Fair Work Act 2009
s.604—Appeal of decision

Lyndon Clark
v
Port Authority of New South Wales
(C2022/5563)

Appeal against decision [2022] FWC 1915 of Deputy President Easton at Sydney on 20 July 2022 in matter number C2022/1316.

Introduction and background

[1] Mr Lyndon Clark has lodged an appeal against a decision of Deputy President Easton issued on 20 July 2022 1 concerning an application made on his behalf under s 739 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute pursuant to the dispute resolution procedure in the Port Authority of New South Wales Sydney Marine Pilots Enterprise Agreement 2019-2023 (Agreement). The dispute between Mr Clark and his (now former) employer, the Port Authority of New South Wales (Port Authority), concerned the Port Authority’s COVID-19 Control Policy (Policy). The Policy, which took effect on 3 December 2021, relevantly required that the Port Authority’s employees receive a first dose of an approved COVID-19 vaccine by 15 December 2021 and a second dose by 10 January 2022 in order to be able to attend workplaces controlled by the Port Authority (vaccination direction). Employees could, under the Policy, apply for an exemption from the vaccination direction on the basis of evidence of a medical contraindication to the available vaccines. The Policy advised that contravention of the vaccination direction might be subject to disciplinary action.

[2] Mr Clark, who was employed by the Port Authority as a marine pilot, did not comply with the vaccination direction or seek an exemption by the specified deadlines. On 16 February 2022, the Port Authority sent Mr Clark a letter requiring him to show cause, by 25 February 2022, why he should not be dismissed for failing to comply with the vaccination direction. On 22 February 2022, Mr Clark’s union, the Australian Maritime Officers’ Union, filed the s 739 application on his behalf in which it was contended, among other things, that the vaccination direction was not lawful or reasonable and that, under clause 2.7.8, the Port Authority was not entitled to proceed with the show cause process until the dispute was resolved.

[3] On 4 March 2022, the Port Authority sent Mr Clark a letter informing him that his employment was terminated effective from 11 March 2022. However, after Mr Clark made an application to the Commission on 7 March 2022 seeking an interim decision restraining his dismissal, the Port Authority undertook not to terminate Mr Clark’s employment until the hearing and determination of the dispute by the Commission. The dispute was the subject of an arbitral hearing before the Deputy President on 5 and 25 May 2022. On 20 July 2022, the Deputy President issued his decision in which he found, among other things, that the vaccination direction was, at the time that it was issued, lawful and reasonable.

[4] On 21 July 2022, the Port Authority terminated Mr Clark’s employment. On 11 August 2022, Mr Clark filed an application for an unfair dismissal remedy under s 394 of the FW Act.

The decision under appeal

[5] In his decision, the Deputy President first dismissed the Port Authority’s jurisdictional objection that Mr Clark had not complied with prior steps in the dispute resolution procedure in clause 2.7 of the Agreement. 2 He then noted that the parties agreed that clause 1.2.2 of the Agreement imposed an “enforceable obligation” on Mr Clark to “comply with any reasonable and lawful direction issued by management” and, on that basis, proceeded to consider Mr Clark’s contention that the vaccination direction was not reasonable.3

[6] The Deputy President next set out the background to the making of the Policy, including the consultation process, and its key features. 4 He then dealt with Mr Clark’s contention that the vaccination direction was not reasonable because of inadequate prior consultation. The Deputy President found that Mr Clark was closely involved in the consultation process that the Port Authority conducted before the Policy took effect and rejected Mr Clark’s arguments that the Port Authority had already decided to mandate vaccination before consultation commenced and that the consultation was a mere “box-ticking” exercise.5 The Deputy President found that the consultation process was “comprehensive, appropriate and sufficient to meet the Port Authority’s obligations under WHS legislation and under the Agreement”6 and that “any direction to Mr Clark arising from the Policy was not rendered unreasonable because of any deficiency in the Port Authority’s consultation process”.7

[7] The Deputy President then dealt with Mr Clark’s contention that the vaccination direction was otherwise unreasonable, which he framed in the following terms:

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

[8] The Deputy President set out in detail the expert evidence given by Professor Marilyn Cruickshank regarding the efficacy of vaccination in controlling the spread of COVID-19 and reducing the risk of serious illness and death if infected. 8 He summarised Mr Clark’s argument as being “that a more reasonable course of action was available to the Port Authority. The availability of this more reasonable suite of control measures, he says, meant that the Port Authority’s decision to mandate vaccination was unreasonable.”9 The Deputy President considered and applied the Full Bench decision in CFMMEU v Mt Arthur Coal10 to the facts in Mr Clark’s case.11 He found that, having regard to Professor Cruickshank’s evidence, there was a logical and understandable basis for the Port Authority’s direction12 and that there were a number of factors in November and December 2021 that supported the contention that the vaccination direction was reasonable, namely:

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

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

(c) there was an identified greater potential for unvaccinated pilots passing on the virus to vulnerable seafarers than vaccinated pilots. 13

[9] The Deputy President noted Mr Clark’s submission that compulsory vaccination collided with principles of bodily integrity, which pointed against a finding that the vaccination direction was a reasonable direction, but found that he was satisfied overall that the Policy was reasonable and the vaccination direction was lawful and reasonable. 14 The Deputy President also found that the dispute started and ended with a consideration of the direction issued on 3 December 2021 and that the reasonableness of the direction could only be assessed by reference to the circumstances at that time. For that reason, he concluded that several events occurring after this, while significant to Mr Clark’s ongoing employment, were not relevant to the reasonableness of the vaccination direction.15 The events identified in this respect were:

•  a meeting between Mr Clark and management on 15 February 2022, at which “considerable progress in almost reaching a compromise position that both parties could accept” was made; 16

•  Mr Clark’s revelation to the Port Authority on 21 March 2022 that, one month earlier, his doctor had submitted a contraindication certificate on his behalf to the Australian Immunisation Registry (with the Deputy President describing Mr Clark’s explanation as to why he had earlier concealed this as “less than convincing”); 17 and

•  on 9 April 2022, Mr Clark’s positive test result for COVID-19, and the subsequent rejection of his application for an exemption from the vaccination direction. 18

[10] The Deputy President then said:

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

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

[11] Finally, the Deputy President said that in light of his findings on the reasonableness of the vaccination direction, it was not necessary to resolve the dispute about the status quo provision (clause 2.7.8) in the dispute resolution procedure in the Agreement. 19

Appeal grounds and submissions

[12] Mr Clark’s notice of appeal contains six grounds of appeal. Appeal grounds 1 and 2 contend that the Deputy President erred in assessing the reasonableness of the Policy and the vaccination direction as at 3 December 2021 rather than as at the time the matter proceeded to hearing. In relation to appeal grounds 1 and 2, Mr Clark submitted that the Deputy President’s temporal focus meant that he did not consider the circumstances of the Port Authority’s business, control measures and the nature of the COVID-19 pandemic following 3 December 2021. Importantly, in Mr Clark’s submission, these excluded circumstances included the Port Authority having jettisoned density limits and face masks as control measures by 24 February 2022. In addition, because the Omicron variant of COVID-19 had become the dominant strain in Australia from December 2021, Mr Clark submitted that the limited evidence as to the efficacy of two COVID-19 vaccinations (which is what the Policy mandated) reducing the likelihood of transmission of Omicron weighed against the reasonableness of the Policy after 3 December 2021.

[13] Mr Clark submitted that the Deputy President’s conclusion that the reasonableness of the Policy had to be considered “hermetically sealed and limited to circumstances appertaining by 3 December 2021” was wrong for three reasons:

(1) Clauses 2.7.6-2.7.7 in the dispute resolution procedure in the Agreement contemplate a dynamic dispute resolution process, with the Commission adjudicating an “outstanding dispute” following the completion of the prior steps in the procedure. A dispute, once it reaches arbitration, may be of a narrower or larger or different ambit from that which was initially raised between the parties. Because of this, the Commission is not confined to the dispute notification and is required to review the entire factual background. Here, because the dispute had been on foot for some time prior to reaching the Commission, there had been a number of changes in factual circumstances, and the Deputy President was required to consider this context rather than find that the assessment of the reasonableness of the Policy started and ended on the date the Policy was issued.

(2) Clause 1.2.2 of the Agreement conferred a discretionary power on the Port Authority to issue directions as to the manner and circumstances in which an employee was to perform work, consistent with the common law principles that an employer can issue lawful and reasonable directions to its employees. Because the lawfulness of a direction can change over time, so too can its reasonableness. Circumstances may come to pass which make a once reasonable direction unreasonable. In this context, Mr Clark submitted the variable nature of the circumstances attending the employment relationship pointed against a construction of clauses 1.2.2 and 2.7 of the Agreement that confined the dispute about the reasonableness of a direction to the circumstances that applied when it was issued.

(3) Dispute resolution procedures should be construed practically and with an eye to industrial common sense. The Deputy President’s construction was not consistent with industrial common sense because it would require a party, where the factual circumstances or scope of the dispute have changed, to recommence the process in order for the dispute (as enlarged, changed or narrowed) to be capable of being arbitrated.

[14] By grounds 3 and 4 of his appeal, Mr Clark contends that the Deputy President made a number of errors of fact and failed to take into account a number of relevant matters. In relation to these grounds, he submitted that the Deputy President specifically erred in the following ways:

(1) The Deputy President misapprehended Professor Cruickshank’s evidence when he characterised it as supportive of the notion that vaccination was an effective, logical and understandable control measure. The Professor’s evidence was more nuanced than this because she said that whether a vaccination mandate was reasonable would depend on the workplace. She said that in some cases it would be reasonable to implement such a policy where, for example, there would be large ramifications if a person were to transmit the virus to a vulnerable person and there was little ability to implement effective control measures. Mr Clark further submitted that Professor Cruickshank’s evidence was not that COVID-19 vaccination was an effective control measure, but rather that the risk of transmission from an unvaccinated person wearing a mask was lower than from a person who was vaccinated and not wearing a mask.

(2) The evidence before the Deputy President was that, as at November-December 2021, two stakeholders in the Port Authority’s business had implemented site access requirements and none had implemented vessel access requirements. This evidence was of limited probative value or significance and, in any event, Mr Clark did not normally need to access these stakeholders’ sites to perform his role and had piloted ships from both these sites after they had introduced the access requirements.

(3) There was no evidence that there was a greater potential for unvaccinated pilots to transmit COVID-19 to vulnerable seafarers.

[15] Mr Clark submitted that the Deputy President neglected to consider all the circumstances in assessing the reasonableness of the Policy, including:

•  the nature and circumstances of Mr Clark’s employment;

•  that he was able to physically distance and did not work with persons who were vulnerable to COVID-19;

•  his capacity to use and implement effective control measures to prevent transmission;

•  that the Australian Health Protection Principal Committee had not recommended COVID-19 vaccination mandates for marine pilots; and

•  that on a proper analysis of guidelines issued by the Fair Work Ombudsman, Mr Clark was properly characterised as a Tier 3 or 4 worker in relation to whom a vaccination mandate was unlikely to be reasonable.

It was submitted that by reason of these errors of fact and failures to take into account material considerations, the Deputy President’s discretion miscarried.

[16] By appeal grounds 5 and 6, Mr Clark contends that the Deputy President erred by not resolving the dispute about the effect of the status quo provision in clause 2.7.8 of the Agreement. Mr Clark submitted that clause 2.7.8 required both parties to a dispute to continue to perform work on the basis that work was performed prior to the dispute, and that the Port Authority breached clause 2.7.8 by requiring him to show cause why his employment should not be terminated and purporting to terminate his employment while the dispute was on foot. It was submitted that the Deputy President should have considered these issues and found that clause 2.7.8 of the Agreement did not permit the Port Authority to issue the show cause notice or the termination letter, and that he erred by failing to do so.

[17] Mr Clark submitted that the errors described above had significance for Mr Clark, in that the Deputy President’s decision is likely, for the purposes of his unfair dismissal application, to give rise to an issue estoppel as to the reasonableness of the Policy and as to whether the Port Authority’s requirement that he “show cause” and its move to terminate his employment whilst the dispute was on foot was contrary to the status quo provision in the Agreement. Further, it was submitted, in the event the appeal was upheld in respect to the reasonableness of the Policy, then there will not have been a valid reason for Mr Clark’s dismissal as the Policy was unreasonable and, further, if the appeal is upheld because the Port Authority contravened the status quo provision, this would be a material matter under s 387(h) of the FW Act.

[18] The Port Authority submitted, as to appeal grounds 1 and 2, that because the Policy came into force on 3 December 2021 and required that the first and second vaccination doses be received by 15 December 2021 and 10 January 2022 respectively, Mr Clark’s misconduct in not complying with the vaccine requirements had crystallised by 10 January 2022, thus rendering any conduct after that date irrelevant (except, in relation to Mr Clark’s unfair dismissal application, for the purpose of s 387(h)).

[19] In relation to grounds 3 and 4 of the appeal, the Port Authority submitted, in summary, that:

•  the Deputy President’s finding that that there was a logical and understandable basis for the vaccination direction was properly founded on the evidence of Professor Cruickshank and other evidence concerning COVID-19 and the benefits of vaccination, the consultation process which was undertaken, and the development or consideration of mandatory vaccination policies by stakeholders with which the Port Authority interacted;

•  Mr Clark did not meaningfully challenge the evidence of Professor Cruickshank, which was fatal to the appeal because her evidence was sufficient in and of itself to support a finding that the Policy and the vaccination direction were reasonable;

•  the Deputy President was right to conclude that evidence that a significant number of stakeholders had introduced or were likely to introduce site-access or vessel-access vaccination requirements that would affect the capacity of the Port Authority’s employees to perform their duties supported the reasonableness of the Policy;

•  the Port Authority had in fact identified greater potential for unvaccinated pilots passing on the virus to vulnerable seafarers than vaccinated pilots, as the Deputy President found; and

•  that the Deputy President highlighted the particular matters that he considered most pertinent to his conclusion that the Policy and the vaccination direction were reasonable did not mean that he failed to take into account the matters raised by Mr Clark in respect of appeal ground 4, and this appeal ground was a further attempt to advance the argument that a more reasonable course of action was available to the Port Authority, which was the wrong question; and

•  even if we were to find that the Deputy President had erred, we could and should find for ourselves that the Policy and vaccination direction were reasonable, because there was nothing “irrational or illogical” about them.

[20] As to appeal grounds 5 and 6, the Port Authority submitted that Mr Clark had contended below that clause 2.7.8 prevented his dismissal for breach of the Policy and the vaccination direction, and this is what in fact occurred as a result of the Port Authority’s undertaking not to terminate Mr Clark’s employment prior to the determination of the dispute. In fact, it was submitted, clause 2.7.8 only requires that work continue on the basis that it was conducted before the dispute commenced and, as at 14 December 2021 when Mr Clark first raised a dispute in accordance with the dispute resolution procedure in the Agreement, work was already required to be performed in accordance with the Policy. Given that the Policy and the vaccination direction were found to be lawful and reasonable and that clause 2.7.8 could not remedy Mr Clark’s breach of them, and that his employment was not terminated prior to the resolution of the dispute, there was no utility in determining whether the Port Authority had contravened clause 2.7.8. In any event, it was submitted, clause 2.7.8 was not contravened.

Consideration

[21] The parties agree that there is no requirement in this case for prior permission to appeal because clause 2.7.6 of the Agreement confers an independent right of appeal from an arbitral decision made by the Commission pursuant to the dispute resolution procedure in clause 2.7 of the Agreement. It is therefore necessary for us to consider Mr Clark’s grounds of appeal.

[22] It is a useful starting point in the analysis of appeal grounds 1 and 2 to identify the dispute which Mr Clark asked the Deputy President to arbitrate. This may best be identified in an outline of submissions which Mr Clark filed on 15 March 2022. In the opening to that submission, Mr Clark identified the matters to be determined in the following way:

“2. On 3 December 2021, the respondent introduced a policy requiring Marine Pilots and other persons employed or engaged by it or who attended its premises to, by 15 December 2021, have received one government approved Covid-19 vaccination and to provide evidence of this to it. The policy required that a second dosage have been received by 10 January 2022… and to provide the respondent evidence of this. A failure to comply with the policy entailed that Mr Clark may face disciplinary action including termination.

3. Mr Clark challenged the lawfulness and reasonableness of the policy on 14 December 2021. Notwithstanding that he put the policy into dispute, the respondent has proceeded to seek to terminate his employment, notifying him that his employment would be terminated for failing to comply with the policy by 11 March 2022. That determination has been stayed by an undertaking given by the respondent not to move to terminate Mr Clark pending resolution of these proceedings.

. . .

6. The Commission should resolve the dispute by holding that the Policy does not, in the particular circumstances of the instant case, constitute a reasonable and lawful direction. In the alternate, it should resolve the dispute by determining that the respondent was not permitted to require Mr Clark to show cause or other[wise] notify him of termination whilst this dispute was on foot.”

[23] Thus, Mr Clark’s submission above focused upon the Policy as it was introduced on 3 December 2021 and the vaccination direction it contained, which mandated vaccination by the specified dates. The primary outcome which Mr Clark sought to resolve the dispute was a finding that the vaccination direction, so described, was not lawful or reasonable. He proposed as an alternative outcome a determination that the Port Authority was not permitted to require Mr Clark to “show cause” or to give notice of the termination of his employment whilst the dispute was on foot.

[24] Mr Clark subsequently shifted his case somewhat. In submissions in reply filed on 29 March 2022, the proposition that the Commission should find that the vaccination direction was not a lawful and reasonable direction was maintained, but this was said to be the case not just because of the circumstances of his employment but also “in light of the measures he will take [to mitigate the risk of infection and transmission]”. Mr Clark also raised the evidence he had by then supplied as to his alleged medical contraindication and submitted that, because of the “evolution of the factual circumstances of the dispute”, the Commission should determine, if it was against Mr Clark as to the lawfulness and reasonableness of the vaccination direction, that the Port Authority should withdraw the termination of his employment “on this further basis”. However, this proposition was not pursued in Mr Clark’s final submissions.

[25] The dispute resolution procedure in clause 2.7 of the Agreement applies, relevantly, to any matter arising under the Agreement (clause 2.7.1). Clause 1.2.2 of the Agreement relevantly provides:

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

[26] Whether the Policy had been developed “through consultation between the parties” and whether the vaccination direction contained in the Policy was a “lawful and reasonable direction” such that compliance with them by Marine Pilots was required under clause 1.2.2 were plainly matters arising under the Agreement. Thus, the Commission had the authority under clause 2.7.6 of the Agreement to arbitrate a dispute about these matters. However, clause 2.7 read with clause 1.2.2 did not authorise the Commission to resolve a dispute about whether Mr Clark should be given a special waiver from the requirements of the Policy, or afforded a special accommodation by way of alternative control measures against COVID-19. Nor did it authorise the Commission to determine what the disciplinary consequences for him should be once he had failed to comply with the vaccination direction. Mr Clark did not identify any other provision of the Agreement as authorising the Commission to arbitrate a dispute about any of these matters.

[27] Having regard to these matters, grounds 1 and 2 of the appeal must be rejected. The matter that was identified by Mr Clark as being in dispute and which arose under the Agreement such as to be amenable to arbitration was (apart from the issue of whether the Policy was developed through consultation) whether the vaccination requirement was lawful and reasonable. As Mr Clark identified in his own submission, what the vaccination direction actually required was the receipt of a first dose of an approved vaccine by 15 December 2021 and a second dose by 10 January 2022. Whether the vaccination direction was lawful and reasonable can only be assessed, in our view, by reference to what it required to be done. This was temporally limited to the period from 3 December 2021 to the identified dates for compliance. Just as the vaccination direction’s lawfulness could not be assessed by reference to any relevant statutory requirement which took operation only after 10 January 2022, its reasonableness could not be affected by circumstances arising only after that date.

[28] Mr Clark did not arrange to be vaccinated by the specified dates, nor did he obtain an exemption from the vaccination direction in accordance with the Policy prior to those dates. Accordingly, he did not comply with the vaccination direction. As the Port Authority submitted, his misconduct in that respect had crystallised by 10 January 2022. Whether Mr Clark should subsequently have been allowed to return to work nonetheless on the basis of the alternative controls he proposed at the meeting on 15 February 2022, or because the Port Authority removed a number of its COVID-19 controls on 24 February 2022, or on the basis of evidence of a medical contraindication supplied in March 2022, may be relevant to the consideration of Mr Clark’s unfair dismissal application, but they do not bear upon the reasonableness of the vaccination direction at the time it operated. Similarly, the issue of the disciplinary consequences which might appropriately follow from Mr Clark’s non-compliance with the vaccination direction, including the question of whether misconduct occurring in the December 2021/January 2022 period constituted a valid reason for dismissal on 21 July 2022, are matters which will undoubtedly be critical to his unfair dismissal application but did not properly arise for consideration in the proceeding before the Deputy President.

[29] Mr Clark’s submission that the ambit and character of disputes may alter due to changed circumstances, and that the obligation of the Commission under dispute resolution provisions such as clause 2.7 of the Agreement is to resolve the outstanding dispute, may be accepted in a general sense. The dispute resolution function should not be obstructed by pleading points. But an important caveat applies: in a dispute resolution procedure such as that in clause 2.7, which relevantly confines the scope of the procedure to matters arising under the Agreement, a change to the ambit or character of a dispute cannot result in the Commission being empowered to arbitrate a matter which does not arise under the Agreement. In this case, the relevant matter identified as arising under the Agreement was whether the vaccination direction was lawful and reasonable. The Deputy President’s consideration of that matter was temporally constrained for the reasons earlier stated, and he was not conferred with power to arbitrate other matters subsequently occurring which did not properly arise under the Agreement.

[30] In relation to grounds 3 and 4, we consider that the case advanced by Mr Clark concerning the reasonableness of the vaccination direction was fundamentally misconceived. The principles concerning the assessment of whether an employment direction is reasonable, as relevant to this case, may be summarised as follows:

(1) What is reasonable is not to be determined in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. 20

(2) The determination of whether an employer’s direction was a reasonable one does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with best practice, or in the best interests of the parties. 21 The question is whether the direction is objectively reasonable, not whether it could have been more reasonable.

(3) There may be a range of options open to an employer within the bounds of reasonableness. The employer has an area of decisional freedom within those bounds. Reasonable minds might differ as to what decision is best or most desirable within those bounds, and in assessing the reasonableness of a direction a court or tribunal will not simply substitute its own view as to how the decision-making discretion should be exercised for that of the employer. 22

(4) A direction lacking an evident or intelligible justification is not a reasonable direction that an employee is obliged to obey but that is not the only basis upon which reasonableness can be established. 23

[31] Mr Clark mounted his attack on the reasonableness of the vaccination direction primarily by reference to alternative control measures against infection with and transmission of COVID-19 which he contended the Port Authority could have implemented instead of the vaccination direction. This is most clearly seen in the expert report which he obtained from Professor Cruickshank and placed into evidence. In her report, Professor Cruickshank addressed a number of questions posed by Mr Clark’s lawyers which, among other things, required her to compare the efficacy of the vaccination direction with the “Clark approach” — that is, the alternative control measures proposed by Mr Clark. That constituted, in substance, an attempt to identify a more reasonable, or at least an equally reasonable, approach that could have been taken which did not require vaccination. Consequently, having regard to the principles set out above, Mr Clark’s case was to a substantial degree addressing the wrong question. The analysis necessarily focuses on the direction in question in the context of the relevant circumstances, and the question to be determined did not require a comparison between the direction and some other direction or approach which, hypothetically, might have been made or taken.

[32] In our view, the evidence and other material before the Deputy President established that the vaccination direction was reasonable. COVID-19 may cause asymptomatic or mild disease, but can also cause severe illness, such as hypoxia, critical illness, death and “long COVID”. Isolation requirements in force at the time of the vaccination direction required isolation (and, consequently absence from work) in all cases of COVID-19 infection. Mr Clark’s job required him to interact with other persons in the course of the performance of his duties, and this meant that there was a risk of infection with and transmission of COVID-19. The Port Authority has a legitimate and significant interest in having a healthy workforce which is available to perform the critical work functions of its business. The minimisation of the risk of transmission of disease to or within its workforce serves that interest. The Port Authority also has a legitimate interest in ensuring that, where necessary, its employees can access the premises or vessels of its business stakeholders where those stakeholders have a mandatory vaccination entry requirement. The Port Authority must also comply with applicable workplace health and safety laws.

[33] The evidence of Professor Cruickshank established that primary vaccination against COVID-19 (that is, two vaccination doses) significantly reduces the risk of serious illness as a result of COVID-19 infection. In addition, although less so with the Omicron variant of COVID-19, primary vaccination reduces the risk of acquiring and transmitting COVID-19 infection as compared to an unvaccinated person. Professor Cruickshank made clear that the most effective approach to COVID-19 for employers involves implementing a combination of control measures, which may include hand hygiene, face masking, distancing and vaccination. In this context, at the time of the vaccination direction, the Port Authority also had in place density limits (to aid distancing) and a face masking requirement. It is also necessary to take into account that the Policy allowed employees with a medical contraindication to obtain an exemption from the vaccination direction, and thus protected the position of those who were unable to be vaccinated for medical reasons.

[34] Having regard to these matters (which were largely uncontroversial), it is reasonably clear that the introduction of the vaccination direction, in addition to other control measures, was a rational, medically sound and proportionate measure to protect the Port Authority’s legitimate interests in the circumstances of the COVID-19 pandemic then prevailing. As the Deputy President found, the vaccination direction was introduced only after comprehensive consultation with the workforce in which Mr Clark was closely involved. The only countervailing consideration was that the effect of the vaccination direction was to place pressure on Mr Clark, in order to maintain his capacity to attend workplaces controlled by the Port Authority, to undergo vaccination in circumstances where he would prefer not to. But that did not infringe upon his right to bodily integrity because the vaccination direction did not require Mr Clark to undergo vaccination absent his consent, 24 and he has not done so. This countervailing consideration is not sufficient to render the vaccination direction unreasonable.

[35] Mr Clark accepted that the correctness standard applies to the appellate consideration of whether the vaccination direction was lawful and reasonable. For the reasons stated, we consider that the Deputy President’s conclusion that the vaccination direction was lawful and reasonable was correct. In those circumstances it is not necessary for us to consider in any detail the various challenges mounted by Mr Clark to the reasoning process by which the Deputy President reached the conclusion that he did. It is sufficient to say that we do not consider that the Deputy President made any error of fact or failed to take into account any material consideration which caused his analysis of the question to be determined to miscarry.

[36] Accordingly, grounds 3 and 4 of the appeal are rejected. It is perhaps necessary to emphasise that our conclusion as to the lawfulness and reasonableness of the vaccination direction is not to be taken as involving the expression of any view as to the fairness of Mr Clark’s dismissal on 21 July 2022.

[37] As to grounds 5 and 6 of the appeal, we do not consider that the expression of an opinion by the Deputy President concerning whether the Port Authority had contravened clause 2.7.8 by initiating the “show cause” process and then giving notice of termination to Mr Clark would have served any useful dispute resolution purpose once the Deputy President had determined that the vaccination direction was lawful and reasonable. Further, in circumstances where the Deputy President appreciated that the termination of Mr Clark’s might be imminent, we consider that he was correct in concluding that consideration of the conduct of the parties after the issue of the vaccination direction might bear upon the fairness of the dismissal. In a similar vein, we decline to express any view in response to appeal grounds 5 and 6 as to whether the Port Authority contravened clause 2.7.8, since this may well be a matter of relevance in Mr Clark’s unfair dismissal application.

Conclusion

[38] The appeal is dismissed.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR747725>

Appearances:

P Boncardo of counsel for the appellant.
M Minucci of counsel for the respondent.

Hearing details:

2022.
Sydney:
21 September.

 1   [2022] FWC 1915

 2   Ibid at [6]-[28]

 3   Ibid at [29]-[31]

 4   Ibid at [32]-[43]

 5   Ibid at [44]-[52]

 6   Ibid at [53]

 7   Ibid at [54]

 8   Ibid at [59]-[64]

 9   Ibid at [65]

 10   [2021] FWCFB 6059, 310 IR 399

 11   [2022] FWC 1915 at [66] and following

 12   Ibid at [67]

 13   Ibid at [68]

 14   Ibid at [73]

 15   Ibid at [74]-[78]

 16   Ibid at [76]

 17   Ibid at [77]

 18   Ibid at [78]

 19   Ibid at [81]

 20   R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44, 60 CLR 601 at 622 per Dixon J

 21   Briggs v AWH Pty Ltd [2013] FWCFB 3316 at [8]; CFMMEU v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 at [80]

 22   CFMMEU v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 at [77]-[78]

 23   Ibid at [79]; Mac v Bank of Queensland Limited [2015] FWC 774 at [90]

 24   Kassam v Hazzard [2021] NSWSC 1320 at [63], affirmed in Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299; special leave to appeal to the High Court refused.