), the Deputy President found that Ms Roman was permitted to have her daughter as her support person at relevant meetings. In relation to s 387(e), the Deputy President found that the dismissal was not for unsatisfactory performance and, in relation to s 387(f) and (g), found that these considerations carried no weight in the matter.

[13] In relation to s 387(h), the Deputy President regarded the following matters as being relevant: 6

•  Ms Roman had genuinely-held concerns about being vaccinated, had a good employment record over 20 years of employment and was ready and willing to work, but Mercy had to comply with the law and Ms Roman was not able to attend the hospital for work;

•  Mercy did not act hastily in the matter notwithstanding her noncompliance by the 15 October 2021 deadline; and

•  Ms Roman’s collusion in the secret recording of the 2 December 2021 meeting constituted serious misconduct, being contrary to her duty of good faith to Mercy, unfair to the other participants and not necessary to protect any valid interest.

[14] The Deputy President rejected Ms Roman’s contentions that Mercy failed to comply with the consultation and disciplinary investigation requirements of the applicable enterprise agreement, 7 that she was dismissed for reasons prohibited under Pt 3-1 of the FW Act,8 that Mercy did not allow her to make a complaint to the relevant secretary or council under s 185 of the PHW Act,9 and that it was unfair that she received no response from Mercy to her contention that she fell within the exceptions to the Directions.10 Finally, the Deputy President noted that if he had concluded that the dismissal was unfair, he would have found that reinstatement was inappropriate because the Directions remained in force and Ms Roman remained unvaccinated. He would also, he said, have found compensation to be inappropriate for a number of reasons, including that there was no evidence that Ms Roman took any step to mitigate her loss.11 The Deputy President concluded that the dismissal was not harsh, unjust or unreasonable and was therefore not unfair.12

Appeal grounds and submissions

[15] Ms Roman’s grounds of appeal are lengthy and discursive. They may best be summarised as follows:

1. The Deputy President made substantial errors of fact about matters material to the outcome. These alleged errors are not specified in ground 1, but ground 7 contains the following contentions of factual error:

(a) The Deputy President erred in finding that Ms Roman was subject to a contract. He also erred in accepting the correctness of the position description provided by Mercy, which was only an unsigned draft.

(b) The Deputy President mistook the fact that the Werribee hospital was not understaffed or struggling to maintain operational requirements and provided care, and ignored that Ms Roman received texts from the hospital during her suspension asking her to perform shifts even though she was unvaccinated.

(c) The Deputy President erred in finding that Ms Roman produced no evidence she took steps to mitigate her loss or apply for any jobs, when her application stated that it was impossible to apply for any jobs because the vaccination mandate applied to all authorised workers.

(d) The Deputy President erred in stating that Ms Roman had contended that she could perform her job remotely because some tasks were performed at home. This error showed that the Deputy President “was not exactly fit to issue a determination when he is making such vagrant faults” [sic].

2. The case involved the following question of law which, under s 608 of the FW Act, may be referred to the Federal Court: “Can an employee be mandated to take medicine as a ‘condition of entry’ in order for the employer to comply with CHO directions which are made for a therapeutic purpose, when the Therapeutic Goods Administration (TGA) excludes liability for that sole purpose?” As a result of the TGA disclaimer and licences, COVID-19 vaccinations are not intended as a therapeutic good or for therapeutic purposes.

3. The Deputy President failed to find that Mercy’s “sacking threat” would have prevented Ms Roman from being vaccinated, because she could not have given consent in accordance with the requirements specified in the Australian Immunisation Handbook. Genuine consent cannot be given when vitiated by the threats of dismissal.

4. The Deputy President did not let Ms Roman’s representative, Daniela Roman, speak about mistakes in Mercy’s evidence and arguments.

5. The Deputy President erred in finding that whether Ms Roman was notified of misconduct and given a chance to respond would not affect his assessment of the matter. This involved an admission that his overall assessment and decision would not be affected by s 387(b) and (c).

6. The Deputy President erred in finding that Ms Townsend was a credible witness in circumstances where she did not recollect events that occurred or lied in her witness statement about a telephone call made to Mr Roman on 14 October 2021, her attendance at an online meeting on 28 October 2021, and her failure as a member of Mercy’s COVID-19 Governance Committee to notify the Chief Executive Officer that he published the incorrect direction on 21 September 2021.

7. The Deputy President failed to determine the following matters:

(b) The issue raised concerning inconsistency between ss 477(6) and 478(6) of the Biosecurity Act 2015 (Cth) (Biosecurity Act) and the Directions made pursuant to the PHW Act. This inconsistency rendered the Directions invalid by reason of the operation of s 109 of the Constitution.

(b) COVID-19 vaccines are not authorised for any prevention or treatment by the TGA, and are voided and meaningless when the TGA-published licence for product information and consumer medicine information excludes liability. COVID-19 vaccines are being mandated to prevent disease, which goes against the TGA licence and liability terms.

(c) “[T]he decision where the High Court of Australia found that medical compulsion and any kind of social compulsion is illegal and when that topic was brought up, [the Deputy President] just decides to say nothing, faces downwards and shakes his head”.

(d) Under the Directions, a person is not guilty of an offence against the directions if they have a reasonable excuse. A reasonable excuse includes an employee seeking some clarity and wanting to make a complaint and thus, Mercy is relieved of any consequences.

(e) The Directions stated that any part that is held to be in excess of power or otherwise invalid is to be taken to be valid to the extent to which it is not in excess of that power. The Directions are in excess of power.

8. The Deputy President erred in finding that the Werribee hospital was not providing false and misleading notifications to staff. The 21 September 2021 email sent to staff would be read as stating that vaccinations were mandatory for healthcare staff as at that date, when in fact they were not.

9. The Deputy President erred in finding that Mercy did not stop Ms Roman from making a complaint. Because Mercy found Ms Roman’s arguments to have no merit at all, it stopped her complaint from going ahead.

10. The Deputy President erred in finding that Ms Roman recording the meeting on 2 December 2021 was misconduct and determined to be not reasonably necessary to protect any valid interests. Under s 11(2)(b)(ii) of the Surveillance Devices Act 1999 (Vic), it is permitted to make a recording to protect the lawful interests of the person making it. Ms Roman’s lawful interests were engaged at a meeting which concerned the termination of her employment.

11. The Deputy President erred in failing to find that private medical information given by an employer to the employee under the Directions is not protected.

12. The Deputy President failed to follow and apply the Fair Work Commission Benchbook for Unfair Dismissals properly when making his determination, including in relation to:

(a) the validity of reasons for dismissal – an employer’s belief is not sufficient to establish a valid reason, but Ms Townsend said she acted on her belief;

(b) workplace investigations – the employer must, but Mercy did not, conduct a full and extensive investigation into all relevant matters surrounding the alleged misconduct, and a failure to satisfactorily establish any of these matters will probably render the dismissal harsh, unjust and unconscionable; and

(c) capacity – in a situation where an employee’s capacity to perform the inherent requirements of their job is affected by the actions of a third party, the employer still has an obligation to treat the employee fairly, but Mercy did not do this.  

13. The Deputy President failed to apply the duties of the employer to the employee under the Occupational Health and Safety Act 2004 (Vic). These included the duty under s 21 to provide information and the duty under s 22 to provide the names of persons to whom an employee may make an enquiry or complaint about health and safety.

14. The Deputy President failed to properly compare and apply the outcomes given in previous decisions, namely Schreier v Austal Ships Pty Ltd 13 where it was found that an alleged failure to follow a lawful and reasonable instruction was not a valid reason for dismissal, and Lee v Superior Wood Pty Ltd14 where it was found that the employee was entitled to refuse to follow an unlawful direction.

15. The Deputy President failed to find that Mercy is acting outside of the Therapeutic Goods Act 1989 (Cth) (TGA Act). This Act applies to Mercy because it is a corporation. The High Court (per Aickin J) has stated that civil conscription includes practical compulsion from economic pressures, and (per Kirby J) that pharmaceutical benefits are forbidden from being provided to individuals in a way that obliges them to accept those services. Mercy is engaging in this conduct and is breaking the law.

16. The Deputy President failed to follow and apply the FW Act. The Deputy President found that Ms Roman was validly dismissed because she failed to follow a lawful and reasonable instruction. However, it was not lawful because the FW Act “states what the respondent is putting on the applicant is an unlawful term; and an unlawful term is not lawful”.

[16] Ms Roman expanded somewhat on the above grounds in her written and oral submissions. In apparent relation to ground 16, Ms Roman clarified that the finding that she failed to follow a lawful and reasonable instruction involved an error of law because the instruction was an “objectionable term” within the meaning of the definition of that expression in s 12 of the FW Act and had no effect under s 356, and Mercy accordingly contravened ss 340, 343 and 345. This “decision” was said to have caused Ms Roman substantial harm.

[17] In her notice of appeal and her submissions, Ms Roman contended that it was in the public interest for permission to appeal to be granted because:

•  the public places its trust in the Commission and the decision under appeal did not follow the FW Act;

•  the decision was not consistent with other Commission authorities (including Lee v Superior Wood);

•  the decision manifests an injustice because the process was not conducted fairly due to Ms Roman’s representative being told not to discuss the inaccurate facts in Mercy’s submissions;

•  legal principles were not applied during the initial hearing, including the preventative principle and the principles of legality, liability foreseeability and accessorial liability;

•  many people are affected by COVID-19 vaccination mandates, so it is important that the community is kept informed about changes to them;

•  many people have previously felt aggrieved that mandatory vaccination became a condition of their employment and were unable to make unfair dismissal claims;

•  the direction to be vaccinated is inconsistent because the numbers of recommended doses keep changing; and

•  if the current orders are found to be in excess of power, this affects the public at large because the orders apply to so many people.

Consideration

[18] The Deputy President’s decision is one to which s 400 of the FW Act applies. Therefore, permission to appeal must not be granted unless the Commission considers it is in the public interest to do so (s 400(1)). Further, appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact (s 400(2)).

[19] This test in s 400(1) a stringent one. 15 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.¹⁶ Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.17 It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.¹⁸ However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.¹⁹

[20] For the reasons which follow, we do not consider that it would be in the public interest to grant permission to appeal in this matter.

[21] The core findings in the decision under appeal are that the relevant effect of the Directions was that Mercy could not lawfully allow Ms Roman to attend her workplace at the Werribee hospital on or after 15 October 2021 and that, as a consequence, she could not from that time perform her job. This made inevitable, we consider, a finding under s 387 of the FW Act that there was a valid reason for Ms Roman’s dismissal relating to her capacity. It also supported the Deputy President’s findings that Mercy’s direction to Ms Roman to provide advice as to her vaccination status was lawful and reasonable, since it concerned Ms Roman’s capacity to continue to perform her job, and that Ms Roman’s failure to comply with this direction constituted a further valid reason for her dismissal relating to her conduct. Additionally, these core findings foreclosed any real possibility that Ms Roman’s dismissal could be found to be harsh, notwithstanding the existence of a valid reason for dismissal because, from 15 October 2021, no reasonable alternative to the termination of her employment was capable of identification.

[22] The vast majority of Ms Roman’s appeal grounds, even if they were upheld upon permission to appeal being granted, do not address the core findings made by the Deputy President and thus could not affect the ultimate outcome. Ms Roman’s appeal grounds do not challenge the Deputy President’s finding that none of the exemptions in the Directions applied to Ms Roman, nor the finding that the performance of her job required her attendance at the workplace. Nothing in appeal grounds 1, 3, 6, 8, 9, 11, 13, and 14 involves any challenge to the core findings, and these grounds generally address merely peripheral or irrelevant matters.

[23] Ground 10 challenges the Deputy President’s finding that Ms Roman’s participation in the undisclosed recording of the 2 December 2021 meeting constituted a valid reason for her dismissal by reason of her misconduct. If that were the only valid reason finding under s 387(a), ground 10 might, arguably, have sufficient merit to attract the public interest and justify the grant of permission to appeal. However, because of the two other valid reason findings already referred to, we do not consider that there is any reasonable possibility that upholding ground 10 could lead to an outcome whereby the Deputy President’s ultimate finding that the dismissal was not harsh, unjust or unreasonable could be overturned.

[24] Grounds 5 and 12, in substance, allege errors of principle in the way that the Deputy President determined Ms Roman’s application, but nothing of any merit is raised; in particular:

•  the Deputy President made unambiguous findings in respect of s 387(b) and (c), and took those findings into account in determining that Ms Roman’s dismissal was not harsh, unjust or unreasonable;

•  it is clear that the Deputy President determined the issue of valid reason objectively and independent of any subjective belief on the part of Mercy;

•  the proposition advanced in appeal ground 12(b) is wrong, and in any event whether Ms Roman breached the direction to advise of her vaccination status is not factually in doubt, making any issue about the extent of any workplace investigation irrelevant; and

•  the Deputy President plainly gave consideration to whether Ms Roman’s dismissal was procedurally and substantively fair.

[25] Ground 4 alleges a denial of procedural fairness. However, there is nothing in the record of the proceedings contained in Ms Roman’s appeal book which substantiates this. Ms Roman was given ample opportunity to advance her case via evidence and both written and oral submissions, and we note in this connection that Ms Roman declined to give any evidence in support of her case. This ground is not reasonably arguable.

[26] Ground 7 falls into a different category. By this ground, Ms Roman contends that the Deputy President failed to consider her contentions that the Directions were invalid. Clearly, if the Directions were invalid, then there was no legal impediment to Ms Roman attending the workplace on and from 15 October 2021, and the core findings earlier identified could not stand. As earlier stated, the Deputy President proceeded on the basis he should treat the PHW Act, and the Directions made pursuant to that Act, as valid in the absence of any declaration of invalidity by a court. That is an approach that is supported by Commission authority in respect of other cases concerning dismissals connected with the PHW Act and the Directions. 20 It is also consistent with the well-established, indeed trite, proposition that the Commission, not being a court, cannot make any binding declaration about the validity of State or federal legislation. However, it may also be accepted that there is some support for the proposition that the Commission may form an opinion about issues of legislative validity if it is necessary in the performance of its statutory functions.21

[27] If Ms Roman’s contentions of invalidity had any merit, this ground of appeal might conceivably attract the public interest such as to permit the grant of permission to appeal. However, they patently do not. As to appeal ground 7(a), Ms Roman’s argument, as best we understand, proceeds as follows:

•  s 477(1) of the Biosecurity Act, broadly speaking, empowers the federal Health Minister, during a human biosecurity emergency period, to determine any requirement that they are satisfied is necessary to prevent or control the entry of a declared disease into Australia, its emergence, establishment or spread within Australia, or its spread to another country, or to give effect to a World Health Organisation recommendation in relation to the disease;

•  s 477(6) provides that a determination under s 477(1) must not require an individual to be subject to a biosecurity measure of a kind set out in Subdiv B of Div 3 of Pt 3 of Ch 2, which relevantly includes (in s 92(a)) a requirement to receive a specified vaccination at a specified medical facility;

•  s 478(1) confers a power on the federal Health Minister, expressed in equivalent terms to s 477(1), to give directions to a person during a human biosecurity emergency period, subject to a limitation in s 478(6) expressed in equivalent terms to s 477(6);

•  s 477(5) provides that a requirement under s 477(1) applies despite any provision of any other Australia law, and s 478(4) makes the same provision with respect to a direction made under s 478(1);

•  s 8(1) provides that the Biosecurity Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act, but s 8(2) provides that this is subject to ss 477(5) and 478(4); and

•  the Directions are rendered invalid by s 109 of the Constitution because, insofar as they require vaccination, they are inconsistent with the limitations on power in s 477(6) and s 478(6), and the effect of ss 8(2), 477(5) and 478(4) is that the Biosecurity Act is intended to override and not operate concurrently with inconsistent State laws.

[28] The flaws in this argument are, with respect, self-evident. Sections 477(6) and 478(6) are limitations on the powers of the federal Health Minister conferred by ss 477(1) and 478(1) respectively, to the relevant effect that the Minister cannot require or direct a person to be vaccinated. No inconsistency between the Biosecurity Act and the Directions arises because:

(1) sections 477(6) and 478(6) do not constitute or effect any limitation on the powers of the Victorian Chief Health Officer under s 200(1)(d) of the PHW Act; and

(2) in any event, the Directions do not require or direct any person to be vaccinated; rather, they relevantly require vaccination as a condition of entry to certain premises.

[29] Appeal grounds 7(b) and 7(c), as well as ground 15, as elaborated in oral submissions, appear to involve a contention that the Directions are invalid because they infringe s 51(xxiiiA) of the Constitution, which confers power on the federal Parliament to legislate for, relevantly, “the provision of … medical and dental services (but not so as to authorize any form of civil conscription)…”. An argument of this nature was rejected by the NSW Court of Appeal in Kassam v Hazzard 22 as “completely untenable” because s 51(xxiiiA) is a limitation on Commonwealth, not State, legislative power and, moreover, “civil conscription” is directed to compulsive service in the provision of medical services, not their receipt.23 Although it appears that an application for special leave to appeal the NSW Court of Appeal’s decision has been filed in the High Court, special leave has not yet been granted and it is unknown to us on what grounds it is sought that the appeal proceed. Insofar as grounds 7(b) and 15, as well as ground 2, raise an issue concerning the TGA Act, the argument sought to be advanced is incomprehensible to us. As to grounds 7(d) and 7(e), it is sufficient to say that we do not consider that they are reasonably arguable.

[30] Finally, ground 16, as elaborated upon in oral submissions, contends that Mercy’s instruction for employees to provide evidence as to their vaccination status constituted an “objectionable term” under the FW Act and therefore, by virtue of s 356 of the FW Act, had no effect. As defined in s 12, an “objectionable term” is, relevantly, one that requires, has the effect of requiring, or purports to require or have the effect of requiring, or permits, has the effect of permitting, or purports to permit or have the effect of permitting, a contravention of Pt 3-1 of the FW Act. Ms Roman did not identify what provision of Pt 3-1 was relevantly engaged for the purpose of this definition by Mercy’s instruction beyond referring to ss 340, 341 and 345 as having been contravened. We do not follow this argument and cannot discern any merit in it.

[31] Because Ms Roman’s appeal raises no reasonably arguable contention of appealable error, we do not consider that it would be in the public interest to grant permission to appeal.

Conclusion

[32] Because we do not consider that the grant of permission to appeal would be in the public interest, s 400(1) prohibits such permission being granted. Accordingly, permission to appeal is refused.

VICE PRESIDENT

Appearances:

D Roman for the appellant.
N Harrington of counsel for the respondent.

Hearing details:

2022.

Sydney and Melbourne by video link:
10 June.

Printed by authority of the Commonwealth Government Printer

<PR742991>

 1   [2022] FWC 711

 2   Ibid at [19]

 3   Ibid at [26] citing No 13 Directions, s 7(2)(b) and (d)

 4   Ibid at [31]-[32]

 5   Ibid at [33]-[35]

 6   Ibid at [38]-[41]

 7   Ibid at [42]-[43]

 8   Ibid at [44]

 9   Ibid at [45]

 10   Ibid at [46]

 11   Ibid at [47]

 12   Ibid at [48]

 13   [1997] AIRC 179, Print N9636 (19 March 1997)

 14   [2019] FWCFB 2946

 15   Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)

16 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]

 17   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27]

18 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

19 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 20   See e.g. Roy-Chowdhury v Ivanhoe Girls Grammar School [2022] FWCFB 101 at [16]

 21   See, for example, Re Boulton; Ex parte CFMEU (1998) 73 ALJR 129 at [21]; Precision Data Holdings Ltd v Wills [1991] HCA 58, 173 CLR 167 at 189; Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, 255 CLR 352 at [33]; Attorney-General (Cth) v Breckler [1999] HCA 28, 197 CLR 83 at [87].

 22   [2021] NSWCA 299

 23   Ibid at [38]-[39]