Ross Speirs v Springvale Coal Pty Ltd [2010] NSWIRComm 30 | Case summary

Ross Speirs v Springvale Coal Pty Ltd [2010] NSWIRComm 30 | Case summary | Zoe

[11]

2 Mr Speirs had worked at Springvale Colliery since 1995 having commenced employment there as mine deputy and, thereafter in 2005, having been promoted to the abovementioned position of Longwall Production Superintendent. He had worked in the underground coal mining industry in the western coalfields of New South Wales since 1971 and during that time had suffered a number of injuries to his knees for which he claimed and received workers' compensation benefits albeit not from or on behalf of Springvale Coal Pty Ltd, the proprietors of Springvale Colliery (which shall be described as 'Springvale Coal'). In fact, on each occasion he received compensation for knee injuries, he received it from the industry insurer, Coal Mines Insurance ('CMI'), against policies taken out by employers prior to Springvale, namely, the proprietors of Ivanhoe Colliery and Western Main Colliery. This was notwithstanding the fact that compensation was claimed by Mr Speirs and paid by CMI for lost time and treatment (by steroid injection and arthroscopic debridement) from time to time during his 13 years of employment at Springvale Coal. 3 On 6 May 2003, the Compensation Court of New South Wales ('the Compensation Court') made consent orders in accordance with terms of settlement filed by the parties. The settlement related to proceedings brought by Mr Speirs in 2001 against Nova Coal Pty Ltd (Western Main Colliery) in relation to injuries allegedly sustained between 1982 and 1994, Springvale Coal with respect to injuries allegedly sustained on and after 1995 and Ivanhoe Coal Pty Ltd with respect to injuries allegedly sustained between 1975 and 1978. The short minutes of order before the Court indicate that the settlement was confined to injuries sustained by Mr Speirs during periods of employment with Nova Coal and Ivanhoe Coal. No orders of compensation against Springvale Coal were or have been made in favour of Mr Speirs. 4 Over time, the condition of Mr Speirs' knees progressively deteriorated to the extent that in early September 2007 bilateral knee replacement was recommended by treating orthopaedic specialist Dr Warwick Bruce. Right knee replacement occurred in October 2007 and left knee replacement in April 2008. Again, he was compensated by CMI for lost time and operative treatment. 5 In 2008, Mr Speirs was advised by Springvale Coal that, due to his inability to perform the inherent requirements of his position, his employment was terminated with effect from 11 July 2008. 6 By letter of 28 January 2009, Mr Speirs applied to Springvale Coal for reinstatement to his former position of Longwall Production Superintendent. His application was made pursuant to s 241 of the Workers Compensation Act1987 ('the 1987 Act') and was supported by a prerequisite certificate given by Dr M Roebuck, his treating general practitioner, to the effect that he was fit for employment in his former position. 7 By letter of 3 February 2009, Springvale Coal refused the application on the basis that it was not causally responsible for the knee injuries suffered by Mr Speirs and, therefore, in turn, Mr Speirs was not an injured worker within the meaning of s 240 of the 1987 Act and so not entitled to seek reinstatement. 8 Following Springvale Coal's refusal to reinstate, Mr Speirs commenced proceedings before the Industrial Relations Commission ('the Commission') on 12 February 2009 which culminated in the impugned decision published by McKenna C on 25 September 2009: Construction, Forestry, Mining and Energy Union, New South Wales (on behalf of Ross Speirs) v Springvale Coal Pty Ltd [2009] NSWIRComm 1074.

[13]

10 There were ancillary questions raised in the event that the primary question was answered in the affirmative, such as whether the bilateral knee replacements carried out by Dr Bruce were attributable to any compensable injury and whether, having regard to the physical requirements of the Longwall Production Superintendent's position, Mr Speirs was fit for such employment as he claimed to be. 11 In coming to her conclusion, McKenna C made the following observations at [14] to [25] of the decision: Mr Speirs has had a long history of knee-related injuries, starting, it seems, with a football injury in 1970, when he had a left-knee meniscectomy. So far as work-related injuries are concerned, Mr Speirs relevantly sustained two injuries of sufficient seriousness to require further procedures for his left knee. In 1975, Mr Speirs injured his left knee while working at the Ivanhoe Colliery and had a left-knee meniscectomy. In 1992, while working at the Western Main Colliery, Mr Speirs again injured his left knee and had an arthroscopic debridement. As for Mr Speirs' right knee, the initial injury occurred in 1978, when he was working at the Ivanhoe Colliery. As a result, Mr Speirs had a right-knee meniscectomy. In 1995, Mr Speirs began working at the Springvale Colliery. There was evidence of two knee-related injuries arising during Mr Speirs' period of employment with Springvale. On 22 August 2000, Mr Speirs completed a form titled "Claim for compensation by injured workers to be given to employer" concerning the injury. In the claim form, Mr Speirs described the injury from the prior day as a "twisted left knee", and noted he had previously injured this knee when working at the Western Main Colliery. Mr Speirs did not lose any time from work as a result of this injury and worked some six hours overtime that day in addition to his normal shift. CMI did not register any workers' compensation liability against Springvale for this injury. As to the injury on 23 October 2002, Mr Speirs noted in the claim form he had suffered a "twisted knee", and that the injury to his right knee was a "reoccurrence". Again, Mr Speirs did not lose any time from work on the day of the incident and worked some four hours overtime. Apparently, that claim form was sent erroneously to CMI in circumstances where Mr Speirs had not submitted a WorkCover certificate. CMI has confirmed liability was not accepted for the claim submitted by Mr Speirs regarding an incident on 23 October 2002. Although CMI has not accepted any workers' compensation claims against Springvale for knee-related injuries, CMI has accepted claims concerning various other injuries suffered by Mr Speirs while working at the Springvale Colliery. Craig Gillard, Group Industrial Relations Manager, who is responsible for matters associated with workers' compensation for Springvale, gave evidence of the following registered workers' compensation claims by CMI against Springvale regarding Mr Speirs: (a) 16 January 1996 - in relation to a lacerated left finger - no claim cost; (b) 30 October 1996 - in relation to a strained left lower leg - an amount of $34.50 was provided by CMI; (c) 21 March 1997 - in relation to strained left fingers - an amount of $50 was provided by CMI; (d) 31 December 1998 - in relation to bruising to the right elbow - an amount of $75.12 was provided by CMI; (e) 30 July 1999 - in relation to an industrial deafness claim - an amount of $10,379.86 was provided by CMI; (f) 13 July 2001 - in relation to a laceration left hand an amount of $8,771 was provided by CMI; (g) 23 October 2002 - in relation to a strained right knee - no claim cost; and (h) 24 July 2003 - in relation to bruising of the hand - an amount of $60 medical was provided by CMI. Mr Speirs received workers' compensation benefits from 27 August 2002 for knee-related treatments, at the time he was employed at the Springvale Colliery, but, as Mr Warren's submissions noted, CMI did not process those claims against Springvale. Moreover, although proceedings were instituted in the Compensation Court in 2003 naming Springvale as a respondent, among Mr Speirs' other former employers, the short minutes of order/terms of settlement referred only to injuries occurring before Mr Speirs began working for Springvale. If the Commission were to consider only the history of claims processed by CMI in relation to Mr Speirs' knee-related injuries, I think the application would fail for want of jurisdiction in as much as there is no evidence CMI accepted a workers' compensation claim against Springvale with respect to any knee-related injuries - and it was the knee injuries/knee replacement surgery which led to the dismissal. Mr Slevin advocated a broader approach to the question of Mr Speirs' condition, adverting to the expansive definition of "injury" in s 4 of the Workers Compensation Act and the Court of Appeal's comments in Strasburger . Against the background of those submissions, I note aspects of the medical evidence indicated Mr Speirs' employment at the Springvale Colliery had contributed to his eventual need for knee replacement surgery, for example: - WorkCover certificates dated 29 August 2007 (Dr Mark Roebuck, general physician) and 3 September 2007 (Professor Warwick Bruce, orthopaedic surgeon), where the doctors had ticked the boxes confirming their opinions that "the worker's employment is a substantial contributing factor to this injury" (ie the need for knee replacement surgery); and - a report by Professor Bruce dated 19 February 2008, giving a diagnosis of "severe osteoarthritis of both knees", which included the following opinion under the heading "Liability": In relation to the history given to me by the patient and the mechanisms of trauma, the predominant reason for his arthritis in the left knee is the loss of both menisci. However, the osteoarthritis has been substantially aggravated or accelerated by the nature and conditions of his employment both with Western Main Colliery and Springvale Colliery and injuries as a coal miner. As far as the right knee is concerned, the injury in 1975 is the predominant cause of the arthritis but again the condition has been substantially aggravated and exacerbated by the nature and conditions of his employment with Western Main Colliery and Springvale Colliery. Hence, there is at least some evidence, particularly Professor Bruce's report dated 19 February 2008, that the condition of Mr Speirs' knees deteriorated due to his employment at the Springvale Colliery (albeit there were other likely contributing causes to the deterioration, such as Mr Speirs' weight - which was noted in one report as being around 118kg). As against that, the fact remains there is no evidence of Mr Speirs having made any successful knee injury-related workers' compensation claim against Springvale - and, I think, this remains the principal threshold impediment to the CFMEU's application on Mr Speirs' behalf in these proceedings. If Mr Speirs' workers' compensation lawyers had, for example, sought successfully to apportion to Springvale some of the workers' compensation liability for knee injuries before the Compensation Court in 2003 (the proceedings post-dated the knee injuries in 2000 and 2002), or CMI had itself at any time apportioned liability between Springvale and Mr Speirs' former employers, based on the nature of the claims submitted and the medical advice on which the workers' compensation claims were assessed, this application would have a different complexion. I have also given consideration to the possibility CMI may, in effect, have mis-processed claims with respect to Mr Speirs' knee injuries on 21 August 2000 and 23 October 2002, for example: (a) that the injury on 21 August 2000 should have been treated by CMI as a compensable claim against Springvale, rather than against former employers' workers' compensation insurance arrangements; and (b) that the claim concerning the incident on 23 October 2002 properly should have been accepted by CMI and registered against Springvale's workers' compensation insurance policy. Even if that were the case, the evidence as to the nature of those two incidents at the Springvale Colliery would not lead me to a conclusion the injuries would have, without more, contributed, aggravated, accelerated, exacerbated or caused a deterioration, in the sense considered in s 4 of the Workers Compensation Act , to an extent of significance such as to necessitate double knee replacements several years later. That is, even if CMI mis-processed the paperwork concerning the incidents on 21 August 2000 and 23 October 2002, those incidents were described as involving twists to the knees. Mr Speirs lost no working time on the day of either of those incidents, and also worked 4-6 hours' overtime, albeit he did subsequently receive medical treatment. Whether taking the 2000 incident or the 2002 incident into account, several years elapsed before Mr Speirs was advised to undergo knee replacement surgery. All things considered, I prefer the submissions advanced on behalf of Springvale in relation to the threshold issue and, as such, propose to dismiss the application. Mr Warren submitted, without demur from Mr Slevin, that if the application were to be dismissed because Springvale's submissions on the threshold issue were accepted, there would be no cause to give further consideration to the question of whether the CFMEU had established a case favouring the making of the orders it proposed. I accept this is an appropriate course.

[15]

12 The application for leave to appeal and appeal sought to challenge the whole of the decision of McKenna C and it identified a number of questions of law as being raised on appeal. 13 The grounds of appeal relied upon, which go to the issue of leave to appeal as well as the appeal proper, were as follows: 1. The Commissioner failed to exercise the jurisdiction of the Commission under Pt 8 of the 1987 Act; 2. The Commissioner failed to find that the respondent was an employer as that term is defined in subsection 240(3) of the 1987 Act; 3. The Commissioner failed to properly apply the definition of injury in s 4 of the 1987 Act which includes the aggravation, acceleration, exacerbation or deterioration of any disease; 4. The Commissioner failed to give weight, or sufficient weight, to the medical evidence that the appellant's employment with the respondent was a contributing factor to the injuries to his knees in that the employment aggravated and exacerbated the injuries; 5. The Commissioner failed to apply the reasoning of the New South Wales Court of Appeal in Strasburger Enterprises Pty Ltd trading as Quix Food Stores v Serna [2008] NSWCA 354 (' Strasburger ') that an injury need not be connected with a specific incident or incidents; 6. The Commissioner mistook the evidence in finding that the appellant had not made any successful knee injury related workers' compensation claims against the respondent; 7. The Commissioner had regard to the irrelevant consideration that the respondent's workers' compensation insurer had not at any time apportioned liability between the respondent and the appellant's former employers for his knee injuries; 8. The Commissioner mistook the evidence in finding that the appellant's workers' compensation solicitor had failed to successfully apportion to the respondent some of the workers' compensation liability for knee injuries before the Compensation Court in 2003; 9. The Commissioner mistook the evidence in finding that the two incidents in 2000 and 2003, during employment with the respondent, did not contribute to, aggravate, accelerate, exacerbate or cause a deterioration, in the sense considered in s 4 of the 1987 Act, to the appellant's injuries; 10. The Commissioner had regard to an irrelevant consideration concerning the ability of people who have had a pre-existing workers' compensation claims to find alternative employment with a new employer.

[16]

Additional matters raised at appeal hearing 14 In the course of argument on the first hearing day, the Full Bench raised with the parties the question whether s 105 of the Workplace Injury Management and Workers Compensation Act 1998 ('the 1998 Act') deprived the Commission of jurisdiction (in the absence of entitlement to receive compensation from the respondent) to hear the application brought at first instance by the appellant. 15 The parties adopted opposing contentions as to that issue with the respondent submitting that s 105(4A) of the 1998 Act deprived the Commission of jurisdiction to determine the application brought by Mr Speirs under Pt 8 of the 1987 Act. We shall discuss more fully the basis for the respondent's submission in that respect later in this decision, but for present purposes it is sufficient to note that the respondent contended (in the context of s 105(4A)), in essence, that, in order to entertain Mr Speir's application, the Commission would effectively be required first to determine whether he had an entitlement to compensation vis-a-vis Springvale Coal. Such a determination, it was contended, was outside of the Commission's jurisdiction and so a determination could only be made by the District Court by virtue of the exclusive jurisdiction vested in that Court under sub-s 105(4A) of the 1998 Act or alternatively by virtue of the exclusive jurisdiction vested in the Compensation Court prior to the repeal of the Compensation Court Act 1984 in January 2004. 16 Thus described, that submission does not sit entirely comfortably with the jurisdictional contentions developed by the respondent before the Commission at first instance and in response to the appellant's submissions in support of the appeal (as filed under directions given for preparation of the appeal) as to why the Commission lacked power under Pt 8 of the 1987 Act (although, plainly, the adjustment in the respondent's position arose in consequence of the Commission's invitation to address the issue arising from s 105 of the 1998 Act). 17 At first instance and in its original submissions filed in the appeal, the respondent did not argue that the omission of Springvale Coal from consent orders for compensation made by the Compensation Court in favour of Mr Speirs (against other coal companies who were his previous employers) were in and of themselves conclusive of the question of jurisdiction. Rather, it was argued that the absence of a determination of Springvale Coal's liability to pay compensation to Mr Speirs, notwithstanding countervailing medical evidence, must result in a conclusion that the Commission lacked power to make reinstatement orders under s 243 of the 1987 Act. The earlier contest between the parties (which is referred to in the Commissioner's decision) was as to whether an entitlement to compensation subsisted having regard to the medical and other evidence (including, but not limited to, the settlement of Mr Spiers' workers' compensation application) in order to establish the existence or otherwise of a relevant "injury" for the purposes of ss 240(2)- (3).

[24]

28 The statutory scheme for workers' compensation is to be found both in the 1987 Act and the counterpart 1998 Act. 29 Section 2A of the 1987 Act provides that that Act shall form part of the 1998 Act. Section 2A(2) provides as follows: This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act. 30 The reference to "this Act" has significance when consideration is given to s 105 of the 1998 Act which we shall shortly discuss. The counterpart to s 2A(2) is s 60(2) of the 1998 Act which is in the following terms: The 1987 Act is, by the operation of section 2A of that Act, to be construed as if it formed part of this Act. 31 Section 4 of the 1998 Act contains the following relevant definitions: claim means a claim for compensation or work injury damages that a person has made or is entitled to make. coal miner matter means any matter arising under the Workers Compensation Acts concerning a claim in respect of a worker employed in or about a mine. Commission means the Workers Compensation Commission of New South Wales established by this Act. compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts. Compensation Court means the Compensation Court of New South Wales constituted under the Compensation Court Act 1984 . employer includes: (a) the legal personal representative of a deceased employer, or (b) a government employer, or (c) a former employer. Without limiting the meaning of the expression, an employer can be an individual, a corporation, a firm, an unincorporated body of persons, a government agency or the Crown. injury: (a) means a personal injury arising out of or in the course of employment, and (b) includes: (i) a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, but (c) does not include (except in the case of a worker employed in or about a mine): (i) a dust disease, or (ii) the aggravation, acceleration, exacerbation or deterioration of a dust disease. occupational health and safety legislation means: (a) the Occupational Health and Safety Act 2000 and the instruments under that Act, or (b) the associated occupational health and safety legislation within the meaning of that Act, or (c) any other Act or instrument (or part) prescribed by the regulations.

[33]

47 We observe that there are certain restrictions on bringing court proceedings for compensation in Div 5 of Pt 2 of Ch 4 of the 1998 Act. However, Div 6 provides for proceedings before the Workers Compensation Commission, Compensation Court and District Court. Section 105 is in the following terms: 105 (1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act. (2) The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act. (3) The Commission does not have jurisdiction in respect of matters that the Compensation Court or (after the repeal of the Compensation Court Act 1984 ) the District Court has jurisdiction to examine, hear and determine. (4) Subject to this Act and the Compensation Court Act 1984 , the Compensation Court has exclusive jurisdiction to examine, hear and determine all existing claim matters except matters arising under Part 5 of the 1987 Act. (4A) After the repeal of the Compensation Court Act 1984 , the District Court has exclusive jurisdiction to examine, hear and determine all coal miner matters (except matters arising under Part 5 of the 1987 Act). (5) Despite section 17 (4) of the Compensation Court Act 1984 , the Compensation Court does not have jurisdiction to reconsider a matter, or to rescind, alter or amend any decision previously made or given by the Court in relation to a matter, once the matter has become a new claim matter. (6) For the purposes of giving effect to subsections (4) and (4A), references in this Act to the Commission are to be read as references: (a) to the Compensation Court, to the extent that the reference relates to a matter that the Compensation Court has jurisdiction to examine, hear and determine, or (b) to the District Court, to the extent that the reference relates to a matter that the District Court has jurisdiction to examine, hear and determine. LEAVE TO APPEAL

[55]

55 We consider that the Commissioner's determination in this regard was, in all the circumstances, inconsistent with the expert medical evidence before her and, as such, was a conclusion not reasonably open to her on the evidence. 56 We consider that her reliance in reaching her conclusion upon the fact "that there is no evidence of Mr Speirs having made any successful knee injury-related workers' compensation claim against Springvale" was not sufficient to displace or derogate from the unchallenged medical evidence inculpating Springvale Coal and in this regard we agree with the submissions made on the appellant's behalf both at first instance and before the Full Bench. 57 Further, it is not to the point, as the Commissioner plainly thought it was, that there may have been "other likely contributing causes to the deterioration (of Mr Speirs' knees) such as Mr Speirs' weight". This is so for two reasons: first, because the definition of "injury" contained in the 1987 Act does not require employment to be the sole contributing factor to such deterioration but merely a contributing factor (see s 4(b)(ii)) and, secondly, because s 240(3) the 1987 Act contemplates injury arising either wholly or partly out of or in the course of employment. 58 Finally, the Commissioner's assumption, by which she was obviously influenced (see [25] of the impugned decision), that approaching the matter in the way she was invited to by the appellant would be detrimental to injured workers generally in their quest for post-injury employment, was both sweeping and unverifiable and had no basis in the evidence before her. As such, it should have had no bearing upon the threshold question posed for determination, namely, whether there was a compensable injury suffered by Mr Speirs arising (wholly or partly) out of or in the course of employment with Springvale Coal such as to meet the jurisdictional requirements of Pt 8 of the 1987 Act, as found in ss 240(2) and (3). 59 Having said that, the question then arises, and we will now deal with it, whether the Commissioner was precluded, by the operation of s 105 of the 1998 Act, from determining that question. This question ultimately translates to a question of whether the Commissioner's decision may be confirmed upon a different basis than the reasons given in her decision.

[77]

"injured employee" means an employee who receives an injury being - (a) an injury within the meaning of the 1987 Act; ... (d) At this time, s 107 of the 1987 Act provided: 107(1) The commissioners have (subject to this Act and the Compensation Court Act 1984) exclusive jurisdiction to examine, hear and determine all matters arising under this Act (e) The 1940 IA Act incorporated the definition of "injury" under the 1987 Act, which is a different test from the current test which is whether a person is entitled to receive compensation under the 1987 Act. That being so, the basis upon which Fisher P in Marro v Real Estate Institute (NSW) (1988) 27 IR 27 ('Marro') considered the issue of whether a worker was an injured employee is distinguishable from the current case. Moreover, it appears that the issue of the exclusive jurisdiction of the Workers Compensation Court was not considered in that case. (f) In 2006, in response to the Work Choices Act, the injured worker reinstatement provisions were removed from the 1996 IR Act and inserted in Pt 8 of the 1987 Act by the Industrial Relations Further Amendment Act 2006. The Second Reading Speech for the Industrial Relations Further Amendment Act 2006 provides: The Federal Government has claimed that occupational health and safety matters and workers compensation matters will continue to be regulated by the States and Territories. To ensure that certain occupational health and safety matters, and workers compensation matters continue to be appropriately regulated by New South Wales the bill adopts and transfers protections for persons raising occupational health and safety concerns, and injured workers from the Industrial Relations Act 1996 to the Occupational Health and Safety Act 2000 and the Workers Compensation Act 1987 respectively. ... The injured worker protections contained in the bill are an integral part of the workers compensation scheme to get injured workers back to work and to ensure employers are engaged in this process. The duties of employers to find injured workers suitable duties, to commence workplace rehabilitation programs, and develop return-to-work programs would become meaningless if an employer was simply able to dismiss the worker to avoid these obligations. The protections for injured workers in the bill are an essential element of the workers compensation scheme in this State. It is appropriate that the bill provides for these protections to sit appropriately within State workers compensation legislation. These initiatives will guarantee that these important remedial provisions live on, providing reassurance to employers and their workers regarding their rights and responsibilities, given the current climate of confusion. (g) Accordingly, prior to this amendment the reinstatement of injured worker provisions were located in the 1996 IR Act. However, s 105 still gave exclusive jurisdiction to the Workers Compensation Commission (and District Court for coal miner matters from the passage of the Compensation Court Repeal Act 2002 ('the 2002 Amendment Act')) in relation to any examination, hearing or determination of a claim for workers' compensation. This precluded the Commission then, as it does now, from making a finding as to whether an employee had an entitlement to workers' compensation. (h) The respondent noted that there is no comment or pronouncement in the Second Reading Speech to the 2006 legislative variations as to the effect of retaining the opening words to section 105(1), i.e. "Subject to this Act". It is observed that no such qualification is found in s 105(4A) of the 1987 Act . The most likely position, with respect to this issue, is that Parliament either intended to retain the exclusive jurisdiction of the District Court with respect to coal miner matters, hence, the different wording between ss 105(1) and 105(4A), or, in the alternative, the ambiguity created by s 105(1) was an unintended consequence of the variation. If this latter interpretation is preferred, then the unintended consequences of the ambiguity then created ought not be given effect.

[83]

The provisions of s 105(4A) must be construed by reference to the context in which they are used, irrespective of the existence of any ambiguity in the provision: Caterpillar at [86]. It is clear from the opening words of s 105(4A): "After the repeal of the Compensation Court Act 1984", and the provisions of s 105(3), that s 105(4A) provides jurisdiction to the District Court under the 1987 Act for compensation and work injury matters for coal miners, at least in part, in substitution for the former jurisdiction held by the Compensation Court. The jurisdiction of the Compensation Court (which extended to coal miner matters prior to its abolition) was regulated by the condition "Subject to this Act" (see s 105(4)). There is nothing on the face of the provisions of s 105, when considered as a whole, which would suggest the legislature intended to confer jurisdiction on a different basis to the District Court than previously possessed by the Compensation Court, when the jurisdiction of the Compensation Court was transferred to the District Court.
The submission by the respondent that the words "Subject to this Act" appear in s 105(1) because s 105(1) otherwise gives plenary jurisdiction to the Workers Compensation Commission to examine, hear and determine matters relating to workers' compensation injuries, may be accepted, as that is clearly one of the purposes of the phrase when used in that sub-section. However, this conclusion does not sustain the further contention advanced by the respondent that this consideration explains why s 105(4A) does not have and should not be read as having the phrase "Subject to this Act" within it. This is because the respondent's contention overlooks that s 105(4A) was introduced to vest the jurisdiction of the Compensation Court with respect to coal miner matters, after that Court's abolition, in the District Court in circumstances when that very same limitation applied to the jurisdiction of the Compensation Court both at the inception of the 1998 Act (see s 105 of the Act as it was then enacted) and after the amendment to that Act in 2001, which led to the establishment of the Workers Compensation Commission with the plenary power to which the respondent refers: (see the Workers Compensation Legislation Amendment Act 2001 per s 105(1); also see the historical section of this decision which follows). In the context of the Compensation Court, the phrase "Subject to this Act" restrained the jurisdiction of both the Workers Compensation Commission and the Compensation Court with respect to the vesting of jurisdiction in s 105 and other provisions of the 1987 and 1998 Acts.
This conclusion may be otherwise if there was some aspect of the 1987 and 1998 Acts which relevantly distinguished coal miner matters in a way which might explain a different approach being adopted with respect to the adjudication of workers' compensation matters for that industry by courts or tribunals. However, no such distinction is evident in either Act (there are some differences in the compensatory scheme such as found in s 7A and Pt 18 of Sch 6 of the 1987 Act, but none indicate that the legislature intended that the resolution of disputes over compensation in coal miner matters would be resolved on some different basis, jurisdictional or otherwise, save as to the court actually designated to hear the matters). Thus, from a purposive approach to construction, there is nothing evident in the respective pieces of workers' compensation legislation, when taken as a whole, as would warrant a conclusion that the legislation intended a different construct for dispute resolution for coal miner matters than had previously operated with respect to the Compensation Court (although, plainly, the actual content of compensation rights will have changed from time to time). This approach is to be preferred to a strictly literal reading of s 105(4A) because the alternative interpretation more closely conforms to the legislative intent discoverable from the whole of the provisions of the statutes in question: Cooper-Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320. The interpretation of s 105(4A) we have adopted is, in our view, the "true construction" of the provision and one which is, as we have earlier noted, consistent with reading the words actually used in the sub-section in "their total context": see R v Young (1999) 46 NSWLR 681 at [14] to [16]. In the broadest sense, we consider the alternative approach advocated by the respondent would defeat the purposes of the Act by resulting in the jurisdiction of the District Court to hear disputes over workers' compensation claims in coal miner matters being different to that of the Workers Compensation Commission in its general jurisdiction over other areas of employment (its plenary jurisdiction): see Jones v Wrontham Settled Parks Estates [1980] AC 74 at 105; Young at [10] and [16] to [22] and Mills v Meeking (1990) 169 CLR 214 at 243-244.
We would add to this statement that the words "After the repeal of the Compensation Court Act 1984" in s 105(4A) should be read co-extensively with the provisions of s 105(4) such that the legislative should be taken as, in effect, carrying over the jurisdiction of the Compensation Court and the provisions governing it to the District Court with respect to coal miners.
This construction is, in our view, consistent with the legislative history of the 1987 Act (and its predecessors) and the 1998 Act with respect to the establishment of "exclusive jurisdictions" for courts and tribunals to resolve claims for workers' compensation. We shall describe the relevant aspects of this history below. This shall serve the purpose of addressing both the immediate question as to whether s 105(4A) should be construed as being restrained by the phrase "Subject to this Act" and the issues then following as to ultimate questions to be resolved in relation to s 105. We would wish to emphasise that our consideration of the legislative history (both of s 105 and our later review of the history of Pt 8 of the 1987 Act) is designed to shed light on the intention of the legislature having regard to the ordinary meaning of the words used in the provisions under consideration. For the most part, that analysis serves to reinforce the construction of the statutes based on the words used (in context): Federal Commissioner of Taxation v Commonwealth Aluminium Corporation Ltd (1980) 143 CLR 646 at 659 and, in cases of ambiguity, it goes to a purposive construction. The approach we have adopted is also consistent with the views expressed by Lord Wilberforce in Lilley v Public Trustee of the Dominion of New Zealand (1981) 2 WLR 661 at 665, as follows: ...There can be no doubt that consideration of these successive statutes forms a legitimate and indeed indispensable guide to the legislators' intention. Legislative history of s 105 and related provisions - Jurisdiction of Courts and Tribunals

[85]

74 Section 37(4) provided an appeal on points of law to the Supreme Court of New South Wales. 75 The 1926 Act and successor laws governing workers' compensation each provided that workers who received an injury at work would receive compensation (see s 7(1)), and the pursuit of such rights would be initiated by a claim for compensation (see s 53(1)). 76 The 1926 Act was further amended by the 1984 Amendment Act. By that amendment Act, the jurisdiction to resolve compensation claims was vested in the Compensation Court of New South Wales constituted under the Compensation Court Act 1984. The provision of the 1926 Act giving jurisdiction to that Court was s 53G(1), which was in the following terms: 53G(1) Subject to Part IV of the Compensation Court Act 1984 , the Court shall have exclusive jurisdiction to examine into, hear and determine all matters and questions arising under this Act. 77 Part IV of the Compensation Court Act 1984 concerned appeals from commissioners of that court and appeals from the Compensation Court to the Supreme Court. 78 The appellant contended that the object of the 1984 Amendment Act was to replace the performance of judicial functions of the Workers Compensation Commission by the Compensation Court. This notion was, no doubt, derived from the Second Reading Speech of the Attorney General, the Honourable Paul Landa, given in the Legislative Assembly on 2 May 1984. However, what the Minister actually conveyed was: The State Compensation Court will be established to take over the judicial functions of the commission... The incorporation of a lower tier of commissioners within the Compensation Court structure will open the way for the reintroduction of pre-hearing conferences... The commissioners will be responsible also for a limited jurisdiction which will relieve the judges of intrinsically less difficult, but nevertheless time consuming, matters ... 79 The "commissioners" described in the Second Reading Speech were, in fact, commissioners of the court (see ss 3, 22 and 26(1) of the Compensation Court Act 1984 and s 6 of the 1926 Act, as amended). The commissioners were given limited jurisdiction to deal with aspects of the court's jurisdiction (see s 26 and Sch 3 of the 1926 Act inserted by the 1984 Amendment Act and, later, the incorporation of s 42K of the 1926 Act). We do not accept, therefore, the submission advanced by the appellant that the provision for exclusive jurisdiction had as its purpose the vesting of jurisdiction in the court rather than the commission. The opening words of s 53G(1) of the 1926 Act only had the effect of providing for an appeal from the Compensation Court. It is not entirely clear why the expression "exclusive jurisdiction" was used, except to emulate the provisions of the former s 36 of the 1926 Act which provided that the court was responsible for determining "all" compensation matters under the 1926 Act (see, in that respect, ss 7 and 9 of that Act) and, by that means, delineate and designate an exclusive field for the determination of disputes over workers' compensation claims (subject to rights of appeal). There was no need to delineate between courts sharing that role, as commissioners formed part of the court (although the phrase "Subject to this Act" may have also related to the limited jurisdiction afforded commissioners under the Act).

[88]

83 The Second Reading Speech for the 1987 Act, given in the Legislative Assembly by the Honourable Pat Hills, Minister for Industrial Relations and Minister for Employment, on 14 May 1987 said (at 12211): In keeping with the emphasis on rehabilitation, and stressing the responsibility of all the parties involved in the worker's compensation area, a prohibition will be placed on the dismissal of a totally incapacitated worker within the period of total incapacity, up to a maximum period of six months from the date of injury, unless it is certified medically that the worker is permanently unable to resume duties in his or her former position. Workers whose employment is terminated outside that period of total incapacity and who are certified fit for their previous work will have a right to apply to the Industrial Commission for reinstatement. In the introduction of an effective occupational, safety, rehabilitation, and compensation system, it is just as important to put in place a system of dispute resolution that resolves disputes with a minimum of delays, a minimum of legalism, and a minimum of costs. In accordance with that policy, workers' compensation commissioners are to be given wider jurisdiction. Under the legislation the senior commissioner will be able to refer cases to the Compensation Court. This will allow judges to hear complex and important matters. The present system of appeal from a commissioner to a judge will remain. The power of individual commissioners to refer questions of law to a judge will be extended by the use of review officers, who will assist in the disposal of disputes at an early stage without recourse to a formal hearing process. 84 Like predecessor workers' compensation statutes, the 1987 Act provided that employers would have a liability for injuries received by workers (see s 7(1) and that rights for compensation may be pursued by the making of claims (see Pt 4). An injury was defined in s 4 relevantly, as follows: In this Act - "injury" - (a) means personal injury arising out of or in the course of employment; (b) includes - (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration; and ... The Workers Compensation (Compensation Court) Amendment Act 1989 85 These jurisdictional arrangements were altered by the Workers Compensation (Compensation Court) Amendment Act 1989 Act ('the 1989 Amendment Act'). The 1989 Amendment Act provided that the Compensation Court would have exclusive jurisdiction in workers' compensation matters and repealed provisions for the appointment and functions of commissioners under the former Act. Section 107 of the 1987 Act thereafter provided: Subject to this Act and the Compensation Act 1984 , the Compensation Court has exclusive jurisdiction to examine, hear and determine all matters arising under this Act (except Part 4). 86 Nonetheless, commissioners retained functions as commissioners of the court which functions were specified in the 1989 Amendment Act. Again, a single court was charged with the resolution of workers' compensation claims with functions being distributed between judges and commissioners in that body. The Compensation Court retained an "exclusive jurisdiction".

[90]

92 Section 48 of the 1998 Act was enacted (in its current form) as follows:: An injured worker must make all reasonable efforts to return to work with his or her pre-injury employer (that is, the employer liable to pay compensation to the worker) as soon as possible, having regard to the nature of the injury. 93 Similarly section 49(1) of the 1998 Act provided: If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker. 94 Section 60(2) of the 1998 Act was enacted in its current form at this time. In the result, the words "this Act" appearing in s 105 meant that s 107 had application to both the 1987 and 1998 Acts. 95 This Act again made provision for the making of claims for compensation (see, for example, ss 65 and 66). Workers Compensation Legislation Amendment Act 2001 96 The Workers Compensation Legislation Amendment Bill 2001 ('the First 2001 Amendment Act') stratified the compensation provisions between existing and new claims. The Act established a Workers Compensation Commission which comprised amongst other adjudicators who were "Presidential members" or "arbitrators". The Workers Compensation Commission was to provide dispute resolution for disputes about workers' compensation. The Act provided that appeals may be brought from an arbitrator to a Presidential member of the Workers Compensation Commission (see s 352). Appeals lay from the Workers Compensation Commission to the New South Wales Court of Appeal on questions of law (see s 353). The Compensation Court only retained functions with respect to existing claims as opposed to the new claims procedure in Ch 7 of the 1998 Act. 97 It is in this context that the jurisdictional provisions here under consideration may be viewed. Section 105 of the 1998 Act takes a similar form to the provisions under consideration in the present matter and was in the following terms: 105 Jurisdiction of Commission and Compensation Court (1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act in respect of any new claim. (2) The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the assessment of a work injury damages claim under Part 6 of Chapter 7. (3) Subject to this Act and the Compensation Court Act 1984 , the Compensation Court has exclusive jurisdiction to examine, hear and determine all matters arising under this Act (except Part 5 of the 1987 Act) in respect of any existing claim. (4) References in this Act to the Commission are, for the purposes of giving effect to subsection (3), to be read as references to the Compensation Court to the extent that the reference is in respect of an existing claim. 98 In our view, the legislature employed the language, then familiar in workers' compensation legislation, to delineate the then bifurcated jurisdiction between the Workers Compensation Commission and the Compensation Court to resolve disputes over workers' compensation claims. Hence, the words "Subject to this Act" are employed in s 105(3) to delineate the Compensation Court's jurisdiction under both the 1987 and 1998 Act from the Worker Compensation Commission. 99 The First 2001 Amendment Act continued the historical pattern by which actions for compensation were brought by claims (see s 289(1)) and, as we have noted, distinguished between new and existing claims (see Ch 7 and the definitions appearing in s 4(1)). However, the Amendment Act introduced the notion of a "claim" as an element defining the jurisdiction of the Commission (see s 105 appearing above). Further, for the first time, the expression "claim" was defined (in s 4(i)). When read with the further definition of "claimant", a "claim" was defined with similar width to that found in the current form of the 1998 Act (although the definition of the word "claim" itself was only later expanded). "Claim" and "claimant" were defined in s 4(1) as follows: claim means a claim for compensation or work injury damages; claimant means a person who makes or is entitled to make a claim.

[91]

Workers Compensation Legislation Further Amendment Act 2001 100 The Workers Compensation Legislation Further Amendment Act 2001 ('the Further 2001 Amendment Act') made a number of variations to the rights of injured workers. Section 105 was amended by the Further 2001 Amendment Act but in a manner which appears to reinforce the distinction between the Workers Compensation Commission and the residual jurisdiction of the Compensation Court. Thus, sub-s 105(1) provides that the Commission has exclusive jurisdiction "with respect to all matters arising under this Act and the 1987 Act". Section 105(3) was a new provision and sub-s 105(4) emphasises the jurisdiction of the Compensation Court "for all existing claim matters". The provisions are in virtually identical terms to the current form of s 105 save for those later amendments to sub-s 105(3) and (6) and the addition of sub-s 105(4A) which relate to the abolition of the Compensation Court and the provision of jurisdiction to coal miner matters. 101 Section 105, as introduced by the Further 2001 Amendment Act, was in the following terms: 105 Jurisdiction of Commission and Compensation Court (1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act. (2) The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act. (3) The Commission does not have jurisdiction in respect of matters that the Compensation Court has jurisdiction to examine, hear and determine. (4) Subject to this Act and the Compensation Court Act 1984 , the Compensation Court has exclusive jurisdiction to examine, hear and determine all existing claim matters except matters arising under Part 5 of the 1987 Act. (5) Despite s 17(4) of the Compensation Court Act 1984 , the Compensation Court does not have jurisdiction to reconsider a matter, or to rescind, alter or amend any decision previously made or given by the Court in relation to a matter, once the matter has become a new claim matter. (6) References in this Act to the Commission are, for the purposes of giving effect to subsection (4), to be read as references to the Compensation Court to the extent that the reference is in respect of an existing claim matter. 102 The Further 2001 Amendment Act introduced the definition of a "claim" found in the current form of s 4(1) of the 1998 Act.

[93]

106 The Second Reading Speech for the 2002 Amendment Act said (Mr Debus, Legislative Assembly, 28 May 2002): If there are pending matters in the Compensation Court on the repeal date, the bill provides that any pending workers compensation matters - other than those relating to coalminers - will be transferred to the Workers Compensation Commission, where they will be dealt with in accordance with the new procedures applicable in the commission. However, a regulation-making power is included to enable alternative arrangements to be made in this regard. Any other pending matters in the court on the repeal date, including compensation matters relating to coal miners, will be transferred to the District Court and dealt with in accordance with currently applicable procedures. The Compensation Court presently has jurisdiction in relation to a number of miscellaneous matters that are not the province of the Workers Compensation Commission. Jurisdiction in relation to all these residual areas, including workers compensation claims for coal miners, will be transferred to the District Court. The position in relation to disputes arising in relation to coalminers has been the subject of discussions between WorkCover, the Minerals Council and the Construction, Forestry, Mining and Energy Union [CFMEU]. There are a number of issues of mutual concern to the CFMEU and the Minerals Council in relation to the provision of funding by coalmines insurance to the District Court; administrative matters relating to the handling of issues within the District Court; and, finally, whether strategies will be put in place to ensure that there is not a loss of expertise in relation to coalmining matters. WorkCover, the Attorney General's Department and the District Court will continue to have discussions with these bodies over the next 18 months to ensure that these concerns are addressed. These discussions will include consideration of alternative options to the transfer of matters to the District Court, although it is recognised that the District Court option will proceed if an alternative option satisfactory to all the parties cannot be agreed upon.

[94]

107 No further changes were made to s 105(4A) or other parts of the 1987 or 1988 Acts after the 2002 Amendment Act as would affect the jurisdiction of the District Court to resolve coal miner matters. It is clear that the legislature was intent to transfer the previous general jurisdiction of the Compensation Court to the Workers Compensation Commission and, because of particular interests of parties in the coal mining industry, to retain a court based jurisdiction in the District Court, but not one materially different (for coal miner matters) than that exercised by the Compensation Court. 108 The expression "exclusive jurisdiction" appears in various provisions vesting jurisdiction in courts and tribunals to resolve disputes over compensation claims from the inception of legislation governing workers' compensation. The expression pre-dates the incorporation of the words "Subject to this Act" as the opening phrase of those provisions. The expression has been used consistently throughout the history of workers' compensation legislation, in each case in conjunction with the phrase "all matters arising" under the successive 1926 and 1987 Acts. Whilst those expressions were uniformly employed to describe the jurisdiction of various courts or tribunals, they do not appear to have been used as an instrument to delineate between such entities with respect to the power to resolve disputes over compensation. Rather, when used in conjunction with the phrase "all matters arising under", the expression "exclusive jurisdiction" has historically, in our view, the function of vesting in those courts or tribunals nominated from time to time, the jurisdiction to resolve disputes or claims over compensation (so far as such rights are conferred under workers' compensation legislation from time to time) to the exclusion of other courts and tribunals. (Court proceedings for work injury damages are dealt with separately before a court of competent jurisdiction: see Pt 6 of Ch 7 of the 1998 Act.) 109 The words "Subject to" when appearing at the opening of those sections vesting such jurisdiction had only the limited function, at earlier stages in the history of workers' compensation legislation, of permitting an exception to the exclusive jurisdiction, such as the provision of an appeal. By the 1987 Act, the expression "Subject to this Act" operated in a similar fashion, albeit one defining the jurisdiction of then commissioners vis-a-vis the Compensation Court. That pattern continued (in different forms, depending on the scheme for vesting jurisdiction over workers' compensation matters) up to the current form of s 105 of the 1998 Act, albeit that the legislature also delineated the powers and functions of courts and tribunals based on temporal factors (corresponding to the introduction of a revised workers' compensation system under Ch 7 of the 1998 Act). The phrase "Subject to the Act" may also be taken to be a reference to other parts of the 1987 and 1998 Acts where the jurisdiction of the particular court or tribunal is restrained or limited with respect to a particular right to workers' compensation or with respect to claims with respect to work injury damages.

[96]

1940 IA Act 112 The provisions for protection of injured employees were first introduced by the 1987 IA Amendment Act. As earlier mentioned, the 1987 Act emerged from cognate bills including the Workers Compensation Bill 1987. Part XV of the 1940 IA Act was entitled "Protection of Injured Employees". That Part provided that the dismissal of "an injured employee" would, in the circumstances specified in s 154B, constitute an offence and an "injured employee" may apply for reinstatement to his or her former position if dismissed in the circumstances described in s 154C. 113 Section 154B was in the following terms: (1) An employer shall not dismiss an injured employee after the commencement of this section solely or principally because the employee is not fit for employment in a position as a result of the injury received, unless - (a) at least 6 months have elapsed since the employee first became unfit for employment; or (b) the employer believes (at the time of dismissal) on the basis of a certificate issued by a legally qualified medical practitioner that the employee will be permanently unfit for employment in the position concerned. Penalty: $10,000. (2) It is a defence to a prosecution under this section if the employer satisfies the court that at the time of dismissal the employee would not undergo a medical examination reasonably required to determine fitness for employment. (3) This section applies even if the employee became unfit for employment before the commencement of this section. 114 Section 154C was expressed thus: (1) If an injured employee is dismissed because he or she is not fit for employment in a position as a result of the injury received, the employee may apply to the employer for reinstatement to his or her former position. (2) An injured employee's former position is - (a) the position from which the employee was dismissed; or (b) if the employee was transferred to a less advantageous position before dismissal, the position which the employee held when he or she became unfit for employment, at the option of the employee. (3) The employee must produce to the employer a certificate given by a legally qualified medical practitioner to the effect that the employee is fit for employment in the former position. (4) This section does not apply to a dismissal which occurred before the commencement of this section. 115 The then Industrial Commission's reinstatement powers were provided in s 154D as follows: (1) In this section - "appropriate tribunal" means - (a) the commission; or (b) a conciliation committee to which is assigned the relevant industry or calling. (2) If an employer refuses or fails under section 154C to reinstate an employee forthwith, the employee may apply to an appropriate tribunal for a reinstatement order. (3) The secretary of an industrial union of which the employee is a member may make the application on behalf of the employee. (4) On such an application, the appropriate tribunal may order the employer to reinstate the employee, in accordance with the terms of the order, if the tribunal is satisfied that the employee is fit for employment in the position concerned. 116 The foundation stone for these obligations or rights was the definition of an "injured employee" in s 154. 117 Section 154 provided as follows: In this Part - "injured employee" means an employee who receives an injury, being: (a) an injury within the meaning of the Workers Compensation Act 1987 ; or (b) a dust disease for which the employee is entitled to receive compensation under the Workers' Compensation Act (Dust Diseases) Act 1942 . 118 The Second Reading Speech for the Industrial Arbitration (Workers Compensation) Amendment Bill 1987 was given on 14 May 1987 (which was also the second reading speech for the Workers Compensation Bill 1987). We have earlier set out part of that speech. We would add the following passages (at 12205 to 12208): ...It has developed because of the increasing diversion of resources, both human and financial, to the litigious nature of dispute settlement rather than to rehabilitation and meeting the ongoing needs of genuinely incapacitated workers... ...Just as importantly, the lump sum orientation of the present workers' compensation system acts as a positive disincentive to rehabilitation, because the overriding emphasis of the present system is to focus on the negative aspects of the victim's injuries and not on how that person can get back to a useful role in society. In stark contrast to the present position, the new system will emphasize prevention of accidents in the first instance, the effective rehabilitation of injured workers, and fair compensation to be provided to workers, regardless of fault... ...As mentioned, occupational health and safety, together with rehabilitation, constitutes a central feature of the reforms. It is now apparent that penalties provided under the Occupational Health and Safety Act and associated legislation should be made more realistic in providing a deterrent to corporations and individuals who fail to observe their responsibilities... ...One area of commonality amongst the parties involved in the workers' compensation field is rehabilitation. Each of the major parties, employers, unions and the professions, recognize that rehabilitation should play a central role in workers' compensation if costs are to be effectively reduced. It is widely recognized that rehabilitation has not been properly emphasised in the New South Wales workers' compensation system... 119 The first application under Part XV of the 1940 IA Act was heard by Fisher J (then President of the Industrial Commission) in Marro. In that case, the Commission heard an application under s 154C of the 1940 IA Act. An issue arose in that case as to whether the applicant's injury arose out of or in the course of employment. The injury had been sustained on a floating restaurant which was the venue for the work Christmas function. Fisher J was satisfied, on the facts of that case, that the injury sustained should be regarded as arising in the course of employment. It should be noted here that this is the only decided case within this jurisdiction on the question of liability to pay compensation and, further, that Fisher J, on the face of the record, was requested by the parties to determine that question as a preliminary matter without any analysis of or challenge in relation to the issues here raised for determination, namely, whether there was jurisdiction to do so. We also agree with the respondent's contention that the provisions of Pt X of the 1940 IA Act were in materially different terms to those found in Pt 7 of the IR Act 1996 or Pt 8 of the 1987 Act, given the difference between the definition of an "injured employee" in s 154 and later definitions of an "injured employee" and "injured worker" under the 1996 IR Act and the 1987 Act. 1991 IR Act 120 The provisions of the 1940 IA Act were, for all intents and purposes, duplicated in the 1991 IR Act. Section 235(1) was as follows: Definitions and application (1) For the purposes of this Part, an "injured employee" is an employee who (a) receives an injury, within the meaning of the Workers Compensation Act 1987 ; or (b) receives and injury (being a dust disease) for which the employee is entitled to receive compensation under the Workers' Compensation (Dust Diseases) Act 1942 . 121 The Explanatory Note for the Industrial Relations Bill 1991 relevantly provides: Part 7 - Protection of Injured Employees Part 7 re-enacts provisions designed to protect the employment of employees injured on the job. An employee who is dismissed from employment on account of such an injury is entitled to be reinstated on demand, if the employee is fit to resume the position. A failure by the employer to accede to this demand may be remedied by an order for reinstatement, made by the Commission. To assist the Commission to make a finding as to capacity for work, the injured employee may be referred to a medical referee or medical panel. Furthermore to assist in the rehabilitation of the injured employee, it is an offence for an employer to dismiss the injured employee, on account of the injury, within 6 months of the employee's becoming unfit for employment. The Part contains other ancillary provisions and is expressed to be in addition to any rights the employee may have under another Act or under any award, agreement or contract of employment.

[97]

1996 IR Act 122 The present wording of s 240 as found in the 1987 Act had its origin, in our view, in the enactment of the 1996 IR Act. The definition of an injured employee was altered. Section 91 of the 1996 IR Act provided: Part 7 Protection of injured employees 91 Definitions (1) For the purposes of this Part, an injured employee is an employee who receives an injury for which the employee is entitled to receive compensation under the Workers Compensation Act 1987 or the Workers' Compensation (Dust Diseases) Act 1942 . (2) For the purposes of this Part, a person is the employer of an injured employee only if the injury arose (either wholly or partly) out of or in the course of employment with that person. (3) In this Part, reinstatement includes re-employment. 123 The provisions relating to an offence and the application for reinstatement were relevantly unaltered. 124 In his Second Reading Speech given on 23 November 1995, the Honourable J W Shaw (Attorney General and Minister for Industrial Relations) said the following in the Legislative Council about these provisions: Part 7 - Protection of Injured Employees Chapter 2 part 7 carries forward the provisions of the 1991 Act which are designed to provide certain employment-security rights for persons who have suffered a work-related injury. The existing provisions have been the subject of some judicial criticism and the bill has been redrafted to state more clearly the powers of the commission in this area and to make some appropriate changes to assist injured workers. The bill now allows the commission the discretion to order back payments. This is an appropriate discretionary measure: dismissed injured workers, no less than unfair dismissal applicants, should not be disadvantaged financially and should be encouraged to return to work. There is no ability to order compensation in lieu of reinstatement: the policy objective is the reinstatement of injured workers. The bill adopts a more flexible approach to the kind of employment to which an employee can be reinstated. This will facilitate the laudable aim of the return to work of injured employees - but will be balanced against employer interests as it must be employment which is available and for which the employee is fit. It is not intended that orders would be made for employment that is merely of a token nature and does not involve useful work having regard to the employer's operations; or employment that is demeaning in nature, having regard to the nature of the worker's incapacity, eduction, skills and work experience. It is intended that the meaning of "available" reflect the approach taken by the Commission in Commonwealth Steel Company Limited v Ward, [1993] IRC 3144 (Unreported). Before leaving the topic of injured workers, I should mention that it is intended that the references to "dismissal" in this part of the bill dealing with the protection of injured workers be capable of applying to instances of "constructive dismissal". 125 We were referred to the Explanatory Note for the Industrial Relations Bill 1996 which provided, in relation to Pt 7: Part 7 Protection of injured employees This part re-enacts provisions of the 1991 Act designed to protect the employment of employees injured on the job. The application of the provisions and the remedies available have been clarified and extended having regard to the provisions relating to unfair dismissal. 1998 Amendment

[101]

The purpose of the 1998 Act is to establish "a workplace management and workers compensation system" (s 3(1)). Central to the workers' compensation system is the compensation of workers injured at work and the resolution of claims made for such compensation (see Ch 4 and 7 of the 1998 Act). Chapter 7 is entitled "New Claims Procedures", and provides for the making of such claims (Pt 2, Div 2) and dealing with such claims (Pt 3). A "claim" is defined broadly in s 4(1) of the 1998 Act as including a claim an employee is "entitled to make" and, thereby, results in the Workers Compensation Commission and, in coal miner matters, the District Court, being vested with exclusive jurisdiction under s 105 of the 1998 Act to examine, hear and determine a claim for compensation a worker is "entitled to make". It follows, in our view, that a determination of the jurisdictional question arising under s 240(2) in this matter, namely, whether a worker "receives an injury for which the worker is entitled to receive compensation", pursuant to that sub-section, is co-extensive with the determination of claims for compensation under the 1998 Act. The expression "entitled to receive" may mean entitled to make a claim; a subsisting legal right which has not materialised by a determination of a court or tribunal; or, as we shall later conclude, when read in the context of the whole of the statutory scheme, a right established by determination under the 1998 Act but, on any such construction, the expression covers the very field vested in the Workers Compensation Commission or the Compensation or District Courts under s 105 to examine, hear and determine all matters arising under the 1987 and 1998 Acts. The expression "exclusive jurisdiction" in s 105 has the effect of conferring the determination of such matters on the courts or tribunals designated such powers under that section, and it follows, in our view, that it has the effect of ousting or excluding any overlapping jurisdiction potentially held by another court or tribunal. This conclusion, in our view, may only be obviated if the words "Subject to this Act" have the effect of displacing the otherwise clear intent of s 105(1) and s 105(4A). As we will shortly explain, we do not consider the phrase has or requires that result. In the result, we consider the jurisdiction of the Commission is activated under Pt 8 of the 1987 Act once a claim has been determined by adjudication or orders made by consent pursuant to the 1998 Act.
This conclusion is consistent with the scheme of the 1987 and 1998 Acts, and their history, which designates specialist courts and tribunals, as we have earlier noted, as having exclusive jurisdiction to resolve such matters. We do not accept the submission of the appellant that, in this respect, the emphasis of the legislature was upon "the injury" in Pt 8 of the 1987 Act and not upon "a claim", as this submission misunderstands the context in which the definitions in ss 240(2) and 240(3) arise. The expression "injured worker" is confined by the definition in s 240(2) which, in turn, must be viewed in the context of the broad definition of a claim to which we have referred and the interconnected provisions of the 1987 and 1998 Acts which thereby confer the power to determine workers' compensation entitlements on the Workers Compensation Commission, or the District Court in the case of coal miner matters. As we earlier discussed, the reference to entitlements under s 240(2) and the definition of "employer" in s 240(3) each relate to a right to compensation which may only be resolved by the Workers Compensation Commission, Compensation Court or District Court under Ch 4 or 7 of the 1998 Act.
The expression "injured worker" also appears in Ch 3 of the 1998 Act. That Chapter establishes a workplace injury and workers' compensation system which was an essential feature of the reformation of workers' compensation laws from 1998. It incorporates provisions for the return to work by an employee to his or her pre-injury employer. The provisions should be construed as being complementary to those found in Pt 8 of the 1987 Act which also focuses on the restoration to employment of injured workers. The provisions of Ch 3 confirm our construction of ss 240(2) and 240 (3). Sections 48 and 49(1) provide for the return to work by injured employees, but define the pre-injury employer as one "liable to pay compensation to the worker". It is difficult to envisage the legislature intended that Ch 3 of the 1998 Act would operate upon a different basis to that of Pt 8 of the 1987 Act and, in any event, the provisions should be construed together.
Prior to the 2006 Amendment Act, the words "injured worker" appeared as "injured employee" in Pt 8 of the 1987 Act. The genesis of Pt 8 was Pt XV of the 1940 IA Act. Part XV provided a different definition of "injured employee" to that now found in Pt 8 of the 1987 Act. The terms of that definition were, on one view, more consistent with the contentions of the appellant in this matter, as the then s 154 defined "an injured employee" as meaning, for the purposes of Pt XV, "an injury within the meaning of the Workers Compensation Act". We agree with the respondent that this difference may have been instrumental in the approach adopted by Fisher J in Marro (although his Honour was not asked to address the jurisdictional issues with which we have been confronted in this matter). Whilst the definition of "injured employee" found in Pt XV survived the passage of the 1991 IR Act, it was amended in the 1996 IR Act to take a form similar to the current provision, The Second Reading Speech for the 1996 IR Act makes clear that the provisions of then Pt 7 of the 1991 IR Act were amended to "state more clearly the powers of the Commission in this area". It is not clear whether those comments were directed to the decision in Marro but, in our view, the enactment of s 91 of the 1996 IR Act indicates a legislative intention to alter the powers of the Commission with respect to the reinstatement of injured workers. In particular, we consider the legislature altered the jurisdictional gateway conditions which had previously been found in s 154 of the 1980 IA Act. In so concluding, and throughout this decision, we have applied the principles stated by the Chief Justice and Mason P in Harrison , that is, statements as to the meaning of words by Ministers in a Second Reading Speech have very limited use in statutory interpretation but such extraneous material may be used, where appropriate, to ascertain the objective intention of Parliament by reference to purpose and mischief: see at [12] to [14] and [159] to [162]. In our view, this legislative history is consistent with the view that the legislature intended that the provisions of Pt 7 of the 1996 IR Act could be aligned with those of the 1987 Act, even though the rights were located in different (but complementary) statutes at that time so as to provide that those rights under then Pt 7 of the 1996 Act would operate only with respect to employers having a liability for compensation under the 1987 Act. Some further elaboration of that view is required. First, it may be assumed that a change in the language of a section (even via an amending or repeal Act) indicated an intention by the parliament to change the meaning of the former (related) provision: Farrell v Alexander [1977] AC 59 at 78 (per Viscount Dilhorne); Cheryl Investments Ltd v Saldanha [1978] 1 WLR 1329 at 1338 (per Geoffrey Lane, LJ) and Purdon v Dittman (1972) 1 NSWLR 94 at 98. Secondly, the intention to alter the previous provisions is plainly expressed in the language employed in the 1996 IR Act. The expression "entitled to receive compensation" in then s 91 moved the jurisdictional gateway for Pt 7 of the 1996 IR Act from one concerned with an injury (of the requisite kind) to one which depended upon a concept based on a right to or liability for compensation. That right concerned an established entitlement (by adjudication of a claim or agreement) but, in any case, the right was and had been since 1926, determined exclusively under workers' compensation legislation (which then stood apart from the industrial legislation providing for the reinstatement of injured workers). The legislature, in our view, thereby ensured that s 91 of the 1996 IR Act acted in a manner complementary to and consistent with the 1987 Act (as it then was). We note that we do not consider that the emergence of the current definition of "claim" in s 4 of the 1998 Act and the Further 2001 Amendment Act after the introduction of Pt 7 of the 1996 Act detracts from that conclusion. The definition of "claim" was only one part of provisions designed to clarify the difference between existing claims and new claim matters in Ch 7 of the 1998 Act. A similar definition could be found in s 4(1), as introduced by the First 2001 Amendment Act (when read with the definition of "claimant"), and was, in any event, consistent with the meaning of a claim throughout the history of workers' compensation legislation.
It follows, in our view, that when the jurisdiction of the Commission for the protection of injured workers was transferred from the 1996 IR Act to the 1987 Act in 2006, the Commission did not have jurisdiction to determine for itself whether an injured worker was entitled to workers' compensation but, rather, administered the rights of an injured worker to reinstatement, once such rights were established by the operation of other provisions for the resolution of claims under the 1998 Act. The legislature demonstrated no intention to change the pre-existing jurisdiction arrangements at the time of the transfer of the legislative provisions in 2006 which, as we have noted, occurred solely because of difficulties arising from the passage of the Work Choices legislation.
Having acknowledged the appellant's contentions may have been stronger, in one respect, under Pt XV of the 1940 IR Act, we do not consider, from a purposive perspective, that any different conclusion may have been reached under that statutory regime. The 1987 IA Amendment Act was intended as an 'add on' to the newly enacted 1987 Act. The 1987 IA Amendment Act was cognate legislation with the 1987 Act (when first enacted). The 1987 Act was intended to alter the system of workers' compensation by emphasising the rehabilitation of injured workers and correspondingly reducing rights to compensation or damages. The Second Reading Speech of the Minister for Industrial Relations for the respective Bills makes clear that the provisions of then Pt XV of the 1940 IA Act were to facilitate and support the reforms to the workers' compensation legislation. Part XV of the 1940 IA Act merely created an additional right for injured workers who had an established a compensation entitlement, so as to enhance their security of employment under the new workers' compensation scheme. It is inimical to that scheme that a separate stream for the determination of rights to workers' compensation, per se, may have been established.
The contrasting provisions of Ch 3 of the 1998 Act serve to confirm this conclusion. Like Pt 8 of the 1987 Act, this Chapter is devoted to the restoration of the employment of injured workers. The definitions of "injured worker" and "workplace injury" in s 42(1) are foundational to the operation of Ch 3 and have similar characteristics to the definition of "a claim" in s 4(1) of that Act or an "injured worker" in Pt 8 of the 1987 Act. However, the legislature made clear that Ch 3 would also apply even when "there is a dispute as to liability" (s 41A). The absence of such a provision in s 240(2) casts light on the need for liability to be established for Pt 8 to operate (and that may occur only by the resolution of matters by those courts and tribunals vested with power under s 105 to make determinations under Ch 4 or 7 of the 1998 Act).
We agree with the appellant that s 2A of the 1987 Act and s 60(2) of the 1998 Act require the words "this Act" in the opening words of s 105(1) to be read as incorporating a reference to the 1987 Act. We do not think it follows, however, that those words have the effect of conferring jurisdiction on this Commission to resolve questions as to workers' compensation entitlements, even for the more limited purpose of determining whether the Commission has jurisdiction to reinstate under Pt 8 of the 1987 Act. Our views, in this respect, are based on the following considerations: (a) The expression "examine, hear and determine" have a very wide application and, when read with the words "exclusive jurisdiction", must be taken to encompass (as we have previously discussed) the resolution of all questions arising in relation to workers' compensation liability under the respective Acts (save for appeals or judicial reviews). Section 105 is constructed in such a way that, whilst power is apportioned between the Workers Compensation Commission and two courts (for a period of time) for historical and other reasons, the whole of the exclusive subject jurisdiction is otherwise confined within the four walls of that section. We do not think the adjudication by the Commission as to whether Mr Speirs has an entitlement to receive workers' compensation, even for the limited purposes contended for by the appellant, can sit comfortably with that exclusive jurisdiction. The words "Subject to this Act" should then be construed as having the more limited purpose of the distribution of the exclusive jurisdiction between nominated courts and tribunals (and limiting the actual content of workers' compensation rights) and should not be construed as having the broader effect of conferring an additional or discrete jurisdiction on this Commission (or reducing those exclusive jurisdictions in that way). The words "Subject to this Act" may be read more narrowly when construed in context to give harmony with the scheme of the 1998 and 1987 Acts, particularly when read in the light of the whole of s 105 and the provisions of the 1987 and 1998 Acts we have earlier discussed (and we will further discuss below): Ross v R (1979) 25 ALR 137 at 145; Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 133 ALR 130 at 147. The legislation has not incorporated in Pt 8 a provision such as found in s 41A as may have given a contrary indication. (b) Further, and for the reasons we have advanced in the preceding sub-paras [1] to [6], we do not consider that the interpretation proposed by the appellant is consistent with the overall scheme of the Act or the legislative purpose expressed in it. That scheme is only consistent with questions of workers' compensation entitlements being resolved by the Workers Compensation Commission or courts having particular jurisdiction; the Commission's power being limited to a power of reinstatement where workers' compensation liability has been established. The jurisdiction under Pt 8 of the 1987 Act was an additional right provided to injured workers designed to support and not supplant the general scheme for the resolution of workers' compensation entitlements otherwise undertaken by special courts or tribunals (we note that the District Court now stands in the place of the Compensation Court). The vesting of a power in this Commission to determine whether an entitlement to workers' compensation exists in a particular case, even for the purposes of resolving its jurisdiction under Pt 8 is, in our view, inimical to that statutory scheme of the 1987 and 1998 Acts, as it will inevitably involve this Commission casting a view as to such entitlements independently, or even in contradiction (on the appellant's case here) to any adjudication or acceptance by a competent court or tribunal exercising power under s 105. The fact that this Commission may be a superior court of record does not detract from the assessment but enhances it. (c) The appellant's construction of ss 240(2) and (3) may be taken, on one view, as requiring the words "entitled to" to be given a meaning akin to a right to or entitlement to compensation, so that the sub-sections may be taken to mean a right or entitlement which subsists in law (because of a certain injury) but has not crystallised by the making of a determination under the 1998 Act. We do not consider that the sub-section, when read in the light of the statutory scheme for workers' compensation, to which we have referred, may be so construed. The provision should be construed as an entitlement established under Ch 4 or 7 of the 1998 Act such that there is an extant liability in the subject employer. In this sense, the respondent was correct to submit that the words "Subject to this Act" cannot confer on this Commission a power greater than it actually has under ss 242 and 243.

Ross Speirs v Springvale Coal Pty Ltd

At a glance

Court

Decision date

Before

Source

Judgment (105 paragraphs)

Parties

Cases Cited (28)

Cited By (4)