STATUTES – BY-LAWS AND REGULATIONS – CONSTRUCTION –
PARTICULAR WORDS – where section 46 of Coal Mining Safety
and Health
Regulation 2001 (Qld) provides for a procedure for health assessments - where
Source
Original judgment source is linked above.
Catchwords
STATUTES – BY-LAWS AND REGULATIONS – CONSTRUCTION –PARTICULAR WORDS – where section 46 of Coal Mining Safetyand HealthRegulation 2001 (Qld) provides for a procedure for health assessments - wheresection 48(1) of the Coal Mining Safetyand Health Regulation 2001 (Qld) appliesto a health assessment report about a coal mine worker showing the worker isunable to carryout the worker’s tasks at the mine without creating anunacceptable level of risk – where worker is considered morbidlyobeseaccording to Body Mass Index calculation – whether respondents decision todeclare worker unfit for duties followed requirementsof regulationsActs Interpretation Act 1954 (Qld)Coal Mining Safety and Health Act 1999 (Qld)Coal Mining Safety and Health Regulations 2001 (Qld)Australian Broadcasting Tribunal v Bond [1990] HCA 33(1990) 170 CLR 321Avon Downs Pty Ltd v Federal Commission of Taxation [1949] HCA 26
(1949) 78 CLR
353
Crime & Misconduct Commission v Assistant Commissioner J P Swindells
& Ors [2009] QSC 409
Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242
Johnson v Anglo Coal (Callide Management) Pty Ltd [2005] QSC
255
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21
(1999)
197 CLR 611
Minister for Immigration and Multicultural Affairs v Rajamanikkam
[2002] HCA 32
(2002) 210 CLR 222
Waterford v The Commonwealth [1987] HCA 25
(1987) 163 CLR 54
Re Minister for Immigration and Multicultural Affairs ex parte
Applicant [2003] HCA 30
(2003) 198 ALR 59
Concord Data Solutions Pty Ltd v Director-General of Education
[1994] 1 Qd R 343
Judgment (159 paragraphs)
[1]
**[1] McMeekin J: This is an application for a statutory order of review and for review of a decision of the respondent, Dr P, in the completion, and provision to the applicant's employer, of a "Health Assessment Report" dated 16 March 2011 pursuant to the provisions of the Coal Mining Safety and Health Regulations 2001 ("the Regulations") made under the Coal Mining Safety and Health Act 1999 ("the Act").
[2]
[2] Whilst I need to explain the facts and arguments in more detail, in short, the applicant complains that he has potentially been deprived of his occupation, one that he has followed for 30 years, because of his bodily habitus, and without proof or evidence that he has any present condition that makes him unfit to perform his duties safely.
[3]
[3] The applicant is employed as a heavy machinery operator at a coal mine. It is not a "low risk task" as defined in Schedule 9 of the Regulations. He is a "coal mine worker" as defined in the Regulations. Because of those two matters the applicant's employer is entitled have him medically assessed pursuant to the Regulations and can act on that assessment to dismiss him from his employment.
[4]
[4] The Regulations require that an employer appoint a "nominated medical advisor" to "carry out, supervise and report on health assessments" carried out under the Regulations. The respondent is such a nominated medical advisor ("NMA").
[5]
[5] The respondent's report to the employer was based on an examination of the applicant performed by another medical practitioner, the examining medical officer ("EMO"). That is contemplated by ss 46(6) of the Regulations. The EMO completed section 3 of the form provided following his examination of the applicant. The respondent completed Section 4 of the Form. The Health Assessment Report is required to be and was in an approved form.[1] The respondent ticked a box which read "Is not fit to undertake the proposed/current position because of the following restriction(s)" and then added: "Unfit to operate due to a significant and foreseeable risk of sudden incapacity". He indicated that the condition was "permanent" and did not require review.
[6]
[6] The respondent was required by ss 47(1)(b) and (2) of the Regulations to explain his decision to the applicant. He did so in these terms: "I have made you unfit for operating as I believe that there is a significant risk to you of a cardiac event due to your obesity". He added: "In order for me to pass your medical I would need you to undergo further assessment to ensure that your cardiac risk is acceptable, and also a functional assessment to ensure there is risk to you from performing the inherent duties of an operator."
[7]
[7] At the time of the assessment the respondent had not met the applicant. His assessment, he says, was based on the information provided by the EMO. The EMO had included in his report, as he was required to do in following the approved form, the height, weight and consequent Body Mass Index (BMI)[2] of the applicant as well as the circumference of his neck.
[8]
[8] The respondent contends that the BMI of the applicant, taken with his neck circumference, indicates that he is morbidly obese and by reason of that condition is at a significant risk of a sudden cardiac event. An operator of large machinery suffering a sudden cardiac event could pose serious potential risks to himself and fellow workers. Hence he assessed the applicant as unfit to undertake his current position.
[9]
[9] It is common ground that the health assessment performed by the respondent was required to be carried out in accordance with the regime laid down in Chapter 2 Part 6 Division 2 of the Regulations. Summarising the applicant's arguments as best I can his complaints are:**
[10]
(a) The health assessment carried out by the respondent was not performed in accordance with the terms of s 46(3) of the Regulations and hence was not lawfully carried out because:
[11]
(i) The respondent improperly brought into account matters that he was not permitted to consider, namely, matters outside the contents of the EMO's report; and
[12]
(ii) The respondent failed to take into account a relevant consideration, namely, that the examination performed by the EMO did not show that the applicant suffered from any "restriction or condition which made him unfit and not able to undertake his position as an operator";
[13]
(b) There was no evidence on which the decision could be based;
[14]
(c) The explanation provided was not in accordance with s 47 of the regulations as it is inconsistent with the health assessment report;
[15]
(d) The respondent improperly required that a further assessment be performed and improperly proposed to take into account the results of such further testing or assessment;
[16]
(e) The respondent's decision is not authorised by s 47 or s 48 of the regulations in that it does not comply with s 46 and does not comply with s 48 in that it does not "show" that the applicant "is unable to carry out [his] tasks at the mine without creating an unacceptable risk";
[17]
(f) The respondent failed to have regard to the requirements of s 46(3) in that he failed to identify sufficiently or at all the restrictions he would impose on the applicant.
[18]
**[10] The applicant seeks various declarations and an order setting aside the decision of the respondent.
[19]
[11] The respondent accepts that the Court has jurisdiction under the Judicial Review Act 1991 ("JRA") to entertain the application. The making of the Health Assessment Report is accepted to be a "decision of an administrative character made under an enactment"[3] and the applicant is a person aggrieved.[4]Sections 30 and 42 of the JRA are engaged.
[20]
[12] The respondent argues that, in effect, the applicant seeks a merits review not a judicial review, and that the application is, to that extent, misconceived and should be dismissed. It is well accepted that this jurisdiction does not permit a merits review: Concord Data Solutions Pty Ltd v Director-General of Education [1994] 1 Qd R 343 at 346-347. As Kirby J said in Re Minister for Immigration and Multicultural Affairs ex parte Applicant S20/2002[5]:
[21]
"Regardless of the supervisory jurisdiction invoked in a particular case, judicial review is said to be limited to reviewing the legality of administrative action. Such review, ordinarily, does not enter upon a consideration of the factual merits of the individual decision. The grounds of judicial review ought not be used as a basis for a complete re-evaluation of the findings of fact, a reconsideration of the merits of the case or a relitigation of the arguments that have been ventilated, and that failed, before the person designated as the repository of the decision-making power." (citations omitted)
[22]
[13] The crucial issues turn on the proper construction of sections 46, 47 and 48 of the Regulations. Section 46 provides:**
[23]
(1) The employer must ensure a health assessment is carried out for each person who is to be employed, or is employed, by the employer as a coal mine worker for a task other than a low risk task.
(2) An assessment must be carried out -
[24]
(a) before the person is employed as a coal mine worker; and
[25]
(b) if the nominated medical adviser considers the assessment is necessary after being given notice under section 49(3) - periodically, as decided by the adviser; and
[26]
(c) otherwise, periodically, as decided by the nominated medical adviser, but at least once every 5 years.
[27]
(3) An assessment must be carried out -
(a) in accordance with the instructions, and covering the matters, in the approved form; and
(b) by, or under the supervision of, the nominated medical adviser.
(4) An assessment may include matters not covered in the approved form if, having regard to a risk assessment carried out for a task for which the person is to be employed, or is employed, the nominated medical adviser considers the person needs to be assessed in relation to the additional matters to achieve an acceptable level of risk.
(5) Despite subsection (3)(a), a person may undergo an assessment (a subsequent assessment) in accordance with some of the instructions only, and covering some of the matters only, in the approved form if -
(a) the person has previously undergone a health assessment (a previous assessment); and
(b) the subsequent assessment relates to a matter identified at a previous assessment; and
(c) the assessment is carried out to ensure the person is able to carry out the person's tasks at the mine without creating an unacceptable level of risk having regard to the matter mentioned in paragraph (b).
(6) A medical examination of the person carried out by a doctor other than the nominated medical adviser is taken to be a health assessment carried out by the nominated medical adviser under subsection (3) if -
(a) the medical examination is carried out under the instructions in the approved form and the nominated medical adviser gives the employer a health assessment report about the examination; or
(b) the medical examination is for other purposes and the nominated medical adviser -
[28]
(i) is satisfied the examination is equivalent to a health assessment; and
[29]
(ii) gives the employer a health assessment report in the approved form about the examination.
[30]
**[14] Section 47, so far as it is relevant, provides:
[31]
"47 Employer's responsibility for health assessment**
[32]
(a) arrange for the health assessment or medical examination mentioned in section 46; and
[33]
(i) a health assessment report to the employer; and
[34]
(ii) a copy and explanation of the report to the person to whom it relates; and
[35]
(c) ensure, before an explanation of the report from the nominated medical adviser is given to the employer, the person to whom the health assessment report relates agrees to the giving of the explanation and is present.
[36]
(2) The nominated medical adviser must comply with a request under subsection (1)(b).
[37]
[15] Section 48, so far as it is relevant, provides:
[38]
(1) This section applies if the employer is given a health assessment report (the original health assessment report) about a coal mine worker showing the worker is unable to carry out the worker's tasks at the mine without creating an unacceptable level of risk.
(2) Before taking action to terminate the worker's employment or demote the worker, the employer must give -
[39]
(a) the worker a reasonable opportunity to undergo a further health assessment from another nominated medical adviser or relevant medical specialist chosen by the worker; and
[40]
(b) the nominated medical adviser or medical specialist details of the worker's tasks.
[41]
**The Inconsistent Explanation and the "Requirement" for Further Testing
[42]
[16] Certain of the applicant's arguments can be immediately dismissed. They turn on the construction of sections 47 and 48 and apply to the passage of the letter of explanation sent pursuant to s 47(2) which reads:
[43]
"In order for me to pass your medical I would need you to undergo further assessment to ensure that your cardiac risk is acceptable, and also a functional assessment to ensure there is risk to you from performing the inherent duties of an operator."
[44]
[17] As I followed the argument there are two grounds of complaint. The first is that the respondent's recording in the health assessment report that the condition that he had identified was a permanent one was both inconsistent with his explanation and wrong. The respondent accepts both contentions. He has so advised the applicant and the employer. The alterations both favour the applicant. The respondent has explained that he considered the condition permanent because the applicant could not "lose sufficient weight to alter his obesity in the foreseeable future."[6]
[45]
[18] The argument depends for its validity on the assumption that if the letter of explanation is inconsistent with the health assessment report then that renders the report unlawful. I do not see how that logically follows. Either the report was prepared in accordance with the legislation governing the respondent's exercise of his powers or it was not. The respondent's actions subsequent to the report's preparation cannot influence the issue of whether he acted lawfully at the time of its preparation.
[46]
[19] The scheme of the legislation is to protect, so far as possible, the privacy of the worker whilst ensuring, as far as possible, the safety of coal mine workers. So much is clear from the statutory safeguards that limit the employer's knowledge of the examination and assessment carried out under the Regulations to the one page health assessment report, which contains no relevant information about the worker's examination or medical status, and the provisions of sections 50 to 52 of the Regulations that require the NMA to keep confidential the worker's medical records.
[47]
[20] Plainly enough, the explanation requirement is included in the legislation to enable the worker to be provided with additional information that the NMA cannot reveal in the health assessment report, a copy of which goes to the employer, without breaching confidentiality.
[48]
[21] Given that background, whilst it might be said that the legislation no doubt contemplated that the explanation would be consistent with the report it does not seem to me to be in any way relevant to the lawfulness of the respondent's actions if there is inconsistency. That there was a factual error in the decision does not render it unlawful or an improper exercise of power. As Brennan J (as his Honour then was) stated in Waterford v The Commonwealth: "There is no error of law simply in making a wrong finding of fact."[7]
[49]
[22] Secondly, it is contended that the reference in the explanatory letter to "further assessment" was effectively a requirement that the applicant undergo further testing and assessment and that the respondent had no authority to require such testing or assessment. The lack of authority is plain enough but the premise is clearly wrong. The suggestion by the respondent, and it was plainly no more than that, was that if the applicant wished to have the respondent's decision reversed he would need to provide the evidence mentioned. This, incidentally, also disposes of the argument that the respondent proposed to bring into account an irrelevant matter, namely the findings from a second assessment. The short answer is that he did not.
[50]
[23] Fundamentally, the words complained of do not appear to me to have anything to do with the giving of an explanation. They are in the nature of advice on how to obtain a more favourable result from this NMA. But the inclusion of unnecessary advice cannot render invalid a decision validly taken. The explanation that the legislation mandated be provided to the worker was proffered in the earlier words that I have quoted: "I have made you unfit for operating as I believe that there is a significant risk to you of a cardiac event due to your obesity".
[51]
[24] The words under consideration here, arguably, should not have been included if it be assumed that the letter of explanation is not permitted to go beyond an explanation of the decision. I am not sure that assumption is warranted. But the words do not carry the character that the applicant argued for and do not have the effect of impacting on the validity or otherwise of what had gone before.
[52]
Taking Into Account Irrelevant Matters and Ignoring Relevant Matters
[53]
[25] The complaint is that in order to arrive at the decision that he did the respondent has brought into account his knowledge of the statistical studies relating to BMI, which he says show that the applicant is at foreseeable risk of a "sudden incapacity" namely a "cardiac event", and conversely has not brought into account the findings of the EMO which are to the effect that the applicant has no present indicia of such a condition.
[54]
[26] It is well accepted that if the decision maker takes into consideration some extraneous reason or excludes from consideration some factor which should affect his determination then the decision is liable to review: Avon Downs Pty Ltd v Federal Commission of Taxation[8].
[55]
[27] The only direct guidance given to the NMA is that contained in ss 46(3) and (6) of the Regulations. Subsection 46(3)(a) provides that an assessment must be carried out "in accordance with the instructions, and covering the matters, in the approved form." So far as is relevant the instructions in the approved form provide that the NMA "must review Sections 1, 2 and 3" of the form that comes to him from the EMO, must assess whether the Health Assessment provides "adequate information to make a report on the fitness for duty of the coal mine worker", must complete Section 4 of the Health Assessment Report, and must provide an explanation of "Section 4 Health Assessment Report" to the worker.
[56]
[28] The applicant submits that where the examination is carried out by a doctor other than the NMA then the Regulations require that NMA is restricted to the findings of the examining doctor. That is clearly right. The instruction on the form that the NMA be satisfied that the Health Assessment provides "adequate information to make a report on the fitness for duty of the coal mine worker" carries that implication. As well ss 46(6)(a) provides that where the examination is carried out by a doctor other than the NMA, in order to be a health assessment under subsection 46(3) the NMA is required to give the employer "a health assessment report about the examination", that is the examination conducted by the EMO.
[57]
[29] But to assert that the respondent was restricted to the clinical findings of the EMO as set out in Section 3 of the report does not require that the NMA not apply his own knowledge and expertise to those findings. That the respondent has brought into account his knowledge of the medical literature concerning the significance of the BMI calculation is accepted - the respondent said as much in his oral evidence and in his affidavit:
[58]
"In this case, having regard only to the health assessment recorded in the current medical completed by [the EMO], I observed that [the applicant] was morbidly obese and I considered this alone resulted in him having a significant risk of a cardiovascular event. This view/my assessment is supported in literature. My professional view as a medical practitioner experienced in occupational medicine, particularly in the mining industry, and being familiar with the position of "operator" was that he is not fit for duty without creating an unacceptable level of risk".[9]
[59]
[30] It is submitted that in bringing into account such knowledge the respondent has impermissibly gone outside the parameters of the information on the form provided by the EMO and has thereby acted contrary to the statute.
[60]
[32] First, the Regulations require that the employer "appoint in writing, a doctor (the nominated medical advisor) to carry out, supervise and report on, health assessments under this division".[10] Plainly the Regulations intend that a person with medical qualifications hold the position. The point of that requirement is to ensure that the person carrying out the assessment can bring to the assessment the knowledge that falls within their expertise.
[61]
[33] Secondly, the prescribed form expressly requires that the EMO provide the worker's BMI. There would be no point to that requirement if the NMA was not permitted to use and apply accepted medical knowledge as to its significance, as well as to all the other matters recorded.
[62]
[34] Thirdly, if the submission were right then there would be no point to having a NMA selected by the employer separate from the EMO selected by the worker. It is the NMA's expertise that the employer is entitled to have regard to in assessing the health risks to its workers, not the EMO's opinions and expertise.
[63]
[35] The submission that the respondent ignored relevant matters is supported by little more than assertion. It might well be different if the respondent had opined that the applicant had a presently existing cardiac condition. He would need to show what clinical finding supported that conclusion as, on their face, the findings do not. But that is not the opinion expressed. The respondent swears that he took into account the clinical findings set out in section 3 of the form. Effectively his opinion is that despite the lack of any present indicia of a cardiac condition the information set out in the health assessment performed by the EMO demonstrates to him that there is a "foreseeable and significant risk of sudden incapacity" and his explanation shows that the incapacity that he foresees is a "cardiac event".
[64]
[36] That the respondent and the EMO have a different opinion as to the significance of the BMI is not to the point. Provided there is probative evidence to support the decision then I have no jurisdiction to interfere - the respondent may be factually wrong in his conclusion, I do not say that he is, but assuming he is, there is nothing that I can do to correct him.
[65]
[38] The applicant argues that there was no probative evidence to support the decision and that being so I have jurisdiction, and ought, to set aside the decision.
[66]
[39] I accept, with respect, the conclusion of Applegarth J, following his extensive review of authorities in Crime & Misconduct Commission v Assistant Commissioner J P Swindells & Ors, that "judicial review of findings of fact is subject to demanding requirements if a challenge is to succeed. It is not sufficient that the decision is unreasonable in the sense of being against the overwhelming weight of the evidence. It must be perverse or capricious, for instance, because there was no probative evidence to support it."[11]
[67]
[40] A complete absence of evidence would fall within s 20(2)(h) of the JRA. Something short of that but displaying perversity might be characterised as a an error of law within s 20(2)(f) of the JRA[12] or as an abuse of power within s 20(2)(e) and s 23(i) of the JRA[13] and so enliven the jurisdiction of the Court.
[68]
[41] Here there is evidence to support the decision - the respondent asserts that the decision he has made is in conformity with his expert knowledge and that studies exist that demonstrate precisely his view that the applicant's BMI indicates that there is a "foreseeable and significant risk of sudden incapacity" in the form of a cardiac event.
[69]
[42] The applicant submitted that the respondent had failed to place before the Court the studies that he relied on and that being so there was no probative evidence. That submission overlooks the affidavit and oral evidence that the respondent gave as to the existence of the studies and the lack of any challenge to his assertions. If the applicant wished to agitate this ground then he should have cross examined the respondent and led evidence to demonstrate that his assertions were wrong - perhaps to show that the studies do not demonstrate what the respondent asserts or that the methodology employed in the studies was such that no reasonable medical practitioner could accept them as reliable. There was no such cross examination or evidence.
[70]
[43] The EMO has provided an affidavit in which he states that following his examination of the applicant he "formed the view that there were no reasons as to why [the applicant] was not fit for duty in relation to his current position."[14] That a contrary opinion exists does not show that the respondent has acted perversely. As Gleeson CJ and McHugh J stated in Eshetu:**
[71]
"Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as 'illogical' or 'unreasonable', or even 'so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence."[15]
[72]
**[44] The EMO does not go so far as to assert that the respondent's views are unreasonable or perverse, merely that he came to a different conclusion. That falls far short of providing any ground for setting aside the decision.
[73]
[45] There is no substance in this attack on the respondent's decision.
[46] At para 19 of the applicant's Points of Claim it is said that the decision was not authorised by s 47 or s 48 and is contrary to law because:
[76]
"(b) ...the respondent has not given the employer a health assessment report ...that shows a coal mine worker is unable to carry out the worker's tasks at the mine without creating an unacceptable level of risk";
[77]
(c) the health assessment report does not show that the applicant is unable to carry out the worker's tasks at the mine without creating an unacceptable level of risk."
[78]
[47] The submission appears to proceed from the premise that s 47 and s 48 each impose some separate condition that must first be met to ensure the lawfulness of the decision. That is not the function of these sections.
[79]
[48] Section 47 imposes on an employer certain obligations. The only obligation imposed on the NMA is to comply with a request from an employer of the type mentioned in subsection (1)(b). The respondent has complied with that obligation.
[80]
[49] Section 48 deals with a situation that post dates the provision of a health assessment report. The provisions in s 48 provide for a condition that must be satisfied before the employer considers whether to take the action of terminating the worker's employment where that action is based on the health assessment report, namely the offer of a review of that report. Reference is made in the applicant's outline of argument to the decision of Mullins J in Johnson v Anglo Coal (Callide Management) Pty Ltd [2005] QSC 255 and to her conclusion that:**
[81]
"It is consistent with the process provided for by s 48 of the Regulation that it must be apparent from the health assessment report itself whether the health assessment report shows that the worker is unable to carry out the worker's tasks at the mine without creating an unacceptable level of risk that cannot be determined by reference to any other materials."[16]
[82]
**[50] That conclusion was not a finding that s 48 mandated what the health assessment report must show. The issue in Johnson was quite different to the issue here. There the question was whether s 48 had been "triggered". If triggered then the employer had an obligation to give the worker a "reasonable opportunity to undergo a further health assessment" before taking action on the health assessment report. Her Honour's finding was that the site senior executive at the mine ("SSE")[17] was not permitted to go outside the terms of the health assessment report in determining whether s 48 had been triggered.
[83]
[51] The only circumstance in which the health assessment report must "show" something is if the employer, or the worker, wishes to avail themselves of s 48. That is not a matter agitated before me. The worker does not apply to be allowed to obtain a check review. As I followed the submission he does not wish to do so. The employer is not a party to these proceedings. Section 48 is not relevant, directly at least, to my considerations. I say not "directly" because s 48 can, like other provisions in the Act and Regulations inform the obligations imposed on the NMA, a matter to which I will turn in a moment.
[84]
[52] Finally on this point, I observe that I consider the submission to be factually wrong. In my view the form does "show" that the applicant is unfit for work. By selecting the box that he did the form "shows" the necessary qualification to trigger s 48. What s 48(1) requires is that the form "show" that in the opinion of the NMA there is an unacceptable risk unless the restrictions identified are observed. As I mention below it would appear that the form has been changed to meet the issue raised in Johnson. The argument that the word "show" carries a connotation of a need to demonstrate why the opinion is held seems to me to be misconceived. The restriction on the revealing of the worker's medical condition without his permission might well make it impossible for the NMA to reveal the reasoning behind the restrictions identified.
[85]
[53] The applicant complains that the respondent has failed to identify in any meaningful way what "restriction" the applicant has. It was submitted that it was incumbent on the respondent to identify, by reference to the applicant's duties, the restrictions that his medical condition required be imposed. A failure to do that should result in a finding that the decision is an unlawful one in that it was not authorised by the legislation.
[86]
[54] The applicant points to ss 46(3)(a) of the Regulations which provides that an assessment must be carried out "in accordance with the instructions, and covering the matters, in the approved form." The submission effectively is that the NMA has not covered the matters in the approved form but rather expressed his opinion on a subject that he was not asked to consider and that he was not authorised to give.
[87]
[55] The only relevant instruction set out in the guidelines on the form (which I take to be the 'instructions" referred to in ss 46(3)) is to complete Section 4. The respondent has done that.
[88]
[56] The approved form that the NMA is required to complete provides for the NMA to tick one of four boxes. As I have mentioned the respondent ticked the box "Is not fit to undertake the proposed/current position because of the following restriction(s)" and then inserted the words "Unfit to operate due to a significant and foreseeable risk of sudden incapacity"
[89]
[57] In one sense the applicant is correct in its submission that the respondent has not identified any restriction. What he has done is to assert that the applicant is not fit to undertake his current position. He has done that twice - once in ticking the box he chose and once in his statement "Unfit to operate". He has added to that the reason for his opinion. However the respondent's opinion is that the applicant is unfit to perform any of the duties of an operator because of the risk that he presents to himself and others. He would have been plainly entitled to insert "all relevant duties" if that was his opinion, as it appears to be. That would meet the applicant's argument. The statement he used carries that inference.
[90]
[58] Is it essential that the NMA relate his or her opinion back to "duties" expressly rather than by inference as has happened here? The form indicates that the NMA is required to identify "restrictions" but makes no express reference to "duties". The applicant relied on the comments of Atkinson J in Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242 at [32] where her Honour provided examples of restrictions. The approved form has been changed over the years. In 2005, when Edwards was decided, instead of the box that the respondent here ticked, the option was to tick a box that indicated that "the coal mine worker has a condition which results in the following restriction(s)". In that context Atkinson J suggested that an example of a restriction might be an inability to work at heights, or a restriction on the handling of certain materials - the latter a restriction that relates to a potential duty that a worker might perform but the former rather a restriction related to physical conditions that a worker might encounter and that would expose the identified risk. Thus Edwards is not authority for the proposition that the restrictions must of necessity relate to identified duties. Her Honour's comments of course were not intended as a finding on the limits of what might be permissible but used to illustrate the point relevant in that case - namely that a statement by an NMA, in response to the question posed, that further tests were required, was not a response at all.
[91]
[59] The changes to the form since Edwards and Johnson were decided are instructive. The fact that the form no longer requires that the NMA first identify a "condition", at least in his or her own mind, would tend to suggest that the intent in altering the form was to broaden the scope that the NMA had to find a worker unfit for duty. Further in requiring that the NMA expressly adopt the phrase "not fit to undertake the proposed/current position" when selecting the box that the respondent did here it was plainly intended that the form better fit with s 48(1) and its requirement that the health assessment report "show" such unfitness in order to trigger the reassessment provisions and so avoid the problems that were highlighted in Johnson.[18]
[92]
[60] The wording of the instruction in the assessment form does give some force to the submission. The NMA is required to base his or her opinion on identified "restrictions". The word "because" in the instruction "Is not fit to undertake the proposed/current position because of the following restriction(s)" suggests that approach. One possibility is that absent any present inability to perform any task within the parameters of a worker's duties the legislation does not anticipate the worker being unfit to undertake his position.
[93]
[61] Further what the respondent has done here is effectively circular - you are unfit to perform your duties because you are unfit to do so - not because you are or ought to be restricted in some way.
[94]
[62] But I think that reads too much into the form and fails to acknowledge the inevitable restrictions that requiring that a short form be filled in produces. It needs to be borne in mind that these forms were intended to be completed by medically trained people in the course of daily practise and read by workers and mine managers. The legislature could hardly have intended that those involved be ever alert to subtleties and shades of meaning. I do not think that the legislation requires that the "restriction" identified relates necessarily to identified duties as I understand the applicant to argue.
[95]
[63] However there remains the applicant's fundamental argument. Here there is no present physical restriction that the respondent can point to. The applicant is, or more relevantly was at the time of the assessment, perfectly capable of operating machinery. He had the strength, dexterity, visual acuity and hearing to do so. He might suddenly develop a condition that would incapacitate him and so restrict his ability to carry out aspects of his tasks and put his life and the lives of his fellow workers at risk, but he did not have that condition at the relevant time. Further, it is not shown, and is not part of the respondent's case, that the applicant's work would precipitate that event in the sense of adding a greater level of probability to the significant and foreseeable risk of a sudden cardiac event.
[96]
[64] It is this aspect of the case that has caused me significant difficulty. Is it the intention of the legislation that the NMA identify risks of that type?
[97]
[65] The respondent's obligations and authority must be judged in the light of the Act and Regulations as a whole.
[98]
[66] The objects of the Act are set out in s 6 of the Act and include "to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations" and "to require that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level". Section 7 explains how the objects are to be achieved and relevant matters include:
[99]
"The objects of this Act are to be achieved by - **
[100]
(a) imposing safety and health obligations on persons who operate coal mines or who may affect the safety or health of others at coal mines; and
[101]
(b) providing for safety and health management systems at coal mines to manage risk effectively; and
[102]
(c) making regulations and recognised standards for the coal mining industry to require and promote risk management and control; and
[103]
**(k) providing for the health assessment of coal mine workers."
[104]
[67] Section 29 provides that for risk from coal mining operations to be at an acceptable level, the operations must be carried out so that the level of risk from the operations is within acceptable limits and as low as reasonably achievable. Section 30 of the Act sets out how the objective of an acceptable level of risk is achieved. Subsection 30(3) provides that "the way an acceptable level of risk of injury or illness may be achieved may be prescribed under a regulation".
[105]
[68] The SSE has an obligation under s 42(a) of the Act to ensure that the risk to persons from coal mining operations is at an acceptable level and under s 42(c) of the Act to develop and implement a safety and health management system for the mine. Guidance as to the system expected is then given in the Regulations.
[106]
[69] The regulations in question were made pursuant to s 282 of the Act. The assessment here was carried out under the provisions contained in Chapter 2 Part 6 Division 2 Subdivision 3 of the Regulations. That subdivision is entitled "Health assessments and health monitoring". Division 2 is entitled "Coal mine workers' health scheme". Part 6 is entitled "Fitness for Work". Those headings "form part of the provisions to which it is a heading": s 35C(1) Acts Interpretation Act 1954. They carry the obvious connotation that the assessment is part of a process that should identify a worker who is not fit for work.
[107]
[70] The worker too has obligations and relevantly, under s 39(2)(e) of the Act, "to work at the coal mine only if the worker or person is in a fit condition to carry out the work without affecting the safety and health of others."
[108]
[71] I observe that by the terms of the health assessment form itself it is for the NMA to form an opinion as to the fitness or unfitness of the worker to perform his duties and to inform the employer of that opinion by marking the appropriate box. In doing so the various provisions to which I have referred make it plain he is entitled to consider the safety and health of not only the worker being assessed but of his fellow workers as well. Safety is at the forefront of the considerations. Apart from s42 of the Regulations, which I discuss below, the only means by which an employer is entitled to be informed by an independent medical examiner of the health of a worker is through the assessment and monitoring mechanism laid down in Chapter 2 Part 6 Division 2 of the Regulations. The decision in Edwards[19] is to the effect that the employer, at least one governed by the provisions of the Act, has no other right to insist on any medical examination. As I have held above, given that the BMI is required to be recorded, the medically accepted implications of it plainly can be used to inform the NMA's opinion.
[109]
[72] All these provisions indicate that it is the NMA's responsibility to ensure that any worker he or she assesses is passed fit to work only if they do not represent a significant hazard to safety at the mine. All these matters suggest that the respondent was entitled to act as he did.
[110]
[73] If that were the only criteria then I would have no difficulty with the respondent's approach.
[111]
[74] However the provisions of s 42 of the Regulations cause me some concern. They require that the SSE together with the majority of workers agree on "fitness provisions" as part of a coal mine's safety and health management system so far as they concern physical impairment. I refer to ss 42(1)(b), (3), (5), (6), (6A) and (8):**
[112]
"42 Safety and health management system for personal fatigue and other physical and psychological impairment, and drugs
[113]
(1) A coal mine's safety and health management system must provide for controlling risks at the mine associated with the following -
[114]
Example of other physical or psychological impairment -
[115]
(3) The system must provide for protocols for other physical and psychological impairment for persons at the mine.
[116]
(5) The site senior executive must consult with a cross-section of workers at the mine in developing the fitness provisions.
[117]
(6) In developing the fitness provisions, the site senior executive must comply with section 10, other than section 10(1)(a) and (d)(ii)(C), as if a reference in the section to a standard operating procedure were a reference to the fitness provisions.
[118]
(6A) If the fitness provisions provide for the assessment of workers for a matter mentioned in subsection (1)(a) or (b), the site senior executive must establish the criteria for the assessment in agreement with a majority of workers at the mine.
[119]
fitness provisions means the part of the safety and health management system that provides for the things mentioned in subsections (2) to (4)."
[120]
**[75] The example provided in ss 42(3) obviously does not limit the scope of the provision. I cannot see why the "physical impairment" that the section contemplates might not extend to a physical condition of a worker that placed him and his fellows at risk.
[121]
[76] Section 10 of the Regulations provides, so far as is relevant and adapted as ss 42(6) requires:**
[122]
(1) The site senior executive must ensure the following steps are taken in developing [fitness procedures] for managing and controlling hazards at the mine -
[123]
(b) the site senior executive must prepare a draft [fitness procedures] and give a copy of it to the coal mine workers with whom the site senior executive consulted;
[124]
(c) if the coal mine workers agree with the draft [fitness procedures], the site senior executive must prepare it as the final [fitness procedures];
[125]
(d) if the coal mine workers do not agree with the draft [fitness procedures] -
[126]
(i) for a disagreement that is not about a legal or technical matter - the site senior executive must decide the disagreed matter and prepare the final [fitness procedures]; or
[127]
(ii) for a disagreement that is about a legal or technical matter - the site senior executive must -
[128]
(A) obtain further information or advice, including, for example, from a person having the necessary qualifications and experience to give the advice or from a recognised text on the matter; and
[129]
(B) after consulting with the workers about the information or advice, prepare a further draft [fitness procedures] and give a copy of it to the workers; and
[130]
(e) the site senior executive must include the final [fitness procedures] in the mine's safety and health management system.
[131]
(a) the final [fitness procedures] accords with -
[132]
(i) all matters agreed, under this section, between the site senior executive and coal mine workers; and
[133]
(ii) the site senior executive's decision, under this section, on any disagreed matters; and
[134]
(3) In developing the [fitness procedures], the site senior executive must -
[135]
(a) use a risk assessment process recognised by the mining industry as an acceptable process for identifying and controlling hazards; and
[136]
(b) have regard to the methods of controlling the hazard stated in the database kept by the chief executive under section 280(1)(a)(i) of the Act.
[137]
(4) If, at the commencement of this section, the mine has [fitness procedures] for managing and controlling a particular hazard at the mine, the procedure is taken, until 1March 2002, to have been developed under this section."
[138]
**[77] Thus an elaborate system is laid down for the development of draft, and then final, fitness provisions. The workers have an input. The SSE is obliged to obtain advice from persons with expertise in relevant matters or consult relevant texts on technical matters. The final fitness provisions must be included in the mine's safety and health management system and hence worker's have notice of the expected level of fitness. The employer can provide for assessments to be undertaken pursuant to s 42(6A).
[139]
[78] I have no evidence concerning the fitness provision contained in the mine's safety and health management system where the applicant works.
[140]
[79] The issue that these provisions raise to my mind is whether the legislation intends that matters such as the general fitness of a worker are to be left to this elaborate consultative process. It is guided by commonly accepted risk assessments in the mining industry. It is informed by expert opinion generally. The applicant presents a statistical risk of suffering a sudden incapacity. It depends on a measure easily identified - the BMI. A strong case can be made that such risks ought to be standardised within the industry or at least subject to a recognised standard within a mine. Such risks could be well assessed within the parameters of this system.
[141]
[80] With some considerable hesitation I have come to the view that the important obligation placed on the NMA and the essential role he or she plays in alerting an employer to potential risks to workers requires that these two systems - the s 42 fitness provisions and the s 46 monitoring and assessment scheme - are intended to operate in tandem but can overlap in their operation. That one scheme might be better left to assess more general risks does not mean that particular identified risks in an individual case cannot be identified in the other scheme.
[142]
[81] On balance I am satisfied that the respondent was authorised to act as he did.
[143]
[82] In my opinion the applicant has not demonstrated that the decision of the respondent ought to be reviewed or that he is entitled to the declarations that he seeks.
[144]
[1] See s46(6) of the Regulations and the definition of health assessment report in Schedule 9 to the Regulations: "means a report in the approved form"
[12]Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321 at 359-360; Re Minister for Immigration and Multicultural Affairs ex parte Applicant S20/2002 (supra) at 72 [57]; Minister for Immigration and Multicultural Affairs v Rajamanikkam[2002] HCA 32; (2002) 210 CLR 222 at 238-239 [48]-[52].
[155]
[13] See Minister for Immigration and Multicultural Affairs v Eshetu[1999] HCA 21; (1999) 197 CLR 611 at 626-627 [39]-[41] per Gleeson CJ and McHugh J,
[156]
[14] See par 19 of his affidavit filed 17 May 2011
[157]
[17] The SSE is defined in s 25(1) of the Act as the most senior officer employed by the coal mine operator for the coal mine who is located at or near the coal mine and who has responsibility for the coal mine. The coal mine operator has obligations pursuant to s 41(1) of the Act, to appoint an SSE, to ensure that the SSE develops and implements a safety and health management system for the mine, and to audit and review the effectiveness and implementation of the safety and health system to ensure that the risk to persons from coal mining operations is at an acceptable level.