Fire Brigade Employees’ Union of New South Wales v Industrial Relations Secretary of NSW on behalf of Fire and Rescue NSW (COVID-19 Vaccination Dispute) [2023] NSWIRComm 1004

Industrial Relations Commission New South Wales Medium Neutral Citation: Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary of NSW on behalf of Fire and Rescue NSW (COVID-19 Vaccination Dispute) [2023] NSWIRComm 1004 Hearing dates: 4 and 5 October 2022, 15 November 2022 Date of orders: 18 January 2023 Decision date: 18 January 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: The proceedings are dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders – Power of Commission to make permanent order pursuant to s 137(1)(c) of the Industrial Relations Act 1996 enjoining employer from dismissing employees – Directions by Commissioner of Fire and Rescue NSW requiring COVID-19 vaccination –whether directions were lawful and reasonable – employer's duty to determine reasonably practicable measures to reduce risk to health and safety of workers and others at common law and under the Work Health and Safety Act 2011 – obligation of employer to consult – no relief granted Legislation Cited: Fire and Rescue Act 1989 (NSW), s 74 Fire Brigades Regulation 2014, regs 4, 13, 16, 33 and 35 Industrial Relations Act 1996 (NSW), ss 84, 88, 89, 130, 136(1)(a), (b),137(1)(c), 138 and 139 Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 Public Health (COVID-19 Care Services) Order (No 3) 2022 Public Health (COVID-19 General) Order 2022 Public Health (COVID-19 General) Order (No 2) 2022 Public Health (COVID-19 General) Order (No 3) 2022 Work Health and Safety Act 2011 (NSW), ss 18,19, 28, 47, 48 and 49 Work, Health and Safety Regulation 2017, Pt 31. Cases Cited: Adami v Maison De Luxe Ltd [1924] HCA 45; 35 CLR 143 ALHMWU v Murawina Mt Druitt Co-op Ltd [2005] NSWIRComm 1017 Attorney-General (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2; 85 CLR 237 Australian Services Union and Sydney Water Corporation [2005] NSWIRComm 156 Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 Barnier v Secretary, Department of Education [2021] NSWIRComm 1045 BHP Steel (AIS) Pty Limited v The Federated Ironworkers' Association of Australia, New South Wales Division [1994] NSWIRComm 127 BHP Steel Ltd v The Australian Workers' Union, New South Wales (2003) 136 IR 240; [2003] NSWIRComm 423 BlueScope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales (2006) 153 IR 176; [2006] NSWIRComm 149 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Chris Nightingale v Woolworths Group Limited T/A Woolworths Group [2022] FWC 2848 City of Botany Bay v Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division [2000] NSWIRComm 85 Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059; 310 IR 399 Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWC 6626 Cromie v Health Secretary in respect of the Illawarra Shoalhaven Local Health District [2022] NSWIRComm 1064 Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary on behalf of Fire and Rescue NSW (In Orders Dispute) [2022] NSWIRComm 1016 Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531 Hill v Director General of the Department of Education and Training (1998) 85 IR 201 Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; 393 ALR 664 NSW Department of Education and Training v NSW Teachers Federation; Re Student Reports Bans (2006) 157 IR 329; [2006] NSWIRComm 346 Police Association of New South Wales v Commissioner of Police [2019] NSWIRComm 1076 Project Blue Sky Inc v Australian Broadcasting Authority 194 CLR 355; [1998] HCA 28 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 96 NSWLR 762; [2018] NSWCA 39 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; 60 CLR 601 Re Cram; ex parte NSW Colliery Proprietors' Association Ltd [1987] HCA 28; 163 CLR 117 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association [2022] NSWSC 1178 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304; 103 IR 52 Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388; [2005] NSWIRComm 305 Thiess Pty Limited v Industrial Court of New South Wales [2010] 78 NSWLR 94 Category: Principal judgment Parties: Fire Brigade Employees' Union of New South Wales (Notifier) Industrial Relations Secretary of NSW on behalf of Fire and Rescue NSW (Respondent) Representation: Counsel: L Saunders (Notifier) M Minucci (Respondent) Solicitors: Kingston Reid (Respondent) File Number(s): 2022/184616 Publication restriction: Nil