Blackadder v Ramsey Butchering Services Pty Ltd
[2004] HCATrans 369
[2004] HCATrans 369
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S186 of 2004
B e t w e e n -
STEPHEN BLACKADDER
Appellant
and
RAMSEY BUTCHERING SERVICES PTY LTD
Respondent
McHUGH J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 30 SEPTEMBER 2004, AT 10.16 AM
Copyright in the High Court of Australia
MR S.C. ROTHMAN, SC: If the Court pleases, I appear with my learned friend, MR C.T. MAGEE, for the appellant. (instructed by MRM Solicitors)
MR G.J. HATCHER, SC: May it please the Court, I appear with my learned friend, MR B.K.B. CROSS, for the respondent. (instructed by Hannigans Solicitors)
McHUGH J: Yes, Mr Rothman.
MR ROTHMAN: Because of the somewhat unusual litigious history of this matter, I would, with respect, seek the Court’s indulgence to take two or three minutes to take the Court through that history albeit in truncated form. Relevantly, the underlying factual issue commences with the appellant giving evidence before the Australian Industrial Relations Commission in proceedings at the request of the respondent in a manner said to be antithetical to the respondent’s interests.
KIRBY J: It begins with him being employed by the respondent.
MR ROTHMAN: Indeed, your Honour. I am only talking now about the litigation history.
KIRBY J: And that going on without apparent mishap until the day after he gave – he was working on the boning floor, is that not correct?
MR ROTHMAN: Indeed, your Honour. He was relevantly employed from April 1998 at least until 28 September 1999 during which time he was working only in what is called the big boning room, that is, as a boner in the room in question.
KIRBY J: He gave evidence on a day and the next day he was transferred to the hot neck boning.
MR ROTHMAN: Indeed, your Honour. I was about to next say that on return to the premises the next day after giving evidence on 27 September 1999, the respondent employer, before the appellant commences work, directs the appellant to perform hot neck boning on the slaughter floor; a duty, on the findings of fact, never previously undertaken and for which the appellant was, on the findings, neither trained nor fit, and certainly not competent, in our respectful submission.
KIRBY J: In one sense, maybe it begins a bit earlier, because the abattoir had been closed and Mr Ramsey reopened it on a basis of more flexibility in the performance of the whole range of duties, did he not?
MR ROTHMAN: That is the finding of the purpose or intent of the employer by his Honour Justice Madgwick, yes, your Honour.
KIRBY J: But then there is this very coincidental transfer of duties immediately after he had given evidence.
MR ROTHMAN: Yes, your Honour.
KIRBY J: But the Commissioner did not go on to find that that was punishment for giving evidence. He said he did not have to.
MR ROTHMAN: Yes, your Honour. I would suggest it would perhaps be better described as he did not need to so find. In any event, the appellant refuses to undertake the work. Termination occurs. It has to be said that notwithstanding the rather lengthy history of litigation, no one seems to have found the actual date of termination. It is not found in any of the factual material before the Court.
On 25 October 1999, there is an application for reinstatement. In the proceedings before Commissioner Redmond, the respondent employer adduces no evidence. On 18 April 2000 – I am obviously giving a truncated history – Commissioner Redmond having made the orders he made, and I do not take the Court to them at this stage, the respondent employer below and here appeals the decision. That is at appeal book 14.
KIRBY J: Commissioner Redmond is a commissioner of the Australian Industrial Relations Commission?
MR ROTHMAN: He is, your Honour.
KIRBY J: And his jurisdiction was enlivened, was it, by the terms of the Australian Workplace Agreement or by the Act applying to the terms of that agreement?
MR ROTHMAN: His jurisdiction to make the orders he made is enlivened by two issues: first, an application being made under the provisions of section 170CE of the Act ‑ ‑ ‑
KIRBY J: And you have nominated two prints. Apparently, there was a change in the Act between the Commissioner’s – which one should we go to?
MR ROTHMAN: There was a change in the Act, but not relevant for your Honour, it has to be said. As a matter of completeness for the Court, I gave both dates, but there are no relevant changes as I understand it.
KIRBY J: We are looking at Reprint 4, are we?
MR ROTHMAN: Yes, your Honour, but I should add also, relevantly, it is not different from the current Act, so if your Honours have a version which is current that would suffice, at least for these relevant sections. In any event, in answer to your Honour’s question, the jurisdiction is enlivened by two issues. One is an application pursuant to the terms of section 170CE and thereafter to a finding pursuant to the terms of section 170CG, after a number of preliminary steps, none of which are particularly relevant in these proceedings. The Commission is empowered to arbitrate on the issues contained in the matter. If your Honours look at section 170CG(3), the Commission is required:
In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to –
and there are a number of enumerated paragraphs to which I do not take the Court.
The power to make the orders are then found in section 170CH(1) which is conditioned on the Commission firstly having completed the arbitration is then empowered to make an order and then it is precluded from making such an order unless it:
is satisfied, having regard to all the circumstances of –
matters enumerated in paragraphs (a) to (e) of subsection (2) it having:
determined that the termination was harsh, unjust or unreasonable.
So that the orders, and I think I have set this out in the outline of submissions at paragraph 27 in essence without referring to it in the outline, in accordance with the decisions of this Court inter alia arising in and from Parisienne Basket the determination of the Commission is the jurisdictional precursor, not the objective existence of the fact. Nothing turns on that for the purpose of this case, your Honour. The orders are then made under section 170CH and they are either made under subsection (3) or subsection (4). They can be made also under subsection (6) and there are a number of combinations of orders that may be made.
HAYNE J: Which was engaged here?
MR ROTHMAN: That is relevantly for the matter that is now under appeal. The orders were made under section 170CH(3).
HAYNE J: And (3)(a) or (3)(b)?
MR ROTHMAN: Subsection (3)(a). In any event, your Honours have read it, so I will not read the section.
KIRBY J: How does it operate consistent with the Constitution? I am embarrassed to ask this, but I stepped out this area when the old understanding was that the Commission could not order reinstatement.
MR ROTHMAN: I thought your Honour meant judicial power. There is an underlying covenant relating to it. It is referred to in the judgment of his Honour Justice Moore in the Full Court. There is an international convention ‑ ‑ ‑
KIRBY J: Yes, you mentioned this.
MR ROTHMAN: ‑ ‑ ‑ which underpins pursuant to the external affairs power the ‑ ‑ ‑
KIRBY J: But hat is the source of the power to enact the law. It is still subject to Chapter III.
MR ROTHMAN: Yes, your Honour.
McHUGH J: In Wooldumpers we threw doubt on those earlier cases, did we not, about reinstatement?
MR ROTHMAN: Yes, your Honour, and in Ranger to a lesser degree but ‑ ‑ ‑
KIRBY J: Like Ranger. Ranger was the case I think that I ‑ ‑ ‑
MR ROTHMAN: Yes. In any event, the legislation has gone through some changes. It is not a subject of challenge in these proceedings, but your Honours may recall that post‑1993 ‑ ‑ ‑
KIRBY J: There is just a bit of a hint in the respondent’s submissions of a constitutional issue lurking in the background. I am always very vigilant to such hints.
MR ROTHMAN: If it is a hint, your Honour, it is probably inconsistent with the submission they make in Part II of their submissions, that is that there is no 78B notice necessary, and it was a hint that, frankly, I did not pick up. I am not in your Honour’s position. The history, your Honour, is that prior to 1993 it was considered largely, although not uniformly, that the Commission did not have the power to reinstate because it required an interstate industrial dispute which was difficult to effect such a dispute in such a way that it would give rise to an order for reinstatement.
KIRBY J: That was the paragraph 35 problem, and then you say that is solved by the external affairs power and the incorporation in municipal law of the ILO Convention which became the source of a new part of the Act and that solved that problem.
MR ROTHMAN: Yes, your Honour, post 1993 it was given to the Industrial Relations Court of Australia, which I suppose is still a court and ‑ ‑ ‑
KIRBY J: It certainly is.
MR ROTHMAN: Yes, your Honour, I did not mean that in any way pejoratively but it just exercises no jurisdiction. But it was conditional upon the objective existence of the factual circumstance, that is, that the termination was unfair, harsh or unjust. The court in – it reached its high point, well, low point, in a judgment of his Honour Justice Gray in which the court said they were not prepared to look at fairness all around, and that too is referred to in his Honour Justice Moore’s judgment in the Full Court, and the ‑ ‑ ‑
KIRBY J: But the old problem used to be, how does the Commission, which is not disposing of legal rights, make an order that effectively determines the legal rights of parties as from a given date by orders of reinstatement, and the answer to that question is that Wooldumpers and Ranger said that, framed in a particular way, the Commission can order reinstatement but to actually carry it into effect in the event of a dispute you need a supplementary order of the Federal Court. Is that correct?
MR ROTHMAN: To enforce it, you certainly do, and it then takes the form of an alteration to the contractual rights of the parties or the legal rights of the parties.
KIRBY J: Hence this rather long‑winded process that happened here, the proceeding before the Commissioner and then, when that was not carried into effect, according to your client, the application to Justice Madgwick and then the appeal to the Full Court.
MR ROTHMAN: Yes, your Honour. The discussion in this Court relating to the power to reinstate has moved a long way since – I think it was Portus’ Case, which I think is the one to which your Honour was referring earlier about the enforcement of legal rights. Ranger and Wooldumpers certainly discuss it at length. The judgment of this Court in PKIU; Ex parte Vista (1993) 67 ALJR 604 is about the only case I can think of which, pre this legislative scheme or its immediate predecessor, provided for an interstate dispute. That became the source of the constitutional problem associated with reinstatement, rather than the exercise of judicial power under Chapter III.
KIRBY J: I am sorry to have taken you into the little excursus.
MR ROTHMAN: That is all right, your Honour.
KIRBY J: The hint that I referred to is in the last part of paragraph 30 of the respondent’s submissions, but do not worry about it, because ‑ ‑ ‑
MR ROTHMAN: Yes, on the nature of the injunctive relief ‑ ‑ ‑
KIRBY J: ‑ ‑ ‑ there is no notice and we do not want to revive any problems that arise if there is a constitutional issue.
MR ROTHMAN: Yes, your Honour. There is no suggestion in anyone’s submission that there is not a discretion in the court as to whether or not injunction would issue, and I thought that was what the issue went to. Likewise, there is no issue that it is for the court to determine for itself the factual basis upon which any order of the court would operate, and is not bound in that sense by the Commission’s determination of fact. It is bound, of course, to give cognisance to the fact of the order that is being enforced, but any other interpretation would run foul of Brandy and that line of territory. It is not, in our respectful submission, a problem engendered by the provisions of this Act in the way in which it has been framed. In any event, that aspect is not the subject of any challenge in these proceedings.
KIRBY J: We have got you to the point where the Commissioner has order reinstatement.
MR ROTHMAN: Indeed, your Honour, and I was about to take your Honours to ‑ ‑ ‑
KIRBY J: There are some pretty telling remarks in the Commissioner’s reasons, as quoted by Justice Madgwick.
MR ROTHMAN: Yes, your Honour, and I no doubt will take you back to that, but I hope not to have to repeat those matters. What I was about to take your Honours to is the fact that an appeal was sought to be made against the orders of Commissioner Redmond. On appeal – I should add that there is no assertion in the appeal, as a matter of fact, that the appellant in these proceedings was unfit for the work or to be reinstated. The closest that he comes is on appeal book page 15 in paragraph 8, where the appeal alleges, or one of the grounds of the appeal suggests that:
The Commission erred in that in the absence of medical evidence the Commission made assumptions as to the fitness or otherwise of the Respondent to perform work –
On appeal, notwithstanding the rehearing nature in terms of section 45 of the Act under which the appeal would be heard – for that, your Honours would also need to refer to section 170JF – no evidence was adduced by the employer on appeal. One then comes to the Federal Court proceedings. I am not going through the history of the matter that is set out in the chronology, I am really going through the history of the litigation rather than the proceedings ‑ ‑ ‑
KIRBY J: Well, the outcome of the application was refusal of leave to appeal, was it not?
MR ROTHMAN: Indeed, your Honour and in the Federal Court proceedings were commenced ‑ ‑ ‑
KIRBY J: That is a pretty strong bench too, Justice Bolton and Justice Munro, Commissioner Harrison, a pretty experienced group of people.
MR ROTHMAN: Experienced yes, your Honour. Strong - I thought that might relate more to whether they can do meat work but, yes, your Honour. The Federal Court proceedings were commenced by application and statement of claim. There was an amended application and statement of claim filed. No defence was filed in the Federal Court proceedings. No evidence was adduced by the respondent employer during the primary proceedings before Justice Madgwick, and ‑ ‑ ‑
HAYNE J: You said no defence was filed. I assume none would be called for in an action of this kind, would it, action for penalties?
MR ROTHMAN: My understanding of the Federal Court Rules, your Honour, is that a defence is called for. There was a recent judgment of the Full Court - if your Honour is referring to the fact that it is a civil penalty - there is a recent judgment of the Full Court of the Federal Court in which the Full Court ruled that there was no general – certainly in the case of a corporation there is none -, privilege against filing a defence in the Federal Court against a civil penalty.
HAYNE J: Well, what consequence follows, do you say, from the fact that no defence was filed?
MR ROTHMAN: In the way in which these proceedings were run, very little, because no attempt was then made to seek a default judgment as one could have, perhaps.
KIRBY J: I am getting lost. Was it open to the respondent in the Federal Court, notwithstanding the finding of the Commissioner, confirmed by the Full Bench of the Industrial Commission, to relitigate the basis upon which reinstatement had been ordered? Is that the sort of defence you are talking of?
MR ROTHMAN: No, your Honour.
KIRBY J: What is the defence? What kinds of defences are available in the Federal Court to the action to enforce the decision of the Australian Industrial Relations Commission? I just do not know this so you have to tell us this.
MR ROTHMAN: Well, for example, if an offence is set up that the orders of the Australian Industrial Relations Commission do not mean what it is alleged in the application, that would be one such defence, or do not require the reinstatement in the way suggested by the application that would be a defence. If, as ‑ ‑ ‑
CALLINAN J: That last one seems to be the one that may have been run, Mr Rothman, was it?
MR ROTHMAN: Indeed, your Honour.
CALLINAN J: Saying that he could not do the boning work, but how would you know what the issues were if there were no defence?
MR ROTHMAN: Your Honour, I did not run the case below, but it would be ‑ ‑ ‑
CALLINAN J: It is very difficult.
MR ROTHMAN: Indeed, your Honour, and probably more difficult for the judge than for the parties in some respects but ‑ ‑ ‑
CALLINAN J: Well hard for the applicant, the applicant ‑ ‑ ‑
MR ROTHMAN: Certainly hard for the applicant. One of the issues, referring back to the question his Honour Justice Hayne asked, and related to the question your Honour Justice Callinan asked, one of the questions that may arise from the lack of a filing of a defence is the issue that ultimately seems to bog down in the court, and that is the issue of the medical competence of the appellant. On one view, at least, that is a defence of either impossibility or futility.
HAYNE J: I am sorry, you are going to have to really unpick this because you have wrapped up in one step what seemed to me to be about four. First, the proceedings were proceedings, were they not, founded ultimately in 170JC, is that right?
MR ROTHMAN: Yes, your Honour.
HAYNE J: Which engages Part VIII. That is to say it engages sections 177A and following, is that right?
MR ROTHMAN: Yes, your Honour.
HAYNE J: The central allegation made, it appears in the amended application, is that there has been conduct contravening the Act. Is the conduct contravening the Act identified in the amended application?
MR ROTHMAN: Not in the application, your Honour. In the amended statement of claim which commences at appeal book 33, paragraph 6 refers to the express terms of the AWA, that is, the workplace agreement.
KIRBY J: What page are we on, Mr Rothman?
MR ROTHMAN: Appeal book 34, your Honour.
HAYNE J: Yes, but where do I find the allegation which seems to lie at the root of the proceeding, the allegation of conduct contravening the Act?
McHUGH J: It is paragraph 34, is it not?
MR ROTHMAN: Yes, your Honour. Paragraph 34 recites the conduct in paragraphs 17 to 33 and alleges that that constitutes a breach of the orders of Commissioner Redmond pursuant to section 170CH(3). That is on appeal book 38, your Honour.
HAYNE J: And what does medical fitness have to do with that issue?
MR ROTHMAN: Well, your Honour, that is our submission. It has nothing to do with that issue. In our respectful submission, if it was ever to have anything to do with that submission, a separate and positive defence would have to be set up ‑ ‑ ‑
HAYNE J: Is that right? You see the way it is pleaded the conduct as particularised in 17 to 33 takes you back, for example, to 32 to an allegation that the applicant is “ready, willing and able”. Does that mean that the applicant worker has set up as an element of contravention that he being “ready, willing and able” was not, in effect, put back into the sort of work he was doing before? Identifying the alleged contravention of the Act is no idle pleading point. It is, at least for my part, critical to the subsequent steps.
MR ROTHMAN: I am not suggesting that it is. What I am suggesting, however, your Honour, is that there is evidence, and indeed it was adduced before his Honour Justice Madgwick in the primary submissions on liability and on the breach of the Act relating to that very point, that is ‑ ‑ ‑
HAYNE J: I am sure there was evidence. I am sure that is the way the case has been conducted, but I am at sea at the moment in understanding quite what the contravention is, but go on.
MR ROTHMAN: Your Honour, with respect, the contravention is said to be that contained in paragraph 34 which recites paragraph 17, that is, the conduct of the respondent set out in paragraphs 17 to 33. Your Honour referred to paragraph 32. Paragraph 32, of course, is not a conduct of the respondent. What is said in paragraph 34 is that the conduct of the respondent particularised in paragraphs 17 to 33 is the breach.
In any event, your Honour, what we say is that in relation to the proceedings before Justice Madgwick, again, the evidence was – as I said, no defence was filed. Evidence was adduced only by the applicant. No evidence was adduced by the respondent until the minutes of order.
KIRBY J: Until what?
MR ROTHMAN: The minutes of order became an issue, that is, the terms of the order for injunctive relief.
KIRBY J: But, first of all, what is the position under the Rules of the Federal Court if a party does not file a defence? Are they taken to have admitted the matters that are asserted in the statement of claim or not?
MR ROTHMAN: The current authority – not binding on this Court obviously – in the Federal Court is that that which relates to the non‑filing of defence and it being an admission of fact relates – I withdraw that. There is a rule which provides that an allegation which is not denied in a pleading is an admission of a fact. The authority in the Federal Court is to the effect that if no pleading is filed it does not amount to such an admission. There is no other rule, at least that I can see, or that has ever been applied in the Federal Court, albeit that may be folklore, that has ever been applied in the Federal Court to the effect that it is an admission of the fact.
CALLINAN J: Mr Rothman, I may be wrong about this but it was my impression that really there were no facts in issue in the end, that, if anything, the case really turned upon the proper construction of clause 35.9 of the workplace agreement. In substance, that seemed to me to be the issue. Am I wrong?
MR ROTHMAN: I think that is the major premise, your Honour. I think that is the major premise.
CALLINAN J: The critical fact in regard to that, it seemed to me, was that the only disability your client suffered was some limitation in wrist rotation and that, in consequence, he could not do the hot boning work and therefore the direction, in effect, that the employer was saying that he failed to carry out was not one that he was obliged to carry out because the workplace agreement said he only had:
to carry out such duties as are within the limits of an employees skill, competence and training –
There had been a medical examination before his employment which identified that disability and the respondent chose to take him on with that disability.
MR ROTHMAN: Indeed, your Honour, and your Honour has ‑ ‑ ‑
KIRBY J: And add to that, did not give him any training for the hot ‑ ‑ ‑
MR ROTHMAN: Indeed, that is another aspect and the other aspect is he had never been trained, on the findings, in hot neck boning.
CALLINAN J: He said he was a danger, not only to himself but other employees and that does not seem to have been contradicted.
MR ROTHMAN: No, your Honour, it is not contradicted.
CALLINAN J: So it may well be that the issue and the only issue of substance is the proper construction of 35.9.
MR ROTHMAN: Indeed, your Honour, but the matter could be decided on that basis and that basis alone; I accept that.
HAYNE J: Well, why? Why is that raised by a question of whether there is a contravention of the order of Commissioner Redmond.
MR ROTHMAN: Because ‑ ‑ ‑
HAYNE J: What part of what paragraph of that order is said to have been contravened?
MR ROTHMAN: It is said that he was not reinstated into the position in which he originally – I am sorry, your Honour, I am paraphrasing and I should not do that. It is said he was not reinstated to the position in which he was employed prior to the termination.
KIRBY J: Now there is a subordinate issue - the order is at page 13 - that Justice Moore at the end of his reasons puts to one side because of the reasoning of the majority in the Full Court and that is that in terms of Commissioner Redmond’s order the position in which he was employed prior to the termination of his employment, query when that was, was that he was not doing any particular work at that time, is that not correct? At the time he was terminated he was not doing any work because he had not been for some time.
MR ROTHMAN: Well, your Honour, that depends very much on when he was terminated. In my respectful submission, that is not the position in which he was employed prior to termination. The position is ‑ ‑ ‑
KIRBY J: You say the focus is on the position, but ‑ ‑ ‑
MR ROTHMAN: Prior to the unreasonable – what was held by the Commissioner to be the unreasonable direction to perform hot neck boning.
CALLINAN J: You say the position was such position as was within his skill, training and competence?
MR ROTHMAN: Yes, your Honour.
CALLINAN J: And that hot boning was not?
MR ROTHMAN: Indeed, your Honour, and on the facts as found, which are unchallenged and uncontroverted, he had only ever been employed on boning in the boning room, that is the chilled boning room.
CALLINAN J: There was a, shall we say, latter day tender concern for his welfare and his physical ability and the duties of the employer under the occupational health and safety legislation.
MR ROTHMAN: Which the Commission and court were at pains not to find was not genuine. But your Honour’s description of it, in my respectful submission, I would adopt, respectfully. The reason that the issue arises in the way in which it does, your Honour, to answer your Honour Justice Hayne’s question, is that having determined and issued reasons and, indeed, orders on 10 May 2002, his Honour Justice Madgwick reserved and asked the page to come back with a minute of the injunctive relief that was sought. At that hearing, what was sought to be done and, indeed, what was done was that the respondent employer tendered medical material evidence and did so given the stage of the proceedings and what was before the court for the purpose of arguing that injunctive relief ought not issue. The other orders had already been issued.
KIRBY J: They were the penalty orders, were they?
MR ROTHMAN: The penalty orders and repayment of monies and the like and that is ‑ ‑ ‑
KIRBY J: And they were complied with, so far as we know?
MR ROTHMAN: It is not an issue in these proceedings. Those proceedings were pursuant to order 10 of Justice Madgwick’s order of 10 May. The matter was listed for argument relating to the injunctive relief and that was the first and only time evidence was adduced by the respondent employer at all and, certainly, evidence was adduced by the respondent employer relating to medical fitness.
The appeal does not challenge the findings of fact by Justice Madgwick, that is, the appeal to the Full Court of the Federal Court, and asserts medical evidence of the witness was accepted. His Honour Justice Madgwick in the extempore judgment issued in those proceedings, that is, in proceedings for the injunctive relief or in the form of the injunctive relief ‑ ‑ ‑
KIRBY J: Just pause there. At paragraph 43 of his reasons at page 234 Justice Madgwick refers to the supposed concern about the medical fitness and Dr Costagna’s report and he says:
I am not minded to conclude that there was such a bona fide concern.
So it does appear that that evidence was before Justice Madgwick in the principal proceedings.
MR ROTHMAN: No, your Honour, it was not.
KIRBY J: Is that not his Honour’s reasons at 234, paragraph 43? You see earlier in those reasons his Honour says the respondent called no evidence.
MR ROTHMAN: Yes, your Honour, it says that at appeal book ‑ ‑ ‑
CALLINAN J: Page 233.
MR ROTHMAN: Thank you, your Honour.
KIRBY J: But he appears to have had that evidence. So somehow the applicant must have put that evidence.
MR ROTHMAN: No, your Honour. There was cross-examination of the applicant in which certain things were put to the applicant ‑ ‑ ‑
KIRBY J: Was the report tendered to his Honour or ‑ ‑ ‑
MR ROTHMAN: No, it was not, not at that stage, your Honour, not prior to this judgment issuing, the reasons for judgment issuing.
KIRBY J: Well, how could he have referred to it then, if it was not?
MR ROTHMAN: Your Honour’s reference to ‑ ‑ ‑
KIRBY J: Paragraph 43 on page 13 of what appear to be the principal reasons before his Honour has got to the dispute which arose, you say, on the speaking to the minute of the order in relation to the injunctive relief.
MR ROTHMAN: I am sorry, your Honour, did you say page 13?
KIRBY J: No, paragraph 43, page 13 of the principal reasons which is on page 234 of the appeal book.
MR ROTHMAN: Yes, your Honour. That was a reference to the appointment with Dr Costagna. There were issues between the parties which ‑ ‑ ‑
KIRBY J: We know all that.
MR ROTHMAN: Yes, your Honour.
KIRBY J: There seems to have been a bit of bloody‑mindedness on both sides of this case.
MR ROTHMAN: Your Honour, I will not cavil with your Honour’s view.
KIRBY J: Do not go there.
CALLINAN J: Mr Rothman, there are medical reports at 214 and 216 of the ‑ ‑ ‑
MR ROTHMAN: Yes, your Honour. They were tendered. In the case of 214, they were tendered ‑ ‑ ‑
HEYDON J: The injunction application, before the injunction hearing.
MR ROTHMAN: Yes, your Honour, in the minutes in relation to the injunction proceedings which followed the reasons for judgment of 10 May 2002. Then your Honours will also see – indeed the stay order is attached to the respondent’s submissions, but your Honours will see that the stay order that issued in the appeal to the Full Court of the Federal Court – it is hard to read, at least on my copy it is, but there was a condition required by the Full Court in their Honours Justices Merkel, Emmett and Gyles that the appellant, that is, the respondent employer here, arranged for a medical examination of the respondent as soon as was reasonably practicable by a qualified specialist. Pursuant to that – and your Honours will see it at page 26, a reference to it at least at page 26 of the reasons for judgment of his Honour Justice Moore. That is at appeal book page 293.
As a result of that direction, your Honours will see at line 25 paragraph 40 his Honour questions the approach of his Honour Justice Madgwick below in terms of the medical evidence and then says:
That is, in the face of the evidence it may well have been necessary for the primary judge to determine, as a matter of fact, whether engaging in this employment was possible or might expose the respondent to further injury. However, as a result of a direction made by a Full Court on 29 May 2002, an up-to-date medical report (dated 8 October 2002 and based on an examination undertaken that day) has been obtained by the appellant. The respondent sought to tender the report in this appeal. Its tender was not opposed by the appellant. It is plainly relevant evidence that was available when the matter was heard by the primary judge and should be admitted.
Then his Honour sets out the report of Dr Hefner, which is, in its original form, found in the appeal book at appeal book page 218 and following. Dr Hefner is the only specialist medical practitioner who is reported before the courts – relevant speciality – whose material is before the court.
KIRBY J: Where is his report?
MR ROTHMAN: Appeal book page 218.
KIRBY J: And that came before the Full Court?
MR ROTHMAN: It did, your Honour.
KIRBY J: Pursuant to the order of the Full Court differently constituted on the stay application?
MR ROTHMAN: Yes, your Honour. It is set out in the judgment of his Honour Justice Moore at page 293 and following. The original of it is found at page 218.
KIRBY J: What did the doctor say?
MR ROTHMAN: The doctor held, effectively ‑ ‑ ‑
KIRBY J: No, we hold; doctors find.
MR ROTHMAN: I withdraw that, your Honour.
HAYNE J: Well, it is take up by Justice Moore at paragraph 42 at page 294 to 295:
the respondent can perform the work he was performing at the time of his termination –
MR ROTHMAN: That is so, your Honour, but he also gives the opinion that the appellant employee could not perform the work of hot neck boning, as a matter of fitness. Your Honour Justice Hayne has referred to paragraph 42 of his Honour Justice Moore’s judgment at page 294 and following, in which his Honour holds, in relation to the performance of the work that was being performed immediately prior to his termination, that that was not the subject of a medical opinion that he could not do it.
KIRBY J: Now, can I just ask this. On page 41, the injunction relief that was sought in the statement of claim was:
an order pursuant to section 170JC(3) of the WR Act that the Respondent reinstate the Applicant to the position in which he was employed prior to the termination of his employment, namely boner.
Now, is boner a different position to boner including doing hot boning work?
MR ROTHMAN: In our respectful submission, no. On the findings of fact before the court below, and, indeed, on a proper interpretation of the order for reinstatement, there is, peculiar to this appellant, no difference in that position. I will take your Honours to that very briefly.
KIRBY J: I just have in mind that, before all of these events occurred, the abattoir was closed. It was then reopened, but the basis of the reopening, as I understand it, was that there would be more flexibility in employees doing a whole range of work than had been in the past. The question that I am asking is whether or not, looked at in the light of those facts, the work of your client was to be able to do boning in all of its variety.
MR ROTHMAN: In our respectful submission, no, and that is so because of, amongst other things, the terms of the workplace agreement to which I will now take your Honours. I should, perhaps, without repeating that which I have set out in the submissions, refer your Honours to the fact that a workplace agreement has no other effect other than that which is contained in the Act. It does not substitute for the contract of employment. It overrides certain State laws. Those provisions are set out in sections 170VP and VD ‑ ‑ ‑
CALLINAN J: Is it V or B?
MR ROTHMAN: It is V for Victor, D for Donald:
An AWA or ancillary document has effect as provided by this Part, and not otherwise.
In terms of its effect on other laws, its effect on awards and agreements is set out in section 170VQ and in section 170VR. In any event, your Honour, Justice Callinan, referred already to the application for employment, which is found at appeal book 102. His Honour Justice Madgwick sets out part of a passage from that application, in particular, a passage which is a summary of that which is contained in question 14 on appeal book 107 and the enumeration of the term list, elbow, shoulder, foot and knee trouble.
Your Honour Justice Callinan pointed out that, in fact, there is a reference at appeal book 107 to the fact that he had already had dislocation of elbow. It should be pointed out that it seems, at least from the answers to the questions at appeal book 106, paragraphs 6 and 7, that the pro forma nature of this application did not seem to be fully understood by the applicant for employment. His examination by Dr Ford at 108, which I think was the matter that your Honour Justice Callinan referred to, sets out the ‑ ‑ ‑
CALLINAN J: Line 52.
MR ROTHMAN: Yes, your Honour, “Slight (20%)”, et cetera. He was then employed. Your Honours will see that the agreement which commences at appeal book 165, that is the title page, is said in the evidence to have been signed on 20 April, on the same day that it was provided. That is appeal book 93 ‑ ‑ ‑
KIRBY J: On 20 April which year?
MR ROTHMAN: It was 1998, your Honour, I apologise. Appeal book page 93, paragraph 5, line 36, the evidence is that it was provided on 20 April 1998 and signed on that day. A copy was not provided to the applicant. The date of the application for employment was 6 April and 17 April was the examination day of Dr Ford. They are in paragraphs 3 and 4, respectively, of the affidavit.
If I can take your Honours briefly to the terms of the workplace agreement. If I can take your Honours relevantly to the clauses that have been referred to and some others in the submissions, either of myself or my learned friend. If your Honours go to appeal book page 185, 22.1:
Any employee, including a juvenile, called upon to perform work of any classification for which a higher rate of pay is provided . . . shall be paid the higher rate of pay –
This is, in our respectful submission, a clause going to what rate of pay will be applicable. It does not ‑ ‑ ‑
KIRBY J: Which clause was that, I am sorry?
MR ROTHMAN: Clause 22.1 at appeal book 185.
KIRBY J: Yes.
MR ROTHMAN: Likewise 22.3 and 22.4 go to pay rates. The sick leave provision is given some attention in the judgment of his Honour Justice Madgwick but, I submit, does not really call for examination in these proceedings. If one then goes to clause 35, which are the terms of employment, they set out the kind of engagement that will occur, weekly hand or daily hire, that is 35.1 – do not take your Honours to that. Perhaps I should take your Honours at page 193 to clause 35.8:
A labourer shall be required to perform slaughtering tasks and shall be required to contribute to tally provided the said labourer is suitably qualified to perform the slaughtering task –
et cetera. At 35.9 the AWA which, as I think I have remarked, was signed by relevantly the applicant and respondent in these proceedings:
An employer may direct an employee to carry out such duties as are within the limits of an employees skill, competence and training: the employee will follow such direction.
Now, in our respectful submission, your Honour Justice Kirby’s question about the flexibility that was required is embodied in its totality and its limits in 35.9. In other words, notwithstanding your Honour’s purposive approach to the attitude of the employer, the employer was not entitled to direct an employee to carry out duties that are not within the limits of an employee’s skill, competence and training. On the facts in this case, the hot neck boning was not within the skill, competence or training – the competence including fitness – of the appellant.
KIRBY J: Your client said that he did not have the skill to do the hot neck training. He said that before the Commissioner, did he, and before Justice Madgwick?
MR ROTHMAN: He did, and before his Honour Justice Madgwick.
CALLINAN J: But you have findings, have you not?
MR ROTHMAN: Yes, your Honour, a finding that he was not trained in that area.
KIRBY J: And did his Honour say and that it needed training in that area, or is that implied.
MR ROTHMAN: I do not think there is an express provision to that effect, but certainly there is a finding - it is certainly implicit in the findings that were made by the court. If I can take your Honours to clause 37. The employee in question was a tally boner, I think the whole of the Court is aware of that, but 37.1 refers to the tally it requires a boner to bone. To extent that there needs to be an express provision that work would have to be given, there it is:
each boner shall the following minimum number of units of tally per day made up to such combination of categories . . . as the employer may require.
Now, of course, there are exceptions to that. I am not suggesting that that applies universally, if there is no work to be done, if there are insufficient carcasses. There are a whole range of issues, but absent coming within one of those exceptions, there is a requirement that the boner bone under this agreement.
HAYNE J: And the tally is variously calculated according to beast, according to whether it is neck boning or not, and various other features, is it not?
MR ROTHMAN: Yes, your Honour. The neck boning is referred to in clause 37.2 – I was about to take your Honours to that. It is not necessary for me to read it, but it is clear though that the boning room and neck boning were treated separately for the purposes of the AWA, at least, in some or all respects. Your Honours will then see the unit tally – it is a unit tally system. Your Honours will be glad to hear that I am not going to take your Honours through the calculation of the tally. Clause 37.7 on page 199 of the appeal book refers to:
Calculation of Tally for the boning room shall be the number of boners multiplied by the tally in 37.1. The number of units boned shall be calculated by multiplying the actual numbers of pieces in any category and weight range –
et cetera, by the number of boners. Clause 37.8:
The tally of a team or group may be made up of such combination of Categories and Weight ranges as the employer may require.
Then there is a specific authority to omit from the term in certain circumstances, and that is set out in 37.9. Then 37.10 deals with neck boning and how that is included in the tally. That is a reference to your Honour Justice Hayne’s question as well, or part of it.
HAYNE J: Well:
not included in the boning team, shall have the same tally as the boners in the boning room.
MR ROTHMAN: Yes, your Honour:
The equivalent unit value for each neck boned by the boner on the slaughterfloor –
and, again, that treats separately the boner on the slaughterfloor from the boning room –
shall be credited to each boner on the slaughterfloor.
Then your Honours will see at page 200 the overs, as it is put – the over rate for boners. Clause 37.14:
For all boning work performed on a day in excess of the number of tally per boner employed, an additional 50 per cent shall be paid and the extra payment shall be divided equally amongst the boners who worked on such overs.
KIRBY J: We should have Justice Gaudron here for this. She used to be assigned to the abattoir industry.
MR ROTHMAN: Yes, your Honour, she is an expert in these areas – one of four or five in Australia, I understand. Indeed, as I understand it, the Commission nowadays in minimum awards does not use a unit tally system. In any event, “shall be divided equally amongst the boners who worked on such overs”. Now, we say the effect of 37 is that on any analysis, firstly, there is a requirement to bone if you are a boner; secondly, the calculation of your wage rate is determined by the number of overs and the amount of boning that occurs as a consequence of which it is even within the exceptions contained in the older cases relating to the requirement to provide work, but there is a ‑ ‑ ‑
CALLINAN J: Mr Rothman, how does 37.20 on page 201 fit in with 35.9?
MR ROTHMAN: The two have to be read together, in my respectful submission.
CALLINAN J: It just seems a curious place to find it in clause 37.
MR ROTHMAN: No, your Honour, in my respectful submission, it is not a curious place to find it because what it is there doing is, amongst other things, referring back to 37.9. In other words, it is up to the employer to determine what units are being done, what rail is being used, how many units are coming through and at what speed, and the like. The task or combination of tasks is there referred to. It has to be, in our respectful submission, those tasks that are within the “skill, competence and training” of the employee pursuant to 35.9.
KIRBY J: You would read the two together.
MR ROTHMAN: Yes, your Honour, in my respectful ‑ ‑ ‑
McHUGH J: Your argument, at the moment, is concentrating on contractual rights to work, but can I put this to you for your consideration. As so often happens, people often approach problems by reference to dicta in cases, by what has been decided in common law cases, instead of concentrating on what is the nub of the case, namely, the exercise of a statutory power. The power that was exercised here was the power, upon a finding of harsh, unjust and unreasonable, to reappoint the employee to the position.
MR ROTHMAN: Yes, your Honour.
McHUGH J: But it is an elementary rule of construction, and, indeed, of construction generally, that every grant of power carries with it authority to carry out all acts, matters and things that are necessary to effectuate the principal purpose of the power.
MR ROTHMAN: Yes, your Honour, adumbrated by this Court, inter alia, in Barrett’s Case, for example, and many others.
McHUGH J: Given that you have a general power to reappoint to a position, why does it not follow that the Commission has power to also order the carrying out of such matters, acts or things that are necessary to effectuate the purpose of the power, which is to reinstate the position? Why should the Commission be confined under 170CH(3) to just simply restoring you to your position as such, the nominal position? Why cannot, in an appropriate case, the Commission make any order that is necessary to effectuate the reinstatement to that position? In an extreme case, it may even be that you could require that a person be paid a particular wage. I do not see why you cannot do it. That is something I put to you. It is for your assistance – in fact, it is in your favour, I suppose.
MR ROTHMAN: As unusual as the position that I find myself in, your Honour, I ‑ ‑ ‑
HAYNE J: There is a knife waiting in the napkin somewhere, Mr Rothman.
MR ROTHMAN: I am sure that is right, your Honour, I am sure that is right. I do not cavil with anything your Honour has said. I merely start from the injunction that ‑ ‑ ‑
HAYNE J: Let us take what his Honour has said and let us look at the knife that then the napkin might contain.
MR ROTHMAN: I have not appreciated what the knife might be, your Honour, but I merely ‑ ‑ ‑
HAYNE J: Namely, did the Commission do it?
MR ROTHMAN: Yes, I appreciated that your Honour might ask that question.
HAYNE J: These are penal proceedings. True it is civil penalty, whatever significance that has, but have you not got to start from the proposition that the order of the Commissioner to reinstate to a position meant more than the employer saying to the worker, “I appoint you a boner in my meatworks”. It had to be, “I appoint you a boner in my meatworks and you will do work of the kind that you were previously doing”.
MR ROTHMAN: Your Honour, there are a number of answers to your Honour’s question. I was ‑ ‑ ‑
CALLINAN J: Do you say the position is defined by 35.9?
MR ROTHMAN: Yes, your Honour, I do say that.
CALLINAN J: So that any appointment has to be a reappointment, or reinstatement has to comply with 35.9.
MR ROTHMAN: Your Honour, what I was about to say in answer to his Honour the Presiding Judge’s question was that I think it is in an article by David Jackson that one does not start with a clean slate. I am dealing, I hope, with what I see as the fundamental and underlying error of the majority in the Full Court below; that is, that they assume the capacity firstly, under whatever arrangements were made that they could put them on any duties whatsoever. The second is that they then do not look at the statutory scheme.
CALLINAN J: Well, the cases they referred to have a very anachronistic ring. In 1940 Sir Justice Asquith said, “Because I employ my cook it doesn’t mean to say that I can’t eat out whenever I want to.”
MR ROTHMAN: Yes, your Honour.
CALLINAN J: The idea that people do not have to keep their hand in strikes me as a somewhat quaint notion in modern times.
MR ROTHMAN: Indeed, your Honour.
CALLINAN J: And not one merely confined to actors and people like that.
KIRBY J: If we gave you $10,000 a day but had ordered you to stay away from the High Court, never come near it ‑ ‑ ‑
MR ROTHMAN: Your Honours would benefit from that no end.
KIRBY J: I think you would still be back here ‑ ‑ ‑
MR ROTHMAN: Indeed, your Honour.
KIRBY J: ‑ ‑ ‑refining your skills, enjoying yourself.
MR ROTHMAN: Skills or lack of it, but, yes, your Honour. His Honour Justice Moore deals with this in the judgment and, indeed, in the case to which reference is given in the outline and in the respondent’s outline, the English cases dealing with reinstatement, in particular, the judgment of William Hill, relied on by both the applicant and respondent in these proceedings, his Honour Justice Moore deals with it. In fact, there is evidence in these proceedings about this very issue because in the report of Dr Hefner there is reference to the maintenance of skill and the like, but in William Hill [1999] ICR 291, it is a judgment of the Court of Appeal, Lord Justice Morritt deals with the issues – and I do not read great parts of it. Commencing at the foot of page 295 point 8, he deals with “garden leave” so‑called, - citing Provident Financial v Hayward:
“if the employee has a concern to work and a concern to exercise his skills, then it seems to me that there is a correlative obligation on the part of the employer to provide work –
This was about a spread betting business.
CALLINAN J: Page 299C talks about, in effect, job satisfaction.
MR ROTHMAN: Yes, your Honour.
CALLINAN J: And one can understand that.
MR ROTHMAN: Indeed, your Honour, even in the earlier – I hesitate to use your Honour’s words – anachronistic cases, when it comes to persons who are in an industry in which their labour is traditionally paid by the amount they have produced, then maintaining their skill and maintaining their capacity to work at speed is in and of itself a necessary part of employment.
HAYNE J: And all this is minor premise?
MR ROTHMAN: Yes, your Honour.
HAYNE J: It proceeds from the major premise, which may be right, may be wrong, but the major premise is that the order when made shall be reinstated to the position in which he was employed meant more than re‑create a contract of employment; it meant reinstate him in the work he was doing.
MR ROTHMAN: Yes, your Honour.
HAYNE J: Now, does your argument, though elaborated in various ways, depart in any way from that dichotomy and the choice – the position means more than contract of employment, it means work?
MR ROTHMAN: It does depart from that dichotomy, your Honour.
HAYNE J: Yes. How?
MR ROTHMAN: It departs from that dichotomy in this way. What we say is that the proper construction of the statute – and coming back to his Honour Justice McHugh’s question – there are two exercises of jurisdiction with which this Court is concerned. The first is the order that is made by the Commission, which is to reinstate. The second is the injunctive relief that is granted by the court to enforce that order. In my respectful submission, the court is empowered to make orders beyond the wording of the order of the Commission if those orders are to effectuate the order that is made or the intention of the Commission in making the order.
KIRBY J: Is that by specific statutory provision or is that simply implied in the court’s power as a court?
MR ROTHMAN: That is part of the ancillary powers implied in the court’s power to make any orders to effectuate the orders of the Commission and the order in terms of the ‑ ‑ ‑
KIRBY J: What is that section, the powers to effectuate the orders of the Commission? Perhaps you can tell us that in a minute.
MR ROTHMAN: Section 23 of the Federal Court Act, your Honour, to make any ‑ ‑ ‑
McHUGH J: That is the general power.
MR ROTHMAN: That is the general power of the court, your Honour.
HAYNE J: Because JC(3) is:
apply to the Court to enforce the order by injunction or otherwise ‑ ‑ ‑
MR ROTHMAN: Yes, your Honour.
CALLINAN J: Mr Rothman, in effecting the reinstatement, or ordering the reinstatement, the court does not or cannot, can it, rewrite the workplace agreement? I know you say that your case is within the workplace agreement, and I understand why ‑ ‑ ‑
MR ROTHMAN: No, it cannot rewrite the workplace agreement, I agree with your Honour.
CALLINAN J: But your submission is that it does not, in fact ‑ ‑ ‑
MR ROTHMAN: It does not and it does not have to.
CALLINAN J: ‑ ‑ ‑ and that your submissions are perfectly compatible with and in accordance with the workplace agreement because of 35.9, in effect.
MR ROTHMAN: Yes, your Honour. Because of 35.9 and because of 37.1, we say it is not within the position that he was appointed to earlier that he could be put on garden leave. That is the answer to your Honour’s question in a nutshell. There is a dichotomy because even if it were within that position, we say it is appropriate in circumstances such as the present, and, with respect, we would adopt the suggestion of his Honour Justice McHugh, that the court and the Commission is empowered – the Commission, firstly, when it reinstates, puts the party back into the position of the performance of duties and in that regard, without labouring it, we refer your Honours to the analysis of these matters by his Honour Justice Moore – it is unnecessary to read all of the material, but his Honour refers at page 284 to Anthony Smith & Associates v Sinclair which was a judgment of the Industrial Relations Court of Australia, albeit under a previous legislation which rendered an unfair, for want of a better word, termination unlawful, but with that minor amendment, that analysis, in our respectful submission, is apposite to the analysis of what was before the court below and is before the Court now.
CALLINAN J: You still have to say, do you not, as Justice Hayne put to you, that the actual order, the reference to “position” in actual order, means, as a matter of law, “position and an opportunity to carry out the work”?
HAYNE J: It means putting back to work. It is an industrial order made by an industrial tribunal concerned with people working.
MR ROTHMAN: Yes, your Honour.
HAYNE J: Put him back to work. It is not saying, “Let’s fiddle around the edges with the contract of employment. Let’s reinstate a contract and let us confine our attention to that”. Now, that point is either good or bad, but it seems to me to lie at the root of the argument that you advance.
MR ROTHMAN: That is the primary premise, as I suggested it before. Reinstatement ‑ ‑ ‑
CALLINAN J: Mr Rothman, if he is not working in fact, is there then a chance that he would not earn as much as he might, having regard to the fact that it is a tally system?
MR ROTHMAN: If he is not working in fact ‑ ‑ ‑
CALLINAN J: He just gets the average of what the others do.
MR ROTHMAN: ‑ ‑ ‑ he would not be entitled to be paid what he has in fact been paid, because the employer has paid him the average of the other boners.
CALLINAN J: Exactly, so that if in fact he is actually working and he beats the average, he is remunerated more highly, is that right?
MR ROTHMAN: Indeed, all the boners would be remunerated more highly.
CALLINAN J: So then, unless he is actually doing the work, he is not reinstated in the position that he had, because he has lost that opportunity of earning more.
MR ROTHMAN: Your Honour, I can only, with respect, agree with your Honour wholeheartedly.
KIRBY J: You make that point in your written submissions.
MR ROTHMAN: I do, your Honour.
KIRBY J: You make two points. First, a definitional point: the order is for him to go back into the position and he has not been put back in the position; he has been put back in an average position, not his position.
MR ROTHMAN: Yes, your Honour.
KIRBY J: And, secondly, you say that his particular output he has some control over, whereas the average, he does not, and therefore he is not given the position because that requires him to be able, by his extra effort, to earn more.
CALLINAN J: And I suppose it also means that unless he is doing the work he cannot – I mean, one day he might quite properly decide he is going to do X number because he does not feel so well or so energetic that day, but it may be enough to satisfy the minimum requirement, but then on another day, when he is feeling more energetic, he wants to do X plus Y to catch up. He is deprived of the opportunity of doing that also, I suppose. It works both upwards and downwards.
MR ROTHMAN: Yes, your Honour. It is ameliorated by the fact that it is an average, but yes, your Honour, that is so. To the extent that he can produce more than the average of the others, he would certainly be entitled to be paid more money, as with the others.
KIRBY J: Can I ask you, there is a suggestion there that they work in teams.
MR ROTHMAN: They do, your Honour.
KIRBY J: How does that tally with the idea of individualising output, and therefore income?
MR ROTHMAN: Your Honour, there is no inconsistency between that approach because, as I tried to point out to your Honours, going through clause 37, the team averages its production and is paid the average of the production.
KIRBY J: Within the team.
MR ROTHMAN: Within the team.
KIRBY J: How many is a team? Is that revealed by the agreement?
MR ROTHMAN: No, that is a matter for the employer, ultimately.
KIRBY J: The employer is paying the average. Can it be said that the average is, must be, or will usually be, the average over the whole works, the average of a particular team that the appellant may have worked in?
MR ROTHMAN: Your Honour, my recollection – I think his Honour, Justice Hayne may have asked this question particularly relevant to that question – it is dealt with, I think, in clause 37.9.
CALLINAN J: It does not matter, Mr Rothman. If he does not get the work, he does not have the opportunity to influence the average.
MR ROTHMAN: Yes, your Honour. That is my point in a nutshell. It does not matter how you calculate the average, in the end, the entitlement is to contribute towards it and your pay is calculated, as a matter of entitlement, by reference to how much you have produced. The fact that in this case the employer has, for want of a better word, paid damages – that is, if a person had burnt off work and one were calculating the damage, one would obviously take the average of the other team members and apply that as a damage, but that is not the entitlement under the agreement. The entitlement under the agreement to be paid wages is the wages which are calculated by reference to the production to which you contribute.
CALLINAN J: This may mean that this is a different case from a case in which there are no incentives or ‑ ‑ ‑
MR ROTHMAN: Indeed, it may be different from the cook, your Honour.
CALLINAN J: Or from a lot of cases where the salary is unaffected by your output, or the remuneration is completely unaffected by your output.
MR ROTHMAN: Indeed, your Honour, but it is ‑ ‑ ‑
CALLINAN J: I know you would argue for something.
MR ROTHMAN: This case can be narrowly confined in that respect because the person is entitled to contribute to production, but part of the argument, albeit a subsidiary premise, is that in the modern day there are few employees of whom it could be said that it was not part of their employment that they wish to maintain their skill or maintain, if you like, the satisfaction of work. I think one of your Honours put that proposition to me ‑ ‑ ‑
McHUGH J: Is there any case which denies the general proposition which goes back to Mackay v Dick and which was applied by this Court in Secured Income v St Martins Investments 144 CLR that it is a general rule applicable to every contract that each party agrees by implication to do all such things as are necessary on his part to enable the other party to have the benefit of the contract?
MR ROTHMAN: There is no judgment in any court with either authority or persuasive effect that would be inconsistent with that approach.
CALLINAN J: That case had been applied many times.
MR ROTHMAN: Yes, your Honour, I only make that qualification because I am prepared to say I have not read every case but there is none of which I am aware, your Honour.
McHUGH J: Well, in this setting, one would have thought it was an implied term of the contract that the employer would do all such things as were necessary on its part to give each employee the benefit of the contract.
MR ROTHMAN: Yes, your Honour, and that is one of the reasons I took your Honour, perhaps in more detail than might have been warranted, to the terms of the AWA. While it is not the contract it is certainly the terms under which the employee was working, it being an individual arrangement.
KIRBY J: Well, you had better put your finger on what the error you say is in the reasons of the majority in the Full Court. I mean, where did they go into error?
MR ROTHMAN: Your Honour, in my respectful submission, the primary error is that reinstatement to a position means a reinstatement to the aggregation of duties which the employee was performing and entitled to perform prior to the termination and the aggregation of those duties was the boning in the boning room and the finding of fact by his Honour Justice Madgwick that the order for reinstatement of the Commissioner was an order for reinstatement into the position of boner in the boning room, is, in our respectful submission, not only appropriate but the only possible outcome in terms of the factual issues.
HAYNE J: The error you seek to attribute to the Full Court appears at paragraph 77, page 309, it would seem to me. In paragraph 77, their Honours in the majority emphasise the contractual position being restored in its earlier terms or equivalent.
MR ROTHMAN: Yes, your Honour.
HAYNE J: And that I would understand you to say, one, denies the significance of the statutory term position.
MR ROTHMAN: Yes, your Honour.
HAYNE J: Two, denies the distinction drawn in the statute in CH(3)(a) and (b) between reappointing the employee to the position in which the employee was employed immediately before, one case; or the alternative case, appointing the employee to another position on terms and conditions no less favourable, language which seems not easily formed into the language of contract of employment that their Honours emphasised, but no doubt we will hear the contrary presently.
MR ROTHMAN: No doubt, your Honour. Can I remind your Honour in that analysis that the terms of CH(6) are also relevant in understanding the terms of the Act, that is, if, in fact, an employer can reinstate in “contract” – and that involves putting someone on garden leave – there seems little work for the inappropriateness of reinstatement, if any.
CALLINAN J: Mr Rothman, you said something that puzzled me a little while ago.
MR ROTHMAN: That is not surprising, your Honour.
CALLINAN J: It is probably my fault. But you said Justice McHugh put to you St Martins Investments Trust Case and then you said of course the AWA is not a contract. But it is, is it not?
MR ROTHMAN: I said, your Honour, it is not a contract – it is not the contract of employment. There may be other aspects ‑ ‑ ‑
CALLINAN J: But why is it not the contract of employment?
KIRBY J: Why is it not part at least of the contract of employment?
MR ROTHMAN: Your Honour, that is my point. It is not the totality of the contract of employment.
CALLINAN J: But it is enough for your purposes anyway.
MR ROTHMAN: Yes, your Honour.
CALLINAN J: Well, what else constitutes the contract of employment?
KIRBY J: There might be some general principles of the common law about good faith, bargaining ‑ ‑ ‑
CALLINAN J: Well, they have to be there by a matter of implication, but what else ‑ ‑ ‑
MR ROTHMAN: There may be agreements above and beyond the AWA. The AWA is required to be put to all employees and so it may be that one can have an AWA that applies to all employees and, not inconsistently with the AWA, terms and conditions of employment that might apply particularly to one employee.
CALLINAN J: But there is no suggestion of that here, is there?
MR ROTHMAN: There is no relevant suggestion.
CALLINAN J: I just want to be clear about this. There is nothing that we have to look at other than the AWA to ascertain the terms of your client’s employment.
MR ROTHMAN: No, your Honour, there is nothing. I was making a general proposition, not one related particularly to this case.
KIRBY J: But what is the answer to the respondent’s submission that they do not want to be finding themselves in breach of the New South Wales Workplace Safety ‑ ‑ ‑
MR ROTHMAN: I could make a number of submissions about the operation of the Occupational Health and Safety Act (NSW) but now is not the time or place.
KIRBY J: But I think you have to come to grips with it because, as I understand it, the suggestion ‑ ‑ ‑
MR ROTHMAN: No, your Honour, I do not, because the evidence, at least as it stands before this Court, is that the employee in question is fit, without any risk to his health or safety or the health or safety of any other employee, to do the work of boning in the chilling room. That is the report of Dr Hefner ‑ ‑ ‑
HAYNE J: Let it be assumed that were not so. I understand you to say it to be so. Let it be assumed it were not. Why would not 109 solve the problem?
KIRBY J: There is a specific provision ‑ ‑ ‑
MR ROTHMAN: Not only would 109 solve the problem, your Honour - 109 may solve the problem. Indeed, that was his Honour Justice Madgwick’s view. That is why I think his Honour says that which gives force and effect to his Honour’s injunction and finding would override any breach of the – because it was a requirement of the Court.
HAYNE J: It is federal law.
MR ROTHMAN: Yes, indeed, your Honour.
KIRBY J: But there is a specific provision in the Workplace Relations Act, is there not, that says it is the intention of the Federal Parliament that you will comply with State occupational health and safety provisions, is that not so? Is that not indicating the for 109 purposes?
MR ROTHMAN: Your Honour is, in my respectful submission, losing some detail which is relevant. There is a provision in section 170VP ‑ ‑ ‑
McHUGH J: In any event, the Parliament cannot write section 109 out of the Constitution and if the effect of an order is that it is in conflict with the State laws, it is in conflict and 109 operates. That is what Metwally decided.
KIRBY J: But the Parliament can give some indication of its intention.
MR ROTHMAN: It can, your Honour, but your Honour’s description of the indication is, with respect, too broad.
KIRBY J: I am merely picking up the respondent’s written submissions.
MR ROTHMAN: Yes, your Honour. In section 170VR what the legislature says is the provisions of an AWA will not operate in relation to occupational health and safety. That does not apply to an order of the Court and the statutory provisions which enforce that which would be given priority under section 109, but ‑ ‑ ‑
McHUGH J: There are two problems in this 109 area. Parliament can state its intention concerning covering the field, but in what are called the direct collision cases it has always seemed to me Parliament has no function whatever. If federal law clashes with State law and there is a direct collision Parliament can say what it likes but section 109 of the Constitution says that the federal law prevails to the extent of the inconsistency.
MR ROTHMAN: I accept all that your Honour says and, with respect, adopt it. There is a more practical answer, in any event, whether 109 operates or not. In my respectful submission, the order for reinstatement operates indefinitely but not for any period beyond the actual allocation of duties. If on the allocation of duties a person was – and I think his Honour Justice Madgwick deals with this in part, and his Honour Justice Moore certainly deals with it – if upon reinstatement there was found to be some impediment to the person working ‑ ‑ ‑
KIRBY J: If work suddenly disappeared in that district and there were all sorts of problems in a boner just doing the particular work of the boning, generally, as distinct from hot boning, then a new situation has arisen.
MR ROTHMAN: Indeed, your Honour, and apart from anything else, if in fact the respondent was genuinely of a view that a person was unfit to perform work and an order had been made, there are provisions in the Act for the Commissioner to vary the order and his Honour Justice Moore also deals with that. The point I make, simply, is that ultimately if a person was dismissed for that, subsequently to reinstatement, that may give rise to different litigation. I am not trying to create work for lawyers but it is a different issue than that with which the court was faced below and with which this Court is faced.
In my respectful submission, it is somewhat of a red herring to deal with what would happen in terms of the Occupational Health and Safety Act, post reinstatement, that is, upon being reinstated into duties which the appellant was previously working. In my respectful submission, different ‑ ‑ ‑
KIRBY J: So you have three submissions: first, it does not arise on the evidence; second, if it does arise, it only will arise after the reinstatement has been dutifully effected; and thirdly, if it is suggested that it arises at this early stage, the Constitution forbids it.
MR ROTHMAN: Yes, your Honour. Those are, in effect, what I have put both here and in the submissions in writing. In answer to the question that was asked earlier concerning the reinstatement in the position and the statutory provision, I think by your Honour Justice Hayne – I apologise for not recalling now as it was a little while ago when the question was asked – we do put that submission. In our written submissions we deal with the statutory construction of the term “position”, of the practical effect that the legislation is intended to restore someone to work and that that is the scheme and the intent and purpose of the legislation and it should be so construed.
We also then go on to say, if we are wrong in that – and we only need to go to it if we are wrong in that – if it depends upon the contract, then one looks at the AWA in any event, it is only the one position, and the position now, in some respects, as has been adumbrated from the Bench here and as I hope my answers have made clear, those two questions or those two issues are related because it may go to the definition of the word “position”. The third point is the point which one comes to only if or when the other two questions are decided against the submissions we put, which is that, in effect, the underlying assumption of their Honours in the majority, even assuming you pay attention to the contract, which we argue against, because of the statutory provisions, even if one pays attention to the contract, we say that contract law has moved on from those who ‑ ‑ ‑
KIRBY J: Only stand and wait.
MR ROTHMAN: ‑ ‑ ‑ yes – only stand and wait.
KIRBY J: Or are butlers to English Law Lords.
MR ROTHMAN: Yes, your Honour. Lord Justice Asquith’s judgment is a ‑ ‑ ‑
KIRBY J: Bad times since judges lost their butlers.
CALLINAN J: My wife would have been interested in that.
MR ROTHMAN: Indeed, your Honour, I am only surprised that we have not taken it up at the Bar but, nevertheless, the ‑ ‑ ‑
KIRBY J: Well, you are more likely to be able to afford it than we are.
MR ROTHMAN: Yes, your Honour. I am not going there.
KIRBY J: Justice Moore said that the approach that he adopted to the meaning of reinstatement, which is the notion that is in the statute, is endorsed by a very great deal of jurisprudence in industrial and other courts in Australia. Is that, in fact, so? I see a reference to Justice Sheldon, who was a great judge, in Holloway. Did he say anything about what reinstatement actually means? One’s notion is that it is something more than just paying money.
MR ROTHMAN: In my respectful submission, the analysis of his Honour Justice Moore is an accurate analysis of the authorities in the area. It is also consistent with that which has been done in overseas jurisdictions, at least in England. We looked for Canadian and United States equivalents and there were none that came readily to hand. In the English cases there is a rather quaint judgment, reference to which is made in the submissions ‑ ‑ ‑
KIRBY J: Is this the war time regulations, is it?
MR ROTHMAN: Yes, your Honour, there is that, but I have said as much as I need to in that ‑ ‑ ‑
KIRBY J: I am more concerned with Australian authority because reinstatement has a pretty long history in Australian law and this Court has never passed on what reinstatement means, what ‑ ‑ ‑
MR ROTHMAN: No, your Honour.
McHUGH J: Well, except in the North West County Council Case. Justice Walsh seemed to apply or approve of what Justice Sheldon said in Loty, did he not?
MR ROTHMAN: He did, your Honour. I was about to come to Loty. His Honour ‑ ‑ ‑
McHUGH J: The one thing, in my experience at least, anyway, in the New South Wales jurisdiction, is that it was the likely practical outcome of the reinstatement order that was always regarded as significant. That is what you looked at, the practical outcome.
MR ROTHMAN: Yes, your Honour, the “fair go all round” and what the practicalities were ‑ ‑ ‑
McHUGH J: Yes, well, I do not know about “fair go all round”. It does not seem to me to ‑ ‑ ‑
MR ROTHMAN: Add much? But that is the term that is ‑ ‑ ‑
McHUGH J: It is a bit indefinite as well.
MR ROTHMAN: That is the term that is often quoted with the judgment of Justice Sheldon, at least, in Loty and Holloway, which, of course, is written into the Act by way of note, and, on one view at least, was the reason for the change in the Act to take the jurisdiction from the Industrial Relations Court to the Commission.
KIRBY J: How is it written into the Act?
MR ROTHMAN: There is a note in the legislation to the provisions of section 170CG – I am grateful to my learned friend, I am told the note is actually a note to section 170CA, which sets out the objects of the division. The “fair go all round,” whatever it may mean, is written into section 170CA(2).
KIRBY J: That is probably there because my recollection is – and I have a clear recollection – that Justice Sheldon was respected by both employer and employee organisations in New South Wales.
MR ROTHMAN: Your Honour, I accept that. I am not sure that any judge or any court would not do, but yes, your Honour, I accept that as a statement. His Honour Justice Moore and his Honour Justice Madgwick deal with the matter, and, in my respectful submission, it is ultimately a question of the practicality of the orders that are made and their practical effect.
The authorities are at least implicit that that is the primary consideration of the body – be it the New South Wales Industrial Commission or the Australian Industrial Relations Commission – and in those at least the Commission exercising that jurisdiction was a court of superior record. Whatever the tribunal is, it is the practical impact of the orders that are looked at and it is the practical effect that is given to the orders, and, in our respectful submission, ultimately that informs the construction of section 170CG and the meaning of the term “reinstate in position”.
McHUGH J: Are they your submissions?
MR ROTHMAN: Yes, your Honour, those are my submissions. If the Court pleases.
McHUGH J: Thank you, Mr Rothman. Yes, Mr Hatcher.
MR HATCHER: May it please the Court. May I first deal with the typographical error that has crept into our submissions in paragraph 2 ‑ ‑ ‑
McHUGH J: Not a good way to start a respondent’s reply, as I have often remarked to other Justices. You should seize the jugular. We are all sitting here in expectation for you to tell us what your answer is to the appellant’s case and you get up and there is an anticlimax – you tell us about a typographical error.
MR HATCHER: I had never anticipated that my first occasion leading in this Court would result in an anticlimax, your Honour.
KIRBY J: What is the correction?
MR HATCHER: In paragraph 2 and paragraph 9 the letters “C” and “J” have been interposed. It is of course section 170JC that we refer to in both sections, rather than CJ.
KIRBY J: And which is the other one? Section 170 ‑ ‑ ‑
MR HATCHER: It is the same error in both paragraphs, your Honour. Section 170CJ is referred to in both cases. It should be JC. If it please the Court, we have also taken the step of attempting to make the Court’s task, on today at least, easier by committing to writing what we would have to say in relation to the response that was filed yesterday by our learned friends, so far as the factual matters there are dealt with. If I might have leave to hand that up? If I could then come to deal with some of the factual matters that have been dealt with today.
HAYNE J: Why are we diving straight into the facts? Is there not at root a distinction or difference between you on the point of principle? Why are we not better dealing with the point of principle before we dive into the minutiae?
MR HATCHER: Your Honour, I rather thought that there had been a somewhat intense focus on the facts this morning, and that the focus was unhelpful from our client’s perspective, particularly when one has regard to what was said about the proceedings before the Commissioner. It needs to be borne in mind that in those proceedings there was not and could not be an allegation of the victimisation for a participation as a witness in proceedings. There is a separate section of the act that deals with proceedings for that. Those proceedings are to be dealt with before the court, and in those proceedings our client would be entitled to defend himself and the rules of evidence would apply and so forth. If I can just highlight one example of the difficulties ‑ ‑ ‑
KIRBY J: Can I just ask you to pause. The Commissioner, whether he should have even referred to it or not in view of what you tell us, did not ultimately decide the matter on the basis of victimisation, did he?
MR HATCHER: Precisely, your Honour. The reason I draw attention to it, as I think ‑ ‑ ‑
KIRBY J: You want to try and remove a little bit of poison from the well just in case it is still there.
MR HATCHER: Indeed, your Honour. If I recall correctly, I think it was your Honour who started ‑ ‑ ‑
KIRBY J: It certainly was. I did not like the look of that.
MR HATCHER: Indeed.
KIRBY J: He gives evidence in a reinstatement case one day and the next day he is put on nasty work.
MR HATCHER: Your Honour, certainly the Commissioner was keen to make it clear that he did not like the look of it, but he made no findings nor ought he to have.
McHUGH J: Yes, but, Mr Hatcher, if I can give you some general advice. You should never allow your opponent’s argument to dictate the structure of your argument, because you can deal with your opponent’s argument at different points of your argument or at the conclusion of it if you like. Your argument is likely to get disjointed. You must have a theory of your case which supports the position of the respondent’s. At the moment you seem to be going to be dealing with answering this factual argument or that factual argument. Is it not better for us to understand what your case is, and you can deal with those individual points as they come along. You conduct the case yourself.
KIRBY J: Just assume I have taken the poison out of the well, Mr Hatcher.
MR HATCHER: I am indebted for the opportunity to have that step taken. If it please the Court, one needs to have regard to what occurred in the proceedings below and how we got here to analyse exactly what the issue is because there is a great focus on the submissions of our learned friends on the contract of employment and the error of the majority in the Full Court that is said to have led to the appeal in the Full Court finding that the contract of employment does not have an implied term for the provision of work. In fact, Justice Madgwick did not find that there was any entitlement to work arising under the contract of employment. He said it was not necessary for him to find that, and there was no appeal from his Honour’s judgment in that regard.
KIRBY J: That was at the second stage, was it not? That was in dealing with the argument of the implied term of the contract of employment.
MR HATCHER: Yes.
KIRBY J: But before you get there, you have to overcome the hurdle of the meaning of the Act when it talks of reinstatement.
MR HATCHER: Precisely, your Honour.
KIRBY J: And reinstatement, in my conception, at least my remembrance of industrial relations, is you actually go back and do your old job. You do not just get a theoretical entitlement or pay as if you were there; the whole point of it as a practical industrial measure is to get the worker who has been sacked back on the floor.
McHUGH J: That is why, I imagine, Justice Hayne asked you to deal with the point of principle, because it is very difficult to apply the minor premise of an argument unless you understand what your major premise is. So what we would like to hear from you is what the major premise of your argument is and then you could get to the minor premise and then ‑ ‑ ‑
MR HATCHER: The major premise to our argument is, in fact, summed up by his Honour Justice Madgwick in his judgment at appeal book page – I am sorry, your Honours, we will just turn it up. His Honour says – it is extracted in our submissions – that the end result is that the employee has what he had prior to termination, no more, no less. It is at the bottom of page 237 of the appeal book. His Honour says:
As I have indicated, the applicant’s rights are as before. If he then had a legal liability to be transferred to hot neck boning, upon reinstatement he would again have such liability. If he did not, or did not until he was trained, then again he would not be so liable. If he had a liability to undergo medical examinations from time to time, on the existence of a reasonable need for them and on reasonable terms, such liability would continue. Finally, whatever mutual rights and liabilities as to transfer, removal from active work or termination of employment pre-existed his termination, they will exist again after reinstatement.
Everything is as before. The question that is posed then is did he have a right previously to work? If he did, that arose under the contract. It is to be implied into the contract and we say the law is clear on that and there was no finding against us at any point. His contract did not confer on him a right to work. The only other source of the right is the statute. The statute must then be creating a right that did not pre-exist.
McHUGH J: But what about the principle in Mackay v Dick which has been applied on numerous occasions, hundreds of occasions, as applied by this Court in Secured Income v St Martins Investments, that there is an implied term in every contract that each party will co‑operate so that the other party will get the benefit of the contract. I know in some of these old cases that principle seems to have been ignored but why should it not apply generally?
MR HATCHER: Because, your Honour, with respect, that begs the question, what is the benefit of the contract, and the question that the old authorities ‑ ‑ ‑
HAYNE J: That in turn begs a further question about the construction of the Act and the construction of the Act which informs the order which is said to have been breached, what is meant by “reinstate to the position in which he was employed”?
McHUGH J: See that is the key provision here. It is a statutory provision that one has to construe and even if your argument is right about the terms of the contract it does not follow that that answers the question to be decided in this class of case.
MR HATCHER: There is no doubt ‑ ‑ ‑
McHUGH J: It is very difficult to reconcile what was said in paragraph 77 of the main judgment with the fact that under section 170CH(3)(b) the employee can be appointed to another position on terms and conditions that are not less favourable. So you can vary the contract, there is a statutory right to vary the contract. I am employed as a clerk, I am harshly dismissed. I can be given a job as a computer operator, at least on one reading of the statute.
MR HATCHER: The question that is posed ‑ ‑ ‑
McHUGH J: So it is very difficult then to say that the contract governs the situation.
MR HATCHER: Yes and no, your Honour. You can certainly be given the position of the computer operator. The question though that is posed by our learned friend’s argument is whether, when you are appointed to the position of computer operator, your position is any different to the computer operator who was just employed. Do you have an additional right by reason of having been through these proceedings and having the benefit of the statutory order, to insist on the provision of work that the new employee does not have.
KIRBY J: I understand the argument, but the problem is that I cannot get out of my mind that that extra step is something that has been assumed for a very long time and carried into effect for industrial purposes. That is to say, in Australia, when you are reinstated you go back as a symbol, not just that you are getting the money and drawing the pay, but that you have been harshly and unjustly removed from your work and you go back on the day after the Court orders it and you are seen there doing it as a vindication, an industrial vindication.
MR HATCHER: If it please your Honour, the reason it never has come up previously – and neither our learned friends nor ourselves have been able to identify a case directly in point – is because, as your Honour said to my learned friend, even if we paid you $10,000 a day not to come here, you would still want to come, but the reality is you are not about to pay him $10,000 a day not to come here and when reinstatement is ordered employers generally will not want to pay someone to stay at home.
KIRBY J: Of course they will not.
MR HATCHER: There are very unusual facts that surround this case. There was no doubt a medical problem that was raised by the appellant ‑ ‑ ‑
KIRBY J: Rather late in the day raised by the respondent.
MR HATCHER: Well, it was raised by the appellant rather late in the day, your Honour. When he had left work, he was asked to go and do the hot neck boning and he replied in very graphic terms. They are to be found in the evidence and we have given a reference to it. He simply walked off. The medical certificate appears somewhat later and even in his evidence ‑ ‑ ‑
KIRBY J: But, as Justice Callinan pointed out, in his original application, he did disclose that he had a disability to some extent.
MR HATCHER: Yes, he did and since that original application he had been involved – and his evidence before Justice Madgwick shows this – in a process known as cold neck boning. He had been doing exactly the same cut on the chilled beast. He said he did not know what that difference was between cold neck boning and hot neck boning, but he accepted that the reason Ramseys had introduced hot neck boning was because it was easier to trim the meat off the beast while it was warm, rather than when it was cold. So there are very unusual facts in this.
I should also say that he accepts in his evidence before Justice Madgwick that even though when he was employed by Gilbertsons he had regularly done the cold neck boning because the neck was not taken out of the beast prior to chilling when Gilbertsons ran the operation. When Ramseys took over the operation and started to do hot neck boning, if the neck was not able to be taken out because of the speed of the chain or whatever, then it had to be taken out in the boning room, and he had done it in his task in the boning room – the cold neck boning not the hot neck boning. So, if he could not do hot neck boning on the basis of the advice he had given his doctor about what was involved, there was a real doubt as to his ability to perform the routine tasks in the big boning room.
KIRBY J: But once he has the order for reinstatement, the time to raise that is, it seems to me, after he has gone back onto the floor, but you will not let him back on the floor.
MR HATCHER: Well, we cannot let him back on the floor on the employer’s view of it, if doing so is going to expose him to ‑ ‑ ‑
KIRBY J: Well, he says he can do the ordinary work of a boner which is what he did all that time before until he gave that evidence and the day after he was removed and put on hot neck boning. He says, “Just give me back my old job”.
CALLINAN J: Was there not a finding that there was no particular imperative or reason why he should do the hot room boning rather than the cool room boning?
MR HATCHER: The Commissioner found that in the proceedings before the Commission in respect of that particular instance. His Honour Justice Madgwick found that ‑ ‑ ‑
CALLINAN J: Was there any finding generally about that then?
MR HATCHER: No, your Honour.
KIRBY J: Was that finding disturbed, the Commissioner’s finding disturbed at any stage by the Federal Court? That it was not, as it were, that you had restructured your work or you did not need so many employees or you just had to give people work both on the slaughter floor and in hot neck boning? If not, the inference is he can just go back to being an ordinary boner, which is what he did for two years before the day after he had given evidence in a case.
MR HATCHER: At page 237 of the appeal book, this is in his Honour Justice Madwick’s judgment, at point 18 his Honour says:
What the “position” was to which Mr Blackadder was to be reinstated by reappointment is a question of fact and, as a matter of fact, a person may hold a position under which certain work is or is not required . . . Commissioner Redmond was plainly of the view that Mr Blackadder’s . . . position was that of a boner required to do chilled boning work in the big boning room –
and he recites these findings. He then says at point 35:
Taking these findings into account, the order to reinstate the applicant plainly intended that he would not only receive his wages and other entitlements but, in the first instance, at least, return to his former position of employment, namely to a position undertaking boning in the big boning room.
So he is there synthesising with the Commissioner’s findings. He then continues:
The evidence before me indicates that Mr Blackadder would concede that his position requires that occasionally, for bona fide operational purposes of the employer, he should relieve on the hot neck boning work.
HAYNE J: Now, I understand this factual controversy that you seek to draw us into. Let us go back to the logically prior question of construing the order at page 13. What do you say was the position in which Mr Blackadder was employed prior to the termination of his employment?
MR HATCHER: He was employed as a boner, your Honour.
HAYNE J: That is, you would dispute, as I understand it, Justice Madgwick’s view, which may be a matter of construction of the order, it may be a question of fact as his Honour described it, that the position, in the view of Commissioner Redmond, was that of a boner required to do chilled boning work in the big boning room. Now, if that were the proper description of the position in which Mr Blackadder was employed prior to the termination of his employment, where does your argument go? Have you not got to make good, as the preliminary proposition, that the position in which he was employed prior to the termination of his employment is not accurately described as “boner required to do chilled boning work in the big boning room”?
MR HATCHER: With respect no, your Honour. His Honour Justice Madgwick found that the position was that he would have a position undertaking boning in the big boning room and occasionally:
for bona fide operation purposes of the employer, he should relieve on the hot neck boning work.
KIRBY J: Well, why did you not do that then? Take him back on the boning room, give him his ordinary job – that is what reinstatement meant – and then if you did, for genuine operational purposes, have to take him into hot neck boning and then a dispute arises well you have another case, but at least you fulfilled your reinstatement obligation.
CALLINAN J: And relevant to that, is it not the fact that he conceded that there were occasions upon which he might have to do some hot boning work? So would it then not have been appropriate to give him some training so that he could perhaps do some hot boning work for short periods?
MR HATCHER: Your Honour, the issue of training was not in issue before Justice Madgwick. Justice Madgwick disposed of that very quickly in the evidence, and we have given a reference to that in ‑ ‑ ‑
CALLINAN J: All right. Well, leave out the training. Could he not perhaps have been directed, as he conceded could happen, to do some hot boning work, which he may well have been able to do on a temporary sort of a basis from time to time, and then if he could not perform it perhaps then you might have had an issue of the kind you say arises now.
MR HATCHER: Your Honour, lots of things could have happened. What happened was the employer was aware that there was a concern as to the medical fitness of the employee for the work to which he was assigned. The employer said ‑ ‑ ‑
KIRBY J: Justice Madgwick did not think that was a genuine concern. He thought this was colourable, something invented after the event in order to give an excuse for not taking a man back who has been the subject of a reinstatement order.
MR HATCHER: With respect, your Honour, an employer may pay an employee only because he is bound to under the Act. He may not genuinely wish to pay the employee at all, but that hardly matters. If the contract requires payment, then the employee must be paid. If his Honour found the contract did require the employee to undergo a medical examination, the employee was obliged to undergo a medical examination.
KIRBY J: I am only referring to what Justice Madgwick found at paragraph 43 at 234:
I am not minded to conclude that there was such a bona fide concern.
MR HATCHER: The evidence then emerges, your Honour, that the employee did have a significant difficulty.
KIRBY J: Did the Full Court set aside that finding that it was not ‑ ‑ ‑
MR HATCHER: They were not asked to, your Honour, because it was not necessary for the purpose of the appeal.
KIRBY J: They took a view about what reinstatement meant under the Act.
MR HATCHER: Indeed.
KIRBY J: That really brings us back then to that issue, does reinstatement under the Act in the context of an Australian Act and Australian industrial realities mean you just have to pay the worker and stay away, tell him to stay away, or do you have to actually have him back there on the floor to vindicate industrial justice to give him a chance to exercise his skills, to give him an opportunity to earn higher rates and to give him the work satisfaction and feeling of worth as a human being that work, doing work, gives people? That is what I was hinting at with Mr Rothman, we all like to feel useful.
MR HATCHER: Your Honour, the difficulty with that analysis is it does not focus on the statute, with respect, it focuses upon the contract. The common law has said for many years that an employee in this class – and Justice Madwick accepts this as the existing law, leaves it to the High Court to determine whether it ought be challenged, and it is not challenged before the Full Court. The existing law is that, no, the employee does not ‑ ‑ ‑
KIRBY J: That is in the contract claim. We are a step earlier. We are in the reinstatement ‑ ‑ ‑
MR HATCHER: Yes, that is right, your Honour.
KIRBY J: What does reinstatement in Australian law – that is the important issue in this case.
MR HATCHER: Quite so, your Honour.
KIRBY J: What is your answer to the suggestion reinstatement in Australian law both in the past, in practice, in industrial relations and in the context of this Act or in vindication of industrial procedure is you go back onto the floor of the shop or into the office and you are seen there and you have been sacked unfairly and you go back and you exercise it. It may only be for a day and then for other reasons – and then you have another case, but you go back because that vindicates your rights under this statute.
MR HATCHER: You go back as an employee, your Honour. You do not go back to work and, indeed ‑ ‑ ‑
McHUGH J: Why not? Quite apart from common law principles, it must depend on the circumstances of the case. Take the case of a waiter who is paid only by tips and he is dismissed but reinstated. It would be a strange result if the employer could say, “Well, I am obliged to reinstate you but I am not going to give you any drinks to serve anybody. You are employed. You can hang around here eight hours a day in this bar but you get nothing.” That cannot be right.
MR HATCHER: But, your Honour, it is not, with respect, a fair analysis because your Honour asks me to exclude the common law and the common law says that if his remuneration is dictated by the work he is provided then he is within the exception. His contract of employment has an implied term for the provision of work.
McHUGH J: Yes.
KIRBY J: But in this case there is the provision in the Australian Workplace Agreement that his actual income would depend upon the amount of boning he does, and therefore, as Justice Callinan put it, he has a chance to influence the income. If you keep him off the shop floor, then he has lost that chance which you and he put your names to in the Australian Workplace Agreement in this case.
MR HATCHER: There are several difficulties with that, your Honour. Firstly, the tally system works on a group scheme, so when one says he can influence it, he is one of many whose effort will influence the total ‑ ‑ ‑
KIRBY J: It may only be marginal, be it ever so small.
MR HATCHER: But he gives evidence himself that he has suffered no change in his earnings as a result of the steps that were taken. He has not suffered any loss. The other difficulty with that ‑ ‑ ‑
McHUGH J: That is a coincidence, and, it seems to me, an irrelevant coincidence. The point is that you have deprived him of the opportunity. You have deprived him of the benefit the contract gives him.
MR HATCHER: Then, your Honour, we go back into the contract and the problem with that is, Justice Madgwick did not find in the facts that were before him that there was an implied term in the contract that he be provided with work. He said it was not necessary. That finding was not challenged. It was not before the Full Court.
McHUGH J: Yes, but this case is an appeal. We are here concerned with the decision of the Full Court varying the order of Justice Madgwick, and the reason the Full Court did it was because of what is set out in paragraph 77. Now, so far you have not addressed a word of argument to the correctness of that view. Do you support it, or do you not?
MR HATCHER: The Full Court’s judgment at 77, your Honour?
McHUGH J: Yes, 309.
MR HATCHER: We support it, your Honour. We say – I had hoped rather clearly – that the statute does no more than restore what pre‑existed. If there was ‑ ‑ ‑
McHUGH J: That cannot be right, given the provisions of 170CH(3)(b), can it?
MR HATCHER: No, your Honour, I accept that. Where we are talking about reinstatement in 170CH(3)(a), it does no more than restore. In 170CH(3)(b), it puts the employee into the same position exactly as a person who was employed in that position without the benefit of the order. That is, their rights are equivalent; they are not enhanced by the reinstatement order.
McHUGH J: But where do you get that out of the section?
MR HATCHER: Because if it was wanting to do more, it would say so, your Honour. It would be a dramatic change ‑ ‑ ‑
McHUGH J: It does not have to say so. As I put earlier, it is an elementary rule of construction that the grant of any power carries with it the power to do all acts, matters or things that are necessary to effectuate the grant of power. In an appropriate case, I do not see why 170CH(3) powers do not extend to ordering various acts, matters and things which go beyond the literal terms of paragraphs (a) and (b) as long as it is necessary to effectuate the purpose of those grants of powers.
MR HATCHER: Your Honour, the order here only purported to be an order reinstating to the position.
McHUGH J: That is all the Commission did, but when we get into the area of what Justice Madgwick did, you have a judicial officer sitting in the Federal Court. He has not only the power that he has under section 170JC, but he has the powers under section 23 of the Federal Court Act to do all things necessary in the administration of justice. Why cannot a judge of that court, when granting injunctive relief, make such orders as are necessary to effectuate the power under 170JC? It is very difficult to argue against it, because he has that express power. The question is whether it is appropriate.
MR HATCHER: Whether it is appropriate and whether he was asked to do it.
McHUGH J: Yes. Well, he has made this additional order which goes beyond the literal terms, on one view, of 170CH(3), on your argument. It is not on your opponent’s argument but on your argument. But accepting you are right about what “position” means in that sense, why could not the judge make the additional order that he did and which the Full Court deleted?
MR HATCHER: Your Honour, there were two orders that were deleted. One was ‑ ‑ ‑
McHUGH J: Well, one was by consent.
MR HATCHER: Yes. Both parties argued that the order that was deleted was beyond power in its terms, but just to a different effect.
McHUGH J: But we are dealing with the principle.
MR HATCHER: Justice Moore agreed with the majority on the question of the order that was actually made as being beyond power, that is the 14 days provision of work as being beyond power.
KIRBY J: But the one we are dealing with that is before this Court was made by his Honour Justice Madgwick presumably because of the facts and history of this case. He felt it was better to leave no area of bout because of what had happened between the parties. I mean, I am not saying that Mr Blackadder was entirely lilywhite in this and that turning up with his wife and insisting his wife be there at the medical examination and so on. People’s tempers run high in these cases and that is why Justice Madgwick, it seems to me, was entitled under section 23 of the Federal Court Act, and possibly under 170JC, to say, “Well, I am going to put this beyond doubt”. In fact, that was a practical thing to do.
MR HATCHER: Your Honour, there is no doubt that Justice Madgwick was attempting to be practical throughout the whole thing. He did everything he could to bring the parties together ‑ ‑ ‑
KIRBY J: Is that not what this area of the law is supposed to be about?
MR HATCHER: Quite so, but, your Honour, that is not the question, with respect, that is posed before the Court because that order fell by all three and is not in the grounds of appeal in these proceedings. The only issue in the appeal in these proceedings is the conviction of our client for breaching the reinstatement order, the $2,000 fine. The breach of the reinstatement order was said to be by not providing work. It is said that our client was under an obligation by reason of the reinstatement order alone to provide work. Now, your Honour, I went into a discourse into the facts again and I keep getting warned not to do it, but I thought it was necessary to answer your Honour Justice Kirby’s question ‑ ‑ ‑
McHUGH J: No, you were not warned not to do it. You were advised to deal with it at an appropriate part of your argument, not to be dealing with it before the general framework, the general principles upon which you are operating were formulated, that was all.
MR HATCHER: I delved into it then to put some context around the law of reinstatement as it has developed in this country. Your Honour Justice Kirby said to me reinstatement means that they go back to work and I said it has not really arisen for determination because the reality is nine times out of 10 they go back to work – in fact, 99 times out of 100.
KIRBY J: Well, 999 times out of 1,000.
MR HATCHER: Perhaps, but there was no doubt, and his Honour Justice Madgwick found so, an entitlement in the employer under the contract to ask the employee to go for a medical. The employee refused lawful instruction. So that leads to a special factual circumstance and it is in the special factual circumstances where you get the analysis of what reinstatement means.
Now, on our list of authorities is a judgment of Justice Hill in the Industrial Commission of New South Wales in Australian Workers Union v Pioneer Concrete (1991) 38 IR 365. This was another one of those unusual factual circumstances that give rise to consideration of just what is involved in the power to reinstate. What occurred was there was a dispute between Pioneer and the Australian Workers Union and in the course of that dispute the employees declined to make their services available and at a point in time Pioneer decided that it would close the quarry in which they were engaged and terminate their services. Justice Hill was considering an application for reinstatement of those employees in a circumstance where there was no doubt that they could not be put back in the position that they were employed if that involved the provision of work.
His Honour details the facts at some length, but at page 391 in his judgment, at about point 4, he says:
It is true that Pioneer presently has no relevant vacancies for persons at the Bass Point Quarry. But Pioneer on the evidence has not ceased to be an employer within the meaning of the Act and it may well decide on review, to recommence operations at Bass Point. However, there is, in general, no duty on an employer to actually provide work to an employee if it chooses not to do so. Indeed in many cases for one reason or another it is unable to provide useful work for its employees; and it is not unusual that, in appropriate cases, the employer seeks and obtains a “stand-down” provision. However, the grant of such a clause is not automatic –
his Honour goes on to deal with that. In the ultimate he determines to reinstate these employees, having found that there is no work for them to perform.
McHUGH J: Yes, but I think part of the problem that arises in this case, first of all, is that the Full Court never really dealt with the most important question in the case and, secondly, the notice of appeal does not seem to strictly raise it; that is, the Full Court, having come to a view about what the Commission’s power was under 170CH, thought that automatically led to the view that paragraph 2 of the orders made by Justice Madgwick had to be varied. Now, that did not follow at all. The notice of appeal seems to act on that hypothesis and deals with the effect of the primary order. But there are two questions in the case, it seems to me. One is the nature of an order that can be made by the Commission in the first instance and, secondly, the nature of an order that can be made by a judge granting an injunction.
The Full Court seemed to think that one followed from the other. It does not seem to me that that is necessarily right. Why, in an appropriate case, could a Commission not say, “You shall be reinstated as a clerk and that’s it” but then because of what happens the court then orders – you go back to my illustration about the waiter. The Commission says, “You are reinstated as a waiter.” Why then can a judge not say, in enforcing that order, “You’ve got to give him work, because that’s the only way he can earn any money”?
MR HATCHER: Your Honour, we would not put an argument against that. In fact, we expressly conceded before Justice Madgwick that if his Honour found that it was an implied term in the contract that work be provided, then he would be entitled to grant that relief in the accrued jurisdiction, but he could only do it, we said, on the basis that the order – the injunction which gave effect to the Commission’s order was an injunction that the employee be reinstated.
If the effect of reinstatement was to restore a contract which carried with it an obligation to provide work, then he could make an order that clarified that or ensured that that position was clear as between the parties. But the statute gave rise to no additional power. That is the way the case was conducted. That was the way the case was conducted before the Full Court, and that is the way the Full Court determined it. The majority said the statute gave rise to no additional right or obligation than those that arose between employer and employee.
The Court sees in our written submissions that we have been keen to say if the statute was intending to do something other than that which it has always been understood to do, and one assumes that when the legislature had regard to Loty they had regard to the New South Wales jurisprudence, part of which was Pioneer. If they were intending to change the fundamental rights of employer and employee under the contract of employment then they would have done so in express terms, rather than simply use the phraseology “reappoint to the position”.
There was a distraction early in our friend’s case about the question of defence. It should be said that the appeal book does not reproduce all the proceedings below. I do not say that critically, I mean that is a practice that is meant to occur these days because it is only matters in issue that should be before the Court. I was in the proceedings before Justice Madgwick. I really cannot assist the Court on whether a defence was filed or not. My friend says it was not. The only reason I clarify it is that conclusion does not flow just from the appeal book.
I can say to the Court that Justice Madgwick was doing everything he could to bring the proceedings on as quickly as possible and there were steps taken that may not be immediately clear. We did not regard them as overly relevant. My friends have put that there was no evidence sought to be led by our client as to the medical situation before Justice Madgwick at first instance, at least that is what I understood our friends to put.
At page 79 of the appeal book at about 18 it is clear that I reminded his Honour that we had put in some earlier proceedings before his Honour, or some earlier stage of these proceedings before his Honour, that it would be preferable if all the medical evidence was before his Honour before he determined the matter and his Honour did not accept that evidence. His Honour did accept it in the stage between his initial judgment and the consideration of whether an injunction was appropriate.
KIRBY J: Both you and Mr Rothman have said that, but I find that hard to reconcile with paragraph 43 on page 234, where Justice Madgwick does refer to Dr Castagna’s report. Maybe that was arising out of the discussion you had with him orally.
MR HATCHER: He knew there was a report, your Honour.
KIRBY J: Yes.
MR HATCHER: He did not know what was in the report.
HAYNE J: That appears from paragraph 29, page 231.
MR HATCHER: Yes. Of course, he never makes a determination, when he comes to grant the injunctive relief, as to the medical evidence.
KIRBY J: But if this was an important aspect of your case, one would have thought it would have been pressed in the actual substantive hearing not on speaking to the minutes of the orders that follow. It seems a very odd ‑ ‑ ‑
MR HATCHER: It was pressed and we were not allowed to call the evidence. That is clear from 79. We did not appeal that. We cannot make complaint about it now, but the reason that we saw it as relevant or its relevance could be re‑agitated on the question of injunctive relief was that we saw that in the discretion the court had as to whether or not to grant, effectively, an order of specific performance of the contract of employment, it was relevant to know whether the employee was physically able to do the work.
KIRBY J: But is not Mr Rothman correct in principle that that is a matter that arises when the person goes back to work? Especially if he is restored to the ordinary position as a boner, with occasional forays into the hot neck slaughtering room – the time to raise that is when he cannot do that work or refuses to do it.
MR HATCHER: No, your Honour, because his evidence is that even if he never left the chilled boning room, he would be required to do the same tasks.
KIRBY J: Yes, but he got by for two years. You cannot overcome that. You would not give him a chance to go back to the old job on the same old conditions. You just dug your heels in.
MR HATCHER: Our client said ‑ ‑ ‑
KIRBY J: Both sides dug their heels in at various times. It was a case of the whites of their eyes.
MR HATCHER: Our client said, “Attend a medical, if you get a clear bill of health you can come back”.
KIRBY J: We know all that. I am on your side there, but he lost his wages during that period. He did not ‑ ‑ ‑
MR HATCHER: When he refused to attend the medical ‑ ‑ ‑
KIRBY J: Yes, but he did not lose his order of reinstatement.
MR HATCHER: No, it was ‑ ‑ ‑
HAYNE J: The relevance of all of those facts depends upon presuppositions that the argument makes about the effect of the order.
MR HATCHER: Quite so, your Honour. It all comes back to a very simple question. Does section 170CH of the Act confer a right or remedy or impose an obligation additional to those that exist under the contract of employment pre the order.
HAYNE J: Another way of putting the question is what does it mean? In particular, what does reinstatement to a position mean?
MR HATCHER: Reappointment to a position, your Honour.
HAYNE J: Reappointment, yes.
MR HATCHER: Precisely.
KIRBY J: But “reappointment” is a legal term. “Reinstate” from its Latin origins seems to suggest to the mind, you put them back into the actual position as it operates in practice, not simply give them a theoretical legal, contractual right.
MR HATCHER: Well, your Honour, the theoretical ‑ ‑ ‑
KIRBY J: That is the question, is it not? It is either right or wrong.
MR HATCHER: If one looks at companies, companies are removed from the register. When they are reinstated it is generally for a theoretical legal right.
KIRBY J: Yes, but we are talking here about Australian industrial law and practice over a century.
MR HATCHER: And we looked at the difficult cases - in every case we looked to a difficult case we find that the New South Wales Industrial Commission has not felt itself restrained by the fact that no work was available from making an order for reinstatement in the appropriate circumstances. His Honour, Justice Moore, said, “Yes, but that’s where no work is available. You can’t reason to the contrary”. We say, with respect, why not? If the provision of work is not an element in the power, right or duty created under the statute, then it is not. It must work both ways. May it please the Court.
McHUGH J: Thank you, Mr Hatcher. Yes, Mr Rothman.
MR ROTHMAN: Your Honours, the question that your Honour Justice McHugh raises in relation to the powers of the court to make orders enforcing the reinstatement question, in our respectful submission, the court clearly has the power to make detailed orders, the effect of which is the enforcement of the order that it has made.
McHUGH J: I know that, but the question is whether your notice of appeal raises it.
MR ROTHMAN: In our respectful submission, it does, and it does because it raised, inter alia, by paragraph 2 and paragraph 3 ‑ ‑ ‑
McHUGH J: But they seem to take their stand from the fact that the order of the Commission itself required the provision of work. You do not deal with the alternate situation that even if the order was confined to a named position – supposing the Commissioner just simply said, “You shall be reemployed in a particular occupation”, the question may then arise as to whether subsequently the Federal Court can make an order adding to that saying, “You work in that position”.
MR ROTHMAN: Your Honour, that question necessarily arises if and only if the order for reinstatement means more than a reinstatement in the contract of employment. If the order for reinstatement as statutorily provided to the Commission was limited as, as I understand it, is my learned friend’s proposition and was the holding of the majority in the Full Court below, if it was limited to the reinstatement of the contract of employment, then orders that your Honour is suggesting – that is, the detailed orders giving effect to reinstatement – could not then be made.
It is only if the reinstatement order of the Commission is not so confined and does have a practical impact other than the reinstatement of the contract – leaving aside the subsidiary points about what the contract really means – that one then gets into the question, in my respectful submission, that your Honour has raised. But it brings one back, in my respectful submission, to the proposition clearly that what the Act says is reinstate by reappointment to the position, not reinstate the contract of employment or reinstate any employment.
McHUGH J: Let us assume somebody is directed to re‑employ a person in a particular division and the employer says, “I am going to close down that division simply for the purpose of frustrating the order of the Commission”. Why could the Federal Court not make an order, in effect, directing the division to reopen, if it is done for the purpose of frustrating the order of the Commission?
MR ROTHMAN: It could, your Honour. I do say that your Honour’s adumbration of the issues associated with the kind of order that can be made by the Federal Court is an appropriate expression of the powers, because we do not say that the power to reinstate by reappointment to a position is a power confined, as my learned friends must say, to the nominal restoration of the contract of employment. We say that reinstatement is intended to have a practical effect. That is our primary premise and ‑ ‑ ‑
McHUGH J: Your opponent’s argument is that the order of reinstatement only reinstates the contract.
MR ROTHMAN: Yes, your Honour, and we say if it intended to do that it would say so. We have said that in our outline of submissions. It does not. It does not say “reinstate the contract of employment”. It does not say “reinstate any employment”. It says “reappoint to the position”. My learned friend’s quote at appeal book 237, paragraph 57 as to the rights, we say his Honour Justice Moore is clear that what reinstatement does ‑ ‑ ‑
McHUGH J: That is a reference to Justice Madgwick, is it not, 237?
MR ROTHMAN: I am sorry, his Honour Justice Madgwick. It is clear that it is the restoration of the status quo ante. That is the traditional understanding of the term “reinstatement” as it has been applied. I have given your Honours references to the English cases which deal with that. The Australian cases, likewise, deal with that, at least implicitly and the point made by his Honour Justice Madgwick at paragraph 57 is what occurs after reinstatement. That is, as my learned friend put it, did he have a right to work? That is not the question. The question is, was he reinstated to the position, and it is only after reinstatement does the question associated with the contract of employment arise on that primary premise issue.
CALLINAN J: Mr Rothman, could I just clarify one thing please. Does the AWA really classify its employees in different positions, I think, does it not? Slaughterpersons, boners, perhaps others?
MR ROTHMAN: Labourers, follow-on labourers, yes, your Honour.
HAYNE J: Stockmen, I think that is it.
MR ROTHMAN: Yes.
CALLINAN J: Your client was a ‑ ‑ ‑
MR ROTHMAN: There are a number of classifications. I will take your Honour’s suggestion.
CALLINAN J: And your client was a boner, is that correct?
MR ROTHMAN: Yes, your Honour.
CALLINAN J: And that is why I suppose that clause that I referred to before within the provisions relating to boners may be of relevance, but you say it has to be read subject to 35.9 which appears to apply to all employees. Is that right?
MR ROTHMAN: Yes, your Honour, it is a contract of employment provision.
CALLINAN J: Yes.
MR ROTHMAN: The only other matter that I would raise on that question of reinstatement was, in passing I gave your Honours a reference in the submissions, the reference is to unauthorised reports and perhaps I can give your Honours – it is very much by way of a side wind – to R v Governors of J School. The reference I had given to the Court previously is [2003] UKHL 9. It is now reported in the authorised reports at [2003] 2 AC 633. Those are the only matters that truly arise ‑ ‑ ‑
KIRBY J: Can I just ask one small question. Mr Hatcher said in his submission that the issue before the Court concerns the penalty which is imposed on the respondent. Now, I ‑ ‑ ‑
MR ROTHMAN: There is no appeal against the penalties, your Honour, as I understand.
KIRBY J: Well, I would like to have that clear, if necessary, in a follow‑up note because I did not quite understand that submission and I still do not.
MR ROTHMAN: Your Honour, certainly that which is before this Court ‑ ‑ ‑
KIRBY J: The appeal, as I understand it, is against that part of Justice Madgwick’s order that has been deleted by the Full Court and that alone.
MR ROTHMAN: That is right, your Honour.
KIRBY J: And that related to what was the purpose of Justice Madgwick’s order for the reinstatement of your client.
McHUGH J: The order made by the Full Court is set out at 312 and it simply allowed the appeal in part and deleted ‑ ‑ ‑
KIRBY J: From paragraph 2. And that is not to do with the penalty on the respondent, that is to do with the obligation of the respondent, under the mandatory injunction, to reinstate your client, and is part of Justice Madgwick’s order making clear what his Honour believed was the proper mandatory injunction to be made by the Federal Court in fulfilling the order of the Commissioner ‑ ‑ ‑
MR ROTHMAN: Yes, your Honour and the orders ‑ ‑ ‑
KIRBY J: ‑ ‑ ‑ affirmed by the Full Bench of the Commission.
MR ROTHMAN: The orders that are sought are as set out in the appeal itself, appeal book page 315. None of them deal with a penalty. They deal with an order for the reinstatement into the position:
namely a boner performing chilled boning work in that part of the Respondent’s premises known as the big boning room; and
(b) the Respondent furnish the Appellant with his usual work in such position.
KIRBY J: Yes, well, that is how I will read it, unless there is something sent in that explains differently.
MR ROTHMAN: There is no other extant issue in terms of the orders, your Honour.
HAYNE J: I was just pointing to the fact, Mr Rothman, that the Full Court orders do not affect the order of Justice Madgwick of 10 May in which there is a declaration of contravention.
MR ROTHMAN: That is right, your Honour, and the finding of contravention and the penalty was not a subject of the order of the Full Court even by the majority, nor was it the subject of appeal here, and I frankly do not know that we would have a right of appeal. I do not think we are prejudiced by the findings. If your Honours please, those are the matters in reply.
McHUGH J: Yes, very well. The Court will adjourn until 10.00 am tomorrow and will reserve its decision in this matter.
AT 12.49 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Employment Law
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Negligence & Tort
Legal Concepts
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Duty of Care
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Negligence
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Causation
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Damages
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Vicarious Liability
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