Challenges to QLD Police Vaccine Direction Fail in QIRC
A Full Bench of the Queensland Industrial Relations Commission (QIRC) has dismissed two applications challenging the lawfulness of a direction given by the Queensland Police Commissioner to staff directing them to be vaccinated against COVID-19.
Background
On 7 September 2021, the Police Commissioner, Katarina Carroll, issued a direction requiring Queensland Police Service (QPS) police officers and other QPS staff members to be vaccinated against COVID-19 unless they fell within an exemption.
On 6 October 2021, two applications were made to the QIRC against the QPS by various police officers and other staff of the QPS. The applications relied on three grounds:
- The Police Commissioner failed to consult with employees before making the direction in breach of the relevant awards (ground 1).
- The Police Commissioner failed to consult with employees before making the direction, in breach of the Work Health & Safety Act 2011 (ground 2).
- There was no power in the Commissioner to make the direction without seeking a variation of the relevant award or certified agreement (ground 3).
The applications were determined by a QIRC Full Bench comprising President Justice Peter Davis, Vice President Daniel O’Connor and Deputy President John Merrell. The Full Bench dealt with each of the grounds of the application as summarised below.
Failure to consult under awards
In considering ground 1 the Full Bench explained the history of provisions requiring consultation in reference to changes in “production, program, organisation, structure or technology” which have existed in industrial instruments since the mid-1980s. They are known as “TCR clauses” (Termination, Change, Redundancy). The Full Bench said the clauses concern changes in the way work is done.
The Full Bench found the Police Commissioner’s direction does not concern “production, program, organisation, structure or technology”. Instead, the direction concerns a response to a health issue which is the COVID-19 pandemic and the impact of that disease on operational policing. The Full Bench went on to say that the response is to require staff of the QPS to be vaccinated against the disease to enable them to go about their work as they have always done. Thus, there is no relevant “change” and the awards do not require consultation on the direction.
Failure to consult pursuant to the Work Health & Safety Act 2011
For ground 2, the Full Bench considered the requirement in the Work Health & Safety Act 2011 for a person conducting a business or undertaking to consult, so far as is reasonably practicable, with workers who are, or who are likely to be, directly affected by a matter relating to work health or safety.
The Full Bench examined evidence of the steps taken by the QPS to consult with its more than 17,000 employees and with the five unions covering the work. The Full Bench said:
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.
The Full Bench continued that the point of the consultation requirements in the legislation is to enable workers who may be affected by work health and safety issues to have input into the management of those issues before an employer imposes conditions on them. The Full Bench found there was adequate consultation under the Work Health & Safety Act 2011 by the QPS.
Variation to awards or certified agreements
The applicants argued that the requirement to be vaccinated must be a term or condition of the employment. They claimed the requirement to be vaccinated does not appear in the relevant awards or certified agreements and therefore, a variation to the awards or certified agreements was required before the Police Commissioner could make the direction. The Full Bench found the applicants’ argument was misconceived:
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.
The Full Bench considered the Police Service Administration Act 1990 (PSA Act) before finding that, within certain limitations, the Police Commissioner may give a lawful direction to employees as their effective employer and unless there is a “reasonable excuse” not to comply, the employee must comply. The Full Bench said the applicants’ submissions “really amounted to a proposition that if the subject matter of the direction could have been dealt with in the award or the certified agreement, then it could not be the subject of a direction.” The Full Bench concluded:
That submission is contrary to the terms of the PSA Act, is inconsistent with the nature and structure of the QPS as established under the PSA Act, and is contrary to well-established principles of industrial law which recognise an employer’s right to direct employees within proper legal constraints.
Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356
This decision of the QIRC follows on from a judgement of the NSW Supreme Court of 15 October, in which Justice Robert Beech-Jones dismissed two legal challenges to health orders requiring COVID-19 vaccinations for workers in NSW. We briefly discussed the decision of the NSW Supreme Court in our recent post, available here.