McGarry v State of Queensland (Queensland Health) [2023] QIRC 32 (2 February 2023)

CITATION:	McGarry v State of Queensland (Queensland Health) [2023] QIRC 032
PARTIES:	McGarry, John (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2022/18
PROCEEDING:	Public Service Appeal – Fair Treatment
DELIVERED ON:	2 February 2023
MEMBER:	Knight IC
HEARD AT:	On the papers
ORDERS:	*The decision appealed against is confirmed pursuant to s 562C(1)(a) of the Industrial Relations Act 2016* (Qld).**
CATCHWORDS:	PUBLIC SERVICE — EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY — appeal under s 197 of the Public Service Act 2008 (Qld) – where Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements required relevant employees to receive COVID-19 vaccination – where appellant requested exemption from compliance on basis of other exceptional circumstances – where exemption refused – where internal review confirmed decision to refuse exemption – whether exceptional circumstances identified – whether exceptional circumstances meaningfully considered – whether human rights adequately considered – decision confirmed

LEGISLATION AND INSTRUMENTS:

Directive 11/20 – Individual employee grievances cl 9.2

Health Employment Directive No 12/21 – Employee COVID–19 vaccination requirements cls 7, 8, 10

Hospital and Health Boards Act 2011 (Qld) ss 51A, 51E

HR Policy B70 – Employee COVID-19 Vaccination Requirements

Industrial Relations Act 2016 (Qld) ss 562B, 562C

Public Service Act 2008 (Qld) s 197

Work Health and Safety Act 2011 (Cth) ss 19, 47, 48

Work Health and Safety Codes of Practice 2011 (Qld), Code of Practice: How to Manage Work Health and Safety Risks

Work Health and Safety Regulations 2011 (Qld) ss 34, 36

CASES:

Baiada Poultry Pty Ltd v R [2012] HCA 14; (2012) 246 CLR 92

Brassell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland & Anor [2018] QSC 319

Higgins v State of Queensland (Queensland Health) [2022] QIRC 30

Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332

Morrissey v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2022] QIRC 303

Murray v State of Queensland (Department of Education) [2022] QIRC 355

R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia [1957] HCA 45; (1957) 97 CLR 1

Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55; (2017) 262 CLR 456

Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6

Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39

Tilley v State of Queensland (Queensland Health) [2022] QIRC 002

[1] Mr John McGarry is employed by the State of Queensland through Queensland Health (‘the Department’) as a Senior Health and Safety Advisor. He is employed at The Park Centre for Mental Health (‘The Park’) within West Moreton Hospital and Health Service (‘the WMHHS’). Mr McGarry has been employed by the Department on a fixed term temporary basis since 10 June 2019.

[2] On 11 September 2021, the Department issued the Health Employment Directive 12/21 – Employee COVID-19 vaccination requirements ('the Directive') concerning mandatory COVID-19 vaccination requirements for certain staff employed by the Department. The Directive was issued pursuant to s 51A of the Hospital and Health Boards Act 2011 (Qld).

[3] Mr McGarry has lodged an appeal pursuant to ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PS Act') in relation to a decision by Mr Silven Simmons, Senior Director People Safety and Performance, which confirmed a decision not to approve Mr McGarry’s application for an exemption from compliance with the Directive.

[4] Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld).^[1] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.^[2] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.^[3]

[5] For the reasons that follow, I consider the decision appealed against was fair and reasonable in all the circumstances.

[6] Clause 7 of the Directive sets out the employees to which the Directive applies. Relevantly, it applies to all health service employees who are employed to work within a hospital or other facility where clinical care or support is provided.

[7] Clause 8 of the Directive provides that, unless an employee to whom the Directive applies is exempt under cl 10, the employee must receive at least one dose of a COVID-19 vaccine by 30 September 2021, receive a second dose by 31 October 2021 and either provide to their line manager or upload into the designated system evidence of having done so no later than seven days after receiving each vaccine.

[8] The Directive required employees identified within certain groups to receive a COVID‑19 vaccination on specified dates.^[4] In his role as a Senior Health and Safety Advisor at The Park, Mr McGarry falls within Group 2 under cl 7.1 of the Directive which required employees employed to work in a hospital or other facility where clinical care or support is provided to receive the vaccination.

[9] Clause 10 of the Directive provides that an employee does not have to comply with the Directive where they are granted an exemption. The Directive provides that an application for an exemption will be considered by the Department:

[10] On 5 October 2021, Mr McGarry made an application for an exemption on the basis of 'other exceptional circumstances'. The circumstances outlined by Mr McGarry within his application related largely to:

[11] On 1 December 2021, Mr McGarry was informed by Ms Claire Barratt, A/Chief Strategy Officer, that his application had been refused. Within the same correspondence, Ms Barratt directed Mr McGarry to obtain a first dose of a COVID-19 vaccine within seven days and informed him that failure to do so would result in his exclusion from the workplace.

[12] Consequently, on 15 December 2021, Mr McGarry sought an internal review of the decision to refuse his exemption application, submitting:

[13] In a decision-letter dated 21 December 2021, Mr Simmons informed Mr McGarry that he had confirmed the decision to refuse Mr McGarry’s application for an exemption (‘the Internal Review Decision’).

[15] Within his notice of appeal, Mr McGarry attached a brief schedule wherein he identified his primary concerns as relating to the risk assessment undertaken by the Department and his views that it was no longer valid having regard to the Omicron variant of the COVID‑19 virus.^[8] Further, within his written submissions, Mr McGarry set out four issues for consideration on appeal as follows:

[17] Unfortunately, both Mr McGarry and the Department addressed matters beyond the scope of this appeal, including, for example, the legality of the Directive and the power of the Department to exclude Mr McGarry from the workplace. To the extent the parties’ submissions are relevant to my consideration, they are set out below.

[18] Mr McGarry contends that the Department and the representative unions failed to engage or meaningfully consult with workers prior to the implementation of the Directive.^[10] In this respect he notes the Department has an obligation to consult with workers under p 5 div 2 of the Work Health and Safety Act 2011 (Qld) (‘the WHS Act’) and relevant codes of practice.^[11]

[19] The Department submits it complied with its obligations under the WHS Act to consult with registered unions prior to the introduction of the Directive.^[12] Its obligation to do so, it submits, did not extend to an obligation to consult with individual employees.^[13]

[20] In reply submissions, Mr McGarry reiterates his submission that the Department did not meaningfully consult with employees, and submits that neither did the representative unions.^[14] Further, he argues the Department has failed to provide evidence that it consulted with the unions.^[15]

[21] Mr McGarry contends that COVID-19 is a disease spread predominantly by community transmission and cannot be considered as a workplace risk in isolation.^[16] In support of this position, he relies on comments made by the Chief Health Officer (‘the CHO’),
Dr John Gerrard, in various news articles and internal Queensland Health staff communications, as well as comments made by the Chief Operating Officer of the WMHHS, Mr Matthew Tallis.^[17]

[22] The Department notes its Director-General received regular briefings from the CHO both before and after the introduction of the Directive, from which the Director-General satisfied himself there was a demonstrable risk associated with the work performed by the employees covered by the Directive.^[18]

[23] The Department contends there was no lawful basis for Mr McGarry to demand access to the risk assessment undertaken by the Department, or to require proof that he was at a heightened risk of Covid-19 transmissions.^[19]

[24] In any event, it argues that, having regard to their number, locations and various working arrangements, it is impractical for it to conduct a risk assessment in respect of each employee of the Department.^[20] The Department submits that it instead undertook a risk assessment for the whole workforce which satisfied its obligations under the Work Health and Safety Regulations 2011 (Qld).^[21]

[25] Mr McGarry submits the Department has failed to provide him with relevant population data to indicate the risk reduction across the Queensland community and within a hospital setting.^[22] Further, he argues that data relied on by the Department regarding the risk posed by COVID-19 is relevant to the original strain of the virus and does not reflect the risk posed by more recent variants.^[23] Instead, Mr McGarry refers to statistics regarding positive COVID-19 test results published by the Australian Federal Government which he submits indicates the risk to the Queensland community cannot be regarded as significant.^[24]

[26] Mr McGarry questions the efficacy of the vaccines, particularly in respect of more recent variants of the virus.^[25] Referring to statistics published by the Australian Federal Government, and research from the United Kingdom and Israel, he submits vaccination does not have a significant impact on infection or transmission of the virus.^[26] Consequently, he argues that vaccination alone cannot be relied upon as the primary measure to control transmission of the virus, and the Department’s position that unvaccinated workers present a risk to the workplace is no longer valid.^[27]

[27] Mr McGarry argues that vaccination is only one element of control and the Department’s application of risk management ought to consider a number of different controls.^[28] Specifically, he submits any residual risk posed by remaining unvaccinated could be managed by appropriate hygiene measures including handwashing, protective equipment, social distancing and exclusion from clinical areas during times of escalated risk.^[29]

[28] Finally, Mr McGarry also raises concerns that SARS-CoV-2 (the virus that causes COVID-19) is not listed within the Australian Immunisation Handbook (‘the Handbook’) which lists vaccine preventable diseases.^[30] Further, he notes the Directive does not refer to the Handbook.^[31] These omissions, he argues, supports his position that the COVID-19 vaccines are not designed for infection control within the health service population.^[32]

[29] The Department submits Mr McGarry was advised within the Internal Review Decision that evidence around the world has demonstrated not only the safety of the vaccines, but their high level of efficacy.^[33] While it acknowledges Mr McGarry is entitled to disagree with that information, it argues the weight of medical and scientific evidence is against him.^[34]

[30] The Department characterises Mr McGarry’s concerns regarding the vaccines as ‘vaccine-hesitancy’ and argues that such hesitancy is not an exceptional circumstance justifying an exemption.^[35] In any event, it argues Mr McGarry’s concerns were considered by Mr Simmons in the Internal Review Decision.^[36] Consequently, having considered those concerns, it submits it was reasonable for Mr Simmons to conclude they did not demonstrate circumstances justifying an exemption.^[37]

[31] Finally, the Department contends applications for an exemption under the grounds of ‘other exceptional circumstances’ must relate to circumstances that affect or concern the particular employee seeking the exemption.^[38] The concerns raised by Mr McGarry, it contends, fail to identify such circumstances in respect of Mr McGarry as an individual.^[39]

[32] In reply submissions, Mr McGarry rejects the Department’s position that he has failed to identify exceptional circumstances, arguing the exemption application form required him to identify extenuating circumstances.^[40] He argues his submissions regarding the reduced efficacy of the vaccines in light of more recent variants of COVID-19 satisfy that requirement, and his willingness to undertake other forms of risk control (such as rapid antigen testing) demonstrates circumstances relevant to him as an individual which justify an exemption.^[41]

[33] Mr McGarry also takes issue with the Department’s use of the term ‘vaccine-hesitant’ arguing it is derogatory, designed to disparage and belittle a class of people and amounts to a psychological assessment of his character.^[42] In respect of his appeal he argues it is a deliberate attempt by the Department to engender bias in the proceedings and requests that the Commission disregard it in reaching a decision.^[43]

[34] In determining whether the Internal Review Decision is fair and reasonable, I must consider whether it was reasonable for Mr Simmons to confirm the decision to refuse Mr McGarry’s application for an exemption.

[35] The principles relevant to an assessment of 'reasonableness' have been considered by the High Court on several occasions, most notably in the decision in Minister for Immigration and Citizenship v Li.^[44] Those principles were usefully summarised by Ryan J in Gilmour v Waddell & Ors:^[45]

[36] Having considered the internal review decision of Mr Silven Simmons, Senior Director – People, Safety and Performance I have determined the decision was fair and reasonable for the reasons set out below.

[37] I am satisfied the Directive and the associated procedures in HR Policy B70 – Employee COVID-19 Vaccination Requirements ('HR Policy B70') for applying for an exemption are both lawful and reasonable, particularly when regard is had to the Department's obligations to meet its duty of care to staff, patients and the public.^[46]

[38] Mr McGarry raises several concerns about the adequacy of risk assessments and consultation in the development and subsequent implementation of the Directive and HR Policy B70. For example, it is submitted he requested the Department provide supporting evidence for the risk assessment underpinning the Directive. He also maintains employees were not provided with an opportunity to participate directly in risk assessments and further argues the decision of Dwyer IC in Slykerman v State of Queensland (Queensland Health) ('Slykerman')^[47] is no longer relevant, having regard to the 'international situation where numbers of national governments have been reviewing and removing vaccination mandates on populations across the world'.^[48]

... the purpose of the [Directive] is to outline COVID-19 vaccination requirements for existing and prospective employees employed to work in the identified high-risk groups designated in [the Directive]. Further, clause 6 of [the Directive] titled ‘Risk Management’, addresses the risk that COVID-19 poses to healthcare workers, health support staff, Queensland Health patients and the broader community and explains the risk profile of the employees to whom the [Directive] applies.^[49]

[40] In its submissions, the Department highlighted the number of positions, locations and working arrangements of its employees, noting that although it was impracticable to conduct a personalised risk review for each employee, risk assessments were undertaken for the whole workforce in satisfaction of its obligations under the Work Health and Safety Regulations 2011(Cth).^[50]

[41] In circumstances where it is not in contention that a risk assessment was undertaken in respect of the broader workforce, it seems to me the Department has satisfied its obligations in relation to ss 34 and 36(2) of the Work Health and Safety Regulation 2011 (Cth).

[42] The absence of an individualised risk assessment, particularly given the size and variable nature of the workforce, in my view, does not lead to a conclusion the internal review decision appealed against was unfair or unreasonable.

[43] In any event, what may or may not have occurred in other countries in relation to COVID-19 mandates since Slykerman^[51] was released, or in respect of the evolution of other COVID-19 variants since the Directive and HR Policy B70 took effect, the role of the Commission in an appeal such as this is largely confined to a review of Mr Simmons’ internal review decision and the decision-making processes at the time the decision was made, rather than a consideration of international events that may have unfolded since that time.

[44] Mr McGarry, in his reply submissions, raises concerns around the lack of consultation by both the Department and particular unions before and after the introduction of the Directive and HR Policy B70. In particular, he maintains the Department has failed to provide any evidence that it consulted directly with workers prior to the implementation of the Directive.

[45] Although s 48 of the WHS Act describes certain types of consultation which should take place, s 47 provides the obligation to consult need only occur to the extent that it is reasonably practicable.^[52]

[46] In 'Brassell-Dellow',^[53] the Full Bench considered the concept of "reasonably practicable", noting:

"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 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 R, 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.^[54]

[47] Although Mr McGarry maintains individualised risk assessments were not undertaken, I am satisfied that while it may not have been practicable to engage with employees on an individual basis, employees of the Department including Mr McGary, received correspondence and information in relation to the requirement to be vaccinated against COVID-19 and that the Department consulted with relevant unions.

[48] For the above reasons, I am not persuaded this ground of appeal could lead to a conclusion the Internal Review Decision was unfair or unreasonable.

[49] In response to Mr McGarry’s concerns relating to the status, effectiveness and approval of the COVID-19 vaccine, Mr Simmons noted:

COVID-19 vaccines have undergone all of the usual assessments including peer review and publication of phase one, two and three clinical trials and review by multiple licensing bodies including the Therapeutic Goods Administration.^[55]

[50] Although I accept Mr McGarry holds strong personal concerns in relation to the efficacy of the COVID-19 vaccine and also considers there are other risk mitigation strategies he or the Department could adopt, (for example, rapid antigen testing, handwashing and working from home arrangements) particularly in response to the emergence of the Omicron variant (which he now submits could be characterised as an extenuating factor), one of the difficulties with this aspect of his appeal is that it is well established that concerns about the efficacy or safety of the COVID-19 vaccine, on their own, are not considered exceptional circumstances.^[56]

[51] Furthermore, in relation to his comments about the emergence of the Omicron variant, Mr McGarry appears to be relying on events that have transpired after the internal review was conducted. As touched on above, the Commission in an appeal such as this does not rehear the matter. Instead, it is largely confined to considering Mr Simmons’ internal review decision and the processes that were followed at the time of the review.

[52] In this regard, I was unable to identify any other circumstances relevant to Mr McGarry, in the materials that were filed in support of either his appeal or earlier grievance, that meaningfully weighed against other considerations Queensland Health was required to have regard to, for example, the nature and location of Mr McGarry’s role as a Senior Heath and Safety Advisor and the potential degree of risk to himself, other employees and the community with respect to COVID-19 transmission.

[53] For these reasons, I am not persuaded the circumstances relied on by Mr McGarry, in so far as they relate to the approval, safety or effectiveness of the vaccine, could be characterised as exceptional. Nor could they lead to a conclusion that Mr Simmons’ decision was unreasonable.

[54] In the internal review decision, Mr Simmons, in response to Mr McGarry’s concerns in respect of his human rights, states:

Queensland Health’s decision to require staff to be vaccinated against COVID-19 was made considering the significant risk to the heath and safety of healthcare workers, support staff, their families, and the patients under our care. The decision also took into consideration the potential impact of the decision on human rights. The decision does not itself compel a person to be vaccinated, but it does impose employment consequences upon people who are not vaccinated in circumstances unless certain extenuating circumstances apply. Your position requires you to be vaccinated.

I consider that Queensland Health’s position in relation to that [sic] the impacts of the decision on human rights, to the extent that they are impacted, are reasonably justified and I can confirm that I have carefully considered the impact of my decision on your induvial human rights.^[57]

[55] I am satisfied Mr McGarry’s human rights were considered during the internal review. Relevantly, Mr Simmons acknowledged there may be an impact on human rights but determined that any limitation was justified.

[56] Within Ms Barratt’s decision dated 21 December 2021, she sets out the competing considerations of patient and workplace safety as opposed to Mr McGarry’s concerns regarding risk and consultation as follows:

As part of your application for an exemption from the requirement to be vaccinated against COVID-19, you have raised concerns in relation to the risks associated with COVID-19 and the COVID-19 vaccination as it relates to your role.

Queensland Health is of the view that COVID-19 virus presents a significant risk to the health and safety of healthcare works, support staff, their families, and the patients under our care. Evidence from around the world demonstrates not only the safety of the COVID-19 vaccine but the very high-level efficacy of this vaccine.

Vaccination reduces the risk of hospitalisation and death from COVID-19 by over 90%, when compared to those who are unvaccinated. Vaccination also means staff are much less likely to transmit the virus to others, including importantly, to our sometimes-immunocompromised patients.

In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, Queensland Health has adopted the reasonable mitigation strategy of requiring employees to be vaccinated against COVID-19. This strategy is implemented through the Directive.

Queensland Health has undertaken relevant consultation in relation to the COVID-19 vaccination requirements. The decision to require vaccination against COVID-19 was made considering the significant risk to the health and safety of healthcare workers, support staff, their families, and the patients under our care. The decision also took into consideration the potential impact of the decision on human rights. The decision does not itself compel a person to be vaccinated, but it does impose employment consequences upon people who are not vaccinated in circumstances unless certain extenuating circumstances apply.

Queensland Health’s position is that the impacts of the decision upon human rights, to the extent that these are impacted, are reasonably justified. The purpose of the requirement to be vaccinated in the Directive including protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health system in a time of a global pandemic. It should be noted that there is no other reasonably practicable, effective and less restrictive way, to achieve this purpose.

I am not satisfied that the concerns regarding risk or consultation constitute another exceptional circumstance.^[58]

[57] Directive 11/20 – Individual employee grievances (‘the Grievance Directive’) sets out the process and procedure a Chief Executive, or their delegate, must follow when resolving an employee grievance, including a request for an internal review.

[58] Clause 9.2 of the Grievance Directive relevantly requires the chief executive, or the delegate, to consider whether the decision on review was fair and reasonable in the circumstances, and then provide written reasons to the employee requesting the review.

On review of the material, I consider that the decision made by Ms Barret [sic] was fair and reasonable in the circumstances and I confirm that decision. I have formed this view by considering the actions taken by the delegate namely:

Your request for exemption for COVID-19 vaccine was correctly declined in the circumstances and your role continues to require you to be vaccinated against COVID-19 with a TGA endorsed vaccine when you work in a hospital or facility which provides clinical care.^[59]

[60] Having regard to the above, I consider Mr Simmons adequately reviewed Ms Barratt’s decision in compliance with the Grievance Directive.

[61] For the reasons given above, the Internal Review Decision confirming the refusal of Mr McGarry’s request for an exemption from receiving the COVID-19 vaccine, was fair and reasonable.

^[1] Public Service Act 2008 (Qld) s 197.
^[2] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland & Anor [2018] QSC 319, 5.
^[3] Industrial Relations Act 2016 (Qld) s 562B(3).
^[4] Health Employment Directive 12/21 - Employee COVID-19 vaccination requirements, cls 7, 8.
^[5] Ibid cl 10.2.
^[6] Appeal notice filed 12 January 2022, Attachment 1.
^[7] Ibid, Attachment 4.
^[8] Ibid, Schedule 1.
^[9] Mr McGarry's submissions filed 10 February 2022, 2.
^[10] Ibid.
^[11] Ibid; citing Work Health and Safety Codes of Practice 2011 (Qld), Code of Practice: How to Manage Work Health and Safety Risks.
^[12] The Department’s submissions filed 25 February 2022, [8].
^[13] Ibid [20].
^[14] Mr McGarry’s reply submissions filed 8 March 2022, [1]-[3], [5]-[7]; citing Work Health and Safety Act 2011 (Qld) ss 47, 48; Work Health and Safety Regulations 2011 (Qld); Work Health and Safety Codes of Practice 2011 (Qld), Code of Practice: How to Manage Work Health and Safety Risks.
^[15] Mr McGarry’s reply submissions filed 8 March 2022, [4].
^[16] Mr McGarry’s submissions filed 10 February 2022.
^[17] Ibid.
^[18] The Department’s submissions filed 25 February 2022, [21].
^[19] Ibid [22]; citing Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [35].
^[20] The Department’s submissions filed 25 February 2022, [21].
^[21] Ibid [21]; citing Work Health and Safety Regulations 2011 (Qld) ss 34, 36(2).
^[22] Mr McGarry’s submissions filed 10 February 2022.
^[23] Ibid.
^[24] Ibid.
^[25] Ibid.
^[26] Ibid.
^[27] Ibid.
^[28] Ibid.
^[29] Ibid.
^[30] Ibid.
^[31] Ibid.
^[32] Ibid.
^[33] The Department’s submissions filed 25 February 2022, [28].
^[34] Ibid [29].
^[35] The Department’s submissions filed 25 February 2022, [24]; citing Tilley v State of Queensland (Queensland Health) [2022] QIRC 002, [39].
^[36] The Department’s submissions filed 25 February 2022, [25].
^[37] Ibid [25].
^[38] The Department’s submissions filed 25 February 2022, [19]; citing Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [54]; Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016, [58].
^[39] The Department’s submissions filed 25 February 2022, [19].
^[40] Mr McGarry’s reply submissions filed 8 March 2022, [11].
^[41] Ibid [13]-[15].
^[42]Ibid [17]-[18].
^[43] Ibid [19].
^[44] [2012] HCA 61; (2013) 249 CLR 332, [63]-[76].
^[45] [2019] QSC 170.
^[46] Health Employment Directive 12/21 Employee Covid-19 vaccination requirements; Workplace Health and Safety Act 2011 (Cth) s 19; Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [36]; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030.
^[47] [2022] QIRC 039 ('Slykerman').
^[48] Mr McGarry's reply submissions filed 8 March 2022, [14]; citing Slykerman (n 48) [37].
^[49] The Department's submissions filed 25 February 2022, Attachment 6.
^[50] Ibid [21]; citing Work Health and Safety Regulations 2011 (Cth) ss 34, 36(2).
^[51] [2022] QIRC 039.
^[52] Work Health and Safety Act 2011 (Cth) ss 47, 48.
^[53] Brassell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356.
^[54] Ibid [124]-[128]; citing Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; Baiada Poultry Pty Ltd v R [2012] HCA 14; (2012) 246 CLR 92; R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia [1957] HCA 45; (1957) 97 CLR 1; Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; Work Health and Safety Act 2011 (Cth) ss 47, 48.
^[55] The Department's submissions filed 25 February 2022, Attachment 6.
^[56] Ibid, Attachment 1; Murray v State of Queensland (Department of Education) [2022] QIRC 355; Morrissey v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2022] QIRC 303; Higgins v State of Queensland (Queensland Health) [2022] QIRC 30.
^[57] The Department's submissions filed 25 February 2022, Attachment 6.
^[58] Ibid, Attachment 4.
^[59] Ibid.

Queensland Industrial Relations Commission

McGarry v State of Queensland (Queensland Health) [2023] QIRC 32 (2 February 2023)