Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356 PARTIES: KYLIE BRASELL-DELLOW and OTHERS (applicants) v STATE OF QUEENSLAND (QUEENSLAND POLICE SERVICE) (respondent) FILE NO/S: D/2021/130 PARTIES: JOHN THOMSON and OTHERS (applicants) v STATE OF QUEENSLAND (QUEENSLAND POLICE SERVICE) (first respondent) THE COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (second respondent) QUEENSLAND POLICE UNION OF EMPLOYEES (third respondent) FILE NO/S: D/2021/131 PROCEEDING: Appeal DELIVERED ON: 22 October 2021 HEARING DATE: 14 October 2021 MEMBER: Davis J, President, O’Connor VP, Merrell DP ORDERS: D/2021/130 Application dismissed D/2021/131 Application dismissed CATCHWORDS: INDUSTRIAL LAW - QUEENSLAND - INDUSTRIAL DISPUTES - where dispute notification - where Commissioner of Police issued direction on 7 September 2021 mandating other staff, unless exempted, must receive the COVID-19 vaccine including a first dose by 4 October 2021 under Direction 12 of the Police Service Administration Act 1990 (Qld) - where conciliation unsuccessful - where parties sought arbitration by Full Bench - where question to be determined - whether the direction was issued lawfully. INDUSTRIAL LAW - QUEENSLAND - where Queensland Industrial Relations Commission has jurisdiction to hear and decide questions arising out of an industrial matter - whether jurisdiction of Commission is exclusive of the jurisdiction of the Supreme Court or another court or tribunal - where dispute -- 1 of 46 -- 2 concerns the respective rights of the Commissioner of Police as the effective employer, police officers and other staff - where dispute is an industrial matter. Industrial Conciliation and Arbitration Acts 1932-1955 Industrial Relations Act 2016, s 6, s 9, s 72, s 143, s 262, s 448, s 450, s 451, s 530, s 531, s 539, s 450 Judicial Review Act 1991 Police Service Administration Act 1990 (Qld), s 1.3, s 2.1, s 2.2, s 2.3, s 2.5, s 4.1, s 4.2, s 4.3, s 4.4, s 4.5, s 4.6, s 4.8, s 4.9, s 5.15, s 7.4 Police Powers and Responsibilities Act 2000 Work Health & Safety Act 2011, s 3, s 47, s 48, s 49 General Employees (Queensland Government Departments) and other Employees Award - State 2015 Queensland Public Service Officers and Other Employees Award - State 2015 Queensland Police Services Employees Award State - 2016 CASES: Amalgamated Metals, Foundry and Shipwrights’ Union v Broken Hill Co Pty Ltd (1984) 8 IR 34 ASIC v Hellicar (2012) 247 CLR 345 Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 Blatch v Archer (1774) 98 ER 969 City v Wanneroo v Australian Municipal Administrative Clerical and Services Union (2006) 153 IR 426 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services union of Australia v QR Ltd (2010) 198 IR 382 Irwin v Stewart (Commissioner of Police) & Anor [2015] QSC 350 Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 Melbourne City Council v Australian Municipal, Administrative, Clerical and Services Union [2007] AIRC 116 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Nugent v Stewart (Commissioner of Police) & Anor (2016) 261 A Crim R 383 Police Service Board v Morris (1985) 156 CLR 397 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Regional Express Holdings Limited v Australian Federation of Air Pilots (2017) 262 CLR 456 R v Darling Island Stevedoring and Lighter; ex parte Halliday and Sullivan (1948) 60 CLR 601 R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 1 -- 2 of 46 -- 3 Re Consultation Clause in Modern Awards (2013) 238 IR 282 Shop Distribution and Allied Employees Associate v Minister for Industrial Affairs of the State of South Australia (1995) 183 CLR 552 Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6 State of Queensland v Together Queensland [2014] 1 Qd R 257 The Mutual Life and Citizens’ Assurance Company Limited v Attorney-General for the State of Queensland (1961) 106 CLR 48 The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106 The Shire President Councillors and Ratepayers of the Shire of Swan Hill v Bradbury (1937) 56 CLR 746 Thompson v Minister for Education [1994] 1 Qd R 83 Together Queensland & Ors v State of Queensland [2013] QSC 112 APPEARANCES: GR Allan, Counsel instructed by Allan Bullock Solicitors for the appellants in D/2021/130 and D/2021/131. JE Murdoch, QC with T Spence, Counsel instructed by Crown Law for the State of Queensland and the Commissioner of Police in D/2021/130 and D/2021/131. M Amerena with H Clift, Counsel instructed by Hall Payne Lawyers for the Queensland Police Union of Employees in D/2021/131. [1] The applications concern the lawfulness of a direction given by Queensland Police Commissioner, Katarina Carroll (the Commissioner), to the staff of the Queensland Police Service (QPS) directing them to be vaccinated with one of three approved vaccines currently in use in Australia against the COVID-19 virus.1 That direction appears as Schedule 1 to these reasons (the direction). History of the proceedings [2] The workforce of the QPS can be conveniently divided into two categories: 1. sworn police officers; 2. other staff. 1 This is at least the third decided case involving a challenge in Australia to mandatory vaccine orders made in response to the COVID-19 pandemic; Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 and Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320. -- 3 of 46 -- 4 [3] Understandably, special industrial instruments2 are necessary and desirable to cater for sworn police officers and those arrangements are not appropriate for other staff employed by the QPS. There are different industrial instruments applying to the other staff. [4] The Queensland Police Union of Employees (QPUE) represents non-commissioned officers. The Queensland Police Commissioned Officers’ Union, as the name suggests, represents those police officers who hold commissioned rank. [5] Other staff of the QPS are represented by the following unions: 1. Together Queensland, Industrial Union of Employees (TQU); 2. United Voice, Industrial Union of Employees, Queensland (UVQ); 3. Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU). [6] Two dispute notifications were filed in the Queensland Industrial Relations Commission (the Commission) on 6 October 2021. One was filed on behalf of various police officers and one was filed on behalf of other staff of the QPS. The claim by the police officers became file D/2021/131 and the claim by the other staff became D/2021/130. [7] Both disputes were the subject of conciliation on 7 October 2021. As the matters were unable to be resolved, the parties requested and agreed that the Commission should refer to arbitration the following question for determination: “Was the direction issued 7 September 2021 by the Commissioner of Police mandating other staff, unless exempted, must receive the COVID-19 vaccine including a first dose by 4 October 2021 (Direction 12) lawfully issued under the Police Service Administration Act 1990 (Qld).” [8] On 7 October 2021 the Commission recommended the matters be referred to the Full Bench for arbitration pursuant to s 262(3)(b) of the Industrial Relations Act 2016 (IR Act). 2 Relevantly here, awards and certified agreements; Industrial Relations Act 2016, s 6, Schedule 5 -- 4 of 46 -- 5 [9] An application in existing proceedings was filed by the QPUE on 8 October 2021 pursuant to s 539(b)(iv) of the IR Act seeking to be made a party to application D/2021/131 or alternatively pursuant to s 539(b)(v) of the IR Act, or alternatively s 531(2)(b) of the IR Act, that the QPUE be granted the right to be heard in application D/2021/131 by making written and oral submissions in the proceedings. [10] None of the TQU, UVQ or AMEPKU made application to either be joined, or otherwise participate in the proceedings. [11] At a mention of both matters on 8 October 2021, the Commission issued various directions, including for the applicants to file an application in each of the existing proceedings setting out the final relief sought and the grounds relied upon in support of the application by 4.00 pm 11 October 2021. It was also ordered that the hearing in the matters be conducted on the basis that evidence in chief be given by affidavit. [12] The applicants were also directed to file and serve on the other parties any other evidence by 4.00 pm 12 October 2021 and the respondents (including the QPUE in D/2021/131) were required to file and serve any evidence by 4.00 pm 13 October 2021. [13] Pursuant to the directions made on 8 October 2021, applications were filed on 11 October 2021. The applicants sought: “D/2021/130 (Final relief) Declarations 1. A declaration that insofar as the ‘Queensland Police Service Instrument of Commissioner’s Direction No 12’ regarding ‘Mandatory COVID-19 Vaccination and Mask Requirements for Police Officers and Certain Staff Members’ dated 7 September 2021 issued by the Second Respondent (in D/2021/131) Katarina Carroll, APM, Commissioner, Queensland Police Service (Direction 12) purports to be given pursuant to s 4.9(1) of the Police Service Administration Act 1990 (Qld) (PSA Act) and s 7 of the Police Service Administration Regulation 2016 (Qld) (PSA Regulation) to direct all Queensland Police Service (QPS) police officers and other QPS staff members to be vaccinated against COVID-19 unless they fall within an exemption, pursuant to s 4.9(2) of the PSA Act, Direction 12 is of no effect, being inconsistent with the PSA Act. -- 5 of 46 -- 6 2. A declaration that Direction 12, to the extent that it purports to be given by the Second Respondent (in D/2021/131) pursuant to s 4.9(1) of the PSA Act and s 7 of the PSA Regulation to direct, alternatively compel, all QPS other staff members to be vaccinated against COVID-19 unless they fall within an exemption and thereby purports to unilaterally vary the terms and conditions of the applicants' employment, is beyond power, invalid and of no effect. Interim Injunction 3. On the appellants giving the usual undertaking as to damages, pursuant to s 473(1)(b) of the IR Act, the Second Respondent (in D/2021/131) and the First Respondent, the State of Queensland (Queensland Police Service), are restrained, until the hearing and determination of this proceeding, from: (a) taking any, or any further, disciplinary action against any of the applicants in this proceeding for any non- compliance, or any alleged non-compliance, with Direction 12; (b) ordering or seeking to compel any of the applicant police officers to receive any COVID-19 vaccine in accordance with Direction 12. Grounds relied upon in support of the application: 1. Before giving Direction 12 under section 4.9(1) of the PSA Act, the Second Respondent, alternatively the First Respondent, failed to consult with each applicant in contravention of clause 11.2 of the General Employees (Queensland Government Departments) and Other Employees Award - State 2015 (General Employees Award). 2. Before giving Direction 12 under section 4.9(1) of the PSA Act, the First Respondent and/or the Second Respondent failed to discharge her duty under the Work Health and Safety Act 2011 (Qld) (WHS Act) by failing to consult with each applicant in contravention of Division 2 of Part 5 of the WHS Act. 3. There is no power under the General Employees Award; the State Government Entities Certified Agreement 2019 (SGE-CA 2019) or the IR Act or any other Act or law, authorising the First Respondent, alternatively the Second Respondent, to unilaterally vary the terms and conditions of the applicants' employment whereby the applicants can be directed, alternatively compelled, to be vaccinated against COVID-19 unless they fall within an exemption. -- 6 of 46 -- 7 D/2021/131 (Final relief) Declarations 1. A declaration that insofar as the ‘Queensland Police Service Instrument of Commissioner’s Direction No 12’ regarding ‘Mandatory COVID-19 Vaccination and Mask Requirements for Police Officers and Certain Staff Members’ dated 7 September 2021 issued by the Second Respondent, Katarina Carroll, APM, Commissioner, Queensland Police Service (Direction 12) purports to be given pursuant to s 4.9(1) of the PSA Act and s 7 of the PSA Regulation to direct all QPS police officers and other QPS staff members to be vaccinated against COVID-19 unless they fall within an exemption, pursuant to s 4.9(2) of the PSA Act, Direction 12 is of no effect, being inconsistent with the PSA Act. 2. A declaration that Direction 12, to the extent that it purports to be given by the Second Respondent pursuant to s 4.9(1) of the PSA Act and s 7 of the PSA Regulation to direct, alternatively compel, all QPS police officers to be vaccinated against COVID-19 unless they fall within an exemption and thereby purports to unilaterally vary the terms and conditions of the applicants' employment, is beyond power, invalid and of no effect. Interim Injunction 3. On the appellants giving the usual undertaking as to damages, pursuant to s 473(1)(b) of the IR Act, the Second Respondent and the First Respondent, the State of Queensland (Queensland Police Service), are restrained, until the hearing and determination of this proceeding, from: (a) taking any, or any further, disciplinary action against any of the applicants in this proceeding for any non- compliance, or any alleged non-compliance, with Direction 12; (b) ordering or seeking to compel any of the applicant police officers to receive any COVID-19 vaccine in accordance with Direction 12. Grounds relied upon in support of the application: 1. Before giving Direction 12 under section 4.9(1) of the PSA Act, the Second Respondent failed to consult with each applicant in contravention of clause 11.2 of the Queensland Police Services Employees Award State - 2016 (QPS Employees Award). 2. Before giving Direction 12 under section 4.9(1) of the PSA Act, the Second Respondent failed to discharge her duty under the Work Health and Safety Act 2011 (Qld) (WHS Act) by failing to consult with each applicant in contravention of Division 2 of Part 5 of the WHS Act. -- 7 of 46 -- 8 3. There is no power under the QPS Employees Award; the Queensland Police Service Certified Agreement 2019 (QPS-CA 2019) or the IR Act or any other Act or law, authorising the Second Respondent to unilaterally vary the terms and conditions of the applicants’ employment whereby the applicants can be directed, alternatively compelled, to be vaccinated against COVID-19 unless they fall within an exemption.” [14] The award mentioned in grounds 1 and 3 in D/2021/130, which is the application by the other staff of the QPS, is the General Employees (Queensland Government Departments) and other Employees Award - State 2015. The award which applies to those employees is in fact the Queensland Public Service Officers and Other Employees Award - State 2015, although nothing turns on this. [15] On 12 October 2021, requests to discontinue proceedings were received from one applicant in D/2021/130 and from ten applicants in D/2021/131. [16] In the application by the other staff,3 the applicants filed an affidavit of Janette Dawn Colebourne who is employed by the QPS under the State Government Entities - Certificate Agreement 2019 (SGE-CA 2019). She asserted that she was never consulted about the direction. She emailed colleagues, two of whom responded asserting that they had also not been consulted. She explained her stress and disappointment at the process which resulted in the direction. [17] In the police officers’ application,4 the applicants filed affidavits by two deponents: 1. Senior Constable Luis James Larrarte; 2. Sergeant Donna Louise Cole. [18] Senior Constable Larrarte is stationed at the Springsure Police Station. He exhibited to his affidavit a number of documents to which he referred while explaining the correspondence and information that he received from the Commissioner’s office in the lead-up to the direction being issued. He also explained how he made application for exemption and that was denied.5 He asserted that he was not consulted in relation to the direction and was never given the opportunity to make submissions in 3 D/2021/130. 4 D/2021/131. 5 Affidavit of Luis James Larrarte affirmed 12 October 2021, Exhibit LL-19. -- 8 of 46 -- 9 opposition to its making.6 He has researched the vaccines on the internet and exhibited to his affidavit the various documents that he discovered. Those documents led Senior Constable Larrarte to assert that the vaccines were only provisionally referred for clinical use in Australia and were experimental. He also deposed (based on the exhibited documents) that the vaccines did not prevent a person becoming infected, or passing the disease to others. [19] Sergeant Cole is a Senior Prosecutor stationed at Beenleigh. Sergeant Cole also asserted that she was not consulted about the making of the direction.7 She, like Senior Constable Larrarte, has done some research and she exhibited to her affidavit some of the documents she discovered. She swears to various other matters in her affidavit. Sergeant Cole swore that she felt bullied and coerced into taking the vaccine against her will under threat of dismissal. [20] The QPS filed two affidavits. They were each filed in both applications. The deponents were: 1. Dr Andrew Redmond; 2. Deputy Commissioner Douglas Alan Smith. [21] Dr Redmond is a specialist physician in infectious diseases. His evidence meets the allegation that the COVID-19 vaccines: 1. are provisionally approved; and 2. are experimental; and 3. remain part of a clinical trial. [22] Dr Redmond accepted in his affidavit that the vaccines had been provisionally approved by the Australian Technical Advisory Group on Immunisation (ATAGI).8 He explained though that new medicines are registered provisionally, rather than unconditionally, for a period of two years.9 They are, he explained, approved for use in the community and have undergone all appropriate assessments. 6 Affidavit of Luis James Larrarte affirmed 12 October 2021, [89]. 7 Affidavit of Donna Louise Cole affirmed 12 October 2021, [5]. 8 Affidavit of Dr Andrew Martin Redmond affirmed 13 October 2021, Exhibit AR-1 [7]. 9 Ibid. -- 9 of 46 -- 10 [23] Dr Redmond opined that the COVID-19 vaccines are not experimental and have passed examination by licensing bodies such as the Therapeutic Goods Administration, Medicines and Health Care Products Regulatory Agency (UK), European Medicines Agency and the US Food and Drug Administration.10 He said they are now in routine clinical use. [24] Dr Redmond opined that the vaccines do not remain part of a clinical trial.11 They have been approved and registered for use. [25] Deputy Commissioner Smith coordinated the QPS response to the pandemic as that response concerns the QPS staff. While he was not the author of the direction, he can fairly be described as a significant moving force behind its production and implementation. He was significantly involved in the process through which the direction was made. We consider relevant aspects of his evidence when considering the three grounds. [26] On the morning of the hearing, orders were made by consent: 1. joining the QPUE as a party to the proceeding in D/2021/131;12 2. granting leave to all parties to be legally represented.13 [27] Various objections were taken to passages in the respective affidavits. Most of the objections were to relevance. As will be explained, much of the evidence filed was not relevant to the grounds articulated. It is unnecessary to rule on the particular objections. Where evidence is referred to, its relevance is explained. Objections other than to relevance were taken. The Commission is not bound by the rules of evidence and any evidence referred to is considered to be of sufficient probity to be admitted.14 [28] All deponents were called for cross-examination. Dr Redmond gave evidence by telephone.15 10 Affidavit of Dr Andrew Martin Redmond affirmed 13 October 2021, Exhibit AR-1 [7]. 11 Ibid. 12 That was never contentious, but was an order which had to be formally made by the Full Bench pursuant to s 539(b)(iv) of the Industrial Relations Act 2016. In practical terms, the QPUE had already been participating in the proceedings. 13 Industrial Relations Act 2016, s 530(1)(b). 14 Ibid, s 531(2). 15 Ibid, s 451(1). -- 10 of 46 -- 11 [29] At the conclusion of the hearing, and when it was evident that the Full Bench would reserve its decision, Mr Allan of counsel, who appeared for all the applicants, sought interlocutory orders maintaining the status quo until judgment is given. This exchange occurred:16 “MR MURDOCH: If the Commission pleases, for the applicants no decision on suspension without pay will be made until after the decision is handed down. DAVIS J: Thank you. Mr Allan, that satisfies you? MR ALLAN: Yes. Yes. It does.” [30] There was therefore no necessity for the Commission to determine whether it had jurisdiction to make interlocutory orders and, if so, whether orders ought be made. The direction: some aspects [31] The direction, by its terms, does more than simply direct officers to receive COVID-19 vaccines by certain dates.17 It: 1. explains, in a summary way, why the direction had been given; 2. provides a list of exemptions to the obligation to comply with the direction. [32] In summary, the Commissioner explains in the direction that the QPS must be operationally ready to fulfil its policing role and that COVID-19 challenges that ability. In particular, this is said in the direction: “Rapid transmission of COVID-19 through the Queensland Police Service would take police officers and staff members out of service while they undertake quarantine periods or recover from COVID-19. In an extreme scenario, this could reduce the availability of police officers and staff members for deployment, and threaten the ability of the Queensland Police Service to serve the community.” [33] The exemptions recognised in the direction are: 1. medical contraindication to the vaccines; 2. religious objection; 16 T1-127, LL6-11. 17 And to wear masks in certain situations. -- 11 of 46 -- 12 3. other “exceptional circumstances”. [34] After the direction was given, a protocol was published to the QPS employees titled “COVID-19 Vaccination Exemption Process” (the exemption protocol). That protocol prescribed a process for the making of an application for exemption and the establishment of a committee to rule on any applications. The scope of the applications [35] As already observed, each application specifies three grounds in support of the orders sought. There are no material differences between the three grounds stated in the police officers’ application18 and the three grounds stated in the other staff’s application.19 The three grounds can be summarised as: 1. The Commissioner failed to consult with employees before making the direction, in breach of the relevant awards (ground 1). 2. The Commissioner failed to consult with employees before making the direction, in breach of the Work Health & Safety Act 2011 (ground 2). 3. There was no power in the Commissioner to make the direction without seeking a variation of the relevant award or the relevant certified agreement (ground 3). [36] The applications do not allege that the direction is unreasonable. The applications do not challenge the stated reason for the making of the direction, namely to prevent COVID-19 from disabling the QPS. The applications do not allege that the stated reason for making the direction is not reasonable or that the making of the direction is not a reasonable operational decision. [37] The applications do not allege that the direction does not adequately provide for exemptions. In the course of the hearing, Deputy Commissioner Smith was cross-examined and it was pointed out to him that the exemptions protocol post-dated the direction. The point of that seemed to be that neither the fact of the existence of a system for seeking exemption, nor the particulars of that process, could be taken into account in assessing the propriety of the direction because the protocol post-dated 18 D/2021/131. 19 D/2021/130. -- 12 of 46 -- 13 the direction. However, the general propriety of the direction is not in issue. The attack upon it is limited to the three narrow grounds articulated in the applications. [38] Once it is appreciated that the challenge to the direction is limited to the three grounds in the applications, it is apparent that much of the evidence that was received is irrelevant. [39] Ms Coleborne swears that she is an employee of the QPS and asserts that she was not consulted. Beyond that, her evidence is irrelevant. [40] Senior Constable Larrarte swears that he is a police officer employed by the QPS. He also asserts that he was not consulted. That evidence is relevant to grounds 2 and 3. The rest of his evidence is not relevant to any of the grounds. In particular: 1. he explains that police officers had been working at quarantine hotels and have not become infected with COVID-19. That, at best, is evidence suggesting that the direction might not be necessary. That is not an issue on the application; 2. he asserts that vaccination will not prevent him from being infected with COVID-19 and will not prevent the infection being passed to others. That might be so. However, while the vaccines might not prevent transmission of the disease, they do prevent those infected becoming gravely ill. The Commissioner, in whom the statutory power to make directions vests, has decided to give the direction to prevent police officers falling ill and thus depleting the operational capacity of the QPS.20 As already observed, there is no attack upon the reasonableness of that logic; 3. Senior Constable Larrarte swears that he made application for exemption on “exceptional circumstances” bases and explains the process he underwent. Neither the process nor the result of that application for exemption can have any relevance to the power of the Commissioner to make the direction (ground 3) or to whether she undertook necessary consultation (grounds 2 and 3); 20 Affidavit of Deputy Commissioner Douglas Alan Smith affirmed 13 October 2021, DS-03. -- 13 of 46 -- 14 4. he swears that he intended to be vaccinated, but upon announcing to the person administering the vaccine that he did not consent, vaccination was refused. That may perhaps be relevant to any challenge he might raise as to the decision not to exempt him from vaccination, but cannot be relevant to any of the grounds in the applications; 5. he exhibits to his affidavit the results of his searches and asserts that the ATAGI classification is provisional. Even if that classification bore somehow upon the reasonableness or otherwise of the Commissioner’s decision to give the direction, the direction is not challenged on that ground; 6. the fact that Senior Constable Larrarte is upset and stressed at the thought of receiving his vaccine, and the fact that he will suffer financially if he loses his job, might all be factors relevant to the QPS in determining whether he ought to be exempt from the vaccine. The evidence though is irrelevant to any issue raised in the applications. [41] Sergeant Cole’s evidence is relevant to the extent that she, as a police officer employed by the QPS, asserts that she was not consulted. The rest of her affidavit is irrelevant. [42] The affidavits of Dr Redmond and Deputy Commissioner Smith were filed in answer to the material filed on behalf of the applicants. Much of the evidence of Dr Redmond and some of the evidence of Deputy Commissioner Smith is irrelevant because it is responding to irrelevant evidence led by the applicants. [43] Dr Redmond, as already observed, explained aspects of the COVID-19 vaccines, and in particular, how the ATAGI registration system worked. He stated in his affidavit that he believed his opinions were supported by “… almost all, if not all similarly qualified experts in this field”. He was then cross-examined by Mr Allan at some length as to who the “qualified experts in the field” were, and how he could be assured that the other experts did in fact agree with him. He gave evidence of keeping himself abreast of developments in the pandemic through the receipt of various communications and peer reviewed articles. Given that there was no challenge to the reasonableness of the direction, or to the operational reason offered by the Commissioner for making the direction, this was all irrelevant. -- 14 of 46 -- 15 [44] Deputy Commissioner Smith gave some relevant and important evidence about the communications had on behalf of the Commissioner with QPS staff and negotiations conducted with the relevant unions. That evidence is analysed later. Jurisdiction [45] No party to the proceeding suggested that the Commission did not have jurisdiction to hear the dispute. However, the evidence showed that an application has been made by other applicants to the Supreme Court of Queensland to challenge the decision to issue the direction. That challenge was apparently made under the Judicial Review Act 1991. It is therefore appropriate to identify the Commission’s jurisdiction. [46] Section 448(1) of the IR Act vests jurisdiction upon the Commission. Relevantly, s 448 provides: “448 Commission’s jurisdiction (1) The commission may hear and decide the following matters— (a) a question of law or fact brought before it or that it considers expedient to hear and decide for the regulation of a calling; (b) all questions— (i) arising out of an industrial matter; or (ii) involving deciding the rights and duties of a person in relation to an industrial matter; or (iii) it considers expedient to hear and decide about an industrial matter; (c) an industrial dispute referred to the commission under this Act or another Act by a member who has held a conference at which no agreement has been reached; (d) all appeals properly made to it under this Act or another Act; (e) all matters referred to the commission under this Act or another Act. …” -- 15 of 46 -- 16 [47] Section 449 places limitations on the jurisdiction which are not relevant here. Section 450 makes the Commission’s jurisdiction exclusive. It provides: “450 Commission’s jurisdiction is exclusive The original and appellate jurisdiction conferred on the commission by this Act or another an Act is exclusive of the jurisdiction of the Supreme Court or another court or tribunal, unless otherwise prescribed under this Act or the other Act.” [48] The term “industrial matter”, as appears in s 448, is defined by s 9 as: “9 What is an industrial matter (1) An industrial matter is a matter that affects or relates to— (a) work done or to be done; or (b) the privileges, rights or functions of— (i) employers or employees; or (ii) persons who have been, or propose to be, or who may become, employers or employees; or (c) a matter the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute. (2) However, a matter is not an industrial matter if it is the subject of a proceeding for— (a) an indictable offence; or (b) a public service appeal. (3) Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1.” [49] Schedule 1, which is referred to in s 9, relevantly provides: “1 … 13 the age, qualification or status of employees, or the mode and conditions of employment or non-employment, including whether a person should be disqualified for employment … 16 a claim to dismiss or to refuse to employ a particular person or class of person, or whether a particular person or class of person, ought to be continued or reinstated in the employment of a particular employer, considering the public interest, despite common law rights of employers or employees … -- 16 of 46 -- 17 20 the subject matter of an industrial dispute, and a matter that has caused, or the court or commission considers is likely to cause, disagreement or friction between employers and employees 21 what is fair and just, considering the interests of the persons immediately concerned and the community, according to the standard of the average good employer and the average competent and honest employee in all matters relating to the relations of employers and employees, whether or not the relationship of employer and employee exists or existed— (a) at or before the making of a relevant application to the court or commission; or (b) at the making or enforcement of a decision of the court or commission 22 the regulation of relations between employer and employee, or between employees, and to that end the imposition of conditions on— (a) the conduct of a calling; and (b) the provision of benefits to persons engaged in a calling” [50] Here, what is in issue is the right of the Commissioner, on behalf of the State of Queensland, to require or direct police officers and staff members (employees of the State) to be vaccinated against COVID-19. That right is asserted by the Commissioner to vest in her pursuant to ss 4.8(3) and 4.9 of the Police Service Administration Act 1990 (PSA Act) and be exercisable in her position as the effective employer of employees of the QPS. The dispute gives rise to two questions, namely: 1. whether the power to make the direction exists;21 and 2. whether the power has been properly exercised.22 [51] The dispute concerns the respective rights of the Commissioner (the effective employer) and police officers and staff (the employees).23 The dispute is an industrial matter. [52] Section 450, read literally, might suggest that either the Commission or the Supreme Court has jurisdiction over a particular dispute, but never both. That, though, is not how the predecessors of s 450 of the IR Act have been interpreted. 21 Ground 3. 22 Grounds 1 and 2. 23 Industrial Relations Act 2016, s 9 and more specifically falls within each of categories 13, 16, 20, 21 and 22 of the definition of "industrial matter" in Schedule 1 to the IR Act. -- 17 of 46 -- 18 [53] In The Mutual Life and Citizens’ Assurance Company Limited v Attorney-General for the State of Queensland,24 a dispute arose as to the payment of long service leave. The defendant employer raised a threshold question alleging that the plaintiff employee was not an employee at relevant times. The submission was that he was working as an agent for commission. [54] An action was commenced in the Supreme Court of Queensland seeking a declaration that the plaintiff was not an employee for the purposes of the Industrial Conciliation and Arbitration Acts 1932-1955 at relevant times. If that declaration was made, then any claim for long service leave failed. The defendant claimed that the claim by the plaintiffs was an “industrial matter” and the Industrial Court had exclusive jurisdiction by force of a section equivalent to s 450 of the IR Act. [55] The High Court held that the question as to whether the defendant was an employee went to the jurisdiction of the Industrial Court in that a dispute between a principal and a commission agent was not an “industrial matter”. It was held that the exclusive jurisdiction provision did not exclude the jurisdiction of the Supreme Court to make a ruling as to whether or not a matter fell within the jurisdiction of the Industrial Court. [56] However, the existence of jurisdiction in the Supreme Court did not exclude the jurisdiction of the Industrial Court to make decisions as to whether it had jurisdiction. Dixon CJ observed:25 “It is not a question whether for the purpose of exercising its jurisdiction in relation to employers and employees the Industrial Court has authority to ascertain for itself whether a given party is an employer or a given party is an employee. There can be no doubt that it has such an authority.” And later: “Yet before it pronounces a judgment in the supposed exercise of a jurisdiction the Industrial Court like other tribunals must, or at all events should, ascertain whether the fact or event on which its jurisdiction depends exists or occurred.” 24 (1961) 106 CLR 48. 25 (1961) 106 CLR 48 at 56. -- 18 of 46 -- 19 [57] The Mutual Life and Citizens’ Assurance Company Limited v Attorney-General for the State of Queensland was considered by GN Williams J in Thompson v Minister for Education.26 There, the Minister for Education had appointed Mr Thompson to a teaching position and then, believing that the appointment had been made without compliance with certain statutory provisions, rescinded the appointment. Mr Thompson sought a declaration that his appointment was valid and effective and that the Minister had no power to rescind it. The Minister submitted that the Supreme Court had no jurisdiction as the dispute was an “industrial matter”. It was held that the question raised was a question of construction of the statute. His Honour observed: “Threshold questions, such as the extent of ministerial power and whether or not the relationship of employer and employee exists, remain within the jurisdiction of this Court; a question of the latter type arose in Mutual Life & Citizens’ Assurance Company Ltd v Attorney-General (Q) (1961) 106 CLR 48.”27 [58] Ground 3 of the present applications might be thought to raise a “threshold question” as to the construction of the PSA Act and the existence or otherwise of a power to make the direction. Even if that is so, they are issues which the Commission has jurisdiction to determine. [59] Ultimately, it is unnecessary to decide whether the Commission has exclusive jurisdiction. The grounds of challenge [60] It is convenient to commence with consideration of ground 3. Ground 3: There is no power to vary the terms and conditions of employment to compel vaccination against COVID-19 [61] Ground 3 in the police officers’ application and ground 3 in the other staff’s application can be considered together. 26 [1994] 1 Qd R 83. 27 [1994] 1 Qd R 83 at 88; see also Irwin v Stewart (Commissioner of Police) & Anor [2015] QSC 350 at [34]-[42]. -- 19 of 46 -- 20 [62] It is common ground that there is nothing in the Queensland Police Service, Certified Agreement 2019 or the State Government Entity Certified Agreement 2019, which: 1. concerns vaccinations; 2. concerns any form of health directive; 3. prohibits the Commissioner from giving the direction or something like it. [63] The applicants’ submissions were: 1. the requirement to be vaccinated against COVID-19 must be a “term or condition” of the employment of the applicants; 2. the requirement to be vaccinated does not appear in the relevant awards or certified agreements; 3. the IR Act provides for the circumstances and procedure by which awards and certified agreements are varied;28 4. the direction does not comply with those requirements and procedures; 5. the giving of the direction purports to constitute a variation of the terms and conditions of employment by exercise of executive power;29 6. the awards or certified agreements may be varied by statute;30 7. there has been no legislative amendment to the awards or certified agreements; 8. therefore, there is no power to make the direction. [64] The applicants’ submissions are misconceived. 28 Chapter 4, Part 7. Division 2 and s 223 and ss 147-150. 29 As to the nature of the power being executive: Shop Distribution and Allied Employees Associate v Minister for Industrial Affairs of the State of South Australia (1995) 183 CLR 552 and Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. 30 State of Queensland v Together Queensland [2014] 1 Qd R 257 at [102]. -- 20 of 46 -- 21 [65] A direction given to an employee does not, without more, become a term or condition of employment. This is made clear in the management prerogative cases. Where a directive is within the scope of employment and it is not contrary to the employment contract, the award or any certified agreement, the direction must be obeyed provided compliance does not involve illegality and the directive is reasonable.31 [66] The position is made clear by the PSA Act. [67] Section 1.3 states the objects of the PSA Act. It provides: “1.3 Objects The objects of this Act are to provide for the following— (a) the maintenance of the Queensland Police Service; (b) the membership of the service; (c) the development and administration of the service.” [68] Section 2.1 requires the maintenance of the QPS. It provides: “2.1 Maintenance of service There is to be maintained at all times in the State a body of persons under the name and style ‘Queensland Police Service’.” [69] Section 2.2 defines the membership of the QPS as: “2.2 Membership of service (1) The Queensland Police Service consists of police officers, police recruits and staff members. (2) Police officers are— (a) the commissioner of the police service; (b) the persons holding appointment as an executive police officer; (c) the persons holding appointment as a commissioned police officer; (d) the persons holding appointment as a noncommissioned police officer; (e) the persons holding appointment as a constable.” 31 R v Darling Island Stevedoring and Lighter; ex parte Halliday and Sullivan (1948) 60 CLR 601 at 621-622. -- 21 of 46 -- 22 [70] Section 2.3 prescribes the functions of the QPS as: “2.3 Functions of service The functions of the police service are the following— (a) the preservation of peace and good order— (i) in all areas of the State; and (ii) in all areas outside the State where the laws of the State may lawfully be applied, when occasion demands; (b) the protection of all communities in the State and all members thereof— (i) from unlawful disruption of peace and good order that results, or is likely to result, from— (A) actions of criminal offenders; (B) actions or omissions of other persons; (ii) from commission of offences against the law generally; (c) the prevention of crime; (d) the detection of offenders and bringing of offenders to justice; (e) the upholding of the law generally; (f) the administration, in a responsible, fair and efficient manner and subject to due process of law and directions of the commissioner, of— (i) the provisions of the Criminal Code; (ii) the provisions of all other Acts or laws for the time being committed to the responsibility of the service; (iii) the powers, duties and discretions prescribed for officers by any Act; (g) the provision of the services, and the rendering of help reasonably sought, in an emergency or otherwise, as are— (i) required of officers under any Act or law or the reasonable expectations of the community; or (ii) reasonably sought of officers by members of the community.” -- 22 of 46 -- 23 [71] Section 2.5 provides that other staff are subject to the Commissioner’s directions. It provides: “2.5 Administration of staff members (1) Staff members are— (a) officers of the public service assigned to perform duties in the police service; and (b) persons appointed as staff members by the commissioner under— (i) section 8.3(5); or (ii) the Public Service Act 2008, chapter 5, part 5. (2) While performing duties in the service, a staff member is subject to the commissioner’s directions.” [72] Police officers are employees of the Crown by force of s 5.15, which provides: “5.15 Officer as employee of Crown An officer, other than one who holds appointment on a contract basis, is taken— (a) to be an employee of the Crown; and (b) to be within the application of the Industrial Relations Act 2016 to employees of the Crown as provided by that Act.” [73] Part 4 establishes the office of the Commissioner,32 and provides for her appointment and the conditions of her appointment.33 Part 4 also provides for the removal or suspension of the Commissioner.34 [74] The Commissioner is subject to ministerial direction. That is provided by s 4.6, which provides: “4.6 Communications between Minister and commissioner (1) The commissioner— (a) is to furnish to the Minister reports and recommendations in relation to the administration and functioning of the police service, when required by the Minister to do so; and 32 Section 4.1. 33 Sections 4.2, 4.3 and 4.4. 34 Section 4.5. -- 23 of 46 -- 24 (b) may at any time furnish to the Minister such reports and recommendations as the commissioner thinks fit with a view to the efficient and proper administration, management and functioning of the police service. (2) The Minister, having regard to advice of the commissioner first obtained, may give, in writing, directions to the commissioner concerning— (a) the overall administration, management, and superintendence of, or in the police service; and (b) policy and priorities to be pursued in performing the functions of the police service; and (c) the number and deployment of officers and staff members and the number and location of police establishments and police stations. (3) The commissioner is to comply with all directions duly given under subsection (2).” [75] Section 4.8 concerns the Commissioner’s responsibilities: “4.8 Commissioner’s responsibility (1) The commissioner is responsible for the efficient and proper administration, management and functioning of the police service in accordance with law. (2) Without limiting subsection (1), a regulation may prescribe— (a) particular matters within the scope of the prescribed responsibility; or (b) additional responsibilities of the commissioner. (3) The commissioner is authorised to do, or cause to be done, all such lawful acts and things as the commissioner considers to be necessary or convenient for the efficient and proper discharge of the prescribed responsibility. (4) In discharging the prescribed responsibility, the commissioner— (a) is to comply with all relevant industrial instruments and determinations and rules made by an industrial authority; and (b) subject to this Act, is to ensure compliance with the requirements of all Acts and laws binding on members of the police service, and directions of the commissioner; and -- 24 of 46 -- 25 (c) is to have regard to section 4.6 and ministerial directions duly given thereunder; and (d) is to discharge the responsibility in relation to such matters as are prescribed for the time being.” [76] Section 4.9 is the provision which gives the power pursuant to which the direction was made. It provides, relevantly: “4.9 Commissioner’s directions (1) In discharging the prescribed responsibility, the commissioner may give, and cause to be issued, to officers, staff members or police recruits, such directions, written or oral, general or particular as the commissioner considers necessary or convenient for the efficient and proper functioning of the police service. (2) A direction of the commissioner is of no effect to the extent that it is inconsistent with this Act. (3) Subject to subsection (2), every officer or staff member to whom a direction of the commissioner is addressed is to comply in all respects with the direction. (4) A direction issued under subsection (1) to officers about functions, powers or responsibilities that are also functions, powers or responsibilities of watch-house officers is taken to be also issued to watch-house officers. …” [77] Before turning to an analysis of ss 4.8 and 4.9 of the PSA Act, observations should be made as to the nature of the organisation which is the QPS. [78] Modern policing can be traced back in England to the first regular professional police service in London, the Thames River Police, which was founded in about 1798. From that time, professional police forces began to emerge in those jurisdictions which follow the English justice system. Sworn police officers in Queensland have statutory rights and obligations under the Police Powers and Responsibilities Act 2000 and thereby occupy a unique position. The special powers bestowed on police officers are intended to be exercised to preserve the security, lives and property of the citizens of Queensland.35 The organisation of the QPS reflects that purpose. It is a disciplined force which operates through a hierarchical chain of command.36 35 Police Service Board v Morris (1985) 156 CLR 397 at 409 and see Nugent v Stewart (Commissioner of Police) & Anor (2016) 261 A Crim R 383 at [3] and [43]-[67]. 36 Police Service Board v Morris (1985) 156 CLR 397; Nugent v Stewart (Commissioner of Police) & Anor (2016) 261 A Crim R 383, [43]-[67]. -- 25 of 46 -- 26 [79] By force of the PSA Act, any person, upon employment in the QPS becomes subject to any directions of the Commissioner made under s 4.9. [80] Section 4.8(1) casts upon the Commissioner a responsibility for the operation of the QPS. The Commissioner occupies the top position in the chain of command. To enable her to fulfil those responsibilities, she is vested with general powers by s 4.8(3). Those powers are to do “all lawful acts and things” to achieve a particular aim, namely the discharge of the “prescribed responsibility”, which is the responsibility cast upon the Commissioner by s 4.8(1).37 [81] Section 4.9 confers specific power upon the Commissioner, namely the power to give directions. Again, that power, namely to give directions, is for the purpose of “discharging the prescribed responsibility”.38 [82] The limitations upon the Commissioner’s powers are contained with ss 4.8(3) and 4.8(4), namely: 1. any act, including any direction, must be lawful;39 2. any act, including any direction, must comply with: (a) “all relevant industrial instruments”. The term “industrial instruments” is defined as it is defined in the IR Act40 and includes an award or certified agreement; (b) any determination and rules made by an “industrial authority”. An “industrial authority” means the Commission and the Queensland Industrial Court;41 (c) legislation and other laws binding on members of the QPS;42 (d) ministerial directions;43 37 See definition of “prescribed responsibility” in s 1.4. 38 Section 4.9(1). 39 Section 4.8(3). 40 Police Service Administration Act 1990, s 1.4 and Industrial Relations Act 2016, Schedule 5. 41 Police Service Administration Act 1990, s 1.4. 42 Ibid, s 4.8(4)(b). 43 Ibid, ss 4.6 and 4.8(4). -- 26 of 46 -- 27 (e) the PSA Act.44 [83] Within those restrictions, the Commissioner’s directions are clearly binding upon employees of the QPS. That is what s 4.9(3) expressly provides. Part 7 of the PSA Act concerns disciplinary action. Section 7.4 prescribes the grounds of disciplinary action. It provides, relevantly: “7.4 Grounds for disciplinary action (1) The subject officer may be disciplined under this part if the subject officer has— (a) committed misconduct; or (b) been convicted— (i) in Queensland of an indictable offence; or (ii) outside Queensland of an offence that, if it were committed in Queensland, would be an indictable offence; or (c) performed the subject officer’s duties carelessly, incompetently or inefficiently; or (d) been absent from duty without approved leave and without reasonable excuse; or (e) contravened, without reasonable excuse— (i) a provision of this Act or the Police Powers and Responsibilities Act 2000; or (ii) a code of conduct that applies to the subject officer; or (iii) a direction given to the subject officer by the commissioner under this Act or by a senior officer with authority to give the direction. …” (emphasis added) [84] Therefore, on a proper construction of the PSA Act as a whole,45 and taken in the context of the QPS being maintained as a disciplined force:46 44 Police Service Administration Act 1990, s 4.9(2). 45 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 46 Police Service Board v Morris (1985) 156 CLR 397 and Nugent v Stewart (Commissioner of Police) (2016) 261 A Crim R 383 and see generally The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106 at [32]. -- 27 of 46 -- 28 1. within the restrictions that have been explained, the Commissioner may give a lawful direction to employees;47 2. the direction is given by the Commissioner in her capacity as the effective employer of the employees; 3. unless there is “reasonable excuse” not to comply, the employee must comply. [85] The applicants point to no provision in any award, or certified agreement, or to any provision of any legislation which is inconsistent with the direction. The applicants’ submissions really amounted to a proposition that if the subject matter of the direction could have been dealt with in the award or the certified agreement, then it could not be the subject of a direction. [86] That submission is contrary to the terms of the PSA Act, is inconsistent with the nature and structure of the QPS as established under the PSA Act, and is contrary to well-established principles of industrial law which recognise an employer’s right to direct employees within proper legal constraints. [87] Ground 3 fails. Ground 1: Failure to consult pursuant to the awards [88] Clause 11 of the Queensland Police Services Employees Award State - 2016 (police award) provides: “11. Consultation - Introduction of changes - all employees 11.1 QPS’s duty to notify (a) Where QPS decides to introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, QPS shall notify the employees who may be affected by the proposed changes and, where relevant, their union/s. (b) ‘Significant effects’ includes termination of employment; major changes in the composition, operation or size of QPS’s workforce or in the skills required; the elimination or diminution of job 47 See generally The Shire President Councillors and Ratepayers of the Shire of Swan Hill v Bradbury (1937) 56 CLR 746 at 756, considered in an industrial context in Together Queensland & Ors v State of Queensland [2013] QSC 112 at [30]. -- 28 of 46 -- 29 opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. (c) Where the Award makes provision for alteration of any of the matters referred to in clauses 11.l(a) and (b) an alteration shall be deemed not to have significant effect. 11.2 QPS’s duty to consult over change (a) QPS shall consult the employees affected and, where relevant, their union/s about the introduction of the changes, the effects the changes are likely to have on employees (including the number and categories of staff members likely to be dismissed, and the time when, or the period over which, QPS intends to carry out the dismissals) and ways to avoid or minimise the effects of the changes (e.g. by finding alternate employment). (b) The consultation must occur as soon as practicable after making the decision referred to in clause 11.1.” [89] Similar provisions are contained in the General Employees (Queensland Government Departments) and Other Employees’ Award - State 201548 which is named in ground 2 of the applicants’ application, and the Queensland Public Service Officers and Other Employees Award - State 201549 which is the award applicable to the other staff. [90] The applicants point to ss 72 and 143 of the IR Act and submit that they are relevant to the construction of clause 11. [91] Section 72 is in these terms: “72 Employer’s obligation to advise about significant change at the workplace (1) This section applies if an employer decides to implement significant change at a workplace. (2) The employer must take reasonable action to advise each employee who is absent from the workplace on parental leave about the proposed change before it is implemented. 48 Clause 11. 49 Clause 11. -- 29 of 46 -- 30 (3) The advice must inform the employee of the change and any effect it will have on the position the employee held before starting parental leave, including, for example, the status or level of responsibility attached to the position. (4) The employer must give the employee a reasonable opportunity to discuss any significant effect the change will have on the employee’s position.” [92] Section 72 concerns the obligation of an employer to advise an employee who is on parental leave about proposed changes. It is irrelevant to the current dispute and can be ignored. [93] Section 143 is, relevantly, in these terms: “143 Content of modern awards (1) The commission must ensure a modern award— (a) … (g) includes a provision requiring an employer to consult employees before making a decision likely to be of particular significance to employees; and … (3) For subsection (1)(g), the provision must state a consultation process to be followed that enables the employer to properly consider the views of employees and relevant employee organisations before making or implementing a final decision. …” [94] Section 143(1)(g) does not purport to directly regulate rights and obligations between employers and employees in the workplace. It purports to regulate the content of modern awards. Here, the relevant awards all contain provisions as prescribed by s 143(1)(g). Clause 11 of the police award is such a provision. The applicants submit that the obligation in s 143(1)(g) informs the construction of clause 11. That submission ought to be rejected. The awards are the result of a process prescribed by the IR Act and their terms should be construed in accordance with well-established principles.50 [95] Provisions defining consultation obligations by reference to “change in production, program, organisation, structure or technology” have existed in industrial instruments since the mid-1980s. They are called “TCR clauses” and were first considered in 50 Explored in the context of industrial instruments by French J (as his Honour then was) in City v Wanneroo v Australian Municipal Administrative Clerical and Services Union (2006) 153 IR 426. -- 30 of 46 -- 31 Amalgamated Metals, Foundry and Shipwrights’ Union v Broken Hill Co Pty Ltd51 (the TCR case). That decision considered a log of claims made by the Australian Council of Trade Unions aimed at securing job security in federal awards. The consultation obligations were part of the achievement of that aim. [96] In the TCR case, this was observed: “As we said earlier, we are aware that procedures for notification, consultation and provision of information have generally been settled by negotiation and agreement, and we are of the view that, generally speaking, they are not matters which lend themselves to effective legislation or award prescription. Nevertheless, we believe that it is of fundamental importance to involve employees and their representatives in the problems of redundancy as soon as a firm decision has been taken that retrenchments may be necessary, and we are prepared to make an award provision to that effect.”52 [97] The TCR issue was taken up in 1987 by the Industrial Conciliation and Arbitration Commission of Queensland who adopted a “Declaration for Policy concerning Termination of Employment, Introduction of Changes and Redundancy” (the TCR Declaration of Policy). That policy was to be transported into awards and industrial agreements. The policy generally adopted the reasons for decision in the TCR case. [98] In both the TCR case and the TCR Declaration of Policy, the notification and consultation provisions which were introduced were almost identical to clauses 11.1 and 11.2 of the police award. Importantly, the words “… changes in production, program, organisation, structure or technology that are likely to have significant effects on employees” as appear in clause 11.1(a) of the police award, appear in both the TCR case and the TCR Declaration of Policy. [99] Clauses such as clause 11 have been considered in various cases, including one cited by the applicants, namely Melbourne City Council v Australian Municipal, Administrative, Clerical and Services Union.53 The Melbourne City Council Enterprise Agreement 2005-2008 contained a consultation provision in relation to any decision “to introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on employees”. The Council made a decision to introduce work changes in respect of how outsourced staff 51 (1984) 8 IR 34. 52 Ibid, at 62. 53 [2007] AIRC 116. -- 31 of 46 -- 32 performed work in hot weather conditions. Commissioner Grainger considered that the consultation obligations had been activated. He held: “[27] The fundamental issue before the Commission on this aspect of this matter is whether or not the 2006 Policy was introduced and subsequently applied in accordance with requirements of clause 14 of the Agreement relating to consultation. The requirement to consult under clause 14 is confined to a specific set of five action fields - production, program, organisation, structure or technology. The Shorter Oxford English Dictionary relevantly defines these terms as follows:- • Production - in that case, the question the action of producing; the fact or condition of being produced • Program - a definite plan of any proceedings • Organisation - the action of organizing, or condition of being organized, as a living being; an organized structure, body or being. • Structure - the way in which an edifice, machine etc is made or put together • Technology - the scientific study of the practical or industrial arts” [100] The purpose of provisions such as clause 11 of the police award is to be understood and construed relevantly to the context and history as we have explained it. The provisions concern changes in the way in which work is done. That is relevant as such changes can lead to an erosion of job security through redundancy. That is the point of provisions such as clause 11. [101] Here, the direction does not concern the way in which work is done. It does not concern “production, program, organisation, structure or technology”. It concerns a response to a health issue which is the COVID-19 pandemic and the impact of that disease upon operational policing. The response is to require staff of the QPS to be vaccinated against the disease so as to enable the staff to then go about their work as they have always done. There is no relevant “change”. [102] The awards do not require consultation on the direction. However, for the reasons explained in relation to ground 2, there was appropriate and adequate consultation in any event. [103] Ground 1 fails. -- 32 of 46 -- 33 Ground 2: Failure to consult pursuant to the Work Health & Safety Act 2011 [104] Section 3 of the Work Health & Safety Act 2011 states the objects of the legislation, relevantly here, as: “3 Object (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by— (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances or plant; and (b) providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and … (2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from particular types of substances or plant as is reasonably practicable.” [105] The Act seeks to achieve its aim of ensuring safety in the workplace by imposing health and safety obligations upon various people, including employers and employees.54 [106] Sections 47, 48 and 49 are relevant here. They provide: “47 Duty to consult workers (1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, as required under in this division and any regulation, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. 54 Part 2. -- 33 of 46 -- 34 Maximum penalty—200 penalty units. (2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures. (3) The agreed procedures must not be inconsistent with section 48. 48 Nature of consultation (1) Consultation under this division requires— (a) that relevant information about the matter is shared with workers; and (b) that workers be given a reasonable opportunity— (i) to express their views and to raise work health or safety issues in relation to the matter; and (ii) to contribute to the decision-making process relating to the matter; and (c) that the views of workers are taken into account by the person conducting the business or undertaking; and (d) that the workers consulted are advised of the outcome of the consultation in a timely way. (2) If the workers are represented by a health and safety representative, the consultation must involve that representative. 49 When consultation is required (1) Consultation under this division is required in relation to the following health and safety matters— (a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking; (b) when making decisions about ways to eliminate or minimise those risks; (c) when making decisions about the adequacy of facilities for the welfare of workers; (d) when proposing changes that may affect the health or safety of workers; (e) when making decisions about the procedures for— (i) consulting with workers; or -- 34 of 46 -- 35 (ii) resolving work health or safety issues at the workplace; or (iii) monitoring the health of workers; or (iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or (v) providing information and training for workers; or (f) when carrying out any other activity prescribed under a regulation for this section.”55 (emphasis added) [107] In argument, the following was either expressly or impliedly agreed or understood: 1. The Commissioner was conducting the “business or undertaking” of the QPS.56 2. Police and other staff were carrying out work for the business or undertaking of the QPS.57 3. Police and other staff are persons who are likely to be directly affected by “a matter relating to work, health or safety” in the business or undertaking of the QPS.58 4. The making of a response to the COVID-19 pandemic is a matter which is caught by s 49; so consultation is required. 5. The consultation must therefore be in accordance with s 48 “… so far as is reasonably practicable”.59 [108] Deputy Commissioner Smith was heavily involved in the formulation of the QPS’s response to the pandemic. After considering the statutory obligations upon the QPS, and the material relating to COVID-19 and vaccinations, including the Fair Work Ombudsman’s publications and the reasonableness of a mandatory vaccination 55 Section 18 of the Work Health & Safety Act 2011 defines “what is reasonably practicable”, but s 18 only concerns safety duties. 56 Section 47(1). 57 Section 47(1). 58 Section 47(1). 59 Section 47. -- 35 of 46 -- 36 direction, Deputy Commissioner Smith made the following recommendation to the Commissioner on 23 August 2021:60 “I recommend that a direction be drafted under your authority pursuant to section 4.8 and 4.9 of the Police Service Administration Act directing all police personnel to be vaccinated with an approved Covid-19 vaccine with exemptions for those with medical contraindications, genuine religious objections or other exceptional circumstances. If approved I will engage with all five unions that represent our workforce as required by the provision of the Work Health and Safety Act to gain their views and seek to obtain their consensus for such a mandate.” [109] Upon receiving approval from the Commissioner, Deputy Commissioner Smith undertook consultation with approximately 17,212 QPS employees. [110] Prior to Deputy Commissioner Smith’s advice to the Commissioner, all QPS employees received an email from the Commissioner in relation to vaccinations for QPS members. The Commissioner’s email encouraged all employees of the QPS workforce to get vaccinated. That email was sent on 17 August 2021.61 [111] On 2 September 2021, all QPS employees received an email from the Commissioner foreshadowing her intention to mandate vaccination requirements for the QPS workforce. In that email, the Commissioner outlined that the mandate was critical to meet the following obligations:62 “1. I must maintain a safe workplace so police officers and staff members can come to work and be secure in the knowledge that all health and safety requirements are met. 2. I must maintain a workforce that is capable of meeting the statutory requirements to deliver police services to the community of Queensland. 3. I must maintain workplaces and a workforce the community of Queensland is confident does not put them at risk when dealing with members of the Queensland Police Service.” 60 Affidavit of Deputy Commissioner Douglas Alan Smith affirmed 13 October 2021, [11]. 61 Ibid, Exhibit DS-06. 62 Ibid, Exhibit DS-07. -- 36 of 46 -- 37 [112] In order to meet the obligations identified, the Commissioner outlined that it was her intention to:63 “1. Issue a direction mandating that all sworn QPS members receive a first COVID-19 vaccination by October 4, 2021 and a second COVID-19 vaccination by January 23, 2022; and 2. Put in place a similar mandated vaccination requirement for all staff members, contractors and consultants across all QPS workplaces.” [113] On 2 September 2021, Deputy Commissioner Steve Gollschewski, Southern Queensland State Disaster Coordinator, sent an email to all QPS employees attaching a “Frequently Asked Questions” document on the “Mandatory Vaccination Requirements for the QPS Workforce”. [114] On 7 September 2021, Deputy Commissioner Smith sent an email to all QPS employees attaching the direction made by the Commissioner on that day.64 [115] On 21 September 2021, all QPS employees and contractors received an email from the Commissioner providing an update on the COVID-19 vaccine. The Commissioner’s email restated the requirements for all QPS employees to be vaccinated, unless they are exempt. The Commissioner’s email attached two documents:65 1. “COVID19 Exemption Guidelines 21 September 2021”; and 2. “COVID-19 impacts on policing around the world”. [116] On 24 September 2021, all QPS employees and contractors received an email from the Commissioner incorporating a link to a recording of a recent COVID-19 information session involving two leading medical experts - Professor Michael Cleary, Chief Incident Controller at Metro South Health and Hospital Service, and Dr Wendy Dutton, Director of Obstetrics and Gynaecology at Redlands Hospital.66 63 Affidavit of Deputy Commissioner Douglas Alan Smith affirmed 13 October 2021, Exhibit DS-07. 64 Ibid, Exhibit DS-09. 65 Ibid, Exhibit DS-10. 66 Ibid, Exhibit DS-11. -- 37 of 46 -- 38 [117] In addition to the emails and communications, information was also available to all QPS employees on the QPS Intranet and the QPS internal communication platform, including the following posts:67 1. On 2 September 2021, the QPS News referred to the email sent to all QPS Members referring to the “Mandatory Vaccination Requirements for the QPS Workforce”. 2. On 3 September 2021, the QPS News included a longer post referring to the intention to issue direction. The QPS News post included a video from the Chief Health Officer. 3. On 7 September 2021, the QPS News referred to the Commissioner’s direction and uploaded the following documents - the direction, HR Compatibility Statement and FAQs. [118] Deputy Commissioner Smith deposed that it was his understanding that in response to the emails and other publications made available to employees, many QPS staff raised questions with their officers-in-charge and supervisors, and via Workplace. The QPS’s Frequently Asked Questions document about its mandatory vaccination program was updated in response to these questions. In addition, Deputy Commissioner Smith’s office received and responded to staff questions and enquiries on a daily basis. [119] In addition to the QPS’s direct engagement and consultation with all employees as detailed above, the QPS also consulted with all five of the relevant employee unions. As already observed, those unions, between them, had total coverage of the workforce of the QPS. [120] On 1 September 2021, Deputy Commissioner Smith convened a QPS Work Health and Safety Committee meeting which was attended by representatives from all five unions. Moreover, he continued consultation with the representatives from TQU, UVQ and AMEPKU on the morning of 2 September 2021.68 67 Affidavit of Deputy Commissioner Douglas Alan Smith affirmed 13 October 2021, Exhibit DS-12. 68 Ibid, Exhibit DS-13. -- 38 of 46 -- 39 [121] Ultimately, all of the five unions supported the Commissioner’s decision to mandate vaccination.69 [122] Deputy Commissioner Smith’s evidence was that the processes used by the QPS to consult with the unions in respect to the direction and the QPS’s actions prior to issuing the direction reflects the usual consultation processes engaged in by the QPS in respect to workplace health and safety issues. [123] Section 48 of the Work Health & Safety Act 2011 prescribes particular acts of consultation which should occur. However, those requirements need only be fulfilled to the extent that fulfilment is “reasonably practicable”.70 [124] Section 47 is of general application to all workforces and workplaces. It is easy to imagine that it may be reasonably practicable to consult on a face to face basis and fully in terms of s 48 with each individual member of a small workforce. Here, the workforce is over 17,200 in number.71 [125] In Slivak v Lurgi (Australia) Pty Ltd,72 Gaudron J described the notion of “reasonably practicable”, in the context of fulfilment of a safety obligation, as follows:73 “The words ‘reasonably practicable’ have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words ‘reasonably practicable’ are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases: ‘the phrase ‘reasonably practicable’ means something narrower than ‘physically possible’ or ‘feasible; what is ‘reasonably practicable’ is to be judged on the basis of what was known at the relevant time; to determine what is ‘reasonably practicable’ it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.’” 69 Affidavit of Deputy Commissioner Douglas Alan Smith affirmed 13 October 2021, Exhibit DS-09. 70 Section 47(1). 71 See generally Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 at [222]-[226]. 72 [2001] HCA 6. 73 Ibid, at [53]. -- 39 of 46 -- 40 [126] In Baiada Poultry Pty Ltd v The Queen,74 the High Court adopted a similar approach concluding:75 “All elements of the statutory description of the duty were important. The words ‘so far as is reasonably practicable’ direct attention to the extent of the duty. The words ‘reasonably practicable’ indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.” [127] The evidence shows that each employee received by email various documents over a period of time which explained the Commissioner’s intentions. Importantly, each of the applicants who gave evidence were members of a union at the time the direction was given. All the police and other staff were eligible for membership of one of the unions with whom the Deputy Commissioner consulted, and who supported the directive. Those unions, therefore, covered the workforce. It is well-established that trade unions may negotiate with employers, not only on behalf of their members, but also on behalf of workers who are eligible for membership.76 [128] When considering in any particular case what consultation is “reasonably practicable”, regard must be had not only to the particular circumstances, but also to the legislative intention behind ss 47 and 48. The point of s 47 is to enable workers who may be affected by workplace, health and safety issues to have input into the management of those issues before an employer imposes conditions upon them.77 Obviously, the desirable outcome is agreement between the employer and employees as to the work, health and safety measures. 74 (2012) 246 CLR 92. 75 Ibid, at [15]. 76 R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 1 and Regional Express Holdings Limited v Australian Federation of Air Pilots (2017) 262 CLR 456. 77 Re Consultation Clause in Modern Awards (2013) 238 IR 282 at [31] following Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services union of Australia v QR Ltd (2010) 198 IR 382. -- 40 of 46 -- 41 [129] Here, the unions agreed with the directive. In other words, the consultation reached the level where the directive was not a matter of contention. The unions, with total coverage over the workforce, agreed with it. [130] There was argument as to whether the applicants bore the onus to prove that there had not been proper consultation or whether the Commissioner bore the onus to prove that there had.78 Nothing turns on this. There is a solid body of evidence introduced through Deputy Commissioner Smith which is effectively unchallenged which establishes proper consultation. That evidence includes that unions with total collective coverage of the workforce agreed with the direction. [131] No breach of the Work Health & Safety Act 2011 has been established. Ground 2 fails. Conclusions and orders [132] Both applications sought to challenge the Commissioner’s direction on three specific bases. All have failed. [133] Both applications are dismissed. 78 Blatch v Archer (1774) 98 ER 969, ASIC v Hellicar (2012) 247 CLR 345 and Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 at [129]-[134]. -- 41 of 46 -- -- 42 of 46 -- -- 43 of 46 -- -- 44 of 46 -- -- 45 of 46 -- -- 46 of 46 --