Collins v State of Queensland (Queensland Health) [2022] QIRC 215

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Collins v State of Queensland (Queensland Health) [2022] QIRC 215 PARTIES: Collins, Noela Jean (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2022/27 PROCEEDING: Public Service Appeal – Fair Treatment DELIVERED ON: 15 June 2022 MEMBER: Knight IC HEARD AT: On the papers Final submissions received 7 March 2022 ORDERS: The decision appealed against is confirmed pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld). CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal under s 197 of the Public Service Act 2008 (Qld) – where Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements required relevant employees to receive COVID-19 vaccination – where appellant requested exemption from compliance on basis of genuine religious beliefs – where exemption refused – where internal review confirmed decision to refuse exemption – whether religious views meaningfully considered – whether human rights adequately considered – decision confirmed -- 1 of 12 -- 2 LEGISLATION AND INSTRUMENTS: Directive 11/20 – Individual employee grievances cl 9.2 Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements cls 7, 8, 10 Hospital and Health Boards Act 2011 (Qld) s 51A Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) s 197 CASES: Gilmour v Waddell & Ors [2019] QSC 170 Higgins v State of Queensland (Queensland Health) [2022] QIRC 030 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39 Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 Reasons for Decision [1] Ms Noela Jean Collins is employed by the State of Queensland through Queensland Health as a Patient Services Officer with the Townsville Hospital and Health Service ('the Service'). Ms Collins has been employed by Queensland Health since 14 November 2011. [2] On 11 September 2021, Queensland Health issued the Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements ('the Directive') concerning the mandatory COVID-19 vaccination requirements for certain staff employed by Queensland Health. The Directive was issued pursuant to s 51A of the Hospital and Health Boards Act 2011 (Qld). [3] Ms Collins has lodged an appeal pursuant to ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PS Act') in relation to a decision by Ms Danielle Hornsby, Acting Chief Operating Officer, to confirm a decision not to approve Ms Collins' application for an exemption from compliance with the Directive. -- 2 of 12 -- 3 [4] Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld).1 It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.2 Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.3 [5] The basis of the decision being appealed concerns an application by Ms Collins for an exemption from compliance with the Directive due to a genuinely held religious belief. [6] Other issues raised by Ms Collins such as the legality of the Directive,4 processes associated with the introduction of other vaccines,5 the views of the Japanese Ministry of Health in respect of mandatory vaccines,6 the alleged experimental nature of the vaccine7 and deceased COVID-19 vaccine recipient payments and funeral costs as detailed on the myGov website,8 are beyond the scope of this appeal. Background [7] Clause 7 of the Directive sets out the employees to which the Directive applies. Relevantly, it applies to all health service employees who are employed to work within a hospital or other facility where clinical care or support is provided. [8] Clause 8 of the Directive provides that, unless an employee to whom the Directive applies is exempt under cl 10, the employee must receive at least one dose of a COVID-19 vaccine by 30 September 2021, receive a second dose by 31 October 2021 and either provide to their line manager or upload into the designated system evidence of having done so no later than seven days after receiving each vaccine. [9] In her role as Patient Services Officer at Townsville University Hospital, Ms Collins falls within one of the groups identified within the Directive who were required to receive a vaccination by the specified date.9 [10] Clause 10 of the Directive provides that an employee does not have to comply with the Directive where they are granted an exemption. The Directive provides that an application for an exemption will be considered by Queensland Health : where an employee has a recognised medical contraindication; where an employee has a genuinely held religious belief; or 1 Public Service Act 2008 (Qld) s 197. 2 Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 3 Industrial Relations Act 2016 (Qld) s 562B(3). 4 Appeal Notice filed 14 January 2022, Part C. 5 Ibid. 6 Ibid. 7 Ibid. 8 Ms Collins' submissions filed 11 February 2022, 2. 9 Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements cls 7, 8. -- 3 of 12 -- 4 where another exceptional circumstance exists.10 [11] On 24 September 2021, Ms Collins requested an exemption to the mandatory vaccine requirements, identifying her genuinely held religious belief as the basis for the application. [12] The exemption application form stipulates two evidentiary requirements for consideration of a religious exemption: a letter specifying the applicant's deeply held religious belief which prevents them from receiving the vaccine; and a letter from a religious leader or official specifying their affiliation or connection to a religious group. [13] In the supporting documentation attached to her exemption application, Ms Collins nominated 'Mother Earth' as her religion, noting: I am a spiritual being that is loosely bound to other like-minded beings but tightly bound to Mother Earth. My/our philosophy of do no harm to self and nurture mother earth (the planet) are my deeply held religious beliefs, best described as Earth Religion/Pagan. This prevents myself from embracing the COVID-19 vaccine…11 [14] Ms Collins was unable to comply with the second evidentiary condition contained within the exemption application whereby she was required to provide a letter from a religious leader certifying a connection or affiliation to her nominated religion, which also confirmed she possessed a genuinely held religious belief such that she was unable to receive any COVID-19 vaccine.12 In this respect, Ms Collins' supporting documentation noted: This religion has no head or office bearing officials, therefore I'm writing this on behalf of myself after attempting, in vain, to ascertain from Queensland Health their interpretation of an official so that I may fully comply with this directive in the correct manner.13 [15] In correspondence dated 6 December 2021, Ms Sharon Kelly, Interim Executive Director Human Resources & Engagement, advised Ms Collins her request for exemption was refused. Within her reasons for decision, Ms Kelly noted: Your individual circumstances, including your religious belief and the connection of that religious belief to the requirements under the Directive, were balanced against the purposes of the vaccination requirements. I have had regard to the intention of the Directive, specifically the requirement to ensure the readiness of the health system in responding to the COVID-19 pandemic, to protect the lives of employees, patients and the community they serve. … 10 Ibid cl 10.2. 11 The Service's submissions filed 9 February 2022, Attachment 1. 12 Ibid. 13 Ibid. -- 4 of 12 -- 5 The Directive contemplates the high degree of risk to public health associated with work performed in healthcare settings and will ensure Queensland Health can provide a safe environment for both employees and patients...14 [16] Consequently, on 12 December 2021, Ms Collins sought an internal review of the decision to refuse her exemption application, submitting: I appeal this decision as it has been made on not fully tested science theory, and the fact that my beliefs on my religion, Mother Earth, have not been questioned. … Like Queensland Health, I have an obligation to Mother Earth, my religion, myself and my community to ensure limiting transmission of all diseases, to protect the vulnerable cohorts, reduce any outbreaks not only within the workplace but also my family and community. While the Covid- 19 vaccine is 1 [sic] means, it is not the only effective means to ensure safety and should not be used in isolation.15 [17] In a decision-letter dated 24 December 2021, Ms Hornsby informed Ms Collins that an internal review of the exemption application had been completed. The decision to refuse Ms Collins' exemption application was confirmed ('the internal review decision'). [18] This is the decision that is now appealed by Ms Collins. Submissions of the Parties [19] Ms Collins set out her grounds of appeal within her appeal notice.16 The parties in these proceedings were then directed to file written submissions. Ms Collins' Submissions [20] Ms Collins appeals on the following grounds: ... the decision is not made against my religion. The reasons given are based on a scientific hypothesis that is a work in progress. Also, Australia is no longer under a Biosecurity Order therefore making this directive null and void. The jab as per TGA is still experimental and only for use in vulnerable cohorts. Another point given is that others [sic] human rights are greater than my own meaning that I am being deemed as less important than anyone else and this is not in accordance with [the] Human Rights Act. [21] In her appeal notice, Ms Collins maintains the introduction of the 'jab' has not shown due process or allowed for individual choice, noting there is still a grandfather clause for the Hepatitis B vaccine. [22] Although the source is not referenced, Ms Collins further relies on an excerpt from Japan's Ministry of Health, which highlights the Japanese government's position on mandatory COVID-19 vaccines. 14 Ibid Attachment 3. 15 Ibid Attachment 4. 16 Appeal Notice filed 14 January 2022. -- 5 of 12 -- 6 [23] Ms Collins' written submissions are unclear at times, and encompass many factors that were not before the decision-makers involved in the original decision to refuse the application for exemption or the internal review decision. However, as best I understand, the core of her argument appears to be that evidence exists which supports the proposition that there are means, other than vaccination, which would sufficiently ensure the safety of Ms Collins, other staff members and patients within a hospital setting. In these circumstances, Ms Collins claims the Mother Earth religion prevents her from embracing the vaccine. [24] By way of example, Ms Collins maintains she was able to work unvaccinated from the commencement of the pandemic until 1 November 2021 without contracting or spreading COVID-19. Moreover, that the vaccination is just one of many measures that can be utilised to prevent the spread of COVID-19 within a health setting. [25] While many of the points in support of her position are arguably entangled with other concerns relating to the efficacy and safety of the vaccine, Ms Collins argues: • if she is not true to her religion then she is not true to herself and the planet; • the decision-maker did not question her religious beliefs; • the setting aside of the rights of an individual result in human rights as a whole not being upheld, leading to draconian and undemocratic values in the State of Queensland; • other measures such as hand washing, appropriate personal protective equipment, wiping surfaces and increased ventilation are capable of protecting the safety of employees; • COVID-19 is still not classified as a vaccine preventable disease and should be treated in the same way as influenza, which is not accompanied by mandatory vaccination; • the Service did not provide adequate details on ingredients of vaccines, contraindications, and the list of side effects, therefore preventing an informed decision in respect of the safety and efficacy of the COVID-19 vaccine; and • conflicting information exists in relation to the use of foetus cells being utilised in the development and production of the vaccine.17 [26] In further submissions, Ms Collins notes: ... Other genuinely held religious beliefs are – that suffering is part of life and we can only delay suffering not prevent suffering. We learn through suffering and aim to achieve balance/harmony. I am accountable for my own actions. I have a relation [sic] with Mother Earth. That I must lead a good and fulfilling life in good consciousness. Motivation to learn and develop self-awareness. 17 Ms Collins' submissions filed 11 February 2022. -- 6 of 12 -- 7 Freedom from all things without breaking from any other beliefs. All of these led me to requesting an exemption from having the COVID-19 injection.18 [27] However, the beliefs relied upon at [26] were not before the decision-makers when Ms Collins' application was considered during the initial application process or the subsequent internal review stage. The Service's Submissions [28] The Service submits that although Ms Collins' exemption application was made on the grounds of a religious belief, many of the matters raised in her appeal are better characterised as evidencing her personal preference to not receive a vaccine due to concerns about the safety and efficacy of the vaccine. [29] Moreover, it submits that these reasons do not relate to a genuinely held religious belief, nor do they demonstrate other exceptional circumstances warranting an exemption. [30] The bulk of the Service's submissions deal with the processes undertaken and the issues considered by the decision-makers when deciding Ms Collins' exemption application and the subsequent internal review.19 [31] It argues high vaccination coverage among workers in settings with the potential for exposure to COVID-19, particularly those serving in vulnerable cohorts, is a key determinant to the health outcomes for the Queensland community and health care delivery across the State. Moreover, limiting transmission within the workplace through COVID-19 vaccination will also reduce the likelihood of workplace outbreaks and staff shortages. [32] The Service further submits the nature of Ms Collins' role presents a high degree of risk to not just Ms Collins, but other hospital employees and the community with respect to COVID-19 transmission, highlighting: • the high risk nature of Ms Collins' workplace, being the Townsville University Hospital setting; • the requirement for Ms Collins to physically attend the workplace to undertake her duties; and • an increased risk of transmission in circumstances where Ms Collins is required to interact and communicate closely with a range of clinical and non-clinical employees and patients throughout the course of each day. [33] The Service maintains it was not unreasonable to refuse Ms Collins' application for an exemption after considering her submissions regarding her religious views and weighing 18 Ms Collins' submissions filed 7 March 2022, 1. 19 The Service's submissions filed 9 February 2022. -- 7 of 12 -- 8 up the public health risk of COVID-19 and the human rights of Ms Collins, her family, colleagues, and the broader community. Was the Internal Review Decision Fair and Reasonable? [34] In this appeal I am required to consider whether it was fair and reasonable for Ms Hornsby to confirm the decision to refuse Ms Collins' vaccination exemption application. [35] The principles relevant to an assessment of 'reasonableness' have been considered by the High Court on several occasions, most notably in the decision in Minister for Immigration and Citizenship v Li.20 Those principles were usefully summarised by Ryan J in Gilmour v Waddell & Ors:21 [207] The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances. [208] The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power. [209] A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it. Decision not made having regard to Ms Collins' religion [36] In her appeal grounds, Ms Collins states the decision was not made having regard to her religion. Instead, she argues the reasons provided are a scientific hypothesis that is a work in progress. [37] The exemption application form completed by Ms Collins specifically states: It is important to be aware that exemption requests will be considered in accordance with Queensland Health's obligations and that approval will only be provided in exceptional circumstances.22 [38] Further, it states that: An employee will be considered to have a genuinely held religious belief for the purposes of applying for an exemption where they are able to provide a letter specifying: • their deeply held religious belief such that they are unable to receive any COVID-19 vaccine; and • their affiliation or connection to the religious group from a religious leader or official.23 [39] Having regard to the requirements in the application form, it is clear the onus was on Ms Collins to provide evidence, relevant to her religious beliefs, that would justify an exemption approval. 20 (2013) 249 CLR 332, [63]-[76]. 21 [2019] QSC 170. 22 The Service's submissions filed 9 February 2022, Attachment 1 (my emphasis). 23 Ibid. -- 8 of 12 -- 9 [40] Although not necessarily fatal to her application and certainly not relied on by the decision-maker as a reason for refusing her application, Ms Collins was unable to satisfy the second limb of the application's evidentiary obligations whereby she was required to provide the Service with a letter from a religious leader or official confirming her connection to the 'Mother Earth' religious group. [41] Instead, she relied on written claims that her religious beliefs of 'do no harm to self and nurture mother earth (the planet)' prevented her from embracing the COVID-19 vaccine. [42] Other than some brief comments attached to the original exemption application in respect of her religious views, Ms Collins' arguments were somewhat limited in so far as they explained why her religious views prevented her from receiving a COVID-19 vaccine. [43] In her subsequent request for an internal review of Ms Kelly's decision refusing the exemption application, Ms Collins expanded on the reasons as to why she considered her religious exemption should be granted, albeit relying on concerns around the efficacy and safety of the vaccine, and in turn linking those concerns back to her stated Mother Earth obligations to protect vulnerable cohorts and reduce COVID-19 outbreaks using other measures aside from the COVID-19 vaccine.24 [44] Having regard to the materials submitted in support of the exemption application and internal review process, along with those that have been filed in this appeal, it is clear Ms Collins is opposed to the use of a mandatory vaccine to overcome safety concerns and minimise the risks associated with COVID-19 in a hospital setting. [45] Although Ms Collins refers to the Mother Earth religion in her submissions, and it is true the Service has not questioned the genuineness of her beliefs, the bulk of the arguments in support of her appeal are centred around the safety and efficacy of the vaccine, along with suggestions of other preventative measures, aside from the vaccine, that could be adopted to minimise risk of transmission. [46] In my view, many of the reasons relied on by Ms Collins in her submissions could not be characterised as relating to a genuinely held religious belief. Instead, Ms Collins' use of descriptors such as 'experimental' and 'scientific hypothesis that is a work in progress', point to an objection to the vaccine for other reasons more likely associated with vaccine hesitancy. [47] Although it is entirely open to Ms Collins to hold and express such views, the difficulty with this approach is there is no requirement on the part of Queensland Health to accept her views,25 particularly within the context of an application for an exemption where her religious views are the stated basis upon which the application has been brought. 24 The Service's submissions filed 9 February 2022, Attachment 4. 25 See, Higgins v State of Queensland (Queensland Health) [2022] QIRC 030, [56]-[57]; Tilley v State of Queensland (Queensland Health) [2022] QIRC 002, [39]-[42]. -- 9 of 12 -- 10 [48] As touched on earlier, Queensland Health, within the relevant exemption application form, stipulates that a request for an exemption on religious grounds will be considered in accordance with its obligations and that approval will only be provided in exceptional circumstances. [49] Where Ms Collins' supporting documentation did include reference to her genuinely held religious views, I am satisfied her views were adequately considered, but that in weighing up those views against the public health risk of COVID-19 and the objectives of the Directive, Queensland Health reasonably determined Ms Collins' religious beliefs, as set out in her application, did not justify the approval of an exemption. [50] This is akin to the circumstances described in Slykerman v State of Queensland (Queensland Health),26 where Dwyer IC observed: It is not the case that Ms Slykerman's religion beliefs have been cast aside without consideration or recognition. It is simply that, in these unprecedented times, difficult choices must be taken that require weighing personal beliefs and freedoms against the greater good of the community.27 [51] The competing considerations of workplace and patient safety as opposed to Ms Collins' religious beliefs, are captured in Ms Kelly's correspondence of 6 December 2021 which details the reasons for refusing Ms Collins' initial request for an exemption as follows: Reasons for decision Your individual circumstances, including your religious belief and the connection of that religious belief to the requirements under the Directive, were balanced against the purposes of the vaccination requirements. I have had regard to the intention of the Directive, specifically the requirement to ensure the readiness of the health system in responding to the COVID-19 pandemic, to protect the lives of the employees, patients and the community they serve. The Directive contemplates the high degree of risk to public health associated with work performed in healthcare settings and will ensure Queensland Health can provide a safe environment for both employees and patients. On balance, I consider that there is no less restrictive means other than vaccination which would sufficiently ensure the safety of yourself, other staff members and patients. In making this decision, I am mindful that Queensland is transitioning to an environment where COVID-19 is endemic, it is inevitable that every Queenslander will eventually be exposed to COVID-19. Safe and effective vaccines for COVID-19 that prevent severe illness and reduce transmission are now widely available and endorsed by regulatory authorities globally and including Australia's Therapeutic Goods Administration (TGA). High vaccination coverage among workers in settings with the potential for exposure to COVID-19, particularly those serving vulnerable cohorts, will be a key determinant of health outcomes for Queensland and the impact of COVID-19 on health care delivery across the State. Limiting transmission within a workplace through the protection of COVID-19 vaccination will also reduce the likelihood of workplace outbreaks and staff shortages. [52] It was Ms Kelly's role to consider the materials before her and determine whether she would recommend, on the basis of Ms Collins' religious beliefs, that Ms Collins should be exempted from the mandatory vaccine requirements. In balancing the two interests, 26 [2022] QIRC 39. 27 Ibid [32]. -- 10 of 12 -- 11 Ms Kelly has determined that vaccination is the best means to minimise the risk to Ms Collins, her work colleagues and hospital patients. [53] Ms Hornsby's written decision-letter in response to Ms Collins' request for an internal review, describes the actions taken to review Ms Kelly's decision, the documentation which was considered during the review, the reasons for the decision and the avenues of external review available to Ms Collins. [54] In the decision-letter, Ms Hornsby concluded Ms Kelly had undertaken appropriate steps and consideration in relation to Ms Collins' request to be exempted from the mandatory vaccination requirements.28 [55] Directive 11/20 – Individual employee grievances provides for the processes and procedures a Chief Executive (or their delegate) must follow when resolving an employee grievance, including a request for an internal review. Clause 9.2 requires a written decision is to be provided to an employee where an internal review is undertaken. [56] Although the reasons for decision contained within the review decision-letter could not be characterised as plentiful, I consider they were adequate. Further, despite Ms Collins' claims she was not given an opportunity to provide 'supporting evidence' during the process,29 I was unable to identify any materials filed with the Commission that could support a conclusion the process itself was anything other than fair and reasonable. [57] In the circumstances, I am satisfied adequate consideration was given to Ms Collins' religious beliefs. Likewise, although brief, the internal review decision-letter satisfies the requirements of cl 9.2. Human Rights [58] In her appeal submissions, Ms Collins argues the human rights of others within the community have been deemed more important than her individual human rights. [59] Certainly, Ms Hornsby acknowledges the review decision engages or impinges several of Ms Collins' human rights, including her right to freedom of thought, religion, belief, and her right to freedom of expression. [60] Just as it was necessary for Ms Hornsby and, before her, Ms Kelly to balance Ms Collins' religious beliefs against the competing interests of workplace and community safety, likewise I am satisfied Ms Hornsby properly considered the concerns raised by Ms Collins in respect of her human rights, satisfactorily explaining the reasons for her approach within the review decision-letter, namely: I am satisfied that those limits on human rights are justified by the need to ensure the readiness of the health system, in responding to the COVID-19 pandemic, and to protect the lives of employees, 28 The Service's submissions filed 9 February 2022, Attachment 5. 29 Ms Collins' submissions filed 11 February 2022. -- 11 of 12 -- 12 patients and the community they serve. The purpose of protecting your colleagues, and people accessing health services from the risk of COVID-19 through vaccination promotes their human rights to life and health, as well as your own. These are important considerations and should be given weight at this particular time…30 [61] Having regard to Ms Hornsby's explanation, I reject this ground of appeal. Other Issues [62] Although Ms Collins raised other issues within her submissions including the legality of the Directive and the approach taken by Japan in respect of mandatory vaccines,31 these issues fall outside the scope of this appeal in circumstances where my role is to consider whether the decision to confirm the refusal of Ms Collins' exemption application, on the basis of her deeply held religious views, was fair and reasonable. [63] For the reasons set out above, I am satisfied Ms Hornsby properly considered Ms Collins' exemption application having regard to her religious views during the internal review process. In doing this, Ms Hornsby also adequately addressed Ms Collins' concerns about the impact of the mandatory vaccination requirements on her human rights. Conclusion [64] For the reasons given, the internal review decision confirming the refusal of Ms Collins' request for an exemption from receiving the COVID-19 vaccine was fair and reasonable. [65] I confirm the internal review decision. Order [66] I make the following order: The decision appealed against is confirmed pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld). 30 The Service's submissions filed 9 February 2022, Attachment 3. 31 Appeal Notice filed 14 January 2022, Part C. -- 12 of 12 --