The Work Health and Safety Tribunal has dismissed the claim of an education employee after determining that a direction to receive a vaccination did not constitute ‘work’, and that refusing to receive the vaccination did not constitute a refusal to work.

Background

The applicant was employed at a primary school. In December 2021, the Chief Health Officer of Western Australia and Director General, Department of Education made directions and issued instructions respectively, regarding the vaccination requirements for education workers who were working in an education facility. The applicant refused to be vaccinated and did not seek an exemption, and did not work from 23 December 2021 until 10 June 2022, when the public health directions were lifted. The applicant applied to the Tribunal for pay and benefits for the period that he did not work.

Contentions

The applicant contended that the direction to receive a vaccination constitutes ‘work’, and contended that a refusal to be vaccinated constitutes a refusal to work under s 26(1) of the Occupational Safety and Health Act 1984 (WA) (‘OSH Act’).

The applicant believed the vaccination would expose him to a risk of imminent and serious injury or harm to his health, and that the direction to be vaccinated was not a reasonable and lawful order and complained that the respondent did not do a risk assessment of the COVID-19 vaccinations. 

The respondent contended that the applicant did not refuse to work, and instead was unable to access the school because of the operation of public health directions, and as such was unable to work. The respondent contended that refusal to be vaccinated does not amount to a refusal to work, and that the requirement to be vaccinated was a direction given in order to ensure the applicant complied with the CHO directions, and that the applicant could lawfully work.

The respondent indicated that from 4 January 2022, the applicant was stood down without pay, and not entitled to the benefits claimed.

Findings

The Tribunal noted that the remedies sought by the applicant were outside of the Tribunal’s powers, and that it was also not within the jurisdiction of the Tribunal to consider whether the respondent could have been more accommodating, in agreeing to alternative work arrangements.

The Tribunal found that that the condition to receive a vaccination was not ‘work’ for the purposes of s 26 of the OSH Act, and that the applicant’s refusal to be vaccinated was not a refusal to work, and that the application would be dismissed.

The Tribunal considered that even if the applicant’s absence from work was because the applicant believed that it would expose him to a risk of imminent and serious injury or harm to his health, that this belief was not based on reasonable grounds. The Tribunal noted the expert evidence accepted  in Falconer v Chief Health Officer (No 3) [2022] WASC 270, and the Chief Health Officer’s statements to the effect that COVID-19 vaccinations were safe and effective; were an important measure in reducing the spread of COVID-19; and vaccination was necessary to protect workers and the community. In coming to this conclusion, the Tribunal further noted the TGA approval of the vaccination and the decision of a WorkSafeWA investigator, determining that no further investigation was required in response to a report by the applicant.

The Tribunal further noted that the applicant would have been unable to lawfully perform his work during that period because of the directions of the CHO and CEO of the school, and would not have been entitled to pay and other benefits during the claim period. The Tribunal dismissed the application.

The decision can be read here.

The Work Health and Safety Tribunal has dismissed an Engineer's application under s 26(1) for want of jurisdiction, finding that she did not refuse to work due to risk of serious injury, but that she was instead  excluded from the workplace after a failure to provide proof of vaccination. 

Background

The applicant was employed as an Engineering Associate. After public health directions were issued by the Chief Health Officer requiring construction industry workers to be vaccinated against COVID-19 to enter building and construction sites, the applicant’s employer required affected employees to provide evidence of vaccination or an exemption by 31 December 2021.

The applicant refused to be vaccinated and did not provide evidence of an exemption, and did not work from 6 January to 25 March 2022. The applicant was dismissed from her employment.

Contentions

The applicant contended that she refused to work under s 26(1) of the Occupational Safety and Health Act 1984 (WA) (‘OSH Act’). The applicant believed that vaccination would expose her to a risk of imminent and serious injury or harm to her health, and that the direction to be vaccinated was not a reasonable, and lawful order and complained that the respondent did not do a risk assessment of the COVID-19 vaccinations.

The respondent contended the Tribunal did not have jurisdiction to deal with the matters referred by the applicant or the power to make the declarations and orders she sought. The respondent contended that the applicant did not refuse to work, rather, she was excluded from the workplace because of the Chief Health Officer’s directions as she was unable to work, and therefore was not entitled to the pay and benefits she claimed.

The respondent added that because the applicant also had an appeal before the Public Service Appeal Board in relation to the same matters, the Tribunal should dismiss the current application.

Findings

The Tribunal noted that the key question in dispute was whether the direction of the employer was a reasonable and lawful order, and that this was outside the Tribunal’s jurisdiction.

The Tribunal noted that most of the remedies sought by the applicant were outside the power of the Tribunal, in an application brought under s 28. The Tribunal noted that it did not have the power to:

• make a declaration about the obligation of the respondent to comply with the safety and health legislation;
• investigate alleged breaches of the OSH Act or refer those to the regulator for prosecution;
• determine whether the respondent was required to do a risk assessment, or to direct the respondent to do a risk assessment; or
• make an order for damages.

The Tribunal noted that while one of the applicant’s remedies was within the power of the Tribunal, that the matter should be dismissed as the applicant’s claim had no merit or prospect of success. The Tribunal found that the operative reason for the applicant’s absence from the workplace was because Main Roads excluded her from the workplace, and not because she refused to work. The Tribunal dismissed the application. 

The decision can be read here.

The Work Health and Safety Tribunal has affirmed a decision not to grant a demolition license after determining that it could not be satisfied that the applicant could undertake the work in a safe and proper manner.

Background

The applicant undertook demolition work. The respondent, the WorkSafe Western Australia Commissioner, decided not to reissue a class 2 demolition license to the applicant due to insufficient class 2 demolition work experience. The applicant applied to the Tribunal to quash the respondent’s decision not to reissue.

Contentions

The applicant contended that the Tribunal ought to grant a license as he was able to undertake class 2 work in a safe and proper manner as shown by his work and WorkSafe audits, and that the Tribunal should consider non class 2 experience. The applicant contended that the Tribunal should not exclude class 2 jobs that contravened the Occupational Safety and Health Regulations 1996 (WA) (‘OSH Regulations’) as the adverse consequences of denying a license was disproportionate to the breach.

The respondent contended that the requirement to be able to undertake demolition work in a ‘safe and proper manner’ should be understood to mean lawfully and in accordance with the OSH Regulations. The respondent contended that the applicant recurrently carried out unlawful work, and that breaches of the Occupational Safety and Health Act 1984 (WA) (‘OSH Act’) and the OSH Regulations were relevant.

Findings

The Tribunal noted that that it must have regard to s 26(1) of the Industrial Relations Act 1979 (WA) (‘IR Act), and when reviewing an OSH Act matter referred to it, must act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form. The Tribunal noted it was not bound by the rules of evidence, may inform itself as it thinks just, and must consider the interests of the persons immediately concerned whether directly affected or not and, where appropriate, the interests of the community as a whole. The Tribunal noted further that it must apply the legal provisions setting out the conditions a person must satisfy to be licensed to undertake a task or activity regulated for reasons of safety.

The Tribunal found that the applicant was notified, and ought to have taken note, that undertaking class 2 work following his license expiry breached the OSH Regulations, and that the applicant agreed that asbestos removal constituted demolition work or at least was a part of it. The Tribunal found that the applicant had contravened his license by engaging others who were not trained in safe demolition by a Registered Training Organisation. The Tribunal found it could not assess non class 2 work experience as the evidence given was general and not supported by specific jobs, referees, or experts.

The Tribunal found it was not satisfied that the applicant could undertake class 2 work in a safe and proper manner, and that the applicant’s individual interest in maintaining a license must be subordinate to the public interest in ensuring public safety. The Tribunal affirmed WorkSafe’s decision.

The decision can be read here.