CFMEU v Leighton Contractors Pty Ltd
[2012] FMCA 487
•25 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CFMEU v LEIGHTON CONTRACTORS PTY LTD | [2012] FMCA 487 |
| INDUSTRIAL LAW – Injunction to restrain employer from taking adverse action in the nature of its suspension or dismissal of an employee – s.12 Fair Work Act – Workers Compensation and Rehabilitation Act (Q) is a workplace law – s.340(1)(a) Fair Work Act – a claim for WorkCover benefits gives rise to a workplace right – s.340(1)(b) Fair Work Act – entitlement to initiate proceedings for WorkCover benefits is a workplace right – s.572A Workers’ Compensation and Rehabilitation Act – an employee’s workers compensation documents include documents raised at instance of employer even when not intended for employee’s claim if they relate to the claim including independent medical reports and surveillance reports – s.572A(1) Workers’ Compensation and Rehabilitation Act (Q) – contravention by use of an employee’s workers compensation documents – s.109 Commonwealth Constitution – No indirect inconsistency between s.572A Workers’ Compensation and Rehabilitation Act (Q) and the relevant industrial agreement, a Commonwealth legislative instrument – s.342 Fair Work Act – threats to suspend constitute adverse action – s.351 Fair Work Act – disability from injury per se not disability for the purpose of s.351 Fair Work Act – s.360 Fair Work Act – reversal of onus – proof by employer that action taken for reason of fraud. |
| Accident Compensation Act 1985 (Vic) Independent Contractors Act 2006 (Cth) Mining and Quarrying Safety and Health Act 1999 (Qld) Safety, Rehabilitation and Compensation Act 1988 (Cth) Work Health and Safety Act 2011 (Cth) |
| Anderson v Anderson [1895] 1 QB 749 Dickson v R (2010) 241 CLR 491 Mathieson v Burton (1971) 124 CLR 1 Geddes RS, Pearce DC, Statutory Interpretation in Australia (6th ed, LexisNexus Butterworths, Chatswood, 2006). |
| Applicant: | CONSTRUCTION, FORESTRY, MINING AND ELECTRICAL UNION |
| Respondent: | LEIGHTON CONTRACTORS PTY LTD |
| File Number: | BRG389 of 2012 |
| Judgment of: | Burnett FM |
| Hearing date: | 28 and 29 May 2012 |
| Date of Last Submission: | 29 May 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 25 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms C. Hartigan |
| Solicitors for the Applicant: | Maurice Blackburn |
| Counsel for the Respondent: | Mr J. Murdoch SC and Mr S. Grant |
| Solicitors for the Respondent: | McCullough Robertson |
ORDERS
Application dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 389 of 2012
| CONSTRUCTION, FORESTRY, MINING AND ELECTRICAL UNION |
Applicant
And
| LEIGHTON CONTRACTORS PTY LTD |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
Leighton Contractors Pty Ltd (Leighton) sought to take disciplinary action against its employee Michael Hayward (Hayward) for fraud. Hayward was injured in his employment and claimed WorkCover benefits. His initial claim and entitlement were not in issue. However, Leighton subsequently came to believe that Hayward was improperly prolonging his claim beyond the time when the effects of his injury had passed and he had no entitlement to benefits by misinforming doctors and Leighton of his true state. Leighton had Hayward subject to surveillance which affirmed their suspicion. They called him in to address their concerns. At the meeting convened for that purpose, Hayward was represented by the applicant. Matters reached a stalemate. Hayward was suspended and the parties corresponded until Leighton decided to terminate Hayward. The applicant launched this application seeking injunctions restraining Leighton from taking adverse action against Hayward[1] in respect of his workplace rights arising under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) including its allegedly improper reliance upon the documents procured in the course of its investigation; compensation for contravention of the Fair Work Act 2009 (Cth) (FW Act); and pecuniary penalties.
[1] In the application final relief is sought in favour of the applicant. However, the claim for interlocutory relief reveals that the claim seeks substantial relief for the applicant’s member, Hayward.
Summary of Findings
Numerous issues arose for determination in the dispute. Some conclusions are based upon cumulative findings. For convenience I summarise the findings below. These findings are based upon the reasons which follow:
a)The WCR Act is a workplace law as provided for by the FW Act;
b)Hayward had a workplace right arising from a claim made for applicable WorkCover entitlements;
c)Hayward had a workplace right arising from Leighton’s use of workers’ compensation documents in contravention of s.572A WCR Act;
d)For the purpose of s.572A workers’ compensation documents included:
i)Documents raised for the application;
ii)The independent report of Dr Bourke;
iii)The surveillance report of Riedel; and
iv)‘Annexure A’ (the summary document compiled from various other workers’ compensation documents).
e)The provision of the surveillance report by Leighton to WorkCover pursuant to s.536 WCR Act did not give rise to a contravention of s.572A WCR Act;
f)The Riedel Report and ‘Annexure A’ were not entitled to exemption under s.572A(2) WCR Act, but Dr Bourke’s report was exempt;
g)No issue of inconsistency pursuant to s.109 of the Commonwealth Constitution arises as between s.572A WCR Act and the relevant industrial agreement, a Commonwealth legislative instrument;
h)Leighton’s conduct in calling upon Hayward to show cause before standing Hayward down and threatening dismissal, together with the subsequent related correspondence, constituted adverse action for the purpose of s.342(1) Item 1 FW Act by altering his position to his prejudice, but the conduct of the investigation did not.
i)No basis exists in law for a finding of a ‘disability’ on the part of Hayward actionable under s.351 FW Act.
j)Leighton did not take adverse action against Hayward because Hayward sought to exercise his workplace rights, they being his right to make a WorkCover claim or his right not to have his workers compensation documents used by Leighton against him, but took actions appropriate to investigating and processing a claim of fraud made against an employee in respect of the employee’s conduct relevant to the employer/employee relationship.
Background Facts
On 31 August 2011, Hayward made an application for compensation pursuant to the WCR Act in respect of an injury suffered at approximately 11:30am that day. Hayward is, and was at the time, an employee of Leighton and a member of the applicant in these proceedings, the CFMEU. At the time he described himself as having been employed as an “operator” in the pit at the Moorvale coal mine. He claimed to have suffered a “neck/back” injury which occurred while he was “Driving truck. Getting loaded.”
In the employer’s report his injury was described as “Back – other and multiple, Trauma to joints/ligaments no classifie [sic].” Initially, the claim progressed as would be expected. Hayward presented to a local doctor, Dr G. Rowles, on the day of the injury. Dr Rowles diagnosed “severe whiplash” caused by “load dumped into tray – jostled about.” He was satisfied that the injury was consistent with Hayward’s description. Dr Rowles opined that Hayward would require treatment from 31 August to 30 September and recommended review on 13 September. He issued a certificate to that effect.
In accordance with Leighton’s practices, the company made internal inquiries concerning the claim before advising WorkCover that it was “ok” for them to proceed with Hayward’s claim. Leighton accepted Hayward’s description of “severe whiplash,” that being a term used in correspondence from WorkCover to Leighton in an email of 6 September 2011 advising of WorkCover’s decision to accept Hayward’s claim.
It is important to note that, notwithstanding later events, it was not in issue that Hayward suffered an injury on 31 August and made a bona fide claim for WorkCover entitlements at that time.
However, in or about late September, Leighton’s Health and Safety Superintendant, Mark Jacobs, received a call from Athol Bremner, Production Superintendant at the Moorvale Mine. Based upon this conversation, Jacobs began to suspect that Hayward “may have been being dishonest about the nature and extent of his alleged injuries.” When pursued in cross examination, Jacobs stated that Bremner had said that he had been told by some of Hayward’s co-workers that Hayward had previously fabricated work related injury claims. That conversation plainly gave rise to the concerns Jacobs then experienced. Jacobs conceded that the matter appeared to be based upon rumour but observed that he had confidence in Bremner and that he believed Bremner would not have brought this matter to his attention without him first having made appropriate inquiries. In other words, Jacobs regarded Bremner’s character as relevant in assessing the reliability of the rumour being passed up the chain of command.
Concurrently, Hayward had been referred by Leighton to Dr Ian Bourke, an occupational physician, for provision of an ‘occupational pathway for the management and rehabilitation’ for his injury. In his report of 4 October 2011, Dr Bourke noted that imaging revealed evidence of degenerative changes within the cervical spine and he made a diagnosis of soft tissue injury to the cervical spine with aggravation of the pre-existing degenerative change.[2] Dr Bourke did not express any view that the injury was inconsistent with the reported incident or complaints to that date. He did however observe that “overall, the level of impairment is not overly marked and in my opinion the prognosis remains good.” On a fair reading of that report, a reader would reasonably conclude that the injury was not serious.
[2] Affidavit of Kelly Maree Thomas filed 21 May 2012 Annexure KMT 6 at page 223.
However, given Jacobs’ then aroused suspicions, the matters related in Dr Bourke’s report gave rise to further concern. Jacobs was concerned that “Hayward may have been being dishonest about the nature and extent of his alleged injuries.” While the applicant sought to make something in cross-examination of this somewhat vague expression, it was patently obvious that Jacobs was concerned that Hayward was advancing a fraudulent WorkCover claim. Accordingly, Jacob reported the matter to Edward Sparling, Leighton’s corporate counsel, and suggested surveillance of Hayward. He forwarded to Sparling a copy of Hayward’s WorkCover application and Dr Bourke’s report. In making this request, he stated in his affidavit that his “sole reason for requesting surveillance was because [he] was concerned that Hayward may have been dishonest.” In cross-examination on this point he was less emphatic. Plainly, his belief that Hayward had been dishonest was a noteworthy factor. However, I do not accept that it was the sole factor. No doubt his concern was also influenced by a suspicion that Hayward was rorting the WorkCover system, a matter that was the subject of rumour between employees ‘on the shop floor,’ given Bremner’s report. For instance, if he had been informed that Hayward was ‘fiddling’ his taxes by over claiming employee deductions or understating gross income, none of which had any bearing upon Leighton, I fully expect that Jacobs would have had no interest, for such matters would have been irrelevant to Leighton and Hayward’s employment as a plant operator.
The WorkCover system forms part of the industrial framework. However, dishonesty in claims against it are no different to any other dishonest conduct in that environment, such as theft of tools, equipment or allowances to which there is no entitlement. It was in that context that I am satisfied that Leighton’s managers pursued Hayward and not because the purported fraud was against WorkCover but because it was fraud. The WorkCover claim simply provided the context but was not the reason or part of the reason.
Between early October and 16 November 2011, the WorkCover claim progressed. Jacobs did not inform WorkCover of his suspicions and permitted Hayward’s WorkCover claim to progress without it being contaminated by the views held by him.
WorkCover referred Hayward to a neurologist, Dr Cameron, who in his assessment on 28 October opined in his report of 31 October 2011:
“It is probable this man suffered a mild aggravation to his underlying pre-existing degeneration in his mid-cervical spine in the incident as described.
The injury was said to have occurred on the 31.8.11. It is now 2 months post injury and there appears to be little, if any, improvement.
This is rather unusual …
There may be some non-organic factors existing.”
Dr Cameron noted at the time of presentation that “[Hayward] complains of neck pain and has virtually little demonstrable neck movements.”
However, on 16 November, Jacobs received from Sparling a copy of the investigation summary report prepared by Riedel NT, dated 15 November 2011. The report included video footage and still photographs. In summary, the video footage reveals that Hayward had full and free neck movement. The report also detailed the investigator’s observations concerning Hayward’s movements before and after his appointment with Dr Cameron on 28 October. Such was inconsistent with Hayward’s reported capacity to Dr Cameron that same day. The investigator also noted a marked change in behaviour on 21 October. On that day, Hayward was under surveillance before and after a visit to the Mater Misericordiae Private Hospital. It was observed that his behaviour in the precinct of the hospital before and after that visit was “slow and deliberate” and was “contrary to what had been observed up to that point.” The observations were not only at odds with Jacobs’ experience in managing WorkCover claims but also inconsistent with the reports of Hayward’s presentation at about that time to medical practitioners, including Dr Bourke. From his experience in managing WorkCover claims for almost 10 years, Jacobs was surprised that Hayward, who to his knowledge claimed to be totally incapacitated by the neck injury, could freely drive a car and move around with seemingly no restriction whatsoever, as was evident in the video footage.
Given his concerns and knowledge of Leighton’s obligations under the WCR Act, he reported his concerns to WorkCover. On 16 November he spoke with Ms Tammy Kangas, Manager of the Claims, Management Unit at WorkCover and informed her that he had received a report showing Hayward’s engagement in movements which he believed were not consistent with the injury documented in the medical reports. He subsequently provided her with a digital copy of the report and, later that day, surveillance material. Plainly, this compliant gave rise to the difficulties that Hayward claimed he subsequently experienced with the processing of his WorkCover claim, and necessitated the engagement of Mr Worsley’s services as his solicitor.
On 1 December 2011, WorkCover wrote to Dr Cameron requesting that he consider a number of matters specific to the surveillance material which had then been procured. Eight questions were asked of Dr Cameron directed to matters which were evident in the video surveillance material.
In his report of 9 December 2011, Dr Cameron noted that Hayward had reported “minimal improvement in his neck symptoms and occipital headache.” Specifically, Dr Cameron noted:
“[Hayward] states he still experiences pain in his neck with restricted neck movements. He feels his rotation movements have improved slightly since I last saw him. He is unable however to extend his neck and has only minimal flection.”
Curiously, none of the specific questions asked of Dr Cameron by WorkCover in their letter of 1 December were addressed. Indeed, Dr Cameron’s report would suggest that none of that material had been considered by him prior to or by the time of the preparation of his report. Undoubtedly, had he considered the video material it is unlikely he would have responded in his summary that:
“Mr Hayward today demonstrates still grossly voluntary restricted neck movements which I cannot offer any explanation for on organic grounds.”
It is unfortunate that this mater was not clarified by either a supplementary report or oral evidence from Dr Cameron. In any event, that matter, and the fact that it appears there was a failure by WorkCover to follow up Dr Cameron’s failure to address the specific questions, is not of moment in the context of this application. The evidence does not suggest that any of Leighton’s officers saw that report at any time material to the action that they took in respect of Hayward’s WorkCover claim.
Jacobs stated that his sole reason for notifying WorkCover of these matters was his belief that he had a statutory obligation to do so. I accept his evidence on this matter and so find.
Meanwhile, in addition to notifying WorkCover, in about early December Jacobs provided a copy of that material to Scott Donaldson, Senior Employee Relations Advisor for the respondent, and also informed him that the video material showed Hayward engaging in movement which seemed inconsistent with his reported injuries. Donaldson discussed the matter with Jeffrey Moncrieff, Leighton’s Project Manager at its Moorvale mining operations.
Following this conferral, Moncrieff and Donaldson decided to discuss their concerns with Hayward and allow him an opportunity to respond. Although both Donaldson and Moncrieff stated that their sole reason for deciding to raise their concerns with Hayward stemmed from a concern that Hayward may have been dishonest and ought be permitted an opportunity to respond to the concerns, the fact of the underlying WorkCover claim cannot be ignored. Plainly, the injury was an industrially related injury; Leighton would have had no interest in it otherwise. It is axiomatic in the workplace that any significant workplace injury will usually be subject to a WorkCover claim, as this injury was, and that the injured worker will enjoy benefits provided by the WorkCover scheme. The attention of both Moncrieff and Donaldson was drawn to Hayward because Hayward’s later behaviour was thought to be inconsistent with his injury complaint. It is not too long a bow to draw that in the circumstances Donaldson and Moncrieff too were suspicious that Hayward’s claim was being dishonestly prolonged.
At this point, mid December 2011, there was no direct evidence to base the conclusion drawn by Donaldson and Moncrieff that Hayward had been dishonest. It was a conclusion founded upon a ‘layman’s’ view that the video evidenced a greater degree of movement than would have been expected given the injuries complained of. However, I accept that in the circumstances the concern of Donaldson and Moncrieff was reasonably based upon the matters expressed later in the letter of 17 February 2012 that Hayward had “been dishonest with Leighton and the doctors, exaggerated/misrepresented symptoms and restrictions, and/or engaged in fraud.”
I find that this conclusion was based upon a combination of factors, they being: Hayward had made a WorkCover claim; he had received benefits; the claim, as it was ongoing, was subject to continued medical assessment; Hayward made certain claims in the course of such assessments; medical evidence provided to Leighton reported some pain related behaviour including a reduced range of movement and flexion and abduction; and surveillance material suggested behaviour by Hayward that was prima facie incompatible with the ongoing effects of the injury the subject of the claim and as reported by him.
I do not accept that Donaldson and Moncrieff engaged in a process of segregating each of the various factors into discrete parts and examining and considering each of them, and upon that process then decided to act on one fact to the exclusion of others. Such an approach did not accord with my assessment of their character as witnesses. They each struck me as honest in their efforts to recount events as they recalled them. However, they also struck me as practical men who assessed factors in a practical, all-encompassing manner, if not perhaps a little instinctively. They did not appear to be motivated by malice toward Hayward although they undoubtedly suffered a sense of moral concern that Hayward had, to their mind, engaged in conduct that they considered dishonest.
While they considered matters, Donaldson and Moncrieff resolved to stand Hayward down on full pay. In reaching that point however, I do not consider that they acted because of the WorkCover claim. Specifically, I consider that they acted because, to their minds, Hayward had dishonestly pursued a claim for ongoing benefits in respect of his initial claim. This decision was based upon a belief that Hayward may have been dishonest in the course of the claim’s progress, resulting in the provision of ongoing WorkCover benefits to him when the effects of his injuries had ceased. Accordingly, I find that it was not the fact of the WorkCover claim per se which was the motivating factor. I conclude that WorkCover merely provided the background. I find that the reasonably based suspicion that the prosecution of that claim was being dishonestly prolonged (once the basis for entitlements under the original claim had passed) was the primary driver of each of their actions.
I accept and find that calling the meeting of 16 December was not motivated by or organised because Hayward had lodged a workers’ compensation claim or reported an injury, nor because he claimed to be suffering a disability. Calling that meeting was motivated by Leighton’s concern that Hayward was seeking to dishonestly extend his entitlements pursuant to his WorkCover claim beyond the time when his entitlements ought ordinarily have ceased.
On 16 December 2011, Donaldson and Moncrieff attended the Mackay offices of the CFMEU to meet with Hayward, who at that time was being assisted by Steven Pierce, the CFMEU District Vice President. During the meeting Donaldson advised Hayward of the surveillance material and of Leighton’s concerns that he had misrepresented or exaggerated his symptoms and/or restrictions, and provided to Hayward and Pierce a number of still images of Hayward undertaking activity which Leighton believed was inconsistent with the symptoms and restrictions he complained of. At that time, the Riedel NT report had not been provided to Hayward. Donaldson informed the meeting that the still images had been drawn from video material of a like kind and that that material had given rise to Leighton’s concern that Hayward had been dishonest with it, WorkCover and the medical practitioners by exaggerating or misrepresenting the symptoms of his alleged injury, and that he had potentially engaged in fraud. He offered Hayward an opportunity to respond. At that point, the meeting adjourned and Pierce and Hayward returned a short time later requesting provision of the video footage. Pierce advised that Hayward would not be making any statement. At this point, Donaldson advised Pierce and Hayward that Hayward would be stood down pending an investigation into the matter.
Given the events leading to this point, I am satisfied that Donaldson’s motive for this conduct was that which had instigated the meeting, namely concern as to whether Hayward was seeking to dishonestly extend his entitlements pursuant to his WorkCover claim beyond a time when they ought ordinarily have ceased. I accept and find that the decision to stand down was not made because Hayward had lodged a WorkCover claim or had reported an injury, nor because he claimed to be suffering a disability.
Although an issue arose from that meeting concerning whether or not Hayward was threatened with termination, it is unnecessary to determine that point. Indeed, subsequent conversation between Pierce and Donaldson and the later decision by Leighton to stand Hayward down on full pay suggests the matter of termination was never seriously in issue at that time.
By a letter dated 23 December 2011, Moncrieff wrote to Hayward care of Pierce noting the events of the meeting and confirming that Hayward would be stood down until the matter was finalised, and in the meantime that he would be provided with remuneration on the basis of “full hours during this stand down period (that is you will be paid as if at work).” Nothing had changed between then and 16 December 2011. Accordingly, I am satisfied the motivation for this letter remained as it was on 16 December.
From early February 2012, the applicant and Leighton became embroiled in dispute concerning the import of the video material. Aside from the applicant’s denial that Hayward’s conduct was inconsistent with his reported symptoms, the applicant also asserted that the documents used to brief the investigators included information from medical reports produced in the course of the workers compensation claim. It was admitted on the pleadings that Leighton provided or caused to be provided to the private investigator a copy of the application for compensation form signed by Hayward, as well as a copy of Dr Bourke’s report.[3] The applicant contended that the use of that material was in contravention of s.572A of the WCR Act. The parties joined issue on the underlying factors in the dispute. Their respective positions, subsequently adopted, reflected this dispute. However, nothing of any moment occurred to impact the basis for Leighton’s original decisions, the motivation of which I am satisfied remained consistent throughout. Further correspondence passed between the parties dated 17 February 2012, 16 March 2012 and 2 May 2012. This correspondence is alleged to be material. However, I am satisfied that the underlying facts and motivation remained constant throughout. The correspondence simply addressed factors in a dynamic sense as the engagement between the parties progressed. Accordingly, while it was material, it was of little moment.
[3] Amended Defence paragraph 5 – It did not admit that they were workers’ compensation documents. I accept that Hayward’s application for workers’ compensation was a “workers’ compensation document.” I find that Dr Bourke’s report was not, it being a document procured internally by Leighton for internal rehabilitation management.
The Applicant’s Complaint
The applicant contends that Leighton’s conduct in employing surveillance, providing the meeting with workers’ compensation documents, calling meetings and corresponding with Hayward to make allegations about dishonesty, threatening disciplinary action in respect of those matters, and his ultimate suspension, constituted “adverse action” in respect of his “workplace rights.” The applicant also contends that the adverse action was taken because of Hayward’s workplace rights and that the conduct constituted a contravention of s.340 FW Act or, otherwise, s.351. It seeks the imposition of penalties and compensation.
Legislative Framework
Section 340(1) of the FW Act provides that a person must not take adverse action against another person because the other person has a workplace right, or has not exercised a workplace right. Relevantly:
a)A “workplace right” means, inter alia, that a person is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body (s.341((1)(a)), or is able to initiate or participate in a process or proceedings under a workplace law or a workplace instrument (s.341(1)(b)), or is able to make a compliant or enquiry in relation to their employment to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument or, if the person is an employee, in relation to his or her employment (s.341(1)(c));
b)“Adverse action” is taken by an employer against an employee if, inter alia, the employer dismisses the employee or injures the employee in his or her employment, or alters the position of the employee to the employee’s prejudice (s.342(1) Item 1). Threatening to take such action also constitutes adverse action (s.342(2)).
This section is a civil remedy provision (s.539). Where a contravention is established, the contravener can be subject to the imposition of, inter alia, an order awarding compensation for loss that a person has suffered because of the contravention (s.545(2)(a)), and/or a pecuniary penalty (s.546).
The applicant contends that Hayward had workplace rights comprising an entitlement:
a)To a benefit under a workplace law;
b)An ability to initiate or participate in a process or proceeding under a workplace law;
c)An ability to make a complaint or inquiry to a person having the capacity under a workplace law to seek compliance with that law.
The applicant contended that Hayward sought to exercise a workplace right, that being the pursuit of a WorkCover claim which constituted a complaint or inquiry in respect of Hayward’s employment. It contended he had a right to make a WorkCover claim and that such a claim was the exercise of a workplace right. Specifically, in respect of his workplace rights, it was also contended that the prohibition on the use of WorkCover documents provided by s.572A WCR Act was also a benefit provided by a workplace law and that the use of such documents was in breach of the associated workplace right.
Is the WCR Act a workplace law?
“Workplace law” is defined in s.12 of the FW Act as:
“(a) this Act; or
(b) the Fair Work (Registered Organisations) Act 2009 ; or
(c) the Independent Contractors Act 2006; or
(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).”
The applicant submits that the WCR Act is a workplace law because it is a State law which regulates the relationship between employers and employees. This, it contends, is supported by the objects of the WCR Act, which provide as follows:
“4 Objects of Act
(1) This part states the main objects of this Act.
(2) The objects are an aid to the interpretation of this Act.
5 Workers' compensation scheme
(1) This Act establishes a workers' compensation scheme for Queensland -
(a) providing benefits for workers who sustain injury in their employment, for dependants if a worker's injury results in the worker's death, for persons other than workers, and for other benefits; and
(b) encouraging improved health and safety performance by employers.
(2) The main provisions of the scheme provide the following for injuries sustained by workers in their employment -
(a) compensation;
(b) regulation of access to damages;
(c) employers' liability for compensation;
(d) employers' obligation to be covered against liability for compensation and damages either under a WorkCover insurance policy or under a licence as a self-insurer;
(e) management of compensation claims by insurers;
(f) injury management, emphasising rehabilitation of workers particularly for return to work;
(g) procedures for assessment of injuries by appropriately qualified persons or by independent medical assessment tribunals;
(h) rights of review of, and appeal against, decisions made under this Act.
…
(4) It is intended that the scheme should -
(a) maintain a balance between -
(i) providing fair and appropriate benefits for injured workers or dependants and persons other than workers; and
(ii) ensuring reasonable cost levels for employers; and
(b) ensure that injured workers or dependants are treated fairly by insurers; and
(c) provide for the protection of employers' interests in relation to claims for damages for workers' injuries; and
(d) provide for employers and injured workers to participate in effective return to work programs; and
(da) provide for workers or prospective workers not to be prejudiced in employment because they have sustained injury to which this Act or a former Act applies; and
(e) provide for flexible insurance arrangements suited to the particular needs of industry.”
The WCR Act, although not based on a model law, is comparable in terms of objects and scheme to legislation operating in other States and the Commonwealth: see generally Accident Compensation Act 1985 (Vic); Workers Rehabilitation and Compensation Act 1986 (SA); Workplace Injury Management and Workers Compensation Act 1998 (NSW) and Safety, Rehabilitation and Compensation Act 1988 (Cth).
In respect of the Commonwealth scheme provided by the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), Smith FM in Stephens v Australian Postal Corporation [2011] FMCA 448 accepted that it was a workplace law. He relevantly concluded at [15] and [16]:
“15. In my opinion, the above elements in the scheme of the SRC Act undoubtedly ‘regulate the relationship between employers and employees’ at the most basic, economic, foundations of that relationship. It imposes financial and other obligations on the employer to meet the compensation and workplace needs of its injured employees, and ‘regulates’ the employees’ entitlements to compensation and other benefits under that Act. This is direct and clear in relation to employers who are licensees such as Australia Post. But it is also clear in relation to the Commonwealth when acting as an employer through its various other entities, from whom Comcare receives ‘premiums’ and other budgetary adjustments to meet the Commonwealth’s liabilities to its employees under the SRC Act (see ss.69(eb) to (ef), and Division 4 of Part VII). It is immaterial to analyse whether an employee has a ‘right’ to a particular monetary or other benefit, or whether he or she only has a ‘right’ to have his or her eligibility to compensation under the SRC Act determined according to law and by the correct or preferable exercise of power in the circumstances (cf Esber v Commonwealth of Australia [1992] HCA 20; (1992) 174 CLR 430 at 440).
16. In my opinion, the SRC Act therefore falls within paragraph (d) of the definition of ‘workplace law,’ even in the narrow sense suggested by Barker J in Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 at [234]: “a law that directly impacts, whether in a positive or negative way, or authorises a court of some other body to make decisions that directly impact, on, or on the exercise of, particular rights, duties or obligations that define the relationships of employers and employees.” I note also the opinion of Riley FM in Bayford v Maxxia Pty Ltd [2011] FMCA 202 at [141], that the Equal Opportunity Act 1995 (Vic) is a ‘workplace law.’”
Accordingly, it is the applicant’s position that the WCR Act, being an enactment similar to the SRC Act, is also a workplace law.
On the other hand, Leighton submits that the WCR Act is not a workplace law. It contended that Smith FM’s reliance upon Barker J’s construction of the term “workplace law” as suggested in Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd (supra) does not assist in this case.
In Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333, the Court was considering whether a transitional Act (the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)) which had the effect of continuing in force a workplace agreement, the ITEA, was an Act within paragraph (d) of the definition of “workplace law.” That is whether it was a law that regulated the relationship between employers and employees, and whether the ITEA was a workplace instrument. The employer contended, in essence, that the Act, being a transitional act preserving earlier rights under former legislation, did not “regulate” the “employer/employee” relationship; the former legislation did. Barker J rejected that narrow construction of the phrase “that regulates the relationships between employers and employees,” noting the transitional act as “a law that preserves the underlying agreement that gives rise to such rights, duties and obligations does … also answer the description.”[4] His Honour had little difficulty in determining that the appropriate regulation was a “workplace law” as defined in s.12. Respectfully, that decision does not conclusively assist in the resolution of the point before me.
[4] At page 564.
The only authorities referred to in argument that expressly addressed the issue and which are on all fours with that now before me were the authorities of Stephens v Australian Postal Corporation (supra) and Bayford v Maxxia Pty Ltd (supra), both decisions of this Court.
In Stevens, his Honour examined the question of whether or not the SRC Act was a workplace law. For reasons which need not be restated, his Honour closely examined the SRC Act and concluded that it was plainly a law of the Commonwealth that regulated “the relationship between employers and employees.”[5] However, in reaching that conclusion it is clear from his Honour’s decision that the issue now agitated before me was neither argued nor considered. Nor was it argued or considered by the Court in Bayford v Maxxia Pty Ltd, a case where the Court determined that the Equal Opportunity Act 1995 (Vic) also was a “workplace law.”[6]
[5] At page 411 and 413.
[6] In any event, in Bayford a right of action existed under s.351 which defined the Equal Opportunity Act 1995 (Vic) as “anti-discrimination law.” That ground was raised but dismissed in the facts of the case.
Leighton contends that, as a matter of proper construction, by application of the principle of ejusdem generis, s.12 subparagraphs (a) to (c) constitute a genus which informs and limits the general provision in subparagraph (d). It was submitted that the legislation detailed in subparagraphs (a), (b) and (c) can be seen to be legislation directed to the provision of a “balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians,” as per the FW Act’s listed objectives – all of which are directed to matters which could broadly be defined as applying to industrial relations (s.3 FW Act). Likewise, the object of the Fair Work (Registered Organisations) Act 2009 (Cth) is intended to enhance relations within workplaces between Federal system employers and Federal system employees and to reduce the adverse effects of industrial disputation (s.5). These too are matters which could be broadly defined as applicable to industrial relations matters (s.5). Finally, the Independent Contractors Act 2006 (Cth) is directed to the protection of the contracting freedom of independent contractors, recognition of such arrangements and to prevent interference in such contractual relations (s.3). Again, that Act is apparently directed to matters pertaining to industrial relations only.
However, the general class provided for in subparagraph (d) is expanded to include “laws dealing with occupational health and safety.” In Leighton’s submission, it follows that the genus is expanded only by reference to laws of the Commonwealth or States of that kind. By way of illustration, such laws include the Work Health and Safety Act2011 (Qld), the Coal Mining Safety and Health Act 1999 (Qld), the Mining and Quarrying Safety and Health Act 1999 (Qld), or the Work Health and Safety Act 2011 (Cth).
Plainly, the objects of the WCR Act, the legislation identified in the FW Act in the definitions of workplace law at subparagraphs (a), (b) and (c), and the objects included in the occupational health and safety legislation particularised above cannot be reconciled if too narrow a genus is identified.
In R v Regos (1947) 74 CLR 613, Latham CJ at 623 cited with approval the observations of the English Court of Appeal in Anderson v Anderson (1895) 1 QB 749 where it stated:
“… Prima facie general words are to be taken in the larger sense, unless you can find that in the particular case the true construction of the instrument requires you to conclude that they are intended to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before.
…
The rule is that general words may be restricted to the same genus as the specific words that precede them (Thames & Mersey Marine Insurance Co Ltd v Hamilton, Fraser & Co (1887) 12 App Cas 484, at p 490). Before the rule can be applied it is obviously necessary to identify some genus which comprehends the specific cases for which provision is made.
…
It was pointed out that “Unless you can find a category there is no room for the application of the ejusdem-generis doctrine” … If you cannot do this, then … you must read all of the particular words separately, and take the general words separately also.”
As his Honour observed, the rule is one of construction and it is designed to assist in ascertaining the intention of Parliament.
In recent times, as has been observed by the learned authors in Statutory Interpretation in Australia,[7] at paragraph 4.26, “the Courts do not readily use the ejusdem generis rule because its application necessitates a limitation being imposed on words that are otherwise of general application.” The learned authors referred to a number of recent authorities in various Australian jurisdictions where the courts have demonstrated a reluctance to impose limitations upon words of a general nature. For instance, general caution was sounded by Hill J in Prabowo v Republic of Indonesia (1995) 61 FCR 258, where at 265 his Honour noted:
[7] Geddes RS, Pearce DC, Statutory Interpretation in Australia (6th ed, LexisNexus Butterworths, Chatswood, 2006).
“The rule that the width of a word of general application may be limited by enumeration of words of greater specificity which precede it, described by its Latin tag as the ejusdem generis rule, requires more caution in its application. Clearly it can only apply where there is to be found in the statute an indication of the relevant genus. It will be easier to find a genus the more items there are which have been enumerated.
…
Often it will be easier to apply the rule where the word “other” appears prior to the word to be interpreted. For example, in Brown v Patch [1899] 1 QB 892 at 898 the word “place” in the collocation “house office room or other place” had to be interpreted ejusdem generis with the words which preceded it. On the other hand the rule may nevertheless be attracted in some cases, notwithstanding that the word “other” has not been used.”
On this point, in Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 413, Spigelman CJ observed:
“The process of reading down general words in a statute is a frequently recurring issue in statutory interpretation. Application of the ejusdem generis rule is a specific example of this process. The application of this rule, in substance, gives the immediate verbal context determinative weight in the process of construing general words. In my opinion, this is rarely justified. Whether or not general words ought be read down is to be determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute.”
His Honour cited with approval the observations of Mahoney JA in Mattinson v Multiplo Incubator Pty Ltd [1997] 1 NSWLR 368, where at 375 his Honour stated:
“There are frequently … several competing formulations of the genus. Which one is to be selected as the intended genus will, as it has been said, require that there first be ascertained what is the purpose of the statutory provision or the legislative intention as disclosed by it … and the exercise might then partake of the circuitous. The legislative intention to be derived from the words used is not ascertained by applying the ejusdem generis rule; whether and in what manner the rule is to be determined after the legislative intention has first been assessed. … If, in order to determine whether there is any, or what, genus, or whether the particular words exhaust that genus, it is necessary first to determine what was the relevant intention of that part of the legislation, the construction of the words may normally be best determined simply by reference to that intention, without the necessity of resorting to an artificial rule of construction.”
Plainly, meaning must be ascribed to the general words. They are not to be construed too narrowly, but likewise they do not present a license to ‘open the gates.’ A sensible construction must be afforded.
Although it seems apparent from subparagraphs (a), (b) and (c) that the genus created pertained solely to matters of industrial law, the ambit of the genus was expanded by the inclusionary matter introduced into subparagraph (d), which specifically provided for the inclusion of laws “dealing with occupational health and safety matters.” The objects provisions of the Acts relevant to work health and safety generally note the purpose of the legislation as being designed to secure the health and safety of workers and workplaces by protecting workers and other persons against harm through the elimination and minimisation of risk, the provision of workplace representation consultation and cooperation in relation to work health and safety. These are matters pertaining to the conditions of employment. While matters of work health and safety undoubtedly bear upon industrial harmony, those matters constitute a discrete class, indicating that the intention of the Parliament extended beyond the inclusion of laws directed to industrial relations only. Accordingly, industrial law per se was not intended to be the genus confining the operation of subparagraph (d).
It follows that the genus identified by subparagraphs (a), (b) and (c), and the inclusionary provision in subparagraph (d), are laws of the Commonwealth and States directed to the broader matter of regulating and defining the terms of relations between employees and employers. But does it extend to laws governing workers compensation rights?
Adopting the formulation provided by Mahoney JA in Mattinson, an analysis of that issue must commence from a review of the objects of the FW Act. The Act seeks to, inter alia:
“ (3) Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations.”
The objects of the FW Act are clearly directed to matters of industrial relations, by defining and regulating the rights that exist between employer and employees inter se. Insofar as the objects refer to the Commonwealth’s international labour obligations, the explanatory memorandum for the objects of the FW Bill listed seven conventions to which Australia was then and still remains a signatory. Those conventions are directed primarily to the contractual aspects of the employer/employee relationship including conventions giving rights to gender equal remuneration and termination. Other conventions focus on the elimination of discrimination in workplaces. Importantly, the objects of the FW Act, as revealed by its expanded objects incorporating Australia’s convention obligations, are confined to industrial relations processes and matters relevant to the regulation and definition of employment between employers and employees inter se.
Likewise, the provision of a safe work environment as encapsulated by work health and safety legislation is merely an expression of another contractual term to be factored into the broad contractual framework generally regulating and defining the relationship between those parties inter se, with such a term commonly implied into an employee/employer relationship when not otherwise expressly provided for.
It follows, in my view, that the genus created by the definition of “workplace law” within s.12 and informed by the objects of the FW Act are laws of the Commonwealth and States that are directed to the regulation and definition of the industrial and contractual relationships between employers and employees inter se.
Workers compensation schemes such as the one created by the WCR Act are generally tripartite in nature and concern employers, employees and the relevant statutory insurers. See generally Workers’ Compensation and Rehabilitation Act 2003 (Qld); Accident Compensation Act 1985 (Vic); Workers Rehabilitation and Compensation Act 1986 (SA); Workplace Injury Management and Workers Compensation Act 1998 (NSW). They are directed to compensation and rehabilitation arising from workplace injury and to provide enforcement powers, including investigatory powers. The WCR Act includes matters relating to the relationship between employers and employees and is not directed solely to the matter of regulation.
In a like context the matter was considered by Jagot J in Dowling v Fairfax Media Publications [2008] FCA 1470. In that case, his Honour was considering s.779 of Workplace Relations Act 1996 (Cth) (WR Act) and its scheme which, on this point, was materially similar to s.340. At [81] his Honour observed:
“[81] Having regard to these matters I am satisfied that the legislation vesting functions in WorkCover, in a number of respects, regulates the relationships between employers and employees. The legislation is thus within the definition of “industrial law” in s.779. This conclusion is consistent with other provisions in the Workplace Relations Act which effectively assume that occupational health and safety laws are a form of industrial law (such as ss.16 and 17). It is also consistent with the tentative opinion expressed by Finkelstein J in Geelong Grammar School [2000] FCA 557. His Honour accepted that such laws were industrial laws but considered that, given the particular terms of the legislation (which permitted penalties only to be imposed), no “seeking” of compliance was involved. The same cannot be said of, for example, the Occupational Health and Safety Act where notices may include directions and be the subject of an appeal and where the powers of courts in offence provisions are broader than the mere imposition of a penalty. ”
Accordingly, as workers’ compensation enactments such as the WCR Act are directed to matters that both regulate and define the employer/employee relationship, they do fall within the genus provided for in the definition of “workplace law” s.12. In my view, the WCR Act is a workplace law as defined.
Accepting this, it follows that as the WCR Act is a workplace law it gives rise to a workplace right which can be the subject of adverse action.
Exercise of Workplace rights
Accepting that the WCR Act is a workplace law, the next issue between the parties is whether Hayward, in fact, had an entitlement to the benefit of a workplace right arising from that workplace law.
It is contended that Michael Hayward had the following workplace rights:
a)He is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
b)He is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument;
c)He is able to make a complaint or inquiry:
i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
ii)if the person is an employee – in relation to his or her employment.
It was contended that Hayward had exercised a workplace right to make a workers’ compensation claim under the WCR Act, in that:
a)A workers’ compensation claim constitutes a complaint or inquiry in respect of Hayward’s employment.
b)The right to make such a claim is a benefit under a workplace law, namely the WCR Act.
c)Making such a claim constitutes the exercise of a right to bring or participate in a process or proceeding under a workplace law, namely the WCR Act; and
d)Hayward had a statutory right that his workers’ compensation documents not be used for a purpose relating to his employment as a worker: that is that prohibition is a benefit under a workplace law, namely s.572A of the WCR Act. [8]
[8] Applicant’s submissions at paragraph 22.
In summary, Hayward contends his workplace rights were:
a)The right to pursue a WorkCover claim; and
b)The right not to have his workers’ compensation documents used for purposes other than those permitted under the WCR Act.
In its submissions, Leighton contends that the right to make a workers’ compensation claim is not a “benefit” within s.341(1)(a). It submits that what Hayward held was “a power to take advantage of” the WCR Act.
It relies upon the decisions of the High Court in Esber v Commonwealth of Australia [1992] HCA 20 and Mathieson v Burton (1971) 124 CLR 1 to support its submission. Accordingly, Leighton formulated Hayward’s situation as one whereby “after making the application [he] obtains a benefit, specifically the right to appeal decisions made in relation to his claim that he is of the opinion are not within the scheme.”
Respectfully, I think that this argument ‘places the cart before the horse.’ Part 2 Division 1 of the WCR Act addresses the compensation entitlements of workers generally. In broad terms, s.108 provides that compensation is payable under the WCR Act for an injury sustained by a worker. Accepting that all the jurisdictional matters are satisfied, i.e. the location is subject to the WCR Act, the “worker” is one as defined and the injury is an “injury,” then a right accrues. It is more than a secondary right to appeal unsatisfactory outcomes from the WorkCover process. It is a substantive right to compensation.
In my view it is for that reason that neither of the authorities cited by Leighton are of assistance. In Esber, the Court was considering rights accruing to a claimant for benefits under the then extant Compensation (Commonwealth Government Employees) Act 1971 (Cth). In the meantime that Act was repealed. Transitional provisions in the incoming Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth) (CERC Act) and the Acts Interpretation Act 1901 (Cth) (AI Act) dealt with transitional issues. The question on appeal was whether the appellant’s rights to compensation were vested in the original Act or the transitional provisions of the CERC Act and AI Act. In that context, the Court addressed the question of rights concerning the enactment before it, s.49 of the 1971 Act. Relevantly, the enactment resposed in the decision maker discretion concerning the outcome of its decision. The majority of the High Court noted that the appellant placed his submissions on two footings: “First, he says that he had, in the circumstances, a right to redemption of weekly payments. Alternatively, he says that he had a right to have the Tribunal determine his application to review the delegate’s decision.”[9] As the Court had earlier decided, the 1971 Act remained efficacious as it did not address the first point beyond making observations about the discretionary character of the decision. Leighton however rely upon the majority’s remarks concerning the “second approach,” particularly the following passage:
“But that is not to the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope J.A. in N.S.W. Aboriginal Land Council v Minister (1988) 14 NSWLR 685, at p 694:
“The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.””
[9] At page 439.
Here the right to compensation was in fact a substantive right. It is a right entirely distinguishable from the right then being discussed. But in any event, even if it were not the same result would follow.
Likewise, I do not think the decision in Mathieson is of assistance.
In Mathieson the “right” in issue concerned a right to possession under statute following the death of the lessee. The issue concerned the effect of various amendments to the Landlord and Tenant (Amendment) Act 1948 (NSW) and the Acts Interpretation Act 1897 (NSW). The case turned on a close examination of those provisions with the real significance of the decision being its focus upon the interaction between the amending act and the Acts Interpretation Act; see especially the judgment of Windeyer J.
Respectfully, in my view, nothing in those decisions distracts from Hayward’s substantive right to an entitlement to the benefit of the WCR Act, provided that he falls within s.107 WCR Act. Hayward had a workplace right pursuant to s.341(1)(a) in respect of his entitlement to claim WorkCover benefits.
Leighton also contends that no workplace right arises under s.341(1)(b). Its contention is that the term “process or proceeding under a workplace law” as provided for in s.341(1)(b) is defined in s.341(2). That subsection sets out in subparagraphs (a) to (j) various processes or proceedings under workplace laws, concluding with sub-paragraph (k), which is in the following terms:
“(k) any other process or proceeding under a workplace law or workplace instrument.”
Leighton submits that upon its proper construction, adopting the ejusdem generis principle, that term should be confined to process or procedure with an industrial relations aspect.
I have earlier determined that the WCR Act is a workplace law. Accepting that matter, it is unnecessary to further review the breadth of s.341(2)(k), for given my earlier finding it is expressly captured. It follows in my view that Hayward also has a workplace right pursuant to s.341(1)(b) FW Act.
However, the applicant also contends that Hayward had a workplace right arising from Leighton’s commissioning of an investigation report, an independent medical assessment and its use of workers’ compensation documents to brief those reporters. The use of these documents was alleged to be in breach of s.572A WCR Act. The right was pleaded at paragraph 20(d) of the Amended Statement of Claim where the applicant stated that Hayward had exercised a workplace right in that:
“(d) the right that worker’s compensation documents are prohibited from being used or attempted to be used for employment purposes is a benefit under a workplace law, namely, s 572A WCRA.”
At the outset an issue arose as to whether various documents were workers compensation documents for the purpose of s.572A, and if so, whether there was any contravention of s.572A in respect of Leighton’s raising or use of them.
It was submitted by the applicant that a workers’ compensation document is a document which falls into a very broad category of documents relating to the worker’s application for compensation.
For the purpose of s.572A of the WCR Act, the applicant contends that workers’ compensation documents in relation to Hayward include the following:
a)The application for workers’ compensation;
b)Any doctor’s report, opinion, assessment or medical certificate produced as a result of the injury or workers’ compensation claim;
c)The Riedel report (including photographic and video footage);
d)Dr Bourke’s report of 4 October 2011 and 20 April 2012;
e)The document exhibited as Appendix A to the respondent’s correspondence of 16 March 2012; and
f)Any document contained on Hayward’s WorkCover file.
At the heart of the contest between the parties on this point is the proper construction of s.572A. That is, whether or not there was the obtaining, or use of, a workers’ compensation document for a purpose relating to the employment of a worker.
Section 572A of the WCR Act relevantly provides:
“572A Access to particular documents for employment purposes prohibited
(1) A person must not, for a purpose relating to the employment of a worker by the person or another person -
(a) obtain or attempt to obtain a workers' compensation document about the worker; or
(b) use or attempt to use a workers' compensation document about the worker.
Maximum penalty - 100 penalty units.
(2) However, subsection (1) does not apply to a workers' compensation document relating to the worker's capacity to work if the document is necessary to secure the worker's rehabilitation or early return to work under chapter 4.
(3) In this section -
employment means any process for selecting a person for employment or for deciding whether the employment of a person is to continue.
worker means a person who is or was a claimant or worker for any provision of this Act or a former Act.
workers’ compensation document, about a worker, means any document relating to the worker's application for compensation or claim for damages under this Act or a former Act.”
Leighton contended that Dr Bourke’s report, the Riedel Report and its Appendix A document (the documents), they being the documents contended for by the applicant as workers’ compensation documents, were not so because they did not relate to Hayward’s employment as defined; and/or they were not workers’ compensation documents; and/or they were not obtained or used for a purpose relating to employment. It is contended that the documents came into being to assist Leighton in considering whether Hayward had been dishonest in its dealings with the company, the doctors and, by necessary inference, WorkCover; in other words, the bona fides of Hayward’s claim but not the claim itself. It contended for this narrow construction.
The narrow construction on this point contended for by Leighton cannot be supported on either a plain reading of the words or by reference to extrinsic material; see s.14 Acts Interpretation Act 1954 (Qld). In the explanatory notes to the Bill introducing s.572A, it observed:
“The Bill amends the [WCR Act] to prohibit the practice of persons obtaining and using any personal workers’ compensation claims information for employment or prospective employment purposes, due to the potential for a worker or prospective worker to be treated unfavourably if they have had a workers’ compensation claim.
…
The Bill achieves the above objective primarily by making an amendment which introduces an offence provision to prohibit the practice of persons obtaining and using any documents that relate to a person’s application for compensation or claims for damages in relation to employment or prospective employment purposes.”[10]
[10] Industrial Relations and Other Acts Amendment Bill 2005 (Qld) Explanatory Notes at page 9.
More specifically, in respect of s.572A, the explanatory notes continue:
“Insertion of new s.572A (Access to particular documents for employment purposes prohibited)
Clause 63 inserts a new section 572A into Chapter 14, Part 1 which introduces an offence provision to prohibit persons from obtaining and using any documents that relate to a person’s application for compensation or claims for damages for purposes related to selection for employment including decisions to continue employment, such as workers in their probationary period.
The new provisions apply to any documents relating to workers’ compensation. However, the provisions exempt documents required for the purposes of assisting a worker’s rehabilitation and early return to work under Chapter 4 …”[11]
[11] Ibid., at page 34.
Likewise, in the Second Reading Speech by the Minister it was noted that “these amendments remove potential for any party to unfavourably treat a person in the event that they have had a workers compensation claim. The provisions do not affect workplace rehabilitation, return to work or employment programs organised by an insurer with the worker’s employer or another employer to aid an injured worker’s return to work.”[12]
[12] Queensland Parliamentary Hansard Tuesday 8 March 2005 at page 339.
Other Parliamentary debate concerning the Bill does not appear to have elucidated the subject.
It follows that nothing in the Explanatory Memorandum or Second Reading Speech detracts from the plain meaning that otherwise attends the words in the context of s.572A and as a matter of proper construction ought follow; see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 – 382.
Accordingly, adopting the construction evident on a reading of s.572A, the question for resolution can be posited as follows: was obtaining and using workers’ compensation documents about Hayward for the purpose of briefing and subsequent assessing of video surveillance undertaken by Leighton done for a purpose, relating to a process, for deciding whether the employment of Hayward was to continue? Given the plain meaning to be applied to the words “workers’ compensation document,” it follows that the question must be answered in the affirmative.
While that outcome is a product of the customary approach to statutory construction, I query whether this was the Parliament’s intention. This outcome seems counterintuitive. That is, it seems odd that the use of workers’ compensation documents by an employer to test the bona fides of a WorkCover claim made against it ought give rise to a statutory offence. From an examination of the explanatory memorandum to the Bill, the second reading speech and Parliamentary debate it is plain that the focus of Parliament’s intention was directed to the mischief of misuse of workers’ compensation documents to inform decisions on initial employment or its continuation. The use of such documents to test the bona fides of a claim, perhaps with a consequential impact upon employment, was never debated. However, it is not the role of the courts to address this deficiency. The statute is clear. If the outcome is unintended the Parliament must address it.
Employment is defined in s.572A(3) to mean “any process for selecting a person for employment or for deciding whether the employment of a person is to continue.” In the context of the present debate, and notwithstanding Leighton’s efforts to confine its context, the underlying fact remains that the purpose of the documents (except Appendix A)[13] was to assist Leighton in deciding whether the employment of Hayward was to continue. It was with that very motive that the meeting of 16 December was called. The purpose of the meeting was for Hayward to be given an opportunity to show cause as an immediate precursor to discipline, including the prospect of dismissal, for serious misconduct. Those matters were sourced in Hayward’s WorkCover application.
[13] Appendix A is a summary document based on information contained in various workers’ compensation documents.
Consequently, the applicant contends, s.572A provides that Hayward is protected from Leighton obtaining or using any workers’ compensation document in relation to his employment because he is entitled to the benefit of protection from the obtaining or use of those documents by Leighton (s.341(1)(a)); or because he was able to make a complaint or inquiry in respect of such use to a body having the capacity under the WCR Act to seek compliance with that law (s.341(1)(c)).
At the outset, Leighton submits that the categorisation by the applicant of the investigation report as being within the definition of workers’ compensation documents provided by s.572A of the WCR Act is irrelevant for present purposes. That submission was premised upon Leighton’s contention that the allegation of paragraph 17A(b) of the Amended Statement of Claim concerning the provision of WorkCover documents to the investigator was not supported by evidence. I do not agree.
Plainly, the investigator had been comprehensively briefed in respect of Hayward’s injuries. In the absence of any background briefing it would have been impossible for the investigator to make the observation contained in paragraph 13 of his surveillance report that:
“… The video evidence we have gathered to date, especially that immediately before, during and immediately after the IME in Brisbane on 28 October 2011, clearly shows that the worker was greatly embellishing his injury and the restrictions he suffers therefrom. In particular, our surveillance strongly suggests that the worker is fooling his treating GP – to the extent that he seemed to have to ‘psych himself up’ prior to going in to the Andergove Medical Centre whereat he clearly embellished his presentation. The evidence was have gathered to date strongly suggests that the worker is malingering. Notwithstanding the presence of degenerative cervical condition, the worker is clearly not incapacitated to any significant extent.”
The matters addressed by the investigator, particularly concerning the GP, could only have been stated if he had been briefed either directly or indirectly with the material the subject of Hayward’s workers’ compensation application. Irrespective of whether the investigator had the source material himself or otherwise was informed, he was plainly acting through the agency of Leighton and that degree of separation does not provide any protection from the operation of s.572A which addresses both access to and use of workers’ compensation documents. Furthermore, as earlier noted, Leighton admits to at least having provided the investigator with a copy of Hayward’s workers’ compensation application, a workers’ compensation document.
Concerning s.572A, Leighton’s substantial submission was:
a)That the prohibition is not intended to extend to documents not given to WorkCover nor to documents that may be given to WorkCover for other purposes; and
b)That the documents must relate to the actual claim in existence and not, for example, to future claims such as claims for damages or a claim for a refund of moneys overpaid or prosecution under the WCR Act.
Leighton submitted that in this case the documents particularised in paragraph 71 above fall into four categories and can be considered on that basis. I agree with that analysis and adopt that approach.
Group A – The application for compensation and any other document on the WorkCover file: Leighton conceded that these documents would be captured within the definition. It was not seriously contended that any other document sourced from the WorkCover file would not fall into this class and be captured by s.572A.
Group B – Dr Bourke’s report: Leighton submitted this document would not be captured within the definition because the document was not a workers’ compensation document within the meaning provided in s.572A(3). It says that it was obtained as part of its usual injury management and return to work processes with a view to assisting Hayward to return to work and was not a document obtained in relation to his application for compensation or for rehabilitation management by WorkCover.
A workers’ compensation document means “any document relating to the worker’s application for compensation.” The connecting phrase “relating to” has been the subject of extensive judicial consideration. It is accepted that the words are among the broadest possible to denote the relationship between one subject matter and another and “the width of the phrase “… is undoubted”: Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211 at 224-5. Here the connected subject matter is “any document” and Hayward’s “application for compensation.” Dr Bourke’s report is a document. It is also directed to a consideration of the injuries the subject of Hayward’s application for compensation. The fact that it does not mention his compensation application is in my view not relevant because its content is plainly relevant to Hayward’s application for compensation by providing both a diagnosis and prognosis for recovery, both of which matters bear directly upon his compensation entitlements. In my view, Dr Bourke’s report is a “workers’ compensation document” for the purpose of s.572A(3).
Accepting that Dr Bourke’s report is a workers’ compensation document, the next issue for resolution is whether in commissioning that report Leighton contravened s.572A(1)(a). That is to say it ‘obtained’ a workers’ compensation document (being Dr Bourke’s report). The word ‘obtain’ relevantly means “to come into possession of; get or acquire; procure, as by effort or request.”[14] This may be contrasted with the commissioning of a report or inquiry which brings a document into being, as was the case with Dr Bourke’s report. In my view, Dr Bourke’s report was not obtained and, accordingly, I do not think Leighton contravened s.572A(1)(a).
[14] Macquarie Dictionary (3rd ed, 2005) at page 1323.
However, s.572A(1)(b) also gives rise to contravention by the “use” of a workers’ compensation document “for a purpose relating to the employment of a worker.” Accepting the broad ambit of the connecting phrase “relating to,” I conclude that the use of Dr Bourke’s report has given rise to a contravention of s.572A(1)(b). The basis for my conclusion on this matter follows from a consideration of this statement contained in Leighton’s letter to the applicant dated 15 March 2012, where it was stated:
“The movements of Mr Hayward captured by the surveillance material are inconsistent with the restrictions and symptoms he reported to Leighton, WorkCover Queensland and the various doctors. These inconsistencies, which have not been refuted by evidence in any of your letters, lead to Leighton to believe that Mr Hayward has been dishonest with Leighton and the doctors, and exaggerated/misrepresented symptoms and restrictions.”
(Emphasis mine)
These remarks could only be informed by a consideration, in part, of Dr Bourke’s report. Mr Jacobs gave evidence of commissioning Dr Bourke’s report. It appears to have followed Leighton’s acceptance of Hayward’s claim but was after Jacobs received a report from Mr Bremner about rumours on the shop floor. In any event, Jacobs provided both that report and Hayward’s compensation application to Leighton’s corporate counsel for his action.[15]
[15] Transcript page 14, line 30.
Additionally, the applicant contends that the use of a workers’ compensation document to inform that report also gives rise to a contravention. Dr Bourke’s report had been based in part upon a document which was a workers’ compensation document, that being the original claim form. In my view, that fact is not material because the report, whilst informed by a workers’ compensation document, is still not a workers’ compensation document for the purpose of s.572A unless it is one “… relating to the worker’s application for compensation.” In making this observation I restate my finding that Dr Bourke’s report was commissioned to assist the respondent with Hayward’s internal rehabilitation management by the respondent, and not for WorkCover purposes, irrespective of the source of some of its body.[16] Therefore, in my view, its commissioning does not give rise to a contravention. There must be a “use” for a purpose relating to the employment of the worker. In this instance, the material use was the use of the workers’ compensation document at first instance, not a document informed by that earlier document, unless standing alone its use can give rise to a contravention.
[16] I note the difference between the terms in the heading of s.572A and its body. The heading refers to ‘access.’ Section 572A(1)(a) speaks of obtaining. Section 14 Acts Interpretation Act 1954 (Qld) provides that headings do form part of the Act. The term ‘access’ is much broader than the terms ‘obtain’ or ‘use’, provisions employed within the section. They do not operate to extend it.
Group C – The investigator’s report: Leighton submitted that it should be distinguished, as between the copy obtained by Leighton for its internal purposes and the copy of the report provided by Leighton to WorkCover. Leighton contended that the surveillance report requisitioned by it was not caught within the definition of a workers’ compensation document as it was not a document obtained in relation to Hayward’s application for compensation or for any claim for damages. It contended that it was a document obtained for the purpose of assessing whether concerns about Hayward were reasonable or warranted further investigation. As discussed above, the question of whether or not it is a workers’ compensation document requires a consideration of the two matters the subject of the connecting phrase in s.572A(3). In my view, the surveillance report is a document relating to Hayward’s application for compensation because its context would impact upon the nature and extent of compensation due to Hayward. That follows from a consideration of the timing and reason for its commissioning. It was commissioned while Hayward was in receipt of benefits following an allegation that he may not have been injured to the extent complained. Undoubtedly, Leighton also had other concerns. However, s.572A requires only the connection between the document and the worker’s application for compensation to be considered. If there is a connection then the definition is satisfied.
However, despite my conclusion that the surveillance report is a workers’ compensation document, that of itself is not sufficient to establish a contravention. As with the Dr Bourke report, it was commissioned and not obtained and thus, in my view, not one obtained in contravention of s.572A(1)(a). Furthermore, I would not consider the commissioning of the surveillance report to be an ‘obtaining’ for the purposes of s.572A simply because the report was informed by a “workers’ compensation document” such as the original WorkCover application (as was the case here). The obtaining and/or use of the WorkCover document by Leighton to inform the investigator gives rise to a contravention in its own right. Nothing on s.572A suggests a contravention arises by infection in the sense that the definition of “workers’ compensation document” is not influenced by how such a document is informed; only the use of a workers’ compensation document for an unauthorised purpose gives rise to a contravention. In this instance, as with Dr Bourke’s report, the surveillance report was used for a purpose relating to Hayward’s employment. It follows that there has been a contravention of s.572A(1)(b) in respect of the use by Leighton of that report.
His Honour noted that in the context of the facts in the Community and Public Sector Union v Telstra Corporation (2001) 107 FCR 93 (CPSU v Telstra) case the Full Court considered that there had been adverse affection or deterioration in the redundancy process after the sending of an email as a result of the additional detrimental criteria applicable for employees employed under awards or certified agreements. His Honour noted that the Full Court considered that the detrimental criterion was real and substantial for the employees whom it affected. Likewise, in the case before his Honour where he was considering a negative assessment of the applicant employee by his supervisor, he noted that it:
“Adversely affected the continuance of his employment relationship or marked a deterioration in the benefit that he currently enjoyed under that employment relationship because the making of the assessment was not some inconsequential act, but an important step in the process … of renewing the authorisation of [the employee] to work on Garuda’s aircraft”.[25]
His Honour concluded that the negative assessment and its communication on to Garuda Airlines constituted adverse action as defined.[26]
[25] At paragraph 298.
[26] At [300].
Significantly, for the purpose of this case, Collier J in Jones observed:
“… the Full Court held that the employer had altered the position of the relevant employees to their prejudice even where there was no evidence that the email [the issue in that case] had been the subject of action. In [Community and Public Sector Union v Telstra Corp Ltd [2001] 107 FCR 93] the Full Court considered that circumstances which result in the employment of employees becoming less secure, in a real and substantial manner, than it had been previously, constitutes an alteration in their position to their prejudice ...”
However, Leighton submits that Community and Public Sector Union v Telstra Corp Ltd (supra) was also quoted with approval by Ryan J in Police Federation of Australia v Nixon (supra), where at 354 his Honour noted:
“Not every disciplinary inquiry or investigation of alleged misconduct by an employee will have that effect. For example, the inquiry may be conducted in such a way that only the affected employee and a few other persons directly involved in it are aware that it is taking place. Likewise, the subject matter or particulars of the alleged breach of discipline may, on balance, not be reasonably capable, at least before the investigation has been completed, of damaging the reputation of the employee or adversely affecting his or her standing in the workforce or among the wider community, assuming the fact of the inquiry to be so widely known.”
The applicant contended that this type of conduct (conducting an inquiry) fell within the scope of “injury in employment” and/or it altered his position to his prejudice.
The other issue arising concerned intention. In Australian Licenced Aircraft Engineers Association Barker J continued then to consider that issue following a view expressed by Collier J in Jones v Queensland Tertiary Admission Centre Ltd (No 2) [2010] FCA 399 at [65]. His Honour noted that Collier J had suggested that the term “alters the position of the employee to the employee’s prejudice” also appears to refer to an intentional act directed to an individual employee. He noted that her Honour had sourced her authority for that view in BHP Iron Ore Pty Ltd v Australian Workers Union (2000) 102 FCR 97 at [107] – [108] and in CPSU v Telstra. However, his Honour did not necessarily agree with that position. At [303], his Honour continued:
“[303] For my part, I do not consider that there is some additional requirement to identify an “intentional act” directed to an employee in order to find that there has been an alteration of position to an employee’s prejudice. The simple statutory question for the purpose of identifying an “adverse action,” is whether, in a given case, there is an action taken by an employer against an employee that in fact “alters the position of the employee to the employee’s prejudice.” It does not appear in the FW Act in s.340 or s.342 or elsewhere that there is any requirement for that action to have been “intentional,” at least in the sense that there was a subjective intention or mental element in the employer’s action to cause the result of alteration in the employee’s position to the employee’s prejudice, before “adverse action” as defined can be found.”
His Honour considered that to the extent that an intention or mental element might be relevant it would be considered during the second stage of the contravention assessment determination, that being the point at which the Court must determine whether an identified adverse action was taken “because of” one or another of the circumstances mentioned in s.340(1).[27] His Honour also noted that the provisions being considered by the Full Court in BHP Iron Ore and endorsed by the Full Court in CPSU v Telstra were the relevant provisions under the former WR Act and are not on all fours with the relevant provisions of the FW Act. His Honour noted that his approach was consistent with the more recent decision of the Full Court in Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 at [27] – [28], where in a joint judgment by Gray and Bromberg JJ they observed that the central question under s.346 and, in context, s.340 is why the aggrieved person was treated as they were. The question is whether the aggrieved person was subject to adverse action because the aggrieved person did or did not have the relevant attributes then under consideration. His Honour continued:
“[308] Their Honours said the determination of those questions involves characterisation of the reason or reasons of the person who took the adverse action and that the state of mind or subjective intention of that person will be centrally relevant, though not decisive. Their Honours, at [25], expressly rejected the applicants’ contention that the introduction of the word “because” into s.340 and s.346 had the effect of making irrelevant the state of mind of the person taking the adverse action.”
[27] At [304].
His Honour noted that Gray and Bromberg JJ had stated that what was required for determination was the “real reason” for the conduct. He continued:
“[309] … The real reason for a person’s conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question.”
Ultimately, his Honour concluded his review of the authorities noting:
“[311] Either way, the judgments in Barclay make it plain, as I have suggested, that the actual intent or mental element of a decision-maker may and usually will become relevant at the second stage of the determination process, not in identifying whether or not there is “adverse action” as defined in the FW Act.”
In paragraph 18 of the Amended Statement of Claim, the applicant contended against Leighton that the conduct alleged in paragraph 17A constituted adverse action. In this case, the applicant contended that adverse conduct by Leighton to Hayward included:
a)Commissioning the investigation report;
b)Use of the workers’ compensation documents;
c)Conduct at the meeting of 16 December including the making of allegations, use of the workers’ compensation documents, threatening disciplinary action and suspending Hayward; and
d)The issuance of show cause letters and similar correspondence of 17 February 2012, 10 March and 2 May.
Commissioning the investigator’s report: Leighton submitted that that conduct did not alter the security of the employment of Hayward. Jacobs, in his evidence, stated that the reason for engaging a private investigator, which included the provision of the documents, was entirely related to establishing whether Hayward was in fact acting inappropriately. Aside from his discussions with Bremner, Jacobs otherwise only discussed these matters with Leighton’s corporate counsel, Mr Sparling. Leighton submitted that such conduct did not result in the employment of Hayward becoming less secure in a real and substantial manner or at least any more so than it had been previously. Ultimately, what would alter the position of an employee to his/her prejudice would not be the investigation, but rather, its outcome.
Leighton contends that the observations of Ryan J in Police Federation of Australia v Nixon (supra) would support a conclusion that disciplinary action (such as is being considered here) would not ordinarily amount to injury. It ought not be overlooked that his Honour’s remarks were made in the context of an application for interlocutory relief against the background of a submission that a disciplinary investigation did not amount to “injury.” His Honour concluded by noting that the matter gave rise to a serious issue for trial. That is to say that his Honour’s remarks were obiter on the point, and consequently inconclusive. No doubt there will be occasions when disciplinary action will not amount to injury, but that is not a matter of fixed rule.
However, it is also the case that the position contended for by the applicant, namely that an investigation will cause injury, is in my view much too restrictive. It is not difficult to imagine circumstances where for instance a failure to conduct an investigation would of itself be to the prejudice of an employee, such as where an employee was wrongfully believed to have caused a workplace accident. On the applicant’s submission, an investigation in those circumstances would constitute adverse action because of the risk of an adverse finding. I doubt that a wrongfully accused employee will see it that way. In my view much turns on the meaning of the word “position” used in the context of Item 1(c). A number of meanings are provided for in the Macquarie Dictionary including: “4. situation or condition, especially with relation to circumstances: to be in an awkward position. 5. status or standing … 7. a post of employment: a position in a bank”. The meaning which in my view best fits is “status or standing”. The investigation of itself did not affect the “status or standing” of Hayward; only its outcome did. It follows that I do not find that the commencement of the investigation constituted adverse action.
The second category – use of workers compensation documents: Plainly, the use of Hayward’s workers’ compensation documents was directed to the question of Hayward’s continued employment. For this purpose, Leighton’s motivation is of only limited reliance with that matter.
The third category – Matters alleged at paragraphs 17A(c) to (f) concerning the holding of the meeting, putting the concerns of Mr Hayward, corresponding with Mr Hayward on issues raised by the applicant and suspending Mr Hayward: It was submitted that this conduct did not alter the security of employment of Hayward within the terms outlined by authorities. It was submitted that instances of decided authority demonstrating the extent to which action taken would satisfy that item are to be found in United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466, a case where criminal charges were laid; and Police Federation of Australia v Nixon (2008) 168 FCR 340, a case where there was a resumption of an inquiry after history of conduct. Accordingly, it was submitted by Leighton that none of the action by Leighton satisfied the definition of adverse action under s.342(1) Item 1(c).
In the context of this dispute, Hayward is facing dismissal. In the employment context there is probably no greater prejudice. It is not disputed that the purpose of the meetings and correspondence between 16 December 2011 and 2 May 2012 was to afford Hayward procedural fairness in the context of serious allegations of fraud. He was stood down following the 16 December meeting and but for orders by the Court would have been dismissed. The object and outcome of those events was to occasion prejudice to Hayward and accordingly was “adverse action.”
The fourth category – Allegations contained in the correspondence: although the applicant seeks to characterise each occasion as a relevant event for s.342 FW Act, which each plainly was, the true position was that the discrete events merely reflect a continuation of the first occasion of altering Hayward’s position to his prejudice which occurred on 16 December 2011. It follows in my view that the correspondence also manifests as adverse action.
In summary, I am satisfied that none of the conduct alleged against Leighton gave rise to adverse action by dismissal, injury of Hayward in his employment or by discriminating between him and other employees. I do not find that the launching of an investigation altered the position of Hayward to his prejudice. It was not adverse action. However, the product of the investigation, an adverse finding, led to a meeting where Hayward was called upon to show cause, it aroused suspicion and ultimately produced the threat of dismissal. The meeting was the subject of follow-up correspondence on three occasions, each reasserting and advancing the events arising at the 16 December meeting. This conduct did amount to adverse action for the purpose of s.342 FW Act.
Discrimination
Before considering whether the presumed reasons for conduct have been displaced, it is first appropriate to consider at this point the further or alternative claim made by the applicant that Leighton, in contravention of s.351 FW Act, had discriminated against Hayward because he had a disability from the injury which was the subject of the WorkCover claim. It was contended that Leighton took adverse action against Hayward because of, or for reasons including, his disability.
Was there a disability?
Leighton submits that a threshold issue exists concerning the existence of a ‘disability’ within the terms of s.351 FW Act. The term “employee with a disability” is defined within s.12 FW Act to mean:
“… a national system employee who is qualified for a disability support pension as set out in section 94 or section 95 of the Social Security Act 1991, or who would be so qualified but for paragraph 94(1)(e) or 95(1)(c) of that Act.”
Leighton contends that the evidence does not establish that Hayward satisfies the definition.
The disability complained of by Hayward was the injury the subject of the WorkCover claim. By any measure, it was a minor injury. Arguably the effects of it had dissipated by the time of any alleged adverse conduct. Leighton contends that, in the circumstances, by reference to the workers compensation documents, no adverse action can be established to have been taken because of a “physical disability.” Leighton also contends that the workers compensation documents together with the Riedel report and the report of Dr Bourke indicate that he has a zero percent impairment and that there is a basis to believe that was the position at least as far back as September 2011 when the first report was made by Mr Bremner to Mr Jacobs. In any event, and despite any evidence directed this point, I accept that the injury, however characterised, was not one qualifying for a disability support pension and there was no evidence to suggest otherwise.
Given the very specific definition provided for by the FW Act, it is apparent that the applicant did not have a “disability” under that Act for the purpose of s.351, and accordingly any claim under s.351 must fail.
Was the conduct “adverse action”?
Notwithstanding Leighton’s submission, which I accept, that Hayward had no rights under s.351, it also submits for completeness that in any event there was no adverse conduct by it in respect of any disability. The definition of adverse action in s.342 FW Act applies to s.351 FW Act. Leighton contends that the applicant has failed to adequately demonstrate what adverse action was said to arise in respect of the alleged disability discrimination. It submitted that the Amended Statement of Claim is not precise, merely stating at paragraph 25 that Leighton took “adverse action,” and in paragraph 26 alleging that the adverse action caused “loss, damage and injury.” Accepting that a general approach ought be taken to the construction of the Amended Statement of Claim, the respondent contends that regard must then be had to the conduct alleged at paragraph 17A of the Amended Statement of Claim.
However, even accepting that submission, my findings in respect of what constituted adverse action for the claim under s.341 FW Act apply with equal force to the claim under s.351 FW Act and, accordingly, if there was disability discrimination (which I do not find), then there was at least in principle adverse action by Leighton seeking to alter Hayward’s employment to his prejudice in terms of s.342(1) Item 1(c) FW Act for the reasons I have detailed above.
Was adverse action taken because of a workplace right – Reverse Onus
Accepting that the WCR Act was a workplace law giving rise to a workplace right, and that adverse conduct was taken by Leighton against Hayward, the substantive question remains as to whether it was because of Hayward’s claim for WorkCover benefits and/or because of Leighton’s unauthorised use of Hayward’s workers’ compensation documents.
Section 340(1)(a)(ii) and/or (iii) when applied in the circumstances of these particular workplace rights provides that Leighton must not take adverse action against Hayward because he has exercised his workplace right (by making a WorkCover claim for compensation) and proposes to exercise a workplace right (by foreshadowing enforcement of his objection to the use of his workers compensation documents contrary to s.572A).
At this point, the reverse onus created by s.361(1) FW Act attracts significance. Relevantly, s.361 FW Act provides:
“[361] Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.”
As Baker J in Licenced Aircraft Engineers observed, the reversal of the onus does not alleviate the evidentiary evidence of establishing objective facts supporting the contraventions.[28] His Honour observed with approval the remarks of Collier J in Jones at [10], noting:
“[331] … Collier J considered it was not sufficient for the applicant to simply allege that she had a workplace right and that she was the subject of adverse action. Rather, on the assumption that she was able to prove those allegations, the burden was then cast on the respondent to prove that the adverse action was not taken because of a workplace right.”
[28] At [329].
Here the facts contended by the applicant have been objectively established and from there it is open to find that Leighton contravened s.340 FW Act in relation to the exercise of the workplace right when it took the adverse action identified above.
In my view, both the temporal connection between the workplace rights contended for and the adverse action together with the subject matter association, unless answered, would lead to a conclusion that there had been a contravention. It follows therefore that the remaining question to be resolved is whether the adverse action was taken because of Hayward’s workplace rights. By operation of s.361 FW Act, Leighton bears the onus to prove otherwise, that is that the adverse action was not taken because of Hayward’s workplace rights.
The operation of s.360 and s.361 FW Act have recently been considered by the Full Court in Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14. At [30], the majority stated:
“Section 360 continues the long-standing position that, where adverse action is taken against a protected person, culpability will be established if the reasons for that conduct include a reason for conduct is within the ambit of s.[340]. The reason must be an operative or immediate reason and need not be the sole or dominant reason … But the drawing of distinctions between proximate or immediate reasons for conduct … or between the cause of conduct and the reason for conduct … is not helpful. Those distinctions fail to give sufficient attention to whether or not the reason was operative, and they also draw distinctions between a reason and a factor in a reason.
…
[32] The onus cast by s.361 on the person taking the adverse action means that, to succeed, that person has to establish that he or she was not actuated by the attributes or industrial activity which s.346 seeks to protect. As Mason J said in [General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605] at 617, that objective will not be achieved unless the evidence establishes that the real reason for the adverse action lies outside the ambit of the provision – in this case s.346. The real reason or reasons for the taking of the adverse action must be shown to be “dissociated from the circumstances” that the aggrieved person has or had the s.346 attribute or has or had engaged in or proposes to engage in the s.346 industrial activity.”
Further, at [34], their Honours continued:
“… a failure by the employer to establish that the real reason for the taking of the adverse action was dissociated from the circumstance that the employee was promoting a lawful activity for or on behalf of an industrial association will result in a finding of contravention, irrespective of the employer’s subjective belief that the activity was unlawful …”
In the context of a dispute under s.340 FW Act, Greenwood J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563 summarised the position as follows from [57]:
“… Section 360 of the Fair Work Act provides that a person takes action for a particular reason if the reasons for the action include that reason. It is therefore sufficient, in order to establish a contravention of ss.340 or 346 to show that the dismissal of the employee occurred for reasons that include a prohibited reason under those sections. The prohibited reason need not be the substantial or dominant reason … The prohibited reason must be an operative reason …
…
[60] As to the real reasons for taking adverse action, the Full Court of this court has held in Barclay, by majority, that the decision-maker cannot in a determinative or decisive way simply, in effect, swear the issue by asserting a belief (even a genuinely held belief) that the reasons for taking the action were particular reasons. The forensic search for the real reasons is said to involve a characterisation of the reason or reasons of the person who took the adverse action and whilst the subjective intention of the decision-maker will be “centrally relevant,” it cannot be decisive of the question. The search at trial is for the factors that actuated the conduct of the person, not a search for the factors the person thinks actuated him or her. The majority observed that, “[i]t is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question …””
It was submitted for the applicant that from the facts and circumstances of this case the Court would conclude that Hayward’s injury and/or application for compensation were among the operative reasons for any adverse action, and, accordingly, were the reasons for the adverse action because that operative matter was included in the reason. Hayward’s application for workers’ compensation benefits cannot be ignored. However, as I have earlier stated, it merely provided the background. I am satisfied that it did not form part of and was not an operative quality in the reason.
Leighton contends that the conduct alleged was not taken “because Hayward” held or exercised a workplace right. It contends that on the evidence it is plainly demonstrated that the fact that Hayward may have made a WorkCover claim was not even considered when decisions were made relevant to each alleged incident.
I am satisfied that the true motivation of Leighton and operative reason behind Leighton’s conduct was not the applicant’s entitlement to his workplace rights. Leighton’s acceptance of Hayward’s entitlement to WorkCover benefits was conceded when it wrote to WorkCover on 6 September advising WorkCover to process the claim. I am satisfied that Leighton’s motivation was purely and solely to address a concern brought to its attention through one of its staff that Hayward had engaged in a fraud upon the system in respect of his entitlement to ongoing WorkCover benefits. While s.341 FW Act provides that a person has a workplace right if the person is entitled to the benefit, if the matter of entitlement becomes the issue in itself, then it is difficult to see how investigations directed toward the resolution of a jurisdictional fact, itself enlivening obligations under the WCR Act, can be characterised as motivating action in respect of an entitlement to a benefit. Action could only be motivated or operative for a particular reason once an employer had no reasonable basis to refute it. It is that matter which the majority clearly alluded to in Barclay, where they directed the search at trial for the factors that actuated the conduct.
It seems inconceivable that the Parliament intended that the investigation of facts enlivening the workplace right would give rise to an irrebuttable presumption. This is particularly so given that such a fact is critical to determining whether or not adverse action can be demonstrated where there is alleged adverse action by injury or prejudice to the employee.
This matter requires consideration of the bona fides of Leighton’s investigation. As was submitted for Leighton in reply, the matter of Leighton’s bona fides was never in issue. In any event, even if it had been I am satisfied from the facts as I have addressed them earlier that Leighton’s conduct in commencing the investigation was proper. It was based upon a report that Hayward had been dishonest with Leighton, the doctors, had exaggerated or misrepresented his symptoms and restrictions and/or had engaged in fraud. Its bona fides were reinforced by it giving Hayward an opportunity to provide an explanation on how his movements, as captured in surveillance, were consistent with the restrictions reported to Leighton and the various doctors, and by it advising him of suspension pending further investigation. The motivation for Leighton was patent. Not only did it have statutory obligations pursuant to the WCR Act, but there were significant industrial consequences associated with the claim. The report of Hayward’s possible fraud emanated from the shop floor. It is self evident that there is no greater corrosive toxin that operates upon relations between employees than the jealousies and sense of injustice generated when those who consider that they do the right thing conclude that the organisation does nothing about those who are perceived as doing the wrong thing. While that was not a matter of express evidence, I consider that response to be so instinctive when dealing with the interaction between people that it goes without saying. In any event, I wholly accept the evidence of the Leighton employees that the WorkCover claim itself was not a motivation, that is to say, an operative reason. In reaching that conclusion, I am also mindful that the claim was a small claim and on any assessment the effects of the injury had passed by December 2011 (as stated by Dr Cameron). Furthermore, Leighton is a subsidiary of a listed company capitalised at many billions of dollars and in respect of which Hayward's claim would have had no material impact.
Additionally, a conclusion as to the reason for not including Hayward’s entitlement to make a workers’ compensation claim in its reasons was supported by the evidence. Notwithstanding each of the particulars alleged by the applicant, the evidence unequivocally confirmed that the workers’ compensation claim was not the reason for Leighton’s response but merely provided the background. The evidence demonstrates that the reason Leighton engaged a private investigator, which included the provision to him of the workers’ compensation document, was entirely related to establishing whether Hayward was in fact acting inappropriately vis-à-vis the doctors and Leighton. That matter is fortified by Leighton having only engaged the investigator after the report made by Mr Bremner and it having received the report from Dr Bourke. Likewise, the meeting of 16 December was conducted for the reason of affording Hayward an opportunity to address the matters which had come to the attention of Leighton following its surveillance. For instance, if Hayward had participated in an interview and admitted to having made false claims, then plainly the bearing of such an admission upon the workplace right would have been entirely collateral, as such a confession would have given a basis for a finding of “serious misconduct” and in turn a right to termination pursuant to the FW Regulations. However, the bearing of the inquiry was upon his integrity generally.
I accept the evidence of each of Leighton’s witnesses. Their evidence accords with commonsense and reasonable management practice. The contrary position is simply untenable. That is that each of those witnesses have conspired to subvert Hayward’s rights. I do not accept that to be the case.
In addressing the applicant’s allegations in paragraph 17A of the Amended Statement of Claim, Leighton contended as follows.
a)Paragraph 17A(b) – Unauthorised use of Hayward’s workers compensation documents in contravention of s.572A WCR Act.
In considering this conduct, the body of documents can be conveniently examined in two groups, the first being Hayward’s workers’ compensation documents, so called by definition, which were generated by Leighton independent of Hayward’s WorkCover claim. That is the report of Dr Bourke, the Riedel Report and the Annexure ‘A’ document. The second group includes the remaining documents obtained and/or used by Leighton, they being Hayward’s raised workers’ compensation documents.
For reasons I have detailed above, I find the operative reasons for the use of these documents was to inquire into the integrity of Hayward’s dealings with Leighton and those associated with it. Leighton had a bona fide basis for concern and in the circumstances I am satisfied that Leighton’s action was not because of Hayward’s workplace right or an operative reason in the decision. Indeed, I am satisfied that Leighton’s agents were unaware of s.572A WCR Act or its import until s.572A WCR Act was raised late in dealings between the applicant and Leighton.
b)Paragraph 17A(c) – Leighton acted as it did at the meeting of 16 December 2011 because of the workplace right.
As I have earlier noted, Donaldson stated that the reason for his conduct in holding the meeting, putting the concerns to Hayward and suspending him was to ensure that his concerns (and, therefore, Leighton’s concerns) as to the conduct of Hayward could be addressed and that Hayward be offered natural justice as part of the process. Whether or not Hayward may have had an entitlement to a WorkCover claim was irrelevant to Donaldson, and none of the objective material points to any other motive. Even so, it is clear that the ongoing nature of the WorkCover claim backgrounded these events. As I have noted earlier, I am satisfied that the true motivation or operative reason was Leighton’s concern about the integrity of Hayward’s dealings with it and its agents. I am satisfied that it was entirely serendipitous that these events arose in the context of a WorkCover claim. I accept that Leighton’s response would have been no different if an integrity issue arose in respect of any other dealing between Hayward and it. In any event, if Hayward’s entitlement to benefits had ceased because the claim was fraudulent, he would have had no entitlement to the benefit of a workplace law. Plainly, any bona fide and reasonable step taken, including an inquiry to ascertain an entitlement to the benefit of a workplace law, explains Leighton’s action. For reasons I have earlier explained, Leighton has statutory rights under the FW Regulations to terminate employees for fraudulent conduct and any bona fide conduct directed to this purpose would answer the applicant’s complaint provided that Leighton’s reasons were not contaminated by any improper purpose. That is not the case here. In this case, Leighton’s explanation of the intention behind the inquiry proves that there was no intention to take adverse action in respect of Hayward’s workplace rights and the applicant here has sought to conflate his workplace rights with the adverse action, with full knowledge that Leighton’s conduct was directed solely to the integrity issue.
c)Paragraph 17A(d) – Correspondence of 17 February 2012.
Donaldson, who is the author of that correspondence, stated that the reason for sending the letter was as a result of his concerns as to Hayward’s alleged dishonesty, as well as to answer correspondence from the applicant. The fact that Hayward may have had a WorkCover entitlement following his disability was irrelevant to Donaldson for reasons I have already given and the content of the letter did not evidence a change in Donaldson’s position concerning his reasons for undertaking the process of allowing Hayward an opportunity to respond to the company’s concerns. I am satisfied that this correspondence was directed by Leighton to the bona fide progression of the original integrity issue between it and Hayward. It was not action taken because Hayward had a workplace right.
d)Paragraph 17A(e) – Correspondence of 26 March 2012.
Moncrieff, who is the author of that correspondence, stated that the reason for sending the letter was as a result of concerns as to Hayward’s alleged dishonesty and to answer correspondence from the applicant. He too stated that Hayward’s alleged WorkCover claim was irrelevant. The content of the letter did not evidence any different reason on Moncrieff’s part or any change of position by Leighton following earlier discussions with Donaldson. I am satisfied that the operative reason for it being sent was to advance in a bona fide manner the earlier correspondence and issues arising from the meeting of 16 December. It was not action taken because Hayward had a workplace right.
e)Paragraph 17A(f) – Correspondence of 2 May 2012.
Moncrieff stated that the reason for that letter was as a result of his concerns relating to Hayward’s alleged dishonesty and to answer correspondence from the applicant. Nothing had changed from earlier correspondence. As with the earlier correspondence, I am satisfied that the operative reason for it being sent was to advance in a bona fide manner the earlier correspondence and issues arising from the meeting of 16 December. It was not action taken because Hayward had a workplace right.
For completeness, in the event that I am in error in my finding that the commissioning and provisioning of the surveillance report did not constitute adverse action I make observations concerning the allegations in paragraph 17A (a) – causing the private investigator to be engaged and provided with the documents. The evidence of Jacobs is that the reason for engaging a private investigator and the provision of documents was entirely related to establishing whether Hayward was in fact acting inappropriately. The fact that Hayward was entitled to or making a WorkCover claim or otherwise was entirely irrelevant to Jacobs. Leighton submitted that there is no evidence otherwise that explains why Jacobs would commence such action. I consider that the conduct of an investigation into a jurisdictional fact cannot of itself constitute evidence of improper motive unless that conduct was undertaken unreasonably or not in bona fide manner. For reasons which I have addressed earlier I am satisfied that Leighton acted in bona fide manner and reasonably at all times, and that if this conduct was adverse action, Hayward’s workplace rights were not operative in the decision to undertake this action.
Relief
Following my reasons, the application is dismissed. However, as application was also made for injunctions I consider it appropriate to address that claim, at least in a limited sense.
The application to restrain Leighton from taking future action must fail because of my findings. However, application was also made for orders restraining Leighton from using Hayward’s workers’ compensation documents in contravention of s.572A WCR Act. I have earlier determined that Hayward has a workplace right in respect of the use of those documents. Injunctions may issue in support of statutory rights, such as arise under s.572A WCR Act.[29] However, as with any remedy in equity, the applicant must ‘do as equity would do’ or, to employ the legal colloquialism, the applicant in equity must ‘come with clean hands.’[30] In this case the applicant invokes his claim in equity to seek protection from the use of those documents to expose fraud on his part. In those circumstances he does not come seeking equity with clean hands and accordingly cannot prevail upon equity for relief.
[29] Cameron v Hogan (1934) 51 CLR 358; Buckley v Tutty (1971) 125 CLR 353.
[30] Spry I, Equitable Remedies (8th ed, Thompson Reuters, 2009) at page 412.
Orders
Application dismissed.
I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 24 July 2012
CORRECTION
Paragraph 145 line 1 – delete “intuition” insert “intention”.
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