Lawless v Qantas Airways Limited and Anor [2013] SAWCT 40

1. The issue on the first dispute was whether any "decision" referred to in the compensating authority's letter of 14 March 2013 was a reviewable decision under s 89A of the Workers Rehabilitation and Compensation Act 1986 ("the Act"). The issue on the second dispute was whether any provision or provisions of RRTW Plan 1 were unreasonable, and if so, what modifications, if any, could properly be made by the Tribunal and should be made to ensure the Plan did not impose unreasonable obligations on the worker or the employer. The second dispute gave rise to a series of subsidiary questions including the scope of the s 28B jurisdiction and the operation of s 58B of the Act in this context.
2. Before turning to these issues I set out a summary of the events leading up to the worker's dismissal. This is drawn from the agreed documents, the worker's evidence, and evidence called by Qantas from its employees Mr Ellis, Ms Bellgrove and Mr Lecouteur, and from Mr Zubrinich, who was employed by the compensating authority as the worker's case manager for most of the relevant period. The underlying facts were largely not in dispute. I accept that each witness in the proceedings endeavoured to tell the truth to the best of his or her recollection, although in some instances certain of the evidence was unreliable, for reasons which are explained below. Unless stated otherwise it can be assumed that the facts now set out are accepted by me.

1. The worker is now 54 years of age having been educated at school until completion of year 10. Thereafter he performed work as a bar attendant and a housing insulator before he commenced employment with Qantas in mid-1989 as a casual baggage handler. After a period of interrupted casual employment he commenced on a full time permanent basis in December 1989, initially as a night cleaner, then as a baggage handler from about 1991. That position is now known as Airline Services Operator or "ASO".
2. The normal duties of an ASO involved a range of tasks in the division known as Ramp Services which included ASOs and ground crew, and encompassed the servicing of Qantas flights to and from Adelaide Airport including the loading and unloading of baggage, cargo and freight on both domestic and international aircraft. The worker carried out his duties on varying shifts by way of rotating rosters over seven days. For the most part he worked Monday to Friday with paid working time of seven hours 46 minutes per day. The position in which he was employed was classified under the relevant industrial instrument at ASO Level 4.[3] Qantas also employed staff in other divisions then including customer service, engineering, catering and flight crew.
3. Over the period from 1997 to 2005 the worker suffered a series of injuries arising mainly from repetitive lifting and carrying. The injuries were to his left elbow in January 1997, his right shoulder and neck in June 2001, both arms and hands in October 2001, and his lower back and right hip in October 2005. At different times he underwent surgery to his left elbow, right shoulder, and left and right ulnar nerves.
4. By June 2001 the extent of the worker's ongoing disabilities was such that he was considered by Qantas to be unable to cope full time with the duties of an ASO in Ramp Services.[4] He was provided with modified ASO duties mainly involving driving. However, by mid-2007, the worker was not coping with these duties.[5] From that time he was allocated a mixture of tasks mostly done by either ASOs or by customer service assistants ("CSAs"). These tasks broadly fell into eight categories comprising assisting with the boarding of passengers on international Air New Zealand flights;[6] marshalling passengers arriving or departing on regional flights; headset distribution; refuelling tarmac vehicles; refuelling other unleaded fuel vehicles; external/internal mail collection and distribution; escorting external contractors when they attended on site jobs; and collecting the milk and restocking of refrigerators. The worker carried out these duties until mid-2012 when they were changed in circumstances described below.
5. During this time Ms Bakjac of Corporate Health Group conducted a "suitable employment assessment" on behalf of the compensating authority. The assessment report dated 17 March 2010 observed that the worker had been provided with modified tasks which Qantas had indicated both "should be available for the foreseeable future" and would be able to undertaken on "an ongoing permanent basis".[7] Ms Bakjac concluded that suitable work could be provided by Qantas, although she noted the view of "Qantas management" that the duties enabled the worker to be productive only for approximately 60% of the working day, and that a number of the tasks would normally be assumed by either a CSA or ASO employee, or by a person in another administrative position.[8]
6. Ms Bellgrove commenced as the Qantas Safety Advisor at Adelaide in November 2009. She did not appear to share the view that the worker's duties were appropriate on a long term basis. She said that when she commenced, more than one fifth of the then 116 ASO employees had an ongoing compensation claim, and that the limited range of alternative duties available within the airport meant that, whilst she was able to provide alternative duties for injured employees temporarily as part of a graduated return to work program, she was not often able to provide permanent alternate work to the long term injured.[9]
7. In 2008, before Ms Bellgrove commenced her employment, Safework SA had imposed an Action Plan on Qantas which was designed to reduce the risk and frequency of manual handling injuries in Ramp Services.[10] Ms Bellgrove was responsible for addressing these matters. She carried out a hazard identification and risk assessment which identified a major hazard to be the lack of adequate rotation of loading and unloading tasks between ASO employees. The practice at this time was to have one employee per team dedicated to the less onerous driving duties thus exposing others to more prolonged periods of strenuous activity.
8. As a result, a rotation strategy was implemented on 20 October 2010 which required team members to rotate between their various tasks including driving duties. Ms Bellgrove said this resulted in a significant reduction in manual handling injuries and new workers compensation claims, and in an improved rate of return of injured workers to pre-injury duties. She said that the worker would not necessarily have been aware of the introduction of this strategy, as he was continuing with the particular collection of duties assigned to him since 2007.
9. Ms Bellgrove said that as a consequence of the changed strategy, an injured ASO employee on a graduated return to work plan would not be allocated solely to lighter driving duties. Rather, Qantas would arrange for that employee to carry out duties as a temporary supernumerary team member so as to allow other team members to rotate between all tasks.
10. Safework SA conducted a further audit in June 2011 and concluded that Qantas had adopted an effective approach to minimising injury risks in manual handling.[11]
11. On 1 August 2011, Mr Zubrinich, then employed by the compensating authority, was appointed as the case manager with respect to the claim of the worker and those of a number of other Qantas employees. However, due to his workload with other rehabilitation files, he did not become actively involved in the worker's claim until about June 2012.
12. In September 2011 the worker received a letter from Qantas in relation to a review of its obligation with respect to wages payable under s 58B(3) of the Act.[12] It was noted that the worker's pre-injury classification was ASO Level 4 and that he had been provided with "modified duties in accordance with the employer's duty to provide suitable employment pursuant to section 58B(1) of the Act." The letter listed the modified duties performed since 2007 as described above.[13] The letter determined under s 58B(3) of the Act that the ASO Level 3 wage was appropriate for those duties. The worker was paid that wage plus "top up" payments of income maintenance at 80% of the difference between the Level 3 wage and his notional weekly earnings.
13. On 12 October 2011 the compensating authority issued a current work capacity determination under s 35B(1) of the Act which stated that the worker was vocationally suited to work as an ASO.[14] This decision was based on various factors including a "Suitable Employment Assessment" conducted in May 2010 which found the worker was "currently in suitable employment...performing vocationally suitable work"; a Rehabilitation Closure Report dated 25 September 2008 which noted that he had returned to "suitable new employment as an Airline Services Operator/Officer with Qantas..."; that he was utilising his existing skills and extensive experience in his employment as an ASO; and that he was fit from a physical perspective to undertake suitably modified work as an ASO in accordance with various job analysis reports and prescribed medical certificates.[15]
14. It was thus determined that the worker had a current work capacity as an ASO Level 3 despite being unable to undertake his pre-injury employment and that his income maintenance payments would cease. However, top up compensation payments continued after the worker made a successful application under s 35C(1) of the Act. The determination to this effect took into account that the worker was "currently in suitable employment".[16]
15. As observed above, Ms Bellgrove had long held concerns as to the appropriateness of the worker's duties. In her view they did not add value to the business as they did not involve a collection of tasks which someone else would be recruited to perform if the worker was not available. Further, she felt that it was not appropriate for the tasks to be drawn from different divisions of the business and to be covered by different awards involving different employee organisations.[17] She said "it wasn't appropriate to accommodate somebody in never-ending light duties that were ad hoc and that were a mixture of meaningless tasks".[18] Ms Bellgrove said Qantas could not accommodate people with permanent restrictions, and that providing work in those circumstances compromised the safety of other employees and led to injured workers becoming frustrated and psychologically unwell due to feeling unimportant.[19]
16. In early May 2012 Mr Zubrinich became actively involved in case management of the worker. He discussed a new RRTW Plan with the worker and noted that the worker felt he could be provided with more duties.
17. By about this time, Ms Bellgrove had completed the documentation of an "internal suitable employment process"[20] for Qantas employees which was to be implemented once it had been medically established that an injured employee would not return to his or her full pre-injury duties. The process entailed the compensating authority identifying the permanent restrictions and suitable employment options with respect to an injured worker, then consulting with Qantas as to any concerns it held regarding the practicability of accommodating that worker in any proposed suitable employment from an operational perspective. Ms Bellgrove stated that every injured employee with ongoing medical restrictions came to be managed in accordance with this process, and that it was to apply to any reviews undertaken by Mr Zubrinich as to the obligation of Qantas to provide injured workers with suitable employment pursuant to s 58B of the Act.
18. Mr Ellis commenced as the new Manager of Ramp Services on 26 May 2012. At this time he said there were 116 workers in Ramp Services constituted by 45 full-time and eleven part-time ASOs; 11 full-time and three part-time leading hands who managed ASOs; four shift coordinators who managed the leading hands and ASOs; and 42 parttime ground crew who were not direct employees of Qantas but were engaged through a labour hire firm.
19. Mr Ellis analysed the tasks done by the worker, and concluded that he was occupied for only about three to four hours per shift of 7.6 hours. Mr Ellis came to accept the views of Ms Bellgrove as to the inappropriateness of the worker continuing with his then collection of duties. As a result, at the direction of airport management, he initiated the gradual transfer of the tasks done by the worker to non-injured employees, and assigned the worker primarily to a single task of collecting baggage data for the purpose of recording key performance indicators in that regard ("baggage tagging"). Occasionally he was required to attend to other tasks such as transporting passengers to and from the regional departure gate and refuelling of vehicles and equipment.
20. On 27 June 2012 Mr Zubrinich met with Ms Bellgrove, the worker and Ms Moore, the rehabilitation consultant then engaged by the compensating authority, to discuss the draft of a new RRTW Plan which had the continuing objective of a return to work with the pre-injury employer. Mr Zubrinich's recollection was that the worker had been transferred to baggage tagging by this time. He noted the worker to be somewhat abrasive and unhelpful in discussing his situation and ongoing return to work outcomes, and to express some bitterness about a lack of job satisfaction and a perceived lack of recognition of his efforts. After the meeting Mr Zubrinich decided that the options for a return to work with Qantas should be thoroughly investigated as part of a consideration of whether there should be a change in the focus of the worker's rehabilitation to employment with a new employer.
21. On 15 October 2012, during Mr Zubrinich's investigations, the worker and a number of other employees received a letter from Qantas which invited expressions of interest in a voluntary redundancy. The worker chose not to respond, although he was aware some other long term injured employees did and subsequently received redundancy packages. He felt he was too young to take up such an option, and was concerned at his ability to obtain new employment, and was keen to continue in with Qantas.
22. On 31 October 2012 a meeting took place between the worker, Mr Ellis, Ms Bellgrove, and Ms Moore with the goal of attempting to find a suitable alternative position within Qantas. Mr Ellis told the worker that Qantas was not prepared to allocate alternative positions or duties to him as it had in the past, and that he was considered not to be physically fit to carry out the duties of an ASO, and that as it was not practicable to modify those duties, in particular the driving duties, to accommodate him. He told the worker he had to seek redeployment within Qantas in a different classification. The only suggested role was that of a CSA, as the worker had no qualifications with respect to engineering, and a decision had been made to outsource catering. Mr Ellis said that the worker's response was that he was far too old for such a position, that he could not use a computer, and that he was not interested.[21] The worker's attitude in this respect was also communicated by him to Ms Bellgrove.
23. At about this time Mr Zubrinich requested that Mr Dewing, of Dewing Ergonomics and Safety Pty Ltd, compile a job dictionary in relation to Qantas "ground operations" to assist not only with the identification of suitable duties within Qantas for the worker, but also more generally in relation to other ongoing or future compensation cases. Further, in order to explore whether the suggested CSA role was vocationally suitable for the worker, Mr Zubrinich arranged for him to undergo a psychological assessment conducted by Locher Human Resources ("Locher"). The assessment was conducted on 28 November 2012. Shortly thereafter, Locher prepared a written report dated "November 2012".[22]
24. The Locher report expressed the opinion that the worker had performed either "below average" or "well below average" with respect to specific abilities identified as relevant to the CSA position. The ultimate recommendation was that the worker would be "an unsuitable fit" for the role of CSA, but that additional information such as work history, interview results and reference reports should also be considered in conjunction with the assessment before a decision was made.
25. The worker did not accept the conclusions of the Locher assessment as to his aptitudes. However, he acknowledged that he had a lack of training and experience with respect to the use of computers, and accepted that, in its totality, a CSA role was not physically suitable for him given the requirement, from time to time, for lifting and moving items of baggage weighing up to 32 kilograms.
26. On 5 December 2012 Mr Zubrinich sent a letter to the worker headed "Return to work direction". Mr Zubrinich advised that he had reviewed the worker's ability to return to suitable employment with Qantas, and that the return to work focus should change from obtaining suitable employment with Qantas to obtaining suitable employment with a new employer. The letter stated that in these circumstances most workers had their employment with the pre-injury employer terminated.[23]
27. At the time this letter was sent Mr Zubrinich had not received Mr Dewing's job dictionary, but had received interim reports from Mr Dewing about the worker's lack of physical suitability for various roles which Mr Dewing had assessed. Mr Zubrinich was not certain that he had received the Locher assessment by then but felt he probably had.[24] I find that he had received the report by then, and that on the basis of the information available to him, he considered there was no suitable employment for the worker at Qantas, and that it was not necessary to undertake the further investigations or inquiries suggested by the Locher report, or arrange for any training, as the latter was, in Mr Zubrinich's view, fruitless in the absence of an identified suitable employment goal.
28. Factors Mr Zubrinich took into account in coming to his view included:
    • the worker's physical and vocational unsuitability for the role of CSA and his physical unsuitability for the role of ASO including any driving duties due to the associated lifting requirements and job rotation arrangement;
    • that the collection of tasks the worker had been doing over the period from 2007 - 2012 had been withdrawn by Qantas, and that whilst they were tasks which still needed to be done by someone, and were capable of being done by the worker, they would be absorbed by other employees if the worker ceased doing them;
    • that the collection of tasks done by the worker were "not deemed to be employment",[25] "suitable employment",[26] or "meaningful and productive" employment;[27] and that they offered no scope for advancement or promotion, and did not amount to a "substantive position" for which Qantas would seek a replacement if it became vacant - this was "my litmus test", said Mr Zubrinich;[28]
    • that whilst he would "enforce"[29] the creation of an employment position if an employer could afford it, he would not do so in this case as it did not fit within the parameters described above.
29. Both Mr Ellis and Ms Bellgrove held similar views.
30. Mr Zubrinich left his position with the compensating authority on 14 December 2012 before he could take steps to provide a suitable employment report based upon his conclusions. He understood the process would be completed by Ms Webb who succeeded him as case manager.
31. Over the period from 18 December 2012 to 14 February 2013 two further RRTW Plans were established which retained the objective of returning the worker to different employment with Qantas.[30] They provided that the worker was to continue to undertake suitable tasks within his restrictions pending ongoing assessment and that if a suitable job role was identified through the suitable employment process, a structured training and support program would be provided to determine whether the worker would be vocationally suitable for it. It was proposed that there be discussions with the worker, and between his rehabilitation consultant and case manager, about the Locher skills assessment and recommendations, and the next stage of the Qantas suitable employment programme.[31]
32. Mr Dewing presented his completed job dictionary on 23 December 2012.[32]
33. On 13 February 2013 Ms Bellgrove received an email from the compensating authority requesting that she provide documentation as to why the worker's duties had been disbanded into other roles and could no longer be provided by Qantas, and regarding the aptitudes required for the CSA position.
34. Ms Bellgrove responded on 22 February 2013.[33] She advised that the duties allocated to the worker over the period 2007 - 2012 were an ad hoc collection of tasks from various roles that were never considered to be suitable employment, and that the worker's medical restrictions meant he did not have the physical capacity to fulfil the inherent requirements of the ASO role. Further that the worker had neither the physical or vocational capability to work as a CSA, as evidenced by the Job Dictionary, the Locher Report and the inability of the worker to perform in accordance with legislative standards applying to the aviation industry.
35. Ms Webb spoke to the worker on 14 March 2013 and advised him that the focus would now change to rehabilitation to different employment with a new employer. She signed a letter of 14 March 2013 which confirmed this approach. This letter gave rise to the first dispute. It relevantly provided as follows:[34]

"Dear Mr. Lawless

New employer direction approved

I refer to our contact on 14/03/2013 where I advised you that a change in your return to work direction to suitable employment with a new employer may be needed.

A decision has been made to approve returning you to suitable employment with a new employer.

The basis for this decision is provided in the information summary below:

You are unable to return to your pre-injury role as a baggage handler and there are no appropriate roles at QANTAS within your physical and vocational capabilities.

This decision will come into effect in seven (7) calendar days from your receipt of this letter (receipt is taken to be two business days after the date of this letter).

...

If suitable employment becomes available with your original employer or your work capacity improves to support a return to work within your original employer we may revisit your original employer's obligations (in accordance with section 58B(1) of the Act).

You will be allocated to a case manager who specialises in working with people who are focusing their rehabilitation efforts on a new employer. Your new case manager will contact you shortly to introduce themselves to you.

...

If you do not agree with this decision you can contact my team leader on ...(telephone number).

Yours sincerely".

1. On 20 March 2013 the worker attended a medical appointment with Dr Tschirn at the request of the compensating authority. At that time he felt angry and depressed about his future, given the advice in the letter of 14 March 2013. He felt that the medical examination was a sham exercise to give validity to a decision which he considered had already been made to terminate his employment.[35]
2. On 21 March 2013 the worker's solicitors wrote to the compensating authority with respect to the letter of 14 March 2013 and disputed the decision that there was no role for the worker given the size of the Qantas organisation, and requested that rehabilitation be directed to provision of suitable duties with Qantas.[36] On 22 March 2013 they sent another letter requesting the establishment of a RRTW plan specifically providing for the identification and provision of suitable duties by Qantas and appropriate training in that regard. A notice of dispute alleging the decision to be unreasonable was lodged on 5 April 2013.
3. On 24 April 2013 the compensating authority referred the worker to a new rehabilitation provider named Applied Innovative Services ("AIS"). It appears that the worker met with Mr Gallina of that firm on 30 April 2013 and 2 May 2013, and that, on the latter occasion at least, Mr Gallina in all probability provided the worker with or at least discussed with him the draft of a proposed new RRTW Plan with a new return to work objective, which later became RRTW Plan 1. I say "in all probability" because the worker initially seemed reluctant to admit that he had either seen or read the Plan. I find that he probably did not read or even look at the Plan at his meetings with Mr Gallina, given his hostility to the process. Certainly he refused to sign the Plan. However, I find that as a result of his discussion with Mr Gallina, he had a good knowledge of what the Plan proposed. [37] I find that he probably read the Plan later after receiving a copy in the post. [38]
4. On 6 May 2013 RRTW Plan 1 was approved by Ms Webb. The new return to work objective was "different employer - different employment".[39] The duration of the Plan was from 30 April 2013 to 30 July 2013. The Plan was drafted by Mr Gallina on the basis that the worker's employment with Qantas was at an end even though the worker had yet to receive formal notification to that effect. The Plan recorded that suitable employment had not been identified and that the rehabilitation provider was awaiting a vocational assessment to determine what suitable employment was available for the worker. To this end the strategy included that the rehabilitation consultant obtain medical approval for any identified suitable job options, and that the worker participate in work trials and paid employment opportunities to build and maintain his work capacity and skill set, and apply regularly for suitable vacant positions. The second dispute notice which related to this Plan was lodged on 16 May 2013.
5. On 14 May 2013 Mr Ellis met with the worker and informed him that all duties were withdrawn from that day. He handed the worker a letter which advised that Qantas had been unable to facilitate his successful redeployment to another position.[40] Further, that suitable modified duties had been provided as an interim measure only for a reasonable period to assist him to gain fitness to return to normal preinjury duties, and were not provided permanently or indefinitely, and did not constitute a permanent job offer. The letter invited the worker to provide any further information as to why his employment should not be terminated including information identifying "normal work" which Qantas could reasonably provide that was within his work capability. He was required to respond by 21 May 2013 failing which Qantas would make a decision about his employment based upon the information currently available.
6. At the same meeting Mr Ellis gave the worker a Qantas letter dated 10 May 2013 signed by a Ms Singarella, described as a worker's compensation claims manager for various regions including South Australia.[41] The letter gave notice of Qantas' intention to terminate the worker's employment after 28 days in accordance with s 58C of the Act due to its inability to identify a suitable alternative role for him.
7. In response the solicitors for the worker advised that the Qantas letter of 10 May 2013 was taken to be a repudiation of the worker's contract which was not accepted, with the worker indicating that he remained ready, willing and able to continue with his duties at Qantas. Observations were made as to the incongruity between what Mr Ellis described the "show cause" letter of 14 May 2013, written on the premise that Qantas had made no decision as to the status of the worker's employment as at that date, and the letter of 10 May 2013, which purported to give 28 days notice of termination of employment. [42]
8. On 29 May 2013, Mr Ellis responded to the letter from the worker's solicitors dated 15 May 2013,[43] and observed that until 14 March 2013, Qantas had considered it was obliged under s 58B(1) of the Act to provide suitable duties, but that the effect of EML's determination of that date "was that it was no longer reasonably practicable for Qantas to provide suitable employment..." and that Qantas had thereby been relieved of that obligation in accordance with s 58B(2)(a) of the Act.
9. By letter of 7 June 2013 the worker's solicitors responded and again advised that the worker remained ready willing and able to carry out suitable duties at Qantas. On 11 June 2013 he attended at work on this basis but was sent home.
10. On 26 June 2013 the worker lodged an unfair dismissal application with the Fair Work Commission which alleged that he was notified by the letter on 14 May 2013 of a dismissal which took effect on 11 June 2013. Among other things, the application alleged unfairness on the ground that Qantas was in breach of its statutory obligations under s 58B of the Act.
11. On 11 July 2013 Qantas sent a letter to the worker entitled "Termination of your employment on medical grounds".[44] The letter advised that the various responses sent to Qantas by the solicitors for the worker after its letter of 14 May 2013 had been considered, but that in all the circumstances, Qantas had decided to terminate the worker's employment on medical grounds effective 11 July 2013. The worker was given four weeks pay in lieu of notice.

Scheme of the Act with respect to rehabilitation

1. Before analysing the above evidence, it is appropriate to consider the statutory and legal context in which the rehabilitation obligations of the compensating authority and the employer arise in this case, and the extent of them.
2. The relevant provisions must be considered on the basis that effective rehabilitation is one of the fundamental planks on which the Act is based: Dunstan v The State of South Australia.[45]
3. Section 26 of the Act provides that the Corporation[46] shall establish or approve rehabilitation programmes with the object of ensuring that workers suffering from compensable injuries achieve the best practicable levels of physical and mental recovery and are, where possible, restored to the workforce and the community. The purposes of rehabilitation programmes are wide-ranging, and with respect to a particular worker, may include assistance in seeking, obtaining or retaining employment and in training and retraining, and everything else that may assist in rehabilitation. In seeking to achieve these objectives, a rehabilitation programme must specify actions to be taken, and must evaluate employment that will be "suitable employment" for a worker given that worker's physical and mental condition as a consequence of the injury, or alternatively, specify that these matters will be evaluated and reported to the Corporation as soon as it becomes practicable to do so.[47]
4. A dispute over a failure to provide a rehabilitation programme, or as to the nature of services provided or not provided by an established programme, may be raised under s 89(1)(b) of the Act, which provides that a reviewable decision includes "a decision about the nature of rehabilitation services provided, or to be provided, for a worker". A liberal interpretation is to be given to the scope of disputes which may fall under this category of reviewable decision: Dunstan.[48]
5. Under s 28A of the Act, the Corporation is required to establish a RRTW Plan for a worker who is both receiving compensation by way of income maintenance and who is incapacitated for work by a compensable injury for more than thirteen weeks but has some prospect of returning to work. The obligation with respect to the worker is ongoing in this case.
6. Under reg 23 of the Workers Rehabilitation and Compensation Regulations 2010 ("the Regulations"), such a Plan must have the objective of returning the worker at the earliest practicable time to suitable employment at a level of remuneration which, as near as practicable, is not less than the worker's notional weekly earnings. The Plan also must have at least one of four other specific objectives appropriate to the circumstances. These are, in the order set out in the regulation, the worker's return to the pre-injury employment with the pre-injury employer; the worker's return to different employment by the pre-injury employer; the worker's return to the pre-injury employment but with a different employer; and the worker's return to different employment with a different employer.
7. In addition, reg 23 requires that where the objective is that the worker return to different employment, the Plan must specify, to the extent practicable, the suitable employment to which the worker should return, and any training the worker should undertake in that regard, together with any workplace or employment modifications the pre-injury employer should provide or undertake in order to achieve the worker's return to work.
8. Section 28B provides for review rights in relation to an alleged unreasonable decision to establish or not establish a RRTW Plan, or with respect to an alleged unreasonable provision of a RRTW Plan. These rights are complementary to those provided by s 89A(1)(b), but of more limited ambit and effect: Dunstan.[49]
9. Whether the obligation to provide suitable employment has been met must be considered by reference to the objects of the Act, including that there be an early return to work whilst maintaining a reasonable balance between the interests of employers and the interests of workers,[50] and also by reference to the definition of suitable employment in s 3(1) of the Act. As is evident from the Regulations and various decisions of the Tribunal,[51] the obligation to provide suitable employment may involve the provision of employment in the either pre-injury position or an alternative position in respect of which the duties are modified on an ongoing basis, where it is reasonably practicable to do so.
10. As noted in Multiserv,[52] even though s 58B appears in a separate part of the Act from the rehabilitation provisions,[53] RRTW Plans are established in the context of an employer's underlying duty under s 58B of the Act to provide suitable employment for a worker who is able to return to work. Thus, the existence of the s 58B obligation gives primacy to the specific objectives of either returning a worker to pre-injury employment or different employment with the pre-injury employer compared with the other two specific objectives.
11. I say more below about the role of s 58B and its relationship to the reviewability of the decisions under challenge and the scope of any review which is available.

Whether there is a reviewable decision under s 89A of the Act

1. Both the compensating authority and Qantas challenged the jurisdiction of the Tribunal to deal with the first dispute. They submitted that the compensating authority's letter of 14 March 2013 could not be characterised as "a decision on a claim for compensation" under s 89A(1)(a) as it did not relate to or affect any monetary benefit payable to the worker under the Act, and further because the scope of the phrase "decision on a claim for compensation" should be read down consistently with the comments of the Full Tribunal in Hammer v Department for Correctional Services.[54]
2. Further, it was submitted that the letter did not make "a decision about the nature of rehabilitation services provided, or to be provided, for a worker" under s 89A(1)(b) of the Act as it merely conveyed an administrative decision in the course of the management of the worker's rehabilitation, being a decision in relation to which the Act intended that a compensating authority have complete autonomy, as opposed to a decision to provide or not provide a particular rehabilitation service. Qantas submitted that another factor which supported its contention was that if the decision was reviewable under s 89A(1)(b), it would potentially give rise to a remedy by judicial determination of a dispute under s 89A which was properly within the confined province of the s 28B jurisdiction; further, that it would allow for scrutiny by the Tribunal of the decision to release Qantas from its obligations under s 58B(1) of the Act, contrary to the constraints said to arise from the Full Tribunal decision in Holloway v The State of South Australia.[55]
3. The worker contended that the letter conveyed the making of two decisions, each of them separately reviewable, the first to approve returning the worker to suitable employment with a new employer, and the second to allocate a new case manager specialising in providing rehabilitation services focussed on obtaining employment with a new employer. He submitted that they were reviewable decisions under either of the relevant categories under s 89A.
4. I reject that submission. I consider the letter to involve one primary decision, namely to approve returning the worker to suitable employment with a new employer. That, in my opinion, is the only decision arguably capable of review. If it was reviewable, and set aside, the second and consequential decision to allocate the worker to a case manager who specialised in assisting employees with the objective of returning to work with a different employer would be otiose. That secondary decision could not be reviewable in its own right.
5. I now turn to s 58B, which provides:

"(1) If a worker who has been incapacitated for work in consequence of a compensable injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer from whose employment the injury arose must provide suitable employment for the worker (the employment being employment for which the worker is fit and, subject to that qualification, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity).

(2) Subsection (1) does not apply if -

(a) it is not reasonably practicable to provide employment in accordance with that subsection (and the onus of establishing that lies in any legal proceedings on the employer); or

(b) the worker left the employment of that employer before the commencement of the incapacity for work; or

(c) the worker terminated the employment after the commencement of the incapacity for work; or

(e) the employer currently employs less than 10 employees, and the period that has elapsed since the worker became incapacitated for work is more than 1 year.

(3) If a worker who has been incapacitated for work in consequence of a compensable injury undertakes alternative or modified duties under employment or an arrangement that falls outside the worker's contract of service for the employment from which the injury arose, the employer must pay an appropriate wage or salary in respect of those duties unless otherwise determined by the Corporation."

1. The decision of the compensating authority on 14 March 2013 was not, as such, a decision under s 58B(1). That subsection does not provide for the making of any "decision" by a compensating authority, but rather imposes a duty on the employer to provide suitable employment, and specifies a monetary penalty for any breach. The decision implicitly approved the proposal of Qantas that it no longer be obliged to provide suitable employment to the worker on the ground that it was no longer practicable to do so, and that it be at liberty to terminate his employment for that reason in accordance with s 58B(3) of the Act.
2. The decision clearly gave Qantas comfort in the sense that in proceeding accordingly it would not be exposed to any action instigated by the compensating authority involving a prosecution and penalty for a breach of s 58B(1), or the imposition of a supplementary payment of premium under s 72C of the Act. Conversely, the decision was no doubt of much concern to the worker, as the approval of the altered return to work objective heralded an important change of direction in the rehabilitation process which was perceived by the worker to have adverse implications for his employment future.
3. However, the significance of the decision, of itself, does not make it reviewable under s 89A. I find it was not so in that it was an administrative decision immune from challenge under Part 6A of the Act. The scheme of the Act does not contemplate a review under s 89A of decisions made or actions taken by a compensating authority or an employer as to the application of s 58B(1). Any such review of the actions of Qantas in this regard is contemplated as occurring only in the context of a prosecution seeking the imposition of a penalty for a breach of that provision, or on a review under s 72M of the Act with respect to the imposition of a supplementary premium payment under s 72C, or an investigation by the WorkCover Ombudsman ("the Ombudsman") under s 99D of Part 6D.
4. Under s 99D the Ombudsman may receive and investigate complaints about administrative acts under the Act, including a failure to comply with s 58B or s 58C. The Ombudsman may give directions to the compensating authority or the relevant employer in connection with the operation or requirements of either section. Section 99D(3) provides that the Ombudsman may not investigate an act where the relevant matter is, or is capable of being, the subject of proceedings under Part 5, 6, 6A, 6B or 6C of the Act, or where it is the subject of any legal proceedings. The dispute proceedings with respect to the decision of 14 March 2013 are brought under Part 6A of the Act. The clear inference is that the Act does not intend that the decision of 14 March 2013 fall within a category of decision amenable to review under s 89A of the Act.
5. Accordingly, the views expressed by the Full Tribunal as to the breadth of the concept of a reviewable decision, whether under subss (1)(a) or (1)(b) of s 89A, are not to the point. For example, with respect to s 89A(1)(a), the decision of Hammer,[56] to the effect that a decision on a claim for compensation may go beyond the acceptance, rejection of, or quantification of a particular claim; and the decision in WorkCover Corporation/CGU Workers Compensation (SA) Pty Ltd v Davidson.[57] Likewise, the decision in Dunstan,[58] to the effect that the scope of s 89A(1)(b) calls for a liberal interpretation. Those approaches apply with respect to decisions which fall within the dispute resolution scheme under Part 6A. The letter of 14 March 2013 was not such a decision.
6. However, as I endeavour to demonstrate below, this does not mean that the consequences of the decision of 14 March 2013, as manifested in subsequent decisions affecting the worker's rehabilitation entitlements, are not reviewable under s 28B.

Whether the s 28B proceedings or the remedy sought are beyond the jurisdiction or power of the Tribunal

"(1) A worker or employer may apply for review of -

(a) a decision to establish or not to establish a rehabilitation and return to work plan; or

(b) a provision of a rehabilitation and return to work plan,

on the ground that the decision or the provision is unreasonable.

(2) On review of a rehabilitation and return to work plan (or in consequent appellate proceedings), the plan may be modified to the extent necessary to ensure that the plan does not impose unreasonable obligations on the worker or the employer.

(3) Proceedings on a review under this section (or consequent appellate proceedings) do not suspend obligations imposed by a rehabilitation and return to work plan."

1. Qantas accepted that the worker's assertion that the RRTW Plan was unreasonable, on the ground that it did not contain the objective of a return to different employment with the pre-injury employer, enlivened the jurisdiction of the Tribunal under s 28B, consistently with the approach taken in Holloway.[59]
2. However, the compensating authority contended that the remedy sought was beyond the s 28B jurisdiction, or alternatively, that the worker's application did not seek a review of a "provision" of the RRTW Plan which imposed an unreasonable obligation upon him.
3. One of the jurisdictional issues concerned whether, given that RRTW Plan 1 had expired on 30 July 2013, and that the worker had accepted that, if I found in his favour on the unreasonableness issue, there would be no utility in seeking any modification of the expired Plan, it might be said that the worker simply sought a declaration, being a remedy beyond the statutory power of the Tribunal. That is, whether the ground of review of unreasonableness was, in effect, a cause of action inextricably bound up with the ability to consider whether to grant the discretionary remedy of modification under s 28B(2) of the Act.
4. I am satisfied however that the Tribunal has jurisdiction to conduct a review in these circumstances. Section 28B contemplates two categories of review - a review of a decision to establish or not establish a Plan, and a review of a provision of an established Plan, in each case on the ground that the decision or provision, as the case may be, was unreasonable. Section 28B does not specifically provide for any remedy, discretionary or otherwise, upon a finding of unreasonableness on the first category of review. The discretionary remedy of modification is available with respect to the second category of review, but would appear to lack utility where the disputed Plan has expired.
5. The circumstances of an individual case, in either category, may involve complex rehabilitation issues requiring ongoing assessment, which in turn may mean that it is not feasible or appropriate for the Tribunal to do more than simply find unreasonableness. It may not be in a position to prescribe what is reasonable, but only what is unreasonable. Either way a finding of unreasonableness will have a practical outcome with consequences for both parties given the compensating authority's obligation to establish ongoing RRTW Plans under s 28A(2) of the Act in accordance with any view expressed by the Tribunal as to unreasonableness. A decision on the question of unreasonableness will be a determination of the dispute, even if the Tribunal cannot, or chooses not to, modify the Plan under s 28B(2).
6. That the Tribunal should be considered to have jurisdiction in these circumstances is consistent with the approach taken by the majority in Holloway[60] and with the observations in MultiServ.[61]
7. In the alternative, the compensating authority contended that the application for review must fail as it did not identify any provision of the Plan which was allegedly unreasonable, let alone any provision which imposed an unreasonable obligation upon the worker. There were two aspects to these submissions.
8. First, it was submitted that a s 28B review could only be initiated by the worker if he was under an obligation imposed by a provision of the Plan, in circumstances where that provision was subjectively considered by the worker to be unreasonable. Here it was contended that the worker had not read or otherwise considered any of the provisions of the Plan, and thus could not have formed a subjective view as to whether any of its provisions were unreasonable.
9. Second, the compensating authority submitted that, upon a proper reading of subss (1) and (2) of 28B, the worker had to demonstrate that the provision in question imposed an objectively unreasonable obligation upon him which was capable of modification. It was contended that the worker's complaint about the change to a new return to work objective was not a complaint about a provision of the Plan, and that even if it was, it was not a provision which imposed any obligation upon him. Further, that the worker had not demonstrated that any of the more specific provisions of the Plan imposed unreasonable obligations upon him, and that many of those provisions merely imposed contingent obligations which would not crystallise until the rehabilitation provider had identified suitable employment for the worker with a new employer.[62]
10. This submission adopts too narrow a view of the scope of the s 28B review process. The jurisdiction is enlivened upon a challenge to a provision of a Plan on the ground that it is unreasonable. This may encompass an allegation of unreasonableness due to the omission of a particular provision: Jones v Bridgestone Australia Ltd.[63] The fact of the existence of a discretionary remedy to modify an existing Plan to ensure that it does not impose unreasonable obligations on a worker or an employer cannot serve to restrict the circumstances in which unreasonableness may be established under s 28B(1).
11. Moreover, the scope of the word "provision" in the context of s 28B(1) should be taken to encompass a clause or a term of the Plan, or a statement in the Plan which provides for something. The "Return to Work Objective" of the Plan, being "different employer - different employment", is an over arching provision of the Plan which sets the framework for the subsequent strategies and specific obligations. The significance of the changed objective, compared with previous Plans which had the objective of a return to work to suitable employment with Qantas, was that the Plan no longer contained any provision which imposed an obligation on Qantas to continue to take steps to identify or provide suitable employment within the worker's medical restrictions.[64]
12. As I have already found, when the worker met with Mr Gallina on 2 May 2013 he well knew the objective of the proposed Plan had changed to relieve Qantas of any continuing obligation to provide him with suitable employment, with the result that his employment with Qantas would end. He was very unhappy, upset and disappointed. It was not necessary for him to have read the detailed provisions recording the new proposals, or to have formed a subjective view as to whether they were unreasonable, before he could invoke the s 28B review process. In any event I have found he probably did eventually read the Plan in full before his notice of dispute was lodged.
13. I find that the jurisdiction under s 28B is enlivened by the worker's complaint about the unreasonableness of the provision containing the revised return to work objective. Whether the subsequent provisions imposing, or not imposing, actual or contingent obligations on the worker and the employer are reasonable or not, will primarily depend upon whether the worker establishes his case with respect of the changed return to work objective. In these circumstances there is no need to analyse, one by one, whether each of the provisions flowing from the changed objective imposes reasonable or unreasonable obligations. I came to a similar view in the context of my rejection of a strike out application in Durber v Arnott's Biscuits Ltd[65] and adopt the approach taken in that decision.

Further issues concerning s 58B and the s 28B remedy

1. Qantas raised additional objections. It contended that, to the extent that the s 28B application encompassed a review of the circumstances in which Qantas had determined to cease providing employment for the worker, it involved an impermissible review of the compensating authority's decision of 14 March 2013 under s 58B of the Act to approve that change in direction. It relied upon the authority of Holloway in this regard. [66]
2. I do not agree. The challenge is to the subsequent decision of 6 May 2013 to establish RRTW Plan 1 with a new return to work objective, not to the decision of 14 March 2013. Further, as already explained, the decision by the compensating authority of 14 March 2013 was not a decision under s 58B of the Act. Whilst the obligation of an employer under s 58B(1) of the Act has general relevance in the consideration of the challenge to the RRTW Plan, the Tribunal will be required to consider all relevant circumstances leading up to the decision of 6 May 2013 and the terms of the RRTW Plan itself.
3. I do not consider that the reasoning of the Full Tribunal in Holloway is contrary to this approach. The specific issue addressed in that matter related to the obligation on the employer under s 58B(3) to pay an appropriate wage or salary to a worker undertaking alternative duties. Nothing in what was said by the Full Tribunal in Holloway, or at least by the majority, suggested that in determining unreasonableness of a changed objective of a disputed RRTW Plan under s 28B of the Act, the Tribunal could not have regard to the existence of the s 58B obligation in the context of the rehabilitation scheme of the Act or the circumstances in which the compensating authority decided to approve a change in the rehabilitation objective.
4. As explained above, a review of the action of Qantas in terms of any compliance with s 58B(1) of the Act can occur only in the context of a prosecution seeking the imposition of a penalty for a breach of that provision, a review under s 72M of the imposition of a supplementary premium payment, or an investigation under s 99D by the Ombudsman. The Ombudsman is not prevented by s 99D(3)(a)(i) of the Act from conducting any such investigation, as the s 28B proceedings do not arise under any Parts of the Act specified in that provision. Further, the subject of the s 28B proceedings, in the sense intended by s 99D(3)(a)(ii), is the decision of 6 May 2013, not the decision of 14 March 2013 or alleged non-compliance with s 58B. Alternatively, even if it is, it means only that the Ombudsman is unable to investigate this particular decision, but is not otherwise inhibited in performing his functions under the Act.
5. Another Qantas submission was that, in order to provide the relief sought by the worker, the Tribunal would need to modify the Plan to oblige Qantas to resume the provision of duties to the worker within his certified capacity, and that this was beyond power as it would involve a "radical transformation" rather than a "modification". Reference was made to a number of decisions, including Jones[67] and the minority decision of Kirby J in Qantas Airways Ltd v Aravco Ltd.[68]
6. I have already concluded that the jurisdiction of the Tribunal is not dependent upon an ability to provide the remedy of modification in any particular case, and that the Tribunal is empowered to determine a review by finding a provision of a Plan is unreasonable without more. In any event, the reference in the various authorities to modification not being a process which permits "radical transformation" needs to be read in context. The legislation under consideration in Aravco was the Trade Practices Act 1974 ("the TPA"), described as beneficial legislation designed to protect consumers which should not be given "a narrow construction".[69] The provisions of the TPA in question rendered void any term of a contract that purported to or had the effect of excluding, restricting or modifying certain consumer protections provided by the TPA.
7. In this context Kirby J observed that "to modify":

"...means no more than to restrain, to make less rigorous or severe, to alter without radical transformation or simply to qualify something so affected. The essence of modification is that its subject remains in being but is altered in some way falling short of extinguishment. All that is needed is that there be partial changes in the thing modified. Such changes may enlarge or limit it. The word has a very large denotation."

1. Given the remedial nature of the Act, it would not be appropriate to adopt a narrow construction of the power of the Tribunal to "modify" a provision of a Plan. However, in practical terms, it may be difficult for a Tribunal, on finding that a changed objective of a Plan is unreasonable, to proceed to effect appropriate modifications on the material before it. It may be more appropriate to leave it to the compensating authority to establish another Plan having regard to the findings of the Tribunal.
2. The worker also raised some issues in relation to the role of s 58B, not from a jurisdictional perspective, but with respect to the impact of the provision on the consideration of unreasonableness under s 28B and the onus of proof in that regard.
3. Whilst the worker's primary contention was that, on the evidence, even without regard to s 58B(1) of the Act, he had discharged the onus of establishing that the provisions of the disputed RRTW Plan were unreasonable, he submitted, in the alternative, that if I had any concern in this regard, I should take into account that s 58B(2)(a) provided for a reversal of the onus of proof with respect to compliance with s 58B(1). Thus he contended that the onus was on Qantas to demonstrate that it was not reasonably practicable for it to provide suitable employment in accordance with s 58B(1). The worker submitted that the onus applied in "any legal proceedings", including those now before the Tribunal, and relied on the observations in this regard of King CJ in Longyear v Workers Rehabilitation and Compensation Corporation.[70]
4. I do not accept this proposition. In my view the phrase "any legal proceedings" in s 58B(2)(a) must be interpreted by reference to the context in which that phrase appears, and as relating to proceedings more directly concerned with a pre-injury employer's alleged non-compliance with s 58B(1). This will include proceedings involving an employer defending a prosecution for breach of its obligations under that provision. It will also include proceedings in the nature of those involved in Longyear, where King CJ took the view that, although the reference to "legal proceedings" was inappropriate in the context of the challenge to the imposition of the levy under the former s 67, the onus on the employer had to be retained in such proceedings in order to maintain the true effect of the s 58B obligation.
5. In this case, the legal proceedings arise under Part 3 of the Act. They focus on the decision by the compensating authority of 6 May 2013 to establish the Plan in the terms now in dispute, and do not constitute a review, of itself, of whether the action of Qantas involved a breach of s 58B(1). The question is whether the worker can establish that a provision of the RRTW Plan established by the compensating authority was unreasonable. The onus is on him to do so. The remedy which will flow, if the worker is successful in the s 28B proceedings, will relate only to the obligation of the compensating authority with respect to the terms of RRTW Plans it is required to establish. What occurs thereafter in relation to any resumption by Qantas of its previous s 58B obligations will be a matter between the compensating authority and Qantas.
6. This leads me to a second issue raised by the worker with respect to s 58B, being that a breach by a pre-injury employer of the penal provisions of s 58B(1) will give rise to a private right of action on the part of the worker for damages for breach of statutory duty. The contention was that, if this be so, the existence of such a right added to the weight of the obligation to provide suitable employment under s 58B(1) and placed a duty on an employer to do so which in turn should be reflected in the consideration of unreasonableness on the s 28B review.[71]
7. I doubt that a breach of s 58B(1) by an employer will sound in a private right of action on the part of a worker, particularly having regard to the view of the Victorian Court of Appeal that such a right did not arise under the comparable worker compensation legislation of that State: Gardiner v State of Victoria.[72] It is a question I need not determine for the purposes of this case. As previously observed, I take the view that in determining the question of unreasonableness under s 28B, I am entitled to have regard to the fact that the scheme of the Act, by means of the obligation arising under s 58B(1), gives primacy to the specific rehabilitation objective of returning a worker to suitable employment with the pre-injury employer and that this is a part of the overall statutory framework which bears upon whether a provision being a changed return to work objective is unreasonable for the purposes of s 28B.

1. From the time the worker became partially incapacitated for work after the first injury in 1997, and up to about mid-2007, the duties he was given mostly or entirely involved tasks falling within his ASO classification. From that time, in the context that he was not fit for the full range of duties as an ASO, or as a CSA, or in either an engineering or administrative/clerical position, it was not in dispute that the worker was provided with a variety of duties which collectively did not fit within any particular classifications or position specified in the industrial instruments governing the employment of Qantas employees.
2. The worker agreed that although he had difficulty in performing some of the activities involved, management and supervisors were cooperative, and as a result he was able to work around his injuries. I find that although the worker felt he was underutilised, and sought additional driving duties which were denied to him on account of his medical restrictions, he was at all times ready, willing and able to carry out the duties assigned to him, and did so without any complaint as to their suitability.
3. I find that the tasks carried out by the worker during the period from 2007 to 2012, although a collection of disparate tasks, were nevertheless productive in the sense that they had to be performed by someone for the Qantas business throughout the period they were assigned to the worker. They were not "meaningless tasks" as suggested by Ms Bellgrove in her evidence. Once the duties were withdrawn from the worker, apart from any which may since have been outsourced, they continued to be performed by ASO or CSA employees or administrative staff. However, they were not critical tasks, in the sense that if the worker was absent on a particular day, they could be left for the duration, or alternatively, were capable of being absorbed, temporarily at least, in the workload of other ASO or CSA employees.
4. I find that the alternative duties assigned to the worker over the five year period to mid-2012 did not fully occupy his working day of seven hours 46 minutes. Mr Ellis estimated the worker took approximately three to four hours per day to complete his work, and believed the worker spent a significant part of each shift watching television in the lunch room. However he accepted that this estimate was not based upon more than a passing observation of the worker's activities, but rather on a Precision Time and Work Schedule which set out estimates of the time an employee should take to do each of the various tasks assigned to the worker, and that these estimates did not necessarily equate to the time a worker would actually take to carry out a particular task.[73]
5. Mr Lecouteur was employed as a shift co-ordinator from 2009, and had responsibility for the direct supervision of the worker. He estimated that the worker was productive for only two or three hours per shift, and stated that for the rest of the time he would stand outside smoking or would lie on the couch, and that he was found by him on occasions to be asleep.
6. The worker said that Mr Ellis would have no idea of his day to day movements, but agreed that Mr Lecouteur was more familiar with how he occupied his day. Nevertheless he rejected Mr Lecouteur's estimate and maintained that his duties took up about six hours a day plus the lunch break. He said that his time during the day was not rigidly scheduled, and included a number of "down periods" whilst awaiting aircraft arrivals and departures. He agreed he was in and out of the lunchroom on a number of occasions during the day but denied sleeping there as asserted by Mr Lecouteur.
7. I do not find the estimates of actual work hours of any of the above to be reliable. Mr Ellis had no direct knowledge of the worker's daily movements. Mr Lecouteur did have a greater awareness, but he had to attend to many other matters during which time the worker would not have been under his direct supervision given the solitary nature of some of his activities. Mr Lecouteur's evidence left me with the feeling that it was somewhat coloured by an underlying resentment towards the worker on account of his perceived lack of productivity.
8. On the other hand I do not accept that the worker was productive for as much as six hours per day as he asserted. I find he was not fully utilised by the duties assigned to him, and that the time he took to perform his various tasks was probably more than would have been the case if he had a full workload. Having regard to the time estimates given by the worker in his oral evidence with respect to his various tasks,[74] I find that in all probability his work should not have occupied more than 60% of the seven hours and 46 minutes for which he was paid. As it happens, this finding equates with the estimate conveyed by "Qantas management" to Ms Bakjac when she compiled the suitable duties assessment in March 2010.[75]
9. However the tasks might be categorised, and however long they should have taken to perform each day, the fact is that during most of the period from mid-2007 to mid-2012, the worker was considered by both Qantas and the compensating authority to be engaged in "suitable employment" notwithstanding that he was considered to be occupied only 60% of the time. This is clear from the suitable employment assessment of Ms Bakjac of 17 March 2010, the letter to the worker from Qantas dated 23 September 2011,[76] and the current work capacity determination of the compensating authority dated 12 October 2011.[77]
10. I accept that this was not the view of Ms Bellgrove, who soon after her commencement in late 2009 formed the view that the duties the worker was doing were not an appropriate a "job" or "role" in an ongoing sense,[78] and who pressed management to take action to change from what she described as the provision of duties on an ad hoc basis to a process of identifying what suitable employment was available.[79] Her attempts in this regard appeared to fall on deaf ears until Mr Ellis commenced as Ramp Services manager in May 2012. I find that up until this time the worker was allowed to continue with his duties unaware of the concerns as to the appropriateness of his role.
11. I find that the change in approach to the employment offered by Qantas to the worker stemmed from a combination of factors emanating from the remedial actions taken in light of the 2008 Safework SA audit to improve work health and safety and rehabilitation practices and processes. The revision of work practices in turn led to a re-evaluation of the role of the worker and other long term injured workers, and to management taking a different view as to what comprised suitable employment for this category of worker.
12. In summary, the view collectively held by Ms Bellgrove, Mr Ellis and Mr Zubrinich was that any suitable employment had to involve placement in a position which was suitable physically and mentally to the worker, which fell within one of the classifications of the applicable award or industrial agreement, and which was a productive position which offered opportunities for advancement and enhanced job satisfaction, and was required to be replaced if it became vacant. The one qualification was that Mr Zubrinich accepted that a position fitting these requirements could still be suitable employment if practicable modifications were required to accommodate a worker's disabilities.
13. I find that it was from this time that the worker became angry, frustrated and resentful about the rehabilitation process, and manifested his feelings through his rejection of the suggestion that he consider retraining for a role as a CSA, and through various comments to Mr Ellis expressing his disappointment in the change in direction and his intention to resist any attempt to remove him from the role he had been carrying out or from his employment by Qantas.
14. At the time Mr Zubrinich conducted his suitable employment assessment, and at all times since, I find that the worker was restricted as certified by his general practitioner Dr Tsirgiotis,[80] in that he was unfit for work involving lifting of weights over 10kg, and for repetitive and above shoulder work. Although the certificates noted the worker to be suitable for driving duties, I accept that it was reasonable for Qantas not to consider allocating driving duties within the ASO classification given that from time to time they required lifting weights well in excess of the stipulated minimum,[81] and that the provision of occasional assistance in the context of a one person driving job was not practicable or consistent with its rotation policy. I find that the employer was entitled to take the view that, quite apart from concerns as to his aptitude, the worker was not physically suitable for the role of a CSA.
15. Given the physical restrictions faced by the worker, and the framework adopted for the identification of suitable employment as described above, including the "litmus test" applied by Mr Zubrinich, I find the die was cast once the Locher report indicated that the worker was unsuitable for the CSA role. That is evident from the views formed by Mr Zubrinich at the time he left his employment with the compensating authority on about 14 December 2012. The subsequent RRTW Plans with the objective of returning to suitable employment with Qantas merely maintained the status quo pending implementation of the conclusion of Mr Zubrinich by means of the establishment of RRTW Plan 1 on 6 May 2013.
16. The worker said there were a number of tasks described in the job dictionary and in other documentation which he was capable of carrying out in addition to the tasks he did during the period from 2007 to 2012. It is not necessary to identify the tasks described for present purposes except to note that they included a further range of activities that might be described as a collection of duties drawn from more than the ASO classification. Some activities involved driving duties which required lifting or pushing activity beyond the worker's accepted physical capacity but in relation to which he said modifications could be made. Some of the activities suggested by the worker were said to be possibly suitable subject to training and assessment.[82] In particular he conceded that he would need training with respect to using computers because he was "hopeless".[83]
17. The response of Mr Ellis was that the suggested activities were either not within the worker's physical capacity, or were not vocationally suitable to him, or were supernumerary tasks in the nature of those he previously performing for a limited number of hours each shift.
18. I find that there was probably a range of miscellaneous tasks which the worker may have been capable of performing in addition to those he performed over the period from 2007 to 2012. Whatever the ultimate position as to the suitability of such tasks, the fact is that the approach taken by the compensating authority upon receipt of the Locher report led to it not requiring that Qantas investigate further the practicability of expanding the collection of duties previously done by the worker, so as to more fully and productively to occupy his time. Further, as conceded by Mr Ellis, I find that no consideration was given to whether such employment could be offered on less than a full time basis.[84]

Whether the worker has established unreasonableness

1. The question before the Tribunal is whether the worker has proven on the balance of probabilities that the establishment of RRTW Plan 1 with a provision containing a new return to work objective was unreasonable; or, put in another way, that it was unreasonable of the compensating authority to establish a RRTW Plan which no longer provided for the specific objective of returning the worker to suitable employment with Qantas, whether by providing such employment for the worker or continuing to explore the availability within its operations of such employment.
2. What is reasonable is a question of fact in a given set of circumstances. The unreasonableness must be considered in the context of the objects of the Act promoting rehabilitation and return to work: Holloway;[85] Alexander v WorkCover/Commercial Union Workers Compensation Pty Ltd.[86] It will involve an inquiry into the factual circumstances at the time the disputed decision was made on 6 May 2013, and into the relevant events leading up to the making of that decision.
3. The submissions of the worker on unreasonableness distilled to the contention that Qantas is now and was always able to provide suitable employment to the worker, and that it was unreasonable to change the objective of the Plan to employment with a different employer for the reasons given by Qantas, particularly in light of the long history of the provision of what was regarded as suitable employment up to mid-2012.
4. This raises the question as to whether the focus of the compensating authority on the rehabilitation obligations of Qantas became unduly narrowed by its approach to what constituted suitable employment, including the application of the "litmus test" referred to by Mr Zubrinich.
5. The phrase "suitable employment" is defined in s 3 of the Act as follows:

"suitable employment, in relation to a worker, means employment in work for which the worker is currently suited, whether or not the work is available, having regard to the following:

(a) the nature of the worker's incapacity and previous employment;

(b) the worker's age, education, skills and work experience;

(d) medical information relating to the worker that is reasonably available, including in any medical certificate or report;

(e) if any rehabilitation programs are being provided to or for the worker;

(f) the worker's rehabilitation and return to work plan, if any".

1. In addition, regard is to be had to s 3(12), which provides:

"A reference in this Act to suitable employment provided or offered by a worker's employer includes -

(i) the number of hours each day or week that the worker performs work; or

is suitably increased in stages (in accordance with a rehabilitation and return to work plan or otherwise); and

(b) if the employer does not provide employment involving the performance of work duties - suitable training or vocational reeducation provided -

(i) by the employer at the workplace or elsewhere; or

(ii) by any other person or body under arrangements approved by the employer,

but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends the suitable training or vocational reeducation."

1. These provisions were introduced by the Workers Rehabilitation and Compensation (Scheme Review) Act 2008 and replaced and expanded the previous definition of suitable employment in the former s 35(2)(a) which had been in place since 1995.[87] That provision required that factors to be considered in assessing what employment was suitable for a partially incapacitated worker comprised the nature and extent of the worker's disability; the worker's age, level of education and skills; the worker's experience in employment; and the worker's ability to adapt to new employment. This was in relatively similar terms to the predecessor provision.[88]
2. The only decision to which the parties were able to refer me which commented on the meaning of suitable employment in the context of s 58B was that of Longyear, which was decided just before the 1995 amendments. That decision involved a judicial review of a decision of the WorkCover Corporation Board to uphold the imposition of a supplementary levy imposed under the former s 67 of the Act. The Full Supreme Court found there to be no error of law vitiating the Board's conclusion that the employer did not offer suitable employment in accordance with the Act.
3. King CJ made a number of relevant observations. The question was whether the employer should have offered clerical employment to a man who was no longer fit for his pre-injury duties as a fitter and turner. It was observed that the core obligation of s 58B was to provide "employment", with that obligation being enlarged and defined by the adjective "suitable". King CJ agreed with the contention that provision of causal employment would not discharge the employer's obligation with respect to a disabled permanent employee, but observed that if it was not practicable to provide permanent employment, but was reasonably practicable to provide casual employment, the obligation under s 58B would not be fulfilled unless casual employment was provided.[89] This is indicative of a broad approach to the scope of suitable employment which provides some support for the worker's proposition that, even if the collection of duties done by the worker up to mid-2012 could not occupy him on a full-time basis, they should have been offered part-time at least.
4. Another observation of King CJ was that whether the qualification of reasonable practicability relieved an employer of the obligation to create a position providing suitable employment depended upon the circumstances. He rejected the employer's submission that it could not be regarded as reasonably practicable to provide suitable employment if no suitable position was available in the sense of a suitable vacancy. Whilst the creation of a position might not be practicable for a small employer, King CJ observed that there may be little or no difficulty in finding appropriate tasks in a larger organisation. Again, this observation supports the worker's contention that the compensating authority through Mr Zubrinich inappropriately narrowed the focus of his inquiry as to suitable employment.
5. Some decisions of the Tribunal since Longyear tend to point the same way, although these decisions have usually been in the context of disputed s 36 determinations involving a failure by a worker to perform duties alleged to be suitable employment.
6. In Alexander[90] the Full Tribunal considered the decision of a single member dealing with a challenge to the reasonableness of a RRTW Plan in a dispute over a s 36 discontinuance notice. In comments made in obiter, the Full Tribunal observed that, assuming a Plan proposed duties which a worker was physically and mentally capable of performing, the Plan would not be unreasonable simply because the disabled worker formed the attitude that the proposal was insulting, or that the work was not stimulating or in accord with her career aspirations. In so concluding the Tribunal had regard to the fact that the work might have lead to further options and have provided an opportunity for the worker to re-establish herself in the workforce.
7. In Scutcheon v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd,[91] a submission was put on behalf of a worker that suitable employment had to be conducive to the worker's long term rehabilitation and his return to fulfilling and productive work. This submission was not accepted in an unqualified manner, as the learned Deputy President observed that s 35(2) of the Act was not directed towards work the worker was expected to undertake, but towards identifying work commensurate with the worker's residual earning capacity as a basis for reducing the weekly payments that he or she was receiving.
8. Further relevant observations were made in Kostiw v WorkCover/Royal and Sun Alliance Workers Compensation (SA) Ltd,[92] where it was said that for employment to be suitable, it does not follow that the worker necessarily must have a physical capacity for performing all aspects of the work. Thus the fact that a worker might have a lifting restriction that limited the worker's capacity to perform the full range of duties that might be expected for a particular position did not necessarily lead to a finding that employment in that position was not suitable. It was a "question of fact and degree".[93]
9. The Tribunal in Kostiw also held that a relevant consideration was what had previously occurred between the employer and the employee, namely whether work had been offered in the full knowledge of the worker's disability, and in the knowledge that, with some modifications to his working duties, the worker had performed the work provided for a prolonged period of time. It was acknowledged that accommodations of this nature might cause some irritation to a worker's supervisors, and that it was not unknown for employees to be annoyed by the belief that other employees received favoured status. It was observed:

"[P]art of the challenge for management in any working enterprise is to select the range of duties best suited to a particular individual and to deal with any conflict in the workplace that might arise as a result of that allocation".[94]

1. These authorities indicate that, assuming a worker is physically and mentally able to carry out proposed suitable duties under appropriate workplace conditions, such duties will not be considered unsuitable simply because the employee is not satisfied with the nature of them, or because the employer might be put to some inconvenience in arranging for them or dealing with adverse reactions which might arise at the workplace as a consequence.
2. In light of the above, a number of observations can be made. The Safework SA audit in 2008 led to the introduction of a long overdue upgrade of the rehabilitation and work safety processes and practices of Qantas which appropriately placed a greater emphasis, among other things, on finding suitable employment for injured employees which was not only productive but which also was capable of offering an ongoing career path and opportunity for advancement. In my view the general approach in this regard was well intentioned and commendable, and was in accord with the general rehabilitation objectives of the Act as outlined above.
3. The changes to various work safety practices also had an immediately beneficial impact in terms of a reduction in the incidence of injury and an increase in return to work rates. Some of the changes, such as the rotation strategy, reduced the opportunity to allocate specific lighter duty tasks solely to injured workers, and no doubt impacted adversely on ongoing suitable employment options for such workers. There was nothing unreasonable about that outcome in the context of an employer attempting to balance competing work safety and rehabilitation obligations.
4. However, in implementing these changes, I find Qantas adopted an inappropriately confined view as to what might constitute "suitable employment" by proceeding on the basis that suitable employment options should be confined to productive "normal" positions in the terms described. Whilst it may have been appropriate to inquire into the availability of such positions as a first option, it was not reasonable to confine the inquiry as to the availability of suitable employment to this extent. I find the compensating authority acted unreasonably in endorsing that view and allowing its expression in the form of the new return to work objective in RRTW Plan 1.
5. The approach taken by the compensating authority narrowed the scope of the inquiry as to suitable employment to an extent not contemplated by the Act or endorsed by any decisions which address the scope of suitable employment. It was contrary to the thrust of Longyear, which was decided at a time when the concept of suitable employment was not as broad as the current definition as expanded by s 3(12) of the Act, which provides that suitable employment may include staged hours and duties or suitable training as well as employment.
6. The parameters for the identification of suitable employment did not have adequate regard to the history of the performance of alternative duties by the worker from 2001, or to the fact that, from mid2007, Qantas had considered it practicable to provide him with a collection of duties drawn from different classifications. Nor did it have adequate regard to the fact that the worker asserted he had no difficulty with the notion of continuing with a collection of duties in the nature of those that he was doing over the period from 2007 to 2012. That is, the lack of an apparent career path, whilst quite possibly a demotivating factor in general terms, was not in this case leading to any reported adverse reaction on the part of the worker.
7. Moreover, given the history between the worker and the employer, the new approach involved an approbation and reprobation with respect to the rehabilitation goals to be applied to the worker. On the one hand, it appeared to suit Qantas, for the period of at least five years up to mid-2012, to assign a collection of duties to the worker described in determinations and assessments of the compensating authority as "suitable employment", and to do so despite the urgings to the contrary of Ms Bellgrove from late 2009, and notwithstanding that it was of the view, at least by 2010, that such duties only occupied 60% of the worker's time. On the other hand, from mid-2012, it suited Qantas to change its position. Thus Ms Bellgrove stated in her email advice to Ms Webb of 22 February 2013 that the worker's tasks were never considered to be suitable employment, which was simply historically wrong. In his letter of 14 May 2013, Mr Ellis asserted that the modified duties provided since June 2001 were an interim measure only for a reasonable period of time to assist the worker to return to his pre-injury duties.[95] If that was so, Qantas should have re-assessed the situation long before it did rather than providing what were described as suitable duties or suitable employment for the next eleven years. There appears to have been some reconstruction of past attitudes to accord with the new approach.
8. That is not to say that Qantas was not at liberty to review and change its suitable employment practices. However, it unduly confined its inquiry as to suitable employment to positions which fitted within its revised business model. Further, it acted unreasonably when changing direction in this manner by leaving the worker in its wake, without adequate regard to the effect of having provided supposedly suitable employment to him for eleven years without the focus on possible alternative career paths and associated retraining which the new approach now espouses. Had that approach been adopted earlier, the worker may have been more open than he now is to other alternatives, and his rehabilitation towards alternative career paths may have advanced more than it has.
9. Mr Zubrinich said he would have enforced the creation of a position if he felt there was suitable employment which Qantas could afford to provide.[96] He did not consider doing this because he acquiesced in the new process adopted by Qantas. Instead he should have required that Qantas engage in further assessment of suitable employment options by having regard to whether it was reasonably practicable to create a collection of suitable duties not confined to the "alternative positions" or "normal work" nominated.[97] In this regard Qantas had the benefit of the recently created job dictionary, and the fact that since the redundancies in late 2012 there were less long term injured workers seeking suitable employment, and possibly more available options.
10. In stating the above I do not suggest that further investigations would have resulted in identification of suitable duties which it would have been reasonably practicable for Qantas to provide, but rather that it was unreasonable of the compensating authority to not require that Qantas undergo that exercise.
11. In conclusion, I find that the provision in RRTW Plan 1 that the return to work objective be "different employment - different employer" was, in the circumstances, unreasonable. In particular, because it did not oblige Qantas to continue to assess the practicability of providing suitable employment by creating a collection of suitable modified duties. The fact that such duties might need to be drawn from a variety of "normal positions" or might not be able to be offered on a full-time basis does not, of itself, mean that their availability should not have been assessed. Given the scheme of the Act, the imposition of such an obligation on Qantas is not unreasonable.

1. The question may be asked as to what flows from this finding. I make the following obiter observations in the event that they might assist in circumstances where there may be ongoing dealings between the three parties involved in these proceedings.
2. Subject to any appeal, my decision requires that the compensating authority discharge its continuing obligation under s 28A to establish RRTW Plans with respect to the worker by drafting a Plan which is not unreasonable in the manner identified.
3. If that is done, it will impose obligations on Qantas, at least to further investigate the provision of suitable employment. Depending on how that develops, the issue may arise as to whether Qantas should re-employ the worker. The worker in this case did not seek any order in this respect if I found in his favour, and properly so, for my further consideration of that issue, albeit without hearing any detailed submissions, leads me to doubt that the proposition is even arguable.[98] Whether reemployment should ultimately occur is a matter to be addressed, if needs be, between the compensating authority and Qantas.
4. In this context a question arises as to whether the obligation of Qantas under s 58B(1) which applied during the worker's employment continues to apply notwithstanding the termination of his employment. The worker submitted that it did and that I should not follow the approach of the Full Federal Court in Arrowcrest Group Pty Ltd v Gill,[99] where it was found that s 58B(1) only operates within the framework of a subsisting employment relationship.
5. Whilst the worker put that submission in support of his case of unreasonableness, and I have not had to consider it in finding in his favour, I observe, with the greatest of respect to the Full Federal Court, that there are arguable points in favour of the worker's submission. The question of the correctness of Gill has arisen on a number of occasions in decisions of the WorkCover Levy Review Panel without being decided, in particular Visy Board Pty Ltd v WorkCover Corporation of South Australia.[100] I will not set out the points there raised, except to note the reference to the decision of the Full Tribunal in WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd v Steggall,[101] which appeared to accept that the s 58B obligation continued beyond termination of employment, at least in circumstances of dismissal for serious and wilful misconduct.
6. Certain sections of the Act suggest a continuance of the obligation. For example, s 58B(2) provides that subss (1) is not to apply in defined circumstances, including where the worker either has left employment before commencement of the incapacity or has terminated employment after commencement of the incapacity. The absence of a reference in subss (2) to the circumstance of termination at the initiative of the employer suggests that this, of itself, may not be a circumstance which relieves an employer of the s 58B(1) obligation. Further, s 72C(2)(f) provides that a matter which allows for the imposition of a supplementary premium may include "the employer's practices as to retention, employment and re-employment",[102] which in my view is suggestive of an obligation on the part of an employer to consider re-employment.
7. Whilst the question is to be determined by reference to the legislation rather than the Corporation's policies and guidelines, it is of interest to note that the compensating authority's decision of 14 March 2013 foreshadowed the possibility of revisiting the obligation of Qantas to provide suitable employment in accordance with s 58B(1) of the Act if suitable employment later became available. This is consistent with WorkCover Corporation's Claims Operational Guidelines, one of which provides that "Section 58B is not time limited and may apply in the lifecycle of a claim and after a worker's employment is lawfully terminated. The claims agent is expected to take appropriate action to enforce the employer's obligations".[103]

1. The notice of dispute dated 5 April 2013 with respect to the "decision" of the compensating authority dated 14 March 2013 is dismissed on the basis that the decision is not reviewable under s 89A of the Act.
2. The worker has established that the provision containing the return to work objective in the RRTW Plan established on 6 May 2013 is unreasonable and I so find.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[3] The industrial instrument was the Transport Workers Union (Qantas Airways Limited) Enterprise Agreement.

[4] Qantas letters 14 May 2013 (WCT 1/279) and 11 July 2013 (WCT 3/890).

[5] Worker's statement para 30 (WCT 1/111).

[6] Over the initial twelve months only.

[10]Attachment 1 to Ms Bellgrove's statement Exhibit E3.

[11] Attachment 1 to statement of Ms Bellgrove - Exhibit E3.

[13] Except for the temporary duties involving Air New Zealand flights.

[16] Determination of 6 December 2011 (WCT 1/50).

[17] The implication being, as expressly stated by Mr Ellis, that there were demarcation issues - tr 121.

[20] Attachment to statement of Ms Bellgrove.

[30] RRTW Plan 4 established 18 December 2012 for period 1 January 2013 to 18 March 2013 - WCT 3/684; RRTW Plan 5 established 14 February 2013 for period from 19 March to 19 May 2013 - WCT 3/798.

[33] Attachment 3 to statement of Ms Bellgrove - Exhibit E3.

[35] Worker's statement WCT 1/123 para 60.

[42] Letters of 15 and 20 May 2013 - WCT 1/284 and 286.

[45] [1998] SAWCT 48 at 19.

[46] For the purposes of this case, this means the compensating authority.

[47] Reg 22 of the Workers Rehabilitation and Compensation Regulations 2010 ("the Regulations").

[48] [1998] SAWCT 48 at 19 - 20.

[49] [1998] SAWCT 48 at 19-20.

[50] Section 2(1)(a)(i) and (ii) of the Act.

[51] Kostiw v WorkCover/Royal and Sun Alliance Workers Compensation (SA) Ltd [2001] SAWCT 115; MultiServ Australasia Pty Ltd v Stephens and Employers Mutual Limited [2009] SAWCT 30.

[53] The rehabilitation provisions appear in Part 3, whereas s 58B appears in Part 4 Division 3 Subdivision 9 as a group of three sections imposing various obligations upon employers.

[54] [2009] SAWCT 8 at [31].

[55] [2013] SAWCT 14.

[56] [2009] SAWCT 8 at [30].

[57] [2000] SAWCT 32 at [37].

[60] [2013] SAWCT 14 at [53], [67] and [68].

[61] [2009] SAWCT 30 at [156]- [160].

[62] As particularized in the worker's second statement of issues dated 15 August 2013.

[63] [1997] SAWCT 15 at p 4 (internet RTF print)

[64] See, for example, the obligations imposed on Qantas by RRTW Plan 5 commencing 19 March 2013 - WCT 3/796.

[65] [2012] SAWCT 9 at [37] - [38]

[66] Employer's written submission para 60a.

[67] [1997] SAWCT 15.

[68] [1996] HCA 12 at [18] per Kirby J.

[70] [1995] SASC 4951.

[72] [1999] VSCA 100 per Phillips JA at [20] - [39].

[81] In the region of over 15kg (pushback vehicle) or 20 to 30kg (container lifter) - Mr Ellis at tr 103.

[82] Worker's statement paras 75 - 90 and attachment DJL 16 (WCT 1/127 - 130).

[85] [2013] SAWCT 14 at [61].

[86] [1998] SAWCT 95 at pp 6-7.

[87] Sections 5 and 15 of the Scheme Review Act.

[88] That is, the provision preceding that inserted by Act 35 of 1995.

[89] [1995] SASC 4951 at [10].

[90] [1998] SAWCT 95.

[91] [2001] SAWCT 115 at [80] - [81].

[92] [2003] SAWCT 101.

[95] Letter Mr Ellis to the worker dated 14 May 2103 - WCT 1/281.

[97] Letters from Mr Ellis to the worker dated 14 May 2013 referring to "normal work"; and 11 July 2013 on the failure of the worker to express interest in or to apply for any "alternative positions" - WCT 1/279 and WCT 3/891.

[98]Contrary to the view I tentatively expressed in Cerin v ACI Operations Pty Ltd and WorkCover Corporation of South Australia [2013] SAWCT 23 at [54].

[99] [1993] FCA 541 at [20].

[100] [2011] SAWLRP 1 at [98] - [119].

[101] [2002] SAWCT 49 at [25] and [26].

[103] Attachment 1 to Mr Zubrinich's statement Exhibit E1 at p 40.