Federal Court of Australia

Motion v Qantas Airways Limited [2022] FCA 25

ORDERS

THE COURT ORDERS THAT:

1.    The Court notes the undertaking to the Court by the Respondents attached and marked “A”.

2.    Pursuant to rule 9.05 of the Federal Court Rules 2011 (Cth) (the ‘Rules’), the persons referred to in Schedule 1 to this order be joined as respondents to the proceeding.

3.    The Applicants have leave, by 4.00 pm on Tuesday 25 January 2022, to file and serve an amended originating application reflecting the joinder of the Respondents the subject of paragraph 2.

4.    Pursuant to rule 30.01 of the Rules and section 37P(2) of the Federal Court of Australia Act 1976 (Cth), the question whether each applicant is entitled to any and if so which of the declaratory relief sought in paragraphs 3, 4, 5 and 6 of the Originating Application (‘Liability Question’) be determined separately and prior to any other issue in the proceeding.

5.    The proceeding be set down for hearing on the Liability Question on a date convenient to the Court after 25 February 2022 with an estimate of four days.

6.    By 4.00 pm on Friday 28 January 2022, the Applicants are to file and serve Points of Claim in relation to the Liability Question.

7.    By 4.00 pm on Friday 4 February 2022, the Respondents are to file and serve Points of Defence in relation to the Liability Question.

8.    By 4.00 pm on Friday 11 February 2022, the Applicants are to file and serve:

(a)    any additional affidavit evidence upon which they intend to rely in relation to the Liability Question; and

(b)    an outline of submissions in relation to the Liability Question.

9.    By 4.00 pm on Friday 18 February 2022, the Respondents are to file and serve:

(a)    any affidavit evidence upon which they intend to rely in relation to the Liability Question; and

(b)    an outline of submissions in relation to the Liability Question.

10.    By 4.00 pm on Wednesday 23 February 2022, the Applicants are to file and serve:

(a)    any responsive affidavit evidence upon which they intend to rely in relation to the Liability Question; and

(b)    any responsive outline of submissions in relation to the Liability Question.

11.    The Applicants’ interlocutory application filed 21 January 2022 is dismissed.

12.    The proceeding be referred to the National Operations Registrar for allocation to a docket judge.

13.    Costs of the Applicants’ interlocutory application filed 21 January 2022 are reserved.

14.    There be liberty to apply on 48 hours’ notice.

THE COURT NOTES THAT:

1.    Depending on when trial dates are allocated, the parties may confer and request variation of the filing dates of the Points of Claim, Points of Defence, affidavit material and submissions.

Schedule 1

Eastern Australia Airlines Pty. Limited ACN 001 599 024

Sunstate Airlines (Qld) Pty. Limited ACN 009 734 703

Jetstar Group Pty Limited ACN 003 901 353

A

Noting that the matters in paragraphs 2 and 3 below apply in lieu of any Applicant giving the usual undertaking as to damages, each Respondent undertakes to the Court in respect of each Applicant employed by it that:

1.    It will not terminate the employment of that Applicant on account of non-compliance with the Qantas Group COVID-19 Vaccination Policy (‘Policy’) until the determination of the question of Liability in this proceeding or earlier order;

2.    Provided that nothing in this undertaking precludes any Respondent from taking any other step in relation to an Applicant’s non-compliance with the Policy, including:

3.    If the Court determines that in respect of any Applicant it had no entitlement to terminate her or his employment on account of non-compliance with the Policy, the employing Respondent will pay that Applicant any wages not paid as a consequence of her or him being placed on leave without pay by reason of a decision referred to in paragraph 2.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

DOWNES J

1    This is an application brought by the applicants listed in an originating application which was filed on 21 January 2022 (except for three of the named applicants – being the 3rd, 4th and 23rd applicants, each of whose employment has been terminated).

2    The balance of the applicants seek that an urgent interim injunction be granted against the respondents and each of them to prevent them from enforcing the Vaccine Direction and Vaccination Evidence Direction (as defined in the Statement of Claim) against the applicants (and each of them) and/or to stop current unprotected industrial action against the applicants (and each of them).

3    Paragraph 2 of the application seeks that an urgent interim injunction be granted against the respondents (and each of them) to prevent them from proceeding with disciplinary proceedings against the applicants (and each of them) in respect of any alleged failure to comply with the Vaccine Direction and Vaccination Evidence Direction including but not limited to any Show Cause action or Outcome Meetings. Costs are sought to be reserved.

4    The matter was filed on Friday afternoon, 21 January 2022 and listed before me as the duty judge to hear this morning. The respondents have appeared and indicated that not all applicable respondents have been served and joined. They have identified the additional respondents which should be parties to the proceeding and, as will be seen, have offered an undertaking on behalf of the existing respondents and proposed additional respondents. By a proposed direction, which is not opposed, the applicants will be adding the additional respondents to their originating application. So today’s application has proceeded on the basis that the respondents include the three additional respondents which will be added.

5    On 28 July 2021, all employees of entities across the Qantas Group – and that includes all of the respondents – were invited to participate in an employee survey about COVID-19 vaccination. Approximately 12,000 responses to the survey were received across the Qantas Group. The survey results were communicated to employees on 18 August 2021 and they showed, amongst other things, that 89 per cent of the employees who took part in the survey indicated that they were either already partially or were fully vaccinated or had plans to be fully vaccinated. Four per cent said they were unwilling or unable to get the vaccine. Around three quarters of those who responded said they believe that vaccination is a necessary step and that they would also feel concerned about working with individuals who are not vaccinated.

6    On 18 August 2021, the Qantas Group announced that it had developed a proposed vaccination policy which would require all employees to be fully vaccinated with an approved COVID-19 vaccine (that is, two doses at that stage) and to provide their employer with evidence of this within the timeframes stipulated in the policy.

7    The proposed policy was made available to all employees as well as health and safety representatives across the Qantas Group for the purpose of consultation.

8    Consultation was also undertaken with the unions who represent employees across the various work groups. Mr Grealy, who appeared for the applicants, informed the Court that the unions either supported the proposed vaccine policy or at least did not oppose it on behalf of their members.

9    After this consultation, that is, with employees across the Qantas Group, the unions and the health and safety representatives, the policy was formalised on 20 September 2021.

10    In the survey that was provided to the employees in July 2021, it was identified that at least the New South Wales Government required particular categories of workers who provide services in connection with international flights other than trans-Tasman flights must have had at least the first dose of the COVID-19 vaccine in order to enter or provide services at Sydney International Terminal unless an exemption applies. It also stated that the South Australian Government had issued an emergency management direction that required certain aviation workers from 4 August to have had at least one dose of the COVID-19 vaccine with their second one within no later than six weeks. The survey also stated that the Queensland Government had indicated that it was considering adopting the same approach.

11    It can therefore be seen that from at least July 2021, a document, being the survey, was provided to employees of the Qantas Group, which indicated that Qantas was considering requiring its employees to be vaccinated but that also governments in various states were proposing to pass legislation that required employees of airlines to be vaccinated in certain circumstances.

12    In this case, the policy which was issued by the Qantas Group set the date by which employees must meet the requirement to be fully vaccinated. The policy describes particular work groups as falling within category A or category B. In this case, each applicant falls within category A, as defined in the policy.

13    The policy requires compliance, that is, not only vaccination but the provision of evidence of vaccination, by reference to a compliance date. The compliance date for category A employees was 15 November 2021.

14    The policy also provides for a process for employees who wish to apply for an exemption from the requirement to be fully vaccinated with an approved COVID-19 vaccine. Employees who wish to seek an exemption were required to submit an application for a temporary or ongoing exemption as applicable no later than six weeks prior to their compliance date. Requests for exemptions were and are assessed on a case-by-case basis.

15    The nature of the operations across the Qantas Group and the locations at which work is required to be performed such as at an airport, inside an aircraft or inside freight terminals means that a number of employees of the Qantas Group are subject to government-issued public health orders and directions. Among others, this includes, for example, in Victoria, the COVID-19 Mandatory Vaccination (Specified Workers) 2022 Order (No. 2). That particular public health order requires employers to collect, record and hold information about the vaccination status of workers and (if fully vaccinated), the date on which the worker became fully vaccinated and it requires employers to not permit a worker to work outside of their ordinary place of residence unless they are fully vaccinated or an excepted person. The uncontested evidence also showed that there were and are public health orders and health directions issued in New South Wales, Queensland and Western Australia. Annexed to these reasons is a table prepared by the respondents that summarises those particular public health orders and directions.

16    The nature of the Qantas Group’s operations is such that many of its employees, including numerous of the applicants, must be able to and do work in more than one state within Australia. For example, a pilot must necessarily travel to airports in the various cities within Australia. This means that many Qantas Group employees are subject to these types of public health orders and directions, a summary of which is annexed to these reasons.

17    If an employee is unable to meet the requirements of an applicable public health order and/or direction relevant to the role they are engaged to perform (and assuming they do not meet the criteria for an exemption as may be provided for under the applicable public health order or direction), then it means that the employee is prevented from lawfully attending work and fulfilling their role in accordance with their contract of employment until they meet the requirements under the applicable public health order or direction.

18    Under the policy which was issued by the Qantas Group, employees who do not comply with its requirements and have not been granted an exemption will be considered to have not complied with a lawful and reasonable direction and may then be subject to disciplinary action, which, in the circumstances, is likely to be termination of their employment.

19    The Qantas Group has developed a process for managing non-compliance by employees, including for the purposes of ensuring consistency of treatment and affording procedural fairness to them.

20    Engagement in the process was preceded by communications being issued prior to 15 November 2021 to employees in category A, which would have included the applicants, reminding them of the requirement to comply with the policy and also the consequences of non-compliance. Mr Grealy, who acted for the applicants, appeared to accept that the applicants did receive such communications.

21    The process of the Qantas Group for managing non-compliance with its policy includes the following steps. As contained in paragraph 22 of the affidavit of Ms Farrah, those six stages are as follows:

(a)    if an employee has not uploaded satisfactory evidence that they are fully vaccinated with an Approved COVID-19 Vaccine by their applicable Compliance Date, a letter is issued to the employee advising that the employer is considering taking disciplinary action against the employee because of their failure to comply with the Policy, which might be the termination of their employment. The employee is invited to provide a written response as to why their employment should not be terminated, usually within three business days of the review of employment letter being issued. This is known as the "review of employment letter" (stage 1);

(b)    in the review of employment letter, the employee is advised that they are directed to not attend work until further notice, and also that they will continue to be paid during the review of employment process and must be available to participate in the process;

(c)    following receipt of the review of employment letter, the employee is able to provide a written response (if they choose to do so) (stage 2);

(d)    the employee may be invited to attend a response meeting with the decision maker, accompanied by a support person of their choice, at which the decision maker may request additional information and/or the employee may provide a further response. This is known as the “response meeting” (stage 3);

(e)    following the response meeting, the decision maker then considers all of the information provided (stage 4);

(f)    following due consideration, the decision maker issues an outcome which may include disciplinary action up to and including termination of employment. This is done in writing and the employee is also invited to attend a meeting at which the outcome is delivered (stage 5);

(g)    any employee who does not agree with their outcome is able to “appeal” the decision in accordance with the Qantas Group Internal Appeal Procedure within seven days of receiving the outcome (stage 6).

22    On my review of those six stages, an employee is afforded at least three opportunities to respond and explain why they should not be required to comply with the policy. Stage 1 refers to receipt of a letter which invites a response. Stage 2 enables a response and stage 3 involves, at least potentially, a meeting called a “response meeting”. After this, the decision-maker considers all of the information provided.

23    Mr Grealy for the applicant submitted that stage 3 is what is known, in truth, as a “show-cause meeting” and that, based on his own attendance at such meetings, they are very stressful for employees. His submission was to the effect that the Qantas Group does not pay attention to the statements made by the employees at these meetings. However, in this case, there is no evidence before me in the affidavit of Mr Grealy about such meetings nor is there anything to indicate that the stage 3 meeting is, in truth, a “show-cause meeting” of the kind described by him from the bar table.

24    In terms of the suggested stress imposed on employees, it must be remembered, of course, that these employees knew from at least July 2021 that (1) the Qantas Group was considering imposing vaccination requirements on its employees; and (2) that governments would also likely require such vaccination requirements to be imposed by employers such as the Qantas Group.

25    There are a number of employees presently going through a review of employment process who have been directed to not attend work on pay while the review of employment process is underway. That is because, at present, they fail to meet the public health orders and directions which are applicable to them in their employment and because they have failed to comply with the direction issued by the Qantas Group.

26    In this case, leaving aside the three applicants who are no longer employed by the Qantas Group, seven applicants are at stage 1 of the process described above. That is, they have been issued with a review of employment letter and they are due to provide a written response to their employer.

27    Ten of the applicants are at stage 4, which means the decision-maker has considered or is in the process of considering the responses provided by them and is preparing to make a decision. One applicant is scheduled to complete stage 5 on 24 January 2022. Two applicants have had their process paused, and one has applied for an exemption, which has been declined. This last applicant has been given a new compliance date, being 11 February 2022, on certain conditions.

28    The essence of the applicants’ argument in terms of demonstrating a serious question to be tried is as follows.

29    The first submission was that the Qantas Group has not issued a lawful or reasonable direction because it has undertaken insufficient investigations into the safety of the vaccines which are on offer. To support this submission, it was submitted from the bar table that Mr Grealy has reviewed a risk assessment that was conducted by the Qantas Group, which risk assessment is not in evidence, and that he (a solicitor) has formed the view that the risk assessment is inadequate. However, Mr Grealy conceded that he is not an expert, and of course, in any event, as the risk assessment is not in evidence, it is difficult to form a view about whether or not it could be said that the Qantas Group has or has not carried out a sufficient investigation into the safety of the available vaccines.

30    The second submission by the applicants was that the Qantas Group relied on the survey of its employees as being the full consultation which was required to be undertaken under the various enterprise bargaining agreements, and that this was insufficient. However, the applicants also conceded that there had been consultation with unions, and in addition, the uncontested and unchallenged evidence of the respondents was that there had been consultation with the various health and safety representatives employed by the Qantas Group.

31    The third submission by the applicants is that the public health orders and directions are not lawful because they are inconsistent with other legislation which takes precedence over them. However, the applicants were unable to identify with precision the other legislation which had the consequence that these public health orders and directions were unlawful. It is therefore difficult to form a view on an urgent basis about whether or not that submission has any substance.

32    The fourth submission by the applicants is that the requirement by the Qantas Group to provide vaccination certificates breaches privacy laws. However, I do not understand that this particular point, that is, the requirement to provide vaccination certificates, is a key one for the purposes of obtaining the interim relief that is sought today. In other words, the issue today is not really about the Qantas Group requiring its employees to provide vaccination certificates. Rather, the real complaint is about the Qantas Group requiring its employees to be vaccinated. Proving that they have been vaccinated is a secondary area of concern.

33    In response, the respondents submit that the applicants in truth do not have a prima facie case. However, in the interests of an expeditious resolution of this dispute, they propose and have offered undertakings as well as a proposed timetable to enable the dispute to be resolved as expeditiously as possible, rather than making legal arguments today about whether or not public health orders are inconsistent with other legislation and so on.

34    The respondents also referred to the delay by the applicants in bringing these proceedings. As I have indicated from the chronology, the applicants have been aware since July 2021, but certainly by no later than September 2021, that the Qantas Group would require them to be vaccinated as a condition of their continued employment.

35    It is therefore difficult to understand why, on 21 January 2022, in the afternoon on a Friday, an urgent application is brought by the applicants, some two months after the date by which they were required to be vaccinated has passed. That application seeks urgent relief, and yet these applicants are unable to demonstrate any irremediable harm which they will suffer if the interim injunctions are not granted.

36    Notwithstanding their submissions, the respondents do not require that the application be dismissed without also offering undertakings and a timetable of proposed orders and directions.

37    In terms of balance of convenience, it will be apparent from these reasons that the affidavit material does not demonstrate the irremediable harm that will be suffered by the applicants if the interim injunctions are not granted.

38    In particular, the affidavit material appears to discuss events relating to other employees of the Qantas Group who are not applicants. There is also an anecdote about one of the applicants. However, there is nothing to indicate why it is that the interim injunctions should be granted such that, if they are not granted, damages will not be an adequate remedy in due course.

39    On the other hand, the Qantas Group is seeking to comply with what it understands to be lawful public health orders and directions imposed by the states in which it operates its business. Further, the Qantas Group operates a six-stage process by which it communicates with employees who do not wish to be vaccinated. It has given its employees months to get vaccinated, and they have not done so.

40    By the orders sought by the applicants today, the Qantas Group would be required to continue to pay all but two of the applicants in this matter, but stop their review process, while these proceedings are on foot. In circumstances where there is no undertaking as to damages offered by the applicants, the balance of convenience is against such a course.

41    Further, the balance of convenience is against the granting of the interim injunctions which are sought by the applicants in light of the undertakings which are offered by the respondents and which will be attached to the order which I will make, with one minor modification.

42    For these reasons, the orders proposed by the respondents will be made, which includes an order that the interlocutory application filed 21 January 2022 is dismissed.

Associate:

Dated:    25 January 2022

SCHEDULE OF PARTIES

ANNEXURE