Australian Salaried Medical Officers Federation (New South Wales) (ASMOF) v Central Sydney Area Health Service

Australian Salaried Medical Officers Federation (New South Wales) (ASMOF) v Central Sydney Area Health Service - [2006] NSWIRComm 202 - NSWIRComm 2006 case summary — Zoe

[11]

1 Mr Brett Raymond Fisher was employed by Inghams Enterprises Pty Ltd ("the Respondent") as a process worker for approximately 11 years at the Respondent's production facility located at Cardiff in New South Wales. 2 The relevant factual circumstances are not disputed. These are: · Mr Fisher suffered an injury on 6 January 2006. He had some time off work and received worker's compensation payments. · Mr Fisher returned to work and, pursuant to treatment and management of the injury, was undertaking "suitable duties" prior to 8 March 2006. · On 8 March 2006 Mr Fisher advised the Respondent via the Occupational Health and Safety Officer that his surgeon had agreed he could commence normal duties from 9 March 2006. · On 9 March 2006 Mr Fisher undertook his normal duties for a period of 2 hours prior to providing the Respondent with the medical certificate confirming that he was fit for pre-injury duties that date. · On receipt of the medical certificate the Respondent stood Mr Fisher down from work for a period of three weeks on full pay. · Mr Fisher's employment was terminated by the Respondent effective from 5 April 2006. Payment of four weeks wages in lieu of notice was made to Mr Fisher. · At the same time the Respondent had in their possession a medical report from an independent Specialist Surgeon also stating that Mr Fisher was fit to return to pre-injury duties. However, that same report stated that Mr Fisher was at significant risk of suffering a further "similar" injury whether he was at work or outside of work. · Having considered that report the Respondent concluded that it had a duty of care pursuant to the Occupational Health and Safety Act 2000 to "ensure the health, safety and welfare at work of all the employees of the employer" and the only way to discharge this duty of care in relation to Mr Fisher was to terminate his employment. 3 The Australasian Meat Industry Employees Union, Newcastle and Northern Branch ("the Union") makes application for reinstatement pursuant to Part 7, Protection of Injured Employees of Chapter 2 of the Industrial Relations Act 1996 ("the NSW Act"). 4 Mr Pollard of Jones Ross, Industrial Relations and Human Resource Consultants and Advocates, appearing on behalf of the Respondent, asserts that the application cannot be made as the employer is a constitutional corporation and outside jurisdiction of the NSW Act; and alternately that at the time of termination of his employment Mr Fisher was not an injured employee as defined by s 91(i) of the NSW Act, putting that the termination of employment was not because of the injury of 6 January 2006, but to prevent further injury of the type suffered on 6 January 2006. 5 The challenge to jurisdiction is opposed by the Union on both grounds. 6 Mr Norris, appearing on behalf of the Union, put: (a) … … the Workplace Relations Act 1996 (Cth.) ["the Federal Act"] does not exclude State laws dealing with workers compensation. There is an established line of authority which supports an argument that Part 7 of Chapter 2 of the Industrial Relations Act 1996 (NSW) ["the State Act"] are laws which deal with the subject matter of workers compensation.

[35]

11 Mr Pollard relied upon Australian Salaried Medical Officers Federation (New South Wales) (ASMOF) v Central Sydney Area Health Service (2005) 147 IR 56; and Cansino v South Western Sydney Area Health Service (2003) 130 IR 1, in which the statutory scheme for protection of injured workers is subject to analysis and the legislative history set out. 12 The statutory framework is discussed in Cansino (130 IR at 9): We first refer to the legislative history because it is necessary to have it in mind in order to appreciate the submissions made. The provisions of Pt 7 of Ch 2 are similar in nature, although different in precise terms, to the corresponding provisions of Pt 7 - Protection of Injured Employees, of Ch 3 of the Industrial Relations Act 1991 . The 1991 Act provisions were in turn similar in nature, although different in wording, to Pt XV - Protection of Injured Employees, of the Industrial Arbitration Act 1940 which was inserted into that Act by the Industrial Arbitration (Workers Compensation) Amendment Act 1987; that legislation was introduced with a cognate bill leading to the Workers Compensation Act 1987. The legislature at the time considered a package of measures which included a new Workers Compensation Act, amendments to occupational health and safety legislation and other consequential legislative changes designed to minimise the cost to the community of work injuries in the State. Radical changes were made to the workers' compensation legislation abolishing claims for common law damages, increasing the initial benefits payable for total incapacity, varying the circumstances under which partial incapacity benefits could be paid and, of present importance, emphasising rehabilitation as a means of reducing the costs of workers' compensation claims. The occupational health and safety legislation was strengthened to focus attention on workplace safety. Part XV of the 1940 Act was introduced to complement the area of rehabilitation. In his second reading speech in introducing the package of legislation, the Minister for Industrial Relations and Minister for Employment said (Hansard, Legislative Assembly, 14 May 1987 at p 12211): In keeping with the emphasis on rehabilitation and stressing the responsibilities of all the parties involved in the workers' compensation area, a prohibition will be placed on the dismissal of a totally incapacitated worker within the period of total incapacity, up to a maximum period of six months from the date of injury, unless it is certified medically that the worker is permanently unable to resume duties in his or her former employment. Workers whose employment is terminated outside that period of total incapacity and who are certified fit for their previous work will have a right to apply to the Industrial Commission for reinstatement. Section 154C of the 1940 Act contained within Pt XV was as follows: (1) If an injured employee is dismissed because he or she is not fit for employment in a position as a result of the injury received, the employee may apply to the employer for reinstatement to his or her former position. (2) An injured employee's former position is - (a) the position from which the employee was dismissed; or (b) if the employee was transferred to a less advantageous position before dismissal, the position which the employee held when he or she became unfit for employment, at the option of the employee. (3) The employee must produce to the employer a certificate given by a legally qualified medical practitioner to the effect that the employee is fit for employment in the former position. (4) This section does not apply to a dismissal which occurred before the commencement of this section. Those provisions in s 154C were considered in a series of cases involving a claim brought by a dismissed employee against his former employer: see State Rail Authority (NSW) v Tyrrell (1993 ) 49 IR 236 and State Rail Authority (NSW) v Tyrrell (No 2) (1993) 51 IR 14. The proceedings ultimately were determined by the Court of Appeal in State Rail Authority (NSW) v Bauer (1994) 55 IR 263; special leave to appeal from that decision was declined by the High Court of Australia. This litigation centred around the controversy concerning the use of the word "position" within s 154C . A "position" was seen to mean either the classification used to describe the status of an employee within an employment matrix or alternatively the work duties performed by the employee. Part 7 of Ch 3 of the 1991 Act also used the word "position". At the time that that 1991 statute was enacted the controversy as to the use of the word "position" had not surfaced. However when the current 1996 Act was introduced into Parliament the legislature must have been aware of the controversy and, in fact, had modified the language used in order to avoid it. Part 7 of Ch 2 of the 1996 Act refers generally to "employment of a kind" rather than "position". In his second reading speech in moving for the enactment of the 1996 legislation, the Attorney-General and Minister for Industrial Relations said ( Hansard , Legislative Council, 23 November 1995 at p 3849): Chapter 2 part 7 carries forward the provisions of the 1991 Act which are designed to provide certain employment-security rights for persons who have suffered a work-related injury. The existing provisions have been the subject of some judicial criticism and the bill has been redrafted to state more clearly the powers of the commission in this area and to make some appropriate changes to assist injured workers. The bill now allows the commission the discretion to order back payments. This is an appropriate discretionary measure: dismissed injured workers, no less than unfair dismissal applicants, should not be disadvantaged financially and should be encouraged to return to work. There is no ability to order compensation in lieu of reinstatement: the policy objective is the reinstatement of injured workers. The bill adopts a more flexible approach to the kind of employment to which an employee can be reinstated. This will facilitate the laudable aim of the return to work of injured employees - but it will be balanced against employer interests as it must be employment which is available and for which the employee is fit. It is not intended that orders would be made for employment that is merely of a token nature and does not involve useful work having regard to the employer's operations; or employment that is demeaning in nature, having regard to the nature of the worker's incapacity, education, skills and work experience. It is intended that the meaning of "available" reflect the approach taken by the commission in Commonwealth Steel Co Ltd v Ward (unreported, Industrial Relations Commission, NSW, IRC 3144 of 1993, Hill, Hungerford JJ and.Shiels C, 16 December 1994). Before leaving the topic of injured workers, I should mention that it is intended that the references to "dismissal" in this part of the bill dealing with the protection of injured workers be capable of applying to instances of "constructive dismissal". 13 Mr Pollard referred to the first two of 21 specific points set out by the Full Bench (Hungerford and Marks, JJ, O'Neill C) in Cansino where, following a discussion of the statutory framework, the Bench said (130 IR 11 to 14): Having regard to those general observations we now turn to an analysis of the provisions of Pt 7 of Ch 2 which are relevant to the determination of these proceedings. It seems to us that those provisions operate in the following way:

[56]

(21) Section 94(3)(b) refers to employment of a kind which the Commission considers the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation), That accommodates employment of a kind not currently available and involves a consideration of the position of the employee in terms of physical capacity and underlying expertise, experience, qualifications etc, as well as the ability of the employer to make work of that kind available. In that latter regard, the use of the word "reasonably" would accommodate financial cost to the employer as well as any dislocation, interruption or interference with the manner in which the, employer conducts its undertaking and the manner in which the employer deploys its staff; in addition, the usefulness to the employer of the work so arranged to be performed is a relevant consideration. 14 Mr Pollard submitted that the analysis provided in Cansino (130 IR at 11, pts (1) and (2)) were confirmed in Australian Salaried Medical Officers Federation (New South Wales) (ASMOF) v Central Sydney Area Health Service (2005) 147 IR 56 which he put is authority confirming that an application may only be made where the employee at the time of dismissal was entitled to workers compensation, putting that in this matter Mr Fisher was not entitled to workers compensation at the time of termination of employment and accordingly not eligible to make an application. 15 Mr Pollard noted that the applicant in ASMOF remained injured and that the right to workers compensation was excluded only by settlement of that litigation for a lump sum payment. 16 Mr Norris relied upon the majority judgment of Wright J, President and O'Neill C in ASMOF (Wright J, President, Staunton J, O'Neill C) to refute the assertion by Mr Pollard. Mr Norris referred to the following passages (147 IR at 75 to 76): 69 The rights under the statutory scheme are available to an "injured employee", as defined. Two questions then arise: first, what is the ordinary grammatical meaning of the definition of "injured employee"? Second, in respect of an employee who has been dismissed because he or she is not fit for employment as a result of the work-related injury received, is there any basis to distinguish between employees still receiving, or eligible to receive, compensation payments and those not in that situation?

[69]

(d) a law that: (i) is a law of a State or Territory; and (ii) is prescribed by regulations for the purposes of this paragraph. 26 Mr Pollard submitted that the Applicant and Respondent in this matter fall within the definition of employee (s 5) and employer (s 6) of the Federal Act, and accordingly the effect of s 16 is to bar access to any jurisdiction other than that of the AIRC for any employee whose employment is terminated for any reason by an employer. 27 Mr Pollard described the operation of the Federal Act to paint a black brush over certain aspects of the NSW Act excluding its operation entirely in respect to constitutional corporations. 28 Mr Pollard put that s 643 and s 659 of the Federal Act provide access to remedy. 29 Section 643 of the Federal Act makes provision for application where a termination of employment is asserted to be harsh, unreasonable or unjust; or that the termination of employment is contrary to conventions concerning discrimination, family responsibilities, and the Termination of Employment Recommendation of the ILO No 166. 30 In particular, s 659(2)(a) relied upon by Mr Pollard prescribes that, subject to particular exceptions, employment must not be terminated due to temporary absence from work because of illness or injury within the meaning of the regulation. The relevant regulation is Ch 2, Reg. 12.8 which states: 12.8 (1) For paragraph 650(2)(a) of the Act, an employee's absence from work because of illness or injury is a temporary absence if: (a) the employee provides a medical certificate for the illness or injury within: (i) 24 hours after the commencement of the absence; or (ii) such longer period as is reasonable in the circumstances; or (b) the employee: (i) is required by the terms of an industrial instrument to: (A) notify the employer of an absence from work; and (B) substantiate the reason for the absence; and (ii) complies with those terms, or (c) the employee has provided the employer with a required document in accordance with section 254 of the Act.

[88]

(6) For the avoidance of doubt, a proceeding seeking compensation, or the imposition of a penalty, because an employer has failed, in relation to a termination of employment, to meet an obligation: (a) to give adequate notice of the termination; or (b) to provide a severance payment as a result of the termination; or (c) to provide any other entitlement payable as a result of the termination is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination. [s 672 subst Act 153 of 2005 s 3 and Sch 1] 34 Mr Norris put that the provisions of s 672 deal with the intersection of State and Federal laws concerning termination of employment and are in his submission directed at avoidance of double dipping and do not give rise to conflict so as to invoke s 109 of the Constitution. 35 Mr Norris relied upon the judgment of Schmidt J in Fabros v Hotel Intercontinental Sydney [1994] 53 IR 193 where her Honour held that the protection of injured workers provisions of the state award were available to an employee formerly employed pursuant to a Federal Award. 36 In particular Mr Norris relied upon the judgement of her Honour (53 IR at 200) : The purpose of the provisions of Part 7 (or at least its predecessor - Part XV of the Industrial Arbitration Act 1940 (the 1940 Act)) has been described by the Full Court in State Rail Authority of New South Wales v Tyrell (No 2) (1993) 53 IR 14 to be "the apparent purpose of assisting in the rehabilitation of injured workers". In that case the Full Court also held at 21 that s154 I (the predecessor to s241) has the following effect: 'Section 154 I is confined, in subs (1), to preserving the continuity of the service of the employee with the employer. However, under subs (2) the period between dismissal and reinstatement is not to be taken into account in calculating the period of service for any purpose. These provisions in our opinion do not manifest an intention to confer any power to 'reinstate' retrospectively. What they convey is an intention that the reinstatement be effected from the date of the order and that there be no benefit gained from the intervening period save continuity of service. In effect the period between dismissal and reinstatement is notionally expunged.' These observations tend to support the view which I take of the proper construction of Ch 3, Pt 7, and its possible interaction with the award. Part XV of the 1940 Act is of course in similar, (but not identical) terms to Pt 7 of Ch 3. The differences (for instance the extension of the time in which a reinstatement application can be made from 6 months to 2 years), tend to strengthen the view which I take, 37 Her Honour concludes at pp 204, 205:

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In my view the benefits conferred by Ch 3, Pt 7 upon injured workers, which fall for my consideration, are properly to be regarded as statutory rights of a kind which have been treated as standing "outside the matters or relations dealt with by awards" ( Metal Industry Case per Mason, Brennan and Deanne JJ at 295) and not "within the purview of the award" ( Wardley per Stephen J at 251). That this provision for injured workers appears in the Act rather than in the Workers Compensation Act does not derogate from that conclusion. I do not find any inconsistency between the provisions in the award and Ch 3, Pt 7 of the Act. 38 Mr Norris submitted that Fabros has been accepted as correctly decided in Unions NSW v Carter Holt Harvey Wood Products Australia Pty Ltd (2006) 149 IR 361 and Construction, Forestry, Mining and Energy Union (NSW Branch) on behalf of Scott Anthony Elwell and Cobar Mining Services Pty Ltd and Anor [2004] NSWIRComm 32. 39 Mr Norris also relied upon ASMOF at paras 72 -73: 72 … … The conclusion reached is, we consider, consistent with the statutory purpose; that is, to promote rehabilitation and return to work of employees injured at work by providing some measure of protection to them from dismissal on the basis of work-related injury provided the employee establishes a relevant level of fitness for work and the application is brought with a reasonable time after the dismissal. 73 The statutory purpose we have identified emerges from an examination of the legislation itself. It is also confirmed by the various Second Reading Speeches referred to in the Minister's submissions, to which we have earlier referred. 40 Mr Norris put further argument in support of a finding that the subject matter of Pt 7 of Ch 2 is workers compensation in the following terms: The Applicant submits that Part 7 of Chapter 2 of the State Act are laws which fall under the subject matter of workers compensation. There are several reasons why this contention is advanced:

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41 The scheme of the Federal Act is complex, it first excludes State and Territory laws as defined, then preserves particular aspects of State and Territory laws. 42 It is necessary to determine where Pt 7 of Ch 2 falls within that fabric. 43 The Federal Act then makes provision for reinstatement where employment is found to be harsh, unreasonable and unjust, and prohibits termination of employment in particular circumstances. 44 It is necessary to determine whether the circumstances of an injured worker fall within that framework, resulting in exclusion of Pt 7 of Ch 2 of the NSW Act by s 109 of the Constitution. 45 It is undeniable that the Federal Act does not entirely exclude application of the NSW Act to corporations or their employees. 46 This is adequately demonstrated by the provision of s 16 and s 672 of the Federal Act and, if there be doubt of the statutory intention, Note 2 to s 638 confirms that an application may be brought under the NSW Act. Note 2 states: 2. An employee who is excluded from the provisions of the Act specified in this subsection may still be eligible to apply for a remedy in relation to the termination of employment under a provision of a State law that is not excluded under section 16. 47 It is important to note that the exclusions identified in s 638 are confined as is the Federal Act to employees of constitutional and trading corporations and logically it is employees of constitutional and trading corporations who may bring an application pursuant to a State law. 48 It is plain from a reading of the Federal Act that the NSW Act is not subject to blanket exclusion, colourfully described by Mr Pollard as a black brush across the State legislation. 49 Part 7, Protection of injured workers, of Ch 2 of the NSW Act is properly characterised as workers compensation. 50 The statutory framework set out in Cansino confirms the link between Ch 2, Pt 7 and compensable injury and statutory purpose of providing assistance to injured workers by protection in the recovery, rehabilitation and return to work consequences of injury so as to properly characterise Pt 7 of Ch 2 as a law concerning workers compensation, and thus preserved by s 16(3)(b) of the Federal Act. 51 As detailed above the Federal Act goes no further than making termination of employment due to temporary absence from work as defined unlawful. These provisions are of significantly different scope and purpose than Pt 7 of Ch 2 of the NSW Act under consideration here. 52 A significant distinction between the provisions of Pt 7 of Ch 2 of the NSW Act and the provisions of the Federal Act is that provisions of the NSW Act arise from and are connected to injury as defined, whilst the Federal Act has its primary focus on termination of employment. 53 It is further evident from the terms of the Federal Act, particularly s 16(3), and Division 4, Termination of Employment, that it is not the intention of the Federal Act to cover the field. 54 The determinations in Unions NSW v Carter Holt Harvey Wood Products (2006) 149 IR 363 and Fabros support the conclusion that no s 109 conflict arises in the present matter due to the distinctly different subject matter addressed in the NSW and Federal legislation. DETERMINATION (1) Part 7, Protection of Injured Workers, of Ch 2 of the NSW Act applies to employees of constitutional and trading corporations and is not excluded by the Federal Act.

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