Fair Work Commission denies application for interim relief by health workers who failed to receive the COVID-19 vaccination

On 13 November 2021, the Fair Work Commission refused an application for interim relief in the matter of Nazih Beydoun & Ors v Northern Health & Ors [2021] FWC 6341 where the Applicants sought to restrain 5 health services from terminating the employment of various nurses and administrative workers arising out of alleged non-compliance with directions that they receive the COVID-19 vaccination.

The application for interim relief

The Applicants were a number of nurses and administrative workers employed by Monash Health, Austin Health, Barwon Health, Peninsula Health and Northern Health covered by the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 (in the case of the nurses) and the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020 (in the case of administrative workers) (the Enterprise Agreements).

They were required to receive the COVID-19 vaccination due to the Chief Health Officer's COVID-19 Mandatory Vaccination (Specified Facilities) Directions (CHO Directions), which require health services to take all reasonable steps to ensure that, on or after 15 October 2021, healthcare workers who are not vaccinated do not enter, or remain on, the operator's healthcare facility for the purpose of working at the facility.

The Applicants sought interim orders, most significantly an order preventing the Applicants' dismissal pending the resolution of their disputes so that consultation regarding the CHO Directions could take place.  In seeking interim relief, the Applicants relied on a number of clauses of the Enterprise Agreements, namely the OHS clauses, the disciplinary clauses and the status quo clauses.

Decision

Deputy President Clancy referred to the recent decision of Deputy President Saunders in Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mr Arthur Coal Pty Ltd T/A Mr Arthur Coal [2021] FWC 6309, which set out the principles to be applied in relation to applications for interim relief in the Fair Work Commission.

By analogy to the principles applied by courts to applications for interlocutory injunctive relief, the Applicants needed to establish that they had a prima facie case and that the balance of convenience favoured the grant of interim relief.¹

Having regard to the various arguments raised by the Applicants, Clancy DP was not satisfied that they had established a prima facie case.

OHS clauses

Clancy DP found that examining the operation of the OHS clauses in the Enterprise Agreements, there was no such prima facie case. The Deputy President considered that there was no arguable case that 'a requirement to receive a vaccine outside of the workplace (while not performing work) gives rise to an obligation for the Respondents to consult with their employees pursuant to clause 99.3 [the OHS consultation clause in the Nurses Agreement] and that failing such consultation, the Respondents are prevented from invoking the disciplinary procedure in clause 15 of the Nurses  Agreement'.²

Disciplinary clauses

The Applicants further argued that the direction issued by the Respondents to receive the COVID-19 vaccination was not lawful and reasonable on the basis that the CHO Directions did not supplant the obligations of the Respondents to consult under the Occupational Health and Safety Act 2004 (Vic) (OHS Act). That is, they argued that their refusal to comply with the direction was not unlawful in these circumstances).

Clancy DP noted that, although the Chief Health Officer's Workplace Directions (No 51) were said not to derogate from any obligations under the OHS Act, the CHO Directions on which the Respondents relied contained no such statement.  Further, there was no other basis on which to conclude that the Enterprise Agreements incorporated the requirements of the OHS Act, nor did a breach of the OHS Act otherwise enliven the FWC's jurisdiction.

In any event, Clancy DP noted two other features of the obligation to consult under s 35 of the OHS Act that suggested that the Applicants had no prima facie case:

• the obligation to consult only applied 'so far as is reasonably practicable', suggesting that not every possible step needed to be taken; and
• employers are required to consult in relation to risks and hazards that are 'under the employer's management and control'.  That duty does not readily apply to obligations under the CHO Directions with which the Respondents 'simply must comply'.³

Status quo clause

Finally, Clancy DP considered the operation of the status quo clause in the Enterprise Agreements, which provides (similarly to many other enterprise agreements in the Victorian public health sector) that 'work will continue normally according to the usual practice that existed before the dispute, until the dispute is resolved'.  Clancy DP was not persuaded that that clause required the Respondents to maintain 'the entire state of affairs', as opposed to the performance of work, that existed prior to the notification of the dispute.

Balance of convenience

It was then necessary for Clancy DP to consider whether the balance of convenience favoured the grant of interim relief.

A key consideration was that the interim orders that the Applicants sought would 'effectively require the Respondents to continue to employ unvaccinated persons whom they are required by law to prevent performing work on their premises' and that 'this potential inability to assign unvaccinated persons either their usual or any useful work for the foreseeable future produces a potential financial detriment for the Respondents that would appear to be irrecoverable'.⁴  By contrast, the financial impact on the Applicants from the termination of their employment could be compensated by orders for reinstatement and/or compensation.

Federal Court refused to restrain Monash Health from taking disciplinary action against nurses

The Fair Work Commission's decision follows the decision of the Federal Court on 3 November 2021 in QNurses First Inc v Monash Health [2021] FCA 1372.  In that case, Snaden J dismissed an application by QNurses First Inc for interlocutory relief in the form of an injunction to stop Monash Health from taking disciplinary action against nurses who refused a direction to receive the COVID-19 vaccination.

In that case, the Applicant alleged that Monash Health intended to take adverse action against the relevant employees because the employees had or exercised a right to be consulted in relation to the CHO Directions pursuant to s 35 of the OHS Act.  While the balance of convenience was 'relatively finely poised', Snaden J found the Applicant's case to be 'very weak' and dismissed the application.⁵

Contact our team

Please get in touch with the Victorian Government Solicitor's Workplace Relations and Occupational Safety Team if you need assistance regarding mandatory vaccination matters concerning the Victorian Public Sector.

Frances Anderson
Assistant Victorian Government Solicitor,
Workplace Relations and Occupational Health and Safety Branch
Email: frances.anderson@vgso.vic.gov.au

¹ Nazih Beydoun & Ors v Northern Health & Ors [2021] FWC 6341, [15].
² Ibid [18].
³ Ibid [21].
⁴ Ibid [28].
⁵ QNurses First Inc v Monash Health [2021] FCA 1372, [41]-[42].