State Rail Authority of NSW v Hon Justice Bauer

[1995] HCATrans 83

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S139 of 1994

B e t w e e n -

STATE RAIL AUTHORITY OF NEW SOUTH WALES

Applicant

and

THE HONOURABLE JUSTICE BAUER

First Respondent

THE INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES comprising THE HONOURABLE JUSTICE FISHER, THE HONOURABLE JUSTICE CULLEN and COMMISSIONER  TABBAA

Second Respondents

THE FULL INDUSTRIAL COURT OF NEW SOUTH WALES comprising THE HONOURABLE JUSTICE GLYNN, THE  HONOURABLE JUSTICE PETERSON and THE HONOURABLE JUSTICE MARKS

Third Respondents

LAURIE CECIL TYRRELL

Fourth Respondent

Application for special leave to appeal

MASON CJ
DEANE J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 18 APRIL 1995, AT 10.58 AM

Copyright in the High Court of Australia

_____________________

MR D.M.J. BENNETT, QC:   If the Court pleases, I appear with my learned friend, MR P.R. STERNBERG, for the applicant. (instructed by Billington McClure Lee)

MR P. MENZIES, QC:   If the Court pleases, I appear with my learned friend, MR B. HODGKINSON, for the fourth respondent. (instructed by McClellands)

MASON CJ:   Yes.  Now, there is a certificate from the Deputy Registrar that the Industrial Relations Commission submits to orders of the Court in this matter save as to costs.  Mr Bennett.

MR BENNETT:   Your Honours, this application involves two related but separate arguments of statutory construction which have a significant aeffect on industrial relations in New South Wales and Queensland. The first question can be seen by looking at the statutory provisions on pages 2 and 3 of our outline. Your Honours see on page 3, having dealt with the question of dismissal in relation to unfitness, section 154C deals with an application to the employer for reinstatement and:

If an injured employee is dismissed because he or she is not fit for employment in a position as a result of the injury received, the employee may apply to the employer for reinstatement to his or her former position.

That is defined by the next subsection as being:

the position from which the employer was dismissed; or

if the employee was transferred to a less advantageous position before dismissal -

that position at the option of the employee.  The words “at the option of the employee” have been omitted by accident..

Your Honours, in this case what happened was there was an injury, it led to a degree of incapacity and the injured worker was then put on light duties for many years.  Ultimately, as a result of an overall retrenchment policy, the employee was dismissed for unfitness for the original position.  It is clearly established now that the employee was always unfit for the original position, but fit for the light duties. 

The second question, which I will come to, is whether light duties are a position. But the primary question is the meaning of the words “in a position” in the second line of section 154C(1), and what has been held is that those words are capable of referring, not to the position held at the time of dismissal, but rather to the original position. So that if an injured employee is dismissed because of unfitness for an original position, or former position if you like, the employee can apply for reinstatement to his or her former position. The very short point is, as a matter of statutory construction, that involves reading “position” as if it said “former position”, when the very section itself draws a distinction between the two. The section is concerned with dismissal for unfitness and it is concerned with dismissal for unfitness for the position one is performing. That is the area of discourse in which we are working.

On the construction taken below, suppose one had an employee who the employer had in mind would ultimately be promoted to some future position.  If the employee is dismissed for unfitness in that future position, one could say that fell within the words “in a position” on the view taken, and in our respectful submission, the words “in a position” mean what they say:  the employee is dismissed because he is not fit for the employment the employee is carrying out in a position.  The first point we would submit is as simple as that.

The second point is the more important of the two points - I dealt with the other one first because it logically precedes it - but the second is the major point in the appeal.  That involves the question whether “light duties”, at the same remuneration and otherwise the same terms, can ever fall within the words of paragraph (2)(b).  And there are two reasons why it cannot:  the first is absolutely simple, straightforward and, in my respectful submission, unarguably correct, and that is that “light duties”, at the same salary, is simply not a less advantageous position.  Assuming it is a position, it is hardly less advantageous to be put on “light duties”.  There is simply no basis on which it could be said or found that that is less advantageous.  That proposition, we would submit, is so clear that it does not require repetition or adumbration.

McHUGH J:It may depend upon the nature of the employment,might it not?  Supposing somebody was a radio announcer and in the public eye, or a television announcer, and they were put on “light duties” in some position off screen.

MR BENNETT:   Well it is hard to see how that would be “light duties” in an industrial concept.  It is hard to see how a radio announcer could ever be on “light duties”.  The phrase ‑ ‑ ‑

McHUGH J:Well, perhaps they have got throat cancer or something; perhaps they just give them a clerical job, same salary.

MR BENNETT:   One might have an extreme case of that sort, but this is a normal case in the State Rail Authority where an employee is, because of a physical injury to an ankle, taken off the hard work and given “light duties” on the same terms.  Now, when it talks about less advantageous, it must be talking, we would submit, about advantageous in terms of salary or conditions; it cannot be less advantageous ‑ ‑ ‑

McHUGH J:Not necessarily.  It may be in relation to career path.

MR BENNETT:   Your Honour, in my respectful submission, there is no suggestion here that that was ‑ ‑ ‑

McHUGH J:No, I appreciate the facts of this case, Mr Bennett; I am just drawing issue with you on your general propositions.

MR BENNETT:   Your Honour, the case is a typical case for the concept of “light duties” and the general proposition has been put throughout that “light duties” is a less advantageous position and, in my respectful submission, it just clearly is not.

The second aspect concerns the meaning of the word “position” and my submission is that whatever meaning the word has, it is not something that you occupy when you are simply reduced to “light duties”; that is not occupying any different position.  That is made clear by subsection H, which talks about employing:

a person in the former position.

A “position” is something that can become vacant.  In the context of a large employer, like the Public Service, it is very easy; one has position No 2853.  In the case of a smaller employer, who has one or a small number of employees, it may be harder to define, but a “position” is something which is capable of being occupied, capable of being advertised perhaps, and which someone else can be employed in.  It is not a simple change of duties while the formal designation remains exactly the same.  And that, in my respectful submission, is common industrial usage and common English usage, and indeed, when one talks about “light duties”, the very nature of the phrase, as a matter of normal industrial usage, implies that one has the same position but does work of a less onerous kind.

One must add to that, of course, the policy of the legislation, which is to encourage employers to endeavour to rehabilitate employees and to encourage them in relation to matters such as “light duties”, and one would not lightly read this legislation as imposing, in effect, a sanction on an employer who offers an employee “light duties”.  So for that reason we would submit that the question of whether “light duties” can be a position is simply answered.  The result is that for both reasons, we submit, that the section simply cannot be read to achieve the result that was achieved here, the result here being that where an employee is given “light duties”, in this case for many many years, then is dismissed as part of a general retrenchment because of unfitness for the original position, the employee is able to provide a certificate that he is fit for “light duties”, not for the original position, but subsection (2)(b) is applied and the words “in a position” in subsection (1) are read as if they are meant in the former position.

Now the importance of the matter is demonstrated by the affidavit which your Honours have.  If your Honours go to pages 74 and 75 of the application book, your Honours will see the significance of this matter.

DEANE J:   Mr Bennett, how many hearings have there been so far in this matter?

MR BENNETT:   Four, your Honour.

DEANE J:   Four?

MR BENNETT:   Yes.

DEANE J:   Can you just tell me what they were?  Perhaps the time can be taken off while you tell me what they were; this is going to be a rather lengthy process, I think.

MR BENNETT:   I will not need that, your Honour.  It was first heard before Mr Justice Bauer, who is a member of the Industrial Relations Commission, then by the Full Industrial Relations Commission.  Your Honours can see perhaps most clearly from the front page of the application book, just running down the respondents.

DEANE J:   So there is Justice Bauer to the Full Commission.

MR BENNETT:   The Industrial Relations Commission, the Full Court.  Then to the Full Industrial Court and then to the Court of Appeal.

DEANE J:   What success has your client enjoyed to date?

MR BENNETT:   None, your Honour.

DEANE J:   So you are 10:nil against you.

MR BENNETT:   I am 10:nil so far, your Honour.  But, your Honour, there have been many cases ‑ ‑ ‑

MASON CJ:   Even if you were to succeed in the High Court, you would still be behind the score board, would you not?

MR BENNETT:   I would but, your Honour, there have been many cases in this Court where single judges and State courts of appeal have been 4:1 against ‑ ‑ ‑

DEANE J:   Except if we sat seven, you would be up to 7:10.

MASON CJ:   You would be getting closer.

MR BENNETT:   I would be getting closer.  But, your Honours, it is a point of statutory construction - or two points of statutory construction ‑ ‑ ‑

McHUGH J:   That seems a reason why we should not grant leave.  Does this procedure still apply, all these appeals, this process, that you can take all these steps, even today?

MR BENNETT:   As far as I am aware, your Honour.  But there are other areas of law where that happens.

McHUGH J:   .....was one in New South Wales but it is about time the legislature intervened, is it not?

MR BENNETT:   It happens with veterans’ review cases too, your Honour.  They go through a series of tribunals, then the Administrative Appeals Tribunal, then the Federal Court and then ultimately here.  There are a number of areas where that happens and it is unfortunate.  But that, of course, is something inherent in the legislation.  But it does not detract ‑ ‑ ‑

McHUGH J:   It is legislation that seems in need of urgent reform.

MR BENNETT:   Your Honour would be aware there would be political difficulties of interfering with this legislation for any government.  But if I can just show your Honours what is said on pages 74 and 75.  There were 3,300 employees on selected duties of whom 1,012 since 1988 have been included in the rehabilitation programme.  We are down now to 263 employees in that category.  Then there are various numbers set out in the next paragraphs.  There have been inquiries about this case.  The workforce has been reduced from 36,788 to 21,000 currently and the result is that there could be an obligation to re-employ up to 2,000 ex-employees.  Apart from legal costs - which one assumes are much in the same league - there is a possibility of paying up to $44 million per annum for employees for whom no meaningful work can be provided.  That would require us to adopt a scheme of forced redundancy with extensive industrial upheaval and the decision could affect up to 10 per cent of the workforce of the State.  There is similar legislation in Queensland so it affects at least two States.

So we would submit the questions are of importance.  It is a very short, simple appeal.  It is a half-day appeal.  In my respectful submission, bearing those matters in mind, it is an appropriate case for a grant of special leave.  May it please the Court.

MASON CJ:   Thank you, Mr Bennett.  The Court need not trouble you, Mr Menzies.

The questions sought to be raised in the proposed appeal are questions of statutory construction depending upon the meaning of the words used in section 154C of the Industrial Arbitration Act 1940 (NSW) but they are questions which involve no matter of general principle. As such, the case is not appropriate for the grant of special leave. We would add that the many members of the courts below have been unanimous in reaching a conclusion adverse to the applicant. The application is therefore refused.

Do you apply for costs, Mr Menzies?

MR MENZIES:   Inasmuch as it is now 13:nil, yes, your Honour.

MR BENNETT:   I have no submission to make.

MASON CJ:   The application is refused with costs.

McHUGH J:   It is only 10:nil, Mr Menzies.  We did not deal with the merits.

AT 11.15 AM THE MATTER WAS CONCLUDED