REFERENCE OF DISPUTE - PAY ETC - S.28(2) - OSH ACT 1984

THE WORK HEALTH AND SAFETY TRIBUNAL

CITATION : 2022 WAIRC 00844

CORAM : Commissioner T Emmanuel

HEARD : FRIDAY, 14 OCTOBER 2022 (ON THE PAPERS)

DELIVERED : THURSDAY, 15 DECEMBER 2022

FILE NO. : OSHT 1 OF 2022

BETWEEN : Brianna Conti-Nibali

Applicant

AND

Main Roads

Respondent

CatchWords : Work Health and Safety Tribunal – Jurisdictional objection upheld – Operative reason for absence from the workplace because of employee’s exclusion, not refusal to work – Substantive application dismissed

Legislation : Industrial Relations Act 1979 (WA): s 26(1)(a), s 27(1)(a)

  Occupational Safety and Health Act 1984 (WA): s 26(1), s 59G(1)

  Work Health and Safety Act 2020 (WA): cl 29 of sch 1    

Result : Section 27(1)(a) application upheld & substantive application dismissed

Representation:

Applicant : On her own behalf

Respondent : Mr R Andretich (of counsel)

Cases referred to in reasons:

Magyar v Department of Education [2019] WAIRC 00781

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 68 WAIG 4

Reasons for Decision

1         Ms Conti-Nibali was a Level 3.4 Engineering Associate employed by Main Roads. Her employment has been affected by the COVID-19 pandemic.

2         After the Chief Health Officer made public health directions that had the effect of requiring building and construction industry workers to be vaccinated against COVID-19 to enter building and construction sites from 1 January 2022, Main Roads required its affected employees to provide evidence of vaccination or exemption by 31 December 2021. Ms Conti-Nibali refused to be vaccinated and did not provide evidence of an exemption.

3         Ms Conti-Nibali says that she refused to work under s 26(1) of the Occupational Safety and Health Act 1984 (WA) (OSH Act) when she refused to be vaccinated. She believed that being vaccinated would expose her to a risk of imminent and serious injury or imminent and serious harm to her health. Ms Conti-Nibali disputes that Main Roads’ direction to be vaccinated is a reasonable, lawful order and complains that Main Roads did not do a risk assessment of the COVID-19 vaccinations.

4         Ms Conti-Nibali did not work from 6 January 2022 until 25 March 2022 when Main Roads dismissed her from her employment. Ms Conti-Nibali has applied to the Tribunal under s 28 of the OSH Act for a range of remedies, including various determinations, backpay, damages, referring the matter to WorkSafe WA for prosecution and an order requiring Main Roads to complete a risk assessment.

5         Main Roads objects to the Tribunal hearing and determining Ms Conti-Nibali’s substantive application. It says that the Tribunal does not have jurisdiction to deal with the matters referred by Ms Conti-Nibali, nor does it have the power to make the declarations and orders she seeks.

6         Beyond its objection in relation to jurisdiction and powers, Main Roads argues that Ms Conti-Nibali did not refuse to work under s 26(1) of the OSH Act. Rather, Main Roads excluded Ms Conti-Nibali from the workplace because of the operation of the Chief Health Officer’s directions, which meant that she was unable to work and therefore she is not entitled to the pay and benefits she claims. Finally, Main Roads argues that because Ms Conti-Nibali has a concurrent appeal before the Public Service Appeal Board in relation to the matters she raises in application OSHT 1 of 2022, there is no utility in application OSHT 1 of 2022 being maintained. Main Roads says the Tribunal should dismiss application OSHT 1 of 2022.

7         Ms Conti-Nibali argues that the Tribunal has jurisdiction to hear and determine her application because it ‘is an OSH dispute centred on her reasonable belief that the Employer Direction contained an instruction for [her] to expose herself to a hazard which presented a risk which was too high.’

8         Accordingly, before the Tribunal can determine Ms Conti-Nibali’s substantive application, the Tribunal must first determine Main Roads’ objection to the Tribunal’s jurisdiction and application to dismiss application OSHT 1 of 2022 (Dismissal Application).

Questions for the Tribunal to answer

9         To decide this matter, the Tribunal must answer the following questions:

1. Does the Tribunal have jurisdiction to hear and determine application OSHT 1 of 2022?

2. Even if it does, should the Tribunal dismiss application OSHT 1 of 2022?

Background

10      The following background is not in dispute.

11      On 2 December 2021 the Chief Health Officer of Western Australia (CHO) issued the Building and Construction Industry Worker (Restrictions on Access) Directions (No 2) (CHO Directions). The CHO Directions restricted access to building and construction sites by unvaccinated building and construction workers.

12      On 16 December 2021, Main Roads wrote to affected employees, including Ms Conti-Nibali. Main Roads said it considered that the CHO Directions applied to Ms Conti-Nibali and it directed her to be partially vaccinated against COVID-19 by 1 January 2022 and to provide evidence of vaccination or exemption before 31 December 2021 (Employer Direction). The letter also stated:

Non-compliance with this direction

If you do not comply with a requirement of this direction to be vaccinated in accordance with Part 1 above,  you are unable to undertake any work for Main Roads from those dates forward.

For example, if you have not received your first dose, you are unable to work on and from 12.01am on 1 January 2022.

Failure to comply with this direction may also be addressed as a disciplinary matter. Disciplinary action may include dismissal.

13      Based on discussions between her colleague and her superior, Mr Kapitola, Ms Conti-Nibali understood that Mr Kapitola had agreed on 20 December 2021 that Ms Conti-Nibali could work from home between 4 and 7 January 2022 because she would be impacted by the Mandurah rail line shut down. At that time, Mr Kapitola was aware of the Employer Direction but it was not until 5 January 2022 that Mr Kapitola became aware that Ms Conti-Nibali did not plan to be vaccinated.

14      Ms Conti-Nibali did not get vaccinated or provide an exemption.

15      On 30 December 2021, Main Roads’ Acting Executive Director Human Resources wrote to Ms Conti-Nibali. He referred to the Employer Direction and said that Main Roads had not received evidence that Ms Conti-Nibali was vaccinated against COVID-19.  The letter said:

If you are unvaccinated and/or have not provided approved evidence of your vaccination prior to 31 December 2021, you will be in breach of a lawful direction from Main Roads and disciplinary action may be taken against you.

16      Ms Conti-Nibali did not attend the workplace from 1 January 2022.

17      On 4 January 2022, Main Roads’ Principal Industrial Relations Consultant, Mr Falconer, emailed Ms Conti-Nibali, copying in the author of the Employer Direction. Mr Falconer’s email said:

The purpose of the call was to ensure that you are complying with the direction to not undertake any work or attend Main Roads workplaces on and from 1 January 2022.

Please reply by email that you are complying with this direction. If you have attended work today, you are instructed to leave immediately and not return until advised.

18      On 6 January 2022, Main Roads wrote to Ms Conti-Nibali, stating:

Dear Brianna

Commencement of Preliminary Access Restriction Period (PARP)

I refer to the attached letter to you from Mr Neville Wiley, A/Executive Director Human Resources, dated 30 December 2021.

Main Roads has yet to receive the required evidence that you are vaccinated against COVID‑19.

As you remain unvaccinated and/or have not provided approved evidence of your vaccination status or exemption prior to 31 December 2021, it has been determined that you are in breach of a lawful direction from Main Roads.

Preliminary Access Restriction Period (PARP)

As you have not provided approved evidence of your vaccination status you are unable to undertake any work for Main Roads and/or enter Main Roads’ workplaces on and from 1 January 2022 until you provide approved evidence of your vaccination status to Main Roads. You will not be paid during this time and will not be permitted to work from home.

Consistent with the COVID-19 Mandatory Vaccination Guidelines (the Guidelines), you are permitted to remain away from the workplace for a “cooling off” period of (2) two weeks without disciplinary action being commenced – this is the Preliminary Access Restriction period (PARP).

Although the PARP will be unpaid, you may apply for appropriate leave during the PARP. Requests to use accrued annual leave, long service leave, flex credit or time in lieu of overtime will be considered on a case by case basis during the PARP. Requests for leave for the two week PARP are to be submitted directly to [Main Roads email address].

Following the expiration of the PARP on Thursday, 20 January 2022 if you remain unvaccinated and/or have not provided approved evidence of your vaccination, Main Roads may commence a discipline process in accordance with the Discipline Policy and Procedure. You will not be paid during a discipline process following the PARP.

Your Manager will be informed of the commencement of the PARP and any discipline process that may commence.

If you are vaccinated after the PARP commences, and provide evidence of vaccination, you will be entitled to return to the workplace immediately subject to meeting the requirements of the [CHO Directions].

19      On 6 January 2022 Main Roads confirmed that Ms Conti-Nibali was stood down without pay on the grounds that she was not vaccinated or exempt, and therefore she was unable to work because she could not enter building and construction sites.

20      In effect, on 16 and 30 December 2021, 4, 5 and 6 January 2022 Main Roads instructed Ms Conti-Nibali that she must be vaccinated or exempt by 31 December and warned her that if she was not, she would not be allowed to work.

21      The parties had the opportunity to call witnesses in relation to this Dismissal Application but they agreed that the Tribunal should determine this Dismissal Application on the papers.

Main Roads’ submissions

22      Main Roads argues that the Tribunal does not have jurisdiction to hear and determine application OSHT 1 of 2022 for several reasons.

23      First, the dispute that underpins Ms Conti-Nibali’s application is about whether the Employer Direction is a valid and lawful instruction. That is not a matter within the Tribunal’s jurisdiction.

24      Second, s 51G(1) of the OSH Act sets out the matters in respect of which the Tribunal may hear and determine applications. There is no head of jurisdiction conferred by s 51G(1) of the OSH Act to deal with the dispute Ms Conti-Nibali has referred to the Tribunal.

25      Third, the relief Ms Conti-Nibali seeks relates to issues outside of the Tribunal’s jurisdiction. Specifically, Main Roads submits that:

a. the Tribunal has no power to make a declaration about Main Roads’ obligation to comply, or its compliance, with the OSH Act (first and second heads of relief);

b. the Tribunal has no power to investigate alleged breaches of the OSH Act and refer them to those with authority to prosecute them (implicit in fourth head of relief);

c. the Tribunal has no power to determine whether Main Roads was required to do a risk assessment, nor to direct Main Roads to do a risk assessment (fifth head of relief) and in any event, the CHO Directions have been revoked and Main Roads no longer requires employees to be vaccinated against COVID-19, so a risk assessment would serve no purpose; and

d. the Tribunal has no power to award damages (sixth head of relief).

26      In relation to the third head of relief that Ms Conti-Nibali seeks, Main Roads submits that Ms Conti-Nibali is not entitled to pay under s 28(1) of the OSH Act in circumstances where she did not refuse to work as set out in s 26(1) of the OSH Act. Main Roads says that although Ms Conti-Nibali believed that vaccination constituted a risk to her and she was not prepared to comply with the Employer Direction, Ms Conti-Nibali did not refuse to work. Main Roads argues that instead Ms Conti-Nibali was excluded from the workplace by Main Roads because the CHO Directions made it unlawful for her to enter places she may have been required to enter to discharge the duties of her employment. As a result of that, Ms Conti-Nibali could not render full service and she was not paid by Main Roads from the date she was excluded until she was dismissed. In essence, Main Roads argues that refusal to work because of a risk in the workplace was not the operative reason for Ms Conti-Nibali’s absence from the workplace.

27      Main Roads submits that it is clear from Ms Conti-Nibali’s concurrent appeal to a Public Service Appeal Board (PSAB Appeal) that she understood that she could not work over the period in respect of which she claims payment. Further, the PSAB Appeal substantially raises the same issues that are referred to the Tribunal. In the PSAB Appeal, Ms Conti-Nibali disputes that the Employer Direction was lawful, having regard to the OSH Act. She seeks reinstatement and payment of lost salary from the date she was excluded from the workplace. Accordingly, Main Roads says that there is no utility in application OSHT 1 of 2022 being maintained. It should be dismissed in the public interest, whatever the decision on jurisdiction.

Ms Conti-Nibali’s submissions

28      Ms Conti-Nibali’s submissions raise a range of matters that are not relevant to the questions the Tribunal must answer in order to determine the Dismissal Application.

29      Ms Conti-Nibali says that on 5 January 2022 she reported to Main Roads ‘the hazard associated with’ the Employer Direction, which she says is a work instruction under the OSH Act. She argues that she complied with the requirements of sections 24 – 26 of the OSH Act and refused to complete the work task of vaccination ‘due to the high risk of injury and/or death.’ Ms Conti-Nibali argues that during the dispute process, she told Main Roads that she could continue to complete all other work duties but ‘this request was rejected.’

30      Ms Conti-Nibali says that she was surprised to receive the email on 4 January 2022 instructing her to leave work immediately if she had attended, because she thought her manager had approved her working from home. She replied to Main Roads on 5 January 2022, saying that if the Employer Direction applied to her, she would not comply because she considered the risk was too high to safely comply with the Employer Direction.

31      Ms Conti-Nibali argues that application OSHT 1 of 2022 falls within the Tribunal’s jurisdiction and should not be summarily dismissed because of ‘any deficiencies to correctly articulate the relief which is sought, or is available’.

32      Ms Conti-Nibali says that the fourth head of relief ‘may be outside of the Tribunal’s jurisdiction’ but she says ‘it would stand to reason’ that ‘any offence of the Act’ would be brought to WorkSafe WA’s attention. She argues that orders in relation to risk assessments would assist with the resolution of the PSAB Appeal. Ms Conti-Nibali says that the matters raised in the PSAB Appeal are different to the matters raised in application OSHT 1 of 2022.

Consideration

33      This decision is not about the merits of Ms Conti-Nibali’s substantive application. It deals with the Dismissal Application.

Does the Tribunal have jurisdiction to hear and determine application OSHT 1 of 2022?

34      The Tribunal does not have jurisdiction to inquire into and deal with every dispute that occurs in a workplace. Section 51G(1) of the OSH Act sets out the matters the Tribunal may hear and determine. Those include matters related to disputes about an entitlement to pay or benefits where there has been a refusal to work under s 26, certain disputes relating to the election and disqualification of safety and health representatives, the variation of particular entitlements of safety and health representatives, claims under s 35C about disadvantage caused to safety and health representatives, the review of a decision made by the WorkSafe Commissioner under s 39(1) and reviews of prohibition and improvement notices issued by the WorkSafe Commissioner.

35      I do not consider that s 51G(1) of the OSH Act confers jurisdiction to deal with the dispute Ms Conti-Nibali has referred to the Tribunal. At its heart, the dispute underpinning application OSHT 1 of 2022 is about whether the Employer Direction is a reasonable lawful order. That matter is outside of the Tribunal’s jurisdiction.

36      Further, in my view all but one of the remedies Ms Conti-Nibali seeks fall outside of the powers the Tribunal could exercise when determining an application referred under s 28 of the OSH Act. In the circumstances, the Tribunal would not have the power to make the declarations and orders Ms Conti-Nibali seeks. Specifically:

a. First and second heads of relief - determining an application referred under s 28 of the OSH Act does not involve a determination of whether an employer is ‘obligated to comply with OSH Law.’ The Tribunal has no power to make a declaration about Main Roads’ obligation to comply, or its compliance, with safety and health legislation. Further, it is not for the Tribunal to determine whether the Employer Direction originated from the CHO Directions. The Tribunal has no power to make a declaration about that matter.

b. Fourth head of relief – the Tribunal has no power to investigate alleged breaches of the OSH Act and refer those to the regulator for prosecution.

c. Fifth head of relief – the Tribunal has no power to determine whether Main Roads was required to do a risk assessment, nor can it direct Main Roads to do a risk assessment. In any event, in circumstances where the CHO Directions have been revoked, such a risk assessment no longer serves a purpose.

d. Sixth head of relief – the Tribunal has no power to make an order for damages.

37      The third head of relief falls within the Tribunal’s powers, but that does not assist Ms Conti-Nibali for the reasons set out from [40] to [44].

38      Accordingly, I consider that the Tribunal lacks jurisdiction to hear and determine application OSHT 1 of 2022 and therefore it should be dismissed.

39      Even if the Tribunal had jurisdiction, for the reasons below I consider that application OSHT 1 of 2022 should be dismissed under s 27(1)(a) of the IR Act.

Even if the Tribunal has jurisdiction, should it dismiss application OSHT 1 of 2022?

40      Ms Conti-Nibali says that she refused to work on 5 January 2022 when she refused to be vaccinated. However, I find that by 5 January 2022, Main Roads had already excluded Ms Conti-Nibali from the workplace.

41      The Employer Direction issued on 16 December 2022. The Employer Direction told employees that if they did not comply with the Employer Direction to be vaccinated or provide evidence of exemption, they would be unable to work from 1 January 2022. Main Roads repeatedly warned Ms Conti-Nibali in writing that it would exclude her from the workplace and prevent her from doing any work if she was not vaccinated or exempt by 1 January 2022.

42      That Ms Conti-Nibali understood that Mr Kapitola had agreed on 20 December 2021 that Ms Conti-Nibali could work from home between 4 and 7 January 2022 because she would be impacted by the Mandurah rail line shut down does not assist Ms Conti-Nibali in this matter. It does not support a finding that Ms Conti-Nibali refused to work. Further, Ms Conti-Nibali was warned 10 days later, on 30 December 2021, by her employer that if she remained unvaccinated she would be unable to do any work for Main Roads from 1 January 2022, and in effect she was told that again on 4 January 2022.

43      I am not persuaded by arguments about a lack of authority to give directions. On the evidence before the Tribunal, I am satisfied that Main Roads issued the Employer Direction to Ms Conti-Nibali and warned her multiple times that she would be excluded from the workplace before the time Ms Conti-Nibali says she refused to work. In the circumstances, it should have been clear to Ms Conti-Nibali that she had been directed to be vaccinated or provide evidence of exemption by 31 December 2021.

44      I accept Main Roads’ submission that refusal to work because of a risk in the workplace was not the operative reason for Ms Conti-Nibali’s absence from the workplace. On the material before the Tribunal, I consider that Ms Conti-Nibali’s refusal to be vaccinated on 5 January 2022 did not amount to a refusal to work for the purposes of s 26 of the OSH Act. Ms Conti-Nibali’s own emails (including her email dated 5 January 2022) and her Form 6 referral to the Tribunal make it clear that she considered that she was willing and able to perform her duties at work but the reason she did not work is because Main Roads excluded her from the workplace. I find that the reason Ms Conti-Nibali did not work is because Main Roads excluded her from the workplace from 1 January 2022 because Ms Conti-Nibali did not comply with the Employer Direction.

45      Section 27(1)(a) of the IR Act provides:

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

(a) at any stage of the proceedings dismiss the matter or any part of it or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part is trivial; or

(ii) that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing of it discontinued, as the case may be;

It confers on the Commission (and in this case, the Tribunal) the power to dismiss an application: cl 29 of sch 1 of the Work Health and Safety Act 2020 (WA) (WHS Act). The power is broad and should be exercised with caution: Magyar v Department of Education [2019] WAIRC 00781 at [14] and in accordance with s 26(1)(a) of the IR Act: Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 68 WAIG 4.

46      In circumstances where Ms Conti-Nibali did not refuse to work, her claim under s 28 of the OSH Act has no merit and no prospects of success. I therefore consider that the Tribunal’s exercise of the power in s 27(1)(a) of the IR Act to dismiss application OSHT 1 of 2022 is in accordance with equity, good conscience and the substantial merits of the case.  The Tribunal should dismiss application OSHT 1 of 2022 under cl 29 of sch 1 of the WHS Act and s 27(1)(a) of the IR Act.

47      Given these reasons, it is unnecessary to decide whether application OSHT 1 of 2022 should be dismissed because there is no utility in it being determined in circumstances where the PSAB Appeal is a concurrent appeal in relation to the same matters.

Conclusion

48      The Tribunal does not have jurisdiction to hear and determine application OSHT 1 of 2022.

49      Even if the Tribunal had jurisdiction to hear and determine application OSHT 1 of 2022, in circumstances where the Tribunal has found that the operative reason for Ms Conti-Nibali’s absence from the workplace was because Main Roads excluded her from the workplace, and not because she refused to work, the Dismissal Application must be upheld.

50      The Tribunal will dismiss application OSHT 1 of 2022.