HRNG ADELAIDE, 20 January 1995 #DATE 7:2:1995 #ADD 13:3:1995

Counsel for plaintiff: Ms R A Layton QC with Mr B M Paraskeva

Counsel for defendant: Mr S Walsh QC with Mr M K Ricketts

JUDGE1 KING CJ In this action for judicial review the plaintiff seeks an order in the nature of certiori quashing a decision of the Board of the defendant corporation by which it upheld the imposition by the defendant of a supplementary levy under the Workers Rehabilitation and Compensation Act.

A worker developed in the course of his employment by the plaintiff an irritant contact dermatitis which disabled him from performing his work as a fitter and turner. The plaintiff over a period of time made various arrangements to enable the worker to be employed in tasks which might alleviate the problem. Towards the latter part of 1992 it became clear that the only duties for which the worker was fit were clerical duties. The plaintiff stated that no such duties were available and dismissed the worker on 5th March 1993.

The scheme of the Workers Rehabilitation and Compensation Act is that the defendant, subject to exceptions in the case of certain exempt employees, is liable for all payments of compensation to which workers are entitled under the Act. That liability is financed by a fund to which employees are obliged to contribute by means of a levy determined by the defendant in accordance with section 66. Section 67(1), so far as is material, is as follows:- "67(1) The Corporation may, in relation to a particular employer, having regard to all or any of the following matters - (a) ... (b) ... (c) ... (d) The employer's practices as to the retention, employment or re-employment of disabled workers (and, in particular, any failure on the employer's part to provide, in accordance with this Act, employment to a worker who has suffered a compensable disability in the employer's employment); (e) ... grant to the employer a remission of the levy that would be otherwise payable or impose on the employer a supplementary levy (as the case may require)."

Following the termination of the employment of the worker, there were consultations and correspondence between the plaintiff and the defendant as to the possibility of providing work to the worker. The plaintiff maintained its position that no suitable work was available. On 10th August 1993 the defendant exercised its power under section 67 to impose a supplementary levy. The plaintiff sought a review of this decision by the Board of Management of the defendant pursuant to section 72 which is as follows:- "(1) Where an employer considers that a decision of the Corporation as to - (a) the fixing or assessment of a levy; or (b) the imposition of penalty interest or a fine; or (c) the imposition or variation of a condition of a kind that may lead to the imposition of a supplementary levy, is unreasonable, the Board must, on application by the employer, review the decision. (2) An application for review does not suspend a liability to pay a levy, penalty interest or a fine. (3) The review will be conducted, in accordance with procedures determined by the Board, by the Board itself, or by a committee or person to whom the Board has delegated its powers of review under

this section, and the Board has an absolute discretion as to whether it will permit the employer or a representative of the employer to be heard orally on the review. (4) On review, the Board may - (a) alter a levy or an assessment; (b) quash or reduce penalty interest or a fine; (c) direct the repayment of amounts overpaid; (d) quash or vary a condition imposed by the Corporation. (5) An application under this section for review of a decision of the Corporation - (a) must, if the decision relates to a class of employers, be made within four months after notice of the decision was given; or (b) must, if the decision relates to an individual employer, be made within two months after the employer was given notice of the decision. unless the Board (or its delegate) allows an extension of time for making the application."

On 23rd March 1994 the delegate of the Board delivered the Board's decision upholding the defendant's decision. In this action the plaintiff contends that the decision of the Board is vitiated by errors of law appearing on the face of the record. The Board gave reasons in writing for its decision. The material before the Board was entirely documentary in character. I do not consider that it is profitable to engage in a general or technical consideration of what constitutes the record based upon authorities decided in other places and at other times in a different legal and procedural context. All the above material forms part of the record of the Board and should be considered for the purposes of deciding whether there have been errors of law.

Ms Layton QC for the plaintiff contended that section 67(1) applies only during the currency of the employment and that the obligation of the employer to provide suitable work does not survive the lawful termination of the employment under the applicable federal award. In the present case the employment was terminated in accordance with the Metal Trades Award being the award applicable to the worker's employment. It is unnecessary, in my opinion, to consider the relationship between the award and section 67 of the Act. The conduct relied upon by the Board as the conduct empowering it to impose the supplementary levy is the failure to provide clerical work which conduct occurred before the termination of the employment.

It was contended by Ms Layton that the Board misapplied the onus of proof provision in section 58B of the Act. That is the section to which section 67(1)(d) relates when it imposes the obligation on an employer to provide employment "in accordance with this Act". Section 58B, so far as material, is as follows:- "(1) If a worker who has been incapacitated for work in consequence of a compensable disability 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 disability 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)..." A penalty of $5000 is prescribed.

The Delegate of the Board based the Board's decision upon the failure of the plaintiff to discharge the onus of establishing that it was not reasonably practicable to provide suitable employment. Ms Layton pointed out that section 58B(2) places that onus on the employer "in any legal proceedings". She contended that as the review by the Board was not a legal proceeding the onus provision had no application.

The event prescribed by section 67 upon which the Board relied for the defendant's power to impose the supplementary levy was the "failure on the employer's part to provide, in accordance with this Act, employment" to a disabled worker. The words "in accordance with this Act" transpose, in effect, the provisions of section 58B into section 67. The employer's obligation under section 58B is to provide suitable employment unless the employer can establish that that is not reasonably practicable. The reference to legal proceedings in the onus provision is explained by the fact that section 58B is a penal provision and legal proceedings were therefore in the contemplation of the drafter. When transposed into the environment of section 67 the reference to legal proceedings becomes inappropriate. I think, however, that in order to retain the true effect of the section 58B obligation the onus on the employer must be retained. I consider that the Board was correct in its view that unless the plaintiff established that it was not reasonably practicable to provide suitable employment, the plaintiff had not provided suitable employment in accordance with the Act within the meaning of section 67.

One error of law alleged by the plaintiff is the characterization of casual employment as suitable employment within the meaning of section 58B. The core obligation imposed by section 58B is to provide employment. That obligation is enlarged and defined by the adjective "suitable". I agree that casual employment would not be regarded as suitable for a disabled permanent employee so as to discharge the employer's obligation. If, however, it were not reasonably practicable to provide permanent employment but were reasonably practicable to provide casual employment, I consider that the obligation under the section would not be fulfilled unless the casual employment were provided. To hold otherwise would be to apply the adjective "suitable" as restricting rather than enlarging the disabled worker's entitlement. Be that as it may, it is clear that the Delegate of the Board did not base his decision on any such consideration. He noted the defendant's submission that it considered "unreasonable the employer's stance to not even consider, at the very minimum, a casual office position for their employee", but did not indicate acceptance of the submission. He used as an example of adaptations by which the plaintiff might overcome its management problems in consequence of providing office employment to the worker, "the relocation of casual staff hours or their duties". No error of law is indicated by the Delegate's references to casual employment.

The Delegate's reasoning is set out in the following passage from his reasons:- "Having regard to the employer's argument that no clerical position is available to the worker and that, and only that, holds the

employer back in its role in collaborating in the worker's rehabilitation and return to work, I am not able to accept that as incontrovertible in the circumstances of this case. I note that a position had been available until the employer had considered it necessary to retrench several of its permanent clerical staff and '...the current staffing levels satisfy the employer's requirements'. I also observe that there was a vacancy for a purchasing officer for which position, it is alleged but not refuted, the employer was not prepared to train the worker. In my view, the employers (sic) assertion that a clerical position is not available to the worker is tantamount to arguing that the employer is not prepared to make a financial sacrifice to provide employment to Mr Wilden, as required by law. If a position were made available to the worker, for example in the calibration inspection office or in the drafting section, areas where the worker had apparently previously shown application, or in any other position in the office after a period of suitable training and instruction, then it could not long be denied, I should suggest,, that no position is available. The act stipulates that the employer must provide full-time or part-time employment to the injured worker - unless not reasonably practical with the onus on the employer to prove that impracticability by virtue of Section 58b(2) (sic). I am unable to accept, as a valid argument for impracticability, financial grounds implied, in my opinion, by a company with over 20 office staff and with annual aggregate remuneration in excess of $7.5 million. That view is reinforced by the submission that the 'employer is permitted to have regard to the general needs and requirements of the business'. In not denying that those needs and requirements exist, I hold that, in the circumstances of this case,

they must be considered subordinate to the needs and requirements of the worker by the protection offered to him under Section 58b(1) (sic) of the Act. I accept that the intention of the Act is not to, figuratively, throw an injured worker with a compensable disability onto the corporate scrap heap, but rather to rehabilitate the worker, in whole or in part, according to his post-injury capabilities. I would have difficulty in accepting the notion that any organisation of the size and enterprise of the employer is so immovably constrained by financial considerations or views the 'general needs and requirements of the business' in such a way that leaves little room for some flexibility and adaptation to the general cut and thrust problems of general business management, for example the re-allocation of casual staff hours or their duties. Whilst I acknowledge the employer's past efforts to place the worker in suitable employment, and whilst I recognise the present 'commercial exigencies' of the employer's business, I do not accept that as sufficient justification for absolving the employer of its responsibilities under Section 58b(1) (sic). In my view, it is the duty of the employer to accommodate and intelligently assist in the rehabilitation of the worker which, in my opinion, is more than the resolution of a business problem or a matter of rising to the 'challenge', as has been suggested by the Corporation. It is a statutory obligation with significant social connotations. The WorkCover Board recognises that the purpose of Section 58b (sic) is to provide protection to injured workers from dismissal by their employer so as to ensure the best possible prospects of the worker rejoining the workforce. The Board has decided to support the enforcement of Section 58b (sic) by utilising the sanctions of Section 67(1) of the Act. After due and careful consideration of the submissions of both parties I find that the matters contributing to the failure of the employer to provide suitable alternative duties to the worker in accordance with Section 58b(1) (sic) of the Act are within the company's reasonable control and that it has not satisfied the onus that lies upon it to establish that it was not reasonably practicable to provide employment. Furthermore, I conclude that the WorkCover Corporation has not acted unreasonably in imposing a supplementary levy pursuant to Section 67(1) of the Act."

The plaintiff has criticised various expressions used by the Delegate such as "incontrovertible", "unreasonable", "not inconsiderable" and "financial sacrifice", but whatever view might be held as to the aptness of all or any of those expressions, I am unable to discern in their use any error of law.

Ms Layton has submitted that the basic thrust of the Delegate's reasoning indicates a misconstruction of section 58B. She has contended that it cannot be regarded as reasonably practicable to provide suitable employment if no suitable position is available in the sense of the evidence of a suitable vacancy. The section, she has contended, does not require an employer to create an unnecessary position or to dismiss an employee to create a vacancy. She has contended that it is a misapplication of the section to deduce reasonable practicability from the size of the employer's business operation and of its clerical staff.

The primary obligation is to provide suitable employment. If unqualified, that obligation would undoubtedly require the creation of a position if no suitable vacancy existed. It seems to me that whether the qualification of reasonable practicability relieves the employer of the obligation to create a position must depend upon the circumstances. The concept of reasonable practicability cannot be confined as proposed by the plaintiff. In a small business with a small staff and limited financial resources, the creation of a position may not be reasonably practicable. In a larger organization, there may be little or no difficulty in finding appropriate tasks for the disabled employee. The effect on casual hours or the employment of others are factors to be considered having regard to the circumstances of the case. Whether a particular course is reasonably practicable is a question of fact and degree to be determined in a matter arising under section 67 by the Board or its delegate. No doubt a judgment of the Board might be so beyond the limits of reason as to indicate that it had misunderstood the section and the concept of reasonably practicability embodied in it, but, subject to the limits of reason, the judgment as to whether it was reasonably practicable to provide suitable employment is to be made, on review, by the Board.

It is not for this Court to pass judgment on the soundness of the reasoning of the Delegate of the Board on matters of fact and degree. There is nothing in the section, to my mind, which precludes the Board or its delegate from holding that, in the circumstances, it is reasonable practicable for the plaintiff to provide suitable employment by creating a position, or from drawing such inferences as it sees fit as to practicability from the nature and size of the plaintiff's business operation, the size of its office staff and other such general considerations.

I do not find any error of law vitiating the Board's conclusion that the employer did not provide suitable employment in accordance with the Act.

In my opinion none of the errors of law alleged in the plaintiff's affidavit have been made out.

There must be judgment for the defendant dismissing the action.