Blackadder v Ramsey Butchering Services Pty Ltd

[2002] FCA 678

FEDERAL COURT OF AUSTRALIA

Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 678

STEPHEN BLACKADDER v RAMSEY BUTCHERING SERVICES PTY LTD
N756 of 2000

MADGWICK J
21 MAY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N756 of 2000

BETWEEN:	STEPHEN BLACKADDER APPLICANT
AND:	RAMSEY BUTCHERING SERVICES PTY LTD RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	21 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to file in court the affidavits of Nigel Bacon sworn 15 May 2001 and Francis Hannigan sworn 20 May 2002.

2.The respondent reinstate the applicant to the position in which he was employed prior to the termination of his employment, namely a boner performing chilled boning work in that part of the respondent's premises known as the big boning room;

3.Upon such reinstatement and for a period of 14 days thereafter the respondent shall furnish the applicant with his usual work in such position, excepting in case of shortage of stock to slaughter.

4.In the event of a dispute thereafter as to the applicant's physical capacity to perform the work that thereafter might lawfully be required of him, the parties and each of them are to refer the matter to the Disputes Committee established under the Australian Workplace Agreement which, as was common ground in the proceedings, binds the parties.

5.The respondent is to pay the applicant within 17 days hereof an amount of $1,100 for interest.

6.Orders to take effect on and from Monday 27 May 2002.

7.Liberty to apply to Justice Madgwick before 1pm on Wednesday 29 May 2002 as to a stay on 48 hours notice.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N756 of 2000

BETWEEN:	STEPHEN BLACKADDER APPLICANT
AND:	RAMSEY BUTCHERING SERVICES PTY LTD RESPONDENT

JUDGE:	MADGWICK J
DATE:	21 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. I intend to order that:

   (1)Leave be granted to file in court the affidavits of Nigel Bacon sworn 15 May 2001 and Francis Hannigan sworn 20 May 2002.

   (2)The respondent reinstate the applicant to the position in which he was employed prior to the termination of his employment, namely a boner performing chilled boning work in that part of the respondent's premises known as the big boning room;

   (3)Upon such reinstatement and for a period of 14 days thereafter the respondent shall furnish the applicant with his usual work in such position, excepting in case of shortage of stock to slaughter.

   (4)In the event of a dispute thereafter as to the applicant's physical capacity to perform the work that thereafter might lawfully be required of him, the parties and each of them are to refer the matter to the Disputes Committee established under the Australian Workplace Agreement which, as was common ground in the proceedings, binds the parties.

   (5)The respondent is to pay the applicant within 17 days hereof an amount of $1,100 for interest.

   (6)Orders to take effect on and from Monday 27 May 2002.

2. I will shortly explain the reasons for those orders. 

3. There is now before me material that indicates that there is no actual medical impediment to the applicant's performance of the duties which, in accordance with his concession, I found were or could be part of his ordinary obligations in the position to which he was reinstated by the Australian Industrial Relations Commission.  On the other hand, there is also medical evidence that a combination of long standing conditions predisposes him to injury of the shoulder and/or elbow if he continues to undertake boning work.  Nevertheless, the matter has a long history, detailed in my judgment Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603, and in my opinion it should be brought to a visible and prompt end. As Mr Blackadder, advised by his union and legal advisers, would wish me to do more than make a declaration, and as the respondent will be bound under Federal law to comply with my orders, my orders must furnish a defence to any liability the respondent might otherwise have under the State occupational health and safety laws. That is my intention.

4. I have also been asked to consider the respondent's position in relation to an intended appeal against my judgment and a stay of these orders.  I have no wish to make life difficult in that regard for the respondent; however, without seeming overly self-confident or indeed overly attached to the judgment orders that I have indicated I will make, it does not seem to me to be an appropriate case in which I should permit a stay of proceedings. 

5. I will, however, grant liberty to apply should there prove to be any difficulty in assembling a Full Court to consider a stay application upon the prompt filing of a notice of appeal. 

6. So, the further orders I will make are that the foregoing orders shall take effect on and from Monday 27 May 2002 with liberty to apply as to a stay on 48 hours notice, up to 1.00 pm on Wednesday 29 May 2002.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             28 May 2002

Counsel for the Applicant:	Mr C Magee
Solicitor for the Applicant:	MRM Solicitors
Counsel for the Respondent:	Mr G Hatcher
Solicitor for the Respondent:	Hannigans Solicitors
Date of Hearing:	21 May 2002
Date of Judgment:	21 May 2002