Construction, Forestry Mining & Energy, Industrial Union of Employees & Anor v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 134

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Construction, Forestry Mining & Energy, Industrial Union of Employees & Anor v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 134 PARTIES: Construction, Forestry Mining & Energy, Industrial Union of Employees & Electrical Trades Union of Employees Queensland (Applicant) v State of Queensland (Department of Transport and Main Roads) (Respondent) CASE NO: D/2022/26, D/2022/27 PROCEEDING: Interlocutory hearing DELIVERED ON: 8 April 2022 HEARING DATE: 7 April 2022 MEMBER: HEARD AT: O'Connor VP Brisbane ORDER: 1. The application is dismissed 2. The matter be listed for mention to programme the substantive hearing at 9:15am on 12 April 2022. -- 1 of 17 -- 2 CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – INTERLOCUTORY APPLICATION – INJUNCTIVE RELIEF – where Applicants seek an injunction to prevent implementation of vaccine mandate in department – where Applicants seeks the mandate be stayed – where Applicants seeks stay pending outcome of further hearing – whether injunction should be granted – whether test in ABC v O'Neill is satisfied – whether balance of convenience favours granting of injunction – whether there exists a prima facie case LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 262, s 473 Public Service Act 2008 (Qld) s 11, s 98 Work Health and Safety Act 2011 (Qld) s 19, s 27 Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356 CFMEU v BHP Coal Pty Ltd [2016] FCA 109 CFMEU v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088 Dalley & Ors v Kelsey & Ors [2018] ICQ 6 Electrical Trades Union of Employees Queensland v Brisbane City Council [2017] QIRC 90 Morgan v Queensland (Queensland Health) [2020] QIRC 184 -- 2 of 17 -- 3 R v Darling Island Stevedoring and Lighterage Co Ltd; ex parte Halliday and Sullivan (1948) 60 CLR 601 Samsung Electronics Company Ltd v Apple Inc and Another (2011) 217 FCR 238 APPEARANCES: Ms L Doust of counsel Instructed by Hall Payne for the Applicants. JE Murdoch of Queen's counsel, with him Mr T Spence instructed by Crown Law for the Respondent. Reasons for Decision [1] On 23 February 2022, the Applicant Unions notified the Commission pursuant to s 261 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), of the existence of an industrial dispute as between it and the Respondent. [2] In short, the dispute arises out of the issuing and implementation of the Department of Transport and Main Roads (TMR) Covid-19 vaccination requirements – Whole of Department (WOD) mandatory vaccination policy issued on 21 February 2022 pursuant to the Public Service Act 2008 (Qld) ('the PSA Act'). [3] Following an unsuccessful conciliation of the dispute, on 11 March 2022 Knight IC issued directions requiring the parties to confer and propose two questions to be determined by the Commission. [4] On 18 March 2022 Knight IC recommended that the matter be referred to arbitration pursuant to s 262(3) of the Industrial Relations Act 2016 (Qld). [5] On 22 March 2022 the parties proposed the following two questions for arbitration: 1. a. Did the Department of Transport and Main Roads (TMR) fail to comply with clause 3.2 of the Transport and Main Roads Operational Employee’s Certified Agreement 2019 (BC/2020/68), by reason of the Director-General of TMR issuing the vaccination policy on 21 February 2022? b. If so, is the vaccination policy issued on 21 February 2022 by the Director- General of TMR unlawful and/or unreasonable, insofar as it applies to operational employees of TMR, by reason of that non-compliance? 2. -- 3 of 17 -- 4 a. Did TMR fail to comply with; i. s.26A of the Work Health and Safety Act 2011 by failing to comply with; A. the How to manage work health and safety risks Code of Practice 2021 in relation to consultation and assessing risk, specifically clause 3. Step 2 – How to assess risk, clause 4. Step 3 – How to control risk and clause 5. Step 4 – How to review controls, B. Work health and safety consultation, cooperation and coordination Code of Practice 2021, specifically clause 2, 5 and 6; or ii. Part 5 Division 2 of the Work Health and Safety Act 2011 in failing their duty to properly consult with other duty holders as per s. 46, failing their duty to properly consul with workers in accordance with s. 47, including the identification of at risk groups and appropriate control measures, s.48 failing to consult with health and safety representatives and s. 49 failing to identify when consultation is required; or iii. chapter 3, part 3.1 of the Work Health and Safety Regulation 2011 not complied with at s.34 by failing to adequately identify ‘at risk’ groups, s.35 by failing to manage risks by eliminating risks to health and safety and/or minimising risks so far as reasonably practicable by failing to identify Rapid Antigen Tests (“RATs) as a significant control measure, s.36 by failing to properly apply the Hierarchy of Control Measures, including the provision of RATs and s.38 by failing to review control measures in accordance with s. 38 by failing to review RATs as a control measure once the point in time shortage of RATs had eased, by reason of the Director-General of TMR issuing the vaccination policy on 21 February 2022? b. If so, is the vaccination policy issued on 21 February 2022 by the Director-General of TMR unlawful and/or unreasonable, insofar as it applies to operational employees of TMR, by reason of that non-compliance? [6] On 23 March 2022 the Applicants filed an application in existing proceedings seeking the following orders: 1. An interim order, pursuant to s.262(4)(b) of the Industrial Relations Act 2016 (Qld) (the Act) that the Respondent be restrained, whether by itself or by its servants or agents, until the hearing and determination of this matter or until further order, from: a. taking any further steps to implement the policy entitled “TMR COVID- 19 vaccination requirements – Whole of Department (WOD)”; and -- 4 of 17 -- 5 b. taking disciplinary action against any employee for failing to comply with the policy entitled “TMR COVID-19 vaccination requirements – Whole of Department (WOD)”. 2. In the alternative, an interim injunction, pursuant to s.262(4)(c) and s.473 of the Industrial Relations Act 2016 (Qld) (the Act) that the Respondent be restrained, whether by itself or by its servants or agents, until the hearing and determination of this matter or until further order, from: a. taking any further steps to implement the policy entitled “TMR COVID- 19 vaccination requirements – Whole of Department (WOD)”; and b. taking disciplinary action against any employee for failing to comply with the policy entitled “TMR COVID-19 vaccination requirements – Whole of Department (WOD)”. 3. Such further or other orders as the Commission thinks appropriate. [7] The Applicants allege that the Respondent has not complied with its consultation obligations under clause 3.4(e)(iv) of the Agreement, and that the vaccination mandate introduced by the policy is not a lawful and reasonable direction. [8] Clause 3.4(e)(iv) of the Agreement, which relevantly provides as follows: Where TMR proposes to introduce changes within the scope of this Agreement and which are likely to have a significant effect on employees, TMR will notify both affected employees and their respective industrial organisations of employees either prior to any action being taken or at the earliest possible opportunity. TMR will discuss with employees and their industrial organisations of employees the introduction of change and measures to avoid or minimise any adverse consequences. Further, consideration will be given to issues raised by employees and their industrial organisations of employees in relation to these changes. [9] The Disputes Avoidance and Settlement Procedure at Clause 3.2 of the Agreement provides as follows: 3.2 Disputes Avoidance and Settlement Procedures The objective of this procedure is the avoidance and resolution of any disputes over matters covered by this Agreement by measures based on the provision of information and explanation, consultation, co-operation, and negotiation. Subject to legislation, while the dispute procedure is being followed, normal work is to continue except in the case of genuine safety issues. The status quo existing immediately before the change which gave rise to the dispute is to continue whilst the procedure is being followed. No party shall be prejudiced as to the final settlement by the continuation of work. There is a requirement for management to provide relevant information and explanation and to consult with the appropriate employee representatives. In the event of any disagreement between the parties as to the interpretation or implementation of this Agreement, the following procedures shall apply: -- 5 of 17 -- 6 (a) The matter is to be discussed between the employee(s) nominated representative or the relevant industrial organisation of employees, and/or the employee(s) concerned, where appropriate, and the immediate supervisor in the first instance. The discussion shall take place within twenty four hours and the procedure shall not extend beyond seven days. (b) If the matter is not resolved as per provision (a) herein, it shall be referred by the employee representative or the industrial organisation of employees to the appropriate management representative who shall arrange a conference of the parties to discuss the matter. This process shall not extend beyond seven days. (c) If the matter remains unresolved, it shall be referred to the employee and/or their nominee and the Director- General of TMR and/or their nominee for discussion and appropriate action. This process shall not exceed fourteen days. (d) If the matter is not resolved, then it may be referred by either party to the Queensland Industrial Relations Commission for conciliation or, if necessary, arbitration. In terms of the Industrial Relations Act 2016 or successor Act, the Commission is empowered by this Agreement to settle and determine any matters in dispute. Nothing in this procedure shall prevent the SBU from taking any action considered conducive to resolving the matters in dispute. Relevant Statutory Provisions [10] The power of the Commission to make interim or interlocutory orders, grant injunctions, including interim injunctions is expressed in ss 262 and 473 of the IR Act. [11] The relevant provisions of ss 262(4)(b) and (c) are set out below: 262 Action on Industrial Dispute … (4) Without limiting subsection (3), the commission may do 1 or more of the following— (b) make orders, or give directions, of an interlocutory nature; (c) exercise the commission’s powers under section 473 (whether or not application under that section has been made) to grant an interim injunction; … [12] Section 473 of the IR Act provides as follows: 473 Power to grant injunctions (1) On application by a person under section 474, the commission may grant an injunction— (a) to compel compliance with an industrial instrument, a permit or this Act; or (b) to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act. … -- 6 of 17 -- 7 (10) In this section— “injunction” includes an interim injunction. … [13] Section 11 of the PSA provides the following: 11 RELATIONSHIP BETWEEN CHIEF EXECUTIVES AND THEIR PUBLIC SERVICE EMPLOYEES (1) The chief executive of a department is, for the State, responsible for the employment of public service employees of that department. (2) The public service employees of a department are responsible to that department’s chief executive in relation to their employment in that department. Note— For particular provisions about a chief executive’s functions, see chapter 4 , part 1 , division 3 . … 23. Section 98 of the PSA is in Chapter 4 “Chief Executives, Senior Executives And Senior Officers”, Part 1 “Chief Executives”, DIVISION 3 “Functions”. Section 98 is set out below: 98 RESPONSIBILITIES (1) A chief executive is responsible for all of the following matters in relation to the chief executive’s department— (a) establishing and implementing goals and objectives in accordance with Government policies and priorities; (b) managing the department in a way that promotes the effective, efficient and appropriate management of public resources; (c) the following for departmental employees— (i) their numbers; (ii) classification levels; (iii) designation of roles; (d) planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under this Act; (e) adopting management practices that are responsive to Government policies and priorities; (f) promoting continual evaluation and improvement of the appropriateness, effectiveness and efficiency of departmental management; (g) implementing policies and practices about access and equity to ensure maximum access by members of the community to Government programs and to appropriate avenues for review; (h) ensuring compliance with the equality of employment opportunity obligations under chapter 2; (i) ensuring maintenance of proper standards in the creation, keeping and management of public records. Examples of chief executive responsibilities for departmental employees— • recruitment and selection • performance appraisal, training and development • discipline and termination of employment • working conditions and industrial issues -- 7 of 17 -- 8 • ensuring fair treatment … Section 19 of the WHS Act sets out the Respondent’s non-transferable duties (see s 14 of the WHS Act) to ensure, so far as reasonably practicable, the health and safety of (a)workers engaged, or caused to be engaged by the person; and (b)workers whose activities in carrying out work are influenced or directed by the person, while the workers are performing work for TMR. [14] Section 27 of the WHS Act 'Duties of Officers' says, inter alia, the following: (1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation. … Principles to be applied [15] The principles relevant to an application for interlocutory injunctive relief are not in dispute. [16] In Dalley & Ors v Kelsey & Ors,1 in considering the principles that apply to an application for an interim injunction pursuant to the IR Act, Martin J wrote: [27] The test to be applied when considering whether to grant an interlocutory injunction is prescribed in ABC v O’Neill where Gummow and Hayne JJ said: [65] The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.’ By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.’” (citations omitted)2 1 [2018] ICQ 6. 2 Ibid [27]. -- 8 of 17 -- 9 [17] In an interlocutory application of this nature, having regard to the facts, the Commission is required to consider: (a) whether there exists a prima facie case; in the sense that, if the evidence remains as it is, there is a probability that, at the trial of the action, the applicant will be held entitled to relief. It is to be recalled that the test does not require that the Court reach a determination that it will be more probable than not that the applicant for an injunction will succeed at trial but merely that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo; and (b) whether the inconvenience or injury that an applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury that the Respondent will suffer if an injunction were granted.3 [18] In Morgan v Queensland (Queensland Health),4 Merrell DP said this about the power to grant an interim injunction under s 473 of the IR Act: [17] The power in s 473 includes the power to grant an interim injunction. There is no definition of the phrase "interim injunction" given in the dictionary of the Act. Generally, an interlocutory injunction is usually expressed to lasts until the final hearing or further order whereas an interim injunction last until a named date or further order. However, having regard to the context in which the phrase "interim injunction" is used in s 473(10) of the Act, it does not seem to me that the granting of an injunction on the basis that it is not final is limited to orders of the kind traditionally made as interim injunctions. It seems to me to be open to grant an injunction under s 473(1), until the final hearing of a substantive application, to compel compliance with an industrial instrument, a permit or the Act or to restrain or prevent a contravention, or continuation of a contravention, of an industrial instrument, a permit or this Act. Prima Facie Case [19] It cannot be disputed that the Director-General is vested with the authority and obligations as expressed in the PSA and WHS Act5 to give the directive to TMR employees in accordance with the vaccination policy. As was observed by the Full Bench in Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors 6 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 .7 [20] Central to the Applicants' case is the contention that the Respondent has failed to: 3 Electrical Trades Union of Employees Queensland v Brisbane City Council [2017] QIRC 90. 4 [2020] QIRC 184. 5 Public Service Act 2008 (Qld) ss 11, 98; Work Health and Safety Act 2011 (Qld) ss 19, 27. 6 [2021] QIRC 354 [64]. 7 R v Darling Island Stevedoring and Lighterage Co Ltd; ex parte Halliday and Sullivan (1948) 60 CLR 601, 621-2 . -- 9 of 17 -- 10 (a) undertake a proper assessment of risk; (b) discuss measures to avoid or minimise any adverse consequences; and (c) give consideration to issues raised by employees and their industrial organisations. [21] The Applicants maintain that each of the relevant employees and the Applicant Unions were entitled to be consulted in advance about the Vaccination Direction and, therefore, the Respondent has failed to comply with its consultation obligations under clause 3.4(e)(iv) of the Certified Agreement. [22] Further, by reason of the notification of the dispute under s 262 of the IR Act the Applicants rely on clause 3.2 of the certified agreement to assert that the status quo ought to be maintained pending the hearing and determination of the arbitration. [23] Clause 3.2 of the Certified Agreement requires that, 'The objective of this procedure is the avoidance and resolution of any disputes over matters covered by this Agreement by measures based on the provision of information and explanation, consultation, co- operation, and negotiation.' [24] As set out above, the clear objective of clause 3.2 is expressed to be the avoidance and resolution of any disputes over matters covered by this Agreement. On the material before the Commission, it remains unclear to me how it is asserted that this is a '... dispute(s) over matters covered by this agreement.' [25] The further argument advanced by the Applicants is a reliance on clause 3.4(e)(iv) of the Certified Agreement. It is asserted that the vaccination mandate introduced by the by the WOD policy by the Director-General was not a lawful or reasonable direction. [26] The relevant consultation obligations under clause 3.4(e)(iv) are enlivened in circumstances where it can be established that the changes TMR propose to introduce are within the scope of the certified agreement. [27] The words 'matters covered by the agreement' in clause 3.2 and 'introduce changes within the scope of this agreement' in clause 3.4(e)(iv) are directed towards matters agreed to between the negotiating parties to the Certified Agreement. [28] Even if it was the case that the Certified Agreement required that TMR consult with employees or the Applicant unions prior to the implementation of the WOD policy, the evidence before me does not establish in my view that the consultation was, inadequate or as asserted by the Applicants, not genuine. -- 10 of 17 -- 11 [29] The meaning of consultation has been judicially considered.8 In CFMEU v BHP Coal Pty Ltd,9 Logan J articulates: While cl 47 of the Enterprise Agreement, set out above, gives “Consult” or “Consultation” a particular meaning for the purposes of that agreement, that meaning is not, in my view, at variance with a meaning which one might have given those words in any event, having regard to prior authority. I had occasion to consider that meaning in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (2010) 198 IR 382 in which, at 395, [44] - [45], I observed: 44 … A key element of that content is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto. 45 To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation”. … [30] In the affidavit of Scott Reichman affirmed on 23 March 2022 he deposes that: Between mid January and mid February 2022 TMR conducted a process of consultation with the ETUQ and others about the draft policy. One of the ETUQ's primary contentions in this proceeding is that TMR has not complied with its consultation obligations. In short, the ETUQ says that TMR has failed to adequately consult and, as a result, the vaccine mandate is not a lawful and reasonable direction.10 [31] Whilst the affidavit of Mr Reichman recognises that consultation was undertaken between mid-January to mid-February 2020, he does not identify in what respects it is asserted that TMR has failed its consultation obligations. [32] Notwithstanding the above matters, the evidence suggests that there has been extensive consultation both on a direct employee basis and through the individual unions who have coverage. 8 CFMEU v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088 (8 October 2015) (Murphy J); CFMEU v BHP Coal Pty Ltd (2016) FCA 1009 (26 August 2016) (Logan J). 9 (2016) FCA 1009 (26 August 2016). 10 Affidavit of Scott Reichman affirmed 23 March 2022, [8]. -- 11 of 17 -- 12 [33] I do not propose to rehearse what is already set out in the affidavit of Adrian Langford,11 it is sufficient to say that he deposes to a series of consultations involving TMR and both individual employees and unions. [34] Mr Langford further deposes12 that an assessment of risk arising from the TMR workforce was undertaken. He states: TMR completed a risk assessment on 9 February 2022, which outlines how TMR employees are at risk of contracting and spreading COVID-19 in the workplace, including TMR employees who are required to travel to remote or discrete indigenous communities, as well as TMR employees who interact or are likely to interact with customers, visitors, other employees or the public in the normal course of employment. Annexed and marked AL-1 is a copy of the TMR COVID-19 Vaccination Risk Assessment. [35] In the affidavit of Mr Vodden, he deposes that he is a member of the CFMEUQ and was 'disappointed' by the consultation undertaken by TMR. Whilst Mr Vodden acknowledges that there was consultation, he says that he was either too late to participate in the consultation (via the online survey) or that he did not receive the correspondence from TMR. [36] In the further affidavit of Adrian Langford filed on 6 April 2022, it is deposed that Mr Vodden has a TMR email address. The direct consultation with employees was sent to all TMR employees email address, including the email address of Mr Vodden.13 Further, the reminder letter was delivered on 25 March 2022 to the postal address recorded in TMR's employee data management system.14 [37] In Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors, 15 the Full Bench dealt with what was required under the WHS Act to fulfill the consultation obligations; [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”. [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. [125] In Slivak v Lurgi (Australia) Pty Ltd, Gaudron J described the notion of “reasonably practicable”, in the context of fulfilment of a safety obligation, as follows: “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 11 Affidavit of Adrian Langford at [23]-[48]; Exhibit AL-17 – AL-27. 12 Affidavit of Adrian Langford affirmed 29 March 2022, [5]. 13 Further Affidavit of Adrian Langford affirmed 6 April 2022, [6] – [7]. 14 Ibid [9], Exhibit AL-32. 15 [2021] QIRC 356 [64]. -- 12 of 17 -- 13 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.’” [126] In Baiada Poultry Pty Ltd v The Queen, the High Court adopted a similar approach concluding: “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. [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. [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. 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. [38] What was asserted by the Applicants was that the consultation undertaken by TMR was not genuine. However, no evidence was advanced to support the assertion. -- 13 of 17 -- 14 [39] The Respondent argues that the dispute does not relate to an alleged contravention of an industrial instrument or the IR Act. Therefore, ss 262(4)(c) and 473 of the IR Act are inapplicable in the circumstances of this case. [40] On the material before the Commission, it has not been established that there has been a breach of the Certified Agreement or the Act. [41] For the foregoing reasons, I accept the submission of the Respondent that the dispute notified by the Applicants cannot be properly characterised as one relating to a 'matter covered by the agreement' as contemplated in clause 3.2 of the Certified Agreement nor does clause 3.4(e)(iv) have relevant application as the WOD policy is not, on the face of the material currently before the Commission, 'within the scope of this agreement'. As such, there is no serious question to be tried or a prima facie case established. [42] The absence of a clear factual basis for the alleged contraventions leads me to a conclusion that the Applicants have failed to make out a prima facie case. Balance of Convenience [43] The Respondent submits that the injury which the Applicants allege they will suffer if an interlocutory order is refused is outweighed by the injury which TMR would suffer if an injunction was to be granted. [44] The prejudice to TMR if injunctive relief were granted at this juncture is, in my view straightforward. The granting of an injunction would prevent TMR from implementing the 'TMR COVID-19 vaccination requirements – Whole of Department (WOD)' policy. [45] The basis upon which the WOD policy was implemented is succinctly expressed at clause 1.5 of the Policy, 'Vaccination of employees in high-risk groups will ensure a healthy and safe workplace is maintained, vulnerable users of government services are protected, and ensure the Queensland community are able to rely on government services not being disrupted'.16 [46] In the affidavit of Mr Kane Lowth17 and Scott Reichman18 it is deposed that injunctive relief is sought to preserve the employment of 14 members of the CFMEQ and 40 members of the ETUQ who do not wish to comply with the vaccination policy prior to the matter being heard and determined. [47] There is a dearth of evidence before the Commission to demonstrate how any particular worker will be prejudiced should the relief sought not be granted. The only evidence comes from Mr Vodden. He says he supports the CFMEUQ's dispute with TMR. At the 16 Exhibit AL-2 to the Affidavit of Adrian Langford sworn 29 March 2022. 17 Affidavit of Kane Lowth affirmed 23 March 2022. 18 Affidavit of Scott Reichman affirmed 24 March 2022. -- 14 of 17 -- 15 highest, he deposes that he had a conversation with a TMR Project Manager who outlined the consequences that might flow from a failure to get vaccinated in accordance with the WOD policy, although Mr Vodden's own vaccination status is unknown. [48] The Respondent properly recognised in their submissions the interests of employees represented by the Applicants, nevertheless TMR continues to have overriding obligations for the balance of its workforce, some 9500 employees. [49] It is not in dispute that TMR as a PCBU has a primary duty to ensure the health and safety of workers while they are at work in the business or undertaking and others who may be affected by the carrying out of work. Moreover, an officer of a PCBU has a duty to exercise due diligence to ensure a business or undertaking complies with their duties under the WHS Act. An officer of a PCBU can be prosecuted for failing to exercise due diligence. [50] Ms Doust submitted on behalf of the Applicants that the maintenance of the status quo will assist in the settlement of the underlying dispute and ensure that the substantive dispute is speedily resolved. It was submitted inter alia that the maintenance of the status quo will allow the parties to focus on the preparation for the hearing; avoiding multiple applications, including urgent interlocutory applications with claims for relief dealing with the disparate circumstances of individual employees.19 [51] Those submissions may have resonated more strongly had there been presented a solid basis upon which the discretion in s 262 and s 473 of the IR Act could have been exercised. That is not the case. [52] The prompt resolution of the dispute can be best affected by an early hearing and determination of the two questions before the Commission. [53] In my view, the injury which the Applicants assert will be suffered by them is outweighed by the injury that would be suffered by TMR should the interlocutory relief be granted. [54] A consideration of the balance of convenience cannot be considered in isolation from whether the Applicants have made out a prima facie case. As was observed in Samsung Electronics Company Ltd v Apple Inc and Another,20 (‘Samsung’), Dowsett, Foster and Yates JJ said the following (at [67]): 67. As Sundberg J observed in Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (2009) 81 IPR 339 at [15], when considering whether to grant an interlocutory injunction, the issue of whether the plaintiff has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The question of whether there is a serious question or a prima facie case should not be 19 Submissions of the Applicants filed 4 April 2022, [25] – [27]. 20 (2011) 217 FCR 238. -- 15 of 17 -- 16 considered in isolation from the balance of convenience. The apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance: Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at [416] per Burchett J; Aktiebolaget Hassle v Biochemie Australia Pty Ltd (2003) 57 IPR 1 at [31] per Sackville J; Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325 at [18] per Stone J; and Castlemaine Tooheys at 154 per Mason ACJ [55] In my view the balance of convenience favours the refusal of the relief sought. Conclusion [56] It is submitted by the Respondent that while the Commission’s powers under s 262(4)(b) of the IR Act to grant orders of an interlocutory nature are available in the period leading up to the Commission’s hearing and determination of the dispute, the Applicants case should fail because: a. If the evidence remains as it is, there is no probability that at the hearing of the dispute, the Applicants will be held entitled to the relief; and b. The inconvenience or the injury which the Applicants allege they will suffer if an interlocutory order is refused, is outweighed by the injury which TMR would suffer if an injunction is granted. [57] I am of the view that the Applicants have not made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the hearing of the matter the Applicant will be held entitled to relief. [58] It is well accepted that the power to grant relief under s262 and 473 of the IR Act is a discretionary power, but that it is a power that must be exercised judicially. The principles discussed above guide the exercise of the discretion, avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power. [59] I am also mindful of the power to grant an injunction is an exceptional and extraordinary remedy and does not arise until it is demonstrated that the party against whom the relief is sought is not complying with an industrial instrument or a permit or the Act. [60] In considering whether to grant the relief sought, I am also cognisant of the fact that the test does not require that the Commission to reach a determination that it will be more probable than not that the applicant for an injunction will succeed at the hearing but merely that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo. Equally, it must be assessed as to whether the inconvenience or injury that an Applicant would be likely to suffer if the relief were refused outweighs or is outweighed by the injury that the Respondent will suffer if the relief were granted. -- 16 of 17 -- 17 [61] On the current state of the evidence before the Commission, I am of the view that the discretion in s 262 and s 473 of the IR Act has not been enlivened. [62] It follows therefore that the application should be dismissed. Orders 1. The application is dismissed 2. The matter be listed for mention to programme the substantive hearing at 9:15am on 12 April 2022. -- 17 of 17 --