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[2002] FCA 603
plaintiff. Declarations that the respondent breached the AIRC's reinstatement order; penalty $2,000 for that breach; declarations that respondent breached the AWA by failing to pay wages for two separate...
The Federal Court (Madgwick J) held that an AIRC order to reinstate an employee requires more than placing the employee back on payroll; it ordinarily requires restoration of the employment relationship including return to the workplace and usual productive work. An employer may, where reasonably necessary and in good faith, require a fitness-for-work medical examination; such a power can be implied into employment contracts by necessity. Here the respondent conditioned reinstatement on a medical examination and ceased wages when the applicant did not attend. The Court found the requirement was not shown to be bona fide or reasonable in the circumstances, so the respondent breached the Commission's order and unlawfully withheld wages on two occasions. The Court imposed penalties and ordered unpaid wages plus interest.
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1,850 words · generated 28/06/2026
2 cited instruments linked from this judgment.
Stephen Blackadder worked as a boner at Ramsey Butchering Services' Grafton meatworks. On 28 September 1999 he was directed to undertake "hot neck boning", a task he had not been trained to do and which, he said, placed particular strain on his right arm (see [11]–[12]). He refused the direction and left the premises. The AIRC (Commissioner Redmond) found the respondent's direction unreasonable and the subsequent termination harsh, unjust or unreasonable, and ordered reinstatement to the pre-termination position without loss of continuity of service (29 March 2000) ([14]–[16]).
On 3 May 2000 the respondent wrote to Mr Blackadder saying he was reinstated effective 20 April 2000 but would not be required to report to work until he had attended and passed a medical examination; the letter said he would continue to receive wages pending this ([18]–[19]). The applicant declined the first appointment (5 May 2000), asserting the AIRC order imposed no such condition and that his fitness had not changed since his original pre-employment physical ([20]). The respondent ceased wages for the period week ending 11 June to week ending 23 July 2000 ([21]). Later, after a period in which leave entitlements were utilised by direction, an appointment with the doctor was fixed for 6 February 2001 but aborted because the doctor would not proceed while the applicant's wife remained in attendance; wages were again ceased for week ending 18 February to week ending 18 March 2001 ([22]–[28]). The applicant underwent a medical examination on 5 April 2001 and wages thereafter resumed ([29]).
Mr Blackadder applied to the Federal Court to enforce the AIRC reinstatement order and to obtain declarations, penalties and recovery of unpaid wages for periods when the respondent had ceased payment. Madgwick J heard the matter and found that the respondent had breached the Commission's reinstatement order and the AWA in specified respects, imposed penalties and ordered payment of unpaid wages and interest (Orders and [92]–[99]).
The court's decision rests on two principal legal conclusions.
First, Madgwick J concluded that "reinstatement" under s 170CH of the Workplace Relations Act 1996 does more than restore pay; it ordinarily implies restoring the employment relationship in its practical incidents, including return to the workplace and provision of one's usual productive work ([49], [52], [55]). The judge reached this conclusion by reference to (a) English and Australian authority (Jackson v Fisher's Foils [1944] and other decisions) which treated reinstatement as returning an employee to work, (b) the statutory structure and objects of the Division (s 170CA and the statutory preference for reinstatement unless inappropriate), and (c) industrial parlance and the purpose of providing a "fair go all round" in workplace dispute resolution ([45], [49], [50]–[53]). Because the AIRC had expressly ordered reinstatement to the position held immediately before termination, and the Commissioner's findings identified that the applicant's pre-termination role was boning in the big boning room (and also found no operational need to select him for hot neck boning and that he probably could not do hot neck boning) the reinstatement plainly contemplated the applicant's return to that work setting ([54]–[55]).
Second, Madgwick J accepted that an employer does have, implied into employment contracts where necessary, a power to require medical evidence or a medical examination to confirm an employee's continuing fitness for duties where there is a genuine need and where the requirement is reasonable and on reasonable terms (the necessity test applied in Byrne v Australian Airlines was referenced) ([68]–[70]). This implication is justified by occupational health and safety obligations (e.g. NSW OHS legislation) and by practical necessity in dangerous workplaces such as abattoirs ([67]–[69]). However, the employer must establish bona fides and reasonableness when it conditions reinstatement on such an examination. Madgwick J found the respondent had not produced credible evidence of genuine concern and that the manner of insistence (including long delays) could be coloured by non-genuine motives; accordingly the applicant's refusal to attend the initial appointment was not unreasonable and the respondent was not entitled to cease wages for that refusal ([43], [71], [74]–[77]).
For the second aborted appointment (6 February 2001), the Court also found no contractual breach by the applicant in insisting his wife remain present, and accordingly the respondent again was not justified in withholding pay ([27], [76]–[77]).
On leave entitlements, the court construed the AWA's clauses carefully. A clause which merely says "See Annual Holidays Act, 1944" does not necessarily incorporate that statute as a contractual term; construction must look to the whole instrument ([78]–[81]). The respondent's use of subclause 23.16 (holidays in lieu of sick leave) to direct utilisation of leave was described as an employer option; the Court declined to grant substantial relief on that point, partly because any financial impact was small and partly because excessive declaratory relief might achieve little practical effect ([86]–[90]).
Before this decision there was authority (English and Australian) addressing reinstatement in different statutory and factual contexts. Jackson v Fisher's Foils (1944) was treated as supporting the proposition that reinstatement can involve the obligation to provide work and not merely wages ([45]). Australian authorities (Perkins, Nicolson) had treated the question of whether reinstatement was practicable or appropriate in the light of workplace harmony and operational realities ([47]). There was, however, limited explicit authority directly on whether reinstatement under s 170CH necessarily included return to the workplace.
Madgwick J clarified the point for the Federal Court in 2002: reinstatement under s 170CH ordinarily includes return to the workplace and restoration of the usual incidents of employment, unless reinstatement is inappropriate in the particular circumstances ([49]–[55]). The decision also recognises and applies the necessity test (Byrne) for implying into contracts a term enabling employers to require medical examinations where necessary for health and safety ([69]). Thus the case establishes two interrelated propositions in Australian employment/industrial law: (1) reinstatement ordinarily means practical restoration of employment (not merely payroll placement); (2) employers may impose reasonable fitness-for-work checks, but their exercise must be bona fide and reasonable and cannot be used to defeat a reinstatement order.
"[I] would agree that reinstatement under s 170CH of the Act does implicitly involve a return of the employee to the workplace." ([49])
Plain English: When the AIRC orders reinstatement, that typically means the employee should go back to work and do the job they had before, not just receive pay.
"It is ... essential ... that an employer be able, where necessary, to require an employee ... to furnish particulars and/or medical evidence affirming the employee's continuing fitness to undertake duties." ([68])
Plain English: Employers in dangerous workplaces must be able to ask for medical evidence that an employee is fit to do the job, but this must be done reasonably.
"I assume that there now should be implied by law into contracts of employment terms ... on the basis that such terms pass the test of 'necessity' ..." ([69])
Plain English: Where necessary for safety and practicality, courts will imply a contractual term letting employers ask for medical checks, using the established 'necessity' test.
"The respondent was not entitled to refuse payment to the applicant of wages for his having so declined." ([76])
Plain English: The employer could not lawfully stop paying the worker because he reasonably refused that initial medical appointment.
"Assuming that an employer may not capriciously ... resort to subcl 23.16, it does not appear to me that any enduring relief could be granted by the Court." ([90])
Plain English: Even if the employer could use the clause that substitutes holidays for sick pay, the Court was unwilling to create a long-term remedy for this particular minor dispute.
The decision is engaged where:
In these scenarios, practitioners should focus on: the content of the reinstatement order (s 170CH), the Commissioner's factual findings (which carry weight), evidence of bona fide occupational health and safety concerns, the reasonableness of the timing and terms of medical examinations, and the precise wording of AWA clauses relied on to withhold pay or force leave ([33]–[36], [43], [68]–[77], [78]–[90]).
The judgment itself does not catalogue later appellate treatment. It is a Federal Court decision that clarifies the meaning of reinstatement under s 170CH and recognises an implied contractual power to require medical examinations on reasonable grounds. To assess subsequent treatment (whether cited, followed, distinguished or doubted), users should search post-2002 case law databases for citations to Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603. The decision is likely to be of persuasive value in cases about enforcement of AIRC reinstatement orders and disputes over employer-imposed fitness-for-work conditions, given its careful statutory construction and attention to occupational health and safety obligations ([39], [49], [68]–[70]).
Madgwick J declined to resolve a number of broader issues, leaving them open for fuller argument if necessary. Notable unresolved questions include:
Practical takeaways for advisers: when advising employers, ensure any medical pre-conditions are clearly evidenced, timely and reasonable; when advising employees, challenge medical conditions that are not bona fide or imposed in a colourable manner; and in enforcement proceedings under s 170JC(3)(a), emphasise the practical content of reinstatement (attendance and productive work), not merely payroll placement ([49], [68]–[77], [92]–[99]).
THE COURT ORDERS THAT:
INTRODUCTION 1 This case concerns allegedly unlawful treatment of an applicant employee by the respondent employer after the applicant had succeeded in obtaining orders from the Australian Industrial Relations Commission ("the AIRC") under the Workplace Relations Act 1996 Cth ("the Act"). The AIRC had ordered the applicant should be reinstated following events that amounted to his employment having been terminated in circumstances such that the termination was harsh, unjust and/or reasonable. 2 It is alleged that the respondent failed to comply with the reinstatement orders and thereby both breached the orders, rendering itself liable to a penalty for such breach pursuant to ss 170JC(1) and (2) and s 178 of the Act, and also rendered itself liable to injunctive relief from the Court to enforce the orders pursuant to s 170JC(3). 3 In addition, the respondent was alleged to be in breach of the applicable Australian Workplace Agreement ("AWA") in requiring the applicant to attend a medical examination on pain of loss of wages until that was done, and in unilaterally obliging the applicant to accept annual holiday and accrued sick leave entitlements at times inconvenient to him.
4 It was said that, additionally or alternatively, each item of the conduct thus complained of was in breach of an implied term in the applicant's contract of employment imposing an obligation upon the respondent of "good faith and fidelity" to the applicant.
BACKGROUND 5 The applicant, Mr Stephen Blackadder, is an employee of the respondent company. He was employed as a boner at the respondent's abattoir at Grafton on 30 April 1998. Before his engagement the applicant completed a written application for employment in which he undertook, among other things: "1. To work 5 days a week when required without the imposition of any bans or limitation and without stoppages. 2. To work in accordance with the lawful requirements of the Company. 3. … 4. To work in accordance with Company directions. …" He also agreed that, if hired, "my continued employment may be contingent upon satisfactorily passing a physical examination at any time to establish my capability to properly or safely perform my duties." 6 He indicated that he had never suffered from a number of listed diseases and disabilities, including "wrist, elbow [or] shoulder … trouble". 7 Also before his engagement, Mr Blackadder was medically examined by a Dr Ford who declared him fit for heavy manual work and commented: "Slight (20%) limitation of (R) should rotation because of old (R) elbow dislocation → fibrosis here. Shoulder would be classified as normal." 8 The terms and conditions of employment were and are subject to the Ramsey Butchering Services Pty Ltd (Grafton Meatworks) Australian Workplace Agreement ("the AWA"). The AWA, evidently in a form common to a number of employees at the meatworks, was signed by the applicant on 20 April 1998 and registered with the AIRC on 23 October 1998. 9 Prior to the respondent's purchase of the meatworks, the applicant had worked as a boner for the former owners of the abattoir for approximately six years before it was closed in December 1997. The former owners, an entity described as Gilbertsons, closed the abattoir down, claiming substantial losses and that the abattoir was no longer profitable. The applicant acknowledged that under the Gilbertsons ownership there had been a history of industrial action including limitations, bans and work stoppages. In cross examination, the applicant acknowledged that among the problems was that a number of employees were on fixed duties, and had refused to undertake other duties they were not employed to do so. 10 In early 1998 the respondent, under the control of Mr Stuart Ramsey, re-opened the abattoir. The applicant acknowledged that Mr Ramsey's intention was to avoid the types of industrial problems that had faced the previous owners. The meatworks were re-opened on the basis that there should be greater flexibility in the use of labour than previously. The intention to introduce flexibility into the workplace is reflected in the AWA. Subclause 35.9 of the AWA provides: "An employer may direct an employee to carry out such duties as are within the limits of an employee's skill, competence and training: the employees will follow the direction." While it may be inferred that the intention was to break down artificial distinctions between employees and develop a multi-skilled workforce, it is clear that employees were nevertheless not required to work outside their skill, competence and training. The terms of the AWA as properly construed would, of course, prevail over any inconsistent indication in other material that would have comprised or formed part of a common law contract. 11 Until the events constituting termination of his employment, the applicant worked in what was referred to as the big boning room at the Grafton meatworks and principally performed hindquarter boning work. That work is performed on pre-chilled pieces of beef carcases. On 28 September 1999 the applicant arrived at work and was directed to leave that boning room and go to the slaughter floor to perform hot neck boning, a task he had not previously undertaken. This was the first time the respondent had directed him to undertake such work, and he had not been trained in it. Hot neck boning involves "freeing" the meat from the bones from the neck to the ribs. The applicant's unchallenged evidence was that
this requires greater rotational force and effort of both the wrist and elbow than general boning. 12 The applicant refused to perform the task and left the premises shortly thereafter. Mr Blackadder's reasons for refusing to undertake the work included that he had no prior experience or training in hot neck boning and that he was concerned about his right arm. As indicated above, the applicant has some restriction in his right shoulder due to earlier dislocations of his right elbow, such dislocations pre-dating his employment with the respondent. The applicant also believed he was being victimised for giving evidence, adverse to the respondent's interests, to the AIRC on the previous day, 27 September 1999, in respect of another unlawful termination case concerning another employee of the respondent. 13 On or about 25 October 1999 the applicant filed an application for relief pursuant to s 170CE of the Act with the AIRC alleging unlawful termination of his employment by the respondent on or about 5 October 1999. A hearing was conducted before Commissioner Redmond on 18 and 19 January 2000 and 17 February 2000. 14 On 29 March 2000 Commissioner Redmond found that the respondent had terminated the applicant's employment and that the termination was unfair, harsh and unreasonable, contrary to the Act's requirements. The Commissioner found that, motivation aside, the direction itself was unreasonable and unsafe and directly resulted in the termination of the applicant's employment. The Commissioner did not decide whether the applicant was being victimised for having given evidence. 15 Pursuant to s 170CH of the Act, Commissioner Redmond ordered that the applicant be reinstated without loss of continuity of service or entitlements within 21days. The respondent was also ordered to reimburse the applicant for all lost salary and entitlements from the date of termination to the date of reinstatement less an agreed amount for salary received by the applicant through alternative employment. 16 In the course of his reasons the Commissioner said: "The applicant was instructed at approximately 6.30 a.m. on 28 September 1999 to perform hot neck boning. The applicant said that he had no experience in hot neck boning and thought that it would be a danger to the employees on the slaughterhouse floor if he tried to perform the work. Also, the applicant had a disability that restricted movement in one arm. The company knew of the applicant's disability. The disability added to his safety concerns. The applicant firmly believed that he could do damage to himself and to other employees. He felt he was being victimised by the company. … The evidence of Mr Paul David Marshall, the company's personnel officer and payroll manager, concerned the circumstances which arose after Mr Blackadder had left the workplace and the functions that he assumed employees should carry out according to their classifications. In his sworn statement Mr Marshall referred to other matters he thought relevant to the case. During cross-examination … it became clear that the applicant had been employed by the respondent with a pre-existing elbow injury which was noted in the Doctor's Certificate … and which would have caused some restriction when performing hot neck boning. Furthermore the witness expressed his concern regarding training and whether people were being fully trained. … In determining the various issues before me it was necessary to make some preliminary findings of fact. I have set out these findings below. · I accept the applicant's version of events regarding the circumstances surrounding the termination of his employment without reservation. … · I do not accept Mr Ramsey as a frank and open witness. I have formed the view that whenever the truth and Mr Ramsey's business interests conflict, truth would not be the winner. · I find that the applicant had a pre-existing medical condition which was more probably than not one which caused him to be unable to perform work in hot neck boning. · I find that the applicant had not been appropriately trained to perform hot neck boning. · I find that there was no identifiable need related to the operational requirements of the business for Mr Blackadder to be selected to perform this work. The direction to Mr Blackadder was characterised by the respondent as a move required for the continued operation of the respondent's business in order to cover a vacancy. There was no evidence to support this proposition and I reject it. · I find that the applicant did not repudiate his contract of employment, abandon his employment or resign. … … In my opinion the direction of the respondent in this matter resulted directly in the termination of the employment of Mr Blackadder. There was no coercion but the applicant would have had to risk injury to himself or to others if he had followed the direction of the respondent. · The respondent did not abide by the AWA in relation to clause 38.2 or clause 39.
Although the respondent operates under the AWA it did not abide by these clauses in this case and I gained the impression that the respondent only abides by those clauses which suit it from time to time. Clauses 38.2 and 39 are extracted below: '38.2 The conditions applying to the selection and training of employees to become boners shall be:- · A panel, consisting of two employees and two employees nominated by the employer shall exist at each establishment where this clause is to be used. The general manager or his/her nominee shall be the chairperson of such panel and shall exercise a casting vote only in the case of a tie. · Employees desirous of becoming learner boners may submit their names to the panel so nominated. The panel so nominated shall select learners and shall decide whether a learner has aptitude to be a boner and shall decide all aspects of the training of learners. · In the event of an employee being rejected by the panel after a trial period, he/she shall revert to the position he/she held prior to being selected as a learner... … Clause 39 - Grievance and Dispute Procedures [This lengthy clause provided for the establishment of a disputes committee and the reference to it of workplace disputes]' No disputes committee was set up which could have dealt with this dispute and, in particular, the respondent failed to utilise any of the steps set out in the disputes procedure. It is of great concern that an employer entering into an AWA or certified agreement with its employees fails to abide by those agreed terms, particularly in such critical respects. · It is not necessary given my other findings to determine whether or not the respondent's motive for engaging in the issue of the direction was motivated by a desire to punish the applicant for giving evidence before the Commission. · Motivation aside, the direction itself was unreasonable and unsafe and directly resulted in the termination of the employment of the applicant. … For these reasons I find that the termination was harsh, unjust or unreasonable. In accordance with the test expressed in Byrne's case … the termination was in fact in this case harsh and unjust and unreasonable.
Remedy I have determined that reinstatement is the appropriate remedy in this matter. The conduct of the respondent was unjust. The applicant is innocent of any matters of conduct or performance which would mitigate against reinstatement. The applicant has mitigated his losses as best and as well as he could. From my own knowledge and experience as a Member of the Commission, a man in Mr Blackadder's position in Grafton, carrying an injury, would have grave difficulty in finding alternative employment. For these reasons I determine that reinstatement was the appropriate remedy. I so order." 17 The respondent lodged a notice of appeal and a stay application with the AIRC on 18 April 2000 but leave to appeal was subsequently refused by a Full Bench of the AIRCon 26 June 2000. 18 On 3 May 2000 (after proceedings in relation to the stay application) the respondent advised the applicant by letter that he had been reinstated to his position as of 20 April 2000 but would not be required to report to work until he attended and passed a medical examination. The applicant was advised that he would continue to receive his wages, being his ordinary pay plus the average of the tally paid to all other boners in any given week, as well as receiving his other entitlements. 19 In the letter, the respondent's explanation for the requested medical examination was as follows: "Our reason for excusing you from physical work until further notice is that arising from the proceedings before the Commission, and the tendering of the Medical Certificate from Dr Bacon, doubts exist as to your physical capacity to perform the duties of a boner not only in relation to the duties associated with Hot Necking on the Slaughterhouse Floor but more importantly your ability to bone in the Boning Rooms given the Osetoarthritis in your right elbow. As you are aware, an absolute duty is imposed upon the Company as to your health, safety and welfare at work. Until such time as we are able to ascertain your physical condition to bone we do not wish to expose you to any risk." The reference to the "absolute duty" was plainly founded on s 15 of the Occupational Health and Safety Act 1983 (NSW)which provides that an employer "shall ensure the health, safety and welfare at work of all the employer's employees". (That 1983 Act has since been
superseded by a later statute but the relevant requirement is unchanged.) Dr Bacon's certificate was not in evidence before me. 20 The applicant was subsequently directed to attend a medical examination with Dr Castagna in Casino on 5 May 2000. The applicant did not attend the appointment on the bases (as put by his union and solicitors) that · Commissioner Redmond's order for reinstatement was not conditional upon a fresh medical examination; · the applicant was ready, willing and able to resume his pre-termination boning work; · there had been no change in his medical condition since his employment by the respondent two years previously such as to warrant a further medical examination; and · the applicant's solicitors further asserted that the respondent's requirement had "little or nothing to do with any concerns … for the health, safety and welfare of this worker". 21 On 7 June 2000 the respondent advised the applicant that payment of the applicant's wages would cease for failure to attend the arranged medical examination. The applicant received no wages from the week ending 11 June to the week ending 23 July 2000. 22 On 26 July 2000 the applicant advised the respondent that he was willing to attend a medical examination. On 10 August 2000 the respondent advised the applicant that payment of his wages and other entitlements had recommenced as of 26 July 2000 and that another medical examination with Dr Castagna would be arranged. In fact, no advice of any such further examination was given to Mr Blackadder until on or about 30 January 2001, when the applicant was notified that an appointment with Dr Castagna had been arranged for 6 February 2001. 23 On 18 September 2000 the respondent advised the applicant that as he had not yet passed the requisite medical examination he would be required to use all accrued leave entitlements from 16 October 2000 until the total hours were "completed and thereafter, the normal arrangements [would] continue". The applicant had not sought nor consented to the utilisation of these accrued leave entitlements. Subclause 23.16 of the AWA includes: "In lieu of paying sick leave in accordance with the foregoing provisions of this clause, an employer may give such employee five days or ten days holiday, whichever is applicable, on full pay to be added to his/her period of annual leave, or may pay him/her in lieu thereof, five days or ten days [depending on length of service], whichever is applicable, additional full pay at the time the employee commences his/her period of annual leave; provided that payment for such leave may be made, if the employee so elects during the year as occasions direct and in such case any unexpired balance of sick leave shall be paid for at the time an employee commences his/her period of annual leave." 24 The applicant's pay slips indicate that his accrued leave entitlements were utilised, by way of payment, as follows: Date of pay slip Leave 22 October, 29 October, 5 November 2000 -annual leave 12 November 2000, -annual leave, rostered days off 19 November, 26 November 2000 -rostered days off 30 November, 10 December 2000 -sick leave 17 December 2000 -annual leave, rostered days off (and normal pay for 5 hours) 25 On 21 December 2000 the applicant received his ordinary pay and his accrued leave entitlements were then said to include -0.53 hours in annual leave, 0.2 hours in rostered days off, and no accrued entitlement to sick leave. 26 On 21 December 2000 the applicant was advised by the respondent that the meatworks would be closed from 22 December 2000 to 11 January 2001 and as his accrued leave entitlements were fully expended he would receive no further pay until the meatworks re-opened after the Christmas break. A similar shut-down period over the Christmas break had occurred at the meatworks in the previous two years of operation. 27 On 6 February 2001, the applicant and his wife kept the appointment at Dr Castagna's rooms. The examination did not, however, take place as Dr Castagna refused to proceed whilst the applicant's wife was in attendance and the applicant declined to have her absent. 28 On 16 February 2001 the respondent advised the applicant that payment of his wages would cease and would not recommence until he attended a medical examination. The applicant received no wages from the week ending 18 February to the week ending 18 March 2001. The applicant again advised the respondent on 23 February 2001 that he was willing to attend a medical examination. 29 On 5 April 2001 the applicant underwent a medical examination by Dr Castagna. He has since continued to receive his pay and other remuneration from the respondent but has not returned to work. The circumstances of such payment do not constitute any admission by the respondent. Dr Castagna's report was not in evidence as a result of a procedural ruling. 30 The applicant has not undertaken full-time work at the meatworks since 28 September 1999. He has continued on a part-time basis to break horses, an activity that he had also performed prior to his termination, earning approximately one hundred dollars a week. He also continued to participate in the sport of camp drafting, occasionally earning prize money. The applicant claimed that this period of unemployment had had a detrimental effect on his skill and fitness levels. He also claimed that he had been denied the opportunity to contribute to the overall productivity of the boning team, which would have potentially increased the "overs" and wages paid. 31 There was evidence before me that, after Mr Blackadder's refusal to undertake the hot neck boning work, Mr Ramsey interceded to ask him to consider the consequences for his family and to change his mind. 32 The respondent's abattoir is the only meatworks in the Grafton district. The applicant, now aged 49 years, has lived the majority of his life in the district and has no desire to move away from the area for the purposes of employment.
Preliminary 33 Section 170CH provides remedies in proceedings where the Commission has determined that the employee's termination of employment was harsh, unjust or unreasonable. The Commission must take a number of factors into consideration including how the order will effect the viability of the employer's undertaking, establishment or service (s 170CH(2)(a) of the Act). Section 170CH(3) provides: "If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by: (a) reappointing the employee to the position in which the employee was employed immediately before the termination. (b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination." 34 In circumstances where reinstatement is considered inappropriate, the Commission may order compensation in lieu of reinstatement under s 170CH(6) of the Act. 35 Section 170JC(3) provides: "In addition to any other right that an employee covered by an order under this Part may have under Part VIII (as it applies in accordance with this section): (a) the employee may apply to the [Federal] Court to enforce the order by injunction or otherwise as the Court thinks fit; and (b) if the order is an order under Subdivision B of Division 3 - the employee may apply to a court of competent jurisdiction as defined in section 177A [i.e. courts lower in the judicial hierarchy] to enforce the order by injunction. " 36 No submission was made that the scheme of "arbitration" established by the Act in Subdivision B of Division 3 for dealing with claims of termination of employment said to be harsh, unjust or unreasonable (to contravene certain other requirements of the Act), is unconstitutional. 37 It was common ground between counsel, and I think correctly conceived (possibly including for constitutional reasons), that the Court's jurisdiction under s 170JC(3)(a), here invoked, is discretionary. 38 Section 170CI provides that an order of the Commission providing for reinstatement (or the other remedies contemplated by s 170CH) is "final and binding between the parties". 39 It was also common ground, and again I think correctly, that the Court is not to be bound by reasons, even including firm factual conclusions, given by the Commissioner for its orders. Nevertheless, very considerable weight and respect would ordinarily be given to such conclusions, having regard to the Commission's experience and expertise. It is the more so here, because the Commissioner's findings were not sought to be evidentially challenged. 40 The respondent called no evidence.
Meaning of reinstatement 41 The applicant submits that "reinstatement" under s 170CH of the Act, and as required by Commissioner Redmond's orders, necessitated that the dismissal be treated as ineffective and that the employment relationship continue as before the termination. This required that all incidents of the employment relationship, including the undertaking of work, be restored. The respondent however submits that what is to be reinstated is the employment contract. Correctly in my opinion the respondent conceded that, even so, the contract has an implied term of mutual good faith and that, concretely, upon reinstatement, no alteration of consequence in the ordinary incidents of the reinstated employee's employment could be made, except in good faith. 42 The respondent's argument here was, in effect, that: (a) manifestly, the applicant had suggested to Commissioner Redmond that he had a disability that prevented him doing work within the ordinary range of work of a boner and that, in protection of its own legal position and in pursuance of its legal and moral duty to see to the applicant's own physical welfare, the respondent had the duty and right to remove him from boning work, while paying him, until his present fitness could be determined; and (b) in any case, the right in an employee to be treated in good faith by the employer did not carry with it a right to a separate and distinct contractual term of employment; any such other term, as, for example, to be actually given work to do, must be either expressly found or otherwise implied in the circumstances or as a matter of law.
43 I agree with the second submission. However there are problems with the first. The bona fides of the claim to be concerned with the applicant's welfare was challenged. The circumstances do not necessitate the conclusion that such bona fides must have existed and there are features, including the long delay in ultimately arranging the medical appointment with Dr Castagna, that suggest that the claim of a proper concern for an employee's health and welfare may have been no more than a colourable excuse rather than an operative reason for what was done. I am not minded to conclude that there was such a bona fide concern. I need not decide that there was no such concern, although there is a strong case for that view. It seems to me that such a concern has not been established and, in the circumstances, there was at least an evidential onus on the respondent affirmatively to produce credible evidence of an actual and genuine concern. 44 The meaning of reinstatement has been considered in Australian cases but, it would seem, not in the context of a claimed right by an employee to be allowed to undertake his or her pre-termination work as well as to receive the contractual remuneration. 45 Counsel for the applicant referred to Jackson v Fisher's Foils Limited [1944] KB 316 where the respondent, who had been directed to reinstate the appellant, paid the appellant's wages but did not allow the appellant to return to work. The Court of Appeal held that reinstatement required more than the payment of wages. Humphreys and Cassels JJ, in separate judgments, agreed that reinstatement required the return to work noting that this was not a case where there was no work available (c.f. Hodge v Ultra Electric Ltd [1943] KB 462). Asquith J, although inclined to consider that reinstatement required no more than the payment of an employee's wages, considered that Hodge was authority for the proposition that reinstatement included an obligation to provide work where it was available, and so agreed with Humphreys and Cassels JJ that the respondent had failed to comply with the order. Although Jackson's Case involved the interpretation of particular essential services legislation in war-time England, I do not agree, as was suggested by the respondent's counsel, that this factor is one which materially distinguishes the notion of reinstatement in that case from the present. In Jackson's Case, Humphreys J at 321 noted that there was no indication that the respondent had made any effort to provide work nor any reason given as to why work could not be provided. It had been a deliberate refusal to comply with the order.
46 Before reinstatement is ordered, the Commission is required to consider whether it is "appropriate", in all the circumstances, to make the order. That is a broad concept, encompassing a number of considerations. Counsel for the applicant submits that if reinstatement did not implicitly involve the employee's return to work, such considerations would be otiose. 47 In Perkins v Grace Worldwide (Aust) Pty Ltd (1996-7) 72 IR 186 at 189-92, the Full Court gave consideration to whether it had been appropriate for the trial judge to order compensation in lieu of reinstatement pursuant to s 170EE of the then operative Act. The employee concerned had been dismissed over the alleged supply of marijuana cigarettes to a fellow employee. On appeal, the Full Court gave particular consideration to whether the employer's lack of confidence in the employee was sufficient to make reinstatement impracticable and thereby inappropriate to order reinstatement. It was implicit in the Court's reasoning that reinstatement involved the employee's return to work. The Full Court, in addition to other cases, made reference to Wilcox CJ in Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50 at 60. His Honour there considered it may be impracticable to make such an order, in circumstances where it was likely to: "impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer's business … notwithstanding the job remains available." 48 It is true that such Australian judicial straws in the wind, bending in a different context, do not carry the matter far. 49 However, in the absence of authority to the contrary, I would agree that reinstatement under s 170CH of the Act does implicitly involve a return of the employee to the workplace. The Act contemplates that it is only in circumstances where reinstatement is inappropriate that the suitable alternative is to award payment in lieu of reinstatement (s 170CH(6)). Thus, the apparent statutory purpose of the relief is to treat the dismissal as ineffective and restore the employment situation to its pre-termination status. If a direction to reinstate an employee required no more than that the employee be put back on the payroll, it is difficult to see why reinstatement would even be "inappropriate". Further, as Wilcox CJ observed in Perkins v Grace when considering the meaning of "reinstated" for the purposes of s 170EE, the predecessor of s 170CH, such meaning should be considered in light of its usage in industrial parlance. Such parlance would understand reinstatement to include reinstatement in the sense just mentioned, including all the usual incidents of the employment, such as attendance at the workplace and there being furnished with one's usual productive work. 50 A further reason for this conclusion is to be found in s 170CA which sets out the "principal object" of Division 3. The principal object (which is really a number of objects) includes: "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;" 51 Section 170CA(2) continues: "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." 52 It is clear that the legislation aims at a practical and appropriate result in which broad community standards of fairness are involved. Who else provides the standard of a "fair go all round" than the reasonable Australian citizen? Such a standard would, in my opinion, be impatient with fine distinctions against a person found to have been treated harshly, unjustly or (in this case, and) unreasonably. Reinstatement to the position of employment including its usual practical incidents would, by such a standard, be the usually "appropriate" result: see also the considerations touched upon in [57] below. 53 In finding that the orders did require that the applicant be returned to work, it is important to clarify what the reinstatement order required in a practical and concrete sense. Counsel for the respondent was, in my opinion, correct in saying that reinstatement does not mean that an employee acquires new legal rights but simply restores the employment relationship with all, but only, the rights and entitlements to treatment in good faith which existed between the parties prior to the termination. It is to be remembered also that such obligations of good faith are owed by both parties. Part of the background matrix of facts in this matter showed a need for reasonable flexibility, recognised in the AWA, for the deployment of employees. 54 What the "position" was to which Mr Blackadder was to be reinstated by reappointment (c.f. s 170CH(3)(a)) is a question of fact and, as a matter of fact, a person may hold a position under which certain work is or is not required, whether or not such position has an express classification or description (such as "boner"): see State Rail Authority (NSW) v Bauer J (1994) 55 IR 263 at 269. Commissioner Redmond was plainly of the view that Mr Blackadder's s 170CH(3)(a) position was that of a boner required to do chilled boning work in the big boning room. Of particular significance are the Commissioner's findings that: · the applicant's pre-existing medical condition probably caused him to be unable to perform work in hot neck boning; · the applicant had not been appropriately trained to perform the hot neck boning; and · there was no identifiable need related to the operational requirements of the business for the applicant to be selected to perform this work. 55 Taking these findings into account, the order to reinstate the applicant plainly intended that he would not only receive his wages and other entitlements but, in the first instance, at least, return to his former position of employment, namely to a position undertaking boning in the big boning room. 56 The evidence before me indicates that Mr Blackadder would concede that his position requires that occasionally, for bona fide operational purposes of the employer, he should relieve on the hot neck boning work. 57 As I have indicated, the applicant's rights are as before. If he then had a legal liability to be transferred to hot neck boning, upon reinstatement he would again have such liability. If he did not, or did not until he was trained, then again he would not be so liable. If he had a liability to undergo medical examinations from time to time, on the existence of a reasonable need for them and on reasonable terms, such liability would continue. Finally, whatever mutual rights and liabilities as to transfer, removal from active work or termination of employment pre-existed his termination, they will exist again after reinstatement. Some of these matters may involve difficult questions and their resolution should await full argument, if, as I hope will not be the case, it should become necessary. In the latter regard, Commissioner Redmond's comments as to the legal necessity under the AWA (and the Act (s 170VG(3))) to set up, and resort to, a disputes committee appear apposite.
Right to work under common law 58 The applicant also relied on an implied contractual obligation requiring the respondent to provide the applicant with work because the applicant's contract included performance based earnings. Reference was made to cl 37 of the AWA in which the applicant is given the opportunity to earn additional wages for work completed over and above the prescribed tally. The applicant would lose his physical tone and skill as a boner through lack of practice. The applicant was proficient at performing his duties and would have been of assistance to his team's meeting and exceeding the required daily tally so as to attract the more lucrative rates of pay for "overs" - work through put exceeding the tally. 59 Counsel for the respondent submits that there is no obligation on the employer to provide work in these circumstances. The courts' recognition of this duty is limited to circumstances where it is clear that the employee's future employment depends on the employee being able to utilise their skills. 60 As to whether the applicant had a right under his contract of employment to be provided with duties to perform, bigger questions arise than were argued in this case. Australian courts have been prepared to proceed cautiously, by way of glosses on Marbe v George Edwardes (Daly's Theatre) Ltd [1928] 1 KB 269: see for example Australian Rugby League Ltd v Cross (1997) 39 IPR 111 and Wesoky v Village Cinemas International Pty Ltd [2001] FCA 32. There has been a slightly more liberal approach in England: see e.g. William Hill Organisation Ltd v Tucker [1999] ICR 291. In Australian Rugby League v Cross Windeyer J at 119 said: "The Leagues' argument is that the court will imply a term in specialised types of employment contracts - such as these - so as far as possible to ensure that the employee is given the opportunity of both using and displaying his skills as well as receiving the payments contracted to be made. This argument is based upon a passage from the joint judgment of the Court of Appeal in Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337. Curro was a case concerning a contract between Curro, a television presenter, and Beyond Productions, the producer of a documentary programme "Beyond 2000" under which the services of Miss Curro were to be provided as writer/producer in the production of scripts for parts of the Beyond 2000 programme. The contracts were said to be unreasonable because Beyond was not bound to provide Curro with any work but rather it could just pay her, yet prevent her from working elsewhere under the terms of the contract. At p343 of the judgment of the Court the following passage appears: 'An employer in the entertainment industry who engages an employee such as Miss Curro for work of that kind contemplates that the employee wants not only the agreed remuneration but also the opportunity to keep her name and talents before the viewing public. In these circumstances the court will construe ambiguous provisions in the contract as imposing an obligation on the employer to provide real work of that kind (see Marbe v George Edwardes (Daly's Theatre), Ltd [1928] 1 KB 269 at 289) and if the contract is silent will readily imply such a term to give effect to the presumed intentions of the parties: see Herbert Clayton and Jack Waller, Ltd v Oliver [1930] AC 209 at 218.0 In White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266, the contract was held to be of this special category. It provided that the company employed the artists who agreed to render their exclusive professional services to act and perform in such theatres "as required and directed by the company". The services were not otherwise defined but evidence of prior negotiations was received to identify them. Starke J said (at 273-274): 'The contract belongs to the class or category ... in which the employer engages not only to pay the agreed remuneration but also to afford the employee an opportunity of doing the work for which he is engaged ... But the work or 'professional services' which the employee can be called upon to give is not precisely stated. The artist is, no doubt, a revue and pantomime artist. But what is the artist to do? The printed and common form conditions do not answer the question, … (they) provided … that the artist should render services as required and directed by the company. It was argued that this gave the company complete authority to direct at any time the nature and character of the service that the artist was to perform ... The company has, no doubt, the direction and control of the theatrical performances that it will produce and of the times and places at which they will be produced, the rehearsals to be held, the run of the performance and so forth. But it agrees to give the artist a reasonable opportunity of rendering the service for which the artist was employed, and it has no right to view that the artist shall not perform at all or shall not perform what the artist has been required to do.' … It was argued for the defendants that this passage should be considered as being restricted to the class of cases on which it was held to be based, namely those in the theatre or entertainment area … being the cases and therefore the types of contracts referred to in the passage from White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266 quoted in Curro the reference to the cases having been left out in the quotation and that being the specific class with which Fechter v Montgomery (1863) 33 Beav 22; 55 ER 274 was concerned. However, I can see no reason to think that the principle put forward should be restricted to particular forms of employment, rather than being applied to those types of employment which involve persons whose future depends upon their being used during their term of employment in the business envisaged by the employment contract. While there can be no doubt that the principle would not apply to a contract of service for employment as a sales assistant there are employment situations where work and the publicity resulting therefrom are of great importance to the future financial position and reputation of the person involved. Work as a professional footballer does, I think, clearly fall into this category as a footballer needs to play and not sit on the bench and certainly not away from the bench. He needs this to improve his play and to have his abilities made known and displayed to the public, so that if and when he subsequently seeks new engagements his reputation, experience and success as a player will go with him. Thus, had the relevant contract been between player and club on the lines of the existing club contracts, I would have had no difficulty in implying a term that the player would be considered on merit in determining his selection to represent the club. I do not consider that this would be an implication in a new situation or class of case but if it were I would find it was necessary to make such implication as would appear to be required: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450." (emphasis added) 61 But, in my respectful opinion, while Windeyer J enunciated in the emphasised passage a desirable principle, it would in my view, contrary to his Honour's own observations, in general apply to most people in the workforce, including employees such as sales assistants or meatworkers. Few would-be employers are likely to be impressed by an aspiring employee who needs to confess that he or she has been obliged by a previous employer to languish on what the English courts have called gardening leave. In modern Australia, at least, such a history is liable to be assumed by a prospective employer to spell trouble. Either from the outset of an employment contract or by subsequent variation, the parties can expressly agree that the employee is subject to "gardening leave", if that is what both parties are freely prepared to accept. Thus the questions arise: is the limitation reflected in the Marbe principle really in accord with the modern Australian employment environment and with general standards of fairness? If not, is the principle so deeply embedded in the law that no court, except perhaps the High Court, should decline to continue to apply it? 62 In the light of my conclusion as to "reinstatement", it is unnecessary for me to consider these questions to a conclusion.
Requirement to undergo medical examination 63 Counsel for the applicant submits that there was no lawful basis arising out of the Commissioner's orders or the AWA for the respondent to impose a pre-condition upon the applicant to undertake a medical examination prior to his return to work. In respect of the orders, the applicant submits that the medical issues were fully considered in the hearings before Commissioner Redmond and the Full Bench of the AIRC in respect of the leave application. The findings of the Full Bench were limited to the question of leave. I rejected the tender of the Full Court's reasons for judgment and have not taken their findings into account on this issue. 64 With respect, I do not consider that the issues regarding the applicant's physical capacity were fully addressed or resolved in the proceedings before Commissioner Redmond. The application for relief before the Commissioner focused on the applicant's dismissal for failure to undertake hot neck boning. At best, the Commissioner formed the view that the applicant had an injury which more probably than not caused him to be unable to perform hot neck boning on a considerable if not full-time basis. I do not accept that such views conclusively answered all issues concerning the applicant's physical capacity safely to perform his duties at that time and more importantly, his physical capacity some months later so to perform his duties. 65 Further, the applicant claims that given the existence of the AWA and its detailed provisions, there is no room left for an implicit or express power in the respondent to direct an employee to undertake a medical examination. Counsel for the applicant notes that, although subcl 23.5 of the AWA enables an employer to request an employee to attend a medical examination in certain circumstances and for certain purposes, namely where a person who is or has been absent from duty for claimed illness actually is or has been ill, that does not confer a power at large upon the employer to require medical examinations for fitness for work. 66 Counsel for the respondent seeks to rely, however, on the applicant's agreement to undergo medical examinations via his employment application. Counsel submits that in the light of the subject matter and the employment application an intention should not be imputed to the parties that the AWA was intended to cover the field. 67 An employer has, as indicated above, strict obligations under the NSW legislation to ensure the safety and well-being of its employees. The importance of occupational health and safety is also reflected in the Act. Whilst an AWA, in general, prevails over conditions of employment specified in State laws to the extent of any inconsistency, provisions which relate to certain matters, such as occupational health and safety, operate subject to any relevant State law (see s 170VR(2) of the Act). 68 It is, in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee's continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/or lift. 69 The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of "necessity" accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450. 70 In the light of such considerations, it should not be readily concluded that an express reference to undergoing medical examinations in the AWA in one context was intended to indicate that that was the only context in which such an examination might be required, or that the express promise in the employment application had been, by a process of novation attributable to the parties' entering into the AWA, rendered nugatory. 71 There is little medical evidence before me, current or otherwise, as to the applicant's physical capacity to perform his duties. The pre-employment medical report dated 17 April 1998, prepared by a doctor engaged by the respondent, certified the applicant as fit for heavy manual work regardless of the slight limitation of movement of the applicant's right shoulder. 72 The applicant's evidence, which was not challenged, was that he had not taken any sick leave during the course of his employment with the respondent; nor had he made any complaint that he was unable to perform his pre-termination duties. This evidence favours the applicant's claim that he is able to perform his duties. The applicant was forthcoming and truthful in his evidence including details regarding his employment and capacity to perform his duties. I accept that he had undertaken some work, described as "cold neck boning" for the previous owners, but this was different from the task required by the respondent. The applicant's evidence indicated that he was eager to return to work and was willing, provided he received training, to undertake some hot neck boning on an occasional relief basis. Mr Blackadder's willingness to perform some hot neck boning should be considered in light of Commissioner Redmond's finding that there had been no operational requirement for him to perform such work. 73 As indicated above, the issue of bona fides on the part of the respondent has been raised by the applicant and, overall, I was not left with the impression that the respondent's past conduct in this matter was bona fide. That is not, however, to say that, despite the history, a bona fide concern cannot now or might not in the future exist. Dr Castagna's conclusions, following his eventual examination of the applicant, were not before me.
Non-payment of wages for failure to attend medical examination 74 The respondent ceased payment of the applicant's wages on two occasions for failure to undergo a medical examination. Counsel for the respondent relies on a breach by the applicant of his obligation as evidenced by his employment application and subcl 23.12 of the AWA as the grounds upon which the respondent was entitled to cease payment of the applicant's wages. However subcl 23.12 of the AWA only provides that, where an employee "unreasonably refuses the interview or unreasonably refuses or prevents the examination specified in subcl 23.5 of this clause" the employee shall not be entitled to pay for the period of the absence from work. Subclause 23.5 does not apply here: there is no claim of sickness or for sick pay.
75 The requirement upon an employee, which I assume would be implied by operation of law into employment contracts generally, to undergo a medical examination on reasonable terms would only exist in circumstances where it is reasonable for an employer to make such a request. Likewise, the express obligation evidenced by the employment application is not to be unreasonably invoked by the employer. 76 On 3 May 2000 the applicant was advised to attend a medical examination before he would be allowed to resume his duties. As to whether it was unreasonable for Mr Blackadder to refuse to undergo that examination, in light of the apparent conduct of Mr Ramsey, the respondent's controlling officer, before the Commission, and in light of the Commissioner's findings, it was not, in my opinion, unreasonable of Mr Blackadder then to decline to do so. The respondent had brought about a situation in which Mr Blackadder might very reasonably conclude that it had no bona fide concern for his or any other employee's safety or for its own position in relation to the safety laws. The respondent was not entitled to refuse payment to the applicant of wages for his having so declined. 77 In respect of the second aborted appointment, I also do not accept that the respondent was entitled to cease payment of the applicant's wages and entitlements. In the absence of evidence (for example, medical evidence) to support a contrary conclusion, I see nothing inappropriate or unreasonable in the applicant wishing his wife to be present at the medical examination. There was, on the evidence, no refusal by the applicant of any contractual obligation, which would only require an objection to a medical examination on reasonable terms.
Annual Leave entitlements 78 The applicant submits that the respondent's direction for the applicant's annual leave to be utilised, without his consent, was in breach of the AWA. Annual leave is referred to in the AWA in cll 24 and 25. Clause 24 states, quite simply, "See Annual Holidays Act, 1944" being the Annual Holidays Act 1944 (NSW) ("the Annual Holidays Act"). Clause 25 refers to arrangements for Annual Leave Loading and notes that the relevant legislation is the Annual Holidays Act. A similar drafting style is adopted for the provision of Long Service Leave under the AWA (cll 26 and 27). 79 A threshold question is whether cl 24 incorporates the Annual Holidays Act as a term of the AWA or whether it is merely a notation referring the parties to the relevant legislation. Counsel for the applicant submits that the parties should be deemed to have intended it to apply as a term of the AWA. The applicant's argument is effectively that the word "see" should be interpreted as meaning that the State's Act's provisions "shall apply". Counsel for the respondent submits that the clause should be read no higher than as referring the parties to the relevant legislation. 80 I have difficulty accepting that the parties should be taken by cl 24 as having incorporated the Annual Holidays Act as part of the AWA. In Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241, the Court was required to consider whether a reference to State legislation in a federal award meant that it was enforceable as part of the award. It was provided that, except for inconsistencies within the relevant Division of the award, certain State regulations "shall apply". The Court found that the legislation was enforceable under Commonwealth law. Gray J (with whom, as to this matter, Northrop J agreed) held at 263 that the question of construction should be resolved in each case upon the terms of the award as a whole, without any predisposition. As noted by Gray J, the word "apply" had been used in a number of other clauses in the award in that case and meant, when used, that what was being "applied" should be given force and effect. Further, it was clear, his Honour said, that in other provisions which had excluded the operation of the award so as to preserve the operation of state laws, the framers of the award had indicated such exclusion with "great clarity". Applying that approach, the language used here is less open to such a conclusion. The present, in my opinion, is a very different case from Seymour's. There is nothing in the matrix of facts to indicate that the parties had an interest in providing a contractual basis for annual leave nor a need to make it operative under federal law. The Act was applicable in any event, and has long been enforced by NSW industrial tribunals. I do not accept that any breach of the provisions of the State Act is also remediable as a breach of the AWA. 81 It is unnecessary to consider the matter further. There was no application to the Court to enforce the NSW Annual Holiday Act per se.
Entitlement to Rostered days off 82 In the context of implementing the notion of a 38 hour week but keeping 8 hour days, cl 1.4 of the AWA provides for the accrual of accumulated leisure time and that such leave shall be taken by an employee as required in single days or blocks of days, such leave to be taken on a roster basis, during slack periods, with annual leave or in a combination thereof. 83 However, as I understand the matter, no recovery of wages is now claimed in respect of rostered days off and I do not see that any breach of the clause resulted in any loss, direct or indirect, to the applicant. The matter was dealt with somewhat shortly in submissions. I will give liberty to apply if any non-trivial loss is actually suggested. Otherwise, assuming a breach of the clause, I would as a matter of discretion decline to grant any relief.
Sick leave entitlements 84 The applicant submits that the respondent's decision to treat the applicant as being absent on sick leave and directing that his sick leave be utilised breached the AWA. The applicant submits that this was done in circumstances where he was not sick and had not sought nor consented to being placed on sick leave. 85 The provisions concerning sick leave are set out in cl 23 of the AWA. The applicant submits that the respondent is not permitted under the AWA to require unilaterally that the applicant take his sick leave. Counsel for the respondent submits that the respondent was entitled to utilise the applicant's sick leave by giving the applicant holidays in lieu of sick leave pursuant to subcl 23.16, such leave to be added to his period of annual leave. 86 There are two bases on which the applicant attacks the respondent's reliance on subcl 23.16, set out at [23] above. Firstly, the applicant argues that the respondent did not add the additional holiday leave in lieu of sick leave immediately after his period of annual leave. Instead, the applicant received his annual leave, then rostered days off were utilised before the applicant's sick leave was utilised (see [24] as to the order in which leave was utilised). This argument does not have any material impact on the amounts the applicant received. The fact is, the applicant was paid the same amount irrespective of the order in which leave was taken. 87 The second argument is that subcl 23.16 cannot be utilised unless the employee elects to take holidays in lieu of sick leave. The applicant did not make any such election and asserts that, on that account, the respondent has breached the clause. I do not accept the applicant's argument. A fair interpretation of this subclause would limit the requirement for consent (or election, being the phrase used in the clause) to the way in which the employee chooses to receive his or her leave payments in lieu of the accrual of sick leave, that is, as to whether the employer is paid for all of the holidays at the time annual leave is taken or piecemeal at such other times during the year as elected, prior to the taking of annual leave. 88 It is true that provision is made earlier in cl 23 (subcll 23.10 and 23.11) for the accrual of sick leave for a period of up to five years. But such accumulation is only in respect of "any part of sick leave entitlement which has not been allowed in any year". 89 In any case, subcl 23.16 sets up an option for the employer which may be taken, as the opening words of the subclause state, "[i]n lieu of paying sick leave in accordance with the foregoing provisions of the clause". So subcl 23.16 must be considered on its own terms. 90 Assuming that an employer may not capriciously (let alone maliciously) resort to subcl 23.16, it does not appear to me that any enduring relief could be granted by the Court. A declaration that what had occurred was unlawful and that the applicant should be re-credited with his entitlements would carry no future guarantees and might only postpone another election by the employer. Any sum involved is relatively small. I would decline to grant any relief in relation to the matter.
The appropriate relief 91 The applicant's amended application filed on 15 September 2000 seeks a number of orders including the imposition of penalties in respect of conduct alleged to be in contravention of the Act; declarations preventing the respondent from engaging in and/or continuing to engage in the conduct and/or to remedy its effects, and the recovery of lost wages.
Penalties 92 In circumstances where an order of the Commission is breached, a penalty may be imposed by the Court pursuant to s 178 of the Act. 93 In PKIU v Vista Paper Products Pty Limited (1994) 57 IR 414, Wilcox CJ reviewed some relevant considerations in determining an appropriate penalty for defiance of the Commission's orders. In that case, his Honour formed the view that the employer's manager had developed "a stubborn determination not to take back the employees towards whom he had become extremely hostile."(at 428). His Honour found that the manager's dislike and contempt for the employees was not only apparent in the history of the matter, but also in his affidavits filed in the proceedings. His actions indicated a deliberate defiance for over two years of the Commission's authority. 94 The circumstances in this case are not in the same category. Here, there was a mistaken reliance on an arguable legal and factual proposition that I have rejected. The breach of the order was, however, deliberate and persisted in. I think a penalty of $2,000 is appropriate. 95 In respect to the breaches of the AWA constituted by the non-payment of wages following non-occurrence of medical examinations, the Court may impose a penalty pursuant to s 170VV of the Act (a breach of the AWA is a breach of s 170VT). The maximum penalty is $10,000. Penalties of $500 will suffice for each of the two instances of mistaken reliance on supposed default by the applicant. 96 Pursuant to s 356(b) of the Act, I was asked to order that the penalties imposed on the respondent be paid to the applicant. No contrary argument was put and I see no reason not to do so. On the contrary, it seems to me an appropriate outcome.
Recovery of wages and entitlements 97 Pursuant to s 178(6) of the Act, the applicant seeks recovery of his wages and entitlements for the periods in which he received no wages for the failure to attend medical appointments. The effect of my conclusions is that he is entitled to this. As I understand the matter, the parties have agreed that the quantification of such unpaid wages is $7,528.27 as claimed in the amended Statement of Claim filed on 19 June 2001. I will order payment by the respondent to the applicant of that amount. I will, however, give the parties liberty to apply, in case my understanding is incorrect.
Interest 98 The applicant should also pay interest on that sum at the rate of 10% per annum, calculated on a daily basis. The parties can do the calculations.
Injunctive relief 99 In relation to the reinstatement, a case has been made out for injunctive relief. The parties will be required to bring in short minutes of what they contend are, in the light of my reasons, the appropriate orders. It may be (and I would hope) that arrangements between them will make actual orders unnecessary. I certify that the preceding ninety nine (99) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.
Associate: Dated: 10 May 2002 Counsel for the Applicant: Mr C Magee
Solicitor for the Respondent: Hannigans Solicitors
Blackadder
Ramsey Butchering Services Pty Ltd
(1994) 57 IR 50
(1994) 55 IR 263
(1997) 39 IPR 111
(1995) 185 CLR 410
(1985) 9 FCR 241
(1994) 57 IR 414
(1993) 30 NSWLR 337
(1943) 67 CLR 266
Declarations that the respondent breached the AIRC's reinstatement order; penalty $2,000 for that breach; declarations that respondent breached the AWA by failing to pay wages for two separate periods and penalties of $500 for each breach; order that respondent pay applicant $7,528.27 for unpaid wages plus interest at 10% p.a.; penalties and unpaid wages to be paid within prescribed periods and liberty to apply for minor matters (see Orders 1–10 and [92]–[99]).