Phil Nugent v City of Wanneroo

[2016] FWC 7159

[2016] FWC 7159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Phil Nugent
v
City of Wanneroo
(C2016/3930)

COMMISSIONER WILLIAMS PERTH, 10 OCTOBER 2016

Application to deal with a dispute - jurisdiction.

[1] This decision concerns an application made by Mr Phil Nugent (Mr Nugent or the applicant) under section 739 of the Fair Work Act 2009 (the Act). The respondent is the City of Wanneroo (the respondent).

[2] The City of Wanneroo Infrastructure Projects, Building and Maintenance Enterprise Agreement 2012 [AE898226] (the Agreement) applies to the employment of Mr Nugent.

[3] This application follows a dispute being raised under clause 9−Dispute Resolution Procedure of the Agreement. Stage III of the Dispute Resolution Procedure provides that where a matter is not resolved following the earlier stages of the dispute it may be referred to the Commission for resolution by mediation, conciliation or arbitration.

[4] This matter was the subject of a conciliation conference but was not resolved.

[5] Mr Nugent’s representative has characterised the dispute as a number of questions to be answered as follows:

“1. As a matter of fact, was the Applicant injured at work

2. If the Applicant was injured at work, was the Applicant entitled to the benefits of sub clause 30.6 of the City of Wanneroo Infrastructure Projects, Building and Maintenance Enterprise Agreement 2012

3. If the answer to question 2 is Yes, did the Respondent breach its obligations pursuant to sub clause 30.6 when it

a. Revoked the allocation of the Applicant to “light duties” on or about 6 May 2016;

b. Placed the Applicant on sick leave from 27 May 2016; or

c. Placed the Applicant on sick leave in the full knowledge that the Applicant did not have sufficient sick leave credits to cover the probable period of the absence

4. Pursuant to sub clause 30.6 did the Respondent fail to meet its obligations to the Applicant when it discontinued all forms of assistance to the Applicant related to the injury and his return to work on or about 6 May 2016.

5. Do the provisions of sub clause 30.6 require the Respondent to identify ways in which assistance can be provided to the Applicant to return to work.

6. If the answer to question 5 is Yes,

a. Has the Respondent discharged that obligation; and

b. Is the Respondent obligated to implement those measures identified.”

[6] The respondent has raised a number of jurisdictional objections to this application. This decision deals solely with those objections.

Background

[7] Relevantly clause 30−Occupational Safety and Health of the Agreement provides as follows”

“30.6 Where an employee is injured at work, the City will work with the employee and support agencies towards a full recovery.”

[8] It is not in dispute that the applicant is engaged by the respondent as a Leading Hand in the Parks Maintenance Service Unit and the applicant is covered by the Agreement.

[9] In March 2016 Mr Nugent says he suffered an injury at work. Consequently he filed a workers compensation claim.

[10] The respondent’s workers compensation insurer, LGIS, declined Mr Nugent’s claim on 4 May 2016.

[11] Subsequently Mr Nugent attended a fitness for work medical review and as a consequence was deemed unfit to work.

[12] Consequently Mr Nugent was relieved of all duty until such time as he can demonstrate he was fit to work. Mr Nugent remains off duty and is not being paid.

[13] Mr Nugent’s workers compensation claim has been the subject of some proceedings in the WorkCover jurisdiction and that matter will be progressed in the Directorate and will go to a hearing in due course.

Respondent’s submissions on jurisdiction

[14] The respondent submits that the Act is an industrial relations jurisdiction for national system employees and employers which by operation of section 26 is intended to exclude the operation of State and Territory laws. This general position however is modified by the operation of section 27 of the Act. Section 27 involves a clear statement of intention that the Act is not intended to cover the field in so far as that field includes subjects listed in section 27(2), the non-excluded matters. This therefore leaves room for the operation of State laws on these subject matters. In particular it is clear that section 26 of the Act does not exclude a law of a State or Territory which deals with, or deals with rights or remedies incidental to, workers compensation.

[15] It is submitted that the Act expressly excludes matters relating to workers compensation from being matters which the Commission can deal with under section 739. It is submitted that the Act does not give the Commission a dispute settlement power at large.

[16] The respondent submits that within Western Australia the applicable State industrial law that covers workers compensation is the Workers Compensation Injury Management Act 1981 (WA) (Workers Compensation Act). It is argued that legislation established an exclusive jurisdiction for the determination of questions this related to workers compensation. It is submitted that the effect of section 29 of the Act is that a clause of an enterprise agreement is to be read in conjunction with a State law that is not excluded, such as the Workers Compensation Act.

[17] The respondent submits that in their view the threshold question in dispute, whether Mr Nugent was injured at work, falls firmly within the scope of the Workers Compensation Act.

[18] The respondent submits that section 739(5) of the Act means that given the existence of the Workers Compensation Act and the nature of the dispute before the the arbitral powers in section 739 cannot be exercised in this case because to do so would be inconsistent with the Act.

[19] The respondent submits that the critical first question that needs to be decided does not fall within the jurisdiction of the Commission.

[20] Further the Respondent says that the central and threshold matter in dispute as set out in the applicant’s submissions and evidence is whether an injury, as defined in paragraph [22] below, has occurred that involved the applicant.

[21] The Workers Compensation Act in section 18 states that:

“If an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1.”

[22] The definition of an injury under the Workers Compensation Act is set out in section 5 as below:

“injury means —

(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or

(b) a disease because of which an injury occurs under section 32 or 33; or

(c) a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or

(d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or

(e) a loss of function that occurs in the circumstances mentioned in section 49, but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer.”

[23] The respondent says that if the applicant had been injured at work, then in accordance with section 18 of the Workers Compensation Act there would have been a liability established for the respondent’s insurer to pay compensation. As of 16 September 2016, no compensation has been paid to the applicant.

[24] The respondent says that the applicant has acknowledged the relevance and applicability of the jurisdiction established by the Workers Compensation Act by lodging a claim for workers compensation. This claim has been denied.

[25] Under section 58 of the Workers Compensation Act where a claim is disputed, a WorkCover WA arbitrator:

“...may, on the application of the worker, hear and determine the question of liability to make the weekly payments claimed.”

[26] The applicant, prior to this dispute matter being listed for hearing, was pursuing his claim through this disputed workers compensation claims process. The respondent says that this is the appropriate course of action and the only jurisdiction in which the question of whether there was a workplace injury is able to be determined.

[27] The respondent says that this is because section 176 of the Workers Compensation Act establishes an “exclusive jurisdiction” for the settlement of disputes in relation to claims for compensation or the liability to pay compensation under that Act. This “exclusive jurisdiction” rests with a person designated as a WorkCover WA arbitrator. Section 176 of the Workers Compensation Act is set out below:

“176. Exclusive jurisdiction of arbitrators

(1) In this Part—

dispute means —

(a) a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act;

(b) a dispute in connection with an obligation imposed under Part IX;

(c) any other dispute or matter for which provision is made under this Act for determination by an arbitrator.

(d) any other matter of a kind prescribed by the regulations.

(2) A proceeding for the determination of a dispute is not capable of being brought other than under this Part.

(3) Subject to this Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes.”

[28] The respondent says that the applicant's application to have the question of whether a workplace injury occurred determined by the Commission is a question that falls within the purview of the above “exclusive jurisdiction”.

[29] The respondent says that as a consequence, this is not a matter that can be determined by the Commission.

[30] Section 595 of the Act sets out the Commission’s power to deal with disputes. Specifically it states that:

“(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act…”

[31] The respondent says that the Act does not expressly authorise the Commission to deal with disputes about workers compensation. Further, the above “exclusive jurisdiction” means that the question of whether the applicant suffered a workplace injury is not a matter that the Commission is expressly authorised to deal with.

[32] The respondent says that the applicant has failed to identify the powers that the Commission is being asked to exercise in relation to this matter. It is possible to infer that the Commission is being asked to exercise a power conferred from the Dispute Settlement Procedure in the Agreement. The respondent says that the exercise of that power is constrained by the above “exclusive jurisdiction”.

[33] The respondent says that the Dispute Settlement Procedure within the Agreement, being clause 9, requires the subject matter of a dispute to be “a matter arising, between the employer and employee[s]”.

[34] The respondent submits that the threshold matter in dispute, being the denial of a claim that a workplace injury has occurred involving the applicant, is not a matter arising between the employer and the employee. Instead, it is a matter arising between the employee and the employer’s workers compensation insurer. The authority for the employer’s insurer to make this determination is set out in section 57A(3) of the Workers Compensation Act:

“… (3) Upon an employer making a claim as mentioned in subsection (2), the insurer must, before the expiration of 14 days after the claim was made by the employer—

(a) give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is accepted in respect of the weekly payments claimed; or

(b) subject to section 75, give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is disputed in respect of all or any of the weekly payments claimed; or

(c) give the worker to whom the claim relates, the employer and the Director notice, in accordance with section 57BA and the regulations, that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection.”

[35] Consequently, the provisions of clause 9 of the Agreement are not applicable to this part of the matters in dispute and consequently the matter may not be referred to the Commission and the Commission is not able to exercise arbitration powers on this question.

[36] In addition the respondent submits the Workers Compensation Act does not allow a person to be compensated twice. This is set out in section 23 below:

“23. Person not to be compensated twice

(1) Compensation under this Act is not payable in respect of anything to the extent that —

(a) compensation has been received under the laws of a place other than this State; or

(b) judgment has been obtained against the employer independently of this Act.

(2) If a person receives compensation under this Act and, for the same matter, subsequently —

(a) receives compensation under the laws of a place other than this State; or

(b) obtains judgment against the employer independently of this Act, the person from whom compensation under this Act is received may, in a court of competent jurisdiction, sue and recover from the person the amount described in subsection (3).

(3) The amount that is recoverable under subsection (2) is —

(a) the amount of compensation paid under this Act; or

(b) the amount of compensation received under the laws of a place other than this State or for which judgment was obtained independently of this Act, whichever is less.”

[37] The respondent says that the applicant is seeking compensation through his workers compensation claim. The applicant is also seeking to be compensated again (twice), through this dispute process. The remedy being sought by the applicant, as set out in Attachment A of the witness statement of Mr Andrew Johnson, is “immediate reinstatement to paid duties and back pay to Mr Phil Nugent arising out of the disputed workers compensation claim”. This is such compensation as may be awarded to him from the acceptance of liability for his workers compensation claim. The respondent says that the claim for double compensation should not be allowed.

Applicant’s submissions on jurisdiction

[38] The applicant’s acknowledges that section 26 of the Act does not exclude the operation of State legislation that regulates the insurance of workplace injuries, workers compensation and the like, as a consequence of the effect of section 27 of the Act.

[39] The applicant submits that workers compensation is a non-excluded matter under section 27(2) of the Act. It is submitted for the applicant that in particular the Workers Compensation Act is covered by section 27(2) of the Act.

[40] The applicant submits that a consideration of the purpose of the Workers Compensation Act, which is provided for in section 3 of that legislation, shows that the emphasis is on establishing a scheme for compensation payable to, or in respect of, workers who suffer an injury. The purpose of the State law is to establish a compensation scheme.

[41] Further section 4(2) of the Workers Compensation Act concerns the application of the Workers Compensation Act which is it is submitted is essentially concerned with the liability or the extent of liability to pay compensation.

[42] The effect then of section 29 of the Act is that in the case of workers compensation because it is a non-excluded matter the general proposition that the terms of an agreement prevail over a State law to the extent of any inconsistency does not apply.

[43] It is submitted that the arbitrator provided for under the Workers Compensation Act, referred to in the respondent’s submissions, is specifically empowered for the purposes of determining whether there is a workers compensation liability under the Workers Compensation Act. It is submitted that the application before the Commission however does not invite by inference or directly a suggestion that even if the Commission did find that there was an injury of Mr Nugent at work that this is compensable. The applicant submits they accept that the issue of compensation is within the “exclusive jurisdiction” of the arbitrators under the Workers Compensation Act. This however is not what the application before the Commission is about.

[44] The applicant submits it does not quarrel with the respondent’s submission that the dispute about the injury at work is a central issue in this particular matter. The question of whether or not Mr Nugent was injured at work is squarely on the table but that is as far as the Commission can go in determining the matter and the Commission cannot decide under the terms of the Agreement whether compensation should be paid.

[45] It is acknowledged that Mr Nugent’s workers compensation claim is still live. The applicant submits however that the respondent’s objection is based on a view that the injury to Mr Nugent must be determined using the meaning of injury in the Workers Compensation Act. It is pointed out however that there is nothing in the terms of the Agreement specifically at 30.6 that refers to the Workers Compensation Act definition of injury. It is submitted there is no basis on which the word injury as used in the Agreement should be interpreted to mean injury as narrowly defined in the Workers Compensation Act. Rather the word ‘injury’ in 30.6 should be given its ordinary meaning as should the word ‘work’ in this clause. It is submitted these are straightforward unambiguous words that have an ordinary meaning.

[46] There is similarly no basis on which subclause 30.6 of the Agreement should be read as if the word “injury” meant “compensable injury”.

[47] It is submitted that the word injury in subclause 30.6 of the Agreement has a broader meaning than the definition of injury in the Workers Compensation Act. Indeed the definition of injury in the State law positively excludes some events and some circumstances. For example the definition excludes injury resulting from an employer’s disciplinary proceedings.

[48] It is submitted that in Mr Nugent’s position where his workers compensation claim is disputed if you apply the same narrow definition to the word injury as contained in the Workers Compensation Act then he may not fall within clause 30.6 of the Agreement, however if the ordinary meaning of the word injury is applied and a positive finding of fact is made in his favour by the Commission then he would be still entitled to the benefits of that clause of the Agreement without there being a consideration of compensation.

The legislation

[49] Sections 26, 27 and 29 of the Act are set out below:

“26 Act excludes State or Territory industrial laws

(1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.

(2) A State or Territory industrial law is:

(a) a general State industrial law; or

(b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:

(i) regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action);

(ii) providing for the establishment or enforcement of terms and conditions of employment;

(iii) providing for the making and enforcement of agreements (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment;

(iv) prohibiting conduct relating to a person’s membership or non membership of an industrial association;

(v) providing for rights and remedies connected with the termination of employment;

(vi) providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or

(c) a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or

(d) a law of a State or Territory providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal or comparable value; or

(e) a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; or

(f) a law of a State or Territory that entitles a representative of a trade union to enter premises; or

(g) an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or

(h) either of the following:

(i) a law that is a law of a State or Territory;

(ii) an instrument of a legislative character made under such a law; that is prescribed by the regulations.

(3) Each of the following is a general State industrial law:

(a) the Industrial Relations Act 1996 of New South Wales;

(b) the Industrial Relations Act 1999 of Queensland;

(c) the Industrial Relations Act 1979 of Western Australia;

(d) the Fair Work Act 1994 of South Australia;

(e) the Industrial Relations Act 1984 of Tasmania.

(4) A law or an Act of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:

(a) all employers and employees in the State or Territory; or

(b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.

For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.

27 State and Territory laws that are not excluded by section 26

(1A) Section 26 does not apply to any of the following laws:

(a) the Anti Discrimination Act 1977 of New South Wales;

(b) the Equal Opportunity Act 2010 of Victoria;

(c) the Anti Discrimination Act 1991 of Queensland;

(d) the Equal Opportunity Act 1984 of Western Australia;

(e) the Equal Opportunity Act 1984 of South Australia;

(f) the Anti Discrimination Act 1998 of Tasmania;

(g) the Discrimination Act 1991 of the Australian Capital Territory;

(h) the Anti Discrimination Act of the Northern Territory.

(1) Section 26 does not apply to a law of a State or Territory so far as:

(b) the law is prescribed by the regulations as a law to which section 26 does not apply; or

(c) the law deals with any non excluded matters; or

(d) the law deals with rights or remedies incidental to:

(i) any law referred to in subsection (1A); or

(ii) any matter dealt with by a law to which paragraph (b) applies; or

(iii) any non excluded matters.

Note: Examples of incidental matters covered by paragraph (d) are entry to premises for a purpose connected with workers compensation, occupational health and safety or outworkers.

(2) The non excluded matters are as follows:

(a) superannuation;

(b) workers compensation;

(c) occupational health and safety;

(d) matters relating to outworkers (within the ordinary meaning of the term);

(e) child labour;

(f) training arrangements, except in relation to terms and conditions of employment to the extent that those terms and conditions are provided for by the National Employment Standards or may be included in a modern award;

(g) long service leave, except in relation to an employee who is entitled under Division 9 of Part 2 2 to long service leave;

(h) leave for victims of crime;

(i) attendance for service on a jury, or for emergency service duties;

Note: See also section 112 for employee entitlements in relation to engaging in eligible community service activities.

(j) declaration, prescription or substitution of public holidays, except in relation to the rights and obligations of an employee or employer in relation to public holidays;

(k) the following matters relating to provision of essential services or to situations of emergency:

(i) directions to perform work (including to perform work at a particular time or place, or in a particular way);

(ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way);

(l) regulation of any of the following:

(i) employee associations;

(ii) employer associations;

(iii) members of employee associations or of employer associations;

(m) workplace surveillance;

(n) business trading hours;

(o) claims for enforcement of contracts of employment, except so far as the law in question provides for a matter to which paragraph 26(2)(e) applies;

(p) any other matters prescribed by the regulations.

…

29 Interaction of modern awards and enterprise agreements with State and Territory laws

(1) A modern award or enterprise agreement prevails over a law of a State or Territory, to the extent of any inconsistency.

(2) Despite subsection (1), a term of a modern award or enterprise agreement applies subject to the following:

(a) any law covered by subsection 27(1A);

(b) any law of a State or Territory so far as it is covered by paragraph 27(1)(b), (c) or (d).

(3) Despite subsection (2), a term of a modern award or enterprise agreement does not apply subject to a law of a State or Territory that is prescribed by the regulations as a law to which modern awards and enterprise agreements are not subject.”

Consideration

The effect of sections 26, 27 and 29 of the Act

[50] The effect of these provisions in the current circumstances is that section 26, by virtue of section 27, does not apply to a law of Western Australia so far as that law that deals with workers compensation or deals with rights or remedies incidental to workers compensation. I am satisfied that the Workers Compensation Act is a law that deals with workers compensation or with the rights or remedies incidental to workers compensation. This means that the Act does not apply to the exclusion of the Workers Compensation Act so far as this State law deals with workers compensation or with rights or remedies incidental to workers compensation.

[51] President Boland of the NSW Industrial Relations Commission, in AC1 Operations Pty Ltd v Field 1, considered the meaning of the words “workers compensation” in section 27(2)(b) of the Act as follows (I note it appears in paragraph 42 to be erroneously referred to as section 26(2)(b)):

“42 The reference to "workers compensation" in s 26(2)(b) of the FW Act cannot, in my view, be construed narrowly. In enacting the provision the Commonwealth Parliament must be taken to have known that the laws of the State and Territories, in particular New South Wales, dealing with workers compensation were not limited to regulating payments by way of compensation to injured workers, but extended to rehabilitation and other matters relating to the management of workers suffering workplace injury.

43 Part 8 of the WC Act may be regarded as an essential part of the scheme's purpose to rehabilitate injured workers. In State Rail Authority of New South Wales v Tyrrell (No 2) (1993) 51 IR 14 the Full Court of the Industrial Court of New South Wales considered the construction of Part XV, Protection of Injured Employees in the Industrial Arbitration Act 1940. The legislation considered by the Full Court in that case is relevantly and sufficiently similar to Part 8. At 19 the Full Court stated that the "apparent purpose" of the Part was "... assisting in the rehabilitation of injured workers."

44 In Australian Salaried Medical Officers' Federation (NSW) v Central Sydney Area Health Services [2005] NSWIRComm 339; (2005) 147 IR 56 the Full Bench of the NSWIRC considered the provisions of Pt 7, Protection of Injured Employees found in Ch 2 of the Industrial Relations Act , being provisions which are relevantly the same as the provisions now found in Pt 8 of the WC Act. The Full Bench had to determine the meaning of the expression "injured employee" and reached a conclusion that the Full Bench considered to be "consistent with the statutory purpose" of the injured worker provisions, namely (at [72]):

[72] ... to promote rehabilitation and return to work of employees injured at work by providing some measure of protection to them from dismissal on the basis of work-related injury provided the employee establishes a relevant level of fitness for work and the application is brought within a reasonable time after the dismissal.

45 At [73] the Full Bench added:

[73] The statutory purpose we have identified emerges from an examination of the legislation itself. It is also confirmed by the various Second Reading Speeches referred to in the Minister's submissions, to which we have earlier referred. We do observe however that in the then Minister's Speech of May 1987 there is reference to workers being given "protection against unfair dismissal while on workers' compensation". Although it might be thought that choice of words supports the contentions of the third respondent, to take a narrow view of that part of the Minister's Speech would be to fail to give appropriate weight to the balance of the speech which provides not only the context in which that part of the speech is to be considered, but also a clear statement of the purpose of the legislation.

46 Part 8 was inserted into the WC Act by the Industrial Relations (Further Amendment) Act 2006. The essential terms of Pt 8 originally appeared as Pt 7 of Ch 2 of the Industrial Relations Act but a decision was taken to transfer those provisions into the WC Act. In the second reading speech relating to the Industrial Relations Further Amendment Bill 2006 ( Hansard , Legislative Assembly, 24 October 2006 at p 3289) the Minister for Water Utilities, Minister for Small Business, Minister for Regional Development, and Minister for the Illawarra, Mr David Campbell MLA, stated:

I deal now with the second bill, the Industrial Relations Further Amendment Bill, which aims to counteract the destructive effects of the Federal Government's WorkChoices legislation.

...

The bill also transfers the injured worker protection provisions contained in chapter 2 part 7 of the Industrial Relations Act 1996 to the Workers Compensation Act 1987. Those provisions provide an injured worker with the remedy of reinstatement if that worker is dismissed from employment because he or she is not fit for employment because of that injury. The provisions also create an offence when an employer dismisses a worker because that worker is not fit for employment because of the injury and dismissal takes place within six months of the worker becoming unfit for employment.

The injured worker protections contained in the bill are an integral part of the workers compensation scheme to get injured workers back to work and to ensure employers are engaged in this process. The duties of employers to find injured workers suitable duties, to commence workplace rehabilitation programs, and develop return-to-work programs would become meaningless if an employer was simply able to dismiss the worker to avoid these obligations. The protections for injured workers in the bill are an essential element of the workers compensation scheme in this State. It is appropriate that the bill provides for these protections to sit appropriately within State workers compensation legislation. These initiatives will guarantee that these important remedial provisions live on, providing reassurance to employers and their workers regarding their rights and responsibilities, given the current climate of confusion.

47 It is apparent that the Government was concerned that an "integral part of the workers compensation scheme", namely, getting injured workers back to work and ensuring employers were engaged in that process, might be lost as a consequence of the Work Choices legislation, in particular s 16 of the WR Act. It is also apparent the Government's objective was to ensure the protection of injured worker provisions, which had resided in the Industrial Relations Act (an Act that had been specifically targeted by the Commonwealth as one excluded by the operation of the WR Act), would continue to apply in New South Wales as " an essential element of the workers compensation scheme in this State."

48 The FW Act re-enacted s 16 in essentially the same terms in ss 26 and 27. It can be presumed, as the Attorney and the respondent submitted, that the Commonwealth Parliament was aware that the injured worker provisions had been moved into Pt 8 of the WC Act by that time. Had the Commonwealth Parliament wished to invalidate Pt 8 it could readily have done so. The absence of an invalidating provision in s 26 or the Regulations support the view that the Commonwealth Parliament did not intend to oust the effect of Pt 8 of the WC Act.

49 In this respect, the respondent referred to Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at [81] per Gleeson CJ:

[81] Because the Federal Parliament enacted the Act two years after the Re Alcan decision, the drafters of the Act almost certainly knew of the decision and the interpretation applied by this Court to the expression "about matters pertaining to the relationship between employers and employees". The principle that the re-enactment of a rule after judicial consideration is to be regarded as an endorsement of its judicial interpretation has been criticised, and the principle may not apply to provisions re-enacted in "replacement" legislation. However, industrial relations is a specialised and politically sensitive field with a designated Minister and Department of State. It is no fiction to attribute to the Minister and his or her Department and, through them, the Parliament, knowledge of court decisions - or at all events decisions of this Court - dealing with that portfolio. Indeed, it would be astonishing if the Department, its officers and those advising on the drafting of the Act would have been unaware of Re Alcan. (references omitted)

50 There is no reason to view Pt 8 as being anything other than an "integral part of the workers compensation scheme", designed to ensure that injured workers are provided with every opportunity to be rehabilitated and to resume their employment after they have become fit for duty within the relevant time period provided. The correctness of this approach, as the Attorney submitted, is confirmed by giving the exclusion for " workers compensation" in the FW Act a beneficial and broad interpretation, which is appropriate in light of the public policy purpose of workers compensation.

51 I find that Pt 8 of the WC Act is a law that deals with workers compensation.”

[52] I adopt President Boland’s view that the exclusion for “workers compensation” in the Act is not to be given a narrow interpretation. It is to be given a beneficial and broad interpretation that recognises the Commonwealth Parliament must be taken to have known the State workers compensation laws were not limited to regulating compensation to injured workers but extended to rehabilitation and other matters relating to the management of workers suffering a workplace injury.

[53] The practical effect of section 29 of the Act is that a term of an enterprise agreement applies subject to the Workers Compensation Act. Therefore in the event of inconsistency between a term of the Agreement and the Workers Compensation Act the latter prevails. 2

[54] Clause 3−Purposes of the Workers Compensation Act explains the purposes of the legislation as follows:

“3. Purposes
The purposes of this Act are —

(a) to establish a workers’ compensation scheme for Western Australia dealing with —

(i) compensation payable to or in respect of workers who suffer an injury; and

(ii) the management of workers’ injuries in a manner directed at enabling injured workers to return to work; and

(iii) specialised retraining programs for injured workers; and

(iv) ancillary and related matters;

and

(b) to establish WorkCover WA to oversee the operation of the workers’ compensation scheme; and

(c) to provide for the resolution of disputes under this Act; and

(d) to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers’ compensation matters in a manner that is fair, just, economical, informal and quick.”

[55] Part XI−Dispute Resolution includes section 176 which provides as follows:

“176. Exclusive jurisdiction of arbitrators

(1) In this Part —

dispute means —

(a) a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act;

(b) a dispute in connection with an obligation imposed under Part IX;

(c) any other dispute or matter for which provision is made under this Act for determination by an arbitrator;

(d) any other matter of a kind prescribed by the regulations.

(2) A proceeding for the determination of a dispute is not capable of being brought other than under this Part.

(3) Subject to this Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes.”

[56] Central to the dispute before the Commission is whether or not Mr Nugent was injured at work. The witness statement of Mr Nugent expressly states that he was injured at work. 3 It would not be correct to characterise the dispute before the Commission as being about an alleged injury which is not compensable under the Workers Compensation Act. It is not submitted on behalf of the applicant that the injury he says he sustained is one that is outside the jurisdiction of the Workers Compensation Act. In fact Mr Nugent has filed a claim for workers compensation which has been rejected by the respondent’s insurer and this is the subject of ongoing proceedings under the Workers Compensation Act.

[57] The dispute before the Commission in these circumstances in my view falls squarely within the jurisdiction of the Workers Compensation Act.

[58] Consequently both clause 9−Dispute Resolution Procedure and subclause 30.6 of the Agreement, in the context of this dispute, apply subject to the Workers Compensation Act.

[59] Section 176 of the Workers Compensation Act states that any proceedings for the determination of a dispute as provided for in 176(1) is not capable of being brought other than under the Workers Compensation Act and that the arbitrators established under the Workers Compensation Act have exclusive jurisdiction to hear and determine all such disputes. Section 29 of the Act in this case requires that the terms of the Agreement are applied subject to this law of the State. For the Commission to determine the dispute before it would be inconsistent with this State law. 4 These provisions of the State law therefore exclude the Commission hearing and determining a dispute as to whether or not Mr Nugent was injured at work.

[60] Consequently I uphold the jurisdictional objection of the respondent and this application will be dismissed.

COMMISSIONER

Appearances:

K. Trainer of Industrial Relations and Advocacy Services for the applicant.

L. Piper on behalf of the respondent.

Hearing details:

2016.

Perth:

September 21.

 1 [2011] NSWIRComm 5 (18 February 2011).

 2   [2010] FWAFB 9985 at [30].

 3   Statement of P. Nugent at paragraphs 26 and 28.

 4   See [2010] FWAFB 9985 [28] to [30] and [2012] FWAFB 10080 at [52] to [54].

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