STATUTES – BY-LAWS AND REGULATIONS – CONSTRUCTION –
PARTICULAR WORDS – where section 46 of Coal Mining Safety and Health
Regulation 2001 (Qld) provides for a procedure for health assessments
– where employee attended and Nominated Medical Adviser gave an
Source
Original judgment source is linked above.
Catchwords
STATUTES – BY-LAWS AND REGULATIONS – CONSTRUCTION –PARTICULAR WORDS – where section 46 of Coal Mining Safety and HealthRegulation 2001 (Qld) provides for a procedure for health assessments– where employee attended and Nominated Medical Adviser gave ananswer notcontemplated by the Approved Form – whether Regulation gives the employerthe power to require the employee to undergofurther medical testsCONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION ANDINTERPRETATION OF CONTRACTS – IMPLIED TERMS –OTHER CASES –whether a term should be implied into the contract of employment giving theemployer the power to require theemployee to undergo further medical tests– where the Act and Regulation set out a comprehensive regime relating tohealthassessmentCoal Mining Safety and Health Act 1999 (Qld), s 4, s 7, s 25, s 29,s 30, s 39, s 41, s 282 Coal Mining Safety and Health Regulation 2001(Qld), s 10, s 42, s 44, s 45, s 46, s 48, s 49Statutory Instruments Act
1992 (Qld), s 58Blackadder v Ramsey Butchering Services Pty
18, citedKondis v State Transport Authority [1984] HCA 61
(1984) 154 CLR 672,
citedMcLean v Tedman [1984] HCA 60
(1984) 155 CLR 306, citedMacpherson v Rio
Tinto Coal Australia Pty Ltd [2005] QSC 120, 12 May 2005,
consideredParis v Stepney Borough Council [1950] UKHL 3
[1951] AC 367,
citedSmith v The Broken Hill Pty Co Ltd [1957] HCA 34
(1957) 97 CLR 337,
cited
Judgment (130 paragraphs)
[1]
STATUTES - BY-LAWS AND REGULATIONS - CONSTRUCTION - PARTICULAR WORDS - where section 46 of Coal Mining Safety and Health Regulation 2001 (Qld) provides for a procedure for health assessments - where employee attended and Nominated Medical Adviser gave an answer not contemplated by the Approved Form - whether Regulation gives the employer the power to require the employee to undergo further medical tests
[2]
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS - OTHER CASES - whether a term should be implied into the contract of employment giving the employer the power to require the employee to undergo further medical tests - where the Act and Regulation set out a comprehensive regime relating to health assessment
[1] This application concerned the question of whether or not the employer, North Goonyella Coal Mines Pty Ltd ("North Goonyella"), could compel its employee, David John Edwards, to undergo a particular medical examination under the Coal Mining Safety and Health Regulation 2001 ("the Regulation") or at common law. Mr Edwards was represented by his union, the Construction, Forestry, Mining and Energy Union (Mining and Energy Division), (the "CFMEU"). For the purposes of the application, the following were the agreed facts.
[18]
[2] Mr Edwards is an employee of the respondent which operates an underground coal mine in Queensland, the Glenden mine. Mr Edwards is employed as a coal mine worker and has been employed by the respondent since 14 September 1994. He is not employed to carry out a low risk task as defined by s 44 of the Regulation.
[19]
[3] Mr Edwards attended health assessments under the Regulation as an employee of the respondent on 12 October 1994, 17 September 1999 and 11 October 2004. The nominated medical adviser ("NMA") under the Regulation is Dr David Parker.
[20]
[4] On 27 September 2004, the respondent wrote to Mr Edwards indicating that he was due for a statutory periodic medical health assessment under the Regulation and giving him a choice of three doctors to attend during his first available rostered off period. The applicant's health assessment was conducted by Dr Holford, as the examining medical officer, on 11 October 2004.
[21]
[5] The results of Dr Holford's examination were forwarded to the NMA and on 21 October 2004, the NMA faxed to the respondent a Section 4 - Report on Health Assessment in relation to the applicant (the "health assessment report"). The NMA marked the box on the form beside the statement "The coal mine worker has a condition which results in the following restriction(s) (if necessary, outline management program)", and wrote the following comments in the space below this box:
[22]
"Requires exercise stress test and blood tests to determine control and stability of medical condition prior to determination of fitness for current position."
[23]
[6] Mr Edwards was due to commence his rostered shift at 8.00pm on 21 October 2004. However prior to his commencing the shift, Mr Warrick Lidbury, a mine manager employed by the respondent, provided him with a copy of the health assessment report and instructed him that he could not commence work and must go home and make arrangements to undertake the tests listed on the health assessment report.
[24]
[7] The employer directed Mr Edwards to undertake the further tests but Mr Edwards, on the advice of his union, the CFMEU, refused. Mr Edwards has remained on full pay since 21 October 2004 and, in accordance with the respondent's instructions, has not attended for work at the mine site.
[25]
[8] Both parties sought relief in the proceedings. The applicant, Mr Edwards, sought the following declarations:
[26]
1. A declaration that on the proper construction of Part 6 of the Regulation, an NMA appointed pursuant to s 45 of the Regulation, can only carry out or supervise a medical examination to ascertain the applicant's fitness for work, where such medical examination is conducted as a health assessment for the purposes of Subdivision 3 of that Part.
[27]
2. A declaration that the respondent can only direct the applicant, at any time, to attend an examination by a medical practitioner for the purpose of ascertaining the applicant's fitness for duty, in accordance with Part 6, Division 2 of the Regulation.
[28]
3. A declaration that on the proper construction of s 46 of the Regulation, a health assessment carried out by or under the supervision of an NMA can only be lawfully carried out:
[29]
(a) on the terms specified in s 46(2) of the Regulation; and
[30]
(b) without consideration to any other medical or other reports.
[31]
4. A declaration that on the proper construction of Part 6 of the Regulation, a doctor other than an NMA, can only carry out the medical examinations of coal mine workers, where such medical examinations are conducted as a health assessment in accordance with Sub-division 3 of that Part.
[32]
[9] North Goonyella as cross-applicant sought the following declarations:
[33]
1. A declaration that the requirement for the tests referred to in the section 4 report was a requirement which could be made by an NMA under the Regulation.
[34]
2. A declaration that North Goonyella could direct Mr Edwards to attend an examination for the purpose of undertaking the tests referred to in the health assessment report.
[35]
[10] Both CFMEU and North Goonyella took the view that it was in their interests to have the interpretation of the statute and the Regulation raised by this proceeding resolved. They agreed to seek declarations from this court at a conference at the Industrial Relations Commission. Neither sought their costs of the applications.
[11] The Coal Mining Safety and Health Act1999 (the "Act") was passed by the Queensland parliament in 1999. The relevant provisions commenced operation on 16 March 2001. It applies, as its name suggests, to all coal mines and coal mining operations in Queensland (s 4). The objects of the Act are to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations and to require that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level.
[38]
[12] The Act replaced the Coal Mining Act 1925 and the Mines Regulation Act 1964. It was developed as a result of deliberations between the government, representatives of the mining industry and unions and was brought in against the background of four major coal mine disasters in Queensland in the previous 23 years. The background to the Act was set out by Fryberg J in Construction, Forestry, Mining and Energy Union v Oaky Creek Coal Pty Ltd:[1]
[39]
"By 1999, deficiencies in the regulatory regime covering safety and health in coal mines[2] were widely recognised.[3] That regime 'concentrate[d] on telling industry how things must be done rather than the standards of safety which must be achieved while doing the task.'[4] The Coal Mining Safety and Health Act1999 'focuses on the standards of safety and health that must be met and allows the mine operator to use the most appropriate methods and technology to achieve these standards.'[5] It is intended to 'provide a modern legislative framework for the safety and health of those involved with Queensland's most important industry'."[6]
[40]
[13] The ways in which the objects are to be achieved are set out in s 7 of the Act which provides:
[41]
(a) imposing safety and health obligations on persons who operate coal mines or who may affect the safety or health of others at coal mines; and
[42]
(b) providing for safety and health management systems at coal mines to manage risk effectively; and
[43]
(c) making regulations and recognised standards for the coal mining industry to require and promote risk management and control; and
[44]
(d) establishing a safety and health advisory council to allow the coal mining industry to participate in developing strategies for improving safety and health; and
[45]
(e) providing for safety and health representatives to represent the safety and health interests of coal mine workers; and
[46]
(f) providing for inspectors and other officers to monitor the effectiveness of risk management and control at coal mines, and to take appropriate action to ensure adequate risk management; and
[47]
(g) providing a way for the competencies of persons at coal mines to be assessed and recognised; and
[48]
(h) requiring management structures so that persons may competently supervise the safe operation of coal mines; and
[49]
(i) providing for an appropriate coal mines rescue capability; and
[50]
(j) providing for a satisfactory level of preparedness for emergencies at coal mines; and
[51]
(k) providing for the health assessment of coal mine workers."
[52]
[14] Section 29 provides that for risk from coal mining operations to be at an acceptable level, the operations must be carried out so that the level of risk from the operations is within acceptable limits and as low as reasonably achievable. Section 30 of the Act sets out how the objective of an acceptable level of risk is achieved. It provides:
[53]
"(1) To achieve an acceptable level of risk, this Act requires that management and operating systems must be put in place for each coal mine.
[54]
(2) This Act provides that the systems must incorporate risk management elements and practices appropriate for each coal mine to--
[55]
(c) monitor levels of risk and the adverse consequences of retained residual risk; and
[56]
(d) investigate and analyse the causes of serious accidents and high potential incidents with a view to preventing their recurrence; and
[57]
(e) review the effectiveness of risk control measures, and take appropriate corrective and preventive action; and
[58]
(f) mitigate the potential adverse effects arising from residual risk.
[59]
(3) Also, the way an acceptable level of risk of injury or illness may be achieved may be prescribed under a regulation."
[60]
[15] The Regulation was made pursuant to s 282 of the Act to achieve, inter alia, an acceptable level of risk. Part 2 of the Regulation deals with safety and health management systems. Part 6 deals with fitness for work.
[61]
[16] In Division 1 of Part 6 of the Regulation are general provisions dealing with fitness for work. Sections 39-41 are related to alcohol risk management. Section 42 of the Regulation deals with a coal mine's safety and health management system. The site senior executive at the mine ("SSE") has an obligation under s 42(a) of the Act to ensure that the risk to persons from coal mining operations is at an acceptable level and under s 42(c) of the Act to develop and implement a safety and health management system for the mine. The SSE is defined in s 25(1) of the Act as the most senior officer employed by the coal mine operator for the coal mine who is located at or near the coal mine and who has responsibility for the coal mine. The coal mine operator has obligations pursuant to s 41(1) of the Act, to appoint an SSE, to ensure that the SSE develops and implements a safety and health management system for the mine, and to audit and review the effectiveness and implementation of the safety and health system to ensure that the risk to persons from coal mining operations is at an acceptable level. The safety and health management system must provide for controlling risks at the mine associated with personal fatigue, other physical or psychological impairment and the improper use of drugs. An example is given of physical or psychological impairment of "an impairment caused by stress or illness".
[62]
[17] With regard to "other physical or psychological impairment", s 42(3) of the Regulation provides that the safety and health management system must provide for protocols for persons at the mine. The SSE must consult with a cross-section of workers at the mine with regard to the fitness provisions in the protocols.
[63]
[18] The coal mine workers in turn have obligations pursuant to s 39 of the Act to comply with the Act and procedures applying to the worker that are part of a safety and health management system for the mine. If the coal mine worker or another person has information that other persons need to know to fulfil their obligations or duties under the Act, or to protect themselves from the risk of injury or illness, the person must give the information to the other persons. A coal mine worker or other person at a coal mine is obliged to comply with instructions given for safety and health of persons by the coal mine operator or SSE for the mine or a supervisor at the mine; and to work at the coal mine only if the worker or person is in a fit condition to carry out the work without affecting the safety and health of others.
[64]
[19] Pursuant to s 10(1)(b), (c), (d)(i), (ii)(A), (B), (e), (2), (4) and s 42(6) of the Regulation:
[65]
(1) the SSE must ensure that in developing the fitness provisions the following steps are taken:
[66]
(a) the SSE must prepare draft fitness provisions and give a copy of them to the coal mine workers with whom the SSE consulted;
[67]
(b) if the coal mine workers agree with the draft fitness provisions, the SSE must prepare them as the final fitness provisions;
[68]
(c) if the coal mine workers do not agree with the draft fitness provisions -
[69]
(i) for a disagreement that is not about a legal or technical matter, the SSE must decide the disagreed matters and prepare the final fitness provisions;
[70]
(ii) for a disagreement that is about a legal or technical matter, the SSE must:
[71]
A. obtain further information or advice, including for example, from a person having the necessary qualifications and experience to give the advice or from a recognised text on the matter; and
B. after consulting with the workers about the information or advice, prepare further draft fitness provisions, and give a copy of them to the workers;
[72]
(d) the SSE must include the final fitness provisions in the mine's safety and health management system.
[73]
(2) the SSE must also ensure that the final fitness provisions accord with -
[74]
(a) all matters agreed, under this section, between the SSE and coal mine workers; and
[75]
(b) the SSE's decision, under this section, on any disagreed matter; and that
[76]
[20] If the fitness provisions provide for the assessment of workers for physical or psychological impairment, s 42(7) of the Regulation provides that the SSE must establish the criteria for the assessment in agreement with a majority of workers at the mine. It was common ground at the hearing that there has not been any agreement by a majority of workers at the Glenden mine under s 42(7) of the Regulation with regard to a fitness provision and no protocols had been developed. These provisions in Division 1 of Part 6 could enable an employer to direct a coal mine worker to be assessed for physical impairment where the procedures of that division have been followed and such agreement reached.
[77]
[21] Division 2 of Part 6 provides for the coal mine workers' health scheme. Section 44 of the Regulation provides that the Division applies to every coal mine worker other than a coal mine worker employed to carry out a low risk task. As mentioned in the recital of agreed facts, Mr Edwards is not employed to carry out a low risk task.
[78]
[22] Under s 45 of the Regulation, each employer must appoint an NMA to carry out, supervise, and report on, health assessments under Division 2 for that employer's coal mine workers. This gives effect to s 7(k) of the Act which provides that the objects of the Act are achieved, inter alia, by providing for the health assessment of coal mine workers. As mentioned earlier, the NMA nominated by the respondent at Glenden Mine is Dr Parker.
[79]
[23] Pursuant to s 46(1) of the Regulation, the employer must ensure that a health assessment is carried out for each person who is to be employed, or is employed, by the employer as a coal mine worker. "Health assessment" is defined in Schedule 9 of the Regulation to mean "an assessment of a person's health under section 46". Section 46(4)(c) provides that the health assessment must be carried out not only before the person is employed as a coal mine worker, but otherwise periodically as necessary at least once every five years. Section 46(2) of the Regulation provides that the health assessment must be carried out in accordance with the instructions, and covering the matters, in the approved form and by, or under the supervision of, the NMA. Section 46(3) provides that the health assessment may include matters not covered in the approved form in certain circumstances. Those exist if there has been a risk assessment carried out for a task for which the person is to be employed or is employed, and having regard to the risk assessment, the NMA considers the coal mine worker needs to be assessed in relation to the additional matters to achieve an acceptable level of risk. The health assessment may then include those matters. It is common ground that no such risk assessment had been carried out.
[80]
[24] Section 46(5) provides that a medical examination carried out by a doctor other than the NMA is taken to be a health assessment carried out by the NMA if the examination is carried out under the instructions in the approved form and the NMA gives the employer a health assessment report about the examination. The employer is responsible for arranging and paying for the health assessment and must ask the NMA to give a health assessment report to the employer with a copy of the report and an explanation of it to the person to whom it relates.
[81]
[25] A review of the health assessment report is triggered under s 48 if it shows that the worker is unable to carry out the worker's tasks at the mine without creating an unacceptable level of risk. In such a case, the worker may face termination of his employment or demotion. Before the employer may take such action, the employer must give the worker the opportunity, at the worker's expense, to undergo another health assessment by another NMA or a medical specialist chosen by the worker: s 48(2). The employer must give a copy of the second health assessment to the NMA who did the original assessment and ask the NMA to review the original health assessment report having regard to the second health assessment and report to the employer and the worker about the review.
[82]
[26] Section 49 of the Regulation requires that a coal mine's safety and health management system must provide for periodic monitoring of the level of risk from hazards at the mine which are likely to create an unacceptable level of risk. If there is an appreciable increase in the level of risk, notice must be given to the employer, who must then give a copy of the notice to the NMA: s 49(3).
[83]
[27] Section 49(4) provides that when a coal mine worker is exposed to a hazard which may increase the level of risk to the worker, the worker's exposure to the hazard is to be periodically monitored. The procedure for monitoring the effect of the hazard on the individual worker is set out in s 46(4)(b) which provides that where an NMA decides that a health assessment is necessary after being given a notice under s 49(3), a health assessment must be carried out periodically, as decided by the NMA. Section 49 was thoroughly examined in a decision by McMurdo J in Macpherson v Rio Tinto Coal Australia Pty Ltd.[7] In that case, the employer endeavoured to use s 49 to trigger a notice requiring for a periodic health assessment not as the result of an increase in risk from hazards at the mine but as a result of an unrelated injury suffered by the worker. McMurdo J held that the notice was not one which the employer was permitted or obliged to give under s 49 of the Regulation.
[84]
[28] The essential issues in this dispute concern the question of whether or not North Goonyella, as employer, can direct Mr Edwards, as employee, to undergo the further tests pursuant to the Regulation or pursuant to the rights of an employer in general. The first question involves a close textual analysis of the Regulation and the second an examination of common law rights of employers and employees to the extent that they survive the Act and Regulation.
[85]
[29] The employer commenced the process of complying with its obligation under s 46(1) of the Regulation to ensure a health assessment was carried out with regard to Mr Edwards by sending its letter of 27 September 2004 requiring him to make an appointment to see one of the doctors named in that letter. Once that process had commenced, s 46(2)(a) requires that the assessment must be carried out "in accordance with the instructions, and covering the matters, in the approved form" (emphasis added). Section 46(2)(b) requires that the assessment must be carried out, by, or under the supervision of, the NMA.
[86]
[30] The confidential health assessment form for the coal mine workers' health scheme used by Dr Holford asserts on its face that it is a form approved under s 281 of the Act. Section 281 provides that the chief inspector may approve forms for use under the Act. Since there was no evidence to show that the form used was, in fact, the approved form, I sought further evidence and submissions to address whether there was evidence to show that the chief inspector had approved the form. The respondent's solicitors filed an affidavit from the chief inspector deposing that he approved the form which was annexed to Dr Parker's affidavit. In response, plaintiff's counsel drew the court's attention to s 58 of the Statutory Instruments Act1992 which provides that:
[87]
(1)
This section applies if under an Act or subordinate legislation (the "authorising law") forms are to be approved or made available by an entity.
(2)
A form under the authorising law must have a heading stating the name of the authorising law and briefly indicating the form's purpose.
(3)
All forms under the authorising law must be numbered using a system that gives each form a unique number.
[88]
1. Forms may be numbered consecutively starting with the number 1.
[89]
2. Forms may be numbered to reflect the provisions of the Act to which they relate.
[90]
(4) All versions of a form under the authorising law must be numbered consecutively using a system that gives each version of the form a unique number.
[91]
(5) The approval or availability under the authorising law of a form, or a new version of a form, must be notified in the gazette.
[92]
(ii) the form's heading, number and version number; and
[93]
(iii) a place or places where copies are available; or
[94]
(7) On the day the approval or availability of the form is notified or as soon as practicable after the day, copies of the form must be available (for purchase or free of charge) at the place, or each of the places, stated in the notice.
[95]
(8) Failure to comply with this section does not affect a form's validity.
[96]
(9) This section does not apply to a form declared by regulation under this Act to be a form to which this section does not apply."
[97]
This section applies to the health assessment form in question. The form did comply with s 58(2) but not with s 58(3), (4), (5), (6) or (7). This is a serious omission which ought to be rectified but as s 58(8) provides, does not affect the form's validity.
[98]
[31] The form sets out Guidance Notes for completion of the health assessment for the employer, coal mine worker, examining medical officer and the NMA. It does not envisage that the NMA will have the right to require the employee to undertake further medical tests apart from practical tests for abnormal colour vision or hearing. The NMA is required to answer the following:
[99]
As at the date of this examination, the coal mine worker:
[100]
□ Is fit to undertake the proposed / current position
[101]
□ The coal mine worker has a condition which results in the following restriction(s) (if necessary, outline management program)
The duration of the restriction is: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Is a further review necessary? Yes □ Date / / No □
Specify full or type of review required: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Was a chest x-ray taken? Yes □ Date / / No □
[103]
[32] The comments written by the NMA in apparent answer to the third dot point are not in fact an answer to that point. The NMA was required by that question to say whether the coal mine worker had a "condition" and if so, what restrictions resulted from that condition. An example might be that the worker suffered from vertigo and therefore had restrictions on working at height or that the worker suffered from dermatitis and so had restrictions on what materials he or she could work with. The comments made by the NMA were not relevant to the topic raised by the third point on the form. The employer is not given any power under Division 2 of Part 6 to require any further tests not found in the health assessment form. In particular there is no provision for the NMA or the employer to require a test or a report by a third party apart from further tests for colour vision and hearing.
[104]
[33] The employer does have the power to provide for assessments for physical or psychological impairment in fitness provisions developed under s 42(6). However North Goonyella has not developed any relevant fitness provisions. If it had, there may have been the power to make the direction it did. Absent that, there is no power found in the Regulation for the employer to require a coal mine worker to undergo further medical tests.
[105]
[34] Does it have such a power at common law? It is trite to say that an employer owes its employees a duty of care. This duty arises both in tort and in contract. In tort, the employer has a non-delegable duty to take reasonable care for the safety of its employees.[8] The nature of the duty is to ensure that reasonable care is taken to avoid exposing the employee to unnecessary risk of injury or damage to health: see Czatyrko v Edith Cowan University[9] in the joint judgment of Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ:
[106]
"An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.[10] If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.[11]"
[107]
[35] An employer has a similar contractual obligation arising from an implied term to take reasonable care not to expose employees to unnecessary risks to their health and safety. Further an employer may have a duty not to be in breach of any statutory requirements which relate to the health and safety of its workers.
[108]
[36] The question for determination in this matter is whether the employer has or retains a power, notwithstanding the detailed provisions of the Act and the Regulation, to require its employee to attend a medical examination. To answer that question one has to consider from what source, absent statute, such a right or power might derive. The duty to take reasonable precautions for the worker's safety[12] will not necessarily be accompanied by a power to require an employee to attend a medical examination. Such a power must, if it exists, be a term of the contract of employment. There is no such express term in the contract of employment.
[109]
[37] The respondent must rely therefore on an implied contractual provision. In order for a contractual term to be implied it must be necessary for the reasonable or effective operation of the contract.[13] It is insufficient that such a term may be desirable. Whether or not such an implication is necessary is a question of fact to be determined in the particular context, considering the express contractual terms, any applicable workplace agreements or awards and, most importantly for this case, the statutory regime that applies. The employer has the statutory rights set out in detail in Division 2 of Part 6 of the Regulation. In addition it has the right to develop protocols for the assessment of workers for physical or psychological impairment under s 42 in Division 1 of Part 6 of the Regulation. It is unnecessary in those circumstances to imply any further terms into the contract giving a general right to the employer to require the employee to undertake further medical tests. The Act and Regulation set out a comprehensive regime for those matters.
[110]
[38] This made it unlike the factual situation in Blackadder v Ramsey Butchering Services Pty Ltd,[14] where Madgwick J at first instance assumed that there should be implied into contracts of employment on the basis of necessity, terms that an employer be able to require an employee to attend a medical examination to confirm his or her fitness where there is a genuine indication of a need for it. However his Honour also held that whether it was reasonable for an employer to request an employee, who in that case had his reinstatement ordered by the Industrial Relations Commission, to attend a medical examination would always be a question of fact. The matter went on appeal to the Full Court of the Federal Court and the High Court but the question of whether there was such an implied term in a contract of employment was not confirmed. McHugh J's reasoning was inconsistent with there being such a term necessarily implied in contracts of employment. His Honour held that an employer cannot evade the operation of a reinstatement order by making it subject to the employer's satisfaction concerning the fitness of the employee.
[111]
[39] There may be cases in which a term could be implied in a contract of employment that an employer is able to require an employee to attend a medical examination. It could not be said in this case however, given the comprehensive statutory regime, that it is necessary to imply into the contract of employment, a term that an employer has the right to require an employee to have further medical tests.
[112]
[40] In view of the foregoing reasons, it is appropriate to make the following declarations:
[113]
1. A declaration that on the proper construction of Division 2 of Part 6 of the Regulation, an NMA appointed pursuant to s 45 of the Regulation, can only carry out or supervise a medical examination to ascertain the applicant's fitness for work, where such medical examination is conducted as a health assessment for the purposes of Subdivision 3 of that Part.
[114]
2. A declaration that on the proper construction of s 46 of the Regulation, a health assessment carried out by or under the supervision of an NMA can only be lawfully carried out:
[115]
(a) on the terms specified in s 46(2) of the Regulation; and
[116]
(b) without consideration to any other medical or other reports.
[117]
3. A declaration that on the proper construction of Division 2 of Part 6 of the Regulation, a doctor other than an NMA, can only carry out the medical examinations of coal mine workers, where such medical examinations are conducted as a health assessment in accordance with Sub-division 3 of that Part.
[118]
[41] The declarations sought by the respondent should be refused.
[3]Explanatory Notes, p 2 (p 920 in Queensland Explanatory Notes for Bills Passed During the Year 1999, Vol. 1, Office of the Queensland Parliamentary Counsel, 1999).
[122]
[4] Hon. T McGrady, Minister for Mines and Energy (24 March 1999): Queensland Parliamentary Debates, Vol. 349 at p 734.