Speirs v Industrial Relations Commission of New South Wales & Anor

Court of Appeal (NSW)|2011-05-24|Before: Allsop P, Giles JA, Hodgson JA, Walton J, Grayson DP

Judgment 1ALLSOP P : I agree with Giles JA. 2GILES JA : The applicant, Mr Ross Speirs, was employed by the second respondent, Springvale Coal Pty Ltd, at the Springvale Colliery from 1995 to 2008. He came to hold the position of longwall production superintendent. His employment was terminated with effect from 11 July 2008. 3On 12 February 2009 the applicant applied to the first respondent, the Industrial Relations Commission of New South Wales ("the Commission"), for an order pursuant to s 242 of the Workers Compensation Act 1987 ("the WC Act") reinstating him to the position of longwall production superintendent with the second respondent. On appeal from McKenna C, the Full Bench of the Commission (Walton AP, Grayson DP and Bishop C) held that the Commission did not have jurisdiction to order that the applicant be reinstated. 4The applicant applied to the Supreme Court for orders pursuant to s 69 of the Supreme Court Act 1970 quashing the decision of the Commission and remitting the proceedings to the Commission for further decision, on the ground of jurisdictional error. 5The Commission filed a submitting appearance. The second respondent, which I will refer to as the respondent, opposed the grant of relief. For the reasons which follow, the Commission misapprehended its jurisdiction and the relief claimed should be granted.

Background 6The applicant had worked in the underground coal mining industry in the western coal fields of New South Wales since 1971. He commenced employment with the respondent as mine deputy, and was promoted to longwall production superintendent in 2005. 7During his time in the industry the applicant suffered a number of injuries to his knees, for which he claimed and received workers compensation benefits. In 2001 he brought proceedings in the Compensation Court claiming compensation from Ivanhoe Coal Pty Ltd with respect to injuries allegedly sustained between 1975 and 1978, Nova Coal Pty Ltd with respect to injuries allegedly sustained between 1982 and 1994, and the respondent with respect to injuries allegedly sustained in and after 1995. 8In May 2003 the Compensation Court made consent orders in accordance with terms of settlement filed by the parties. The settlement was confined to injuries sustained by the applicant during periods of employment with Ivanhoe Coal Pty Ltd and Nova Coal Pty Ltd. No order for compensation was made against the respondent. (Whether this in some manner precluded the applicant from relying in the Commission on injuries prior to 2001 was not part of the proceedings in this Court.) No order for compensation has since been made against the respondent. 9The condition of the applicant's knees deteriorated. He had knee replacement surgery in October 2007 and April 2008. The respondent's termination of his employment was on the ground of inability to perform the inherent requirements of his position. 10In January 2009 the applicant applied to the respondent, in accordance with s 241 of the WC Act, for reinstatement to his former position of longwall production superintendent. In February 2009 the respondent refused to reinstate him on the ground that it was not causally responsible for his knee injuries. The applicant then applied to the Commission for a reinstatement order pursuant to s 242 of the WC Act. 11In September 2009 McKenna C dismissed the application, holding that the respondent was not relevantly the applicant's employer because his injuries did not arise wholly or partly out of or in the course of employment with the respondent. 12In October 2009 the applicant appealed to the Full Bench of the Commission. The appeal was heard over three days in February-April 2010. Judgment was given on 8 September 2010: Ross Speirs v Springvale Coal Pty Ltd [2010] NSWIRComm 30. 13The Full Bench held that the Commissioner had been in error, in that there was "unchallenged medical evidence inculpating [the respondent]" (at [56]). However, the definition of an injured worker for the purposes of ss 241 and 242 included that he or she be a worker "who receives an injury for which the worker is entitled to receive compensation under this Act", and the Full Bench had raised whether the conferral on the District Court of exclusive jurisdiction to determine coal miner matters by s 105 of the Workplace Injury Management and Workers Compensation Act 1998 ("the WIM Act") meant that the Commission had no jurisdiction to determine whether the applicant was an injured worker. The Full Bench held that it did not have jurisdiction. 14The appeal was dismissed and the Commissioner's dismissal of the application was confirmed "for want of jurisdiction" (at [132]).

Reinstatement 15Before any question of reinstatement arises, a worker who has been injured and the worker's employer have rights and obligations in relation to return to work. 16One of the objectives of the WIM Act, with which the WC Act is to be construed as if it formed part (WC Act, s 2A(2); WIM Act, s 60(2)), is to provide treatment and management of injuries and rehabilitation following injuries in order to promote the return to work of injured workers as soon as possible (WIM Act, s 3(a)). Section 41(1) of the WIM Act provides that the object of Ch 3 of that Act is "to establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work following workplace injuries". By s 41A, the requirements of Ch 3 "apply even where there is a dispute as to liability". 17Within Ch 3, s 48 provides - " 48 Injured worker's obligation to return to work 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." 18Section 49(1) correspondingly provides - " 49 Employer must provide suitable work (1) 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." 19The provisions as to reinstatement are found in Pt 8 of the WC Act. It is headed "Protection of injured workers from dismissal". 20By s 241, an "injured worker" who is dismissed because he or she is not fit for employment as a result of the injury received may apply to the employer for reinstatement to employment of the kind specified in the application. The employment can not be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury, and the employer must be provided with a medical certificate to the effect that the worker is fit for employment of the kind for which he or she applies. 21Section 240(2) contains the critical definition of "injured worker" - "(2) For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942 ." 22Section 240(3) provides that a person is the employer of an injured worker for the purposes of Pt 8 "only if the injury arose (either wholly or partly) out of or in the course of employment with that person". The injury bringing dismissal as referred to in s 241 therefore must have been in the employment of the dismissing employer, and the entitlement to receive compensation must be an entitlement to receive compensation from the dismissing employer. 23Section 242 then provides - " 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order. (2) An industrial organisation of employees may make the application on behalf of the worker. (3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed." 24Application to the employer in accordance with s 241 is a necessary prior step to an application to the Commission for reinstatement: as earlier noted, the applicant applied unsuccessfully to the respondent in early 2009. When s 242 speaks of "the worker" it means the injured worker to whom s 241 refers. The two sections must be read together. The definition of an injured worker is brought into the operation of s 242, and "the employer" in s 242 is the dismissing employer from whom the injured worker is entitled to receive compensation. 25Section 243 then provides that the Commission may order the employer to reinstate the worker. The reinstatement may be to employment of the kind for which the worker has applied or any other kind of employment that is no less advantageous to the worker, provided the Commission is satisfied that the worker is fit for that kind of employment; or if the employer does not have employment of that kind available, it may be to another kind of employment for which the worker is fit as further described in the section. An order may also be made for payment of remuneration from when the application was made to the employer until reinstatement in accordance with the order of the Commission. 26It is appropriate at this point to note the history of the Commission's power to order reinstatement now found in Pt 8 of the WC Act. The history was fully and helpfully considered by the Commission at [112]-[127], and I will not repeat what is there described. The following is a brief outline, at the expense of accuracy in detail. 27A power to order reinstatement was first given to the then industrial commission or a conciliation committee in 1987 by ss 154C and 154D of the Industrial Arbitration Act 1940 ("the IA Act"), within Pt XV added in that year. The sections were in similar terms to ss 242-243 of the WC Act: the differences need not be detailed. 28The amendments to the IA Act adding these provisions accompanied enactment of the WC Act. They spoke of an injured employee, which was defined for Pt XV in s 154 to mean - " ... 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 (Dust Diseases) Act 1942." 29These provisions in Pt XV of the IA Act were effectively carried into the Industrial Relations Act 1991 ("the 1991 IR Act") as ss 235-238 in Pt 7 of Ch 3. The power was given to the Industrial Relations Commission established by the 1991 IR Act. The definition became, in s 235(1) - " .. an employee who (a) receives an injury, within the meaning of the Workers Compensation Act 1987; or (b) receives an injury (being a dust disease) for which the employee is entitled to receive compensation under the Workers Compensation (Dust Diseases) Act 1942." 30The provisions were again effectively carried into the Industrial Relations Act 1996 ("the 1996 IR Act") as ss 92-94 in Pt 7 of Ch 2. The power was given to the Commission, which that Act established. The definition was changed, in s 91(1), to the present language save for continued reference to an injured employee - " ... 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." 31The Commission's reasons set out parts of the various second reading speeches. There is no indication that the changes in the definition were intended to alter the scope or operation of the provisions. 32In 2006 Pt 7 of Ch 2 of the 1996 IR Act was repealed, and re-enacted with some modifications as Pt 8 of the WC Act. The modifications included replacement of "injured employee" and "employee" with "injured worker" and "worker" in ss 241-243 and in the definition.

Section 105 of the WIM Act 33Section 105 of the WIM Act, in which the Commission is the Workers Compensation Commission, provides - " 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 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." 34In general terms s 105 distributes jurisdiction between the Workers Compensation Commission and the District Court, excluding jurisdiction in respect of common law remedies. The District Court's share is coal miner matters. Claims by coal miners have long been treated separately in some respects from claims by other workers. In s 4 of the WIM Act "coal miner matter" is defined as any matter arising under the WC Act and WIM Act "concerning a claim in respect of a worker employed in or about a mine". "Claim" is defined as "a claim for compensation or work injury damages that a person has made or is entitled to make". 35Neither party disputed that in the present case the applicant's claim to a reinstatement order was a coal miner matter and the relevant potential exclusive jurisdiction was that of the District Court pursuant to s 105(4A) (but see [57]-[58] and [91] below). The same jurisdictional question would arise in an application by a worker who was not employed in or about a mine, because of the Workers Compensation Commission's exclusive jurisdiction pursuant to s 105(1). 36It is again appropriate to note, in outline and without repeating the Commission's full and helpful consideration at [72]-[110], the history of the jurisdictional distribution. 37Under the Workers Compensation Act 1926 ("the 1926 WC Act") exclusive jurisdiction to determine all matters arising under that Act was initially given to the (then) Workers Compensation Commission. From 1984 the exclusive jurisdiction was conferred on the Compensation Court, although within the Court the jurisdiction could in some respects be exercised by Commissioners. 38That remained the case when the WC Act replaced the 1926 WC Act in 1987, although with greater powers given to Commissioners. Section 107(1) of the WC Act gave the Commissioners exclusive jurisdiction, subject to the WC Act and the Compensation Court Act 1984, to examine, hear and determine all matters arising under the Act. There were subsequent variations in the internal distribution within the Court, which need not be noted, but the Compensation Court retained its exclusive jurisdiction. 39When the WIM Act was enacted in 1998, s 105 gave exclusive jurisdiction to the Compensation Court "to examine, hear and determine all matters arising under this Act (except Part 5 of the 1987 Act)". In 2001 there was a bifurcation between new claims and existing claims. The (now) Workers Compensation Commission was established with exclusive jurisdiction to determine "any new claim". The Compensation Court initially retained its jurisdiction to determine "any existing claim", but then was reduced effectively to a residual jurisdiction in relation to claims by coal miners. The later versions of s 105, in two iterations, distributed jurisdiction in similar manner to the present s 105, but in the second iteration "matters" came to be made the descriptor, as in the present s 105, in place of "claim". 40The Compensation Court was abolished with effect from 1 January 2004. Provision was made for transfer of pending proceedings in the Compensation Court to the Workers Compensation Commission or the District Court. This brought s 105(4A) into s 105. Perhaps clumsily, the existing reference to the Compensation Court's jurisdiction in s 105(4) was retained, but s 105(4A) operated to give the jurisdiction in coal miner matters to the District Court.

The Commission's reasons 41The Commission posed at [65], as the jurisdictional issue arising from s 105 of the WIM Act, the question - "Did the Commission have power to determine for itself whether Mr Speirs was entitled to receive workers' compensation under the 1987 Act for certain injuries alleged to have arisen out of, or in the course of, employment with Springvale Coal, notwithstanding no determination to that effect had been made by the District Court?" 42The Commission answered the question at [131] - "In the absence of a determination of liability by the District Court, the Commission lacked the jurisdiction to determine for itself whether [the applicant] was entitled to receive workers' compensation for injuries arising during the period of his employment with [the respondent]". 43The Commission's reasoning to the answer was in outline -

(a) the Commission could only order reinstatement of an injured worker, as defined in s 240(2) of the WC Act;
(b) because of (a), it was necessary that it be found that the applicant had received an injury for which he was entitled to receive compensation under the WC Act;
(c) there had not been a determination of entitlement to receive compensation for the applicant's injuries by the Compensation Court in 2003, because the settlement had not included any liability of the respondent;
(d) whether the applicant was entitled to receive compensation for his injuries from the respondent was a coal miner matter;
(e) by s 105(4A) of the WIM Act, the District Court had exclusive jurisdiction to determine coal miner matters;
(f) therefore the Commission could not make the finding in (b), and could not make the order sought by the applicant. 44The Commission's reasoning would still apply if the applicant had not been employed in or about a mine, because whether he was entitled to receive compensation for his injuries from the respondent would still be a matter arising under the WC Act and the WIM Act placed by s 105(1) within the exclusive jurisdiction of the Worker's Compensation Commission. It would also apply to compensation for a dust disease under s 8 of the Worker's Compensation (Dust Diseases) Act 1942, the Workers Compensation (Dust Diseases) Board ("the Board") having by s 5(2)(a) "exclusive jurisdiction to examine into, hear and determine all matters and questions arising out of a claim for compensation under this Act". 45The Commission did not deny jurisdiction to determine applications for reinstatement orders, or the applicant's application for a reinstatement order. It denied jurisdiction to determine a necessary element for the reinstatement order sought by the applicant. The contentious step was from (e) to (f). 46The Commission held at [69]-[71] that s 105(4A) should be so construed that the words "Subject to this Act ... " with which s 105(1) begins should also govern it: that is, that s 105(4A) should be interpreted "as if those words must be complied with" (at [70]). It held at [130]-[138] that because the WC Act and the WIM Act were to be read together, those words referred also to the WC Act. 47However, the Commission did not accept the applicant's submissions to the effect that the words "Subject to this Act ... " preserved jurisdiction in the Commission to determine entitlement to compensation for the purposes of applications for reinstatement orders, as part of its reinstatement power in the WC Act and as an exception to the exclusive jurisdiction of the Workers Compensation Commission or the District Court. 48The Commission's reasons for that conclusion, expressed at length in a number of subparagraphs of [130], began - "1. 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." 49The Commission then said, in summary - this conclusion was consistent with the scheme for the WC Act and WIM Act and their history, one of designating specialist courts or tribunals with exclusive jurisdiction to resolve such matters ([130.2]);
the complementary ss 48 and 49(1) of the WIM Act, referring to an employer "liable to pay compensation to the worker", confirmed the conclusion ([130.3]);
the change in the definition from an employee who receives an injury in the IA Act and the 1991 IR Act to the 1996 IR Act definition referring to entitlement to receive compensation was intended to "align" the provisions of the 1996 IR Act with those of the WC Act "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" ([130.4]);
it followed that when the jurisdiction was transferred from the 1996 IR Act to the WC Act - " ... 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."
but even under the earlier definition the conclusion held good, because Pt XV of the IA Act was introduced together with the WC Act and its provisions - " ... were to facilitate and support the reforms to the workers' compensation legislation. Pt XV of the 1940 IA Act merely created an additional right for injured workers who had an established 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." ([130.6]);
the conclusion was confirmed by regard to s 41A of the WIM Act, making the provisions of Ch 3 concerned with return to work applicable even where there was a dispute as to liability, because - "[t]he 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)" ([130.7]);
the words "Subject to this Act ... " in s 105 of the WIM Act did not alter the conclusion: the exclusive jurisdiction was confined within s 105 and apportioned within it ([130.8]). 50The matters set out for the Commission's view of the words "Subject to this Act ... " summarised in the last dot point were largely a restatement of considerations leading to the conclusion which those words did not alter. It was said that the words - " ... 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)." ([130.8(a)]) 51The Commission ended its consideration - "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." ([130.8(c)])

Some general considerations 52There are a number of difficulties with the Commission's conclusion. 53Workers compensation benefits are frequently paid without a determination of entitlement by the Workers Compensation Commission or the District Court, but upon acceptance by the employer's insurer that there is an entitlement. Without this, the statutory scheme would collapse under the weight of tribunal or court determination. But the Commission's reasoning does not allow for recognition of injury for which there is an entitlement to receive compensation short of tribunal or court determination. 54The Commission's reasons addressed this rather in passing. It was said at [130.1] that the Commission's jurisdiction under Pt 8 was "activated ... once a claim has been determined by adjudication or orders made by consent pursuant to the 1998 Act " (emphasis added). It is not easy to see why the formality of orders by consent in the Workers Compensation Commission or the District Court, if injury entitling the worker to receive compensation is accepted, should be a precondition to the Commission's exercise of its power to make a reinstatement order; if there is the acceptance, why not allow the Commission to decide whether or not there should be reinstatement? Only with equal formality would the Workers Compensation Commission or the District Court "examine, hear and determine" a matter arising under the WC and WIM Acts or a coal miner matter, and similar observations may be made about the Board. 55Why should a worker be required to bring proceedings in the Workers Compensation Commission or the District Court in order to obtain a consent order, if the worker and the employer are content with an existing compensation regime but are in dispute over reinstatement? It may also be that the worker's interest is in reinstatement and not in receipt of compensation. The legislative scheme is not promoted by requiring otherwise needless applications and orders. 56The Commission's conclusion brings other difficulties in the working of the legislative scheme. 57One flows from s 105(1) referring to exclusive jurisdiction to examine, hear and determine "all matters arising under this Act and the 1987 Act", but s 105(4A) referring to exclusive jurisdiction to examine, hear and determine "all coal miner matters (except matters arising under Part 5 of the 1987 Act)". There is a difference in the operation of the subsections. "Matters arising under" the WC Act and the WIM Act has wide scope. A claim to a reinstatement order under Pt 8 of the WC Act would be a matter arising under that Act but, recalling the definition of "claim" in the WIM Act as "a claim for compensation or work injury damages that a person has made or is entitled to make", a miner's claim to a reinstatement order is not a coal miner matter because the miner does not claim compensation, but claims a reinstatement order and for that purpose asserts injury entitling him or her to receive compensation. 58Thus the District Court's exclusive jurisdiction does not include determining entitlement to receive compensation for the purposes of a claim to a reinstatement order under Pt 8. Where, then, does that jurisdiction lie? On the Commission's reasoning, it lies in the Workers Compensation Commission pursuant to s 105(1). This is an unlikely result. The entitlement of a worker employed in or about a mine is generally given special place by provision for court decision, but for the purposes of a claim to a reinstatement order it is determined elsewhere. If it is to be determined elsewhere, why not in the Commission? 59Another is that the Commission's construction of "for which the worker is entitled to receive compensation" must hold good for "injured worker" in s 241 just as much as for "worker" in ss 242-243. An application to the employer is not an empty step. Consistently with the objectives of the WIM Act, it must be hoped that the application will be successful and expected that it will sometimes be successful. Consistently with those objectives, it should be able to be made before going through the processes of a tribunal or court (and as before, perhaps where compensation is not the worker's objective). But an application prior to a tribunal or court determining that there has been injury entitling the worker to receive compensation, if made, will not satisfy the necessary prior step to an application to the Commission. 60A third, perhaps lesser, difficulty is that even if the Workers Compensation Commission or the District Court (or the Board) has determined that there is injury entitling the worker to receive compensation, it may be disputed between the worker and the employer whether the dismissal was because the worker was not fit for employment as a result of the injury received. Section 244 of the WC Act creates a presumption in favour of the worker, which can be rebutted if the employer satisfies the Commission that the injury "was not a substantial and operative cause of the dismissal of the worker". That dispute can not be resolved in the Workers Compensation Commission or the District Court. Resolution of all dispute over injury and its consequences would best occur in the one tribunal or court. 61A particular difficulty is exposed in the Commission's treatment of ss 48 and 49(1) of the WIM Act. The expression "liable to pay compensation to the worker" and the expression "entitled to receive compensation" are equivalents, two sides of the same coin, each expressing compensation being payable. If entitlement to receive compensation requires tribunal or court determination (even by a consent order), so must liability to pay compensation. Yet it could hardly be consistent with the objectives of the WIM Act to which ss 48 and 49(1) are directed that there has to be tribunal or court determination of entitlement to receive compensation/liability to pay compensation before the rights and obligations in those provisions have effect. The ideal scenario after work injury is payment of compensation by consent (with recognition of entitlement) until the worker is able to return to work, and return to work, with no involvement of tribunal or court. That is what the provisions speak to, and it is made plain by s 41A that they have effect while there is unresolved dispute - that is, before tribunal or court determination. The Commission appears to have seen ss 41A, 48 and 49(1) as supporting its conclusion, but they are against it.

The meaning of "entitled to" in s 240(2) 62The Commission construed s 240(2) so that "entitled to" in the definition meant an entitlement established by tribunal or court determination; see most clearly at [130.8(c)], set out at [51] above. 63In my respectful view, the flaw in the Commission's analysis lies in its equation at [130.1] set out at [48] above, of entitlement to receive compensation with determination of claims for compensation under the procedures in the WIM Act. (The more full expression is "injury entitling the worker to receive compensation" - the Commission's reasoning also leaves whether the worker suffered injury within the meaning of the WC Act at all in the exclusive jurisdiction of the Workers Compensation Commission or the District Court.) All of entitlement to make a claim, an undetermined legal right, and a right established by determination were regarded as "co-extensive with the determination of claims for compensation under the 1998 Act". Thus, it was said, entitlement in all those ways fell within the exclusive jurisdictions in s 105. 64That is not borne out by the use of entitlement to receive compensation and its other side of liability to pay compensation, and cognate expressions, in the WC Act and the WIM Act. Throughout the Acts, liability to pay compensation and entitlement to receive compensation are used to express rights or obligations short of those determined by a tribunal or a court. They are used in the sense recognised by the Commission at [130.8(c)] but rejected as a proper construction. It is convenient to repeat in part what the Commission there said - "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." 65Section 60(1) of the WIM Act provides - "(1) Provisions relating to a worker's entitlement to compensation, the benefits payable, common law remedies and other matters are contained in the 1987 Act." 66Part 2 of the WC Act is headed "Compensation - liability". Within Pt 2, s 9 provides - " Liability of employers for injuries received by workers-general (1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act. (2) Compensation is payable whether the injury was received by the worker at or away from the worker's place of employment." 67By the definition of "injury" in s 4, the injury must have been personal injury arising out of or in the course of employment. By s 9A, no compensation is payable under the WC Act in respect of an injury "unless the employment concerned was a substantial contributing factor to the injury". 68These provisions set the scene. Although the word "entitled" is not there, a worker who receives an injury is entitled to compensation payable by the worker's employer. If one uses the Commission's words from [130.8(c)], there is "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". 69Many provisions in Pt 2 then regulate when compensation is payable. They need not be individually noted. The expressions "no compensation is payable", "compensation is payable" or "compensation is not payable" are used frequently. So also are used the language that the employer "has become liable" to pay compensation with corresponding reference to "the liability of the employer" (eg s 18), and of an employer being "liable to pay compensation" and "liability to pay compensation" (eg ss 20, 22, 22A, 22B). 70These provisions contain a distinction between compensation being payable and recovery of compensation, seen most clearly in s 23 which provides that "[c]ompensation under the Act is payable to a person, and proceedings for the recovery of compensation under this Act may be instituted ..."; see also ss 20, 24. Compensation is payable, and there is corresponding liability to pay compensation, by virtue of receiving an injury. Tribunal or court determination of liability to pay compensation is not necessary in order that compensation be payable and there be liability to pay compensation. . 71One then goes to the other side of the coin, entitlement to receive compensation. In s 11A, whereby no compensation is payable for psychological injury caused by the reasonable actions of the employer, s 11A(4) provides that "any entitlement to compensation under this Act" for a certain kind of injury is not affected. Section 18, concerned with insurers' liability in the case of progressive injury, includes in s 18(3) that if each of "the employers who is liable to pay the compensation" is insured and "the entitlement of the worker ... to receive compensation is not disputed", certain results follow. It is plain that entitlement to receive compensation subsists without tribunal or court determination. See also s 22A(8), from which the same is apparent. 72Section 22 deals with apportionment of liability to pay compensation where there is more than one injury. By ss 22(2)(b), liability to pay compensation in the case of a partially incapacitated worker includes "a liability that arises because the worker is entitled to be compensated under this Act as if totally incapacitated". The apportionment need not be by the Workers Compensation Commission, and may be by agreement: s 22(3). This is consistent with entitlement to be compensated subsisting without tribunal or court determination. 73Part 3 of the WC Act is headed "Compensation - benefits". Various kinds of compensation benefits are stated, by way of lump sum, weekly payments, compensation for expenses, compensation for non-economic loss or compensation for property damage. The provisions frequently use the language of compensation payable; the amount of compensation payable by the employer; payment of compensation; liability to pay compensation; the employer being liable to pay expenses; and compensation payable by the employer. They also use the language that "the worker becomes entitled to" payments of compensation (s 34); that "the worker would be entitled" or "is not entitled" to be compensated (s 39); of an existing incapacity "not entitling the worker to compensation" (s 48); of "entitlement to compensation" and "entitled to receive compensation" (s 52A); that the worker is "entitled to receive [weekly payments]" (s 53) or "not entitled [to weekly payments]" (s 58); and that the worker is "entitled to receive compensation" (s 65A, s 66, s 67, s 74, s 75) or "entitled to compensation" (s 87B). This is not exhaustive. 74The various references to entitlement again must include entitlement prior to or without any tribunal or court determination. In particular, in s 34 the first 26 weeks of a worker's incapacity are the period "after the worker becomes entitled to weekly payments of compensation in respect of the incapacity". Section 66A provides for agreement between the worker and the employer or insurer as to compensation "to which the worker is entitled in respect of the injury". It is not necessary to go through the provisions. 75Sections 87D-87K deal with commutation of compensation. What is commuted is "a liability" (s 87F(1)), and there can not be commutation without certification that the worker has been advised on the implications "with respect to any entitlement of the worker under this Act ... " (s 87F(2)). 76The language of compensation payable, an employer's liability to pay compensation and a worker's entitlement to compensation is used elsewhere in the WC Act, for example in Pt 5 dealing with common law remedies. Although without entire uniformity in the language, an employer's liability to pay compensation and a worker's entitlement to receive compensation each express compensation being payable. There is an entitlement to receive compensation by reason of the injury; the entitlement does not arise only when a tribunal or court determines that compensation should be paid. 77The 1926 WC Act had provided in s 7(1), in similar manner to s 9 of the WC Act - "7(1) A worker who receives personal injury - (a) in the course of his employment, whether at or away from his place of employment ... ... shall receive compensation from his employer in accordance with this Act." 78The 1926 WC Act had thereafter used the language of compensation payable, the employer being liable to pay compensation, and "shall receive compensation"; "shall be entitled to receive compensation"; "is entitled to receive compensation"; "entitled to compensation under this Act"; "entitled to receive from his employer by way of compensation"; and similar expressions of entitlement (or non-entitlement). 79In Stevens v The Railway Commissioners for New South Wales (1930) 31 SR (NSW) 138 the 1926 WC Act had been amended after the worker's injury. It was held that the worker's compensation should be determined on the law prior to the amendment, because (per Ferguson J at 143, James and Stephen JJ agreeing) - " ... there was an accrued right to the workman immediately on the happening of the injury to have his compensation determined in accordance with the then existing law, and the Court should not interpret the amending Act as interfering with that right unless the words are so framed that no other reasonable interpretation is possible." 80This passage was taken up in TNT Australia Pty Ltd v Horne (1995) 36 NSWLR 630. In proceedings in the Workers Compensation Commission the worker's executrix claimed benefits under ss 66 and 67 of the WC Act. The employer contended that the entitlement to benefits did not accrue to his estate. Kirby P, with whom Priestley JA agreed generally, said at 637 - "The workers' compensation legislation of this State was substantially modelled, both in the 1926 Act and in its predecessors, upon the United Kingdom Act which was the subject of the House of Lord's decision in Simpson . In 1930, a question arose as to when a right under the Worker's Compensation Act 1926 accrued to a worker. The answer to the question was important because of an amendment to the Act governing entitlements to compensation and damages. The Full Court of the Supreme Court of this State held, in Stevens v Railway Commissioners for NSW (1930) 31 SR (NSW) 138; 48 WN (NSW) 69, that the worker's right "accrued" immediately upon the happening of the injury. At that instant, the worker had an accrued entitlement to have compensation determined in accordance with the then existing law. A later amending Act, not retrospective in its terms, did not interfere with the accrued right of the worker. He or she was entitled to be paid the amount which had already accrued. The argument recorded in the report (see ibid at 138, 139; 69, 70) shows the alternating use by counsel of the verbs 'vest' and 'accrue' when describing the acquisition by the worker of his entitlements under the Act. Ferguson J (with whom James J and Stephen J concurred) (at 143) observed: [His Honour set out the passage from Stevens v Railway Commissioners for NSW .] Upon this reasoning, the deceased worker in the present case likewise enjoyed an 'accrued right' immediately on the happening of his injury to have his compensation determined. The fact that, by pre-occupation with his medical problems, he did not live long enough to enforce that "accrued right" (as theoretically he might by high expedition of his claim and an urgent hearing) did not affect the character of the right. It had "accrued" to him, in the sense that it was available. It had 'vested' in him as a legal entitlement. It had simply not been quantified and enforced. But these deficiencies were unimportant to the nature of the 'right' for succession law. The right which had 'accrued' was a right of property which passed upon the worker's death, as any other right in the nature of a statutory chose in action, to the legal personal representative. It would require clear disentitling legislation to take that right away from the estate to which it had passed". 81The President later said, at 641-2 - " ... The suggestion that an award of that court is necessary for a "vested" right is unconvincing. Although many claims under s 66 of the 1987 Act must be determined by the Compensation Court, this is not universally so. The Act does not universally require it. To the contrary, the Workers Compensation Act confers rights. Those rights are merely enforced by proceedings in the Compensation Court. Some claims, such as the total loss of an eye (or one might say cases similar to the present) involve no necessity of litigation at all. The provision of a court and of an award constitute machinery for the quantification and enforcement of disputed claims. But the "right" rests upon the entitlements expressed in the Workers Compensation Act . For a very long time it has been held that such right accrues to the worker upon the happening of the injury." 82The present question is different from the question in these cases, but they provide powerful confirmation of entitlement to receive compensation by reason of the injury, under the 1926 WC Act and under the WC Act alike. 83Marro v Real Estate Institute (NSW) (1988) 27 IR 27 was an application under Pt XV of the IA Act. An issue was whether the injury arose out of or in the course of the worker's employment. Fisher P held that it arose in the course of his employment. His Honour's jurisdiction to do so was not questioned, but the decision carries the weight to the extent that neither the parties nor the very experienced Judge questioned it. Counsel's researches found no other decision in point; we were informed that, while not commonplace, reinstatement applications were made "reasonably regularly", and the weight is not lessened by the passing of more than twenty years before the Full Bench raised the question for itself. 84The Commission's observations concerning Marro v Real Estate Institute (NSW) at [119], that the definition of injured "employee" in the IA Act and the later definitions were materially different. The alternative in the definition in s 154(b) of the IA Act dealing with a dust disease used the language of entitlement to receive compensation, and it is difficult to accept that the two alternatives were intended to have different jurisdictional consequences. 85Respectfully differing from the Full Bench, in my opinion "entitled to" in the definition in s 240(2) of the WC Act does not mean entitlement established by a determination of the Workers Compensation Commission or the District Court, or by decision of the Board. The entitlement is a right subsisting in law when there has been injury satisfying ss 4 and 9A of the WC Act. It may be recognised and given effect without tribunal or court determination, as will commonly be the case.

The Commission has jurisdiction 86The Commission's reasons for construing s 105(4A) as if governed by "Subject to this Act ... " are sound, and that construction was not in issue in the application. 87Those words are apt to make the conferral of exclusive jurisdiction on the Workers Compensation Commission (s 105(1)) and the District Court (s 105(4A)) subject to conferral of jurisdiction on the Commission under Pt 8 of the WC Act, regarded as forming part of the WIM Act. It could not be said that they had that function from the beginning, since they were in earlier versions of s 105 prior to the 2006 importation of the reinstatement provisions into the WC Act, but s 105 must be construed as it now stands: Commissioner of Stamps (South Australia) v Telegraph Investment Company Pty Ltd (1995) 184 CLR 453 at 463 per Brennan CJ and Dawson and Toohey JJ; Hardman v Minehan [2003] NSWCA 130; (2003) 57 NSWLR 390 at [73] per McColl JA. 88However, express words are not essential; the WC Act and the WIM Act are to be construed as a whole, giving harmonious operation to the Commission's jurisdiction in exercising the power to make reinstatement orders and the jurisdiction, expressed to be exclusive, of the Workers Compensation Commission, the District Court and the Board. 89There should be recalled the well established principle that a power vested in a court should not be construed as subject to limitations not clearly to be seen: see for example Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 1 at 23 per Gaudron J; Knight v F P Special Assets Ltd (1992) 174 CLR 78 at 205 per Gaudron J; Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; (2006) 226 CLR 486 at [10] per Gleeson CJ and Gummow, Kirby, Hayne and Crennan JJ; Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [102] per Kirby J. The power vested in the Commission to order reinstatement should not lightly be construed as subject to the limitation that a necessary element must be determined elsewhere, rather than by the Commission as part of the exercise of the power. 90Regard to the words "Subject to this Act ... " may be sufficient to conclude that the Commission can determine injury entitling a worker to receive compensation as part of exercising its power to make a reinstatement order. There is a further path to that conclusion. 91For reasons earlier given, a miner's claim to a reinstatement order is not a coal miner matter. Contrary to the parties' common ground, see [35] above, the relevant potential exclusive jurisdiction is that of the Workers Compensation Commission. 92Where s 105(1) speaks of "matters arising under this Act", a claim to a reinstatement order must be outside the exclusive jurisdiction of the Workers Compensation Commission notwithstanding that it is a matter arising under the WC Act - the harmonious construction of the WC Act and the WIM Act so requires. That "matter" is not caught by s 105(1). Determination of injury entitling a worker to receive compensation, as part of that "matter", is also outside the exclusive jurisdiction of the Workers Compensation Commission. The whole includes its parts. 93The position would be the same even if a miner's claim to a reinstatement order is a coal miner matter. The "matter" of determining injury entitling the miner to receive compensation would not be a coal miner matter caught by s 105(4A). 94This path is not necessary in relation to "matters and questions arising out of a claim for compensation under this Act" in s 5(2)(a) of the Workers Compensation (Dust Diseases) Act . Entitlement to receive compensation for the purposes of s 240(2) of the WC Act is not a matter or question arising out of a claim for compensation under that Act. It arises out of the claim to a reinstatement order. 95Respectfully differing from the Full Bench, in my opinion the Commission had jurisdiction to determine for itself whether the applicant was entitled to receive compensation for his injuries.

Issue estoppel 96There was some debate over whether a determination by the Commission of injury entitling a worker to receive compensation would create an issue estoppel in any proceeding in the Workers Compensation Commission or the District Court. Whether a decision of the Commission would do so was not well explored, but see Lambadis v Commissioner of Police (1995) 37 NSWLR 320 as to the Government and Related Employees Appeal Tribunal; Kuligowski v Metrobus (2004) 78 ALJR 1031 at 1035-6; and Spencer Bower and Handley, Res Judicata , 4th ed, paras 8.33-8.34. In Murray v Commissioner of Police [2004] NSWCA 365 at [46] (Tobias JA, Giles and Ipp JJA agreeing) it was accepted that a decision of the Commission in Court Session created an issue estoppel. 97The submissions were incomplete, and it is not necessary to express a view. The respondent suggested, perhaps faintly, that entitlement of a miner has always been for a court and issue estoppel from a decision of the Commission was against the Commission having the jurisdiction in question, but the suggestion unduly confined attention to a coal miner's entitlement. In any event, for the reasons I have given, if entitlement for the purposes of an application for a reinstatement order is not within the Commission's jurisdiction it falls to the Workers Compensation Commission. The legislature should be taken to have been cognisant of any issue estoppel that might arise, and it is far from irrational that it should have accepted that there should not be duplication of inquiry and determination. That an issue estoppel would arise, if it would, is not against the conclusion to which I have come.

Relief pursuant to s 69 of the Supreme Court Act 98Section 179 of the Industrial Relations Act is a privative provision restricting review of decisions and purported decisions of the Commission. The applicant submitted in his written submissions that, if the Commission had misapprehended its jurisdiction, s 179 did not preclude the relief he sought: Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [105]. 99At one point in oral submissions counsel for the applicant unwisely accepted that the Commission's error was not jurisdictional error, but error of law on the face of the record in misconstruing s 240(2) of the WC Act. That could enliven the privative provision. Jurisdictional error will often come about through error of law, and remains jurisdictional error. There was a denial of jurisdiction to determine whether the applicant received an injury for which he was entitled to receive compensation, and jurisdictional error is a correct description. 100The respondent accepted that s 179 did not prevent the grant of relief, and did not take up that it should be regarded as error of law on the face of the record. It did not raise any discretionary matters. It did not dispute the terms of the relief claimed.

Orders 101I propose the orders - (1) Order that the record of the proceedings in the Industrial Relations Commission of New South Wales in matter no. IRC 1631 of 2009 be brought up to this Court. (2) Order that the order dismissing the appeal made by the Full Bench of the Industrial Relations Commission of New South Wales on 8 September 2010 be quashed. (3) Order that matter no. IRC 1631 of 2009 be remitted to the Industrial Relations Commission of New South Wales to be decided according to law in conformity with the decision of this Court. (4) Order that the second respondent pay the applicant's costs. 102HODGSON JA : I agree with Giles JA.

Amendments 15 August 2011 - Amendment to Junior Counsel's nameAmendment to name of judge appealed from Amended paragraphs: Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2011

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