Consideration of the issues
17 A convenient starting point in considering the issues raised in the appeal is to determine the nature of the power exercised by the Commission when reinstatement is ordered and the effect of such an order. The resolution of that question would inform the answer to the question of what is the nature of the jurisdiction exercised by the Court when issuing injunctive relief to enforce a reinstatement order of the Commission.
18 It can be seen that the power to order reinstatement under s 170CH can be exercised when several conditions are satisfied. The first, in subs (1), is that the Commission has found that the termination was harsh, unjust or unreasonable. Plainly enough, this part of the Act, Division 3 of Part VI, is remedial and intended to provide employees with a statutory remedy when, amongst other things, an employer terminates employment harshly, unjustly or unreasonably. The second condition concerns the matters set out in subs (2). The third is found in the opening words of subs (3), the Commission must consider it is appropriate. If it is not appropriate, the discretionary power conferred by subs (6) enables the Court to order the employer pay the former employee an amount in lieu of reinstatement. Thus the power to order reinstatement is exercised when the Commission has been satisfied about each of these matters and decides to make a reinstatement order. It should be noted that the Commission has the power under s 170JD to revoke an order made under Part VIA (which would include an order of reinstatement) and may do so (whether it is obliged to do so is an issue I need not decide) when circumstances have changed. If a final injunction had been made to enforce an order that was later revoked, then the Court would have power to dissolve the injunction: see QDSV Holdings Pty Ltd (t/a Bush Friends Australia) v Trade Practices Commission (1995) 59 FCR 301 at 315.
19 It can be seen from subs (3) that a reinstatement order can take one of two forms. It is not a bare power to simply order "reinstatement". The first, in par (a), is that the reinstatement involves reappointment of the employee to the position in which the employee was employed in immediately before the termination. The second, in par (b), is that the reinstatement involves appointment to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination. Content is given to what is meant by "reinstate the employee" in the opening words of the subsection by these two paragraphs. Nonetheless, the word "reinstate" gives colour to the nature of the obligation of an employer if an order is made under the subsection, much in the same way as a defined term can give colour to the definition: see Western Newspapers Pty Ltd v Warren (1994) 1 IRCR 393 at 412. Indeed the submissions of both the appellant and the respondent in this appeal focused almost exclusively on authorities dealing with the meaning of the words "reinstate" or "reinstatement".
20 It is true, as counsel for the appellant submitted, that an order for reinstatement might require an employer to reinstate the employment contract in circumstances where there was no work to be done by the employee. An example referred to by the appellant was Australian Workers Union v Pioneer Concrete Pty Ltd (1991) 38 IR 365, in which it was decided an order for reinstatement could be made in relation to employees who had worked at a quarry even though the quarry had closed. What could not be ordered, so the Commission found, was that the employer reopen the quarry to actually provide work at it for the reinstated employees. Another example referred to was Shop, Distributive and Allied Employees' Association v Myer (NSW) Pty Ltd (Macken J, Industrial Commission of New South Wales, 6 July 1983, unreported) in which the Commission canvassed the possibility of making an order requiring a retailer (which had sold its business to another retailer) to re-employ an employee even though no work might be provided to the employee because the retailer no longer conducted the relevant business. To these authorities could be added Sutherland v Hills Industry Ltd (Keely J, 22 September 1982, unreported) which concerned a case where an employee had been dismissed in contravention of s 5 of the Conciliation and Arbitration Act 1904 (Cth). An issue arose about whether an order for reinstatement "to his old position or in a similar position" should, as a matter of discretion, be made under s 5(5). There was some evidence that the old position no longer existed and a submission was made by the employer that, in those circumstances, no order should be made. Keely J said:
Counsel for both parties agreed that any order made by the Court should be in the form that [the employee] be "reinstated to his old position or in a similar position". [Counsel for the employer's] second submission was that it followed that the Court should not give such a direction unless it was satisfied that his old or a similar position exists saying that the order must be capable of being reasonably complied with. I reject that submission as being much too sweeping. The mere fact that a position had been abolished (if it had occurred in a particular case) in order to prevent a direction to reinstate an employee could not thwart the intention of the section but, in any event, on the facts, I am not satisfied that "his old or a similar position" does not exist.
21 However these cases concerned exceptional circumstances and do not really answer the question raised in this case, namely what is the nature of the power to order reinstatement, and the effect of such an order in circumstances where positions existed in the business of the employer of the type occupied by the dismissed employee at the time of dismissal. Many of the cases concerning what an order for reinstatement comprehends, at least in the context of New South Wales industrial laws, were considered by the Industrial Commission of New South Wales in Court Session in Retail Traders Association of NSW v Shop, Distributive and Allied Employees' Association of NSW (1990) 36 IR 38. In those authorities it is comparatively clear, to repeat some of the language used, that an order for reinstatement is not to achieve a notional or academic reinstatement but a practical one. It requires a re‑establishment of the pre-existing employment relationship as a matter of reality and not in some notional or fictional way. The purpose of such an order is to place the dismissed employee in a position that he or she was in before the dismissal. It is to restore the status quo ante.
22 In relation to legislative provisions in almost identical in terms to s 170CH(3), a Full Court of the Industrial Relations Court of Australia said in Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240 at 244, concerning a case where the pre-existing position had been abolished:
We have already set out the terms of s 170EE(1)(a)(ii) of the Act. The subparagraph empowers the Court to require the employer to reinstate the employee by appointing him or her "to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination". This might be a specific position, the availability and suitability of which is revealed by the evidence. On other occasions, the Court will not specify a particular position. Provided that the Court is satisfied that reinstatement is practicable and appropriate, it is open to the Court to make an order in terms of par (a)(ii), leaving it to the employer to choose the position and to comply with the Court's order to provide terms and conditions that are no less favourable than those on which the employee was employed immediately before the termination. If this course is taken, the employer may select an existing position, or he or she may create a new position for the purpose. If the latter, contrary to the submission of counsel for the employer, it will not be to the point that, in the absence of the order, the employer might not have created the position. We appreciate that creation of a new position may occasion a cost, or other disadvantage, to the employer. Where there is evidence that this will be so, that evidence may be relevant on the issues of practicability and appropriateness. But it would be contrary to principle to treat such evidence as necessarily determinative. The occasion for the order arises because the employer has acted unlawfully in terminating the employee's employment. A reinstatement order is akin to an injunction compelling a wrongdoer to restore the position of the innocent party. In considering whether to grant an injunction, a court will always take into account the consequences of an order to the wrongdoer but the existence of adverse consequences has never been regarded as excluding the possibility of an order being made.
The employer submitted that an order that might require an employer to create a position involved something other than the exercise of judicial power. Reference was made to Queen Victoria Memorial Hospital v Thornton (1935) 87 CLR 144 esp at 150 in which the High Court declared invalid a provision in a Commonwealth Act conferring on a magistrate the power to require an employer to engage an employee. However that case is far removed from the present. An order made under s 170EE(1) of the Act is a remedy ordered after the determination of whether there had been a termination in contravention of the Act. The power to mould a remedy, if authorised by statute, is not inconsistent with the exercise of judicial power even if it imposes on the person bound by the order an obligation to take steps to effectuate it.
In the present case there was clear evidence of positions to which the respondent might be appointed by operation of an order for reinstatement. They were the positions occupied by the casual contract labour. No question of who bears the onus of proving impracticability thus arises proceeding, as we are, on the basis that this is a rehearing. This is so because the evidence clearly demonstrates the existence of other positions. Thus an order for reinstatement can be made requiring the employer to appoint the applicant to another position. The Court can then impose the condition that the terms and conditions of employment will be no less favourable than those enjoyed by the respondent immediately prior to his termination. It does not matter whether the position is one that would otherwise attract those terms and conditions. Accordingly we are not satisfied that the reinstatement of the appellant is impracticable."
It is to be noted that a judgment of a Full Court of that Court ordinarily would, on matters of construction, be followed in this Court: see Qantas Airways Ltd v Cornwall (1998) 84 FCR 483 at 488-491 and Commonwealth Bank of Australia v Finance Sector Union [2002] FCAFC 193 at [23].
23 The above passage illustrates that appointment to a position as a means of reinstatement entails more than paying wages or reinstating the contract of employment. It involves placing the employee back into a position, either the position formerly occupied or another position. In my opinion, the power to make an order under s 170CH(3)(a) or (b) extends to making an order requiring the employer to permit the employee to take up the position formerly occupied by the employee, or another position, including performing the duties of that position and receiving the benefits from doing so.
24 That is not to say, however, that the employer would be precluded, thereafter, from lawfully altering the position of the employee by requiring the employee to perform other duties, standing down the employee or even dismissing the employee. An employer can. However, if these steps were taken capriciously or unreasonably it may be that they could be viewed as steps designed to nullify the effect of the reinstatement order. The order is intended to have the effect earlier described and, to that extent but only to that extent, overrides any contractual or other rights the employer may have.
25 If this is the nature of the power exercised by the Commissioner, it is nonetheless necessary to ascertain what he intended by the order made on 29 March 2000. It is to be recalled that the order directed that the "applicant shall be reinstated to the position in which he was employed prior to the termination of his employment". It is not entirely clear what the effect of the order is insofar as it speaks of "reinstated to the position in which he was employed" and recourse can be had to the Commissioner's reasons in determining what the order meant: see Repatriation Commission v Nation (1995) 57 FCR 25 at 31. The Commissioner made no express positive findings concerning the work being done by the respondent prior to the termination, though he did make such findings in relation to the work the respondent was requested to do, namely hot neck boning. The Commissioner found, on balance, the respondent had a pre-existing medical condition that meant he was unable to perform the work of hot neck boning, and he was not trained to do that work. It is therefore unlikely that the order for reinstatement was intended to bring about a situation where the appellant would be doing hot neck boning.
26 It is clear from the Commissioner's reasons, read as a whole, that he thought it was unfair of the appellant to request the respondent to move from the work he had been doing to perform hot neck boning work. Indeed it is clear that the Commissioner concluded that the termination both arose from the direction (to do hot neck boning), and was unreasonable because of that direction. While it is not stated expressly, it is tolerably clear that what the Commissioner had in mind was that the respondent would, by operation of the order, take up employment again in the position of boner doing the work he had done before the direction to transfer to another part of the abattoir to do hot neck boning.
27 To construe the order this way has some support in the authorities quite apart from what can be gleaned from the Commissioner's reasons and the terms of the order itself. Perhaps on one view the "position" of boner to which the respondent was to be reinstated was a technical position description of "boner" (which might include hot neck boning). On another the "position" was the practical work that the respondent had been regularly engaged in prior to his termination (boning conducted solely in the big boning room). The meaning of the word "position" in an employment context was considered in State Rail Authority of New South Wales v The Honourable Justice Bauer (1994) 55 IR 263 (and in the related matters of State Rail Authority of New South Wales v Tyrrell (1993) 49 IR 236 at 240-241 and State Rail Authority of New South Wales v Tyrrell (No 2) (1993) 51 IR 14 at 19-20).
28 That matter related to a dispute which arose after a State Rail Authority employee was injured at work. Following the injury, he was moved onto "light duties" which he went on to perform for a period of six years, after which time he was dismissed. It was common ground between the parties that the employee had been dismissed as he was unfit to work in the position of labourer/acting storeman class 3, which had been his position prior to the injury. The employee sought an order he be reinstated and the issue arose as to the position he could be reinstated to by operation of any order. The case related to s 154C of the Industrial Arbitration Act 1940 (NSW), which enables an injured employee who is dismissed as a result of an injury to apply to the employer for reinstatement to his or her former position and, if necessary, seek an order to that effect. In the Bauer case, Sheller JA addressed circumstances where the work actually performed by an employee may differ from the broader position description:
"Bauer J…when he came to construe the legislation…suggested five possible meanings of the word "position": "(a) the actual job which the worker was doing when he was injured (b) the actual nominal job classification in which the worker was employed at the time of the injury (here Storeman, Class 3) (c) a job which whilst not the same as that being done at the time of injury is similar both in wages or in the level of 'fitness' required (d) a job which, though requiring a lower level of fitness, was suitable for the level of fitness of the worker after the injury (e) a job that the worker was actually doing at the time of the dismissal".
…
As Bauer J pointed out, if a person is employed as a labourer, that person may hold a position, whether it has an express classification or description or not, whereunder heavy labouring work is required. By the same token, whether so classified or described, a person may hold a position whereunder only light labouring work is required. It is open to find that these are different positions."
29 Sheller JA concluded that the employee was entitled to reinstatement to the position in which he had been performing light duties, and the provision did not operate on the footing that the only reinstatement available was to the substantive position in which he was classified. While plainly the legislation considered in that case was directed to a specific statutory purpose, namely the protection of injured workers, there is no warrant for concluding, in my opinion, that beneficial legislation intended to protect employees who have been unlawfully dismissed, embodied in Division 3, cannot be given effect to by means of orders of the Commission with similar practical effect.
30 The primary judge was, in this matter, correct in concluding that the order of the Commissioner was to reinstate the respondent to a position undertaking boning in the big boning room, and that the appellant had not complied with that order. That is not to say that the Commissioner intended that the appellant could not exercise such rights as it had under the AWA to ask the respondent to perform other duties. But the existence of those rights does not deny the intended effect of the order.
31 It is now necessary to turn to the nature of the jurisdiction exercised by this Court under s 170JC(3) as part of considering the submissions that the primary judge had no power to make two of the orders he did. It can be seen from the terms of s 170JC that the Court's function is to determine whether injunctive relief should issue effectively enforcing an order of the Commission. As far as I am aware, there has been no discussion of the nature of the Court's jurisdiction under this section. I should note, parenthetically, that there is no issue raised in these proceedings about the nature of the Commission's jurisdiction and whether it involves the exercise of judicial power. Nor is it suggested that the power exercised by the Court under this section does not involve the exercise of judicial power: for a discussion of the issue more generally see King v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (2000) 109 FCR 447. However a power similar, in principle, to that exercised under s 170JC is exercised by the Court under s 127(6). That is, a power to require compliance with an order of the Commission by injunctive relief.
32 The nature of the power conferred by s 127(6) was considered by North J in Australian Paper Ltd v Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15. Of this power, his Honour said at 16-17:
On 10 March 1998, the applicant filed an application in this Court for injunctions under ss 127(6) and 127(7) of the Act. Section 127(6) provides:
"The Court may, on the application of a person or organisation affected by an order under subsection (1), grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person or organisation:
(a) has engaged in conduct that constitutes a contravention of subsection (5); or
(b) is proposing to engage in conduct that would constitute such a contravention."
The present application is brought under s 127(7), which provides:
"If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (6)."
The power to grant an injunction is a discretionary power in very wide terms. The word "may" in s 127(6) is used in a permissive sense (Acts Interpretation Act 1901 (Cth) s 33(2A)). Even if the Court determines to grant an injunction, the terms may be moulded to meet the needs of the particular circumstances. The power to grant an interim injunction is in equally wide terms.
The jurisdiction of the Court arises only if there is an order made by the Commission and a person or organisation has contravened or proposes to contravene that order. Sections 127(6) and (7) are sometimes loosely referred to as provisions for the enforcement of orders of the Commission by the Court. While this approach describes the result in some cases, it does not adequately explain the role of the Court. The Court only acquires jurisdiction if the Commission has made an order, but the mere fact that the Commission has made an order does not mean that the Court is bound to, or will grant, an injunction. The grant of an injunction is an independent function performed by the Court. The Court is not entitled to grant an injunction without satisfying itself that an injunction is appropriate in all the circumstances. In performing its function, the Court will determine whether the respondents have contravened, or propose to contravene, the Commission's order and will take into account the circumstances of such industrial action to establish whether the circumstances justify the grant of an injunction. The proceedings in the Commission leading to the making of the order under s 127(1), the positions put by the parties to the Commission, the decision of the Commission, and the responses of the parties to that decision may well be relevant facts bearing on whether the Court should grant an injunction. The independent function of the Court follows from the different roles the Court and the Commission perform under s 127. The order of the Court may be enforced through contempt proceedings, by fine, sequestration or imprisonment. Thus, in determining whether to grant an injunction, the Court must consider whether, if there were to be conduct in breach of the injunction, it would be of such nature or effect that, in all the circumstances, it should carry the possible consequence of a fine, sequestration or imprisonment. These considerations do not arise when the Commission makes an order under s 127(1).
By conferring a power on the Court expressed in terms of a power to grant an injunction, Parliament intended that the Court would be guided by the principles established by equity for the grant of an injunction. The Act does not modify the principles applicable to injunctive relief as do some statutes providing for a remedy by way of injunction. Examples of such statutes are collected by Gummow J in Ricegrowers' Co-operative Ltd v Howling Success Australia Pty Ltd (1987) ATPR 48,489, at 48,492; Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543, at 548; and ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248, at 254. See also I.C.F. Spry, Equitable Remedies, 5th ed (1997), at pp 444‑446.
These observations generally are apt to apply to the exercise of the power conferred by s 170JC(3). However two further observations can be made. The first is that the terms in which the power is conferred do not indicate that it can be exercised by the Court only in circumstances where the reinstatement order (or other order made by the Commission under Part VIA) has not been complied with or has been breached. One could expect, ordinarily, that a party would have recourse to the Court for injunctive relief when there had been non-compliance. However there is no reason, in my opinion, to read down the section so as to limit the Court's power to issue relief in those circumstances.
33 The second observation is this. If, as discussed earlier, a reinstatement order is made requiring the employer to place the employee back in the same position, the order modifies, to that extent, the contractual and other rights (such as rights under an award or an AWA) of the employer. Also, as discussed earlier, an employer could not capriciously or unreasonably seek to frustrate the reinstatement order by subsequent action. A failure to give effect to the order, if it is later supported by an injunction of this Court, would put the employer at risk of being in breach of the injunction and in contempt of the Court: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at 46-47. In addition, in appropriate circumstances, an employee who has the benefit of an order of the Court (and, in addition though probably less likely, an employer affected by the order) might approach the Court for ancillary relief if the injunction supporting the reinstatement order was being frustrated by the conduct of a party bound by it. The role of the Court in such circumstances is a limited one and the applicable principles were considered by R D Nicholson J in two related judgments, Maritime Union of Australia v Geraldton Port Authority (2000) 106 IR 119 and Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434.
34 The immediate issue raised in these proceedings is whether the primary judge could and should have made the third and fourth order of 21 May 2002. Both the appellant and the respondent challenged the fourth order and submitted the primary judge had no power to make it. I understood that both parties consented to that order being set aside. Without expressing a view as to the power of his Honour to make the fourth order, I am prepared to give effect to the agreement of the parties and set aside that order.
35 Thus the remaining issue is whether the primary judge had power to make the third order and, if so, whether the exercise of his discretionary power to make it miscarried, in the sense discussed in House v R (1936) 55 CLR 499. His Honour concluded that the appellant had breached the reinstatement order. This conclusion is correct. Before the Commissioner, the medical condition of the respondent and his capacity to perform work was an issue. It does not appear to have been argued by the appellant, or argued successfully, that the medical condition of the respondent precluded him resuming employment and doing the boning work in the boning room that he had done before the attempt was made to transfer him to hot neck boning. It was not open to the appellant, in my opinion, to raise as a reason for not giving effect to the order of the Commission, the medical condition of the respondent.
36 It is to be recalled that the appellant, after the Commissioner made the order, wrote to the respondent indicating that it had concerns about his physical capacity to perform his work and excused him from further attendance at work. The relevant parts of the letter were quoted by the primary judge in a passage set out at [3], above. The appellant apparently decided to take this approach because of medical evidence tendered in the Commission. However the time and place to explore the relevance of that evidence was during the hearing in the Commission. In many respects the determination of the Commission is final: see Miller v University of New South Wales (2002) 115 IR 404. It was not open to the appellant to seize on that evidence so as to deny the respondent the benefit of the Commission's order.
37 As to the power of the primary judge to make the third order, it is necessary to bear in mind, having regard to what has been said to this point, that had the third order only operated at the immediate point in time the respondent first resumed employment (in the sense of recommencing to perform his duties) pursuant to the second order, it would have been unexceptionable. The third order would have simply stated in express terms what the second order required. Approached in this way, the question is whether his Honour had power to require that state of affairs (the respondent performing his duties as a boner doing chilled boning work in the big boning room) to continue for 14 days, or, as the respondent would have it, continue for as long as the employment relationship continued (though the respondent effectively submitted that any such order was required to be of that duration).
38 His Honour, in making the third order in the terms he did, was endeavouring, in a practical way, to resolve what was or may have become an intractable problem involving conflict between the appellant and the respondent. However, the power conferred by s 170JC is, in terms, to enforce the order made by the Commission. If the order required, as I earlier discussed, the reinstatement of the respondent by him resuming his former duties then an order effectively requiring that situation to continue for 14 days went beyond what was necessary or appropriate to enforce the order made by the Commission. The order did not accommodate the possibility that the appellant might lawfully require the respondent to perform other duties in that period of 14 days if he was fit to do so or even terminate his employment, if to do either was lawful and not for the purpose of defeating or frustrating both the injunction issued by this Court and the order of the Commission. Accordingly, the primary judge should not, in my opinion, have included in the third order the words "and for a period of 14 days thereafter". It follows from what I have said that I reject the submission made by the respondent as to the form the third order should have taken.
39 The last issue is whether the primary judge erred, when exercising his discretionary power to make the second order and the third order (and, I apprehend, even if modified in the way I have just discussed). The gravamen of the appellant's submission was that an order requiring the appellant to allow the respondent to resume his duties as a boner effectively required it to employ someone doing work in circumstances where the employee was at risk of injury because of a pre-existing medical condition. This was said, in a fairly general way, to contravene state occupational health and safety laws. The issue arose because by the time the primary judge was considering whether to grant the injunction, there was medical evidence led by the appellant (in a report dated 17 May 2001 by a doctor who, having regard to his qualifications, appears to be an obstetrician and gynaecologist) which may have raised a question about the respondent's ability to perform any boning work and the possible adverse impact on his health of doing so. There was medical evidence that the respondent had led which was to the opposite effect. His Honour's approach to this evidence was to say (in the passage set out at [13] above) that compliance with any order this Court made would furnish a defence to any liability under those state laws. Again, his Honour was endeavouring, in a practical way, to resolve what was or may have become an intractable problem involving conflict between the appellant and the respondent.
40 However, I am not confident that this approach involves an appropriate exercise of the discretion to grant an injunction effectively requiring an employee to resume employment he may not be able to do at all or at least without possible future injury to himself. That is, in the face of the evidence it may well have been necessary for the primary judge to determine, as a matter of fact, whether engaging in this employment was possible or might expose the respondent to further injury. However, as a result of a direction made by a Full Court on 29 May 2002, an up-to-date medical report (dated 8 October 2002 and based on an examination undertaken that day) has been obtained by the appellant. The respondent sought to tender the report in this appeal. Its tender was not opposed by the appellant. It is plainly relevant evidence that was not available when the matter was heard by the primary judge and should be admitted: see Cottrell v Wilcox [2002] FCAFC 53 at [16]-[24].
41 The report was from Dr Hefner and said:
Re: Steven BLACKADDER
Could I qualify my remarks concerning this man, on the basis of being an Orthopaedic Surgeon, certainly not an Occupational Therapy medicine man, nor somebody who knows all about abattoir work although I have toured of the local Macksville abattoir and seen what these people do.
Steven Blackadder presents today 8.10.02, looking as a fit man, no obvious fat on him, no obvious disabilities and was quite open and honest about his condition, informing me that he had had a right elbow problem for a long time, having had a dislocation at the age of 18 years, having a further dislocation back in 1982 which resulted in him having an anaesthetic to have it replaced, he then went on as your work history detailed, to work successfully as a boner working with big portions of meat, but as he said he could managed [sic] that with his right hand, if he used his knife in the correct manner and did a slashing type action.
At the moment he has been 3 years off work, which means that if he did go back to work, he would need to come back on a restricted basis to gradually build up to the full strength and full requirements of working on the meat chain. This is not an unusual practice in the abattoirs as I believe in the past this is how people are brought back in to work.
Looking at him physically, as I said he is physically very well. The most important thing is his right elbow, when you look at his right elbow he has an elbow with deformity around it, he has no pain in it at this point in time, he has restriction in movement, meaning he cannot fully extend it, and he cannot do full flexion so his range of movement is from 25-130ş, he has a valgus deformity of 30ş, and he has no evidence at this point of ulnar nerve entrapment or problems.
The other movement which he cannot do properly, is supination or pronation, he has only half that range of movement.
I saw xrays today dated June 2002, and they certainly show an osteoarthritis with gross osteophytes, narrowing of joint space and all the usual features suggestive of a long-standing osteoarthritic process.
To answer your questions, my findings on examination is that this man has an osteoarthritic right elbow.
The treatment at this stage is that he requires no treatment. If the patient had pain and requested treatment he could be sent to one of the better elbow men who may carry out a debridement of all those particles, but whether that would give him any better function or long-term relief would be debatable.
I would consider this man could return to his previous position, that of being a hind-quarter boner, but he would have to come back to work on a gradual basis to work things in so he doesn't get a lot of tendonitis and problems of that nature.
You have asked me as an Orthopaedic Surgeon would he be able to perform hot-neck boning, from what I could gather I would have to say NO, simply because part of the knife action there is a twisting action which involves supination and pronation of the forearm, and this man is already limited in that ability to do that.
To answer question 5, you would have to get an Occupational Therapy person to work that out for you.
To answer question 6 that would have to be worked for the patient by an Occupational person who could put him through the paces in the appropriate work place.
The overall prognosis is that this man has an osteoarthritic process affecting his right elbow, at this point in time there is no pain or restrictions on him doing most normal activities, if he has been previously able to work as a boner in a normal boning room then I am sure he could go back to that with appropriate support from the work place.
Yours sincerely
(PA HEFNER)
42 This report constitutes clear, recent and expert opinion that the respondent can perform the work he was performing at the time of his termination and to which, by operation of the Commission's order, he was to resume performing. It is not said in the report that to do so will have an adverse effect on his health. In those circumstances even if the primary judge erred in the way he dealt with the medical evidence current at the time he was considering whether to grant an injunction, it is an error that does not warrant correction by this Full Court on appeal.
43 In the result, the appeal should be allowed in part. Order 4 of 21 May 2002 should be set aside and order 3 varied by deleting the words "and for a period of 14 days thereafter" but the appeal otherwise dismissed.
44 Since preparing the above reasons, I have had the opportunity of reading the reasons for judgment of the majority, Tamberlin & Goldberg JJ. It would be apparent from what I have already said that I respectfully disagree with their analysis. Given the potential importance of the issues raised in this appeal having regard to the approach of the majority, I should make some further observations. In my respectful opinion, the majority do not give sufficient weight to the development of the jurisprudence in this country concerning what is meant by reinstatement, and narrowly and inappropriately focus on contract law to answer the questions raised in this appeal. The Industrial Commission of New South Wales has exercised a reinstatement jurisdiction since 1902. The first reinstatement order it made was in Newcastle Wharf Labourers' Union v Newcastle and Hunter River Steamship Co Ltd [1902] AR (NSW) 1. The manner in which the power to order reinstatement has been exercised (and, in particular, what has come to be viewed as the seminal judgment in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95) has been influential in the development of jurisprudence in other States where industrial tribunals have exercised a similar power, and also relevant to the approach of the High Court to issues presented for determination from time to time. Of particular relevance in this appeal, is that the approach in Re Loty has been adopted by Parliament as the touchstone for the exercise by the Australian Industrial Relations Commission of its jurisdiction concerning termination of employment including the grant of remedies such as ordering reinstatement under s 170CH(3).
45 As a result of a series of decisions of the High Court and limits arising from federal law (discussed at [7.40] of the report of the 1985 Hancock review of the Australian Industrial Relations Law and Systems), the Australian Conciliation and Arbitration Commission was viewed as having no substantive power to order reinstatement. The exercise of such a power would rarely involve conciliation or arbitration to prevent or settle an interstate industrial dispute and might often involve the exercise of judicial power: see R v Gough; Ex parte Cairns Meat Export Co Pty Ltd (1962) 108 CLR 343, R v Portus; Ex parte City of Perth (1973) 129 CLR 312 and R v Gough; Ex parte Meat & Allied Trades Federation (1969) 122 CLR 237. It was thought by many that after the judgment of the High Court in Re Ranger Uranium Mines Pty Ltd; ex parte Federated Miscellaneous Workers Union of Australia (1987) 163 CLR 656, the law may have altered and previous limits on the federal tribunal's power might not operate so restrictively.
46 However, the judgment of the High Court in the Re Federated Storemen & Packers Union of Australia; ex parte Wooldumpers (Victoria) Ltd (1989) 166 CLR 311 suggested otherwise. In the result, the Commonwealth Parliament enacted in 1993, the Industrial Relations Reform Act 1993 (Cth) which, inter alia, created the Industrial Relations Court of Australia and conferred on it a power to grant remedies in respect of an unlawful termination (see Subdivision C of Part VIA and Division 3 more generally). The grant of such a power by the Australian Parliament was a very significant step in the regulation of the workplace by federal law, and included a power to reinstate the employee (s 17EE(2)(b)). The indirect source of the Commonwealth's legislative power was principally the Convention Concerning Termination of Employment at the Initiative of the Employer to which Australia was a signatory. The Industrial Relations Court rejected the notion that its jurisdiction was on all fours with that of state industrial tribunals exercising a power to order reinstatement on the basis that the parties should have "a fair go all round": see Liddell v Lembke t/a Cheryls Unisex Salon (1994) 56 IR 447 and Fryar & Simpson v Systems Services Pty Ltd (1995) 60 IR 68. Particularly relevant, for present purposes, was the judgment of Gray J who expressly rejected the notion (in Fryar & Simpson v Systems Services Pty Ltd (supra) at 90) that under the applicable federal law the Court was to ensure that the parties were to have a "fair go all round" in accordance with the principles discussed by the New South Wales Industrial Commission in Re Loty.
47 However the legislative scheme introduced in 1993 (and later modified) was to change as a result of the enactment of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) which introduced the provisions that need to be construed in this appeal. This amending legislation effectively abolished the Industrial Relations Court of Australia and, to the extent that there was to be a statutory right to seek the remedy of reinstatement under federal law, it was by application to the Commission and not the Federal Court (other than in very limited and narrow circumstances). These amendments made it clear that the powers exercised by the Commission were, in principle, to be exercised in the way discussed in Re Loty: see the judgment of O'Loughlin J in Robertson v South [2000] FCA 1402. So much is apparent from s 170CA which provides:
"(1) The principal object of this Division is:
(a) to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee's employment in certain circumstances; and
(b) to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and
(c) to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable; and
(d) to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and
(e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivisions D and E, to assist in giving effect to the Termination of Employment Convention.
(2) The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a "fair go all round" is accorded to both the employer and employee concerned.
Note: The expression "fair go all round" was used by Sheldon J in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95. "
(Emphasis added)
48 Thus Parliament intended that the nature of the power exercised by the Commission to order reinstatement was to be understood in the light of the principles discussed in Re Loty to which I now briefly make mention. The case was an unusual one. Two clerical employees of the Australian Workers Union were dismissed during a period of intense internal division within the union. Their union, the Federated Clerk's Union of Australia, brought proceedings in the Industrial Commission of New South Wales seeking their reinstatement. One employee, Miss Holloway, was successful and the other, Mr Loty was not. In his judgment ([1971] AR (NSW) 95 at 99) Sheldon J made it clear that the notion of "a fair go all round" is not concerned with contractual rights (for example, that the dismissal may have involved the lawful exercise of a contractual right by the employer) but involves an evaluation of the industrial justice of making a reinstatement order which includes (see 99) the "likely practical outcome if an order of reinstatement is made". This observation is directed to the practical outcome of making an order requiring the employer to provide, on one hand, and enabling the employee take up, on the other, work at the point of reinstatement of the type being done at the time of dismissal. Indeed his Honour said (see 106) in relation to whether a reinstatement order should be made for Miss Holloway:
"An award of reinstatement is not a guarantee of permanent employment. It is a restoration of the status quo where a dismissal is regarded by an arbitrator as having been unfair. This point needs special emphasis in this case. If I make an award of reinstatement in this case, it would be in order to put the parties in the position where they would have been as from 8th February if the dismissal had not take place. The future would depend upon events but if co-operation proved impossible either through Miss Holloway's fault or, after a fair trial, because of invincible incompatibilities in temperament and outlook, the Commission would not intervene again. It has no right to try and run the branch office by remote control. Its sole right is to require the parties to start again from the point where an injustice occurred.
Subject to what I say later, I think that, although it is close to the border, a case has been made out for reinstatement ".
49 Ultimately an order for reinstatement was made in relation to Miss Holloway but on the condition that she, inter alia, "cooperate in the performance of her work" with the union officials (see 107). Mr Loty was unsuccessful because Sheldon J considered he would not be able, if reinstated, to do the work he had done at the time of dismissal. It was the nature of that work (for example, representing the union in industrial tribunals) that led to his Honour to conclude a reinstatement order should not be made (see 109-110). It is beyond doubt, in my opinion, that Sheldon J approached the entire question of effecting "a fair go all round" on the footing that if a reinstatement order was made it would entail the employee resuming work in the position formerly held. That is, performing the duties of the position from which the employee was dismissed and in respect of which the reinstatement order was to operate.
50 The importance of Re Loty as establishing accepted principles to be applied in claims for reinstatement was recognised by the High Court in its joint judgment in Re Ranger Uranium Mines Pty Ltd; ex parte Federated Miscellaneous Workers Union of Australia (supra). Re Loty was decided in 1971. In the same year the High Court had occasion to consider the jurisdiction of the Industrial Relations Commission of New South Wales (more precisely a conciliation committee exercising the same powers as the Commission) to deal with an application for the reinstatement of a council employee: see North West County Council v Dunn (1971) 126 CLR 247 (argued, it would appear, at about the same time as Re Loty). In issue was the interaction of the legislation under which the Commission operated and provisions in the Local Government Act 1919 (NSW) dealing with the dismissal of council employees. Walsh J gave the leading judgment. His Honour referred to then existing principles governing the reinstatement jurisdiction of the Commission. It did not differ markedly from the principles discussed in Re Loty. His Honour indicated (at 263) that an application for reinstatement (under s 74 of the relevant legislation) did not involve an investigation of the respective legal rights of the employer and the employee but rather the question of whether the legal right of the employer (to dismiss) had been exercised so harshly or oppressively against the employee as to amount to be an abuse of that right. The relevant inquiry was not what the employer had the right to do but rather what the employer ought to do or to have done. In my opinion this approach is consistent with a reinstatement application (and the remedy) not being concerned with contractual rights but, as indicated earlier in these reasons, with reinstatement in a real and practical way.
51 I should mention one further High Court authority. It does not directly concern Re Loty though does deal with what is comprehended by reinstatement.It concerned the powers of an industrial tribunal under Victorian legislation to order reinstatement. In this matter the High Court had occasion to consider the correctness of a decision of the Supreme Court of Victoria, namely R v Marshall; ex parte Plumrose (Australia) Ltd [1983] 1 VR 469. In the High Court, the leading judgment was of Wilson J (Mason and Deane JJ agreeing) who said (at 515):
With all respect to their Honours in Plumrose, I would make three comments about that decision. First, a clear distinction should be drawn between employment of a person and reinstatement of a recently dismissed employee. As the court rightly observed, the power to direct that A employ B is a very drastic one. It is not lightly to be inferred in the absence of compelling language. But the difficulty of drawing such an inference is perhaps very much less in a case where, in the context of arbitrating a dispute concerning the fairness of a recent dismissal, a claim for reinstatement is made. The fact that industrial legislation in other places may expressly confer such a power does not necessarily deny its availability in the absence of such express mention; on the contrary it may serve to identify such a remedy as forming part of the recognised armoury of available remedies in the modern pursuit of harmonious industrial relations. However, it will always be a power to be exercised with caution having regard to the circumstances of the case. There will be many cases where the working relationship of employer and employee is so close that to impose such a relationship by an award would be quite destructive of industrial harmony.
Wilson J was plainly proceeding on the basis that an order for reinstatement would bring about the performance of work of the reinstated employee. It is for this reason, as it was in Re Loty, that the power to order reinstatement must be exercised with considerable caution and with an eye to what will happen if the employee resumes working in his or her former position. Indeed, as I discussed earlier in these reasons, this is doubtless why Parliament has required the Commission to consider a variety of matters before proceeding to order reinstatement.
52 As noted earlier, Re Loty has been adopted in various state tribunals as establishing the relevant principles for determining whether an order should be made reinstating an employee to his or her former position: see in Victoria, Re Registered Nurses Conciliation & Arbitration Board (1984) 9 IR 19 at 30; in Queensland, as an example, in Cook v Department of Primary Industries (IRC (Qld), Commissioner Swan, 22 May 1997, Unreported); in South Australia in Gnatenko v General Motors-Holdens Ltd (1976) 43 SAIR 760; and in Western Australia in Deng v Sin-Aus-Bel Pty Ltd t/a The Ascot Inn (1997) 77 WAIG 1091, where Sharkey P said:
In this jurisdiction, as in all others, it is the overriding concept of fairness that governs the exercise of the Commission's powers. The classic statement of fairness is that of Sheldon J of the former New South Wales Industrial Commission in In re Loty and Holloway v AWU (1971) AR 95 at 99, adopted in Miles and Others t/a Undercliffe Nursing Home v FMWU 65 WAIG 385 (IAC) as follows:
The jurisdiction has been variously stated: in re Loty and Holloway v Australian Workers' Union (1971) AR 95 at 99 Sheldon J said that even though in the dismissal be it summary or on notice, the employer has not exceeded his common law and/or award rights, the Court was entitled to enquire as to whether the employee had received "less than a fair deal". He also approved what had been said in an earlier case whether there had been "a fair go all round". In a later case Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union (New South Wales Branch) (1973) AR 231 at 233 Watson J thought that even if there are grounds for terminating the contract of employment it was still open to the tribunal to examine the severity or otherwise of the step of dismissal.
53 I am not aware of any suggestion in any state jurisdiction that a reinstatement order, if made, does not contemplate the reinstated employee being permitted to resume work in a real and substantial way. That is, performing the work performed at the time of dismissal (if reinstated to the pre-existing position).
54 I accept, on the facts of this case, an issue might arise about the nature of the duties of the respondent at the time of his dismissal. He was not then working. I have taken the view, for reasons given, that the Commissioner who made the reinstatement order contemplated that the respondent would return to work performing the duties of a boner. On the other hand, it might be thought (though, in my opinion, wrongly) that the order contemplated the respondent would return to performing no duties because he was performing none at the precise time of dismissal. However the judgment of the majority does not appear to turn on that factual distinction. Rather it appears to propound a general principle that if a reinstatement order is made there is no obligation on the employer to allow the reinstated employee to resume the duties being performed at the time of dismissal. That approach overlooks, in my respectful opinion, the effect of the reinstatement order at the point of reinstatement and its modification of any contractual rights the employer may otherwise have had at that time.
I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.