Federal Court of Australia QNurses First Inc v Monash Health [2021] FCA 1372 File number: VID 610 of 2021 Judgment of: SNADEN J Date of judgment: 3 November 2021 Date of publication of reasons: 5 November 2021 Catchwords: INDUSTRIAL LAW – interlocutory injunction – direction of the Victorian Chief Health Officer requiring that healthcare workers be vaccinated against COVID-19 – employer gave a direction to all employees effecting vaccination requirement – certain employees unable or unwilling to meet vaccination requirement – certain employees requested consultation about vaccination requirement and alleged that no such consultation occurred – those employees subject to, or to be subject to, disciplinary action – disciplinary action alleged to be taken due to employees' request for consultation – right to consultation under s 35 of Occupational Health and Safety Act 2004 (Vic) asserted to be a workplace right – alleged contravention or proposed contravention of s 340 of the Fair Work Act 2009 (Cth) PRACTICE AND PROCEDURE – application for interlocutory injunction – whether prima facie case that respondent has contravened s 340(1) of the Fair Work Act – whether balance of convenience favours the grant of injunctive relief – application for interlocutory relief dismissed Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 360, 361, 570 Federal Court of Australia Act 1976 (Cth) s 23 Associations Incorporation Act 1981 (Qld) Health Services Act 1988 (Vic) Occupational Health and Safety Act 2004 (Vic) Public Health and Wellbeing Act 2008 (Vic) ss 198, 199, 200 Cases cited: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers' Union (AMWU) & Anor v McCain Foods (Aust) Pty Ltd [2012] FCA 1126 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Blackadder v Ramsey (2005) 221 CLR 539 Bullock v FFTSA (1985) 5 FCR 464 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd (2009) 184 IR 333 Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238 Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 43 Date of hearing: 3 November 2021 Counsel for the Applicants: Mr N Ferrett QC with Ms M Forrest Solicitor for the Applicants: FWEL Pty Ltd t/a Worker Law Counsel for the Respondent: Mr C O'Grady QC with Mr M Follett and Mr MP Garozzo Solicitor for the Respondent: Victorian Government Solicitor's Office ORDERS VID 610 of 2021 BETWEEN: QNURSES FIRST INC First Applicant ANGELA KALLISTA Second Applicant AND: MONASH HEALTH Respondent order made by: SNADEN J DATE OF ORDER: 3 NOVEMBER 2021 THE COURT ORDERS THAT: 1. The applicants' application for interlocutory relief contained in the originating application of 28 October 2021 be dismissed. 2. The costs of and pertaining to that application be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SNADEN J: 1 The first applicant ("QNurses") is an association incorporated pursuant to the Associations Incorporation Act 1981 (Qld). Its objects include the representation of its members, some (and perhaps all) of whom are employed as nurses. The second applicant is one of its members. She is employed as a nurse by the respondent, Monash Health. 2 By an originating application dated 28 October 2021, the applicants move the court for various species of relief. Of present relevance, they seek urgent interlocutory injunctive relief to restrain Monash Health from giving effect to certain disciplinary processes that have been, or will imminently be, initiated against the second respondent and others whom QNurses represents (or purports to represent). There are 18 such employees (to whom I shall refer, hereafter, as the "Relevant Employees"). 3 The particulars of the disciplinary processes just referred to will shortly be the subject of further exploration; but, in summary, they relate to directions issued recently by the Chief Health Officer of Victoria (hereafter, the "CHO") requiring that nurses (amongst others) be vaccinated against what has come to be known as the COVID-19 virus. Each of the second respondent and the other Relevant Employees is, at present, unable or unwilling to meet that requirement. 4 The applicants allege that the disciplinary processes just mentioned are to be visited against the second respondent and the other Relevant Employees for reasons that are proscribed by s 340(1) of the Fair Work Act 2009 (Cth) (the "FW Act"). In particular, it is alleged that Monash Health intends to take action against those employees because, or for reasons that include that, they possess or have sought to exercise certain statutory rights of consultation; or, perhaps, in order to prevent them from exercising such a right. 5 The application for urgent relief first came before a duty judge of the court on Friday, 22 October 2021 (before the originating application was filed). That hearing was adjourned until Monday, 1 November 2021; and then again to Wednesday, 3 November 2021. At the hearing, the applicants read affidavits affirmed on 22 October 2021, 28 October 2021, and 2 November 2021 by Mr Miles Heffernan, an industrial advocate and a director of FWEL Pty Ltd, which is an incorporated legal practice. The respondent read an affidavit affirmed on 1 November 2021 by its Chief Executive Officer, Mr Andrew Stripp. Both sides filed helpful written submissions. 6 At the conclusion of the hearing, the application for interlocutory relief was dismissed. Brief oral reasons were given, which the court undertook to perfect in the form of more expansive, written reasons. These are those reasons. Background 7 Monash Health is an entity established pursuant to the Health Services Act 1988 (Vic). It operates various public health services throughout Victoria, in connection with which it engages a large number of nursing employees. 8 On 16 March 2020, the Victorian Minister for Health declared pursuant to s 198(1) of the Public Health and Wellbeing Act 2008 (Vic) that Victoria had entered a state of emergency. That declaration—issued in consequence of the COVID-19 pandemic—has been extended on numerous occasions pursuant to s 198(7) of that act. As at the date of these reasons, it remains in force until 11:59pm on 18 November 2021, at which point it (or some facsimile of it) is likely to extend yet further. 9 Pursuant to that declaration, the CHO is empowered pursuant to ss 199 and 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic) to issue public health directions, the effect of which are binding upon persons throughout Victoria. One such direction—entitled the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 4)—came into effect at 11:59pm on 1 October 2021. Amongst other things, it required (subject to exemptions that needn't be identified) that: (1) as soon as reasonably practicable after 1 October 2021, each healthcare operator in Victoria (including Monash Health) collect, record and hold COVID-19 vaccination information about the healthcare workers (such as nurses) that it engages to work on its premises; (2) healthcare operators in Victoria treat healthcare workers in respect of whom no such vaccination information is held as though they are unvaccinated; and (3) each healthcare operator in Victoria take all reasonable steps to ensure that, on or after 15 October 2021, healthcare workers that are not vaccinated against COVID-19 are not put to work at its premises. 10 That direction has since been refined—most recently in the form of the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 10)—but the obligations outlined above have remained (and currently remain) to those same effects. 11 Since the CHO's direction was issued, Monash Health has taken various steps to inform its employees—including its nurses—of the steps that it intends to take in order to comply with it. On 5 October, it hosted an "online employee forum" during which it informed those present about the direction and its consequences (including that healthcare workers were required to be vaccinated by the identified deadline, after which they would not be able to continue working at Monash Health). 12 On 11 October 2021, those sentiments were repeated in a more formal setting. Monash Health sent email correspondence to all of its employees which contained the following relevant passages (errors and emphasis original): … Monash Health is now providing all employees with a lawful and reasonable direction (the Requirements) to ensure they are able to enter and remain on the premises of Monash Health for the purposes of working at Monash Health when required to do so on or after 15 October 2021. The requirements are: By 15 October 2021, all employees must be able to provide evidence they have: Received at least their first dose of a COVID-19 vaccination; or An appointment to receive at least their first dose by 29 October 2021; By 30 October 2021, all employees must be able to provide evidence they have: Received two doses of a COVID-19 vaccination; One COVID-19 vaccination and a booking for a second by 15 December 2021; By 16 December 2021, all employees at Monash Health must be able to provide evidence they have received two doses of a COVID-19 vaccination. … If you decide not to meet any of the Requirements, then you will have failed to comply with this lawful and reasonable direction. You will not be able to continue working in Monash Health from 15 October 2021 (inclusive), because the Acting CHO Directions will prevent you from being permitted to enter Monash Health's premises for work whenever your work requires you to do so. Consequentially, you will be suspended on full pay, and a disciplinary procedure will commence, which may lead to the termination of your employment. 13 It is apparent, then, that by its written communication of 11 October 2021, Monash Health issued to its employees—including those to whom the present application relates—a direction that they be vaccinated against the COVID-19 virus and that they provide to their employer proof of their status as such. 14 According to Monash Health, several dozen of its employees—including the second applicant and the other Relevant Employees—are alleged not to have complied with that direction. True to its word, Monash Health has commenced disciplinary processes against them. On or about 14 October 2021, it sent to those employees a letter charging them with having failed to comply with a lawful and reasonable direction (namely, the direction summarised in the preceding paragraph—hereafter, the "Vaccination Direction"). They were notified that they would be suspended on full pay "pending an investigation". 15 On 15 October 2021, most of the Relevant Employees wrote to Monash Health in substantially (if not actually) the same terms. By that correspondence, the employees asserted a right to be consulted about Monash Health's Vaccination Direction. That right was said to be conferred by s 35 of the Occupational Health and Safety Act 2004 (Vic). 16 During the following week, Monash Health wrote to those of its employees who had failed to furnish the evidence that it required pursuant to the Vaccination Direction. By that correspondence (which, in each case, assumed largely the same form), those employees were informed of Monash Health's conclusion that they had failed to comply with a lawful and reasonable direction; and had, thereby, engaged in serious misconduct in breach of the terms of their employment. It indicated that Monash Health intended to subject them to disciplinary action, the form of which was to be considered. 17 By his affidavit, Mr Stripp acknowledged that it was "likely" that that disciplinary action would assume the form of dismissal from employment. He explained that, given the CHO's direction, it was not feasible that Monash Health should retain in its employ staff that it is unable to put to work. He explained that the decision to require proof of vaccination and to take action against those who failed to comply with it was his, and that he made it (or them) because the CHO's directions did not realistically permit of any other course. Principles to be applied 18 The principles relevant to an application for interlocutory injunctive relief are not in dispute. The court has a broad discretion to grant that relief, conferred at the least by s 23 of the Federal Court of Australia Act 1976 (Cth). The circumstances that inform the exercise of that discretion are well-settled. In order to qualify for the relief that they seek, the applicants must demonstrate that they have a prima facie case and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, 81-84 (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed). 19 When considering the grant of an interlocutory injunction, the issue of whether an applicant has established a prima facie case and whether the balance of convenience favours injunctive relief are related inquiries. Whether there is a prima facie case is to be considered together with the balance of convenience: Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238, 261 [67] (Dowsett, Foster and Yates JJ). 20 In Bullock v FFTSA (1985) 5 FCR 464, Woodward J (with whom Smithers and Sweeney JJ relevantly agreed) stated (at 472): …an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it. 21 An applicant for interlocutory injunctive relief must, in showing that the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153 (Mason ACJ); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd (2009) 184 IR 333, 339 (Greenwood J). 22 Presently, the applicants allege that the disciplinary processes that are imminently to be visited upon the second respondent and the other Relevant Employees will be visited in contravention of s 340(1) of the FW Act. 23 Section 340(1) provides as follows: 340 Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or … (b) to prevent the exercise of a workplace right by the other person. 24 Adverse action is defined in s 342 of the FW Act. It is not presently in doubt that the disciplinary processes that Monash Health intends to effect qualify as adverse action that is to be taken (or that is threatened) against those employees to whom they are to be applied. Monash Health properly concedes that it is about to, or has threatened to, visit adverse action against each of the Relevant Employees. At issue is whether it has done or proposes to do so for a reason or reasons that s 340(1) of the FW Act proscribes. 25 Section 341 of the FW Act identifies the circumstances in which a person is to be understood as possessing a workplace right. It relevantly provides as follows: 341 Meaning of workplace right Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body… … 26 Sections 360 and 361 of the FW Act also assume some relevance to the present application. They provide as follows: 360 Multiple reasons for action For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. 361 Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 27 The present application raises additional points of principle concerning the first applicant's standing to prosecute the case that is sought to be advanced and the applicants' capacity to stand as representatives of the class for whose benefit they purport to advance it. It is not necessary to resolve either issue at this (interlocutory) juncture. I proceed on the assumption (which history may or may not vindicate) that neither issue presents as an impediment to the relief that is currently sought. Prima facie case 28 Presently, the issue to which the court's attention must turn is whether there is a prima facie case that Monash Health intends to do anything by way of a disciplinary response because, or for reasons that include that, the employees against whom that action is foreshadowed possess or have exercised a workplace right, or in order to prevent any such exercise. 29 That turns upon the subjective reasons that have animated and will animate the future course of relevant events. If, as the applicants allege, Monash Health can be thought to be intending to act as is foreshadowed because the employees in question possess or have exercised workplace rights (or otherwise to stop them from exercising such rights), then any such conduct will be effected in contravention of s 340(1) of the FW Act and may be vulnerable to the relief that is claimed. If it should be thought to be intending to act as foreshadowed for other reasons not proscribed by s 340(1) of the FW Act, then no such contravention will be apparent and the application will be liable to fail for want of a prima facie case. 30 Two questions arise presently. First, is there a prima facie case that any of the Relevant Employees possessed or exercised a relevant workplace right? Second (and assuming that the answer to that first question is "yes"), has Monash Health taken or threatened to take any action against any of those employees because they possess or have exercised such a right, or in order to prevent them from exercising it? 31 The applicants maintain that each of the Relevant Employees was entitled to be consulted in advance about the Vaccination Direction. For the purposes of the present application, that entitlement is said to have as its source s 35 of the Occupational Health and Safety Act 2004 (Vic) (the "OHS Act"), which provides as follows: 35 Duty of employers to consult with employees (1) When doing any of the following things, an employer must so far as is reasonably practicable consult in accordance with this section with the employees of the employer who are or are likely to be directly affected by the employer doing that thing— (a) identifying or assessing hazards or risks to health or safety at a workplace under the employer's management and control or arising from the conduct of the undertaking of the employer; (b) making decisions about the measures to be taken to control risks to health or safety at a workplace under the employer's management and control or arising from the conduct of the undertaking of the employer; (c) making decisions about the adequacy of facilities for the welfare of employees of the employer; (d) making decisions about the procedures for any of the following— (i) resolving health or safety issues at a workplace under the employer's management and control or arising from the conduct of the undertaking of the employer; (ii) consulting with employees of the employer in accordance with this section; (iii) monitoring the health of employees of the employer and the conditions at any workplace under the employer's management and control; (iv) providing information and training to employees of the employer; (e) determining the membership of any health and safety committee; (f) proposing changes, that may affect the health or safety of employees of the employer, to any of the following— (i) a workplace under the employer's management and control; (ii) the plant, substances or other things used at such a workplace; (iii) the conduct of the work performed at such a workplace; (g) any other thing prescribed by the regulations for the purposes of this subsection. … (3) An employer who is required to consult with employees under subsection (1) must do so by— (a) sharing with the employees information about the matter on which the employer is required to consult; and (b) giving the employees a reasonable opportunity to express their views about the matter; and (c) taking into account those views. (4) If the employees are represented by a health and safety representative, the consultation must involve that representative (with or without the involvement of the employees directly). (5) Subject to subsections (3) and (4), if the employer and the employees have agreed to procedures for undertaking consultations, the consultation must be undertaken in accordance with those procedures. … 32 The applicants maintain that at least some of the Relevant Employees have asserted a right to be consulted about the Vaccination Direction pursuant to s 35 of the OHS Act. Such an assertion, the applicants submit, constitutes the exercise of a workplace right within the meaning of s 340(1) of the FW Act. 33 Monash Health accepted that there was a prima facie case, albeit a weak one, that each of the Relevant Employees had or has a right under s 35 of the OHS Act, and that that right qualified as a workplace right for the purposes s 340(1) of the FW Act (which at least some of them have exercised). It is unnecessary to say anything further on that front. 34 That, then, leads to consideration of Monash Health's reasons for the conduct that it appears likely to take against those who have failed to comply with its Vaccination Direction. There is no evidence to prove—nor even to suggest—that Monash Health intends to subject any of its employees to disciplinary action because, or for reasons that include the fact that, they possess or have exercised the workplace right that is relied upon (whether it qualifies as such or not). Similarly, there is no evidence to prove or suggest that it intends to take any action in order to prevent any such exercise. 35 Instead, the applicants invite the court to consider the significance of the fact that some of the Relevant Employees have asserted a right to be consulted about the Vaccination Direction. Those assertions, they contend, have been fielded by an officer or officers of Monash Health. Neither the evidence nor the applicants' submissions identify clearly who that officer or those officers might be; but the applicants suggest, nonetheless, that Monash Health has not led evidence to discount the possibility that one or more of them might have been actuated to do something for a reason or reasons proscribed by s 340(1) of the FW Act. 36 That submission is problematic on a number of levels, not the least of which being that there is no evidence to suggest that anybody within Monash Health other than Mr Stripp has had any role to play in the decisions that have led to the disciplinary processes that have been or will shortly be effected as against the Relevant Employees. As is explored below, Mr Stripp's evidence was that those decisions were his and that they were made for legitimate (or, at any event, non-proscribed) reasons. The applicants contend that the anatomy of those decisions requires exploration at trial, which might uncover some evidence that tends to prove that the assertion of rights to be consulted about the Vaccination Direction animated, in some way, perhaps because of the conduct of some other person, the decision to subject the Relevant Employees to disciplinary action. In effect, they ask the court to act on the possibility that the evidence might be different once explored in a trial setting. 37 That is not a course upon which the court should embark. Monash Health has led positive evidence that tends to demonstrate that its reasons for undertaking the disciplinary processes to which the present action relates have nothing whatsoever to do with the possession or exercise of any workplace rights. Mr Stripp—who describes himself as the architect of the Vaccination Direction and the course that Monash Health has plotted in respect of those who have failed to comply with it—deposes in his affidavit as to why Monash Health intends to do as it has foreshadowed. In short, it has charted the course it has because it has formed the view that the CHO's directions do not permit of any other alternative. That conclusion seems very much to align with reality (I say without offering any comment upon the wisdom of the policy reasons underlying those directions). Moreover, the steps that Monash Health foreshadows are steps that it intends to take against all of its employees who have failed to comply with its Vaccination Direction, whether they have asserted a right to consultation or not. Under that light, there does not seem to be any reason at the moment to doubt Mr Stripp's evidence that he has not been influenced toward any course of action because, or for reasons that include that, any of the Relevant Employees possesses or has exercised a workplace right. 38 There is, then, no apparent reason at this juncture to doubt Monash Health's evidence—untested though it obviously is—as to why it intends to do what it intends to do. Whether or not the action that Monash Health has initiated and intends to take is action that it has initiated and intends to take for reasons that s 340(1) of the FW Act proscribes remains for determination at trial. At that point, the applicants will have the benefit of the statutory presumption for which s 361(1) of the FW Act provides. No such assistance is available now: FW Act, s 361(2); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd [2019] FCA 1272 [48]-[52] (Snaden J). For now, the case that the applicants advance pursuant to that section appears to be exceedingly weak, if it exists at all. Balance of convenience 39 The applicants did not lead any evidence about the impact that the foreshadowed disciplinary process might visit upon any of the Relevant Employees. To the extent that it might involve dismissal, as it seems that it inevitably will (at least in some cases), the court would readily infer that the impact upon them (or some of them) is unlikely to be positive. Nonetheless, it is simply not possible to make any sensible assessment of the inconvenience that a refusal to grant injunctive relief now will visit upon any of the Relevant Employees. Moreover, it is not possible to know whether, or to what extent, that inconvenience will extend beyond financial considerations that could be addressed through awards of compensation in the event that the claim succeeds at trial. The most that might be said at this juncture is that the Relevant Employees look set to be deprived of the enjoyment that they might otherwise derive from their work: Blackadder v Ramsey (2005) 221 CLR 539, 549 (Kirby J), 566-567 (Callinan and Heydon JJ); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers' Union (AMWU) & Anor v McCain Foods (Aust) Pty Ltd [2012] FCA 1126, [47]-[48] (Bromberg J). 40 The prejudice to Monash Health if injunctive relief were granted at this juncture is straightforward enough. It would be prevented from subjecting the Relevant Employees to the disciplinary processes upon which it has embarked (or intends to embark); and, more significantly, would be required to retain them in its employ, potentially despite its inability to deploy them to the performance of useful work. The financial impost associated with such a course would, of course, be offset to some degree (perhaps entirely) by an undertaking as to damages; but the more significant observation, at this juncture, is that the court is unable to assess precisely what the impost would be. 41 In the absence of evidence going to the parties' financial positions, it is impossible to make any realistic assessment of how the granting or non-granting of interlocutory injunctive relief at this point will affect them. With that observation made, it seems to me that the balance of convenience in this case is relatively finely poised. Of greater significance for the applicants is that the court is unable to identify with any precision an impact upon them (or the other Relevant Employees) that couldn't adequately be addressed by an award of damages in the event that their action were to succeed. Conclusion 42 The applicants' case under s 340(1) of the FW Act is, with respect, very weak (if it exists at all). The prejudice that the applicants (and those that they purport to represent) will endure in the absence of interlocutory relief is unclear beyond the obvious; and appears not to be of a kind that couldn't be addressed by an award of damages at trial. I do not accept, then, that the balance of convenience warrants the relief that is now sought. 43 Accordingly, the application for interlocutory injunctive relief was dismissed. Section 570(1) of the FW Act precludes the court from making an award of costs other than in limited circumstances. Nonetheless, the parties preferred that the question of costs be reserved for consideration at a later stage, which was a course that the court indulged. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate: Dated: 5 November 2021