PN1

THE ASSOCIATE: This Commission is now in session, in the matter of C2022/2642.

PN2

Deputy President, you're on mute.

PN3

THE DEPUTY PRESIDENT: I'll just take the appearances. Mr Freeman, you appear for yourself?

PN4

MR P FREEMAN: That's correct. Good afternoon Deputy President Cross.

PN5

THE DEPUTY PRESIDENT: Good afternoon. Mr Zeng, you appear for the respondent?

PN6

MR J ZENG: May it please the Commission. Along with Mr Quinn as well.

PN7

THE DEPUTY PRESIDENT: Yes, I see Mr Quinn there.

PN8

I note this matter has been listed particularly to deal with the determination of the jurisdictional points that have been raised by the respondent and that materials have been filed, particularly your submission, Mr Freeman, of 7 June and the respondent's responses on 10 and 17 June.

PN9

Who wishes to go first? I know that it is a jurisdictional point raised by the respondent, or jurisdictional points. Mr Zeng, bearing in mind Mr Freemen's representing himself, do you want to go first?

PN10

MR ZENG: Sure. Thank you. And as another administrative matter, Deputy President, for the record, we say that the correct name should be the Secretary of the Department of Transport. That's an exercise in the important functions for those in the Transport Service of New South Wales, on behalf of the government of New South Wales.

PN11

I think, in terms of the jurisdictional issue - - -

PN12

THE DEPUTY PRESIDENT: I'll deal with that. Is there any objection to that identification of the respondent by that name, Mr Freeman?

PN13

MR FREEMAN: Yes. My contract specifically states the parties to the agreement are only the Transport Service and Patrick Freeman, or Patrick Thomas Freeman, being myself, and I just note the communications, up to this point in the matter, have only come from Sydney Trains Pty Ltd, which is a trading organisation, and I've provided that Australian company number in my application.

PN14

THE DEPUTY PRESIDENT: Okay. Well, just clarifying, Mr Zeng, you wish the respondent to be identified as the Secretary of the Department of Transport?

PN15

MR ZENG: That's correct, Deputy President. We say that that is the correct reference to the employer.

PN16

THE DEPUTY PRESIDENT: Well, that's the employer on the contract. The Secretary of the Department of Transport is head of the Transport Service?

PN17

MR ZENG: That's correct, Deputy President.

PN18

THE DEPUTY PRESIDENT: Under that agreement why wouldn't that be the respondent?

PN19

MR FREEMAN: Were you directing that to me?

PN20

THE DEPUTY PRESIDENT: Yes. Mr Freeman, if your contract says the parties are the Secretary of the Department of Transport, as head of the Transport Service, on one part, and you on the other, why wouldn't the identity of the respondent be varied to reflect your contract?

PN21

MR FREEMAN: That is correct. However, I note that no communication has been received from that party, in relation to that matter. And through my application and what I just mentioned before, all communications in terms of ceasing my pay, and the directions, have come directly from Sydney Trains.

PN22

I've noted before, in the previous two hearings, that my remuneration, and everything else regarding my employment, has come from that party, being the one that James has just mentioned within this hearing.

PN23

So there seems to be a difference of who's notifying me of my employment contract terms and cessation of pay and direction, as opposed to the party to my contract. That is one of my primary concerns.

PN24

THE DEPUTY PRESIDENT: I didn't really follow a lot of that, but did you say - when you talk of James you're talking about Mr Zeng?

PN25

MR FREEMAN: Correct, Mr Zeng.

PN26

THE DEPUTY PRESIDENT: Sorry, I didn't know his first name.

PN27

Now, when you say - I thought you said your pay was received from the respondent, from the Secretary of the Department of Transport?

PN28

MR FREEMAN: That is correct, but the directions, in relation to this matter that my application is in relation to have not come from the respondent.

PN29

THE DEPUTY PRESIDENT: Well, Mr Zeng, I think I can deal with that at the conclusion, the identity of the respondent.

PN30

MR ZENG: Thank you, Deputy President. I was only going to say it's by delegated authority as well, but I don't know if we need to go into that at this point in time.

PN31

THE DEPUTY PRESIDENT: Please continue.

PN32

MR ZENG: Thank you. So, Deputy President, in terms of what I'd like to first of all address and open our case is around the two matters that we say go to the validity of the application and the eligibility of the applicant to bring this application. The applicant brings this application under section 526 of Part 3-5, in relation to a dispute to deal with a stand down.

PN33

Now, by way of background, and I note that a substantial amount of material has already been exchanged between the parties and is reflected in the court book, but I thought I'd give a brief background to assist, in that this country has not been immune to COVID‑19 and, for a long time, lockdowns were utilised while a vaccine was being developed against COVID‑19.

PN34

Now, as part of the respondent's measures, including to discharge requirements under WHS, these COVID safe measures were introduced in 2021, November. That was following, or just before the easing of the public health orders, requiring things such as lockdown and work from home requirements were applicable.

PN35

This was part of a view, in terms of moving people can into that hybrid work, with a mix of in person and flexible working, and there was really a need to balance the requirements of ensuring the health and safety of those coming into the workplace.

PN36

The applicant is a Transport Service senior manager and not a Sydney Trains Enterprise Agreement, or otherwise, award covered employee in our workforce. The background to why we're before you today is that simply the applicant has not complied with or has not demonstrated with any intention to comply with the respondent's COVID safe measures that are in place at this point in time.

PN37

A process was, in a way, undertaken where the applicant was provided time and opportunity to become compliant. For the reasons that the applicant has outlined, the applicant remains non compliant with the organisation's COVID safe measures that are in place at this point in time.

PN38

I understand, from the background, that the applicant has sought to apply for an exemption, that was declined. Following the decision, the applicant was informed, by letter, that it was clear that he did not intend to comply with the respondent's COVID safe measures, and there was a determination made that the applicant then demonstrated that he was not ready, willing and able to work.

PN39

The respondent, at the time, and currently, is not relying on any of the powers under Part 3-5, or section 524, to stand down the applicant.

PN40

Quite separately, as I will flesh out, in terms of the submissions as well, is that the employment relationship is government by the New South Wales Industrial Relations system, and not the Fair Work Act.

PN41

In terms of outline, and just for completeness, the transport agencies are currently undertaking further consultation as to the COVID safe measures into the future. That may have an impact on the applicant's employment and that's especially so, given the change in conditions and circumstances, since November 2021, but at this point there is no change to the COVID safe measures that have been put in place with vaccination as being one of the main controls.

PN42

With that as background, Deputy President, the respondent raises two issues that we say go to both jurisdiction and the eligibility for the applicant to bring this application. We're seeking for the Commission to consider these issues, prior to proceeding with the applicant's application.

PN43

The way that the respondent wishes to frame the two issues, first is that the, putting aside the character of the employer, the applicant simply has not been subject to a stand down, under Part 3-5 of the Act and therefore is not entitled to bring such an application before this Commission. Rather, as a factual matter, the applicant has demonstrated not being ready, willing and able to work, by refusing to comply with COVID safe measures, which are implemented by way of policy and by way of lawful and reasonable direction.

PN44

Secondly, the broader issue with the application is also that the employer, in this case, is not a national system employer and, similarly, therefore the applicant is not a national system employee. Over the course of our case is that both arguments, if accepted, Deputy President, lead to the finding that there has been, as a factual matter, potentially going to jurisdictional fact, there is no stand down, under Part 3-5 and, similarly, what's occurred, in terms of the salary payment ceasing, would not be considered a stand down and the applicant's therefore ineligible to make this application. We're seeking for the application to be dismissed.

PN45

THE DEPUTY PRESIDENT: Yes.

PN46

MR ZENG: If it's appropriate, before I go into evidence, it might be for the applicant be provided an opportunity to respond to any opening remarks that I've just made, Deputy President.

PN47

THE DEPUTY PRESIDENT: Okay. Mr Freeman, what Mr Zeng has done is basically do an outline of what the respondent wishes to put today. You can deal with that now, or you can deal with it once he's put all his evidence before me. I understand there's no desire (indistinct) one deponent of a statement, being Mr Quinn, is that the case?

PN48

MR FREEMAN: Sorry, the audio cut out then.

PN49

THE DEPUTY PRESIDENT: Mr Zeng is wondering whether you wish to make an opening, before he goes into evidence. You can do so, if you wish or wait until the respondent leads all of their evidence and then you can go into your case.

PN50

MR FREEMAN: I would prefer to make a statement now, yes, if it's fine to proceed.

PN51

So, in terms of the jurisdictional objection that Mr Zeng's raised and has been discussed at the prior two hearings as well, my email, from Tuesday, 7 June, in the morning, addresses the reasons why it is within jurisdiction. So my contract holds, within 'Background', point (e):

PN52

The terms and conditions in this agreement are subject to any provisions of the Transport (Administration) Act, which was written in 1988, the GSE Act and applicable rules and regulations that apply to the employee's employment and the roles and duties which the employee undertakes.

PN53

So that is part of my contract, in the preamble of my contract.

PN54

So I note the Transport (Administration) Act of 1088, clause 68(o), states:

PN55

Senior executives and managers -

PN56

Which is my role classification, per my contract, Transport Senior Service Manager:

PN57

industrial or legal proceedings excluded.

PN58

Point 1:

PN59

The employment of a Transport Senior Service Executive or Senior Manager, or any matter, question or dispute relating to any such employment is not an industrial matter, for the purposes of the Industrial Relations Act 1996. The New South Wales Industrial Relations Commission can only rule and only has jurisdiction where people fall under the Industrial Relations Act of 1996.

PN60

I can go on throughout that clause, but I have already included it in my emails, so I don't want to labour the point too much.

PN61

THE DEPUTY PRESIDENT: I've read it.

PN62

MR FREEMAN: Yes, I think you understand that.

PN63

I want to go further as well because the way the Fair Work Act 2009 actually applies, as a default industrial legal instrument nationally, is that where there is no stand down clause, or cessure of pay clause, within an employment contract or industrial instrument, which is the case for me, the provisions of clause 524 come into force.

PN64

So my contract does not have any provision for my pay or my benefits to be ceased, which include superannuation. My contract does allow for me to ask to cease working, I have addressed that, and that is under 'For Duties', clause (g):

PN65

The employer may, at any time, direct the employee not to attend or perform work.

PN66

Now, I've complied with that, since that occurred in December. I did raise, from November and even in discussions before November, that I had concerns around being stood down and with the direction, on multiple counts, but I think that addresses my concerns, in relation to the jurisdiction. I think it puts it fairly within the Fair Work Act and allows the Fair Work Commission to hear this.

PN67

As I noted, I've mentioned my contract and the TA Act, during conference two.

PN68

THE DEPUTY PRESIDENT: (Indistinct) the Fair Work Act, what do you say - you refer to that brings it within the Fair Work Act?

PN69

MR FREEMAN: So the Transport Administration Act of 1988, clause 68(o), does not have me covered under the Industrial Relations Act of New South Wales. Now, that makes it a referring state, for the purposes of my role classification.

PN70

THE DEPUTY PRESIDENT: I understood that legislation it says, 'Not industrial matters pursuant to the state Act', but simply by way of a matter not being an industrial matter, pursuant to the state Act, doesn't mean you automatically become covered by the federal Act.

PN71

MR FREEMAN: It actually - as I read the Fair Work Act of 2009, the Act applies to the exclusion of basically the Industrial Relations Act of New South Wales 1988. That is in the preamble. And per - per section 30(b), and the meaning of a referring state, clause 1:

PN72

A state is a referring state if the parliament of the state has, before 1 July 2009, referred the matters covered in subsection (3), (4) and (5), in relation to the state of the parliament of the Commonwealth, for the purposes of paragraph 51 of the Constitution.

PN73

So the Transport (Administration) Act refers the industrial matters to the Fair Work Act, and that is the effect of those two pieces of legislation.

PN74

THE DEPUTY PRESIDENT: Well, you've referred to section 30(b) of the Fair Work Act, what section of the Transport (Administration) Act are you referring me to?

PN75

MR FREEMAN: That was mentioned in the last hearing, but the clause is 68(o).

PN76

THE DEPUTY PRESIDENT: You've gone back to the one that says that certain parts of the Industrial Relations Act does not apply. That was my question to you, and my observation, that just because the Transport (Administration) Act says certain parts of the state Act don't apply does not then automatically mean you're covered by the Fair Work Act.

PN77

MR FREEMAN: Okay. So I'm going now quote clause 5(c):

PN78

The removal, retirement, termination of employment or other cessation of employment of the executive or manager.

PN79

So:

PN80

In this section, a reference to the employment of a Transport Senior Executive or Senior Management is a reference to the removal, retirement, termination of employment or other cessation of employment of the executive or manager.

PN81

Or (d):

PN82

Any disciplinary proceedings or action taken against the executive or manager.

PN83

Or (e):

PN84

The remuneration or other conditions of employment of the executive or manager.

PN85

This was, again, in my submission on Tuesday, 7 June.

PN86

THE DEPUTY PRESIDENT: How does that get you in under the (indistinct), under the Fair Work Act?

PN87

MR FREEMAN: So the Fair Work Act states that it applies to the exclusion of the New South Wales Industrial Relations Act of 1996.

PN88

THE DEPUTY PRESIDENT: In relation to?

PN89

MR FREEMAN: Those items that I just mentioned, that are covered under the Transport Administration Act. So this matter cannot be heard under the Industrial Relations Commission of New South Wales, that is the material impact.

PN90

The only area that can hear this is the Fair Work Commission, and I'm covering that and I have covered that in my communications to this point. I've covered it in the hearings as well. So I'm not clear on what is not being understood about the fact that the Industrial Relations Act of New South Wales does not cover me, nor doe the Industrial Relations Commission. This cannot be heard by anyone else and can't be ruled upon by anybody else.

PN91

THE DEPUTY PRESIDENT: That doesn't mean - - -

PN92

MR FREEMAN: It does. I've detailed why the Fair Work Commission has to hear this.

PN93

THE DEPUTY PRESIDENT: I know that's what you wish. Even if your position that it can't be heard by the state commission is correct, that does not automatically mean that somebody must be able to hear it, the must be granted jurisdiction to hear an application.

PN94

MR FREEMAN: And I covered that off as well. The Fair Work Act basically covers this, as a referring state. The effect of the parliament of New South Wales, right in clause 68(o), makes them a referring state for Transport Service senior managers. That's the material impact.

PN95

THE DEPUTY PRESIDENT: Please continue.

PN96

MR FREEMAN: Okay, thank you.

PN97

Other points that I need to address, from the opening statement, or one of the key points that Mr Zeng did make is that work from home orders were diluted. It may not have been that term, but words to the effect that there was a relaxation of the public health orders. I can confirm, and I have confirmed, in the last hearing and again per my email on 7 June, the Minister for Health and Medical Research, at the time and still, Brad Hazzard, has a direction in the General Public Health Order, it's clause 2.2(3).

PN98

At the time that this policy was created and at the time that it had a material impact to me, everyone was being instructed to work from home where they could. Now, this is back in November/December, because there were holds, through a savings clause, and it allows for, regardless of vaccination status, people who are able to work from home to continue to work from home.

PN99

So I had been working from home for 19 months, at the time that my salary was ceased and I was directed not to work, which I complied with. So I have concerns about that statement, because that legislation is still in place and my actions, up to this point and back towards the end of 2021, aimed for me to be acting lawfully, under my contract, under my employment, and with the public health order, and also the requests that I made to attempt to continue in my role were quite reasonable, in that I'd been working from home for 19 months to that point. I would add that I have not restricted myself from performing my role in my usual workplace location, but I offered to continue, under the risk control that was put in by Sydney Trains, by Transport, to work from home if they did not see me as able bodied to work in the office. So that is a concern for me on that point.

PN100

Further to that, I don't believe that there's any actual utility in withholding my pay or ceasing my pay, whether it be for what you would consider a disciplinary matter, or otherwise. The policy, whilst there's no provision in my contract for it to apply to me, is fairly clear cut. They're asking for compliance of the policy so I don't believe that withholding pay has any utility to it, or serves any purpose. The policy is a yes or a no and there is not really a grey area, and that's been evidenced, except for the process of being excluded from the policy, which I did apply for. So there will be people working in the office now, or potentially working for the organisation still which are in the same situation as me, but an arbitrary internal body has determined that they are allowed to work and they are able bodied to work, however I am not.

PN101

So those are the two points, besides the jurisdictional objection, that I wanted to address.

PN102

THE DEPUTY PRESIDENT: Mr Zeng, do you wish to go into your evidence?

PN103

MR ZENG: Yes, thank you, Deputy President, and I will address those matters in submission as well. I note that the Commission has listed the matter for just the afternoon, so I'll try to be as brief as possible and avoid rehashing what's already been provided to the Commission, in terms of the evidence and written submissions.

PN104

So it might now be appropriate to have - do you want Mr Quinn sworn in, Deputy President?

PN105

THE DEPUTY PRESIDENT: Not if there's no wish to cross‑examine him.

PN106

MR ZENG: Sure. Well, then I take the opportunity now to simply - - -

PN107

THE DEPUTY PRESIDENT: Mr Freeman, that's correct, isn't it, that you don't wish to cross‑examine?

PN108

MR FREEMAN: No, I don't believe that's necessary.

PN109

THE DEPUTY PRESIDENT: Shall we just mark Mr Quinn's statement as exhibit R1, and that's got the two annexures?

EXHIBIT #R1 WITNESS STATEMENT OF NOEL QUINN DATED 17/06/2022

PN110

MR ZENG: Thank you, Deputy President. I read the statement of Noel Brendan Quinn of 17 June 2022.

PN111

Given that there's no cross‑examination I might just make some closing submissions, Deputy President.

PN112

THE DEPUTY PRESIDENT: Well, just before you do, are they the only documents that you wish to put in?

PN113

MR ZENG: In support of the jurisdictional objection.

PN114

THE DEPUTY PRESIDENT: Yes.

PN115

MR ZENG: Yes, Deputy President.

PN116

THE DEPUTY PRESIDENT: I'm sure Mr Freeman might want to mark some documents in his case, in evidence. So before you go to submissions, we might just - - -

PN117

MR ZENG: Apologies.

PN118

THE DEPUTY PRESIDENT: Not a problem. I just want to make sure - - -

PN119

MR ZENG: I'm jumping ahead, Deputy President.

PN120

THE DEPUTY PRESIDENT: We're not following an entirely customary course, so not a problem. So, Mr Freeman, effectively what Mr Zeng has said is he only seeks to rely on the statement with the two annexures, and then his submissions. So what documents would you want before me as evidence? It might be mixed evidence and submission, in your case, but what is it?

PN121

MR FREEMAN: I would see everything that has been provided, up to this point, as evidence. My key - my key reference point would be my email from 7 June. That addresses everything we've discussed thus far and also addresses other concerns with the risk assessment that was created in support of this policy and addresses, generally, why I do not believe that, in my case, for me personally, this is a lawful or reasonable request.

PN122

There's multiple elements to it, but that email from 7 June does detail a lot of them and I would be submitting other pieces besides that as well.

PN123

THE DEPUTY PRESIDENT: Well, here's your chance. So the first email you refer to goes from page, and you have the court book there, from page 73 to 269, correct?

PN124

MR FREEMAN: I'll just check those details. Correct, yes.

PN125

THE DEPUTY PRESIDENT: So that will be - any objections to any of that being marked, Mr Zeng?

PN126

MR ZENG: No objections.

PN127

THE DEPUTY PRESIDENT: That will be exhibit A1.

EXHIBIT #A1 EMAIL DATED 07/06/2022 (PAGES 73 TO 269 OF COURT BOOK)

PN128

Anything else?

PN129

MR FREEMAN: Yes. All the other documents that are held in the court book.

PN130

THE DEPUTY PRESIDENT: Even the ones that were sent by the respondent?

PN131

MR FREEMAN: By myself only.

PN132

THE DEPUTY PRESIDENT: Okay. The form F13, with annexures, so from page 3 to page 57, is that one bundle of documents?

PN133

MR FREEMAN: Correct.

PN134

THE DEPUTY PRESIDENT: Any objections, Mr Zeng?

PN135

MR ZENG: No objections, Deputy President.

PN136

THE DEPUTY PRESIDENT: That's A2.

EXHIBIT #A2 FORM 13 AND ANNEXURES (PAGE 3 TO 57 OF COURT BOOK)

PN137

Your email of 11 May, Mr Freeman?

PN138

MR FREEMAN: From page 59 through to 62.

PN139

THE DEPUTY PRESIDENT: Yes.

PN140

MR FREEMAN: My email from page 66 through to 72.

PN141

THE DEPUTY PRESIDENT: Let me just deal with, first, 59 to 62, that's exhibit A3. Any objections, Mr Zeng?

PN142

MR ZENG: No objections, Deputy President.

EXHIBIT #A3 EMAIL DATED 11/05/2022 (PAGES 59 TO 62 OF COURT BOOK)

PN143

THE DEPUTY PRESIDENT: The next one is your email of 18 May, page 66 to 72?

PN144

MR FREEMAN: Correct.

PN145

THE DEPUTY PRESIDENT: Exhibit A4. Any objections, Mr Zeng?

PN146

MR ZENG: No objections.

EXHIBIT #A4 EMAIL DATED 18/05/2022 (PAGES 66 TO 72 OF COURT BOOK)

PN147

THE DEPUTY PRESIDENT: And that would seem to be all of your materials, Mr Freeman.

PN148

MR FREEMAN: Yes. We did already list the email from 7 June, didn't we, from page 73 through to 169, didn't we?

PN149

THE DEPUTY PRESIDENT: Yes, that's exhibit A1.

PN150

MR FREEMAN: Great, thank you.

PN151

THE DEPUTY PRESIDENT: It would seem, just for your information, Mr Freeman, that each party now has all of the materials they wish to put before me. Now its time for final submissions.

PN152

Mr Zeng?

PN153

MR ZENG: So the respondent relies on the written submissions filed or provided on 17 June 2021. I'll briefly expand on some of the issues outlined in the written submissions.

PN154

So on the first issue of whether the applicant was subject to a stand down, under Part 3-5 of the Act, the facts are not in dispute. The applicant seems to be actually disputing the merits or reasoning behind the COVID safe measures - - -

PN155

THE DEPUTY PRESIDENT: Did you say (indistinct)?

PN156

MR ZENG: I beg your pardon, Deputy President?

PN157

THE DEPUTY PRESIDENT: Did you say in 535? I'm not being critical, but you mean 525?

PN158

MR ZENG: Sorry, I've been referring to the Part of the Fair Work Act.

PN159

THE DEPUTY PRESIDENT: Okay.

PN160

MR ZENG: The part of the stand down, being Part 3-5.

PN161

THE DEPUTY PRESIDENT: Yes. Thank you.

PN162

MR ZENG: My apologies. The overall Part giving rise to this application.

PN163

THE DEPUTY PRESIDENT: Sorry.

PN164

MR ZENG: This hearing, we submit, should not be whether the COVID safe measures are appropriate or proportionate, really the question to be answered, at this stage, is whether the applicant has been subject to a stand down. That's even putting aside the character or the nature of the employee.

PN165

Now, in terms of the statement of Mr Quinn, starting on page 174 of the court book, annexures EQ2, on page 200, outlines the direction that was issued to the applicant and the basis for ceasing salary payments to the applicant. This being a matter of contract and a view formed that the applicant was - given the applicant's refusal to comply with the COVID safe measures in place, that the applicant was determined to be not ready, willing and able to perform work, which resulted in a direction to, as a matter of compliance with the policy, not to perform work or to attend the office. These are matter of contract, we say.

PN166

There is otherwise no reliance upon any of those grounds, under section 524, which is about a national system employer being able to stand down the national system employee in those specific situations. It's also not one where it involves industrial action or stoppage of machinery or any action outside the control of the employer.

PN167

This is also not a situation where the qualification being that the employee cannot be usefully employed. We don't have that here, factually.

PN168

In some ways, if I can draw an analogy, this is a situation almost like a tradesperson turning up to do work without any tools or PPE. He or she can perform some parts of the job, but can't do it safely or without putting their own health and safety at risk, or the health and safety of others.

PN169

THE DEPUTY PRESIDENT: When you say that it's an issue of contract, you've heard what Mr Freeman has observed earlier, that he sees there must be some avenue for him. I know I'm probably asking for too much of a concession from an advocate, on the whole, but does the respondent say that (indistinct) avenues are available for Mr Freeman down through the contractual line?

PN170

MR ZENG: Without being in the position to advise or provide legal advice, certainly that would be the first avenue that becomes apparent to me, is that there is the question about is it permitted, whether under the contract or under common law, to form this particular view and to cease salary payments. The respondent's position is that it is entitled to do so.

PN171

THE DEPUTY PRESIDENT: Thank you.

PN172

MR ZENG: It's a question about compliance with policy. So, on that first issue, if I close off that first issue, and, again, we're putting aside (indistinct) the employer and the issue of whether the employer is a national system employer, from a factual perspective the applicant simply has not been subject to any type of stand down, under the Fair Work Act, which is a prerequisite to (indistinct) to deal with a dispute.

PN173

On to the second issue and what the respondent submits is the overarching problems of the application, is that it's well settled hat the government of New South Wales, being the employer, does not fit within the categories of section 14. There is no referral law about Public Sector being referred to the Commonwealth. Therefore, the government of New South Wales and the Transport Service, in my respectful submission, falls outside of that definition and that jurisdiction.

PN174

As outlined in the statement of (indistinct) to the applicant's agreement, the applicant was designated, by the Secretary, as a Transport Service Senior Manager, in accordance with Part 7A of the Transport (Administration) Act. Transport Senior Managers, as outlined in our submissions, are employed in the Transport Service and are employed on behalf of the government of New South Wales, as the entity or the employer, and not subject to the Fair Work Act.

PN175

It is Part 7 that gives the ability for the government to employ persons to perform those functions, on behalf of a number of transports operating agencies which includes, in this case, Sydney Trains. It goes to something that the applicant raised, in response to my opening remarks, in that the managers at Sydney Trains are, similarly, under those arrangements and hold delegated authority to issue directions to persons such as the applicant, day to day in the course of employment.

PN176

I think now it's also a good time to touch upon section 68(o) of the Transport (Administration) Act, which does exclude the applicant from bringing certain types of applications, under the Industrial Relations Act. It doesn't - there are a number of other areas that may be open in other types of situations, to the applicant, under the IR Act. One example that comes to mind is the victimisation provisions (indistinct).

PN177

What we say this all means is that the respondent is not a national system employer and doesn't have the powers available, under Part 3-5, or 524, to stand down an employee, under the Fair Work Act and, similarly, the applicant is not a national system employer. These are also the pre-requisites to be able to then stand down, given that part of the Act.

PN178

So what we say is that when you take both arguments into account, the first bit, putting aside he character of the employer, there just simply has been no stand down, as a matter of fact. Together with the broad jurisdiction questions, we say that the applicant is not eligible to bring a stand down application and that we submit that the Commission should dismiss the applicant's application for lack of jurisdiction.

PN179

THE DEPUTY PRESIDENT: Sections 6, 7 and 9 of chapter 2 of the Industrial Relations Act 1996 refer to it.

PN180

MR ZENG: You're testing my memory, Deputy President, but they exclude things like Public Sector disciplinary appeal, matters of unfair dismissal.

PN181

THE DEPUTY PRESIDENT: Unfair dismissal, that's part of 6 of chapter 3, or is it chapter 2?

PN182

MR ZENG: I could bring that up.

PN183

THE DEPUTY PRESIDENT: Sorry, I'm trying to find it as well. Chapter 2, parts 6, 7 and 9.

PN184

MR ZENG: Yes, apologies.

PN185

THE DEPUTY PRESIDENT: Well, 6 is unfair dismissals; 7 is Public Sector (indistinct), under the contracts jurisdiction.

PN186

MR ZENG: Jurisdiction, that's right.

PN187

THE DEPUTY PRESIDENT: You say things like victimisation remains outside those?

PN188

MR ZENG: That's correct. So, for example, section 2(10), 'Freedom from victimisation'. It's become a bit broader than being just freedom of association. There's things in there about reporting to rail safety national law, reporting about dangerous goods, assisting I-Part(?), making of WHS complaints.

PN189

THE DEPUTY PRESIDENT: Thank you. Sorry, please continue.

PN190

MR ZENG: That's the respondent's case, as it relates to jurisdiction, Deputy President.

PN191

THE DEPUTY PRESIDENT: Thank you.

PN192

Mr Freeman?

PN193

MR FREEMAN: Thank you.

PN194

On that last part that you were looking into there, I'll just note that the Transport (Administration) Act of 1988, clause 68(o):

PN195

Senior Executives and Managers -

PN196

Being myself, Transport Senior Service Manager:

PN197

Industrial or legal proceedings excluded.

PN198

Clause 2:

PN199

Parts 6, 7 and 9 of chapter 2 of the Industrial Relations Act 1996, do not apply or in respect of the employment of a Transport Service Senior Executive or Senior Manager.

PN200

So those three parts to not apply, nor does any matter, question or dispute relating to such employment and it's not an industrial matter, for the purposes of the Industrial Relations Act, 1996. So I just wanted to address that.

PN201

I also note that Mr Zeng has mentioned, a couple of times, the character or nature of the employee. I don't have any detail, in terms of what he's relating to there, but I would like that elaborated on. It has not been elaborated on at this point.

PN202

THE DEPUTY PRESIDENT: Sorry, what do you ask to be elaborated on?

PN203

MR FREEMAN: Mr Zeng has made comments to the effect of the character or nature of the employee and there has not been any elaboration on what his intent of that statement is, or what he actually means by the character or nature of the employee, me being the employee or the applicant. So I just wanted to note that.

PN204

The policy itself is completely within control of the employer, and that has been actually noted before, in our hearings, the first hearing. While I won't cross‑examine Noel, Noel did make that statement, it will be in the recording or the transcription, that the current policy, in itself, is within the control of the employer.

PN205

The jurisdictional objection, I've already covered off the fact that the effect of the Transport (Administration) Act, being written by the parliament of New South Wales, makes my role classification and Transport Senior Executive classification a referral matter to the Fair Work Act of 2009. I also note that clauses 30(c) and 30(d) of the Fair Work Act 2009 have an extended meaning of what a national system employee and a national system employer is.

PN206

I think the evidence that I've provided thus far shows that it has not been a lawful or reasonable direction, from the employer. The direction has not actually come from parties in my contract, the direction has come from Sydney Trains. Whilst the Secretary of Transport Service can refer work down through those entities, and that is in the legislation, they cannot pass on the party to the contract, through a common law contract, in terms of notification, especially where it means that you'd be ceasing pay or ceasing the employment. That is the intent of the two letters that I received directly from Sydney Trains. They are in the evidence that I've requested to be included and they do include Sydney Trains ACN, the Australian company number, and they are a trading entity, for those purposes.

PN207

TAHE, Transport Asset Holding Entity is also a trading constitutional corporation, as is Sydney Trains, and I've only received notification of the material effect of the policy from the entity that is Sydney Trains. I have not received any notification, as such, from the parties to my contract.

PN208

I have covered off, but I also cover off the fact that my contract does not allow for stand down, there is no clause in my contract that allows for that or the cessation of my pay or other benefits. My contract only allows for me to be directed not to attend or perform work.

PN209

The circumstances allowing stand down must not be for a reason, under division 2, section 524 of the Fair Work Act. Must not be for any reason which the employer can reasonably be held responsible.

PN210

Now, I contend, through the evidence that I've provided, that a decision was made, a personal decision, by a public servant, at whatever level, that this policy was going to take place and, through the evidence that I've provided, I believe that clauses have been (indistinct) for a risk assessment, which was conducted last year, has been wound up, in support of the policy, rather than outside of the policy, to determine whether the risk control was necessary. With me having worked under a risk control, up to that point, for 19 months, I've worked from home.

PN211

I note that during the hearings and formal communication which is in evidence, there was no public health order ever directing transport service or any of its underlying entities from directing its staff to be vaccinated or requesting that information from them. There was no public health order or legislation that was given by the Minister for Health and Medical Research, Brad Hazzard.

PN212

I also contend that at the time that this policy was created, and its material impact on myself was put in place, and since to this day, the general Public Health Order working from home, clause 2.23, has been in force and continues to be in force and it asks for people, regardless of their vaccination status, to be allowed to work from home, which I've been doing for 19 months up to that point.

PN213

(Indistinct) my contract, contract clause 4(e), whilst that was raised as the supporting clause for policy roll out, that contract clause, in itself, is not actually valid. In fact, it doesn't carry validity, as per the clause within my contract that states that the policies only apply at the relevant time. Now, I signed that contract in July 2019. Had that clause existed at the time I would not have signed the contract. That clause has changed and that policy has now changed. It is a large, material change to my common law contract, between myself and Transport Service. There is no clause in my contract that allows for an invasive medical procedure that carries the risk of disablement or death.

PN214

That can be clarified by TGA, the government body which approves the vaccines. They have admitted, within their reporting, that there is deaths and disabilities from the vaccines.

PN215

THE DEPUTY PRESIDENT: You say that that clause in your contact doesn't apply, if its there in black and white?

PN216

MR FREEMAN: So the contract which was discussed as being I reliance upon to enforce the policy was under 4, which is related to duties only. It is not the ambit of my employment contract, it falls under duties only, that is 4(e), 'Compliance with agency policies, as varied from time to time'.

PN217

In terms of those policies, there is a clause, the first clause is 25, 'Employer policies':

PN218

The reference to an employer's or agency's policies is a reference to the policy applying at the relevant time.

PN219

As a party to the contract, with no definition within the contract, my observation of that clause there is that it applies as at the time that I signed the contract. I read the contract, looked at the policies that applied, the things that would apply to my employment, whether it be duties or ambit and how they impacted my life, and I accepted them, at the time which I signed the contract, which was the middle of 2019.

PN220

I also note, above that, there is a clause 23 variation:

PN221

No provision of this agreement nor right conferred by it an be varied, except in writing and signed by the parties.

PN222

I haven't agreed to any changes to my contract, so that covers that point.

PN223

The risk assessment, I did note as being invalid. And to go into detail on that, at the time that the policy was applied to me, I would have been classified by the Fair Work Commission or Fair Work Ombudsman tiers as a tier 4, as, 'Working from home with no contact with any customers or staff'. That was a control measure put in place that I was complying with, up to that point, as well.

PN224

So I was looking to continue compliance, beyond the point at which my salary ceased, and I look to do so today, but I note that I'm not putting any restrictions on my location of employment, that is being done by my employer. So I'm pretty much being prevented from doing my role, from that point of view, from the common law contract point of view and from the risk assessment point of view, as being categorised as category 2, which is considered work in aged care. I don't work in aged care, nor do I work with elderly, who are the vulnerable people, per the reporting, are the majority of deaths from (indistinct).

PN225

There are also vaccine safety issues, and I note that for the policy to be reasonable it must be a safe and effective vaccine. So I've included in the evidence, evidence that transmission does not stop as a result of any of the available vaccines that TGA has approved. I've also included evidence there that people that have not taken the vaccine are not the ones materially impacted by the virus, in fact it's actually the opposite.

PN226

The two references I've made, in terms of reporting, are both AUSVAC Safety and also the TGA themselves. One is passive reporting, being the TGA. It requires doctors, health professionals, people administering the vaccines, right through to the actual person receiving the vaccine, to lodge with them.

PN227

The other one is active reporting, with AUSVAC Safety. They actually send out that survey to all people who have received the vaccines, three days post vaccination. They have a rate of around 45 per cent reporting of adverse effects, so whilst the material effect of the policy is to avoid impacts, from the reporting that I have available and the evidence that I have available, which I provided before the cessation of my pay and benefits took place, it appears that whilst you can't make a complete conclusion either way, I would say that on the balance of the evidence that was available last year, and is still available now and is consistent, also from NSW Health, that a definitive call couldn't be made on whether it's safe and effective and definitely not stopping transmission, which is the material purpose of the policy.

PN228

Beyond that I would also mention, but it is in evidence, the Department of Health's Australian Immunisation Handbook requires valid consent for the immunisation to be legal. If the immunisation is not legal there's obviously other concerns beyond that, but criteria 2 does cover that undue pressure, coercion, and manipulation must not be present. I've now not been paid for six months and in the four to six months leading up to the policy implementation and the material impact that this has had on my wife, those three items were definitely present and I've sought an alternative, and I've got that in evidence, that's been provided.

PN229

I've sought alternatives through HR, through my direct manager, to the current situation that I'm in and it is outside of my contract. It is within jurisdiction of the Fair Work Act and I don't believe it is either lawful or a reasonable direction to be put on me.

PN230

I'm asking the Commission to remedy that. I do have one addition to my remedy, although we're not at that point yet, but I've provided what I would be seeking, in terms of remedy of the facts provided in the evidence on hand.

PN231

THE DEPUTY PRESIDENT: Well, if you want to put something on remedy, put it.

PN232

MR FREEMAN: Okay. The additional request I'd make with remedy, to return to full working operation of my contract is that all of the payslips that I've received, showing an overpayment amount and rectification required of that overpayment, that that be rectified and that the payslips for December through to the month that we're in currently, June, be updated, should the remedy be awarded. I also add, which I've done in my email of 7 June, that that overpayment amount is - it's a present concern, because we're in the last few weeks of the current financial year, so I'm actually looking to have this remedied as soon as possible. I note that the process has started back in April, so I'd look to get this remedied as soon as possible, before the end of the financial year, to not have any tax implications, before the 31st of this month.

PN233

THE DEPUTY PRESIDENT: There's two things I need to raise. Firstly you say additional remedy, additional to what? Additional to what you're seeking, a full MIF13?

PN234

MR FREEMAN: Correct. It's in my application which will now be in evidence as well.

PN235

THE DEPUTY PRESIDENT: It's not possible for me to award lost salary, is it? I don't have that power.

PN236

MR FREEMAN: I believe so. Per the Fair Work details that I've reviewed, I believe so, yes.

PN237

THE DEPUTY PRESIDENT: Secondly, I think you can rest assured that you will not receive resolution or a decision in this matter this financial year.

PN238

MR FREEMAN: In that case, can that overpayment amount be rectified until this matter has been fully heard?

PN239

THE DEPUTY PRESIDENT: That's a matter between you and your employer. What's the amount of the overpayment, do you say?

PN240

MR FREEMAN: It's eight days worth. Eight days worth of salary.

PN241

THE DEPUTY PRESIDENT: Speak to Mr Quinn. I'm here to determine your application, in relation to your stand down and determine the two jurisdictional points, and possibility even the totality. But I don't have a (indistinct) inquiry, in relation to human resources issues. You should speak to Mr Quinn.

PN242

Anything further, Mr Freeman?

PN243

MR FREEMAN: No, that concludes my statement.

PN244

THE DEPUTY PRESIDENT: Mr Zeng?

PN245

MR ZENG: Nothing further from me, Deputy President. We'll simply rely on the matters that we've already put before the Commission, being written statements and what I've expanded on already orally.

PN246

THE DEPUTY PRESIDENT: Thank you. Well, as I've noted, I intend to reserve my decision and I'll publish a decision as soon s it is written.

PN247

I thank the parties for their submissions today, the matter is adjourned indefinitely. Thank you.

ADJOURNED INDEFINITELY [2.03 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 WITNESS STATEMENT OF NOEL QUINN DATED 17/06/2022 PN109

EXHIBIT #A1 EMAIL DATED 07/06/2022 (PAGES 73 TO 269 OF COURT BOOK) PN127

EXHIBIT #A2 FORM 13 AND ANNEXURES (PAGE 3 TO 57 OF COURT BOOK) PN136

EXHIBIT #A3 EMAIL DATED 11/05/2022 (PAGES 59 TO 62 OF COURT BOOK) PN142

EXHIBIT #A4 EMAIL DATED 18/05/2022 (PAGES 66 TO 72 OF COURT BOOK) PN146