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

Industrial Relations Act 1996 Occupational Health and Safety Act 2000 LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998 Workers Compensation Act 1987 Workers Compensation (Dust Diseases) Act 1942 Workplace Relations Act 1996

Australian Salaried Medical Officers Federation (New South Wales) (ASMOF) v Central Sydney Area Health Service (2005) 147 IR 56 Cansino v South Western Sydney Area Health Service (2003) 130 IR 1 Deltec International Courier Pty Ltd v Transport Workers Union (NSW Branch) (1993) 50 IR 341 CASES CITED: Fabros v Hotel Intercontinental Sydney [1994] 53 IR 193 State Rail Authority of New South Wales v Laurie Cecil Tyrell (1993) 53 IR 14 Unions NSW v Carter Holt Harvey Wood Products Australia Pty Ltd [2006] NSWIRComm 2 (2006) 149 IR 361 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.

APPLICANT Mr L Norris AMIEU LEGAL REPRESENTATIVES:

RESPONDENT Mr C Pollard Jones Ross

• 26 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION, NEWCASTLE AND NORTHERN BRANCH (ON BEHALF OF BRETT FISHER) AND INGHAMS ENTERPRISES PTY LTD

Application for reinstatement of injured employee pursuant to section 93 of the Industrial Relations Act 1996

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.

(b) The Respondent's point that s.93 only applies to a worker who is "currently injured" is untenable in the face of the decision in ASMOF (NSW) v Health Administration Corporation & Ors.

(c) In light of the reverse onus of proof contained in s.95 of the State Act, the balance of the Respondent's "jurisdictional" objections are preemptory and not truly jurisdictional in nature. 7 Mr Norris submitted that Mr Fisher was an injured employee as defined, and that the termination of his employment enlivens the rebuttable presumption found in s 95 of the NSW Act which places an onus of proof upon the employer to establish by way of properly tested evidence that the injury was not a substantial and operative cause of the dismissal. 8 It is appropriate to commence with consideration of the NSW Act. 9 Part 7 Protection of Injured Employees of the NSW Act provides: Part 7 Protection of injured employees

(1) For the purposes of this Part, an injured employee is an employee who receives an injury for which the employee is entitled to receive compensation under the Workplace Injury Management and Workers Compensation Act 1998 , the Workers Compensation Act 1987 , or the Workers Compensation (Dust Diseases) Act 1942 .

(2) For the purposes of this Part, a person is the employer of an injured employee only if the injury arose (either wholly or partly) out of or in the course of employment with that person.

(3) In this Part, reinstatement includes re-employment. 92 Application to employer for reinstatement of dismissed injured employee

(1) If an injured employee is dismissed because he or she is not fit for employment as a result of the injury received, the employee may apply to the employer for reinstatement to employment of a kind specified in the application.

(2) The kind of employment for which the employee applies for reinstatement cannot be more advantageous to the employee than that in which the employee was engaged when he or she first became unfit for employment because of the injury.

(3) The employee must produce to the employer a certificate given by a medical practitioner to the effect that the employee is fit for employment of the kind for which the employee applies for reinstatement. 93 Application to Commission for reinstatement order if employer does not reinstate

(1) If an employer does not reinstate the employee immediately to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), the employee may apply to the Commission for a reinstatement order.

(2) An industrial organisation of employees may make the application on behalf of the employee.

(3) The Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured employee was dismissed. 94 Order by Commission for reinstatement

(1) The Commission may, on such an application, order the employer to reinstate the employee in accordance with the terms of the order.

(2) The Commission may order the employee to be reinstated to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), but only if the Commission is satisfied that the employee is fit for that kind of employment.

(3) If the employer does not have employment of that kind available, the Commission may order the employee to be reinstated to employment of any other kind for which the employee is fit, being: (a) employment of a kind that is available but that is less advantageous to the employee, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation). (4) If the Commission orders the employee to be reinstated, it may order the employer to pay to the employee an amount stated in the order that does not exceed the remuneration the employee would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission. 95 Presumption as to reason for dismissal (1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured employee was dismissed because he or she was not fit for employment as a result of the injury received.

(2) That presumption is rebutted if the employer satisfies the Commission that the injury was not a substantial and operative cause of the dismissal of the employee. 96 Disputes as to fitness - medical assessment (1) The Commission may refer to an approved medical specialist (appointed under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 any dispute as to the employee's condition and fitness for employment. For the purposes of that reference, the approved medical specialist has and may exercise all the functions of an approved medical specialist under that Act.

(2) The approved medical specialist is to submit a report to the Commission in accordance with the terms of the reference.

97 Continuity of service of reinstated employee (1) If an employee is reinstated under this Part, the Commission may order that the period of employment of the employee with the employer is taken not to have been broken by the dismissal.

(2) However if the Commission does so, the period between dismissal and the date of the application by the employee to the employer for reinstatement is not to be taken into account in calculating for any purpose the period of service of the employee with the employer.

98 Duty to inform replacement employee An employer who, within 2 years after dismissing an injured employee, employs a person to replace the dismissed employee is guilty of an offence unless the employer first informs the person that the dismissed employee may be entitled under this Part to be reinstated to carry out the work for which the person is to be employed.

99 Dismissal within 6 months of injury an offence (1) An employer of an injured employee who dismisses the employee is guilty of an offence if: (a) the employee is dismissed because the employee is not fit for employment as a result of the injury, and (b) the employee is dismissed during the relevant period after the employee first became unfit for employment. Maximum penalty: 100 penalty units.

(1A) For the purposes of subsection (1), the relevant period is: (a) the period of 6 months after the employee first became unfit for employment, except as provided by paragraph (b), or (b) if the employee is entitled under a Commonwealth or State industrial instrument to accident pay as a result of the injury for a period exceeding that period of 6 months - the period during which the employee is entitled to accident pay. Accident pay is an entitlement of the employee to payment by the employer, while the employee is unfit for employment, that is described as accident pay in the relevant industrial instrument. (2) It is a defence to a prosecution for an offence under this section if the employer satisfies the court that: (a) at the time of dismissal, the employee would not undergo a medical examination reasonably required to determine fitness for employment, or (b) at the time of dismissal, the employer believed on reasonable grounds that the employee was not an injured employee within the meaning of this Part. (3) The prosecution may establish that an injured employee was dismissed because the employee was not fit for employment as a result of the injury if the prosecution establishes that the injury was a substantial and operative cause of the dismissal.

(4) This section applies even if the employee became unfit for employment before the commencement of this section.

This Part does not affect any other rights of a dismissed employee under this or any other Act or under any industrial instrument or contract of employment. 10 Mr Pollard submitted that the NSW Act could not be applied to provide protection for employees for six months after an injury in circumstances where the employee had recovered from that injury, as to do so would give that employee an untenable and unfair advantage over other employees.

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:

(1) They are confined to a person who sustained injury in circumstances which created an entitlement to receive compensation under the Workers Compensation Act 1987 or the Workers' Compensation (Dust Diseases) Act 1942. (Since 31 July 1998, the coverage was extended to persons entitled to receive compensation under the Workplace Injury Management and Workers Compensation Act 1998): s 91(1).

(2) The employment of such a person must have been terminated by. the employer "because" (that is, for the reason that) the person was not fit for employment and such unfitness for employment must in turn have resulted from the relevant injury: s 92(1). A person is the "employer", and hence liable to meet an order for reinstatement, only if the injury arose (either wholly or partly) out of or in the course of employment with that person: s 91(2).

(3) Such a person may apply to the employer who dismissed him or her for reinstatement to "employment of a kind" which the person must specify when making the application: s 92(1).

(4) Questions may arise as to what is meant by the expression "fit for employment" in s 92(1) in the context of a person undergoing rehabilitation. Presumably, "employment" where used in the subsection has the same meaning as where used in the remainder of Pt 7 of Ch 2. This raises the question as to whether fitness for employment where, used in s 92(1) refers to unfitness for employment of any kind or unfitness for the pre-injury employment. It is not necessary to address those issues in the circumstances of the present matter.

(5) Prima facie, the word "reinstatement" imports a notion of becoming re-employed in the work which the person was undertaking at the time of termination of employment: see the discussion of the concept in Deltec International Courier Pty Ltd v Transport Work­ers Union (NSW Branch) (1993) 50 IR 341 at 350-354; in any event, s 91(3) defines "reinstatement" to include "re-employment". But, such a notion is displaced because the reinstatement is said to be available to employment of a kind specified in the application which, necessarily, imports the possibility of employment to something, other than the precise pre-dismissal employment.

(6) "Employment of a kind" refers to the work as specified in the application. The kind of employment applied for cannot be "more advantageous to the employee" than the work in which the person was engaged when he or she first became unfit for employment because of the injury: s 92(2). What is "more advantageous" may be open to debate having regard to remuneration, general working conditions, status and the like; such debate does not arise in these proceedings. However, the kind of employment for which the employee applies for reinstatement may indeed, at his or her election, be less advantageous to the employee than the pre-injury employment, so long as it is not more advantageous.

(7) It is necessary for the person to "produce" (that is, show) to the former employer a certificate from a medical practitioner. The effect of the certificate, that is its general thrust, must be that the employee is fit to undertake the work as described by the employee when making application for reinstatement: s 92(3) .

(8) The person may apply to this Commission for a reinstatement order if he or she is not "immediately" reinstated to employment of the kind for which the person applied or to any other kind of employment that is no less advantageous to that person: s 93(1).

(9) An application may be made on behalf of the employee by, an industrial organisation of employees: s 93(2); and a reinstatement order may not be made, except in special circumstances, if the application was made more than two years after the dismissal: s 93(3).

(10) Provided all of the pre-conditions outlined above are fulfilled this Commission is empowered to make orders of the kind and in the circumstances described in s 94, and in particular subss (2) and (3) thereof.

(11) An order may be made reinstating the employee to either employment of the kind for which the employee has applied (which may be as or less advantageous than the pre-injury employment) or employment of any other kind that is no less advantageous to the employee than that applied for. In either case, and importantly, any such order can only be made if the Commission is satisfied the employee is fit for that kind of employment: s 94(2).

(12) Whether and to what extent any such order is made under s 94 is discretionary and the section should not be construed as imposing a mandatory requirement upon the Commission to make such an order, subject, of course, to the discretion being, exercised in a proper manner. So much is clear from the repeated use in the section of the word "may".

(13) If the Commission is satisfied it is appropriate to make an order under s 94(2), the discretion reposes in the Commission as to which of the alternative courses it should adopt. In exercising discretion it would be necessary to do so on the evidence put before the Commission by the parties.

(14) Because of the provisions of s 94(3), it is apparent that any order made under s 94(2) must be referable to the situation where the employer has "available" employment of the kind to which the employee has applied for reinstatement. As well, any other kind of employment that is no less advantageous to the employee than that applied for may only be the subject of an order under s 94(2) if the Commission has determined that employment of that kind for which the employee has applied for reinstatement is available. This must follow, it seems, from the fact that s 94(3) in permitting an order in respect of employment of a kind that is available but which is less advantageous to the employee as opposed to employment which is no less advantageous to the employee than that applied for may only be made where "the employer does not have employment of that kind available".

(15) The reference in s 94(2) to employment "that is no less advantageous to the employee" involves considerations of advantage and disadvantage not only by reference to remuneration and status but also by reference to any rehabilitation programme and the part that that other kind of employment played in that programme.

(16) A determination of fitness for employment as referred to in s 94(2) must necessarily be made on the basis of medical evidence.

(17) The alternative orders available under s 94(3) may only be made if the Commission is satisfied that the employer does not have employment "of that kind" (that is, the employment referred to in s 94(2)) available.

(18) The provisions of s 94(3) raise questions as to who bears the onus of establishing whether the employer has employment of the kind so specified in s 94(2) available. Given the nature of the orders which may be made under s 94(2) and the resultant burden of any order under s 94(3) being on the employer, it would seem logical that such onus should fall on the employer.

(19) Section 94(3) creates two further alternative bases for the exercise of discretion, but in either case the Commission is required to find that the employee is fit for the alternative employment which is the subject of the order. Again, fitness would appropriately be determined by reference to relevant medical evidence.

(20) The first alternative set out in para (a) of s 94(3) is employment of a kind that the employer has available but which is less advantageous to the employee. That raises the question of what is meant by employment of a kind that is so "available". Given the contrast with the words used in s 94(3)(b), this would appear to be a reference to work in the nature of particular tasks which can be undertaken in a structured manner consistent with the manner in which the employer deploys staff in the context of the operations of the employer's undertaking. If this be correct, as we think it is, then in determining whether employment of that kind is available one is, to have regard to the employer's organisational structure and the way in which the employer operates. That is, one excludes, in considering what work is available for the purpose of s 94(3)(a), the possibility that the employer may have to rearrange the manner in which it operates and deploys its staff in order to accommodate any order made. That this is so must follow from the description of the kind of work which is the subject of an alternative order in s 94(3)(b).

(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?

70 As to the first question, close attention to the terms of the definition "injured employee" in s 91(1) of the Industrial Relations Act shows that the phrase or expression "is entitled to receive compensation ..." is to be seen as part of the clause "for which the employee is entitled to receive compensation ...". That clause does not, in our opinion, seek to impart or draw a temporal distinction between present or, for example, past entitlement. Rather, the clause is inserted in the definition as descriptive of, or defining, the kind of injury received by the employee which qualifies the employee as an "injured employee".

71 When the clause is seen in that way, which we consider is its ordinary grammatical meaning, it means that, for an employee to be an "injured employee", as defined, the injury received must be one for which there was an entitlement to workers compensation. That of course does not mean that the employee will have rights for relief under the statutory scheme forever. Any rights will depend on the employee being dismissed because of lack of fitness for employment, the application being brought within the relevant time frame and the employee's application being supported by a medical certificate as to fitness in relevant respects.

72 Once regard is paid to those limitations on the rights available under the statutory scheme, there is no reason to read the definition as distinguishing between employees depending on whether or not they are entitled to compensation payments. There is thus no reason to depart from the ordinary meaning of the relevant expression. 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. CONSIDERATION OF CAPACITY TO BRING APPLICATION 17 As found in ASMOF (para 69): The rights of the statutory scheme are available to an injured employee as defined. 18 There is no doubt that Mr Fisher is an injured employee as defined and is entitled to bring an application, the merits of which will be determined on the evidence. 19 It is appropriate to note that this matter is not an application for prosecution of an offence pursuant to s 99. Such proceedings, to the extent the Union is so advised, must, by operation of s 153(i)(a) of the NSW Act, be brought before the Industrial Court of New South Wales. 20 This matter is in the first instance focused upon s 95 which provides a process to determine whether the termination of employment was because the employee was not fit for employment because of the injury. In the event the presumption is rebutted the matter ends there. In the event the presumption is not rebutted remedy is provided subject to appropriate consideration pursuant to the statutory scheme. The remedy relies upon the employee being fit for work, and accordingly argument that fitness for employment excludes an application is plainly wrong as fitness for employment is a vital trigger to enlivening jurisdiction.

Application of the Australian Workplace Relations Act. 21 Mr Pollard's submission that the employer is a constitutional and trading corporation is not contested. The question is whether the application is excluded by the Workplace Relations Act 1996 as amended ("the Federal Act"). 22 Mr Pollard noted that the termination of employment was after 27 March 2006, the date upon which the Federal Act commenced, and accordingly the Applicant has no accrued rights under the NSW Act; and that the operation of s 109 of the Constitution means that any application seeking reinstatement for any reason must be to the Australian Industrial Relations Commission (AIRC) pursuant to the Federal Act. 23 The effective date of termination of employment and the question of residual rights was not put in issue by the Union, however, the last day worked by Mr Fisher was 9 March 2006 which gives rise to some question as to the validity of Mr Pollard's submission in respect to residual rights.

24 Mr Pollard relied upon s16 of the Federal Act which states: [s 16] Act excludes some State and Territory laws 16 (1) This Act is intended to apply to the exclusion of all the following laws of State or Territory so far as they would otherwise apply in relation to an employee or employer: (a) a State or Territory industrial law; (b) a law that applies to employment generally and deals with leave other than long service leave; (c) a law providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal value (as defined in section 623); (d) a law providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment. that court or tribunal finds is unfair; (e) a law that entitles a representative of a trade union to enter premises. Note: Subsection 40) defines applies to employment generally.

(2) State and Territory laws that are not excluded. However, subsection (1) does not apply to a law of a State or Territory so far as: (a) the law deals with the prevention of discrimination, the promotion of EEO or both, and is neither a State or Territory industrial law nor contained in such law; or (b) the law is prescribed by the regulations as a law to which subsection (1) does not apply: or (c) the law deals with any of the matters (the non-excluded matters) described in subsection (13).

(3) The non-excluded matters are as follows: (a) superannuation; (b) workers compensation; (c) occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with occupational health and safety); (d) matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers); (c) child labour; (f) long service leave; (g) the observance of a public holiday, except the rate of payment of an employee for the public holiday; (h) the method of payment of wages or salaries; (i) the frequency of payment of wages or salaries; (j) deductions from wages or salaries; (k) industrial action (within the ordinary meaning of the expression) affecting essential services; (1) attendance for service on a jury; (m) regulation of any of the following; (i) associations of employees; (ii) associations of employers (iii) members of associations of employees or of associations of employers. Note: Part 15 (Right of entry) sets prerequisites for a trade union representative to enter certain premises under a right given by a prescribed law of a State or Territory. The prerequisites apply even though the law deals with such entry for a purpose connected with occupational health and safety and paragraph (2)(c) says this Act is not to apply to the exclusion of a law dealing with that.

(4) This Act excludes prescribed State and Territory laws. This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations for the purposes of this subsection. (5) To avoid doubt, subsection (4) has effect even if the law is covered by subsection (2) (so that subsection (1) does not apply to the law). This subsection does not limit subsection (4).

(6) Definition . In this section: this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.

[s 16 insert Act 153 of 2005 s 3 and Sch 1, opn 27 Mar 2006] 25 A State law is defined in s 4 Definitions of the Federal Act in the following terms: State or Territory industrial law means: (a) any of the following State Acts: (i) the Industrial Relations Act 1996 of New South Wales; (ii) the Industrial Relations Act 1999 of Queensland. (iii) the Industrial Relations Act 1979 of Western Australia; (iv) the Fair Work Act 1994 of South Australia; (v) the Industrial Relations Act 1984 of Tasmania; or

(b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes: (i) regulating workplace relations (including industrial matters, industrial disputes. and industrial action, within the ordinary meaning of those expressions); (ii) providing for the determination of terms and conditions of employment; (iii) providing for the making and enforcement of agreements determining terms and conditions of employment; (iv) providing for rights and remedies connected with the termination of employment; (v) prohibiting conduct that relates to the fact that a person either is, or is not, a member of an industrial association (as defined in section 779); or

(c) an instrument made under an Act described in paragraph (a) or (b), so far as the instrument is of a legislative character; or

(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.

(2) Subregulation (1) does not apply if: (a) the employee's absence extends for more than 3 months, unless the employee is on paid sick leave for the duration of the absence; or

(b) the total absences of the employee, within a 12 month period, whether based on a single or separate illnesses or injuries, extend for more than 3 months, unless the employee is on paid sick leave for the duration of the absences.

medical certificate has the meaning given by section 240 of the Act.

Note Any finding that an absence is not a temporary absence for paragraph 659(2)(a) of the Act is without prejudice to the rights of an employee whose employment has been terminated by an employer on the basis of such an absence: (a) to apply to the Commission for relief under subsection 643(1), on the ground, or on grounds including the ground, that the termination was harsh, unjust or unreasonable; or (b) to apply under a law of a State on the ground that the termination was harsh, unjust or unreasonable (however described); in respect of the termination of that employment. 31 It is appropriate to note that these provisions are found in Division 4, Termination of Employment commencing at s 635 of the Federal Act, which sets out the object of the Division in the following terms: 635 (1) [Object of Division] The principal object of this Division is: (a) to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee's employment in certain circumstances; and

(b) to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and

(c) to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable; and

(d) to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and

(e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivision D, to assist in giving effect to the Termination of Employment Convention.

[subs (1) am Act 153 of 2005 s 3 and Sch 1, opn 27 Mar 2006]

(2) [ A "fair go all round" ] The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a "fair go all round" is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in Re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95. 32 Mr Pollard put that the exceptions to coverage of s 16 of the Federal Act relate only to legislation dealing with workers compensation and/or occupational health and safety, submitting that the NSW Act is not a law dealing with this subject matter, and accordingly not held in force by the exclusions to s 16 of the Federal Act. 33 Mr Norris put that it is obvious and undeniable that certain aspects of the NSW Act were intended to be left operative and unaffected by the Federal Act. Mr Norris submitted that this is not only obvious from the terms of s 16, but also falls from consideration of s 4 and s 672 of the Federal Act. Section 672 states: [s 672] Limitation on applications alleging termination on paragraph 643(1)(a) grounds

672 (1) An application under subsection 643(1) alleging termination of employment on the ground referred to in paragraph 643(1)(a), or grounds that include that ground, must not be made if other termination proceedings have already been commenced in respect of the termination of employment, unless the other termination proceedings: (a) have been discontinued by the employee who commenced the proceedings; or (b) have failed for want of jurisdiction.

Note: Subsection (3) defines other termination proceedings.

(2) An employee must not commence other termination proceedings in respect of a termination of employment if an application under subsection 643(1) alleging termination of employment on the ground referred to in paragraph 643(1)(a), or on grounds that include that ground, has already been made, unless the application: (a) has been discontinued by the employee; or (b) has failed for want of jurisdiction.

(3) In this section: other termination proceedings means proceedings, in respect of a termination of the employment of an employee: (a) for a remedy in respect of the termination: (i) under a provision of this Act other than section 643; or (ii) under another law of the Commonwealth; or (iii) under a provision of a law of a State or Territory that is not excluded by section 16; and [Emphasis added] (b) that allege that the termination was unlawful for any reason (other than a failure by the employer to provide a benefit to which the employee was entitled on the termination).

Note: Section 16 provides for the exclusion of certain State and Territory laws.

(4) Without limiting subsection (3), other termination proceedings includes an inquiry in respect of a complaint (the HREOC complaint ): (a) made under the Human Rights and Equal Opportunity Commission Act 1986; and (b) that relates to the termination of employment of an employee (whether or not as a result of an amendment of the complaint).

(5) For the purposes of this section, an employee commences other termination proceedings of a kind referred to in subsection (3A): (a) unless paragraph (b) applies - when the employee makes the HREOC complaint; or (b) if the HREOC complaint constitutes, or would constitute, other termination proceedings only as a result of an amendment of the complaint - when the complaint is amended.

(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:

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:

(i) The provisions all impose liabilities and obligations in respect of an "injured employee", which is defined in s 91(1) as being an employee who is entitled to receive compensation under the Workplace Injury Management and Workers Compensation Act 1998 or the Workers Compensation Act 1987 or the Workers' Compensation (Dust Diseases) Act 1942. The cruxes of all of the legislative provisions turn on this essential prerequisite.

(ii) The purpose of the legislation is to make provision for the rehabilitation and protection of injured workers. The authorities from the New South Wales Industrial Relations Commission and Industrial Court cited above are relied upon in this regard. They are nor merely ancillary or incidental to a regime of workers compensation; rehabilitation is understood to be an integral part of the subject matter of workers compensation.

(iii) As noted in State Rail Authority of New South Wales -v- Laurie Cecil Tyrell (1993) 53 IR 14 at 21, the power vested in the Commission to reinstate an injured worker in these provisions is markedly different to the remedy of reinstatement exercised in the general unfair dismissal arena.

(iv) Merely because the provision confers power on the Commission to provide a remedy to an injured workers does not result in the provisions being characterized as laws dealing with unfair dismissal. Indeed, the power to grant a remedy is far more constrained than a general unfair dismissal jurisdiction and depends on circumstances which all relate to the subject matter of workers compensation.

(v) It is of no consequence that these provisions appear in the State Act rather than the relevant State workers compensation regime. The subject matter of a law is determined by reference to its terms, not its legislative position. CONSIDERATION OF EFFECT OF FEDERAL ACT

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.

(2) Part 7 of Ch 2 of the NSW Act is properly characterised as a law dealing with the subject matter of workers compensation and is specifically preserved by s 16(3)(b) of the Federal Act.

(3) The character and terms of Pt 7 of Ch 2 of the NSW Act are not found in the Federal Act and accordingly no constitutional conflict arises.

(4) The Union is entitled to bring the present application on behalf of Mr Fisher. 55 I so determine. 56 Directions will issue for hearing of the substantive issues.

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