Bindaree Beef Pty Limited v Australian Meat Industry Employees' Union (on behalf of Anthony Terrance Riley) and Anor [2014] HCATrans 55 (14 March 2014)

Last Updated: 19 March 2014

[2014] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S192 of 2013

B e t w e e n -

BINDAREE BEEF PTY LIMITED

Applicant

and

AUSTRALIAN MEAT INDUSTRY EMPLOYEES’ UNION (ON BEHALF OF ANTHONY TERRANCE RILEY)

First Respondent

INDUSTRIAL RELATIONS COMMISSION OF NSW

Second Respondent

Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MARCH 2014, AT 11.23 AM

Copyright in the High Court of Australia

MR A.R. MOSES, SC: Yes, if it please the Court, I appear with my learned friend, MR D.C.P. STEWART, for the applicant. (instructed by Hilliard & Berry Solicitors)

MR M.J. PERRY: May it please the Court, I appear for the first respondent with my learned friend, MR C.J. TANNER. (instructed by Carroll & O’Dea)

FRENCH CJ: Thank you. Yes, Mr Moses.

MR MOSES: Yes, thank you, your Honour. Your Honour, at the heart of this application is the conflict between an employer’s legal responsibilities to safeguard the safety and welfare of its employees and the employer’s statutory obligations not to dismiss an injured worker in certain circumstances as set out by Part 8 of the Workers’ Compensation Act. The question which arises is whether Part 8 of the Workers Compensation Act 1987 should be construed in a harmonious manner, so that its sections are consistent one with the other, as well as being consistent with the competing obligations imposed on an employer in the Occupational Health & Safety Act and its successor Act, the Work Health and Safety Act.

FRENCH CJ: Are we concerned primarily with the construction of the presumption and rebuttal provisions in 244?

MR MOSES: Yes, your Honour, and I might - - -

FRENCH CJ: It is really the rebuttal provision, is it not, 244(2) and the exclusion of the inquiry as to fitness for work?

MR MOSES: That is correct, your Honour.

KEANE J: The attraction of the approach that you are suggesting was not lost on the Court of Appeal.

MR MOSES: No. Justice Basten in his dissenting judgment alluded to the logic of the contention advanced by the applicant in the proceedings below. It was not one that found favour with the majority.

Your Honours, if I can touch very briefly, if I can, on the facts of the matter because they will give some background to the argument. The facts of the matter are set out in the decision of the Chief Justice at pages 104 to 111 of the application book at paragraphs 3 to 17. I wanted to draw your Honours’ attention in particular to what appears at page 108 which is the letter from the applicant’s Human Resources Manager to the first respondent and the third and fourth paragraphs of that letter.

By reference to the third paragraph of the letter, it should be noted that there was no dispute in the proceedings that the first respondent was in fact undertaking his full normal duties as a slicer at the time of the dismissal. However, the evidence established that by carrying out those duties, the first respondent was at risk in the future of further aggravation of his injury. By reference to the fourth paragraph, it was the applicant’s obligation to avoid a risk of the first respondent aggravating his existing injury which motivated its action to terminate his employment in order to ensure that it did not breach its statutory obligations under the then Occupational Health & Safety Act. The evidence of the decision-maker was not shaken on this issue in the proceedings.

With that background in mind, there are two primary issues which are raised by the applicant in relation to the present application. Firstly, as your Honour the Chief Justice has noted, whether the majority erred in its construction of section 244 by determining that for an employer to rebut the presumption in section 244(1), the question of fitness for employment is irrelevant to the inquiry in subsection (2); that is ground 1. The second issue is the failure by the majority in construing section 244 of the Act to resolve the competing obligations in the Occupational Health & Safety Act and that is ground 2. The argument on ground 2, as I will come to shortly, is not an implied repeal point but merely the harmonious construction of two statutes in order to achieve a result which will best give effect to the purpose and language of both.

Grounds 3, 4 and 5 are not pressed in respect of the special leave application. I should note that at the outset. It is accepted by the applicant that if the Court grants special leave to appeal in relation to grounds 1 and 2, the remaining grounds fall away. If grounds 1 and 2 are not the subject of a grant of special leave, then grounds 3, 4 and 5 would not attract grant of special leave.

Can I turn to ground 1? Your Honours will find in the judgement of the Chief Justice the relevant sections of the Workers’ Compensation Act at pages 111 to 113 of the application book. At page 111, line 40, your Honours will note section 241(1) which is the gateway to the jurisdiction. It provides that:

If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement –

At page 112 of the application book at about line 55, section 244(1), there is set out and again it refers to the terminology concerning if the employee:

was dismissed because he or she was not fit for employment as a result of the injury received.

The presumption in section 244(2) is set out at page 113 of the application book at line 10:

if . . . the injury was not a substantial and operative cause of the dismissal –

then the rebuttal of the presumption occurs. It is not dissimilar to the test which your Honour the Chief Justice considered in the Board of Bendigo Case recently.

FRENCH CJ: Can I just ask this question? Is not the consequence of the construction adopted by the Court of Appeal that subsection (2) is exhaustive of the basis upon which the presumption in subsection (1) can be rebutted?

MR MOSES: That is our reading of what appears at paragraphs 56 and 57 at page 126 if the application book. That is - - -

FRENCH CJ: What is your contention in that respect?

MR MOSES: Our contention, your Honour, is this – and we contended this below. It is to be found at paragraphs 97 and 98 of Justice Basten’s judgment at pages 139 and 140 of the application book. In essence, we contended that if the applicant could establish that the termination of the employment, despite being founded on the injury suffered by the worker, did not result from a belief that he was not fit for employment, it had successfully rebutted the presumption and removed the precondition for the application for reinstatement.

FRENCH CJ: That is to say that there is a path to rebuttal of 244(1) other than through 244(2).

MR MOSES: That is correct, your Honour, and we say that our approach in construing the statute was to treat the reference to the injury in section 244(2) as shorthand for the composite phrase, “not fit for employment as a result of the injury”, which appears in section 241(1) and section 244(1) of the Act. In short, the first respondent’s unfitness was not the operative reason for the dismissal and the presumption had been rebutted and we respectfully submit that the approach that we urge upon this Court is in accordance with the approach which this Court took in Federal Commissioner of Taxation v Unit Trend Services which is at tab 12 of the folder of authorities. I will not take your Honours to it but in essence it is that when construing the legislation, it must be in light of Part 8 as a whole and that the relevant sections fell within a particular part of the Act which relate to a self-contained concept.

FRENCH CJ: Does your reference to the Occupational Health & Safety and Work Health and Safety legislation, is that intended to support a proposition that you can import into the rebuttal of the presumption in 244(1), safety considerations which negative the proposition that the worker was dismissed because of being “not fit for employment”?

MR MOSES: Yes, your Honour, and that is the point that Justice Basten refers to at paragraph 108.

FRENCH CJ: But you say the safety considerations stand outside the concept of “unfit for employment”?

MR MOSES: What we say, your Honour, is that a construction of section 244(2) should be in a manner that permits the Commission to take into account the fact that the employer, as the operative and substantial reason for the termination of employment, was seeking to comply with its obligations under the Occupational Health & Safety Act.

FRENCH CJ: So for the worker who is at risk of aggravating an injury if reinstated can nevertheless be a person who was fit for employment?

MR MOSES: That is a different point, your Honour, in that the Chief Justice in his decision refers to section 243(2) of the Act which is to be found at page 112 of the application book at line 20. That provides that the Commission may order the worker to be reinstated:

but only if the Commission is satisfied that the worker is fit for that kind of employment.

Now, what the Chief Justice said in his reasoning was that that is sufficient to deal with any difficulties with compliance with the Occupational Health & Safety Act and the first respondent adopts that point and we say it misunderstands the point. The employer by that stage has already dismissed the employee because of their obligations under the Occupational Health & Safety Act. The point at which disharmony is to be resolved is not at the point of relief being granted but at the point of dismissal. That is, at the point of determining whether or not the dismissal falls within the purview of Part 8 and that approach creates confusion in the current climate as to whether employers can dismiss an employee based on legitimate occupational health and safety concerns.

The reason I say the current climate is that with the introduction of the Work Health and Safety Act and the obligations imposed by section 19 and section 27 of the Act, with increased penalties of up to $3 million per breach and five years’ imprisonment for officers of a corporation who do not ensure compliance with the Act by the corporation, it is important that this issue be the subject of a statement by this Court, given the observations by Justice Basten, that there has been a paucity of consideration of these important provisions in this Act, despite their being in the New South Wales legislation for over 30 years.

Your Honours, can I turn, if I can, to the second ground. I do not wish to develop the first ground any further than what is contained in our written submissions. There was a point that I wanted to raise in respect of the second ground and that is this. That we do not submit that there has been an implied repeal of the provisions contained within Part 8 by the later Work Health and Safety legislation. What we do say is that these competing obligations are to be resolved in accordance with the harmonious construction that is set out in the cases that have been summarised by Justice Leeming in his text, Resolving Conflicts of Law, which is behind tab 3 of the authorities folder at pages 490 and 491.

What we do submit is that the proviso that the employer need only take actions that are reasonably practicable, for the purposes of the Work Health and Safety Act, which are to be found in section 19 and onwards, does not resolve the competing obligations as there is no carve out for compliance with other laws in section 18 of the Work Health and Safety Act and every effort should be made to reconcile the competing statutes.

As this Court noted in Ferdinands v Commissioner of Public Employment, if I could ask your Honours to go to that judgment at tab 13 of the authorities folder at page 383. I apologise for the size of that folder, your Honours. They seem to have copied all of the pages of the judgment so it is page 383, paragraph 49. It is the third sentence of that paragraph which we say applies here and that is:

The question in the present case is not whether one law enacted by one legislature prevails over a law enacted by another legislature; it is whether the presumption that two laws made by the one legislature are intended to work together is displaced.

We say that the effect of the decision of the majority is that it just does not work with the way in which they have approached this question. It was not a matter that Justice Basten needed to resolve in his dissenting judgment but noted that it was a conflict point that would need to be resolved because in the end result his Honour would have preferred the order that it be remitted back to the Commission to determine according to law.

Your Honours, in short, we say that why special leave should be granted in this matter really rests on two issues: the interpretation of reversal of onus provisions in the Workers’ Compensation Act which have not been previously considered by this Court and as your Honour the Chief Justice noted in the Board of Bendigo Case, the reversal of onus provisions do not place a heavier obligation on an employer not to terminate an individual because they have certain characteristics.

We say that equally applies to this matter and secondly, the construction of a section where there is also a competing obligation to comply with a penal provision in health and safety legislation, and they are important matters for consideration in respect of this matter. Those are the submissions of the applicant.

FRENCH CJ: Thank you, Mr Moses. Yes, Mr Perry.

MR PERRY: Thank you, your Honour. Firstly, your Honour, may I read two affidavits that are in the application book? I understand it is without objection.

FRENCH CJ: Yes.

MR PERRY: First is from page 171; the second from page 199. Peter Damian Brown, sworn, is the first one, your Honour, of 2 December 2013. In summary, your Honour, that deposes essentially to suitable vehicle. There is a relatively handful of cases that are in existence in the relevant jurisdiction, we submit, and in the context of this provision not being replicated anywhere else throughout the Commonwealth, other than Queensland, in which case there is no rebuttal provision in the Queensland case. The second affidavit, your Honour, of Mr Paul O’Callaghan, is sworn the same date, 2 December 2013. That goes to costs, your Honour.

FRENCH CJ: Yes.

MR MOSES: There is no objection to those affidavits being read, your Honour?

FRENCH CJ: Yes.

MR PERRY: Yes, your Honour. So it is accepted by the applicant, as we understand it, that the termination was founded on the injury, to use their expression. We would take it that that for all intents and purposes equates to it being a case of the dismissal occurring, or the injury being a substantial and operative cause of the dismissal. If one accepts the interpretation of the rebuttal provision of the majority, Justice Basten noted the same thing at page 140 of the application book. That is the way he noted it was put to the Court of Appeal at that time. His Honour also described, of course, the question here at the heart of the proceedings being the construction of the rebuttal provision.

So if the majority’s construction is correct, then we respectfully submit that that should be the end of the application. In order to determine in tandem with other points that I have put in the written submissions in relation to the lack of public importance and the unsuitability of the vehicle, but in terms of the construction of the statute, we just say this, your Honour. Firstly, the text is clear and plain and if my learned friend’s contention is to be accepted, then there would need to be some words read into the provision. We would say that the language already in section 244(2) does not lead to any manifest contradiction or absurdity. To the contrary, there is a conformity between the evident purpose of the Act and, both generally and specifically, the text of the - - -

FRENCH CJ: Sorry, can you try and encapsulate for me why 244(2) should be read as exhaustive of the basis upon which the presumption can be rebutted?

MR PERRY: Yes, your Honour, because it provides, by its own words, that the rebuttal occurs if “the injury was not a substantial and operative cause of the dismissal of the worker”.

FRENCH CJ: Well, you are reading that as the presumption is rebutted if and only if.

MR PERRY: That is right, your Honour. Well, it does not say otherwise and there is no reason to read in any other purpose, your Honour, in my respectful submission. There is, if one looks at the text and the purpose of the Act, for example, it is as its heading says, “Protection of injured workers”.

FRENCH CJ: I suppose if you did not have subsection (2) – this may be a point to be answered by your opponent – if you did not have subsection (2), then treating 244(1) as a rebuttable presumption, you could rebut it on any limb that is available, that is, not fit for employment as a result of the injury received and so on.

MR PERRY: Yes, your Honour. I understand that, your Honour. Justice Basten describes it as a composite clause - - -

FRENCH CJ: Yes.

MR PERRY: - - - and he has expressed concern about why it is there and the scope of the presumption in section 244(1). Now, we say, your Honour, that there is symmetry between the word “injury” in 244(1) and the word “injury” in 244(2). For example, if it read, or the jurisdictional test read that an application was able to be made if the injured worker was dismissed because he was not fit for employment, that would not make it clear, on the part of the parliamentary draftsman, that it was dealing only with injuries that are compensable. So it must be an injury. An injury can be seen as having some meanings, your Honour. In section 240, the definition section of this part, the definition of “injured worker” is rolled up with – this is in subsection (2) – the concept of him being a worker –

who receives an injury for which the worker is entitled to receive compensation under this Act –

and the same occurs, your Honour, with an employer in subsection (3). So, a person is the employer for the purposes of the part:

only if the injury arose (either wholly or partly) out of or in the course of employment with that person.

But, nevertheless, to clarify - to answer your Honour’s question earlier, there needs to be at least for that clarity, when goes to section 244, the second limb, as it were, of that composite clause, that is, as a result of the injury received. If one, for example, looks at - as your Honours may have noted from our written submissions, the only other similar provision throughout the Commonwealth is section 232 of the Workers’ Compensation and Rehabilitation Act (Qld). While it does not have a rebuttal provision, it is essentially the same drafting. It refers to at page 163:

“if an injured worker is dismissed because the worker is not fit for employment in a position because of the injury”.

So, it is much the same thing, your Honour, as a result of the injury in this jurisdiction. So what we say, coming back to your Honour’s question, is that the concerns expressed by Justice Basten can be alleviated by looking at - and may I say his Honour, with respect, did not note, at least expressly, the definition of “employer” in section 240(3), including an employer of an injured worker who had had an injury within the meaning of the Act. But, your Honour, if we go to section 244(1):

he or she was not fit for employment as a result of the injury received.

Now, if one then looks at the only other appearance of the word “injury” in that section - it is in the rebuttal provision - it is the injury and of course the injury is the thing that has happened to the part of the body of the injured worker. That is what the relevant definition section in the Workplace Injury Management Compensation Act says, which is a related Act to the Workers Compensation Act and section 2A of the Workers Compensation Act says both are to be read together.

So that is the prism through which we say it is, with respect, clear that the rebuttal provision should operate. It is through the injury and that is the injury within the meaning of the Act. Now, for something else to be read in such as as my learned friend contends, the jurisdictional test itself so that subsection (2) might be said to read the presumption is not rebutted if the employer satisfies the Industrial Relations Commission that the unfitness for work as a result of the injury was not a substantial and operative cause, firstly, that could have been drafted that way. Secondly, your Honour, it is something that, with respect, should only be done or read into the Act if it be clear that it - - -

FRENCH CJ: Well, that is on the premise that (2) is exhaustive.

MR PERRY: Yes.

FRENCH CJ: Then to get that other criterion in you have to read it into that section. If it is non-exhaustive, of course, you do not have to. It is just part of the business of rebutting the presumption in 244(1).

MR PERRY: That is so, your Honour.

FRENCH CJ: Your premise is it is exhaustive and that is how the court approached it.

MR PERRY: Yes. That is so, your Honour. All I can say further is that it is something that has been dealt with by the majority and we of course adopt what the majority says about that. But, otherwise, your Honour, the scheme and the text and the purpose of the Act is consistent with and conforms with that approach. It being non-exhaustive would militate against what we say was the clear purpose of the Act.

If we go to the second reading speech, your Honour, and that is in the supplementary bundle at page 560 - this is the second reading speech to the Industrial Relations Act 1996, page 560, two-thirds of the way down, “Protection of Injured Employees”. These provisions carry:

forward provisions of the 1991 Act which are designed to provide certain employment-security rights for persons who have suffered a work-related injury . . . the policy objective is the reinstatement of injured workers.

The existing second line of that document, so 1, 2, 3, fourth paragraph up from the bottom –

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 -

This is slightly off the question of what your Honour the Chief Justice has put to me but up to that point the rebuttal provision in the predecessor Acts, the Industrial Arbitration Act 1940, referred to the presumption being rebutted if it could be shown that the reason for the dismissal, not the cause as it appears in the present provision, the reason for the provision was solely or predominantly due to the injury.

So, I raise that, your Honours, again to attempt to reinforce the point that there is a policy and a purpose in the legislation, that is as the heading to Chapter 8 of the Act itself says, again, “Protection of Injured Workers from Dismissal”. So that to the extent that it is other than exhaustive, militates against that, is the best I can say in that respect finally, your Honour.

In any event, just in relation to my learned friend’s point about the – or on the assumption that the test does involve unfitness for employment, the evidence, as has been pointed out in our submissions, nevertheless means that – or adds up to – as both the Full Bench and the Chief Justice and President of the Court of Appeal have found, the decision-maker taking the view that – or effecting the termination because he was unfit as well as because of the injury.

So that – I mean, there are references, for example, to him in his affidavit saying, well, because you cannot perform the inherent requirements of your duties we feel it is an occupational health and safety risk. So while, for example, in cases such as Barclay it is noted that it cannot be the law that one can never disassociate the prohibited action from the – so the injury in this case – in the present case there is very much an inextricable entwinement between the injury and the said occupational health and safety concerns or the aggravation of work concerns, and that applies to the fitness for employment as well. Now, your Honour, as far as ground 2 is concerned - - -

FRENCH CJ: Well, that really feeds into the constructional question, does it not?

MR PERRY: Ground 2?

FRENCH CJ: Yes.

MR PERRY: Yes, your Honour. That is so, so I will be brief about that, your Honour. Just to add this, it has been put in our written submission that the point of there being some conflict between the Acts, the two Acts, was not put before the Industrial Commission or the Court of Appeal. I accept my learned friend does not put that here but, nevertheless, the Industrial Commission, the Industrial Relations Commission, has dealt with those matters in its judgment and so has the Court of Appeal - - -

FRENCH CJ: Well, that is not the question. The question really is whether these other employer obligations have a role to play in determining whether 244(2) is exhaustive.

MR PERRY: Yes, your Honour. Well, we say not, your Honour, and the - - -

KEANE J: And whether or not they overwhelm the injury as a substantial and operative cause of the dismissal. It is a question of fact, is it not? It is a matter of – it is a question of fact, having heard the witnesses who gave evidence about it.

MR PERRY: That is right, your Honour.

KEANE J: It is a very difficult question.

MR PERRY: Yes.

KEANE J: .....as it was by these concerns that Mr Moses has mentioned, but it is a question of fact.

MR PERRY: It is a question of fact, your Honour, but in terms of the principle that is posited we respectfully submit that the Chief Justice, and agreed with by the President, have dealt with it very elegantly by saying – I think it is in paragraph 65 of the Court of Appeal judgment – that the fact that the occupational health and safety risks do not have anything to do with the rebuttal provision, they do have a role to play in section 243. That is the provision that deals with the fitness for employment and his Honour has indicated – and this is the top of page 130 of the application book – failure to consider questions of whether somebody could safely perform that type of employment “would constitute error”.

FRENCH CJ: Thank you.

MR PERRY: So otherwise we just rely upon our written submissions, if your Honours please.

FRENCH CJ: Yes. Yes, Mr Moses.

MR MOSES: Yes, thank you, your Honours. I just want to deal with the reversal of onus point made by our learned friends. The suggestion that the words of section 244(2) are exhaustive is not demonstrated by a plain reading of that section and that on the interpretation by the Court of Appeal the onus of proof has not merely been reversed on the present interpretation, but what the applicant can rely upon to rebut the presumption has been limited.

Justice Keane referred to factual determination of matters and whether one issue dominates over the other in respect of being the reason for the termination, but on the current construction by the Court of Appeal – and one only needs to go to paragraph 65 to demonstrate the point, at page 129 of the application book – their Honours there are stipulating that the occupational health and safety issue only becomes relevant on the question of the order for reinstatement. That creates the problem here because we say it is a matter to be taken into account when you are rebutting the presumption in section 244(2) because that is where the section bites in terms of the liability and you then have the competing liability in section 19 of the current Work Health and Safety Act.

Now, the presumption is that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. As Justice Basten noted in his strong dissenting judgment at paragraph 98 at page 140, one would expect that in order to rebut that presumption the applicant needs to demonstrate that all elements of the presumption are not, in fact, true. However, on the majority’s interpretation that is not so. Whether or not the worker is fit for employment is irrelevant when dealing with the rebuttal.

The onus, of course, as we have said, should not be made heavier in section 244(2) despite it being reversed, a point that your Honour the Chief Justice made with Justice Crennan in The Board of Bendigo decision at paragraph [60], which is to be found at page 13 behind tab 1 of the folder of authorities. Here section 244(2) does not expressly state that the presumption will only be rebutted if it is demonstrated that the dismissal did not occur because of an injury suffered by the worker.

The reversal does not impose a heavier obligation on an employer that is rendered impossible to discharge because the employee suffered an injury. The interpretation found by the majority, in effect, requires an employer to not terminate an employee for any reason that is connected

with an injury the worker has sustained in the past during the course of their employment under risk of being required to reinstate. That is the difficulty with the present state of the law in respect of that provision. Those are our submissions in reply.

FRENCH CJ: Thank you, Mr Moses.

Having regard to the purpose of the reinstatement provisions, the construction of section 244 of the Workers Compensation Act 1987 (NSW) adopted by the Court of Appeal was open and in our opinion did not raise a question of general principle warranting the grant of special leave. Nor is the Court’s treatment of the relationship between the employer’s obligation pursuant to the reinstatement provisions of the Act and the employer’s obligations pursuant to the Occupational Health and Safety Act 2000 (NSW) and the Work Health and Safety Act 2011 (NSW) attended by sufficient doubt to warrant the grant of special leave. Special leave will be refused with costs.

Now, I understand there is an amendment, which is not contested, to name the first respondent as “Anthony Terrance Riley”.

MR PERRY: That is correct, your Honour.

FRENCH CJ: The name of the first respondent will be so amended. Thank you.

AT 12.03 PM THE MATTER WAS CONCLUDED