Ramsey Butchering Services Pty Ltd v Blackadder

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FEDERAL COURT OF AUSTRALIA

Ramsey Butchering Services Pty Ltd v Blackadder [2003] FCAFC 20

INDUSTRIAL LAW – reinstatement of employee pursuant to s 170CH(3)(a) of the Workplace Relations Act 1996 (Cth) – reinstatement by reappointment – whether reinstatement equates to restoring the contractual position only or whether it also requires the prior factual position to be restored – whether reinstatement requires employer to provide employee with work – no common law obligation on employers to provide employees with work – employee’s contract did not require employer to provide employee with work – nature of employment not such that employee’s career and prospects dependent upon performance of work – remuneration of employee not dependent upon amount of work performed by employee – enforcement of reinstatement order by injunction pursuant to s 170JC(3)(a) of the Workplace Relations Act 1996 (Cth).

WORDS & PHRASES – “reinstatement”, “reinstatement by appointing to the position”

Workplace Relations Act 1996 (Cth): ss 170CH(3)(a), 170EE(1)(a)(ii), 170JC(3)

QDSV Holdings Pty Ltd (t/a Bush Friends Australia) v Trade Practices Commission (1995) 59 FCR 301 referred to
Western Newspapers Pty Ltd v Warren (1994) 1 IRCR 393 cited
Australian Workers Union v Pioneer Concrete Pty Ltd (1991) 38 IR 365 discussed
Shop, Distributive and Allied Employees’ Association v Myer (NSW) Pty Ltd  (Macken J, Industrial Commission of New South Wales, 6 July 1983, unreported) discussed
Sutherland v Hills Industry Ltd (Keely J, 22 September 1982, unreported) discussed
Retail Traders Association of NSW v Shop, Distributive and Allied Employees’ Association of NSW (1990) 36 IR 38 referred to
Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240 considered
Qantas Airways Ltd v Cornwall (1998) 84 FCR 483 cited
Commonwealth Bank of Australia v Finance Sector Union [2002] FCAFC 193 cited
Repatriation Commission v Nation (1995) 57 FCR 25 cited
State Rail Authority of New South Wales v The Honourable Justice Bauer (1994) 55 IR 263 discussed
State Rail Authority of New South Wales v Tyrrell (1993) 49 IR 236 cited
State Rail Authority of New South Wales v Tyrrell (No 2) (1993) 51 IR 14 cited
King v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (2000) 109 FCR 447 referred to
Australian Paper Ltd v Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia (1998) 81 IR 15 discussed
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia(No 3) (1998) 195 CLR 1 referred to
Maritime Union of Australia v Geraldton Port Authority (2000) 106 IR 119 cited
Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434 cited
Miller v University of New South Wales (2002) 115 IR 404 cited
Cottrell v Wilcox [2002] FCAFC 53 referred to
Re Loty & Holloway v Australian Workers’ Union [1971] AR (NSW) 95 considered
R v Gough; Ex parte Cairns Meat Export Co Pty Ltd (1962) 108 CLR 343 cited
R v Portus; Ex parte City of Perth (1973) 129 CLR 312 cited
R v Gough; Ex parte Meat…

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Details
Case
[2003] FCAFC 20
Decision Date

CaseChat Overview and Summary

Ramsey Butchering Services Pty Ltd v Blackadder involved a dispute between an employer and an employee regarding the enforcement of orders from the Australian Industrial Relations Commission (AIRC) and the interpretation of an Australian Workplace Agreement (AWA). The case was heard by Madgwick J, who issued judgments on 10 and 21 May 2002, granting injunctive relief and imposing penalties on the employer for breaches of AIRC orders and the AWA. The employer, Ramsey Butchering Services Pty Ltd, appealed against the primary judge's findings of breaches and penalties, while the employee, Stephen Blackadder, cross-appealed the adequacy of the penalties and the primary judge's jurisdiction to make certain orders.

The central legal issues before the court were whether the employer had breached the AIRC orders and the AWA, and whether the primary judge had the authority to impose the penalties and issue the orders in question. The court needed to determine if the employer's actions in directing the employee to perform tasks outside his training and the subsequent requirement for a medical examination before reinstatement were in breach of the AIRC orders and the AWA. Additionally, the court had to consider if the primary judge had the power to impose the penalties and issue the orders for compliance and reimbursement of lost wages.

In resolving these issues, the court examined the terms of the AWA, the AIRC orders, and the applicable legislation. The court found that the employer had indeed breached the AIRC orders by directing the employee to perform tasks outside his training and requiring a medical examination before reinstatement, which was not a condition of the AIRC orders. The court also upheld the primary judge's jurisdiction to impose penalties and issue orders for compliance and reimbursement of lost wages, as these were within the scope of the authority granted by the relevant legislation. The penalties imposed were deemed adequate given the nature of the breaches, and the orders for compliance and reimbursement were necessary to enforce the AIRC orders and the AWA.

The final orders of the court were to allow the appeal in part by varying certain terms of the orders made on 21 May 2002, and to dismiss the appeal and cross-appeal otherwise. The court's decision upheld the enforcement of the AIRC orders and the AWA, while making slight modifications to the specific terms of the orders to ensure clarity and accuracy in their application.

Orders

Orders of the court

1. The appeal be allowed in part.

2. Paragraph 2 of the orders made on 21 May 2002 be varied by deleting the words “namely a boner performing chilled boning work in that part of the respondent’s premises known as the big boning room” and that pars 3 and 4 of the orders be set aside.

3. The appeal and cross‑appeal otherwise be dismissed.

Background

Background to the litigation

This is an appeal by Ramsey Butchering Services Pty Ltd (“the appellant”) and a cross-appeal by Stephen Blackadder (“the respondent”) from judgments of Madgwick J of 10 and 21 May 2002 issuing injunctive relief requiring compliance with orders of the Australian Industrial Relations Commission (“the Commission”), imposing penalties on the appellant for breaches of those orders and imposing penalties for breaches of the Ramsey Butchering Services Pty Ltd (Grafton Meatworks) Australian Workplace Agreement (“the AWA”). The appeal by the appellant, amongst other things, challenged the primary judge’s finding that it had breached orders of the Commission. The cross-appeal challenged the adequacy of the penalties imposed by his Honour and whether he had power to make two of the orders.THE BACKGROUND Much of the background was not controversial before the primary judge or on appeal. It was summarised by the primary judge in the following passage from his reasons when he gave judgment on 10 May 2002 (“the principal judgment”):The applicant, Mr Stephen Blackadder, is an employee of the respondent company. He was employed as a boner at the respondent’s abattoir at Grafton on 30 April 1998. Before his engagement the applicant completed a written application for employment in which he undertook, among other things:1. To work 5 days a week when required without the imposition of any bans or limitation and without stoppages.2. To work in accordance with the lawful requirements of the Company.3. …4. To work in accordance with Company directions.5. …”He also agreed that, if hired,“my continued employment may be contingent upon satisfactorily passing a physical examination at any time to establish my capability to properly or safely perform my duties.”He indicated that he had never suffered from a number of listed diseases and disabilities, including “wrist, elbow [or] shoulder … trouble”.Also before his engagement, Mr Blackadder was medically examined by a Dr Ford who declared him fit for heavy manual work and commented:“Slight (20%) limitation of (R) should rotation because of old (R) elbow dislocation → fibrosis here. Shoulder would be classified as normal.”The terms and conditions of employment were and are subject to the Ramsey Butchering Services Pty Ltd (Grafton Meatworks) Australian Workplace Agreement (“the AWA”). The AWA, evidently in a form common to a number of employees at the meatworks, was signed by the applicant on 20 April 1998 and registered with the AIRC on 23 October 1998.Prior to the respondent’s purchase of the meatworks, the applicant had worked as a boner for the former owners of the abattoir for approximately six years before it was closed in December 1997. The former owners, an entity described as Gilbertsons, closed the abattoir down, claiming substantial losses and that the abattoir was no longer profitable. The applicant acknowledged that under the Gilbertsons ownership there had been a history of industrial action including limitations, bans and work stoppages. In cross examination, the applicant acknowledged that among the problems was that a number of employees were on fixed duties, and had refused to undertake other duties they were not employed to do so.In early 1998 the respondent, under the control of Mr Stuart Ramsey, re‑opened the abattoir. The applicant acknowledged that Mr Ramsey’s intention was to avoid the types of industrial problems that had faced the previous owners. The meatworks were re-opened on the basis that there should be greater flexibility in the use of labour than previously. The intention to introduce flexibility into the workplace is reflected in the AWA. Subclause 35.9 of the AWA provides:“An employer may direct an employee to carry out such duties as are within the limits of an employee’s skill, competence and training: the employees will follow the direction.”While it may be inferred that the intention was to break down artificial distinctions between employees and develop a multi-skilled workforce, it is clear that employees were nevertheless not required to work outside their skill, competence and training. The terms of the AWA as properly construed would, of course, prevail over any inconsistent indication in other material that would have comprised or formed part of a common law contract.Until the events constituting termination of his employment, the applicant worked in what was referred to as the big boning room at the Grafton meatworks and principally performed hindquarter boning work. That work is performed on pre-chilled pieces of beef carcases. On 28 September 1999 the applicant arrived at work and was directed to leave that boning room and go to the slaughter floor to perform hot neck boning, a task he had not previously undertaken. This was the first time the respondent had directed him to undertake such work, and he had not been trained in it. Hot neck boning involves “freeing” the meat from the bones from the neck to the ribs. The applicant’s unchallenged evidence was that this requires greater rotational force and effort of both the wrist and elbow than general boning.The applicant refused to perform the task and left the premises shortly thereafter. Mr Blackadder’s reasons for refusing to undertake the work included that he had no prior experience or training in hot neck boning and that he was concerned about his right arm. As indicated above, the applicant has some restriction in his right shoulder due to earlier dislocations of his right elbow, such dislocations pre-dating his employment with the respondent. The applicant also believed he was being victimised for giving evidence, adverse to the respondent’s interests, to the AIRC on the previous day, 27 September 1999, in respect of another unlawful termination case concerning another employee of the respondent.On or about 25 October 1999 the applicant filed an application for relief pursuant to s 170CE of the Act with the AIRC alleging unlawful termination of his employment by the respondent on or about 5 October 1999. A hearing was conducted before Commissioner Redmond on 18 and 19 January 2000 and 17 February 2000.On 29 March 2000 Commissioner Redmond found that the respondent had terminated the applicant’s employment and that the termination was unfair, harsh and unreasonable, contrary to the Act’s requirements. The Commissioner found that, motivation aside, the direction itself was unreasonable and unsafe and directly resulted in the termination of the applicant’s employment. The Commissioner did not decide whether the applicant was being victimised for having given evidence.Pursuant to s 170CH of the Act, Commissioner Redmond ordered that the applicant be reinstated without loss of continuity of service or entitlements within 21 days. The respondent was also ordered to reimburse the applicant for all lost salary and entitlements from the date of termination to the date of reinstatement less an agreed amount for salary received by the applicant through alternative employment.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The primary judge then set out an extract from the reasons of the Commissioner. I will refer to those reasons later in this judgment. The primary judge continued with the background:On 3 May 2000 (after proceedings in relation to (an application to stay the order of the Commissioner)) the respondent advised the applicant by letter that he had been reinstated to his position as of 20 April 2000 but would not be required to report to work until he attended and passed a medical examination. The applicant was advised that he would continue to receive his wages, being his ordinary pay plus the average of the tally paid to all other boners in any given week, as well as receiving his other entitlements.In the letter, the respondent’s explanation for the requested medical examination was as follows:“My reason for excusing you from physical work until further notice is that arising from the proceedings before the Commission, and the tendering of the Medical Certificate from Dr Bacon, doubts exist as to your physical capacity to perform the duties of a boner not only in relation to the duties associated with Hot Necking on the Slaughterhouse Floor but more importantly your ability to bone in the Boning Rooms given the Osteoarthritis in your right elbow. As you are aware, an absolute duty is imposed upon the Company as to your health, safety and welfare at work. Until such time as I are able to ascertain your physical condition to bone I do not wish to expose you to any risk.”The reference to the “absolute duty” was plainly founded on s 15 of the Occupational Health and Safety Act 1983 (NSW) which provides that an employer “shall ensure the health, safety and welfare at work of all the employer’s employees”. (That 1983 Act has since been superseded by a later statute but the relevant requirement is unchanged.) Dr Bacon’s certificate was not in evidence before me.The applicant was subsequently directed to attend a medical examination with Dr Castagna in Casino on 5 May 2000. The applicant did not attend the appointment on the bases (as put by his union and solicitors) that· Commissioner Redmond’s order for reinstatement was not conditional upon a fresh medical examination;· the applicant was ready, willing and able to resume his pre‑termination boning work; · there had been no change in his medical condition since his employment by the respondent two years previously such as to warrant a further medical examination; and· the applicant’s solicitors further asserted that the respondent’s requirement had “little or nothing to do with any concerns … for the health, safety and welfare of this worker”.On 7 June 2000 the respondent advised the applicant that payment of the applicant’s wages would cease for failure to attend the arranged medical examination. The applicant received no wages from the week ending 11 June to the week ending 23 July 2000.On 26 July 2000 the applicant advised the respondent that he was willing to attend a medical examination. On 10 August 2000 the respondent advised the applicant that payment of his wages and other entitlements had recommenced as of 26 July 2000 and that another medical examination with Dr Castagna would be arranged. In fact, no advice of any such further examination was given to Mr Blackadder until on or about 30 January 2001, when the applicant was notified that an appointment with Dr Castagna had been arranged for 6 February 2001.On 18 September 2000 the respondent advised the applicant that as he had not yet passed the requisite medical examination he would be required to use all accrued leave entitlements from 16 October 2000 until the total hours were “completed and thereafter, the normal arrangements [would] continue”. The applicant had not sought nor consented to the utilisation of these accrued leave entitlements. Subclause 23.16 of the AWA includes:“In lieu of paying sick leave in accordance with the foregoing provisions of this clause, an employer may give such employee five days or ten days holiday, whichever is applicable, on full pay to be added to his/her period of annual leave, or may pay him/her in lieu thereof, five days or ten days [depending on length of service], whichever is applicable, additional full pay at the time the employee commences his/her period of annual leave; provided that payment for such leave may be made, if the employee so elects during the year as occasions direct and in such case any unexpired balance of sick leave shall be paid for at the time an employee commences his/her period of annual leave.”The applicant’s pay slips indicate that his accrued leave entitlements were utilised, by way of payment, as follows:Date of pay slip Leave 22 October, 29 October, 5 November 2000 - annual leave 12 November 2000, - annual leave, rostered days off19 November, 26 November 2000 - rostered days off30 November, 10 December 2000 - sick leave17 December 2000 - annual leave, rostered days off(and normal pay for 5 hours)On 21 December 2000 the applicant received his ordinary pay and his accrued leave entitlements were then said to include -0.53 hours in annual leave, 0.2 hours in rostered days off, and no accrued entitlement to sick leave.On 21 December 2000 the applicant was advised by the respondent that the meatworks would be closed from 22 December 2000 to 11 January 2001 and as his accrued leave entitlements were fully expended he would receive no further pay until the meatworks re-opened after the Christmas break. A similar shut-down period over the Christmas break had occurred at the meatworks in the previous two years of operation.On 6 February 2001, the applicant and his wife kept the appointment at Dr Castagna’s rooms. The examination did not, however, take place as Dr Castagna refused to proceed whilst the applicant’s wife was in attendance and the applicant declined to have her absent.On 16 February 2001 the respondent advised the applicant that payment of his wages would cease and would not recommence until he attended a medical examination. The applicant received no wages from the week ending 18 February to the week ending 18 March 2001. The applicant again advised the respondent on 23 February 2001 that he was willing to attend a medical examination.On 5 April 2001 the applicant underwent a medical examination by Dr Castagna. He has since continued to receive his pay and other remuneration from the respondent but has not returned to work. The circumstances of such payment do not constitute any admission by the respondent. Dr Castagna’s report was not in evidence as a result of a procedural ruling.The applicant has not undertaken full-time work at the meatworks since 28 September 1999. He has continued on a part-time basis to break horses, an activity that he had also performed prior to his termination, earning approximately one hundred dollars a week. He also continued to participate in the sport of camp drafting, occasionally earning prize money. The applicant claimed that this period of unemployment had had a detrimental effect on his skill and fitness levels. He also claimed that he had been denied the opportunity to contribute to the overall productivity of the boning team, which would have potentially increased the “overs” and wages paid.There was evidence before me that, after Mr Blackadder’s refusal to undertake the hot neck boning work, Mr Ramsey interceded to ask him to consider the consequences for his family and to change his mind.The respondent’s abattoir is the only meatworks in the Grafton district. The applicant, now aged 49 years, has lived the majority of his life in the district and has no desire to move away from the area for the purposes of employment.CONSIDERATION OF THE ISSUES BY THE PRIMARY JUDGE