Endicott v State of Queensland (Queensland Health) [2024] QIRC 23

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: CASE NO: PROCEEDING: DELIVERED ON: MEMBER: HEARD AT: Endicott v State of Queensland (Queensland Health) [2024] QIRC 23 Endicott, Lisa (Appellant) v State of Queensland (Queensland Health) (Respondent) PSA/2022/678 Public Service Appeal - Appeal against a fair treatment decision 8 February 2024 O'Connor VP On the papers ORDER: 1. Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), the appeal will not be heard. CATCHWORDS: PUBLIC SERVICE APPEAL - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - where appellant is employed by the State of Queensland (Queensland Health) as a Medical Scientist - where Health Employment Directive 12/21 Employee COVID-19 vaccination requirements required the appellant to receive the first dose of a COVID-19 vaccine by 30 September 2021 and the second dose of a COVID-19 vaccine by 31 October 2021 - where appellant did not comply - where appellant applied for an exemption and was denied - where appellant requested internal review of decision to deny her exemption was -- 1 of 8 -- 2 confirmed - where appellant claims lack of consultation - whether risk assessment undertaken - where appellant concerned about safety and efficacy of vaccinations - where matters raised have already been heard and determined - whether the commission reasonably believes the appellant has an arguable case - whether the appeal should be heard LEGISLATION AND OTHER INSTRUMENTS: Industrial Relations Act 2016 (Qld), s 562A Hospital and Health Boards Act 2011, s 51A, s 51E, s 51AA, s 66 Human Rights Act 2019 Work Health and Safety Act 2011 (Qld) Health Employment Directive 12/21 Employee COVID-19 vaccination requirements CASES: Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356 Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121 Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058 Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 Stevens v Epworth Foundation [2022] FWC 593 Reasons for Decision Introduction and Background [2] Ms Lisa Endicott ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Medical Scientist (HP3), Prevention Division, Pathology Queensland at the Royal Brisbane and Women's Hospital ('RBWH'). [3] On 11 September 2021, Health Employment Directive 12/21 Employee COVID-19 vaccination requirements ('the Directive/HED 12/21') came into effect. The Directive provided inter alia that employees must have received: -- 2 of 8 -- 3 • the first dose of a COVID-19 vaccine by 30 September 2021; and • the second dose of a COVID-19 vaccine by 31 October 2021. [4] In her role as a Medical Scientist at the RBWH the Appellant was categorised within Group 2 under s 7.1 of HED 12/21 and subject to the mandatory vaccination requirements. [5] On 30 September 2021 the Appellant applied for an exemption from compliance with HED 12/21 on the grounds of 'other exceptional circumstances'. In support of her exemption application, the Appellant provided a generic letter prepared by the Nurses' Professional Association of Queensland (also known as Red Union). [6] By letter dated 16 December 2021, Professor Keith McNeil, Acting Deputy Director-General and Chief Medical Officer, Prevention Division and Chief Clinical Information Officer for the Respondent denied the Appellant's exemption application and this was confirmed on internal review by letter dated 23 June 2022 from Mr Damien Green.1 [7] The Appellant filed her appeal of this decision in the Industrial Registry on 15 July 2022. In her application, the Appellant 'would like to seek an abeyance on [her] matter until such time as the legal questions regarding consultation are answered in the representative matter, PSA/2022/255 …'.2 [8] A Directions Order was issued by the Queensland Industrial Relations Commission ('the Commission') on 25 July 2023 seeking submissions from the parties addressing why the Commission should decide not to hear the appeal pursuant to s 562A(3) of the Industrial Relations Act 2016 ('the IR Act'). Relevant legislation [9] Section 562A of the IR Act provides: 562A Commission may decide not to hear particular public service appeals (1) … (2) … (3) The commission may decide it will not hear a public service appeal against a decision if - (a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or 1 Respondent's submissions filed 8 August 2023, [6]-[8]. 2 PSA/2022/255 was subsequently discontinued on 11 May 2023. -- 3 of 8 -- 4 (b) the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal - (i) is frivolous or vexatious; or (ii) is misconceived or lacks substance; or (iii) should not be heard for another compelling reason. Appellant's submissions [10] The Appellant submits that she has an arguable case pursuant to s 562A of the IR Act and relevantly states: Section 562A(1)(a)(b) of the IR Act states the Commission may decide it will only hear an appeal against a directive decision if the appellant has satisfactorily used required procedures in the pursuit of a fair treatment decision. As the appellant, Lisa Endicott, I have met procedural requirements and therefore ask the Commission for a fair treatment decision. I do not believe this appeal is either frivolous or vexatious, is misconceived or lacks substance. On the contrary, much scientific evidence and common sense forms the basis of this appeal pursuant to the social and economic welfare of the people of Queensland. HED 12/21 HED12/21 never formed part of my condition of full time employment which I signed on 28 March 2005. Even though the directive has been consistently found to be lawful and reasonable in other matters before the Commission, it does not make the directive correct as far as the welfare of individuals and the workplace is concerned, particularly in the light of scientific and social data as time advances. Laws can be incorrect. Laws have been and can be changed through our democratic process. It just takes people to stand for what is right. The Department did not comply with its obligations to consult Whether direct consultation with employees was required or not under the WHS Act, I appeal to common decency and the authority of Director General at the time, Dr John Wakefield. … Prior to October 1, 2021, on at least 4 separate occasions to my Line Manager and Human Resources department, I requested information that would satisfy reasonable questions I asked about the Covid-19 vaccines. To the present day, additional information has never been produced. … Risk Assessment … Although there are minimum standards to be met, risk assessment is always specific to working conditions. This is how we keep our workplaces safe. One size does not fit all, in the workplace, and in assessing risk and rationalisation of Covid-19 vaccinations. -- 4 of 8 -- 5 Breach of the Human Rights Act 2019 The Respondent's submission states there was no breach of the Human Rights Act 2019. However this stands in contradiction to several correspondence letters from QH acknowledging their limiting my Human Rights with regard to freedom of thought to take part in public life (through employment in the public service) and my right to privacy and reputation. I therefore reject their claim, based on QH's own admission. Safety and efficacy of COVID-19 vaccination … In light of scores of scientific evidence and public data, from the implementation of HED 12/21 until the present day, it is irresponsible for QH to maintain the claim that the COVID-19 vaccines are safe and effective. … Submissions of the Respondent [11] The Respondent contends that the matters raised by the Appellant in her appeal have been extensively considered and determined by the Commission in numerous public service appeals and the collective reinstatement matter of Mocnik & Ors v State of Queensland (Queensland Health).3 [12] In response to each of the Appellant's contentions, the Respondent relevantly states: HED 12/21 The decision of Mocnik confirmed that HED 12/21 is a condition of employment to be vaccinated unless an exemption is granted.4 This requirement has been consistently found to be lawful and reasonable in other Commission matters.5 The Department complied with its obligations to consult or provide risk assessment Despite the Appellant claiming there was a lack of consultation, the decision of Mocnik6 confirmed there was no breach of the WHS Act. Further, there was no obligation on the Department under the WHS Act to provide a risk assessment for each business unit to individual Applicants on request following the issuing of HED 12/21.7 Safety and efficacy of COVID-19 vaccination 3 [2023] QIRC 058, ('Mocnik'). 4 Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058. 5 Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121 ('Mackenzie'); Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [36], [39], [41]. 6 Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058. 7 Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058, [111]. -- 5 of 8 -- 6 The Respondent was not required to provide the Appellant with assurances concerning the safety or efficacy of the COVID-19 vaccines which had been approved by the Therapeutic Goods Administration.8 No breach of the Human Rights Act 2019 It was confirmed in Mocnik that HED 12/21, and specifically the requirement to receive two doses of a COVID-19 vaccine, is not inconsistent with the Human Rights Act 2019.9 [13] The Respondent submits that in circumstances where all of the matters raised by the Appellant have already been heard and determined, it is not in the public interest for the Commission to hear the appeal pursuant to s 562A(3)(b)(iii) of the IR Act.10 Consideration [14] The Appellant claims she has an arguable case and she has met the procedural requirements and that her appeal is neither frivolous nor vexatious, misconceived nor lacking in substance. In particular, the Appellant relies on scientific evidence and public data available since the implementation of the Directive until the present day. This is despite expert medical evidence already provided to the Commission in other similar matters such as Mackenzie11 and Mocnik.12 [15] As this appeal was filed on 15 July 2022 only evidence and data available at that time is relevant to the determination of this matter. [16] In respect of HED12/21, the Appellant claims this Directive did not form part of her condition of full-time employment which she signed on 28 March 2005. However, the Commission in Mocnik13 and the Full Bench in Mackenzie14 determined the Directive to be a lawful and reasonable direction by an employer and that failure to obey has consequences. [17] The Chief Executive's power to issue a HED is limited only by the Directive being about the conditions of employment and the obligation under s 51AA of the Hospital and Health Boards Act 2011 ('the HHB Act') to consult with the health services and employees who are represented by an employee organisation. [18] Clause 7.1 of HED 12/21 states that clauses 8 and 9 of the Directive require all existing and prospective employees who are or are to be employed to work in the cohorts as 8 Stevens v Epworth Foundation [2022] FWC 593, [19], [35]. 9 Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058, [76]. 10 Respondent's submissions filed 8 August 2023, [16], [17]. 11 [2023] QIRC 121. 12 [2023] QIRC 058. 13 [2023] QIRC 058. 14 [2023] QIRC 121. -- 6 of 8 -- 7 categorised in accordance with Table 1, to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of HED 12/21. [19] By virtue of s 66(1)(e) of the HHB Act, the conditions of employment for a health service employee are governed by, inter alia, health employment directives made pursuant to s 51A of the HHB Act. Under s 51E(1) of the HHB Act a health employment directive that applies to an employee of the Department is binding on the employee and the Department. [20] HED 12/21 is a condition of employment to be vaccinated unless an exemption is granted. It follows therefore, that HED 12/21 is a health employee directive, about "conditions of employment", within the meaning of section 51A of the HHB Act. [21] The Appellant further contends that the Respondent did not comply with its obligations to consult. [22] This issue was comprehensively dealt with by a Full Bench of the Commission in Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors where the Commission found: [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. Obviously, the desirable outcome is agreement between the employer and employees as to the work, health and safety measures. [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.15 [23] In Mocnik16 it was established there was proper consultation by the Respondent and that there was no breach of the Work Health and Safety Act 2011 ('the WHS Act'). Relevantly, the Commission found: [88] The evidence is that the Respondent consulted with the unions with total coverage over the workforce and agreed with it. 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. [24] The Respondent had no obligation under Part 5 of the WHS Act to consult directly with the Appellant prior to implementation of the Directive.17 15 [2021] QIRC 356. 16 [2023] QIRC 058. 17 [2023] QIRC 058, [95]. -- 7 of 8 -- 8 [25] Further, there is no requirement on the Respondent to provide assurances concerning the safety and efficacy of such vaccination.18 [26] The Appellant rejects the Respondent's submission there was no breach of the HR Act and that this is in contradiction to her human rights as an employee in the public service. However, the Appellant has failed to articulate in any meaningful way how it is alleged HED 12/21 breached ss 17, 20, 23 and 27 of the HR Act. [27] As confirmed in Mocnik,19 the requirement of HED12/21 to receive the required number of vaccinations is not inconsistent with the HR Act.20 [28] In this matter the Appellant has failed to establish an arguable case. The matters raised by the Appellant have been comprehensively considered and determined by the Commission. Accordingly, for the reasons advanced, it is not in the public interest to hear the appeal pursuant to s 562A(3) of the IR Act. [29] In all of the above circumstances it is ordered: Orders 1. Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), the appeal will not be heard. 18 Stevens v Epworth Foundation [2022] FWC 593, [19], [35]. 19 Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058, [54]-[76]. 20 Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058; Mackenize v State of Queensland (Queensland Health) [2023] QIRC 121. -- 8 of 8 --