Lee v Hills Before & After School Care Pty Ltd

[2007] FMCA 4

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v HILLS BEFORE & AFTER SCHOOL CARE [2007] FMCA 4

INDUSTRIAL LAW – Termination of employment − casual employee − preliminary matter to be determined − where applicant dismissed from the respondent’s employ after periods of absence due to injury − where applicant in receipt of Workers Compensation benefits at the time of dismissal − whether the applicant’s absence was a temporary absence on paid sick leave because of injury or illness within the meaning of Regulation 2.12.8 Workplace Relations Regulations 2006

STATUTORY INTERPRETATION − Legislative intention − International conventions − where Article 6 of the International Labour Convention 158, embodied in s.659 Workplace Relations Act 2006, prohibits dismissal of an employee temporarily absent from work due to illness or injury − whether Article 6 intended to include workers temporarily absent due to workplace injury.

Workplace Relations Regulations 2006, 2.12.8, 30C
Workplace Relations Act 2006, s.659
Federal Magistrates Court Rules 2001, 17
Workplace Relations Act 1996, s.170CK
Industrial Relations Act 1988, s.170DF
Industrial Relations Reform Act 1993

Termination of Employment Convention 1982 (Recommendation No.166), Article 6

Sallehpour v Frontier Software Pty Ltd [2005] FCA 247
Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784
CFMEU and Cooks Construction Pty Ltd
Ryan Stringer v Holden Limited
Nominal Defendant v GLG Australia Pty Ltd & Ors [2006] HCA 11
QAAH of 2004 [2006] HCA 53
Konrad v Victoria Police (State of Victoria); Glasgow v State of Victoria; Orchard v State of Victoria; Gehrig v State of Victoria [1999] FCA 988
Griffin v Australian Postal Corporation (1988) 155 ALR 369
Andrew Phillips v State of Victoria (Department of Education and Training) (Unreported, Australian Industrial Relations Commission, 6 December 2005)
Ex parte Master Builders (1971) (1) (NSWLR) 655
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151
Re Woolley and Anor; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 210 ALR 369
Potter v Minahan (1908) 7 CLR 277
Coleman v Power (2004) 209 ALR 182

Sixty-seventh session, Record of Proceedings (International Labour Conference) (Geneva, 1981)
Sixty-eighth session, Record of Proceedings (International Labour Conference) (Geneva, 1982)
Report VIII(1) Termination of Employment at the Initiative of the Employer (1980) (International Labour Conference, 67^th Session 1981)
Report VIII(2) Termination of Employment at the Initiative of the Employer (1980) (International Labour Conference, 67^th Session 1981)
Report V(1) Termination of Employment at the Initiative of the Employer (1981) (International Labour Conference, 68^th Session 1982)
Report V(2) Termination of Employment at the Initiative of the Employer (1982) (International Labour Conference, 68^th Session 1982)

Applicant: JANE LEE

Respondent: HILLS BEFORE AND AFTER SCHOOL CARE PTY LTD

File Number: SYG2211 of 2006

Judgment of: Raphael FM

Hearing date: 20 November 2006

Date of Last Submission: 20 November 2006

Delivered at: Sydney

Delivered on: 15 January 2007

REPRESENTATION

Counsel for the Applicant: Mr J Nolan

Solicitors for the Applicant: Liquor, Hospitality and Miscellaneous Union

Counsel for the Respondent: Mr M Easton

Solicitors for the Respondent: Patrick Woods & Company

THE COURT DECLARES

1. Absence on paid Workers Compensation leave falls within the definition of paid sick leave in Regulation 2.12.8 of the Workplace Relations Regulations 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2211 of 2006

JANE LEE

Applicant

And

HILLS BEFORE AND AFTER SCHOOL CARE PTY LIMITED

Respondent

REASONS FOR JUDGMENT

1. These reasons relate to a motion in the proceedings brought by way of an application filed by the respondent on 11 October 2006 for the court to determine, pursuant to r.17.02 of the Federal Magistrates Court Rules 2001 the following questions:

   i)For the purposes of Regulation 2.12.8 of the Workplace Relations Regulations 2006 do the total absences of the applicant within the twelve month period immediately prior to termination whether based on single or separate illnesses or injuries extend for more than three months?

   ii)Was the applicant’s absence between 30 March 2006 and 4 April 2006 a temporary absence from work because of illness or injury within the meaning of the Workplace Relations Regulations 2006?

2. The parties consented to me hearing this matter as a separate or preliminary matter.  The applicant accepted that if I was to find in favour of the respondent it would mean the dismissal of the applicant’s claim.  I propose to explain the context of the substantive proceeding which will clarify the question to be answered. 

3. The applicant is a long time employee of the respondent.  She is a casual child care worker.  She commenced employment on or about 28 August 1995.  She worked twenty-five hours a week and was not employed during the vacation care period.  Her contract of employment did not provide her with any entitlement as to paid sick leave.  On

   
   

   25 October 2002 the applicant suffered a workplace injury for which she claimed and received Workers Compensation benefits. A return to work plan was created for the applicant on or about 19 August 2005. In short the programs put in place under the return to work plan consisted of an increasing number of hours to be worked per day with the balance of un-worked hours to be paid for pursuant to the Workers Compensation arrangements of the employer. As at 30 March 2006 the applicant was working for four hours per day five days per week and being paid Workers Compensation for one hour per day five days per week. On 30 March 2006 she was absent due to illness. For the purposes of the Rule 17 application only the respondent accepts that the applicant complied with sub-regulation 2.12.8(1) of the Workplace Relations Regulations 2006 and the applicant accepts that the total absences of the applicant within a twelve month period extend for more than three months. 

4. The respondent dismissed the applicant from her employment on 4 April 2006. The applicant claims that this dismissal breached sub-section 2(a) of s.659 of the Workplace Relations Act 1996 (the “Act”) which is in the following form:

   “s.659

   (1)  In addition to the principal object of this Division set out in section 635, the additional object of this section is to make provisions that are intended to assist in giving effect to:

   (a) the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986; and

   (b)  the Family Responsibilities Convention; and

   (c) the Termination of Employment Recommendation, 1982, which the General Conference of the International Labour Organisation adopted on 22 June 1982 and is also known as Recommendation No. 166.

   (2)  Except as provided by subsection (3) or (4), an employer must not terminate an employees’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

   (a)  temporary absence from work because of illness or injury within the meaning of the regulations;

   …”

5. The relevant regulation which explains the meaning of temporary absence for the purposes of sub-section 659(2)(a) is Regulation 2.12.8 which is in the following form:

   “2.12.8

   (1) For paragraph 659 (2) (a) of the Act, an employee's absence from work because of illness or injury is a temporary absence if:

   (a)    the employee provides a medical certificate for the illness or injury within:

   (i)    24 hours after the commencement of the absence; or

   (ii)    such longer period as is reasonable in the circumstances; or

   (b)    the employee:

   (i)    is required by the terms of an industrial instrument to:

   (A)     notify the employer of an absence from work; and

   (B)     substantiate the reason for the absence; and

   (ii)    complies with those terms; or

   (c)the employee has provided the employer with a required document in accordance with section 254 of the Act.

   (2)   Subregulation (1) does not apply if:

   (a)    the employee's absence extends for more than 3 months, unless the employee is on paid sick leave for the duration of the absence; or

   (b)   the total absences of the employee, within a 12 month period, whether based on a single or separate illnesses or injuries, extend for more than 3 months, unless the employee is on paid sick leave for the duration of the absences.

   (3)   In this regulation:

   medical certificate has the meaning given by section 240 of the Acthttp:// Any finding that an absence is not a temporary absence for paragraph 659 (2) (a) of the Act is without prejudice to the rights of an employee whose employment has been terminated by an employer on the basis of such an absence:

   (a)    to apply to the Commission for relief under subsection 643 (1), on the   ground, or on grounds including the ground, that the termination was harsh, unjust or unreasonable; or

   (b)    to apply under a law of a State on the ground that the termination was harsh, unjust or unreasonable (however described);

   in respect of the termination of that employment.”

6. The respondent argues that an employee’s absence on Workers Compensation for which she is paid is not absence on paid sick leave for the purposes of sub-regulation 2.12.8(2)(a) or (b) and therefore cannot fall within the definition of a temporary absence within sub-section 659(2)(a). Assuming, as I have for the purposes of this Rule 17 application only, that the applicant was absent from her workplace for more than three months within the previous twelve months, the question that is posed is therefore whether that absence, being absence on paid Workers Compensation leave, fell within the definition of paid sick leave contained in the regulation.

7. Section 659 of the Act is not the first iteration of this prohibition. It was found at s.170CK of the original 1996 Act in the same terms (s.170CK(2)(a)) and was first enacted in the same terms in s.170DF of the Industrial Relations Act 1988. Section 170DF was added by the Industrial Relations Reform Act 1993 which came into force upon assent on 22 December 1993.  It would seem, however, that the real genesis of this sub-section was the Termination of Employment Convention 1982 adopted at Geneva on 22 June 1982, and ratified by the Australian parliament on 26 February 1993, Article 6 of which states:

   “1.Temporary absence from work because of illness or injury shall not constitute a valid reason for termination.

   2.The definition of what constitutes temporary absence from work, the extent to which medical certification shall be required and possible limitations to the application of paragraph 1 of this Article shall be determined in accordance with the methods of implementation referred to in Article 1 of this Convention.”

   and Article 1 states:

   “The provisions of this Convention shall, in so far as they are not otherwise made effective by means of collective agreements, arbitration awards or court decisions or in such other manner as may be consistent with national practice, be given effect by laws or regulations.”

   This Convention is not referred to in the preamble of s.170CK but in the preamble to s.659 there is reference to:

   “1(c) The Termination of Employment Recommendation, 1982 which the General Conference of the International Labour Organisation adopted on 22 June 1982 and is also known as Recommendation 166.”

   which would appear to be a reference to the Termination of Employment Convention that I previously referred to. The Recommendation was expressly referred to by its predecessors. Section 170CA(1) of the Industrial Relations Act 1988 was in the following form:

   “s.170CA

   (1) The object of this Division is to give effect, or give further effect, to:

   (a)  the Termination of Employment Convention; and

   (b) the Termination of Employment Recommendation, 1982, which the General Conference of the International Labour Organisation adopted on 22 June 1982 and is also known as Recommendation No.166, and a copy of the English text of which is set out in Schedule 11.”

   This section was retained, in a somewhat modified form, also in s.170CA, in the Workplace Relations Act 1996. Section 170CA in the 1996 Act sets out the principal objects of the Division, being to provide for procedures and remedies “to assist in giving effect to the Termination of Employment Convention”.

   The Explanatory Memorandum to the 1993 Reform Act affirms that the relevant sections were enacted with the intention to give “effect to Articles 5 and 6 of the Termination of Employment Convention” (p.23). In relation to Division 3 of the Workplace Relations Act 1996 the Explanatory Memorandum for the Workplace Relations Amendment Bill 1996 states the principal object of the proposed amendments to the Industrial Relations Act was

   “…to reinforce the importance of fairness…and the contribution of the system in assisting to give effect to Australia’s international obligations in relation to labour standards.”

   The 1988 Regulations provided a definition of what is “Termination on the grounds of temporary absence from work” in somewhat different terms to the present Regulations. Regulation 30D of the Industrial Relations Regulations 1988 held:

   “(1)This regulation applies for the purpose of clarifying, consistently with paragraph 2 of Article 6 of the Termination of Employment Convention and s.170CB of the Act, circumstances which are, or are not, intended to be included within paragraph s.170DF(1)(a) of the Act.

   (2)For the purposes of paragraph 170DF(1)(a) of the Act, an employee’s absence from work because of illness or injury is taken to be absence if, due to the illness or injury, the employee is on authorised leave.

   …”

   Regulation 30C of the Workplace Relations Regulations 1996 was in similar terms to the present Regulation 2.12.8 extracted above.

8. Given the clear reference to the Convention in s.659 and the earlier versions of the section as mentioned above, it will be necessary to look to the intention of the drafters of the Convention in order to determine whether the reference to paid sick leave contained in the Regulation should include paid leave to which a person is entitled by virtue of a relevant Workers Compensation act or similar legislation.

9. This research would not have been necessary had there been any relevant Australian authority in relation to s.659 or more likely its predecessor s.170CK. In 2005, prior to the amendments to the Act which commenced in 2006, Marshall J considered the question of unlawful termination in Sallehpour v Frontier Software Pty Ltd [2005] FCA 247. The facts in that case were that the complainant was absent from work for long periods due, he claimed, to a compensable stress related condition. But although he had submitted a claim for Workers Compensation payments to be made to him that claim was declined and was not made the subject of any proceedings. As the absence continued for a period in excess of three months and as no payments were made by way of sick leave His Honour was able to deal with this aspect of the matter summarily at [44] and [45]:

   “[44]  Regulation 30C(1) deems an absence from work to be temporary if the employee provides a medical certificate within 24 hours after the commencement of the absence or such longer period as is reasonable in the circumstances. However, Regulation 30C(2) provides that:

   Subregulation (1) does not apply if:

   "(a) the employee’s absence extends for more than 3 months, unless the employee is on paid sick leave for the duration of the absence; or

   (b) the total absences of the employee, within a 12 month period, whether based on a single or separate illnesses or injuries, extend for more than 3 months, unless the employee is on paid sick leave for the duration of the absences."

   [45] Mr Sallehpour’s absence extended for in excess of three months; during a time at which he did not have the benefit of paid sick leave. Consequently the prohibited reason based on Mr Sallehpour’s leave of absence cannot be established.”

10. I do not think this case provides any assistance either way in determining whether or not sick leave should include Workers Compensation leave because there was no payment of Workers Compensation benefits which could have been defined as “sick pay”.  The Regulation, as former Regulation 30C, was also considered in Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 by Wilcox J. Again, a literal interpretation of the Regulation was made and because the absences by the applicant without sick pay were constituted by absences for annual leave or leave without pay His Honour found that he did not satisfy the proviso to paragraph (a) of sub-reg (2). This is explained by His Honour at [175-177]:

    “[175] I think the respondent’s construction of reg 30C is correct. It is consistent with the view adopted by Marshall J in Sallehpour v Frontier Software Pty Ltd [2005] FCA 247; 139 IR 457 at [45]. He thought subreg (1) had the effect of making a ‘temporary absence from work’, within the meaning of s 170CK(2)(a), conditional upon compliance with one or other of the preconditions set out in that subregulation i.e. para (a) or para (b). However, subreg (2) made that provision unavailable in either of the situations mentioned in that subregulation: the employee’s absence, or total absences, exceeded three months and the employee was not on paid sick leave throughout the whole of the absence or absences. In other words, it was always necessary to satisfy the requirements of subreg (1), but subreg (2) limited the situations in which satisfaction of subreg (1) was available.

    [176]In the present case, the requirements of subreg (1) of reg 30C were not satisfied. Even if they had been, subreg (2) made subreg (1) unavailable. Mr Nikolich was absent from work for more than three months immediately before the termination of his employment, and was not on paid sick leave for the whole of the absence. During part of that time, he was on annual leave; during another part, he was on leave without pay. Consequently, he did not satisfy the proviso to para (a) of subreg (2). Similarly, although his absences within a 12 month period exceeded three months, he was not on paid sick leave for the duration of the absences, but only part of that duration. Consequently, he did not satisfy the proviso to para (b) of subreg (2).

    [177]Although Mr Nikolich’s absence from work between 6 August 2004 and 7 December 2004, was a ‘temporary absence from work’ in ordinary parlance, it was not a ‘temporary absence from work because of illness or injury within the meaning of the regulations’. (Emphasis added.) It follows that the claim under s 170CK(2)(a) or the WR Act must fail.”

11. There is one decision in which the status of Workers Compensation leave was considered, albeit not in the context of s.170CK but in the context of whether or not a person on such leave could be considered to be providing continuous service for the purposes of a calculation of annual leave. In CFMEU v Cooks Construction Pty Ltd (2 February, 2006) a decision of Senior Deputy President Drake of the AIRC (Pr967884), her Honour distinguished an employee absent on Workers Compensation leave but available to undertake work pursuant to the rehabilitation regime from an employee absent in other circumstances such as being on leave without pay, unapproved leave or absent on strike or another form of industrial action as a result of which no obligation to pay wages would arise.  At [47] her Honour said:

    “[47] Workers absent on workers compensation leave are workers absent on a special kind of sick leave – one which has additional attendant obligations for the employee and employer. Workers compensation payments and leave are referred to as an entitlement in the Agreement and are in fact legislative entitlements for an injured worker in New South Wales. The company’s submission involves a basic misapprehension as to what constitutes service. Even if Mr Dudley’s submission on behalf of the company was correct and the use of the word “service” was deliberate, there is no interruption to the provision of service by a worker who accesses his entitlement to workers compensation leave any more than there is an interruption to the provision of service by an employee who is on sick leave or any other authorised leave. Such an employee, on workers compensation leave, is in actual service.”

1. There was also some discussion of s.170CK and Regulation 30C in Ryan Stringer v Holden Limited (19 March 2002), a decision of senior Deputy President O’Callohan of the AIRC (Pr915486).  In that case the Deputy president noted:

   “Mr Stringer’s workers compensation claim was not considered in this matter.”

   I do not think this case is of any assistance.

2. It may well be that the authorities do not throw any light on this interesting and complex question because up until the recent amendments the dismissal of an employee who was on Workers Compensation would in all probability have been categorised as an unfair as opposed to an unlawful dismissal.  This categorisation would probably have been made not because it was correct but because it was easier to make.  That was the case in Stringer where Workers Compensation leave was taken into account in assessing the fairness of the employer’s actions.

3. Section 659 gives effect to Australia’s international obligations under the Termination of Employment Convention. It is clear that in drafting that section the Parliament intended that it should be construed in conformity with the Convention and that ambiguities should be informed by the procedures which led to the Convention taking its current form. “Sick pay” is not a simple noun capable of definition from its derivation. It is a term of art capable of being understood in more than one way. In determining the scope of the section it is therefore of assistance to have recourse to the preparatory work of the Convention drafters, whilst keeping in mind the plain meaning of the words in the section will have primacy in the process of statutory interpretation. This primary use of the words of a statute in interpretation has recently been reinforced by the High Court in Nominal Defendant v GLG Australia Pty Ltd & Ors [2006] HCA 11. In that case the Court was called upon to determine the meaning of ‘injury’ in the Motor Accidents Act 1988 (NSW). The Nominal Defendant relied upon the use of the Second Reading speech and the explanatory memorandum; the Court held at [22]:

   “The words of the statute, not non-statutory words seeking to explain them, have paramount significance.”

   And at [82]:

   “This Court has repeatedly insisted that the Second Reading and other speeches in Parliament may only be used to throw light on the meaning of legislative words, to the extent that such speeches are sustained by the legislative text as subsequently adopted. It is in the nature of parliamentary speeches that they commonly lack the precision of statutory language. They can sometimes be motivated by forensic and political factors. They occasionally stray into hyperbole. The rule of law requires that this Court give effect to the purpose of Parliament expressed in the law made by or under an enactment. It is not part of a court's function, as such, to give effect to parliamentary speeches, ministerial media releases or other informal statements unless, validly, they have the specific endorsement of a parliamentary enactment. Saying this is not to discourage the proper use of such materials. It is simply to insist on the primacy of the enacted law.”

   In QAAH of 2004 [2006] HCA 53 their Honours Gummow ACJ, Callinan, Heydon and Crennan JJ enunciated the permissible manner in which preparatory work for an international Convention may be used in constructing Australian statutory provisions in its consideration of the use of the Convention Relating to the Status of Refugees:

   “[33]…it is the law of Australia which prevails in case of any conflict between it and the Convention. It is the law of Australia which must first be identified.

   [34] The relevant law of Australia is found in the Act and in the Regulations under it. It is Australian principles of statutory interpretation which must be applied to the Act and the Regulations. One of those principles is s.15AA(1) of the Acts Interpretation Act 1901 (Cth). Another is s.15AB(2)(d) of that Act. The Convention has not been enacted as part of the law of Australia, unlike, for example, the Hague Rules and the Warsaw Convention. …Hence, by reason of s.15AB(2)(d) of the Acts Interpretation Act, the Convention may be considered for the purposes described in s.15AB(1). Further, Australian courts will endeavour to adopt a construction of the Act and Regulations, if that construction is available, which conforms to the Convention. And this Court would seek to adopt, if it were available, a construction of the definition in Art 1A of the Convention that conformed with any generally accepted construction in other countries subscribing to the Convention, as it would with any provision of an international instrument to which Australia is a party and which has been received into its domestic law. The Convention will also be construed by reference to the principles stated in the Vienna Convention on the Law of Treaties (“the Vienna Convention”), even though the Vienna Convention has not been enacted as part of the law of Australia. One of the principles stated in Art 31 of the Vienna Convention requires that regard be had to the context, object and purpose of the Convention. Another, stated in Art 32, permits recourse to the preparatory work of the Convention in the circumstances of its conclusion. But despite these respects in which the Convention may be used in construing the Act, it is the words of the Act which govern.”

4. The use of the preparatory work in determining the scope of a provision of the Convention in the present case is arguably distinguishable from the use of a Second Reading Speech or Explanatory Memorandum accompanying a Parliamentary bill in a domestic political context. A reference to the ‘preparatory work’ of the Convention is a reference to the various reports, surveys and records of debate which contribute to the drafting of an international agreement, and not simply the presentation of a fully drafted bill to government for debate. The preparatory materials reflect then the overall drafting process of the terms of the Convention and the attempt to balance the various interests of the member states, identified in a lengthy process of consultation, by an independent multi-national committee of experts.

   A comprehensive outline of the Convention process, detailing material which could be considered relevant to a task of construction in relation to the Convention, was enunciated by Finkelstein J in Konrad v Victoria Police (State of Victoria); Glasgow v State of Victoria; Orchard v State of Victoria; Gehrig v State of Victoria [1999] FCA 988:

   “[44] The ILO was established in 1919 by the Treaty of Versailles so that there would be regulation by international agreement of labour conditions. The allied powers were of the belief that a universal and lasting peace could be established only if it was based on social justice. Article 387 of Part XIII of the Treaty set out the objects of the new organisation…

   …

   [45] The ILO comprises three main organs, the International Labour Conference (or General Conference), the Governing Body and the International Labour Office: see Article 2 of the Constitution. The General Conference is the "legislative" body of the ILO. It formulates and adopts Conventions and Recommendations and is responsible for their application. The Governing Body has responsibility for coordinating all of the activities of the organisation. The International Labour Office is the permanent secretariat of the organisation.

   …

   [47] In 1927 the Governing Body established a Committee of Experts on the application of Conventions and Recommendations. One of the functions of the Committee of Experts is to investigate the extent to which member States act in conformity with Conventions and Recommendations. The Governing Body also established a Committee on Freedom of Association to hear complaints by governments or by employer or union organisations. These committees report to the Governing Body on the findings that they make on matters submitted to them and, where appropriate, they make recommendations to the governments concerned.”

5. The Convention preparatory material has been relied upon and used in various cases under the Industrial Relations Act and the Workplace Relations Act. Finkelstein J in Konrad (supra) notes the authoritative approach to treaty construction, upon which his Honour then based his discussion and use of the Convention:   

   “[72] The general rule of interpretation of treaties is to be found in Article 31 of the Vienna Convention on the Law of Treaties, paragraph 1 of which provides:

   "A treaty shall be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its objects and purpose."

   Thus, the interpretation must be in good faith, the ordinary meaning of the words used is presumed to represent the intention of the parties and the ordinary meaning of those words is not to be determined without regard to the context, object or purpose of the treaty. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 254 McHugh J described this as "an ordered yet holistic approach" where "[p]rimacy is to be given to the written text of the Convention but the context, object and purpose must also be considered."

   [73] Article 32 of the Vienna Convention also permits recourse to preparatory work of the treaty and the circumstances of its conclusion in order to confirm the meaning resulting from the application of Article 31 or to determine the meaning when an interpretation according to Article 31 leaves the meaning ambiguous or obscure or leads to a manifestly absurd or unreasonable result.”

   In Konrad (supra) the court relied upon the Convention preparatory materials in its inquiry as to whether Division 3 of Pt VIA of the Industrial Relations Act, which gave effect to the Termination of Employment Convention, on its proper construction had application to members of the police force. Finkelstein J outlined the correct approach to the question of construction of the Division (dicta also adopted by Ryan J in a separate judgment):

   “[43] The object of Division 3 was to give effect to the Termination of Employment Convention 1982 and the Termination of Employment Recommendation 1982 adopted by the General Conference of the International Labour Organisation (ILO) on 22 June 1982: see s 170CA(1). The Convention and Recommendation respectively were set out in Schedules 10 and 11 of the Industrial Relations Act. Logically, the first step in arriving at an answer to the question posed is to determine the scope of operation of the Convention and Recommendation. The second step is to decide whether Division 3 has the same scope.”

   Finkelstein J further states at [81]:

   “It is clear enough that, speaking generally, the Parliament did not intend to effect any change to the meaning of the Convention by the manner in which it has imported the Convention into municipal law….”

6. The preparatory materials for the Convention were used by Marshall J in Griffin v Australian Postal Corporation (1998) 155 ALR 369 to determine the question of whether dismissal of an employee when that employee reached a certain age was at the initiative of the employer, given the Convention only applies to such terminations. His Honour noted at p.388:

   “Applicant A shows that it is permissible to have regard to the preparatory work in relation to a Convention in considering its terms. The preparatory work performed by the International Labour Office in relation to Convention 158 undertaken in 1981, supports the view that Pt 4 of the Convention would be breached if age-based retirement was enforced by an employer in the absence of there being any national practice regarding age-based retirement. There was no evidence before the court of there being any such national practice in Australia.”

   See also Andrew Phillips v State of Victoria (Department of Education and Training) (Unreported, Australian Industrial Relations Commission, 6 December 2005), where the Commission discusses in some detail the preparatory materials for the Convention in determining whether the termination of the employment of the applicant who had been convicted of a sexual offence was harsh, unjust or unreasonable. The specific question the Commission sought to answer was whether s.170CE “restrict(s) or prevents the State acting in a manner critical to its capacity to function as a State”.

7. The Convention was drafted in wide terms. In presenting the Convention for adoption at the 68^th session, following interim discussion and surveying of member States following the 67^th session, the Committee on Termination of Employment representative stated:

   “Within our Committee there were thorough discussions on the scope of this Convention. We decided that it should be very broad in scope, applying to all branches of activity and all employed persons, with total or partial exceptions for workers without permanent contracts, employed for a trial period or lacking the required length of service, as well as for workers with a special status conferring guarantees similar to those of the convention and for workers whose conditions of employment create special problems due to their conditions of work and the size or nature of the enterprise employing them.” [Provincial Record, 68^th Session, Geneva, 1982, p.35/1 Column 2]            

   It has been suggested that interpretation of a relevant provision within Division 3 requiring there to be a ‘valid’ reason for dismissal based on the capacity of the worker should be conducted

   “…in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred an imposed on them. The provisions must be ‘applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox J in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application s.170DC.” As per Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1996) 62 IR 371 at [373]; adopted by Ryan J in Konrad (supra) at [16].

   Such an approach finds support in Report VIII(1), where the ILO noted the basis for the listing of the issue as an agenda item for the 67^th Conference:

   “The present report is concerned with the law and practice of ILO member countries regarding termination of employment at the initiative of the employer. It does not cover other methods of termination, such as termination by the worker by mutual agreement. This limitation on the scope of the item placed on the agenda of the Conference is the same as that observed at the time of adoption of the Termination of Employment Recommendation, 1963 (No. 119). The fact that only this method of termination of employment appears on the agenda of the Conference is clearly due to the great importance attached, then and now, to the problem of security of employment and thus to the protection of the worker in connection with termination of employment by the employer.” (p.5)

8. There is no definition of what constitutes “temporary absence for illness or injury” in Article 6. In discussing the Committee’s view of what should, or should not, constitute a valid reason for dismissal the representative stated:

   “As regards temporary sick leave the Committee hoped that a flexible provision would be elaborated making allowance for the workers’ interests and also those of the undertaking, to make it possible to limit this principle in accordance with national legislation and practice.” [Provincial Record, 68^th Session, Geneva, 1982, p.35/2 Column 1]

   Accordingly, exactly what constitutes “temporary absence for illness or injury” in Article 6 of the Convention was left specifically to individual member states to determine:

   “Having regard to the diversity of national conditions and approaches, the Office believes that the definition of “temporary absence” must be left to be determined by national methods of implementation referred to in the provision on the subject.” [Report V(2) Termination of Employment at the Initiative of the Employer, International Labour Office, 1982 at p.25]

9. Much of the discussion in the Reports and the Convention debates focuses on the length of time which should constitute “temporary” for the purposes of Article 6, as opposed to expressly defining the phrase ‘injury or illness’. More specifically, there is little documented discussion which reveals whether the drafters of the Convention considered workplace or occupational injury to be included within its scope. There are, however, several statements which indicate such an intention on the part of the drafters was present.

   Firstly, in Report VIII(2), a survey presented to Member States following the first tabling of the Convention at the 67^th session (a survey in which the Australian government appears not to have participated), the ILO Committee rejected a specific prohibition against termination where an employee suffers a workplace injury. In the survey the ILO posed the following question to the Member states:

   “Are there, in your opinion, any other pertinent problems not covered by the present questionnaire which ought to be taken into consideration when drafting the proposed instrument(s)? If so, please specify.” (Question 45, p.135)

   The German Democratic Republic’s response was as follows:

   “The discussion should ascertain whether the instrument should include further provisions for the protection of workers. Consideration might be given, among other things, to prohibition of dismissal during pregnancy, during incapacity for work due to sickness or employment injury and during annual leave.” (Question 45, p.136)

   In response to this suggestion, the Committee states:

   “The suggestion of prohibiting termination…during incapacity for work due to sickness or employment injury and absence during annual leave has not been retained; several Points in the Proposed Conclusions provide protection against discriminatory termination on grounds of pregnancy and in cases of temporary absence due to illness or injury.” [Emphasis added] (Question 45, p.137)

   which would appear to confirm that “injury” included workplace injury and was intended to be covered in the national legislation.

   Secondly, Report VIII(1), which concerns the law and practice of ILO member states in relation to termination at the initiative of the employer, discusses legislation which already existed in relation to workplace injury. The ILO (at p.14) notes that a number of countries had, at the time of drafting, legislation which required an employer to have a valid reason for terminating the employment of a worker. In this context the ILO refers to a number of reasons commonly referred to in such legislation, where it existed, for the valid dismissal of an employee related to that worker’s “capacity to carry out his duties under the contract of employment”, and reports:

   “Stricter rules exist in a number of countries concerning absence from work due to an occupational accident or disease. In some cases the legislation provides for the suspension of the contract of employment during the whole period of incapacity resulting from such injury or disease. This prohibition presumably ends if it is determined that the incapacity is permanent.”

   Finally, workplace injury is discussed in Report VIII(2) in the context of the Convention in relation to allowances and benefits payable upon dismissal. In its survey of relevant legislation the Committee notes:

   “Some employment-injury benefit schemes do not allow the employer to dismiss an injured worker while he is in receipt of temporary incapacity benefits.”

   The 1995 General Survey, undertaken by the Committee of Experts on the Application of Conventions and Recommendations to assess Member States’ implementation of the Convention in their domestic legislation, discusses the “Obligation for termination of employment to be justified by a valid reason”. In relation to Article 6, the Committee notes:

   “[137]…The Convention does not define the concept of illness or injury. These terms are commonly accepted as meaning both illness and injury that are not related to work and occupational illness and injury. Nor does it define the concept of temporary absence…The concept of temporary absence seems to be defined by national methods of implementation.

   …

   In practice, temporary absence generally results in a suspension of the employment contract for a specific period (with the employer continuing to pay benefits or coverage being supplied in part or in full by social security benefits) and a prohibition to terminate employment during this period or during a prescribed period. Although the Convention leaves the definition of temporary absence to national provisions, the Committee considers that where the absence is defined in terms of its duration, it should be compatible with the aim of the Article, which is to protect a worker’s employment at a time when, for reasons of force majeure, he is unable to carry out his obligations…” [Emphasis added]

1. Importantly, the Convention gives a signatory state the opportunity to exclude certain categories of employees. Specifically, Article 2(2) provides that a member state may exclude workers under a fixed term contract, workers on probation or casual workers. In addition, under Article 2(4) member States may exclude from the operation of the Convention

   “…categories of employed persons whose terms and conditions of employment are governed by special arrangements which as a whole provide protection that is at least equivalent to the protection afforded under the Convention.”,

   whilst Article 2(5) provides that limited categories of employees

   “…in respect of which special problems of a substantial nature arise in the light of the particular conditions of employment of the workers concerned or the size or nature of the undertaking that employs them.”

   The exclusion of certain categories of workers was discussed at length in the preparatory work of the Convention: see Record of Proceedings, 67^th Session, 33/5; Report V(1), p. 7. At no point in the preparatory work was it considered or discussed that employees absent from work due to workplace injury should be excluded from the operation of Article 6 specifically or from the Convention as a whole.

2. In Konrad (supra) the court relied on the preparatory work for the Convention in determining that the drafters of the Convention had considered the exclusion of the police force from its operation, but as the Australian Parliament had not expressly excluded the category in the Act or Regulations (at the relevant time when the dismissal occurred) from the operation of the Convention the Division still applied. Ryan J notes at [14]:

   “…The express reference in Report VIII(2) of the ILO Secretariat to proposals by certain governments for "provision for the possible exclusion of, or special provision for, one or more categories of workers such as the armed forces, the police ..." followed by a recommendation which mirrored Article 2(5) of the Convention as adopted on 2 June 1982 makes it clear that the framers of the Convention intended it to apply to a very wide range of workers, including police, unless a country took measures to exclude from the application of the Convention "other limited categories of employed persons in respect of which special problems of a substantial nature arise in the light of the particular conditions of employment of the workers concerned or the size or nature of the undertaking that employs them". One such limited category of employed persons obviously comprised members of a police force of a country.”

   Australian Parliament had not at the time in question made an express exclusion despite preserving the power to do so in the Regulations. Finkelstein J, in a judgment adopted by Ryan and North JJ, sets out in some detail relevant excerpts of the Reports conducted by the Committee of Experts in relation to the Termination of Employment Convention and adopts a construction based on the various texts: see [64] – [74].

Conclusion

1. An interpretation of s.659 based solely on the words of the statute reveals no exclusion of workplace injury from the term ‘temporary absence for illness or injury’. That Parliament intended, in enacting the provision, to exclude employees on Workers Compensation from protection from dismissal would be anomalous with its obligations under the Convention, viewed in the context of the preparatory materials, which the Act embodies.

2. Further, the fact that the category of employees absent due to workplace injury has not been excluded by Parliament, as empowered by the Regulations, indicates those employees should fall within the purview of the section. It would certainly be an odd result that a person who has an industrial accident and suffers injury could claim protection if he or she consequently claimed only sick pay, in which case it would be unlawful to dismiss him or her, but if she or he claimed Workers Compensation, upon the respondent’s construction of the subsection it would be lawful to do so. Again the restriction of injuries to those not sustained in the workplace cannot be implied from a reading of the Convention papers or from the wording of the statute itself. An injury sustained outside of the workplace may entitle a worker to be paid through sick pay entitlements. An injury in the workplace would give a similar entitlement to be paid the “special form of sick pay” described by Deputy President Drake. If this interpretation of the phrase is accepted then there is no need to imply the absurdist distinction between the cause of injury that a definition that excluded Workers Compensation payments would require.

3. I am aware that in Ex parte Master Builders (1971) (1) NSWLR 655 the NSW Court of Appeal appears to have taken a different approach to the definition of ‘sick leave’. Indeed Jacobs JA went so far as to say “sick leave is not accident compensation” (at [666]). But his Honour was looking at the matter in the context of a submission that the Workers Compensation Act was a code that confined the ability of an employer to make payments to an employee off work due to an industrial injury to the Workers Compensation payments scheduled in the Act. This view was rejected and the ability of an employee to bargain for additional accident pay was recognised. I fully accept that for the purpose of the Workers Compensation legislation, which is state legislation, a difference between ‘sick leave’ and compensation is strongly maintained, see for example s.50 Workers Compensation Act 1987 (NSW). This is in order to ensure that an employer does not substitute sick leave pay for compensation. The legislation at which I have been looking is expressly derived from an international convention that seems to clearly intend no distinction between the two types of benefit, particularly a distinction which would be detrimental to a worker incapacitated due to an industrial injury.

4. It seems to me that if the Parliament had intended to exclude those suffering from the sequelae of compensable industrial injuries from the benefit of the legislation it could have done so in clear terms. If the use of the words “sick pay” was intended to achieve the same result without it being broadcast I believe it has failed. The reference in the preamble to the subsection to interpreting the Convention clearly indicates that the subsection is intended to have beneficial effect. If there was to be any contrary intention this would have to be clearly indicated in the operative parts of the subsection. The importance of construing a statutory provision to give effect to the intent of the legislation in context was considered by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151 in which his Honour considered a literal interpretation of a section which would have the effect of that section standing as an anachronism in the context of the legislation. His Honour noted at [161] that to give the term its literal interpretation would be to construe

   “…“the Act in order to defeat its object rather than with a view to carry is object into effect” – Curtis v Stovin (1889) 22 QBD 513 at 519. His Lordship, in common with Lord Esher MR and Bowen LJ, refused to adopt a literal interpretation which would have led to the result “that the plain intention of the legislation has entirely failed by reason of a slight inexactitude in the language of the section”.

   Kirby J in Re Woolley and Anor; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 210 ALR 369 notes

   “...the general principle of Australian law that statutes are read so as not to offend international law, and not to derogate from fundamental rights, unless the words of the statute are clear.” [195]

   In Potter v Minahan (1908) 7 CLR 277 O’Connor J noted:

   “It is in the last degree improbable that the legislature would overthrow fundamental principles, infringing rights, or depart from the general system of law, without expressing its intention with irresistible clearness…and to give any such effect to general words, simply because they have that meaning in the widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.” [304]

   Potter was cited with approval by Kirby J in Coleman v Power (2004) 209 ALR 182, where his Honour further noted at [251]:

   “…cases old and new demonstrate that where the statute is ambiguous, where it has not expressly reduced or abolished basic common law rights, and where an alternative, narrower, construction is available, this court will prefer the interpretation that avoids such a consequence to one that diminishes such rights parenthetically, accidentally or without revealing a clearer purpose to do so.”

5. As discussed in [6] of these reasons the question that has been asked pursuant to Part 17 is not the question set out in the motion and at [1] hereof. It is the simpler interpretive question posed in the last sentence of [6]”:

   “…is absence on paid Workers Compensation leave…within the definition of paid sick leave contained in Regulation 2.12.8.”

   The answer to that question, for the reasons given, is “Yes”.

6. In the light of this answer the proceedings should continue to trial on any remaining issues. I would reserve the costs of the preliminary question.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: