[2022] FWCFB 165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Jonathan Mitchell
v
University of Tasmania
(C2022/3507)

VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
COMMISSIONER YILMAZ

SYDNEY, 31 AUGUST 2022

Appeal against decision [2022] FWC 1115 of Commissioner Lee at Melbourne on 27 May 2022 in matter number C2022/1761.

Introduction

[1] Mr Jonathan Mitchell has lodged an appeal, for which permission is required, against a decision of Commissioner Lee issued on 27 May 2022. 1 The decision concerned an application made by Mr Mitchell under s 739 of the Fair Work Act 2009 (the FW Act) for the Commission to deal with a dispute with his employer, the University of Tasmania (University), in accordance with the dispute resolution procedure in clause 15 of the University of Tasmania Staff Agreement 2017-20212 (Agreement). Clause 15 applies, relevantly, to any dispute raised by an employee regarding the application of the terms of the Agreement,3 and provides that where such a dispute is not resolved at the workplace level, a party may refer the dispute to the Commission for resolution by conciliation or, if this fails to resolve the dispute, arbitration.4 We will describe in greater detail shortly the nature of Mr Mitchell’s dispute with the University but, in broad terms, it concerned the University’s decision to introduce a requirement for employees to be vaccinated against COVID-19 as a condition of entry to the University’s premises and the subsequent action taken by the University against Mr Mitchell for his refusal to comply with this requirement. On the motion of the University, the Commissioner dismissed Mr Mitchell’s application on two bases: first, because Mr Mitchell was no longer employed by the University from 18 March 2022, the Agreement no longer applied to him and the Commissioner therefore lacked jurisdiction to deal with the matter and, second, because the dispute, properly characterised, did not fall within the scope of matters to which clause 15 applied. The Commissioner also found that there would be no utility in arbitrating the dispute to the extent that it was within jurisdiction. Mr Mitchell contends in his appeal that these conclusions were in error and that the Commission had power to arbitrate his dispute and should have done so.

[2] The basic chronology of the dispute is as follows. On 23 November 2021, the University sent its employees (including Mr Mitchell) an email containing a survey for the purpose of obtaining employees’ views about the possible introduction of mandatory vaccination against COVID-19. Mr Mitchell completed this survey on 25 November 2021 and, in doing so, expressed his opinions about the safety and effectiveness of vaccination. On 9 December 2021, the University’s Vice Chancellor sent employees a letter, via email, informing them that the University had decided to introduce a requirement that, from 15 January 2022, staff and anyone else coming onto campus would be required to be fully vaccinated or have an exemption. The letter went on to explain the reasoning for this decision and that it was supported by the results of the survey. Employees were requested to advise of their vaccination status via an online system created for this purpose.

[3] On 10 December 2021, Mr Mitchell advised his supervisor that his vaccination status meant that he was likely to be locked out of his campus from 15 January 2022 as a result of the vaccination requirement. On 7 January 2022, the University reminded Mr Mitchell that he needed to advise of his vaccination status on the online system by the following day or his building access would be suspended from 10 January 2022. On 8 January 2022, Mr Mitchell advised via this system that he was opting out of being vaccinated at that time and contended, among other things, that the vaccination requirement constituted a “significant change” which had been introduced by the University without first complying with the consultation requirements of clause 12 of the Agreement. We interpolate here that clause 12 of the Agreement requires the University, when proposing to undertake a “significant change”, to consult with directly-affected employees and unions, 5 including by providing affected employees and unions with a written proposal that contains certain specified matters.6 “Significant change” is defined in the Agreement to mean “a workplace change that will have substantial effect on Employees”, and a non-exhaustive list of examples of such change is included in the definition.7

[4] On 11 January 2022, Mr Mitchell in conjunction with his supervisor submitted a proposal to the University for an alternative working arrangement which would accommodate his unvaccinated status. However, there was no immediate response to this and Mr Mitchell was locked out of his campus. He continued from this point to work remotely from home, and he was advised on 21 January 2022 that this could continue on an interim basis until further notification. On 11 February 2022, the University sent, via email, a letter to Mr Mitchell entitled “Direction to Comply – Jonathan Mitchell”. This letter, among other things, directed Mr Mitchell to comply with the vaccination requirement by confirming, by 16 February 2022, his intention to be vaccinated and, by 31 March 2022, becoming fully vaccinated. The letter stated that Mr Mitchell’s interim working arrangements could continue while this occurred but that if he did not comply, his employment might be terminated due to his inability to perform the inherent requirements of his role relating to accessing University premises, attending University-operated programs or undertaking University business.

[5] On 15 February 2022, Mr Mitchell sent an email to the University in which he contended that the introduction of the vaccination requirement was a significant change made without complying with the consultation requirements in clause 12 of the Agreement and stated that he was therefore raising a dispute about this under clause 15 of the Agreement. He also engaged in an exchange of correspondence with the University concerning matters arising from the “Direction to Comply” letter.

[6] Mr Mitchell did not confirm his intention to be vaccinated by the deadline of 16 February 2022, as required by the “Direction to Comply” letter. On 23 February 2022, Mr Mitchell received, via email, a “show cause” letter from the University advising him that the University was considering the termination of his employment and that he should provide any response as to why he should not be terminated by 5:00 pm on 25 February 2022. The letter also advised Mr Mitchell that his proposal for an alternative working arrangement to accommodate his unvaccinated status was rejected and, in respect of the dispute he had raised concerning compliance with clause 12 of the Agreement, stated that:

“The moment for you to challenge the consultation process around the University COVID-19 Safety Procedure has passed. The Procedure is in effect and this is not a current dispute. In any event, the University does not consider that implementing the Procedure constituted a significant change as defined in clause 12, Consultation.”

[7] Mr Mitchell thereafter engaged in further email correspondence about the “show cause” letter and the University’s alleged failure to consult about the introduction of the vaccination requirement. The University extended the time for Mr Mitchell to respond to the “show cause” letter and Mr Mitchell provided his response on 4 March 2022. On 15 March 2022, Mr Mitchell’s supervisor informed him that he would be receiving a letter that day or the next informing him that the University intended to terminate his employment. The same day, Mr Mitchell’s s 739 application was lodged in the Commission.

[8] On 18 March 2022, the Commissioner conducted a conciliation conference in relation to Mr Mitchell’s application, but this was unsuccessful in resolving the dispute. As at the time of the conference, Mr Mitchell still had not received the foreshadowed termination letter. Notwithstanding this, the University contended during the conference that Mr Mitchell had been dismissed on 15 March 2022, which Mr Mitchell denied. Later that day, the University sent a letter to Mr Mitchell informing him that his employment was terminated. The letter asserted that he had been informed of his termination on 15 March 2022 and that it had taken effect on that day.

[9] On 21 March 2022, the University sent correspondence to the Commission in which it contended that the Commission had no jurisdiction to deal with Mr Mitchell’s application because:

● Mr Mitchell’s termination meant that the Agreement no longer applied to him and, consequently, he was no longer able to invoke or use the dispute resolution procedure in clause 15 of the Agreement.

● To the extent that Mr Mitchell sought to characterise his dispute as being about whether the vaccination requirement was lawful and reasonable due to a failure to consult, this was not a dispute to which clause 15 applied because it did not relate to the application of the terms of the Agreement and, in any event, it was not a “live” dispute because there was currently no direction for Mr Mitchell to do anything.

[10] On the afternoon of 21 March 2022, the Commissioner conducted a directions hearing. At this hearing, Mr Mitchell sought an interim order to restrain his dismissal. The Commissioner declined to make such an order at that time and listed the University’s jurisdictional objections and Mr Mitchell’s application for an interim order for hearing on 12 April 2022. At the end of the hearing, the Commissioner reserved his decision and, as earlier stated, he delivered that decision on 27 May 2022.

The decision

[11] In his decision, the Commissioner found that there was no jurisdiction to hear and determine the dispute on two bases. The first was that, because Mr Mitchell had ceased to be employed by the University, the Agreement had ceased to cover and apply to him. In reaching this conclusion, the Commissioner applied “by parity of reasoning” 8 the Commission decision in Simplot Australia Pty Ltd v AMWU9 (Simplot), in which it was determined that the Commission could not continue to deal with a dispute under s 739 after the relevant enterprise agreement had ceased to operate. The Commissioner also construed clause 15 of the Agreement as only relevantly applicable to employees who are parties to a dispute so that, once Mr Mitchell ceased to be an employee, the clause was no longer referable to him. The Commissioner noted that Simplot was cited with approval in Vendrig v Ausgrid Pty Ltd10 (Ausgrid) in circumstances where, at the time of the appeal in that matter, the s 739 applicant was no longer an employee of the relevant respondent.

[12] The second basis was that the dispute, “properly characterised”, was about whether the University’s vaccination requirement was a lawful and reasonable direction, and that such a dispute was beyond the scope of the dispute resolution procedure in clause 15 of the Agreement because the procedure only applied to disputes about the application of the terms of the Agreement. In this respect, the Commissioner said:

“[92] The starting point of this dispute was regarding the consultation obligations in the Agreement and the claim of the Applicant that these were not properly applied. An arbitration that sought to resolve a question as to whether the Respondent properly applied the steps in the consultation provision in the Agreement in the lead up to implementing the Procedure would certainly be within jurisdiction.

[93] However, it is apparent that the dispute has evolved beyond that point. The Applicant seeks the Commission deal with the dispute by arbitration and ‘[t]he end result sought is a finding that the direction to mandate vaccination in not a lawful and reasonable direction due to a failure to consult as required by clause 12, and for the arbitrator to liaise with the parties to ensure that proper consultation is carried out before the direction is re made…’. This is a case where the relief sought casts light on the true nature of the dispute.

[94] As said by the Respondent, under clause 15.1 of the Agreement the dispute must apply to a dispute about the application of the terms of the Agreement. The Respondent states that the Applicant does not identify any provision of the Agreement which is in dispute as to whether that provision has been applied according to its terms in relation to the lawfulness and reasonableness of the vaccination requirements under the Procedure. The Applicant only refers to clause 12 of the Agreement (the consultation clause).

[95] The dispute properly characterised is a dispute about whether the Procedure and its requirement for vaccination is a lawful and reasonable direction, a dispute that does not fall within the ambit of the dispute resolution procedure, and is therefore outside the jurisdiction of the Commission to determine. Indeed, the terms of the Agreement make clear that University Policy, Procedure and Guidelines do not form part of the Agreement.” (footnotes omitted)

[13] The Commissioner then went on to say that it was not in contest that there was a discretion to arbitrate in the matter because the terms of the dispute resolution procedure made it clear that the Commission “may” arbitrate. He also said that, while a dispute about the proper application of the consultation provision was within the scope of the dispute resolution procedure, the “outcome that would be most favourable to the Applicant would involve orders for the Respondent to take further steps to consult in respect to the implementation of the Procedure, such as additional meetings, the provision of further information in writing, and so on”. 11 The Commissioner said that there would be no utility in such an outcome as Mr Mitchell was no longer employed by the University.

[14] The Commissioner said that his conclusion as to jurisdiction made it unnecessary to determine the other matters in contention, but observed that:

● section 589 of the FW Act, under which Mr Mitchell sought an interim order, merely facilitated the effective and efficient exercise of the Commission’s substantive power and could not be used to support remedial or beneficial orders related to reinstatement particularly in circumstances where, as here, reinstatement is sought as a final relief;

● what was sought by Mr Mitchell was not an order to maintain the status quo but, rather, a reinstatement order, and Mr Mitchell had decided not to pursue an unfair dismissal application; and

● the dispute resolution procedure contained a status quo provision, and the University had arguably not complied with this.

Appeal grounds and submissions

Mr Mitchell

[15] Mr Mitchell’s notice of appeal contains ten grounds of appeal. Grounds 1 and 2 challenge the Commissioner’s conclusion that there was no jurisdiction to arbitrate the dispute by reason of the termination of Mr Mitchell’s employment. In respect of these grounds, Mr Mitchell submitted that the Commissioner’s reliance on Simplot was misplaced because it concerned a situation where the relevant agreement had ceased to be operative, not a situation where the employment of the relevant worker had terminated. He likewise said that Ausgrid was inconsistent with, and did not refer to, the Full Bench decisions in ING Administration Pty Ltd v Jajoo 12 (Jajoo), Telstra Corporation Limited v CEPU13 (Telstra), Deakin University v Rametta14 (Deakin University), Kentz (Australia) Pty Ltd v CEPU15 (Kentz) and CFMEU v Broadspectrum Australia Pty Ltd16 (Broadspectrum) which affirmed the right of a terminated employee to seek arbitration of a dispute which arose at a time when the employee remained in employment. Mr Mitchell also submitted that the wording of clause 15.2 of the Agreement reinforced that an employee’s entitlement to have their dispute fully dealt with remained in place regardless of whether they ceased to be an employee.

[16] Grounds 3, 4, 5 and 6 of Mr Mitchell’s appeal contend that the Commissioner erred by concluding that the dispute, properly characterised, was not about the application of the Agreement. In support of these grounds, Mr Mitchell submitted that the timeline of the dispute shows that it was always about the University’s failure to adequately consult before issuing the vaccination direction, noting that clause 12 requires consultation to take place before a decision to implement a significant change is made and makes no provision for consultation after the decision is made. Mr Mitchell said that his contention was that a direction to vaccinate could not be a lawful and reasonable direction if the employer fails to consult as required by the consultation clause in the enterprise agreement, and submitted that his s 739 application made it clear that this was his contention.

[17] By grounds 7 and 10, Mr Mitchell contends that the Commissioner erred in finding that there was no utility in arbitrating the dispute. He submitted that, because he was terminated for failing to comply with a direction that was impugned by the University’s failure to consult, the proper course if his application was upheld would be for the Commission to restore the status quo by ordering his reinstatement and then guiding and directing the parties to conduct proper consultation. He further submitted that the evidence did not support the proposition that consultation would be of no utility because the parties were set in their positions and would not alter them.

[18] Ground 8 of the appeal is that the Commissioner erred in holding that the interim order sought by Mr Mitchell was not a status quo order. In this respect Mr Mitchell submitted that his reinstatement was necessary in order to restore the status quo because he was still an employee at the time the dispute was brought before the Commission. Ground 9 of the appeal is that the Commission erred in dismissing the application without stating a statutory basis to do so.

[19] Mr Mitchell submitted that permission to appeal should be granted because the decision conflicts with the Full Bench decisions in Jajoo, Telstra, Deakin University, Kentz, Broadspectrum and CFMEU v Goonyella Coal Mines Pty Ltd 17 (Goonyella), followed an obiter passage in Ausgrid which was inconsistent with those decisions, and because the facts of the matter were unique and justified consideration by a Full Bench in the public interest.

The University

[20] The University conceded that, to the extent that the appeal relates to the decision that the Commission had no jurisdiction to arbitrate the dispute because Mr Mitchell’s termination meant that he was no longer covered by the Agreement, it would be in the public interest to grant permission to appeal having regard to “tension” between the decisions in Simplot and Ausgrid and the more recent Full Bench decision in CFMMEU v Falcon Mining Pty Ltd 18 (Falcon Mining) which was delivered after the Commissioner’s decision. Other than this, the University submitted that permission should not be granted because the matter at first instance turned primarily on its own facts and circumstances and Mr Mitchell had not demonstrated that the Commissioner made any error in determining that the dispute, properly characterised, did not come within the ambit of the dispute resolution procedure in the Agreement.

[21] In relation to grounds 3, 4 5 and 6 of the appeal, the University submitted that Mr Mitchell was simply seeking to re-agitate the same arguments which had proved unsuccessful at first instance and that the Commissioner had not erred as to the proper characterisation of the dispute. Mr Mitchell, it was submitted, had reinforced in his appeal grounds that what was truly in dispute was whether the vaccination direction was lawful and reasonable, and the fact that consultation was an issue in determining the dispute did not render it the subject matter of the dispute.

[22] In relation to the Commissioner’s determination that there was no utility in conducting an arbitration of the dispute (grounds 7 and 10), the University submitted that there was no error in the conclusion that, because Mr Mitchell was no longer employed, he could not take part in consultation even if it were ordered. It was further submitted that Mr Mitchell had not identified the source of any power for the Commission to order reinstatement in a s 739 proceeding nor any basis to conclude that it was not reasonably open to the Commissioner to conclude that consultation would be of no utility because the parties were set in their positions and would not alter them. In relation to ground 8, the University submitted that an order for reinstatement would not be one to maintain, but rather restore the status quo. As to ground 9, it was submitted that the Commission had broad powers, including under s 587(3)(a) of the FW Act, to dismiss an application on its own initiative.

[23] In respect of grounds 1 and 2, the University acknowledged that the recent Full Bench decision in Falcon Mining is at odds with Ausgrid, and that the Commissioner’s decision was inconsistent with Full Bench decisions such as Deakin University, Kentz and Broadspectrum, which specifically rejected the idea that terminating an employee after they had initiated and lodged a dispute could end the jurisdiction of the Commission. However, the University submitted that, given the appeal turns on the application of the particular wording in the dispute resolution procedure to the dispute as properly characterised, it was unnecessary to deal with grounds 1 and 2 any further.

Consideration

[24] For the reasons which follow, we consider that the Commissioner erred in finding that there was no jurisdiction for him to arbitrate the dispute the subject of Mr Mitchell’s s 739 application.

[25] It is convenient to deal first with grounds 3, 4, 5 and 6 of Mr Mitchell’s appeal. It is not in contest that, on 8 January 2022, Mr Mitchell complained to the University that the vaccination requirement was a “significant change” to which the consultation obligations in clause 12 of the Agreement applied, and that the University had not complied with clause 12. It is also not in contest that, on 15 February 2022, Mr Mitchell raised a dispute about this issue pursuant to the dispute resolution procedure in clause 15 of the Agreement. On any view, the dispute raised by Mr Mitchell was one to which clause 15 of the Agreement applied since it was a dispute “…raised by an Employee… regarding… [t]he application of the terms of this Agreement” (clause 15.1(a)).

[26] After the University failed to engage with Mr Mitchell about this dispute, beyond denying that the vaccination requirement was a “significant change” for the purpose of clause 12 (a position which the University declined to defend in the appeal hearing), Mr Mitchell lodged his application under s 739 of the FW Act. This application squarely identified the subject matter of the dispute as being the question of whether the University had complied with clause 12 in respect of the introduction of the vaccination requirement. That being so, it is clear in our view that the dispute was one which clause 15 required or allowed the Commission to deal with, thus engaging s 739 of the FW Act.

[27] However, as earlier set out, the Commissioner instead sought to re-characterise the subject matter of the dispute by reference to the fact that Mr Mitchell’s s 739 application posed as the question to be determined whether the vaccination requirement was lawful and reasonable. The Commissioner considered that this question represented an evolution of the dispute which did not relate to the application of any term of the Agreement, and thus was beyond jurisdiction.

[28] We respectfully disagree. As Mr Mitchell made clear in his written submissions concerning the University’s jurisdictional objections, his contention that the vaccination requirement was not a lawful and reasonable direction followed directly from his contention that the consultation requirements of clause 12 had not been complied with. That is, Mr Mitchell’s case was that, on the proper construction of the Agreement, compliance with clause 12 was a condition precedent to the lawful introduction of any “significant change” such that the introduction of the vaccination requirement without prior compliance with clause 12 rendered it unlawful and unreasonable. Without expressing any view about the merit of this contention, that is sufficient to render the dispute one about the application of clause 12 of the Agreement.

[29] We now turn to grounds 1 and 2 of the appeal. As the University properly acknowledged, insofar as the Commissioner determined that there was a lack of jurisdiction by reason of the fact that the Agreement ceased to apply to Mr Mitchell from the date that his employment terminated, his decision was contrary to a long line of Commission authority both pre- and post-dating the enactment of the FW Act. The decisions which were made under the Workplace Relations Act 1996, namely Jajoo, Telstra and Deakin University, determined that there was no basis to read a limitation into s 170LW of that Act preventing the Commission 19 from arbitrating a dispute which had arisen at a time when there was there was an employment relationship between the disputants solely because the employment relationship had terminated after the Commission was seized of the dispute. That approach continued to be applied under the FW Act in the Full Bench decisions in Kentz, Broadspectrum and Goonyella on the basis that, where an application under s 739 of the FW Act for the Commission to deal with a dispute has been made at a time when an employment relationship between the relevant employer and employees remains on foot, the powers of the Commission to deal with the dispute under s 739 are engaged at that time and are not subsequently vitiated because the employment relationship later comes to an end.

[30] The decision in Ausgrid did not provide a proper basis for the Commissioner to depart from the approach taken in Jajoo, Telstra, Deakin University, Kentz, Broadspectrum and Goonyella for two reasons. First, the comments made in Ausgrid concerning the Commission’s power to determine a dispute after the end of the employment relationship between the alleged disputants had come to an end 20 were obiter, with the matter having been decided on an entirely different basis.21 Nor does the issue appear to even have been argued in the matter and, thus, there was no consideration of any of the previous Full Bench decisions we have referred to. Second, the facts in Ausgrid were distinguishable: the s 739 applicant in that case had not invoked the initial steps in the dispute resolution procedure in the relevant enterprise agreement prior to the termination of her employment22 and thus, under the procedure, had no entitlement to go straight to the Commission for resolution of the dispute (as the applicant attempted to do by filing her s 739 application on the last day of her employment).23 Here, as earlier stated, Mr Mitchell had clearly invoked the provisions of clause 15 while his employment remained on foot, and therefore had an entitlement to proceed to the Commission to have the dispute resolved.

[31] Further, the obiter comments in Ausgrid were made on the basis of the application “by parity of reasoning” of the decision in Simplot 24 but, as the University accepted, Simplot itself has now been overtaken by the Full Bench decision in Falcon Mining. Falcon Mining establishes that, once the conditions prescribed in s 739 of the FW Act for the exercise of arbitration powers have been met, the Commission is seized of jurisdiction to arbitrate the relevant dispute to completion and does not lose its authority in that respect because the relevant enterprise agreement subsequently ceases to operate.25 In this case, by the time of the completion of the unsuccessful conciliation conference on 18 March 2022, the University’s agreement to arbitration which was required by s 739(4) in order for the Commission to be authorised to arbitrate existed by force of clause 15.5(b) of the Agreement. Mr Mitchell’s subsequent dismissal (which the Commissioner found took effect when Mr Mitchell received the University’s letter of dismissal sent after the conference on 18 March 202226) did not operate to deprive the Commission of its authority to arbitrate under the FW Act. The Commissioner erred in determining otherwise.

[32] Our conclusion in this respect renders moot the Commissioner’s opinion that clause 15 of the Agreement is to be construed as relevantly applying only to current employees, since Mr Mitchell was a current employee when he made his application for the Commission to deal with his dispute and also at the point when the Commission was authorised by agreement of the parties to arbitrate the dispute. Accordingly, we consider that the Commissioner erred in concluding that he did not have jurisdiction to arbitrate the dispute. It obviously must be acknowledged, however, that the Commissioner did not have the benefit of the decision in Falcon Mining at the time he made his decision.

[33] The Commissioner’s further conclusion that, to the extent there was a limited dispute about clause 12, he would decline to exercise his discretion to arbitrate was also in error. Firstly, we do not accept that the use of the word “may” in clause 15.5(b) of the Agreement connotes a discretion as to whether to arbitrate or not. Clause 15.5(b) provides:

(b) The FWC may resolve the dispute by conciliation in the first instance, and by arbitration if conciliation fails to resolve the dispute. The parties to the dispute will implement any arbitrated decision of the FWC.

[34] To read the word “may” as conferring a discretion, as the Commissioner did, would mean that the Commission has the discretion to neither conciliate nor arbitrate – in other words, to do nothing. That would be an unusual outcome in circumstances where the final power to resolve otherwise unresolved disputes is conferred on the Commission by clause 15. The better reading is that the word “may” is used to identify what the Commission is permitted to do under the clause. Thus, in respect of arbitration, the Commission may arbitrate only if conciliation, undertaken in the first instance, fails and may not do so otherwise.

[35] Secondly, we consider that there was no proper basis for the Commissioner’s conclusion that the most favourable outcome which Mr Mitchell could obtain would be an order for the University to undertake a further consultation process in compliance with clause 12, being a process in which Mr Mitchell could not participate because he was no longer an employee. As earlier stated, Mr Mitchell’s case was not merely about whether the University complied with clause 12 but also about the legal consequence for the University’s vaccination requirement if clause 12 was found not to have been complied with. It seems to us that this could lead to a range of potential orders if Mr Mitchell’s case were to be upheld in full. In this respect, we note (as did the Full Bench in Falcon Mining 27) that, subject to any relevant limitations to be found in the enterprise agreement in question, s 595(3) provides that in arbitrating a dispute the Commission may make any orders it considers appropriate.

[36] For the reasons given above, we consider that permission to appeal should be granted and the appeal upheld. We will remit the matter to the Commissioner for determination consistent with the above reasons. It seems to us that the resolution of the dispute would require the determination, at least potentially, of the following questions:

(1) Was the introduction of the vaccination requirement a “significant change” to which the consultation requirements in clause 12 applied?

(2) If so, did the University comply with clause 12?

(3) If the University did not comply with clause 12, is the Agreement to be construed as invalidating the vaccination requirement such that it is not lawful or reasonable?

(4) If so, what, if any, remedial orders should be granted?

[37] We emphasise that nothing in our reasons should be taken as expressing any view as to how the above questions should be answered.

Orders

[38] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The decision of Commissioner Lee issued on 27 May 2022 ([2022] FWC 1115) is quashed.

(4) Matter C2022/1761 is remitted to Commissioner Lee for determination.

al of the Fair Work Commission with the memeber's signature.