1
Fair Work Act
2009
s.604 - Appeal of decisions
Mr Darrin Grant
v
BHP Coal Pty Ltd
(C2014/3771)
SENIOR DEPUTY PRESIDENT
RICHARDS
DEPUTY PRESIDENT ASBURY
COMMISSIONER BOOTH
BRISBANE, 18 JUNE 2014
Appeal against decision [2014] FWC 1712 of Commissioner Spencer at Brisbane on 14
March 2014 in matter number U2013/10299 - power to direct a coal mine worker to attend a
medical appointment for a functional assessment - Coal Mine Health and Safety Act - Coal
Mine Health and Safety Regulation - not unlawful and reasonable directions
[1] This matter concerns an appeal against a decision by Commissioner Spencer in [2014]
FWC 1712 to dismiss the application under s.394 of the Fair Work Act 2009 (“the FW Act”)
by Mr Darrin Grant (“the Appellant”), who is represented by the CFMEU. The Appellant
was dismissed by BHP Coal Pty Ltd (“the Respondent”) from its Peak Downs Mine (“the
mine”) on 17 May 2013. The facts as set out in the decision can be summarised as follows.
[2] The Appellant performed duties as a boilermaker for over nine years at the mine, and
also performed the role as an area delegate of the CFMEU of the field crew (maintenance).
[3] At sometime around October 2011 the Appellant sustained an injury to his right
shoulder in the course of his duties. The Appellant re-injured himself subsequently on what
was said in the decision to be “a number of occasions”, which occurred both inside and
outside of work.
[4] The Appellant was on extended sick leave on or about 23 July 2012 whilst receiving
treatment for his shoulder injury. In September 2012 the Appellant underwent shoulder
surgery.
[5] On 27 March 2013 the Appellant informed the Respondent that he was fit to return to
his pre-injury duties. He provided a medical certificate to this claimed effect. That medical
certificate was signed by a Dr Bastable, a medical practitioner at the Mater hospital in
Mackay, who the Appellant had regularly seen over the course of his injury. Dr Bastable’s
medical certificate stated the Appellant was “fit to return to his normal duties as and from
Monday April 1st 2013”.
[2014] FWCFB 3027[Note: refer to the Federal Court decision dated 10
March 2017 [2017] FCAFC 42 for result of appeal][Refer to the High
Court decision dated 15 June 2016 [2016] HCASL 130]
DECISION
E AUSTRALIA FairWork Commission
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCASL/2016/130.html
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2017/2017fcafc0042
[2014] FWCFB 3027
2
[6] The Appellant had also submitted a medical certificate to the Respondent issued by Dr
Cutbush, an orthopaedic surgeon who conducted shoulder surgery on the Appellant. Dr
Cutbush’s medical certificate stated that the Appellant was fit to return to full duties as of 30
May 2013.
[7] The Respondent was not satisfied on the basis of the generalised medical certificates
before it that the Appellant could safely resume his pre-injury duties following an 8 month
long absence, during which the Appellant had undergone surgery. The Respondent required
the Appellant, on the advice of its HR staff, to attend its nominated medical specialist for a
functional assessment test before being assigned duties. The Appellant was not required to
attend work and was paid in full for the duration of this process.
[8] The Appellant and the Respondent then entered into communications in which there
was a contest as to the authority upon which the Respondent was acting. The Respondent -
through Mr Gustafson, the field maintenance superintendent at the mine - said that it was
acting under the Coal Mining Safety and Health Act 1999 (Qld) (“the CMSH Act”). The
Appellant gave evidence that Mr Gustafson explained to him on 3 April 2013 that the reason
for his (Mr Gustafson’s actions) was that:
“I’ve got an obligation under the Coal Mining & Health Act to ensure the safety of
our people on the mine. We just have to make sure that we don’t send you out on the
mine, particularly after you’ve had such an extensive time off. You may re-injure
yourself at work.”1
[9] The Appellant sought particularisation of the section under the CMSH Act that Mr
Gustafson was acting, and Mr Gustafson replied that it concerned the “obligations of a coal
mine operator”. No further particularisation was provided.
[10] The Appellant contended in reply that clause 18 of schedule BMA Enterprise
Agreement 2012 (“the agreement”), which relates to a return from work from a non-work
related injury, only required the presentation of a medical certificate from an employee's
medical practitioner prior to returning to work in relation to a non-work-related injury. Mr
Gustafson was of the view (in response) that his obligations under CMSH Act overrode any
term of an enterprise agreement.
[11] The Appellant was at all times represented by the CFMEU. The Appellant took the
view that the matter was now in dispute, under the terms of the agreement, for the reason that
he had been stood down without adequate explanation or authority.
[12] On 10 April 2013, the Appellant received an e-mail directing him to attend a medical
appointment on 17 April 2013. The appointment was arranged with a visiting medical
practitioner, Dr McCartney, who was trained as an occupational physician and had specific
knowledge of the Respondent’s mine operations. The e-mail directed to the Appellant read, in
part, as follows:
“As discussed I require you to attend a medical examination so that I can understand
any limitations with respect your fitness to work, and how this impacts on your ability
1 Exhibit 1 at [62].
[2014] FWCFB 3027
3
to perform your substantive position as mine employee – boilermaker at Peak Downs
mine.
I would like to take this opportunity to reinforce that we remain committed and
focused on ensuring your safety at work. BMA has a duty of care to provide all
employees with a safe working environment and given your injury, we need to be
satisfied that you can safely perform the inherent requirements of your role.”2
[13] Mr Gustafson continued to remind the Appellant that he was subject to a direction to
attend the medical appointment and that failure to comply with a reasonable direction would
give rise to a disciplinary review. On 17 April 2013, at 7:55 AM, Mr Gustafson left a voice
message on the Appellant's mobile phone in the following summary terms:
“[...] Just making sure that you got that direction that you need to attend that medical
examination today from the specialist we're flying up from Brisbane. [...].”3
[14] Upon receiving this message the Appellant entered into a series of text exchanges with
Mr Gustafson questioning the basis of his ‘stand down’ suggesting he had further questions
about the doctor’s appointment for that day.
[15] Then again on the same day at 10 AM (an hour before the appointment with the
medical practitioner), Mr Gustafson sent this text message:
Hey Darrin it’s Bill from Peak Downs again. Hey with regards to your doctor
appointment I’m going to ask you for the fourth time, we required you to attend so I
am giving you a directive to attend a doctor appointment at 11 o'clock. Failure to do
that will be reviewed and considered a failure to comply with a reasonable direction
[...] And as far as the disputes go, we have had nothing put in dispute. [...] If you have
any other concerns, please call, bye.4
[16] Throughout this period, when the Appellant had contact with various employees of the
Respondent he requested to record the conversations. All but Dr McCartney did not agree to
have the conversations recorded. There was no evidence that the Appellant recorded any
conversation without the agreement of the other parties.
[17] The Appellant sought to attend the mine site on 15 April 2013, despite the
Respondent's directions. The Appellant was denied access to the site until he had undertaken
the functional assessment.
[18] The Appellant did not attend the medical appointment as booked for him and as he
was advised. He claimed he did not do so because Dr McCartney indicated to him - upon the
Appellant telephoning him some five minutes prior to the appointment from the car park at
the doctor’s practice - that it was a matter for him (the Appellant) if he wished to bring along
any x-rays, CT or MRI scans that he had in his possession, or if he did not have them but he
wanted to bring them along, he could reschedule his appointment.
2 Exhibit 1 at Annexure DG7.
3 Exhibit 1 at [99].
4 Ibid at [106].
[2014] FWCFB 3027
4
[19] The Appellant elected to reschedule and telephoned Mr Gustafson accusing him of
neglecting to inform him that he needed to bring along x-rays and scans.
[20] When the Appellant was asked how long it would take him to obtain his x-rays and
scans he responded, “a month”. The Appellant argues that he said this jokingly at the time,
but admitted - in his written statement - his comment caused Mr Gustafson considerable
anxiety.
[21] According to Mr Gustafson, the Appellant was asked to stay available for purposes of
being contacted about a rescheduled appointment.
[22] At 12:19 PM on 17 April 2013, Mr Gustafson left a message on the Appellant's mobile
voicemail bank informing him that his medical appointment had been rescheduled for 1:30
PM that day, and that it was not necessary to have the scans and x-rays in his possession at the
time. There is further comment on the evidence in relation to this matter below.
[23] At 12:28 PM the Appellant sent a text message to Mr Gustafson informing him that he
was receiving too many communications from him and that all future correspondence and
communications should be directed to his union delegate.
[24] The Appellant contended that this text message to Mr Gustafson was not a reply to the
voicemail message of 12:19 PM that day (some 10 min prior) and that he had in fact not
become aware of the voicemail message until much later that afternoon, thereby causing him
to miss the rescheduled medical appointment.
[25] There is evidence, however, that the Appellant had been in communication with his
CFMEU representative before the rescheduled time of the medical appointment and advised
him of the rescheduled appointment. That evidence suggests that the Appellant, far from not
becoming aware of the rescheduled appointment until later in the afternoon, actually had
knowledge of the new time, and simply decided not attend the appointment.
[26] At a later point, the Appellant attended a medical practitioner of his own choice who
was not his treating practitioner over the course of his injury and did not have any access to
the Appellant’s x-rays and scans. That medical practitioner provided an “interim” report
which was conditional on a review against a risk profile of the Appellant’s position. In
attending this medical practitioner, the Appellant acted on the advice of his union
representative.
[27] Upon being advised that the Appellant had not attended the rescheduled medical
appointment, Mr Gustafson requested that the Appellant attend a meeting for the purpose of
investigating the Appellant’s conduct. The Appellant was also informed that he was
suspended on full pay. The meeting took place on 22 April 2013.
[28] The Appellant attended the meeting with his CFMEU representative. The Appellant
did not answer any questions regarding his conduct in not attending the medical practitioner
appointments. Instead, the Appellant stated that he would not answer any questions unless
they were placed in writing. The Appellant asked for a list of questions. Mr Gustafson stated
that he did not have very many questions and did not have a list. The only question that was
asked was, “can you run through what happened last Wednesday?” No reply was given. The
meeting ended on that basis.
[2014] FWCFB 3027
5
[29] The CFMEU made steps to lodge a dispute application with the Respondent about the
treatment of the Appellant. That notification occurred on 23 April 2013, the day after the
interview referred to above.
[30] On 26 April 2013 the Appellant was asked to attend a further meeting, to be held on
30 April 2013. At this further meeting the Appellant was provided with a show cause letter to
which the Appellant was asked to respond by Friday, 3 May 2013.
[31] The central thrust of the show cause letter was that the Appellant had failed to follow
lawful and reasonable directions to attend a medical appointment, and that this had
undermined the trust and confidence between the Appellant and the Respondent. The show
cause letter also made reference to the conduct of the Appellant in “taping conversations
without the consent of other parties”.
[32] The Appellant responded to the show cause letter on 6 May 2013, and claimed that the
direction to attend a medical assessment was unlawful and unreasonable. A further meeting
was convened and at that time the Appellant’s employment was terminated.
[33] The termination letter provided to the Appellant set out a number of reasons for the
dismissal of the Appellant. In summary, those reasons include that the Appellant:
refused to attend the original appointment with Dr McCartney on 17 April 2013 as
well as the rescheduled appointment, after being directed to attend, and after having
been warned that failure to attend would result in disciplinary action;5
refused to participate in answering questions during the investigation interview with
Mr Gustafson on 22 April 2013 and that his attitude during the meeting was
uncooperative, and that he had failed to treat Mr Gustafson with courtesy and respect;6
and
on numerous occasions taped conversations without the consent of work colleagues.7
Commissioner's view on whether there was a power to direct an employee to attend at a
medical practitioner
[34] The Commissioner, initially, rejected the Appellant’s argument and adopted the
Respondent’s submission that it properly relied upon an implied grant of power arising from
s.39 of the CMSH Act, which is set out further below.
[35] Thus, the Commissioner found the employer had a power to give a lawful direction to
the Appellant to attend a medical assessment. The Commissioner subsequently also
determined that the direction was not only lawful (if more was needed) but reasonable in the
circumstances, given that: the Appellant had not performed duties on the mine for an eight
month period; his duties involved heavy manual labour; he had undergone surgery on his
shoulder and associated rehabilitation (the details of which had not been disclosed); the
5 Ibid at Annexure DG18.
6 Ibid.
7 Ibid.
[2014] FWCFB 3027
6
medical certification of the Appellant’s fitness for work was couched in broad or general
terms; and the doctor to whom the Appellant was referred by the Respondent was a specialist
occupational physician working with experience in the setting of the mining industry, and the
Respondent's site in particular.
Valid reason
[36] Having established that the Respondent could reasonably and lawfully give a direction
requiring the Appellant to attend a medical assessment, the Commissioner then proceeded to
give consideration to wider aspects of the Appellant’s conduct for purposes of establishing
whether there was a valid reason for the dismissal. In so doing, the Commissioner made a
series of findings and gave consideration to a series of matters in reaching an ultimate
conclusion.
[37] The Commissioner considered that the Appellant's conduct in seeking to record
telephone conversations with employees of the Respondent, amongst others, was a concern
that she had taken into account “in terms of other relevant factors in this matter”.8 The
Commissioner did not find that the conduct in relation to the recordings was conduct that
could found a valid reason for the dismissal of the Appellant.
[38] The Commissioner considered the circumstances of the reasonableness of the direction
to require the Appellant to attend on a medical practitioner to ensure that the Appellant was
medically fit to resume his duties at the mine. The Commissioner considered that the various
medical certificates that had been supplied to the Respondent were in a generic form and did
not disclose over the lengthy period of the Appellant’s absence the nature of the injury or the
rehabilitation measures undertaken (as mentioned above).
[39] The Commissioner found that “this situation alone would reasonably have caused the
Respondent to seek further information, before allowing the Appellant onto the mine site to
perform potentially dangerous work, in an inherently dangerous workplace.”9 The
Commissioner went on to observe:
“This necessity to confirm the fitness for duty should have been reasonably apparent
to any reasonable person returning to work on mine site, who had experience in
working in mines.”10
[40] The Commissioner also concluded that:
“I am satisfied that the Respondent was reasonable in requiring the Applicant to
attend upon Dr McCartney. The Respondent relied upon the opinion of Dr McCartney
as he was specifically trained as an occupational physician, and possessed the
knowledge of the Respondent’s operations. That is, his area of medical expertise being
the interaction between medicine and the workplace.”11
8 Darrin Grant v BHP Coal Pty Ltd [2014] FWC 1712 at [96].
9 Ibid at [112].
10 Ibid at [112].
11 Ibid at [117].
[2014] FWCFB 3027
7
[41] The Commissioner went on to consider the circumstances of the failure to attend the
first (11.30 am) appointment with Dr McCartney and concluded that the Appellant had
intentionally avoided participating in the medical examination. The Commissioner noted that
the Doctor had travelled to Mackay for the appointment.
[42] The Commissioner also concluded that the Appellant had intentionally missed the
(second) rescheduled appointment with Dr McCartney as well. She accepted Mr Gustafson’s
evidence that the Appellant was to expect further information about the rescheduled
arrangements. The Commissioner found “illogical” the fact that the Appellant claimed he
nonetheless simply missed Mr Gustafson’s voice message, particularly in circumstances in
which he “had been specifically warned that disciplinary action may result” should he not
attend the appointment.12
[43] Having so found, the Commissioner concluded that:
“On the evidence the failure of the Applicant to attend upon Dr McCartney, on both
occasions, formed part of the valid reason for the dismissal.”13
[44] The Commissioner also found that the Appellant “unreasonably refused to co-operate
and participate in the investigation process, whereby he refused to respond to questions from
the Respondent, unless the questions were first committed to writing by the Respondent.”14
[45] The Commissioner found that the issues at hand were relatively straightforward and
that the Appellant’s request that every question be put in writing “unreasonably” restricted the
interview process and constituted a refusal to participate in that process.15
[46] The Commissioner found that the Appellant's position “gave further insight into” his
“approach to the employment relationship”, and was satisfied “that this refusal to participate
in investigation process formed part of a valid reason for the dismissal”.16
[47] The Commissioner’s findings in relation to s.387(b) through to s.387(e) of the FW Act
were uncontroversial.
[48] The Commissioner, when discussing the requirements of s.387(g) of the FW Act
considered that there had been deficiencies in the communications between the Appellant and
the Respondent in the period leading up to the dismissal. This was particularly so in respect of
“the lack of explanation for the medical attendance, which could have reasonably been
provided with some further clarity”.17 The Commissioner was here referring to the absence of
a precise statutory reference by Mr Gustafson or any of the Respondent’s managers to the
power to refer the Appellant to a medical practitioner other than by a generalised reference to
“the CMSH Act”, and an early reference to the PPI policy.
12 Ibid at [123].
13 Ibid at [125].
14 Ibid at [126].
15 Ibid at [127]-[128].
16 Ibid at [128]-[129].
17 Ibid at [134].
[2014] FWCFB 3027
8
[49] The Commissioner returned to this theme in considering the requirements of s.387 (h)
of the FW Act and further commented that she could “see no reason why the Respondent
could not have clearly explained to the Applicant and his representatives, the basis of their
responsibilities and associated concerns regarding the nature of the medical information (or
lack of) that they had available to them, regarding the Applicant's fitness to work.”18
[50] For the purposes of s.387(h) of the FW Act the Commissioner found in summary as
follows:
That the Appellant attended at the mine upon return from his injury and lengthy
absence (on 2 April 2013) despite being aware he had not properly communicated the
details of the date of his expected return to the Respondent;19
The Appellant attended at the mine on 16 April 2013 despite having been directed not
to attend the mine until he had been declared fit to resume his former duties by the
Respondent's nominated medical practitioner;20
The Appellant had “felt it necessary to record various conversations and messages, in
circumstances where there was no evidence presented of any previous dubious or
deceptive actions [...] on the part of any persons representing the Respondent”.21
[51] The Commissioner also took into account that the Appellant had made a statement of
claim (dated 1 October 2013) in a WorkCover application declaring that he had a “20%
impairment”, despite his claims that he was fit to resume his duties and no further medical
evaluation was warranted. The statement of claim declared that the Appellant “suffers pain
and is restricted in his movement”. The Commissioner noted that the Appellant declined an
opportunity to provide evidence on this matter and that it was open to her to infer that
evidence in relation to “the WorkCover claim would not have assisted his case”.22 No other
finding was made in relation to this matter.
[52] Having set out the evidence before her and considered the various requirements of the
Act the Commissioner concluded as follows:
“In summary terms, the aggregate of the Applicant's conduct in relation to the failure
to follow the lawful and reasonable directions – specifically the failure to attend the
medical assessments – and his unreasonable refusal to participate in the disciplinary
investigation formed a valid reason for dismissal.”23
[53] The Commissioner consequently dismissed the application under s.394 of the FW Act.
18 Ibid at [138].
19 Ibid at [136].
20 Ibid at [135].
21 Ibid at [137].
22 Ibid at [145].
23 Ibid at [148].
[2014] FWCFB 3027
9
Relevant appeal principles
[54] The Full Bench in Bluescope Steel Limited v Peco Sirijovski24 recently set out the
principles applicable to this appeal. Those principles are as follows.
[23] An appeal under s.604 of the Act involves an appeal by way of rehearing, with
the powers of the Full Bench being exercisable only if there is error on the part of the
primary decision-maker: see Coal and Allied Operations Pty Ltd v Australian
Industrial Relations Commission. The majority of the High Court in that case
explained in the following passage how error may be identified where a discretionary
decision is involved:
“Because a decision-maker charged with the making of a discretionary
decision has some latitude as to the decision to be made, the correctness of the
decision can only be challenged by showing error in the decision-making
process (See Norbis v Norbis (1986) 161 CLR 513 at 518-519). And unless the
relevant statute directs otherwise, it is only if there is error in that process that
a discretionary decision can be set aside by an appellate tribunal.”
[24] The errors that might be made in the decision-making process were identified, in
relation to judicial discretions, in House v The King in these terms:
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant
matters to guide or affect him, if he mistakes the facts, if he does not take into
account some material consideration, then his determination should be
reviewed and the appellate court may exercise its own discretion in
substitution for his if it has the materials for doing so”; and
“It is not enough that the judges composing the appellate court consider that, if
they had been in the position of the primary judge, they would have taken a
different course. It must appear that some error has been made in exercising
the discretion...”
[25] An appeal under s.604 of the Act may only be pursued with the permission of the
Commission. Section 604(2) requires the Commission to grant permission to appeal if
it is satisfied that it is in the public interest to do so. However, there is a note following
the subsection to the effect that this does not apply in relation to an application to
appeal from an unfair dismissal decision (see s.400).
[26] The effect of s.400 is twofold. Firstly, the Commission may only grant permission
to appeal from an unfair dismissal decision where it considers it is in the public
interest to do so (s.400(1)). Secondly, an appeal of an unfair dismissal decision, to the
extent that it is an appeal on a question of fact, may only be made on the ground that
the decision involved a significant error of fact (s.400(2)).”25 [Citations removed]
[55] We adopt this approach.
24 [2014] FWCFB 2593.
25 BlueScope Steel Limited v Sirijovski [2014] FWCFB 2593 at [23]-[26].
[2014] FWCFB 3027
10
Grounds for appeal
[56] The Appellant argues that the Commissioner erred in her ultimate finding on the
following grounds (somewhat re-ordered from their original expression):
1. The Commissioner erred in finding that the direction of the Respondent that
the Appellant attend a medical assessment on 17 April 2013 was lawful;
2. The Commissioner erred in finding that the direction of the Respondent that
the Appellant attend a medical assessment on 17 April 2013 was reasonable;
3. The Commissioner erred in finding that the Respondent had a valid reason for
terminating the employment of the Appellant for refusing to attend a medical
assessment on 17 April 2013;
4. The Commissioner failed to take into account the relevant consideration that
the Appellant had disputed the lawfulness and reasonableness of the Respondent’s
direction that he attend a medical appointment under disputes procedure in the BMA
Enterprise Agreement 2012 before 17 April 2013 and that dispute had not been dealt
with in accordance with the procedure;
5. The Commissioner took into account an irrelevant consideration by relying
upon the Appellant’s conduct of seeking to record telephone conversations in
circumstances where the Respondent had abandoned any reliance upon that conduct;
6. The Commissioner erred in finding that the Appellant’s conduct in asking to
record conversations undermined the employment relationship in the obligation of
mutual trust and confidence;
7. The Commissioner erred in failing to take into account the reasons that the
Appellant requested that he be provided with the questions he was to be asked in a
disciplinary interview;
8. The Commissioner erred in taking into account an irrelevant consideration by
relying upon the Appellant’s attendance at the mine on to April 2013;
9. The Commissioner erred in taking into account an irrelevant consideration that
the Appellant’s claim under the Workers Compensation and Rehabilitation Act 2009
included a claim concerning permanent impairment;
10. The Commissioner erred in finding that the claim concerning permanent
impairment meant that the Appellant was not fully fit to return to the workplace
[2014] FWCFB 3027
11
Appeal Grounds 1 and 2: The Commissioner erred in finding that the direction of the
Respondent that the Appellant attend a medical assessment on 17 April 2013 was lawful
and reasonable
Lawfulness of direction
[57] In relation to these grounds, the Appellant contends that the Commissioner wrongly
determined that the direction to attend a medical practitioner given to the Appellant by the
Respondent was lawful.
[58] The Appellant contends that the direction given by the Respondent was not available
as a matter of law and the Respondent was not able, as a consequence, to direct the Appellant
in the relevant matter by way of a contractually-derived command. This was because there
was no necessary basis on which to imply a further term into the contract of employment
because the rights afforded under the employment relationship, the relevant statutes (the
CMSH Act and Coal Mining Safety and Health Regulation 2001 (Qld) (“CMSH
Regulation”)) and the BMA Enterprise Agreement 2012 (“the Agreement”) covered the
field.
[59] The Appellant considered that the Respondent’s direction that the Appellant attend on
a medical practitioner was, for the reasons stated, neither lawful nor reasonable because the
direction did not conform to the health assessment command that the Respondent could
lawfully issue under the industry specific legislative framework embodied in the CMSH Act
and the CMSH Regulation.
[60] The Appellant contended that one of the objects of the CMSH Act is “providing for
the health assessment of coal mine workers”. The legislative framework, it was said, is for the
purposes of limiting the risk of harm to employees and others at coal mines to an acceptable
level, but does not require an absolute standard of risk management (such as guaranteeing
safety and health of those concerned).
[61] It was further contended that the CMSH Act sets out the way that an acceptable level
of risk may be managed by way of a prescribed process under the CMSH Regulation.
[62] The Appellant argued that in respect of health assessments of coal mine workers the
object of the Act referred to above is to be achieved by two prescribed processes. The first of
these was a health assessment of a worker's physical or psychological impairment as provided
for by a physical and psychological impairment protocol established under the mine safety
and health management system (under s.42 of the CMSH Regulation) and as authorised in the
manner set out in Chapter 2 Part 6 (Fitness for Work) Division 1 (General).
[63] The method of authorisation of such a protocol is contingent upon the support of a
majority of the coal mine workers. The obligation falls upon the senior site executive (SSE) to
implement such a protocol.
[64] A further method of achieving the relevant object of the Act is by way of chapter 2
Part 6 (Fitness for Work) Division 2 Subdivision 3 (Health Assessments and Health
Monitoring) and in particular s.46 of the CMSH Regulation.
[2014] FWCFB 3027
12
[65] The Appellant contended that there are no other means of managing the relevant risks
other than through these two avenues as set out in the CMSH Regulation. So far as the
Respondent sought to rely upon s.39(c) of the CMSH Act it was in error because such
“general” provisions are set aside by the specific provisions of the Regulation. It is only by
the specific provisions of the Regulation that the Respondent is authorised to request the
Appellant to attend a medical examination.
[66] The Respondent does not have a physical or psychological impairment (“PPI”)
protocol in place that is authorised in a manner required by the CMSH Regulation (which
requires the consent of a majority of employees).
[67] The Respondent cannot therefore rely upon such a protocol for purposes of directing
an employee to attend upon a medical practitioner. That is, the Respondent did not invoke
Chapter 2 Part 6 (Fitness For Work) Division 2 of the CMSH Regulation. The
Commissioner's decision did not rely upon it, either.
[68] It was also argued that the Respondent had no implied contractual power to direct the
Appellant to undertake a medical assessment.
[69] Thus the Appellant argues that issues about fitness for work are resolved through the
regulatory mechanisms and not through “some general obligation of persons under s.39(c)” of
the CMSH Act.26 The Appellant therefore contends that there was no statutory basis for the
direction to attend at a medical practitioner to determine fitness for work; there was no
necessity for a term to be implied into a contract of employment; and no other power arose
from the operation of the applicable Agreement.
[70] The Appellant considered this reasoning to reflect the conclusion reached by Her
Honour Justice Atkinson in Edwards v North Goonyella Coal Mines Pty Ltd (“Re Edwards”).
27 In this case the employer sought to require an employee to undergo an additional medical
examination and sought from the Court a declaration that it had had a power to direct an
employee to do so. Atkinson J found:
“[33] The employer does have the power to provide for assessments for physical or
psychological impairment in fitness provisions developed under s 42(6). However
North Goonyella has not developed any relevant fitness provisions. If it had, there may
have been the power to make the direction it did. Absent that, there is no power found
in the Regulation for the employer to require a coal mine worker to undergo further
medical tests.”28
[71] The Appellant also relied upon the judgement of Justice McMeekin of the Supreme
Court of Queensland in M v P, who observed that:29
“[71] The decision in Edwards is to the effect that the employer at least one governed
by the provisions of the Act has no other right to insist on any medical examination
[...].”
26 Transcript of Proceedings, 19 December 2013, at PN1671.
27 [2005] QSC 242.
28 Ibid at [33].
29 [2011] QSC 350 at [71].
[2014] FWCFB 3027
13
[72] The Appellant also took the bench to the judgement of the Court of Appeal of the
Supreme Court of Queensland in Mattson v Parker,30 where the Court, in upholding the
appeal in M v P,31 stated that:
“[52] The Regulation provides for a coal mine safety and health management system
to include risk identification and assessment; hazard analysis; and management
control. Its pt 6 deals with fitness for work in coal mines. Chapter 2 pt 6 div 1 is
concerned to limit the risk of workers endangering themselves or others at coal mines
whilst under the influence of alcohol or drugs or through other physical and
psychological impairments. All this makes clear that the Act and regulation have the
commendable purpose of limiting the risk of harm to those at coal mines to an
acceptable level. This is to be achieved by ways of including health assessment of
workers aimed at detecting, relevantly, workers physical impairments with the
potential to cause injury to the workers or others at the coal mine.”32
Commissioner’s decision
[73] The Commissioner found that the Respondent has a right to direct the Appellant to
attend a medical appointment for the purposes of demonstrating his fitness for work with the
Respondent not by way of a contractual term, but because of the scope of power under s.39 of
the CMSH Act, which included the power, in the case of Mr Grant, to require him to attend a
medical practitioner nominated by the Respondent.
[74] The argument here, in essence, is that s.39(1) of the CMSH Act empowers the
Respondent to take reasonable steps to ensure that an employee was not exposed to an
unacceptable level of risk in the workplace. This was the critical finding by the
Commissioner, and that finding is pivotal to this appeal.
[75] Section 39(1) of the CMSH Act provides as follows:
39 Obligations of persons generally
(1) A coal mine worker or other person at a coal mine or a person who may affect the
safety and health of others at a coal mine or as a result of coal mining operations has
the following obligations—
(a) to comply with this Act and procedures applying to the worker or person
that are part of a safety and health management system for the mine;
(b) if the coal mine worker or other person has information that other persons
need to know to fulfil their obligations or duties under this Act, or to protect
themselves from the risk of injury or illness, to give the information to the
other persons;
30 [2012] QCA 271.
31 [2011] QSC 350.
32 Ibid at [52].
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(c) to take any other reasonable and necessary course of action to ensure
anyone is not exposed to an unacceptable level of risk.
(2) A coal mine worker or other person at a coal mine has the following additional
obligations—
(a) to work or carry out the worker's or person's activities in a way that does
not expose the worker or person or someone else to an unacceptable level of
risk;
(b) to ensure, to the extent of the responsibilities and duties allocated to the
worker or person, that the work and activities under the worker's or person's
control, supervision, or leadership is conducted in a way that does not expose
the worker or person or someone else to an unacceptable level of risk;
(c) to the extent of the worker's or person's involvement, to participate in and
conform to the risk management practices of the mine;
(d) to comply with instructions given for safety and health of persons by the
coal mine operator or site senior executive for the mine or a supervisor at the
mine;
(e) to work at the coal mine only if the worker or person is in a fit condition to
carry out the work without affecting the safety and health of others;
(f) not to do anything wilfully or recklessly that might adversely affect the
safety and health of someone else at the mine.
[76] As mentioned above, the Commissioner relied upon these provisions (and particularly
s.39(1)(c) of the CMSH Act) as establishing a duty, or expressing an implied grant of power
to the Respondent to ensure that workers are not exposed to unacceptable levels of risk. That
is, the Commissioner accepted the Respondent’s argument that it had a power to effect a
course of action in order to discharge the relevant statutory duty, which in this case led the
Respondent to require the Appellant to undergo a functional assessment before recommencing
duties within the coal mine.
[77] The Appellant contends that the direction given to him to attend a medical assessment
was not lawfully available to the Respondent in the context of the industry specific legislative
framework or scheme found in the CMSH Act and the CMSH Regulation.
[78] Before reviewing the ground of appeal, we firstly set out the wider relevant provisions
of the CMSH Act and the CMSH Regulations.
[79] Section 42 of the CMSH Act provides as follows:
42 Obligations of site senior executive for coal mine
A site senior executive for a coal mine has the following obligations in relation to the
safety and health of persons who may be affected by coal mining operations—
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(a) to ensure the risk to persons from coal mining operations is at an acceptable
level;
(b) to ensure the risk to persons from any plant or substance provided by the
site senior executive for the performance of work by someone other than the
site senior executive's coal mine workers is at an acceptable level;
(c) to develop and implement a single safety and health management system
for all persons at the mine;
(d) to develop, implement and maintain a management structure for the mine
that helps ensure the safety and health of persons at the mine;
(e) to train coal mine workers so that they are competent to perform their
duties;
(f) to provide for—
(i) adequate planning, organisation, leadership and control of coal mining
operations; and
(ii) the carrying out of critical work at the mine that requires particular
technical competencies; and
(iii) adequate supervision and control of coal mining operations on each
shift at the mine; and
(iv) regular monitoring and assessment of the working environment,
work procedures, equipment, and installations at the mine; and
(v) appropriate inspection of each workplace at the mine including,
where necessary, pre-shift inspections.
[80] Section 42 of the CMSH Regulations provides as follows:
42 Safety and health management system for personal fatigue and other physical
and psychological impairment, and drugs
(1) A coal mine’s safety and health management system must provide for controlling
risks at the mine associated with the following—
(a) personal fatigue;
(b) other physical or psychological impairment;
Example of other physical or psychological impairment— an impairment
caused by stress or illness
(c) the improper use of drugs.
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(2) The system must provide for the following about personal fatigue for persons at the
mine—
(a) an education program;
(b) an employee assistance program;
(c) the maximum number of hours for a working shift;
(d) the number and length of rest breaks in a shift;
(e) the maximum number of hours to be worked in a week or roster cycle.
(3) The system must provide for protocols for other physical and psychological
impairment for persons at the mine.
(4) The system must provide for the following about drug consumption or ingestion
for persons at the mine—
(a) an education program;
(b) an employee assistance program;
(c) an obligation of a person to notify the site senior executive for the mine of
the person’s current use of medication that could impair the person’s ability to
carry out the person’s duties at the mine;
(d) an obligation of the site senior executive to keep a record of a notification
given to the site senior executive under paragraph (c);
(e) the following assessments to decide a person’s fitness for work—
(i) voluntary self-testing;
(ii) random testing before starting, or during, work;
(iii) testing the person if someone else reasonably suspects the person’s
ability to carry out the person’s duties at the mine is impaired because the
person is under the influence of drugs.
(5) The site senior executive must consult with a cross-section of workers at the mine
in developing the fitness provisions.
(6) In developing the fitness provisions, the site senior executive must comply with
section 10, other than section 10(1)(a) and (d)(ii)(C), as if a reference in the section to
a standard operating procedure were a reference to the fitness provisions.
(6A) If the fitness provisions provide for the assessment of workers for a matter
mentioned in subsection (1)(a) or (b), the site senior executive must establish the
criteria for the assessment in agreement with a majority of workers at the mine.
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(7) If the fitness provisions provide for the assessment of workers for a matter
mentioned in subsection (1)(c), the site senior executive must make a reasonable
attempt to establish the criteria for the assessment in agreement with a majority of
workers at the mine.
(7A) If the majority of workers at the mine disagree with the criteria for the
assessment under subsection (7), the criteria for assessment stated in a recognised
standard apply until an agreement is reached.
(8) In this section—
fitness provisions means the part of the safety and health management system that
provides for the things mentioned in subsections (2) to (4).
[81] Section 46 of the CMSH Regulation provides as follows:
Subdivision 3 Health assessments and health monitoring
46 Health assessment
(1) The employer must ensure a health assessment is carried out for each person who
is to be employed, or is employed, by the employer as a coal mine worker for a task
other than a low risk task.
(2) An assessment must be carried out—
(a) before the person is employed as a coal mine worker; and
(b) if the nominated medical adviser considers the assessment is necessary after
being given notice under section 49(3)—periodically, as decided by the
adviser; and
(c) otherwise, periodically, as decided by the nominated medical adviser, but at
least once every 5 years.
(3) An assessment must be carried out—
(a) in accordance with the instructions, and covering the matters, in the
approved form; and
(b) by, or under the supervision of, the nominated medical adviser.
(4) An assessment may include matters not covered in the approved form if, having
regard to a risk assessment carried out for a task for which the person is to be
employed, or is employed, the nominated medical adviser considers the person needs
to be assessed in relation to the additional matters to achieve an acceptable level of
risk.
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(5) Despite subsection (3)(a), a person may undergo an assessment (a subsequent
assessment) in accordance with some of the instructions only, and covering some of
the matters only, in the approved form if—
(a) the person has previously undergone a health assessment (a previous
assessment); and
(b) the subsequent assessment relates to a matter identified at a previous
assessment; and
(c) the assessment is carried out to ensure the person is able to carry out the
person’s tasks at the mine without creating an unacceptable level of risk having
regard to the matter mentioned in paragraph (b).
(6) A medical examination of the person carried out by a doctor other than the
nominated medical adviser is taken to be a health assessment carried out by the
nominated medical adviser under subsection (3) if—
(a) the medical examination is carried out under the instructions in the
approved form and the nominated medical adviser gives the employer a health
assessment report about the examination; or
(b) the medical examination is for other purposes and the nominated medical
adviser—
(i) is satisfied the examination is equivalent to a health assessment; and
(ii) gives the employer a health assessment report in the approved form
about the examination.
[82] In this case, the Respondent does not rely on the CMSH Regulation. Rather, the
Respondent relies upon s.39 of the CMSH Act as imposing a general obligation upon coal
mine workers to do what it must to achieve the safety objective.
[83] In Re Edwards the issue before Justice Atkinson concerned the power of the employer
to direct further tests pursuant to the Regulation or pursuant to common law rights. That case
did not involve detailed consideration of s.39 of the CMSH Act. Her Honour put the matter
before her this way:
“[28] The essential issues in this dispute concern the question of whether or not North
Goonyella, as employer, can direct Mr Edwards, as employee, to undergo the further
tests pursuant to the Regulation or pursuant to the rights of an employer in general.
The first question involves a close textual analysis of the Regulation and the second an
examination of common law rights of employers and employees to the extent that they
survive the Act and Regulation.”33 [Our emphasis]
33 [2005] QSC 242 at [28].
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[84] The unavailability of a power to direct an employee to undergo a medical assessment
was considered in the context only of the protocol established in accordance with the CMSH
Regulation, and as previously noted it was concluded that:
“The employer does have the power to provide for assessments for physical or
psychological impairment in fitness provisions developed under s 42(6). However
North Goonyella has not developed any relevant fitness provisions. If it had, there may
have been the power to make the direction it did. Absent that, there is no power found
in the Regulation for the employer to require a coal mine worker to undergo further
medical tests.”34[Our emphasis]
[85] And equally so, Her Honour found that the common law provided no foundation for
the employer in the case before her to direct an employee in relation to the steps by which a
Nominated Medical Advisor (“NMA”) undertook a health assessment under Division 2 of
Part 6 of the CMSH Regulation. This was because the regulatory regime prescribed the forms
and procedures that were directly relevant to how such health assessments were to be
conducted by an NMA and there was no power to introduce a supplementary procedure.
[86] More specifically, the subject matter of Re Edwards concerned a situation in which the
relevant employee had undertaken a statutory periodic health assessment under Part 6 of the
CMSH Regulation. The issue in contest arose when the employer sought to direct the
employee to undertake a supplementary medical assessment upon receipt of the NMA’s
medical assessment report, which raised certain issues in relation to the employee’s health.
Various declarations were sought in relation to that power. Those declarations all concerned
Division 2 of Part 6 of the Regulation and related to the means of conducting a health
assessment in the context of the role of an NMA, and the applicable forms and powers
available in respect of that matter.
[87] The judgment referred to s.39 of the CMSH Act. Following a discussion of the
obligation on the part of a senior site executive to ensure that the risk to a person from
coalmining operations is at an acceptable level and under s.42(c) of the CMSH Act to develop
and implement a safety and health management system for the mine, Atkinson J stated as
follows:
“[18] The coal mine workers in turn have obligations pursuant to s.39 of the Act to
comply with the Act and procedures applying to the worker that are part of a safety
and health management system for the mine. If the coal mine worker or another
person has information that other persons need to know to fulfil their obligations or
duties under the Act, or to protect themselves from the risk of injury or illness, a
person must give the information to the other persons. A coal mine worker or other
person at a coal mine is obliged to comply with instructions given for safety and
health of persons by the coal mine operator or SSE for the mine or a supervisor at the
mine; and to work at the coal mine only if the worker or person is in a fit condition to
carry out the work without affecting the safety and health of others.”35
34 Ibid at [33].
35 Ibid at [18].
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[88] For these reasons we do not consider the judgment in Re Edwards to be applicable to a
consideration whether s.39 of the CMSH Act empowers an employer to require an employee
to undertake a medical assessment. The judgment in Re Edwards arguably stands for
propositions relevant to Division 2 of Part 6 of the CMSH Regulation, but not to the power
available to give effect to an obligation under s.39 of the CMSH Act.
[89] We also observe that the judgments of the Court in M v P and Mattson v Parker,
referred to earlier, did not consider s.39 of the CMSH Act itself, but, following a discussion of
the duties that fell upon a SSE under the CMSH Act and the CMSH Regulation, went on to
state that:
“The worker too has obligations and relevantly under s.39(e) of the Act, “to work at a
coal mine only if the worker or person is in a fit condition to carry out the work
without affecting the safety and health or others.”36
[90] The judgment in Mattson v Parker (as in Re Edwards) concerned the process by which
health assessments are carried out under Chapter 2 Part 6 Division 2 of the CMSH Regulation
(s.46). The dispute with which these decisions were concerned was about the circumstances
relating to Chapter 2, Part 6 Division 2 of the CMSH Regulation, which dealt with the manner
of the performance of a health assessment by a NMA, under the prescriptions set out under
that Division.
[91] The critical issue was whether the medical practitioner (the NMA) concerned carried
out the relevant medical assessment in accordance with the prescriptive procedures and on the
basis of the matters on the approved form as required. The issue before the Court did not
attract a consideration of s.39 of the CMSH Act as such.
[92] As we have stated earlier, we do not consider that the judgment in Re Edwards
provides authority for the proposition, pressed on us by the Appellant, that the CMSH
Regulation was the sole source of statutory authority governing the circumstances in which an
employer may direct an employee to undertake a medical examination on a reasonable basis.
The judgment in Re Edwards does not reflect a considered examination of s.39 of the CMSH
Act, let alone a consideration of any power to instruct that might repose therein; the inquiry
conducted by the court was for other purposes.
[93] Nor do we think, as we have stated above, that the judgment in Re Edwards stands for
any proposition that denies the Respondent the power to direct an employee to do such things
that are not unlawful and which fall within the scope of the employment contract, all other
things being reasonable.
[94] We think, further, that s.39 of the CMSH Act, in requiring coal mine workers and
other persons at a coal mine “to take any other reasonable and necessary course of action to
ensure anyone is not exposed to an unacceptable level of risk”, imposes an obligation in wide
terms on the relevant persons (conditioned by reasonableness and necessity) to do all things
necessary to ensure that no one at a coal mine is exposed to an unacceptable risk. The CMSH
Act at s.39 is couched in broad terms and applies to a broad cohort.
36 [2011] QSC 350 at [70].
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[95] This contrasts with s.42 of the CMSH Act, which places specific obligations on senior
site executives not only to do various things, including under s.42(a) to ensure the risk to
persons from coal mining operations is at an acceptable level, but also under s.42(c) to
develop and implement a single safety and health management system (which is the subject of
s.42 of the CMSH Regulations).
[96] The construction we prefer is also reflective of the approach of the Full Bench in
CFMEU v MacMahon Contractors Pty Ltd,37 when it concluded that s.42 of the CMSH
Regulation pointed to the obligations that were imposed on Senior Site Executives and which
did not otherwise limit obligations arising under s.39(1) of the CMSH Act:
“[18] Regulation 42 is concerned with the content of a Safety and Health
Management System (SHMS) and how criteria for “fitness provisions” in an SHMS
are to be established. The obligation to develop an SHMS is cast on the Senior Site
Executive. A coal mine operator must ensure that the Senior Site Executive develops
and implements an SHMS. A contractor, like Macmahon, has an obligation to ensure
that any applicable SHMS is complied with. However, such a contractor also has the
obligations falling on persons generally, including the obligation in s.39(1)(c) of the
CMSH Act:
to take any other reasonable and necessary course of action to ensure anyone
is not exposed to an unacceptable level of risk.”38
[97] We think s.39 of the CMSH Act imposes a broad obligation and we do not consider
that obligation in its breadth is overridden by or otherwise confined in the manner contended
by the Appellant: it remains a source of a statutory obligation that falls upon a wide cohort of
workers and other persons, being a:
“coal mine worker or other person at a coal mine or a person who may affect the
safety and health of others at a coal mine or as a result of coal mining operations.”
[98] By contrast, s.42 of the CMSH Act imposes a particularised obligation upon the SSE,
which in large measure (but not comprehensively) is given effect through s.42 of the CMSH
Regulation.
[99] And similarly, s.46 of the CMSH Regulation (as set out above) imposes an obligation
upon the “employer” (but only in relation to health checks for particularised purposes).
[100] The regime for medical assessments as provided for in s.46(2) can only be carried out
at prescribed times and in the prescribed manner. In our view, to restrict the manner of
responding to a concern about the fitness for work of a coal mine worker to the confined
procedures and circumstances set out in s.46 of the CMSH Regulation, would be counter to
the objectives of the CMSH Act. It would also be inconsistent with the obligations placed on
the employer by s.39 of the CMSH Act.
37 CFMEU v MacMahon Contractors Pty Ltd (PR965459) [2005] AIRC at [18].
38 Ibid at [18].
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[101] Generally, we do not view s.39 and s.42 of CMSH Act and s.42 and s.46 of CMSH
Regulation to be conflicting, or that one should override the other. Rather, they appear readily
able to work conformably with one another to achieve the objects of the Act - which seek to
ensure those who work in coal mines are not exposed to an unacceptable level of risk.
[102] It follows from the above discussion, therefore, that we do not think that the
proposition (pressed upon us by the Appellant) that s.39 of the CMSH Act, and s.39(1)(c) in
particular, must give way to s.42 and s.46 of the CMSH Regulation for reason of the rule or
principle generalia specialibus non derogant, has application in the circumstances before us.
The various provisions discussed above are not in conflict or otherwise irreconcilable (see
Purcell v Electricity Commission of NSW). 39
[103] Further, s.39(1) of the CMSH Act, subject to the conditions of reasonableness and
necessity, obligates a coal mine worker or other person (as described) to take “any [...] other
course of action” to achieve the objective cited above beyond those actions stipulated in
s.39(1)(a) and s.39(1)(b) of the CMSH Act. We do not consider that an obligation of such
broad remit should be read down against the terms of the CMSH Regulation in the manner
contended by the Appellant.
[104] It also appears to us that s.39(2)(d) of the CMSH Act also imposes on a coal mine
worker and other persons at a coal mine an additional and complementary obligation to that
imposed by s.39(1)(c) of the CMSH Act:
(2) A coal mine worker or other person at a coal mine has the following additional
obligations:
(d) to comply with instructions given for safety and health of persons by the
coal mine operator or site senior executive for the mine or a supervisor at the
mine;
[105] Mr Gustafson, we point out, was at all times the Appellant’s supervisor, and the
instructions he gave the Appellant, who was a coal mine worker, concerned the Appellant’s
safety and health.
[106] We add finally that the Respondent had not at any time promulgated under the terms
of s.42 of the CMSH Regulation a safety and health management system that had achieved
the support of at least a majority of employees at the mine.
[107] In our view, absent such an approved system, the Respondent would remain obligated
under the CMSH Act, and otherwise, to take what reasonable steps are necessary to minimise
risk to coal mine workers.
[108] It was also pressed on the Full Bench by Counsel for the Appellant that there was no
lawful basis on which to direct the Appellant to attend the medical practitioner for a
functional assessment. We have referred to this above in passing. Essentially, the Appellant
contends that there must be a discernible, positive rule of law supporting Mr Gustafson’s
direction and in the absence thereof his direction was unlawful.
39 (1985) 60 ALR 652 at 657.
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[109] As we have said above, we are of the view that Mr Gustafson’s direction was
supported by a positive rule of law. But regardless of that, we do not conclude that Mr
Gustafson’s direction was illegal (or unreasonable) as a consequence or that the Appellant
should not have followed that direction or had a right to refuse to do so.
[110] This is because a direction given to an employee is lawful to the extent that it falls
reasonably within the scope of service of the employee.
[111] Counsel for the Respondent took the Full Bench to various authorities in this respect,
one of which was the judgment in R v The Darling Island Stevedoring and Lighterage
Company Limited; Ex parte Halliday and Sullivan.40
[112] In his judgment in that case, Justice Dixon considered the circumstances relating to an
alleged breach of an award where employees refused to carry out an instruction as to the
quantity of cargo to be manually lifted onto a motorised sling for the purpose of loading a
vessel. The employees complained that the quantity of cargo was excessive and caused undue
strain. In the course of determining the matter, the Court turned its mind to the ‘standard test’
by which the common law determines the lawfulness of a direction given by an employer to
an employee. In this context, Dixon J stated:
“It is evident that the plan upon which these provisions proceed is to require that work
shall go on in accordance with the employers’ directions notwithstanding an objection
to the quantity or weight placed in a sling and that the objection shall be dealt with by
a readily accessible tribunal. But the award could not safely, or, at all events, fairly
impose upon the employees an obligation to obey all instructions given by employers
with reference to the quantity or weight to be included in a sling whatever their
character. Some qualification or restriction was necessary. Naturally enough the
award adopted the standard or test by which the common law determines the
lawfulness of a command or direction given by a master to a servant. If a command
relates to the subject matter of the employment and involves no illegality, the
obligation of the servant to obey it depends at common law upon its being reasonable.
In other words, the lawful commands of an employer which an employee must obey
are those which fall within the scope of the contract of service and are reasonable.
Accordingly, when the award was framed, the expression “reasonable instructions”
was adopted in describing the employee's duty to obey. But what is reasonable is not
to be determined, so to speak, in vacuo. The nature of the employment, the established
usages affecting it, the common practices which exist and the general provisions of the
instrument, in this case an award, governing the relationship, supply considerations
by which the determination of what is reasonable must be controlled. When an
employee objects that an order, if fulfilled, would expose him to risk, he must establish
a case of substantial danger outside the contemplation of the contract of service.”41
[Our emphasis]
40 (1938) 60 CLR 601.
41 Ibid at 621.
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[113] The Respondent also took us to a Federal Court authority (McManus v Scott
Charlton)42 which provided supportive, contemporary comment upon what Dixon J referred
to (above) as the “standard test”.
[114] Notwithstanding our finding that Mr Gustafson’s direction was supported by a positive
law, we also find that his direction to the Appellant fell within the scope of his contract of
service and was otherwise not unlawful, and was reasonable in the circumstances (as we set
out in this decision). We do not read the CMSH Regulation as making Mr Gustafson’s
direction unlawful, such that it was never permissible for him to issue the relevant instruction
to the Appellant.
[115] In all, we agree with the Commissioner in her summation that:
“The legislation does not provide an impediment, to limit when an employer may
otherwise lawfully direct an employee to attend upon a medical assessor, where
reasonable concern exists for ensuring the employee is medically fit to return to his
duties at the mine.”43
[116] The Appellant, we add, also argued that s.39(1) of the CMSH Act only has application
in circumstances where the conduct in question arises in the physical confines of the coal
mine and not otherwise. In this regard, s.39(1) of the CMSH Act provides as follows:
(1) A coal mine worker or other person at a coal mine or a person who may affect the
safety and health of others at a coal mine or as a result of coal mining operations has
the following obligations—
[117] According to the argument before us, s.39(1) of the CMSH Act is geographically
limited in its scope of application. Counsel for the Appellant put the matter this way:
“The difficulty amongst others with relying upon 39(1)(c) is that no attention has been
given to some statutory prerequisites which appear in the opening two lines of
subsection (1). It appears everyone so far has ignored where it makes reference to the
expression "at a coal mine". That expression appears in the first alternative of a coal
mine worker or other person at a coal mine. It then also appears in the second
alternative where, "a person who may affect the safety and health of others at a coal
mine.
The Act contains a definition of what is a coal mine. That definition can be found in
section 9 at page 18. It suffices for present purposes to submit that Mr Grant, the
Appellant, sitting in a car at Mackay deciding whether or not he should go into see the
employer's nominated doctor is not at a coal mine. Mackay has nothing to do with
what section 39(1) in its opening prerequisites states.”44
[118] As we have found above, we do not consider that the power to issue a direction that
was lawful and reasonable is limited to the extent it is founded on a positive rule of law, or an
express statutory provision as in this case.
42 (1996) 70 FCR 16 at 21.
43 Darrin Grant v BHP Coal Pty Ltd [2014] FWC 1712 at [106].
44 Transcript of Proceedings, 1 May 2014, at PN29-30.
[2014] FWCFB 3027
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[119] That said, we think the construction of s.39(1) of the Act is intended to do no more
than identify the classes of employees on whom an obligations falls. It does not, without
undue straining, appear to impose a geographical or physical limitation to the circumstances
in which the articulated obligations under either s.39(1) or s.39(2) of the CMSH Act are
operative.
[120] We do not read s.39 of the CMSH Act, therefore, as meaning that the conduct of the
Appellant in failing to carry out a direction by his supervisor under s.39 of the CMSH Act can
only fall into question when that conduct takes place within the geographical confines of a
coal mine and not anywhere else (despite that conduct having consequences for and having
arisen because of a direction issued about a concern over safety and health of others at a coal
mine).
[121] The determinative issue, in our view, is whether the matter is a consequence of or has
consequences for the obligations flowing from s.39 of the CMSH Act in relation to a coal
mine. We consider s.39 of the CMSH Act, as a matter of construction, should not be narrowly
read (or geographically confined) in this regard. Indeed, to read down s.39 of the CMSH Act
in this way would be to limit the scope of action that must be taken by a coal mine worker to
ensure anyone at a coal mine is not exposed to an unacceptable level of risk.
Reasonableness of direction
[122] As we have mentioned earlier, the Commissioner found that Mr Gustafson was
lawfully permitted by s.39 of the CMSH Act (so far that such a direction must be expressly
founded upon a positive rule of law) to direct the Appellant to attend a medical examination
for a functional assessment when he presented for work.
[123] The Commissioner found this direction to be reasonable after a very lengthy absence
from the workplace, following surgery, and with only generalised medical certificates (which
did not refer to surgery having taken place and were absent any information about any
rehabilitation). There was no evidence before Mr Gustafson, or the Commissioner, that the
Appellant had undergone a functional assessment upon seeking to resume work.
[124] The Appellant’s injury was known to be exposed to aggravation. The Appellant’s
“role involved heavy manual tasks”.45 Further, the Appellant had expressed a willingness to
attend a medical practitioner of his own choice for purposes of a functional assessment.
[125] This, generally, was the context in which the Commissioner reached her findings as to
the reasonableness of the instruction (to attend a medical practitioner for the purpose of a
functional assessment) given to the Appellant:
“Given the nature of the [Appellant’s] medical history and the fact that the
[Appellant] had had shoulder surgery and rehabilitation, the Respondent had
reasonable cause to satisfy itself that the [Appellant] could safely perform his duties
and would not expose anyone to an unnecessary level of risk.”46
45 Transcript of Proceedings, 20 November 2013, at PN51.
46 Darrin Grant v BHP Coal Pty Ltd [2014] FWC 1712 at [116].
[2014] FWCFB 3027
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[126] Mr Gustafson acted reasonably, the Commissioner concluded, in requesting the
Appellant to undertake a functional assessment in such circumstances. Mr Gustafson directed
the Appellant to attend on a medical practitioner who was a trained occupational physician
with knowledge of the mining industry and the Respondent’s operations.
[127] There is no evidence overlooked by the Commissioner to the effect that Mr Gustafson
exhibited any predetermined view of the Appellant’s state of health or revealed any
malevolent intent in directing the Appellant to undertake the assessment. The Appellant was
placed him on full pay in the interim period (whilst the functional assessment confirmed the
Appellant’s fitness for work).
[128] We add that the Commissioner also had before her a statutory declaration signed by
the Appellant in which the Appellant had, for purposes of a claim for damages under
WorkCover, declared he had a 20% permanent impairment arising from his shoulder injury.
[129] Generally, we are of the view that the Commissioner’s findings were open to her.
Conclusion in respect of Appeal Grounds 1 and 2
[130] In respect of Appeal Grounds 1 and 2, we discern no error in the Commissioner’s
evaluation of the circumstances such that it is objectively wrong, or otherwise invites the Full
Bench to substitute its own evaluation. The Commissioner properly construed the power
available under CMSH Act for the Respondent to direct the Appellant on reasonable grounds
to attend a functional assessment. We also consider, in any event, the Respondent was able to
direct the Appellant to do such things that are not unlawful, and which are reasonable and
properly an incident of the employment relationship, or fall within the scope of the contract
for service. We have also found that the Respondent’s direction to the Appellant can be so
characterised.
Appeal Ground 3: The Commissioner erred in finding that the Respondent had a valid
reason for terminating the employment of the Appellant for refusing to attend a medical
assessment on 17 April 2013
[131] The Appellant contended that there was no valid reason for the dismissal for the added
reason that the conduct of the Appellant did not warrant dismissal. The Appellant argued that
the Respondent had never articulated to the Appellant the basis of its direction for him to
attend a medical appointment and that the Appellant could not be said to have acted
unreasonably because he did not wish to be examined by a doctor chosen by the Respondent.
[132] The evidence before the Commissioner, it was said, was that the Appellant had agreed
to reschedule his medical appointment upon the suggestion of Dr McCartney, and by
misfortune alone was not advised of the rescheduled appointment in advance.
[133] The Appellant also contended that the Commissioner had relied upon evidence that the
Appellant had sought to record conversations without the consent of the individuals
concerned on various occasions since his return to work on to April 2013.
[134] The Appellant argued that this was a factual error. The Appellant had sought the
consent of all persons with whom he spoke to record the conversation. The only exception
was the second telephone call with Dr McCartney (who had consented to the conversation
[2014] FWCFB 3027
27
being recorded by the Appellant in their discussion immediately prior telephone conversation,
which concerned rescheduling the medical appointment). There is no evidence that Dr
McCartney had complained about the recording of any conversation, even though he had
opportunity to do so (given that he was in communication with the Respondent’s HR
Department).
[135] It was further argued by the Appellant that there were no grounds for a finding of
misconduct in the manner in which he had behaved during the single investigation meeting on
22 April 2013. The Commissioner, it was suggested, had failed to take into account the
Appellant’s reasons for not replying to his employer’s questions without those questions
having been placed firstly in writing.
Whether there was a valid reason for dismissal
Medical appointments
[136] We do not think that the Commissioner erred in the conclusion that there was a valid
reason for the dismissal of the Appellant. The Commissioner’s conclusion was based on a
survey of the conduct of the Appellant.
[137] The Commissioner, having established that there was a lawful statutory basis for the
direction to attend a medical practitioner (and that the direction was not unlawful) drew an
inference from the evidence before her that the Appellant had wilfully decided not to attend
the medical appointments, and did so in circumstances in which he had been warned of the
prospect of disciplinary action should he fail to do so.
[138] The Appellant also conceded under cross examination that he was unwilling to attend
the Respondent's medical practitioner:
You were unwilling to have what you described as a company doctor perform that
assessment. Correct? -- That’s correct. 47
[139] The wider evidence before the Commissioner suggested that the Appellant could have
attended the initial appointment without the x-rays and scans, and that his explanation for so
doing was “contrived”.
[140] Further, the Commissioner found that the Appellant was aware that there was no
requirement to bring along the radiological scans at the time he telephoned Mr Gustafson and
accused him of neglecting to inform him that he “needed to have x-rays, scans and the like.”48
[141] It was also open to the Commissioner to find on the evidence that the Appellant was
aware of the time of the rescheduled appointment. This was because there were grounds for
concluding that the Appellant had informed his CFMEU representative prior to the time of the
rescheduled appointment. The Commissioner also accepted Mr Gustafson’s evidence that he
instructed the Appellant, after he had not attended the first medical appointment, “not to go
47 Transcript of Proceedings, 19 November 2013, at PN 251.
48 Ibid at [61].
[2014] FWCFB 3027
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anywhere and be expecting a further call”, and reasonably could not have “missed” Mr
Gustafson’s call to him about the rescheduled appointment.49
[142] We are satisfied that the Commissioner’s inference that the Appellant had wilfully
elected not to attend the medical appointments was open to her given the evidence before her.
Conduct in interview etc
[143] Similarly, the Appellant's conduct in requiring written questions rather than
participating in an interview was a measure viewed by the Commissioner (as we imply from
her decision) to disrupt or otherwise delay the Respondent's processes or otherwise was an
unconstructive contribution to an ordinary workplace process. The Commissioner found that
this “formed part of the valid reason for the dismissal”.50
[144] It was argued on appeal that the Appellant was not obliged to obey an order which
required him to incriminate himself, and otherwise that the Appellant had a penalty privilege.
[145] We were taken in this regard to the case of Hartmann v Commissioner of Police51 (“Re
Hartmann”) where it was said:
“The protection against self-incrimination is intended to protect against any type of
punishment or penalty [...] It follows that the privilege against self incrimination exists
to protect against the penalty of dismissal from employment, and its financial
consequences.”52
[146] We note firstly that no issue of the Appellant exercising a penalty privilege was before
the Commissioner and the issue was not raised in the proceedings before her, which we note
were fully argued by competent counsel. No reason was put to us as to why we should
consider new arguments of this kind on appeal.
[147] Notwithstanding this, we think that the case in Re Hartmann is distinguishable from
the circumstances before us. The central issue in Re Hartmann arose in circumstances in
which a person gave evidence that the Royal Commission into the New South Wales Police
Service, and his evidence incriminated him and was given unwillingly and under objection. A
question arose subsequently whether by s.17(2) of the Royal Commissions Act 1923 (NSW)
witnesses are protected from the evidence being used against them in circumstances in which
the evidence in the Commission proceedings was admitted into evidence in proceedings
before the Government and Related Employees Appeal Tribunal (for the purposes of a police
disciplinary hearing).
[148] Furthermore, the case in Re Hartmann dealt with a penalty of dismissal arising from
statutory police disciplinary regime; The Police Services Act 1990 (NSW) (“the PS Act”). The
PS Act included s.179 which states as follows:
49 Ibid at [122]-[123].
50 Ibid at [129].
51 (1997) 91 A Crim R 141.
52 Ibid at 148.
[2014] FWCFB 3027
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179. (1) if a departmental charge or criminal charge against a police officer is duly
proved, the Commissioner may take such action against the police officer as the
Commissioner considers appropriate.
[149] Section 179(2) of the PS Act goes onto specify the types of actions the Commissioner
may take against a police officer, and these include, at s.179(2)(c) of the PS Act, the
imposition of “a fine”. Section 179(3) of the PS Act sets out that “any fine imposed by the
Commissioner under this Section may be recovered in a court of competent jurisdiction of the
deck to the Crown or deducted from the pay of the police officer in accordance with the
regulations.”
[150] On both counts as set out above, the decision in Re Hartmann concerns significantly
dissimilar provisions to those which are before us, and on which this matter turns.
[151] We do not think the case in Re Hartmann assists in the circumstances before us in
which an employee is required to assist in a workplace investigation.
[152] We do not construe a workplace investigation interview intended to inquire into an
employee’s conduct as attracting the application of such principles as asserted. This is
particularly so when the single query put to the employee (which in effect was to explain his
reason for not attending the medical appointments as directed) was material to the
employment relationship.
[153] The Commissioner also considered that the Appellant’s conduct in seeking to gain
entry to the mine, when he had been directed to obtain a medical clearance before resuming
his duties, also reflected adversely on the Appellant’s approach to his relationship with his
employer.
[154] In all, the Commissioner considered a range of evidentiary issues, weighed those
matters as a whole in so far as they reflected on and informed the Appellant's conduct, and
concluded that there was a valid reason for the dismissal. The matters may have had variable
weight in her judgment, and we take the Commissioner’s conclusion at paragraph 129 to
reflect that:
“The Commission is satisfied that this refusal to participate in the investigation
process formed part of the valid reason for the dismissal.”53
[155] We do not seek to displace the Commissioner’s reasoning as based on the evidence
that was before her. The findings were open to her, and she apportioned relative weight to the
matters under consideration. We detect no error in the Commissioner’s approach in this
regard.
53 Darrin Grant v BHP Coal Pty Ltd [2014] FWC 1712 at [129].
[2014] FWCFB 3027
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Appeal Ground 4: The Commissioner failed to take into account the relevant
consideration that the Appellant had disputed the lawfulness and reasonableness of the
Respondent’s direction that he attend a medical appointment under disputes procedure
in the BMA Enterprise Agreement 2012 before 17 April 2013 and that dispute had not
been dealt with in accordance with the procedure
[156] It was contended that prior to the time the Appellant was directed to attend an
appointment with Dr McCartney, the matter of the power to do so had been put in dispute by
the CFMEU, and that the dispute process was ignored by the Respondent. Such conduct
warranted “censure” by the Commission, it was claimed. There is argument around whether
or not there had been compliance with the disputes procedure such that it could be concluded
that the matters were in dispute in a formal sense.
[157] The appeal ground contends that the Commissioner failed to take this matter into
account when reaching her ultimate decision.
[158] True it is that the Commissioner’s decision does not refer to the dispute process that
appears to have commenced on or about the time the Appellant was directed to attend for a
functional assessment. But this does not reflect adversely on her decision. The reason for this
is that a dispute application once made - if one had been validly made - does not require the
Respondent to abandon or suspend the steps being taken by the Respondent to fulfil its
obligation under the CMSH Act by reasonably directing the Appellant to attend for a
functional assessment before recommencing his duties.
[159] In any event, the Appellant’s conduct in not attending the initial medical appointment,
in accordance with the Respondent's direction, was already manifest by the time the dispute
application purportedly was made, and the disciplinary process arose from that conduct. We
see no reason why the disciplinary process should have been suspended as a consequence.
[160] In all, we do not think this matter is material to the Commissioner’s decision, and no
error arises because she did not refer to it in her findings.
Appeal Ground 5: The Commissioner took into account an irrelevant consideration by
relying upon the Appellant’s conduct of seeking to record telephone conversations in
circumstances where the Respondent had abandoned any reliance upon that conduct
[161] The Commissioner was obliged to reach her own conclusions as to the nature of the
Appellant's conduct, irrespective of the subjective views of either the Appellant himself or the
Respondent. Where an employee is dismissed for conduct, the Tribunal must determine for
itself whether the alleged conduct occurred (see King v Freshmore Victoria Pty Ltd54 and
Edwards v Giudice):55
“The question of whether the alleged conduct took place and what it involved is to be
determined by the Commission on the basis of the evidence in the proceedings before
it. The test is not whether the employer believed, on reasonable grounds after
54 Print S4213 at [24].
55 (1999) 94 FCR 561 at [6].
[2014] FWCFB 3027
31
sufficient enquiry, that the employee was guilty of the conduct which resulted in
termination.”
[162] It was open to the Commissioner to characterise the Appellant’s conduct as she found
to be on the evidence that was led, and independent of the parties’ subjective views.
[163] The Commissioner did not accept that the Appellant had recorded conversations
without the consent of other persons. She found, instead, that the practice of seeking to record
telephone conversations with persons related to the Respondent and that the Appellant
allowed a third party to listen into conversation with Mr Gustafson “undermines the
employment relationship”. The Commissioner also expressed the view that in this case there
was no evidence that the Respondent’s prior conduct warranted such practices.
[164] We see no error in the Commissioner’s approach in this regard. We are also of the
view that this matter was not determinative in any event. It was one matter amongst a number
the Commissioner considered for the purposes of s.387(h) of the Act, and it was merely
described as being “of concern” or “concerning”. We say a little more about this matter
immediately below.
Appeal Ground 6: The Commissioner erred in finding that the Appellant’s conduct in
asking to record conversations undermined the employment relationship in the
obligation of mutual trust and confidence
[165] The Commissioner found the Appellant’s conduct in seeking to record telephone
conversations as “concerning”, in the context in which there had been no prior dubious or
deceptive conduct on the part of the Respondent that necessitated such a course of action.56
The Commissioner found that it was also “of concern” that the Appellant had given evidence
that “others were able to listen in to conversations he had with Mr Gustafson [...] without his
knowledge”.57 The Commissioner accepted expressly that that Appellant had recorded no
conversations without consent of the other party. But even taking this into account, the
Commissioner found the “conduct undermines the employment relationship and the
obligation of mutual trust and confidence.”58
[166] The conduct the Commissioner refers to here is the conduct in seeking to record
conversations with supervisors and others where there was no manifest reason for doing so
and for allowing others to listen into conversations without acknowledging their presence.
She found it to be “concerning”, and as stated immediately above, to undermine trust and
confidence.
[167] We consider that it was open to the Commissioner to conclude as she did on the
evidence. We also think that the Commissioner considered this “conduct” in the context of a
range of other matters for the purposes of s.387(h) of the FW Act, as well as against the
finding she had made in relation to a valid reason.
56 Darrin Grant v BHP Coal Pty Ltd [2014] FWC 1712 at [137].
57 Ibid at [137].
58 Ibid at [137].
[2014] FWCFB 3027
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[168] We do not seek to interpose our own view of the evidence that was before the
Commissioner. In any event we do not consider the Commissioner’s finding in these regards
to have been of determinative weight in her overall evaluation of the Appellant’s conduct. We
have said as much above.
Appeal Ground 7: The Commissioner erred in failing to take into account the reasons
that the Appellant requested that he be provided with the questions he was to be asked
in a disciplinary interview
[169] The Commissioner took the view that the investigation interview was of limited
compass (and concerned obtaining an explanation for the failure to attend the medical
appointments), there was no pre-prepared list of questions, and that it was reasonable to
expect the Appellant to cooperate in the circumstances. This was particularly so as such
interviews give rise to additional questions or considerations and the interview was a regular
or conventional procedure “to explore the facts or issues in contention”. The Commissioner
also took the view that this process was being stymied by the Appellant.
[170] The evidence before the Commissioner was that the Appellant had been informed in
writing on 18 April 2013 that he was required to attend an interview on 22 April 2013
concerning:
“[t]he issues surrounding your conduct [relating] to the allegation of your refusal to
attend yesterday’s appointment with Dr Robert McCartney.”
[171] It is apparent that the purpose of the meeting could not have been any more
straightforward, and the focus of any inquiries could not have been any less unambiguous.
[172] The Commissioner found in this context, consequently, that the “request for every
question to be put in writing for [the Appellant] to respond to was improper” in the
circumstances,59 and reflected adversely on the Appellant’s view of the employment
relationship
[173] We think this was a conclusion open to the Commissioner, and should not be
disturbed. It also was one factor only that the Commissioner took into account the purposes of
determining whether there was a valid reason for the dismissal. We add that had the questions
being posed had some unusual character or complexity to them it might be reasonable to seek
to have a meeting adjourned and the questions or allegations particularised. But this was not
the case here where the purpose of the inquiry was very narrow, and clearly articulated to the
Appellant in advance of the meeting.
Appeal ground 8: The Commissioner erred in taking into account an irrelevant
consideration by relying upon the Appellant’s attendance at the mine on 2 April 2013
[174] We do not believe that the Commissioner erred in taking into account the manner in
which the Appellant “simply turned up to the site on 2 April 2013, after a significant period of
absence, without any contact being made with the Respondent (other than providing general
medical certificate stipulating different time frames with a clearance, or fitness for duty).” 60
59 Ibid at [127].
60 Ibid at [136].
[2014] FWCFB 3027
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[175] The Commissioner clearly viewed the conduct in the wider context in which she had
characterised the Appellant's approach to the employment relationship. This included the
“questionable” conduct by the Appellant in seeking to gain entry to the hazardous
environment of the mine site on 16 April 2013 despite having been directed not to do so
(subject to a medical clearance).61
[176] On a fair reading of the Commissioner’s decision, in any event, we do not think in the
overall consideration of the Commissioner that this was a matter that was accorded
determinative or significant weight.
Appeal ground 9: The Commissioner erred in taking into account an irrelevant
consideration that the Appellant’s claim under the Workers Compensation and
Rehabilitation Act 2009 included a claim concerning permanent impairment
[177] It was put to the Commissioner as a matter of submission only that the Work Cover
statement of claim - in which the Appellant asserted that he suffered from a 20% permanent
impairment of his shoulder arising from an injury which occurred in October 2011 - was a
statement and was not evidence of the fact, and that it should not be relied upon as a
consequence. The statement had also been made after the dismissal and therefore it was not
open to conclude that the Appellant had at all times been so impaired (although it is apparent
that the Appellant relied upon the injury occurring in 2011).
[178] We do not think the Commissioner was in error in taking the WorkCover claim into
consideration. The Commissioner found the WorkCover statement of claim - which was in the
form of a statutory declaration - to have been inconsistent with the Appellant's claims as made
during the proceedings that he was fully fit to resume work as to April 2013.
[179] The Commissioner effectively reopened the matter for the purposes of full exploration,
but the Appellant provided no further evidence in relation to the claim statement. The
Commissioner subsequently inferred “that [t]his evidence in relation to the WorkCover claim
would not have assisted his case”.62
[180] As the Appellant did not take up the option of providing further evidence in
explanation of his statement of claim, in the particular circumstances of this matter, it was
open to the Commissioner to draw that inference. The subject matter of the WorkCover claim
formed part of the total set of circumstances that the Commissioner was entitled to consider in
exercising her statutory duty.
[181] We find no error on the part of the Commissioner in the manner in which she
considered the WorkCover statement of claim, after such time as she had given the parties the
opportunity to present evidence.
Appeal ground 10: The Commissioner erred in finding that the claim concerning
permanent impairment meant that the Appellant was not fully fit to return to the
workplace
61 Ibid at [135].
62 Ibid at [145].
[2014] FWCFB 3027
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[182] We have commented sufficiently on this matter immediately above.
Disposition of Appeal and Conclusion
[183] The application raises issues of general application for employees in coal mines in
coalmining operations in Queensland and who are subject to the CMSH Act and CMSH
Regulation, and bears on the proper interpretation of how health assessments are authorised
under that legislative framework and otherwise. There are also claims that the decision of the
Commissioner was not harmonious with a decision of the Queensland Court of Appeal.
[184] In such a context as argued, we consider the public interest justifies granting
permission to appeal.
[185] Having so decided to allow the appeal, we have not identified an error of law or a
significant error of fact in the Commissioner’s decision. Consequently, we uphold the
Commissioner’s decision and dismiss the appeal, for the reasons we have given above.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr B. Docking, Counsel, for the Appellant
Mr I. Neil, Senior Counsel, and Mr S. Meehan, Counsel, for the Respondent.
Hearing details:
Brisbane
2014
1 May
Printed by authority of the Commonwealth Government Printer
Price code G, PR550383
WORK COMMISSION AUSTRALIA THE SEAL OFFAIR
