Ramsey Butchering Services Pty Ltd v Blackadder [2003] FCAFC 20 (21 February 2003)

Last Updated: 21 February 2003

FEDERAL COURT OF AUSTRALIA

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

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

WORDS & PHRASES - "reinstatement", "reinstatement by appointing to the position"

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

QDSV Holdings Pty Ltd (t/a Bush Friends Australia) v Trade Practices Commission (1995) 59 FCR 301 referred to

Western Newspapers Pty Ltd v Warren (1994) 1 IRCR 393 cited

Australian Workers Union v Pioneer Concrete Pty Ltd (1991) 38 IR 365 discussed

Shop, Distributive and Allied Employees' Association v Myer (NSW) Pty Ltd (Macken J, Industrial Commission of New South Wales, 6 July 1983, unreported) discussed

Sutherland v Hills Industry Ltd (Keely J, 22 September 1982, unreported) discussed

Retail Traders Association of NSW v Shop, Distributive and Allied Employees' Association of NSW (1990) 36 IR 38 referred to

Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240 considered

Qantas Airways Ltd v Cornwall (1998) 84 FCR 483 cited

Commonwealth Bank of Australia v Finance Sector Union [2002] FCAFC 193 cited

Repatriation Commission v Nation (1995) 57 FCR 25 cited

State Rail Authority of New South Wales v The Honourable Justice Bauer (1994) 55 IR 263 discussed

State Rail Authority of New South Wales v Tyrrell (1993) 49 IR 236 cited

State Rail Authority of New South Wales v Tyrrell (No 2) (1993) 51 IR 14 cited

King v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 1900; (2000) 109 FCR 447 referred to

Australian Paper Ltd v Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia (1998) 81 IR 15 discussed

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 referred to

Maritime Union of Australia v Geraldton Port Authority (2000) 106 IR 119 cited

Maritime Union of Australia v Geraldton Port Authority [2001] FCA 236; (2001) 111 FCR 434 cited

Miller v University of New South Wales [2002] FCA 882; (2002) 115 IR 404 cited

Cottrell v Wilcox [2002] FCAFC 53 referred to

Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 considered

R v Gough; Ex parte Cairns Meat Export Co Pty Ltd [1962] HCA 56; (1962) 108 CLR 343 cited

R v Portus; Ex parte City of Perth [1973] HCA 64; (1973) 129 CLR 312 cited

R v Gough; Ex parte Meat & Allied Trades Federation [1969] HCA 71; (1969) 122 CLR 237 cited

Re Ranger Uranium Mines Pty Ltd; ex parte Federated Miscellaneous Workers Union of Australia [1987] HCA 63; (1987) 163 CLR 656 discussed

Re Federated Storemen & Packers Union of Australia; ex parte Wooldumpers (Victoria) Ltd [1989] HCA 10; (1989) 166 CLR 311 discussed

Liddell v Lembke t/a Cheryls Unisex Salon (1994) 56 IR 447 referred to

Fryar & Simpson v Systems Services Pty Ltd (1995) 60 IR 68 referred to

Robertson v South [2000] FCA 1402 referred to

North West County Council v Dunn [1971] HCA 34; (1971) 126 CLR 247 discussed

R v Marshall; ex parte Plumrose (Australia) Ltd [1983] 1 VR 469 discussed

Re Registered Nurses Conciliation & Arbitration Board (1984) 9 IR 19 referred to

Cook v Department of Primary Industries (IRC (Qld), Commissioner Swan, 22 May 1997, Unreported) referred to

Gnatenko v General Motors-Holdens Ltd (1976) 43 SAIR 760 referred to

Deng v Sin-Aus-Bel Pty Ltd t/a The Ascot Inn (1997) 77 WAIG 1091 referred to

Turner v Sawdon [1901] 2 KB 653 considered

Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647 applied

Marbe v George Edwardes (Daly's) Theatre Ltd [1927] 1 KB 269 considered

Montreal Public Service Co v Champagne (1917) 33 DLR 49 considered

White v Australia and New Zealand Theatres Ltd [1943] HCA 6; (1943) 67 CLR 266 considered

Langston v Amalgamated Union of Engineering Workers [1974] 1 WLR 185 referred to

Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 referred to

William Hill Organisation Ltd v Tucker (1999) ICR 291 referred to

Wesoky v Village Cinemas International Pty Ltd [2001] FCA 32 considered

Mann v Capital Territory Health Commission (1981) 54 FCR 23 referred to

Jackson v Fisher's Foils, Limited [1944] 1 KB 316 considered

RAMSEY BUTCHERING SERVICES PTY LTD v STEPHEN BLACKADDER

N 472 of 2002

MOORE, TAMBERLIN & GOLDBERG JJ

21 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 472 of 2002

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RAMSEY BUTCHERING SERVICES PTY LTD Appellant/Cross Respondent
AND:	STEPHEN BLACKADDER Respondent/Cross Appellant
JUDGE:	MOORE, TAMBERLIN & GOLDBERG JJ
DATE OF ORDER:	21 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed in part.

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

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

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 472 of 2002

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RAMSEY BUTCHERING SERVICES PTY LTD Appellant/Cross Respondent
AND:	STEPHEN BLACKADDER Respondent/Cross Appellant
JUDGE:	MOORE, TAMBERLIN & GOLDBERG JJ
DATE:	21 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MOORE J:

INTRODUCTION

1 This is an appeal by Ramsey Butchering Services Pty Ltd ("the appellant") and a cross-appeal by Stephen Blackadder ("the respondent") from judgments of Madgwick J of 10 and 21 May 2002 issuing injunctive relief requiring compliance with orders of the Australian Industrial Relations Commission ("the Commission"), imposing penalties on the appellant for breaches of those orders and imposing penalties for breaches of the Ramsey Butchering Services Pty Ltd (Grafton Meatworks) Australian Workplace Agreement ("the AWA"). The appeal by the appellant, amongst other things, challenged the primary judge's finding that it had breached orders of the Commission. The cross-appeal challenged the adequacy of the penalties imposed by his Honour and whether he had power to make two of the orders.

THE BACKGROUND

2 Much of the background was not controversial before the primary judge or on appeal. It was summarised by the primary judge in the following passage from his reasons when he gave judgment on 10 May 2002 ("the principal judgment"):

The applicant, Mr Stephen Blackadder, is an employee of the respondent company. He was employed as a boner at the respondent's abattoir at Grafton on 30 April 1998. Before his engagement the applicant completed a written application for employment in which he undertook, among other things:

1. To work 5 days a week when required without the imposition of any bans or limitation and without stoppages.

2. To work in accordance with the lawful requirements of the Company.

3. ...

4. To work in accordance with Company directions.

5. ..."

He also agreed that, if hired,

"my continued employment may be contingent upon satisfactorily passing a physical examination at any time to establish my capability to properly or safely perform my duties."

He indicated that he had never suffered from a number of listed diseases and disabilities, including "wrist, elbow [or] shoulder ... trouble".

Also before his engagement, Mr Blackadder was medically examined by a Dr Ford who declared him fit for heavy manual work and commented:

"Slight (20%) limitation of (R) should rotation because of old (R) elbow dislocation ? fibrosis here. Shoulder would be classified as normal."

The terms and conditions of employment were and are subject to the Ramsey Butchering Services Pty Ltd (Grafton Meatworks) Australian Workplace Agreement ("the AWA"). The AWA, evidently in a form common to a number of employees at the meatworks, was signed by the applicant on 20 April 1998 and registered with the AIRC on 23 October 1998.

Prior to the respondent's purchase of the meatworks, the applicant had worked as a boner for the former owners of the abattoir for approximately six years before it was closed in December 1997. The former owners, an entity described as Gilbertsons, closed the abattoir down, claiming substantial losses and that the abattoir was no longer profitable. The applicant acknowledged that under the Gilbertsons ownership there had been a history of industrial action including limitations, bans and work stoppages. In cross examination, the applicant acknowledged that among the problems was that a number of employees were on fixed duties, and had refused to undertake other duties they were not employed to do so.

In early 1998 the respondent, under the control of Mr Stuart Ramsey, re-opened the abattoir. The applicant acknowledged that Mr Ramsey's intention was to avoid the types of industrial problems that had faced the previous owners. The meatworks were re-opened on the basis that there should be greater flexibility in the use of labour than previously. The intention to introduce flexibility into the workplace is reflected in the AWA. Subclause 35.9 of the AWA provides:

"An employer may direct an employee to carry out such duties as are within the limits of an employee's skill, competence and training: the employees will follow the direction."

While it may be inferred that the intention was to break down artificial distinctions between employees and develop a multi-skilled workforce, it is clear that employees were nevertheless not required to work outside their skill, competence and training. The terms of the AWA as properly construed would, of course, prevail over any inconsistent indication in other material that would have comprised or formed part of a common law contract.

Until the events constituting termination of his employment, the applicant worked in what was referred to as the big boning room at the Grafton meatworks and principally performed hindquarter boning work. That work is performed on pre-chilled pieces of beef carcases. On 28 September 1999 the applicant arrived at work and was directed to leave that boning room and go to the slaughter floor to perform hot neck boning, a task he had not previously undertaken. This was the first time the respondent had directed him to undertake such work, and he had not been trained in it. Hot neck boning involves "freeing" the meat from the bones from the neck to the ribs. The applicant's unchallenged evidence was that this requires greater rotational force and effort of both the wrist and elbow than general boning.

The applicant refused to perform the task and left the premises shortly thereafter. Mr Blackadder's reasons for refusing to undertake the work included that he had no prior experience or training in hot neck boning and that he was concerned about his right arm. As indicated above, the applicant has some restriction in his right shoulder due to earlier dislocations of his right elbow, such dislocations pre-dating his employment with the respondent. The applicant also believed he was being victimised for giving evidence, adverse to the respondent's interests, to the AIRC on the previous day, 27 September 1999, in respect of another unlawful termination case concerning another employee of the respondent.

On or about 25 October 1999 the applicant filed an application for relief pursuant to s 170CE of the Act with the AIRC alleging unlawful termination of his employment by the respondent on or about 5 October 1999. A hearing was conducted before Commissioner Redmond on 18 and 19 January 2000 and 17 February 2000.

On 29 March 2000 Commissioner Redmond found that the respondent had terminated the applicant's employment and that the termination was unfair, harsh and unreasonable, contrary to the Act's requirements. The Commissioner found that, motivation aside, the direction itself was unreasonable and unsafe and directly resulted in the termination of the applicant's employment. The Commissioner did not decide whether the applicant was being victimised for having given evidence.

Pursuant to s 170CH of the Act, Commissioner Redmond ordered that the applicant be reinstated without loss of continuity of service or entitlements within 21 days. The respondent was also ordered to reimburse the applicant for all lost salary and entitlements from the date of termination to the date of reinstatement less an agreed amount for salary received by the applicant through alternative employment.

3 The primary judge then set out an extract from the reasons of the Commissioner. I will refer to those reasons later in this judgment. The primary judge continued with the background:

On 3 May 2000 (after proceedings in relation to (an application to stay the order of the Commissioner)) the respondent advised the applicant by letter that he had been reinstated to his position as of 20 April 2000 but would not be required to report to work until he attended and passed a medical examination. The applicant was advised that he would continue to receive his wages, being his ordinary pay plus the average of the tally paid to all other boners in any given week, as well as receiving his other entitlements.

In the letter, the respondent's explanation for the requested medical examination was as follows:

"My reason for excusing you from physical work until further notice is that arising from the proceedings before the Commission, and the tendering of the Medical Certificate from Dr Bacon, doubts exist as to your physical capacity to perform the duties of a boner not only in relation to the duties associated with Hot Necking on the Slaughterhouse Floor but more importantly your ability to bone in the Boning Rooms given the Osteoarthritis in your right elbow. As you are aware, an absolute duty is imposed upon the Company as to your health, safety and welfare at work. Until such time as I are able to ascertain your physical condition to bone I do not wish to expose you to any risk."

The reference to the "absolute duty" was plainly founded on s 15 of the Occupational Health and Safety Act 1983 (NSW) which provides that an employer "shall ensure the health, safety and welfare at work of all the employer's employees". (That 1983 Act has since been superseded by a later statute but the relevant requirement is unchanged.) Dr Bacon's certificate was not in evidence before me.

The applicant was subsequently directed to attend a medical examination with Dr Castagna in Casino on 5 May 2000. The applicant did not attend the appointment on the bases (as put by his union and solicitors) that

* Commissioner Redmond's order for reinstatement was not conditional upon a fresh medical examination;

* the applicant was ready, willing and able to resume his pre-termination boning work;

* there had been no change in his medical condition since his employment by the respondent two years previously such as to warrant a further medical examination; and

* the applicant's solicitors further asserted that the respondent's requirement had "little or nothing to do with any concerns ... for the health, safety and welfare of this worker".

On 7 June 2000 the respondent advised the applicant that payment of the applicant's wages would cease for failure to attend the arranged medical examination. The applicant received no wages from the week ending 11 June to the week ending 23 July 2000.

On 26 July 2000 the applicant advised the respondent that he was willing to attend a medical examination. On 10 August 2000 the respondent advised the applicant that payment of his wages and other entitlements had recommenced as of 26 July 2000 and that another medical examination with Dr Castagna would be arranged. In fact, no advice of any such further examination was given to Mr Blackadder until on or about 30 January 2001, when the applicant was notified that an appointment with Dr Castagna had been arranged for 6 February 2001.

On 18 September 2000 the respondent advised the applicant that as he had not yet passed the requisite medical examination he would be required to use all accrued leave entitlements from 16 October 2000 until the total hours were "completed and thereafter, the normal arrangements [would] continue". The applicant had not sought nor consented to the utilisation of these accrued leave entitlements. Subclause 23.16 of the AWA includes:

"In lieu of paying sick leave in accordance with the foregoing provisions of this clause, an employer may give such employee five days or ten days holiday, whichever is applicable, on full pay to be added to his/her period of annual leave, or may pay him/her in lieu thereof, five days or ten days [depending on length of service], whichever is applicable, additional full pay at the time the employee commences his/her period of annual leave; provided that payment for such leave may be made, if the employee so elects during the year as occasions direct and in such case any unexpired balance of sick leave shall be paid for at the time an employee commences his/her period of annual leave."

The applicant's pay slips indicate that his accrued leave entitlements were utilised, by way of payment, as follows:

Date of pay slip Leave

22 October, 29 October, 5 November 2000 - annual leave

12 November 2000, - annual leave, rostered days off

19 November, 26 November 2000 - rostered days off

30 November, 10 December 2000 - sick leave

17 December 2000 - annual leave, rostered days off

(and normal pay for 5 hours)

On 21 December 2000 the applicant received his ordinary pay and his accrued leave entitlements were then said to include -0.53 hours in annual leave, 0.2 hours in rostered days off, and no accrued entitlement to sick leave.

On 21 December 2000 the applicant was advised by the respondent that the meatworks would be closed from 22 December 2000 to 11 January 2001 and as his accrued leave entitlements were fully expended he would receive no further pay until the meatworks re-opened after the Christmas break. A similar shut-down period over the Christmas break had occurred at the meatworks in the previous two years of operation.

On 6 February 2001, the applicant and his wife kept the appointment at Dr Castagna's rooms. The examination did not, however, take place as Dr Castagna refused to proceed whilst the applicant's wife was in attendance and the applicant declined to have her absent.

On 16 February 2001 the respondent advised the applicant that payment of his wages would cease and would not recommence until he attended a medical examination. The applicant received no wages from the week ending 18 February to the week ending 18 March 2001. The applicant again advised the respondent on 23 February 2001 that he was willing to attend a medical examination.

On 5 April 2001 the applicant underwent a medical examination by Dr Castagna. He has since continued to receive his pay and other remuneration from the respondent but has not returned to work. The circumstances of such payment do not constitute any admission by the respondent. Dr Castagna's report was not in evidence as a result of a procedural ruling.

The applicant has not undertaken full-time work at the meatworks since 28 September 1999. He has continued on a part-time basis to break horses, an activity that he had also performed prior to his termination, earning approximately one hundred dollars a week. He also continued to participate in the sport of camp drafting, occasionally earning prize money. The applicant claimed that this period of unemployment had had a detrimental effect on his skill and fitness levels. He also claimed that he had been denied the opportunity to contribute to the overall productivity of the boning team, which would have potentially increased the "overs" and wages paid.

There was evidence before me that, after Mr Blackadder's refusal to undertake the hot neck boning work, Mr Ramsey interceded to ask him to consider the consequences for his family and to change his mind.

The respondent's abattoir is the only meatworks in the Grafton district. The applicant, now aged 49 years, has lived the majority of his life in the district and has no desire to move away from the area for the purposes of employment.

CONSIDERATION OF THE ISSUES BY THE PRIMARY JUDGE

4 The orders made by the primary judge on 10 May 2002 were:

1. It is declared that the respondent breached the orders of the Australian Industrial Relations Commission (constituted by Commissioner Redmond in proceedings U No. 20951 of 1999) dated 29 March 2000 by failure to reinstate the applicant by reappointing him to the position in which he was employed immediately before the respondent terminated his services on or about 5 October 1999.

2. A penalty of $2,000 is imposed on the respondent for such breach.

3. It is declared that the respondent breached the terms of the Ramsey Butchering Services Pty Ltd (Grafton Meatworks) Australian Workplace Agreement dated 23 October 1998 ("the AWA") by failing between the week ending 11 June 2000 and the week ending 23 July 2000 to pay wages to the applicant.

4. A penalty of $500 is imposed on the respondent in respect of such breach.

5. It is declared that the respondent breached the terms of the AWA by failing between the week ending 18 February 2001 and the week ending 18 March 2001 to pay wages to the applicant.

6. A penalty of $500 is imposed on the respondent in respect of such breach.

7. The penalties imposed on the respondent are to be paid to the applicant within 28 days.

8. The respondent pay to the applicant within 28 days hereof an amount of $7,528.27 for unpaid wages under the AWA plus interest on that sum at the rate of 10% per annum, calculated on a daily basis.

9. Liberty to apply on 2 days' notice as to the amount specified in Order 7.

10. The parties are, at 9.30am on 14 May 2002, to bring in short minutes:

quantifying the interest ordered to be paid; and providing for injunctive relief to be ordered, if still sought, in the light of my reasons for decision.

5 It is convenient, at this point, to set out the orders made by the Commissioner:

1. The applicant shall be reinstated to the position in which he was employed prior to the termination of his employment without loss of continuity of service or entitlements within 21 days from the date of this decision.

2. The applicant is to be reimbursed for all lost salary and entitlements from the date of termination to reinstatement less the salary the parties agree the applicant received through alternative employment.

6 The first issue considered by the primary judge in the principal judgment was whether, having regard to the factual background described above, there had been a breach of the Commissioner's order that the respondent be reinstated without loss of continuity of service or entitlements within 21 days of the order. Central to this issue was what was meant by an order requiring reinstatement. His Honour first concluded that reinstatement involved a return to work and said:

However, in the absence of authority to the contrary, I would agree that reinstatement under s 170CH of the Act does implicitly involve a return of the employee to the workplace. The Act contemplates that it is only in circumstances where reinstatement is inappropriate that the suitable alternative is to award payment in lieu of reinstatement (s 170CH(6)). Thus, the apparent statutory purpose of the relief is to treat the dismissal as ineffective and restore the employment situation to its pre-termination status. If a direction to reinstate an employee required no more than that the employee be put back on the payroll, it is difficult to see why reinstatement would even be "inappropriate". Further, as Wilcox CJ observed in Perkins v Grace when considering the meaning of "reinstated" for the purposes of s 170EE, the predecessor of s 170CH, such meaning should be considered in light of its usage in industrial parlance. Such parlance would understand reinstatement to include reinstatement in the sense just mentioned, including all the usual incidents of the employment, such as attendance at the workplace and there being furnished with one's usual productive work.

7 His Honour then addressed what, as a practical matter, reinstatement resulting in a return to work might mean in the present case. His Honour said:

In finding that the orders did require that the applicant be returned to work, it is important to clarify what the reinstatement order required in a practical and concrete sense. Counsel for the respondent was, in my opinion, correct in saying that reinstatement does not mean that an employee acquires new legal rights but simply restores the employment relationship with all, but only, the rights and entitlements to treatment in good faith which existed between the parties prior to the termination. It is to be remembered also that such obligations of good faith are owed by both parties. Part of the background matrix of facts in this matter showed a need for reasonable flexibility, recognised in the AWA, for the deployment of employees.

What the "position" was to which Mr Blackadder was to be reinstated by reappointment (c.f. s 170CH(3)(a)) is a question of fact and, as a matter of fact, a person may hold a position under which certain work is or is not required, whether or not such position has an express classification or description (such as "boner"): see State Rail Authority (NSW) v Bauer J (1994) 55 IR 263 at 269. Commissioner Redmond was plainly of the view that Mr Blackadder's s 170CH(3)(a) position was that of a boner required to do chilled boning work in the big boning room. Of particular significance are the Commissioner's findings that:

* the applicant's pre-existing medical condition probably caused him to be unable to perform work in hot neck boning;

* the applicant had not been appropriately trained to perform the hot neck boning; and

* there was no identifiable need related to the operational requirements of the business for the applicant to be selected to perform this work.

Taking these findings into account, the order to reinstate the applicant plainly intended that he would not only receive his wages and other entitlements but, in the first instance, at least, return to his former position of employment, namely to a position undertaking boning in the big boning room.

The evidence before me indicates that Mr Blackadder would concede that his position requires that occasionally, for bona fide operational purposes of the employer, he should relieve on the hot neck boning work.

As I have indicated, the applicant's rights are as before. If he then had a legal liability to be transferred to hot neck boning, upon reinstatement he would again have such liability. If he did not, or did not until he was trained, then again he would not be so liable. If he had a liability to undergo medical examinations from time to time, on the existence of a reasonable need for them and on reasonable terms, such liability would continue. Finally, whatever mutual rights and liabilities as to transfer, removal from active work or termination of employment pre-existed his termination, they will exist again after reinstatement. Some of these matters may involve difficult questions and their resolution should await full argument, if, as I hope will not be the case, it should become necessary. In the latter regard, Commissioner Redmond's comments as to the legal necessity under the AWA (and the Act (s 170VG(3)) to set up, and resort to, a disputes committee appear apposite.

8 His Honour adverted to a matter raised in the submissions of the appellant, namely whether it had an implied contractual obligation to provide work. However, it was unnecessary for his Honour to express a concluded view about this matter. The primary judge then considered the question of whether it had been open to the appellant to impose a precondition on the respondent to undertake a medical examination prior to returning to work. In the following passage, his Honour appears to reject the suggestion that it was open to the appellant to impose this precondition:

The applicant's evidence, which was not challenged, was that he had not taken any sick leave during the course of his employment with the respondent; nor had he made any complaint that he was unable to perform his pre-termination duties. This evidence favours the applicant's claim that he is able to perform his duties. The applicant was forthcoming and truthful in his evidence including details regarding his employment and capacity to perform his duties. I accept that he had undertaken some work, described as "cold neck boning" for the previous owners, but this was different from the task required by the respondent. The applicant's evidence indicated that he was eager to return to work and was willing, provided he received training, to undertake some hot neck boning on an occasional relief basis. Mr Blackadder's willingness to perform some hot neck boning should be considered in light of Commissioner Redmond's finding that there had been no operational requirement for him to perform such work.

9 His Honour then addressed a question of whether it had been open to the appellant not to pay the respondent on two occasions when he failed to undergo a medical examination. The primary judge concluded it had not been, and, as a consequence, the appellant breached the AWA.

10 The primary judge considered whether there had been a breach of the AWA in other respects. His Honour concluded there had not been in relation to payment for annual leave. That was because the AWA had not incorporated by reference the provisions of the Annual Holidays Act 1944 (NSW) and did not otherwise deal with annual leave. His Honour also considered whether there had been breaches of the AWA in relation to rostered days off and sick leave, though his conclusions on these matters are not in issue in this appeal or cross-appeal.

11 On the question of penalty his Honour said:

In circumstances where an order of the Commission is breached, a penalty may be imposed by the Court pursuant to s 178 of the Act.

In PKIU v Vista Paper Products Pty Limited (1994) 57 IR 414, Wilcox CJ reviewed some relevant considerations in determining an appropriate penalty for defiance of the Commission's orders. In that case, his Honour formed the view that the employer's manager had developed "a stubborn determination not to take back the employees towards whom he had become extremely hostile."(at 428). His Honour found that the manager's dislike and contempt for the employees was not only apparent in the history of the matter, but also in his affidavits filed in the proceedings. His actions indicated a deliberate defiance for over two years of the Commission's authority.

The circumstances in this case are not in the same category. Here, there was a mistaken reliance on an arguable legal and factual proposition that I have rejected. The breach of the order was, however, deliberate and persisted in. I think a penalty of $2,000 is appropriate.

In respect to the breaches of the AWA constituted by the non-payment of wages following non-occurrence of medical examinations, the Court may impose a penalty pursuant to s 170VV of the Act (a breach of the AWA is a breach of s 170VT). The maximum penalty is $10,000. Penalties of $500 will suffice for each of the two instances of mistaken reliance on supposed default by the applicant.

His Honour then dealt with the question of underpayment for the periods in which the respondent received no wages for the failure to attend medical appointments. This amount was quantified as $7528.27.

12 The primary judge concluded the principal judgment by inviting the parties to provide short minutes in relation to what injunctive relief should issue by indicating that he hoped orders might be unnecessary.

13 The question of what order should be made by way of injunctive relief was not resolved by the parties and a further judgment ("the supplementary judgment") was given on 21 May 2002 concerning this matter. One issue addressed by the supplementary judgment concerned the medical condition of the respondent, and his ability to undertake the work of boner upon resuming work. On this question his Honour said in the supplementary judgment:

There is now before me material that indicates that there is no actual medical impediment to the applicant's performance of the duties which, in accordance with his concession, I found were or could be part of his ordinary obligations in the position to which he was reinstated by the Australian Industrial Relations Commission. On the other hand, there is also medical evidence that a combination of long standing conditions predisposes him to injury of the shoulder and/or elbow if he continues to undertake boning work. Nevertheless, the matter has a long history, detailed in my judgment Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603, and in my opinion it should be brought to a visible and prompt end. As Mr Blackadder, advised by his union and legal advisers, would wish me to do more than make a declaration, and as the respondent will be bound under Federal law to comply with my orders, my orders must furnish a defence to any liability the respondent might otherwise have under the State occupational health and safety laws. That is my intention.

In the result, his Honour made the following orders:

1. Leave be granted to file in court the affidavits of Nigel Bacon sworn 15 May 2001 and Francis Hannigan sworn 20 May 2002.

2. The respondent reinstate the applicant to the position in which he was employed prior to the termination of his employment, namely a boner performing chilled boning work in that part of the respondent's premises known as the big boning room;

3. Upon such reinstatement and for a period of 14 days thereafter the respondent shall furnish the applicant with his usual work in such position, excepting in case of shortage of stock to slaughter.

4. In the event of a dispute thereafter as to the applicant's physical capacity to perform the work that thereafter might lawfully be required of him, the parties and each of them are to refer the matter to the Disputes Committee established under the Australian Workplace Agreement which, as was common ground in the proceedings, binds the parties.

5. The respondent is to pay the applicant within 17 days hereof an amount of $1,100 for interest.

6. Orders to take effect on and from Monday 27 May 2002.

7. Liberty to apply to Justice Madgwick before 1pm on Wednesday 29 May 2002 as to a stay on 48 hours notice.

14 The following are the sections of the Workplace Relations Act 1996 (Cth) ("the Act") which confer power on the Commission to make the orders it did, s 170CH, and the power on the Court to ensure compliance with such orders, s 170JC. Section 170CH provides:

(1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (6) if it has determined that the termination was harsh, unjust or unreasonable.

(2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's undertaking, establishment or service; and

(b) the length of the employee's service with the employer; and

(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and

(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination, and

(e) any other matter that the Commission considers relevant;

that the remedy ordered is appropriate.

(3) If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by;

(a) reappointing the employee to the position in which the employee was employed immediately before the termination.

(b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination.

(4) If the Commission makes an order under subsection (3) and considers it appropriate to do so, the Commission may also make:

(a) any order that the Commission thinks appropriate to maintain the continuity of the employee's employment; and

(b) subject to subsection (5) - any order that the Commission thinks appropriate to cause the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination.

(5) If, as a result of an application under section 170CP, a court has awarded an amount of damages for a failure to give notice of a termination as required by section 170CM, any amount ordered to be paid by the Commission under paragraph (4)(b) in respect of the termination is to be reduced accordingly.

(6) If the Commission thinks that the reinstatement of the employee is inappropriate, the Commission may, if the Commission considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay the employee an amount ordered by the Commission in lieu of reinstatement.

(7) Subject to subsection (8), in determining an amount for the purposes of an order under subsection (6), the Commission must have regard to all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's undertaking, establishment or service; and

(b) the length of the employee's service with the employer; and

(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and

(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and

(e) any other matter that the Commission considers relevant.

(8) In fixing an amount under subsection (6) for an employee who was employed under award conditions immediately before the termination, the Commission must not fix an amount that exceeds the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the employee; or

(ii) to which the employee was entitled;

(whichever is higher) for any period of employment with the employer during the period of 6 months immediately before the termination (other than any period of leave without full pay); and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

(9) In fixing an amount under subsection (6) for an employee who was not employed under award conditions immediately before the termination, the Commission must not fix an amount that exceeds:

(a) the total of the amounts determined under subsection (8) if the employee were an employee covered by the subsection; or

(b) the amount of $32,000, as indexed from time to time in accordance with a formula prescribed by the regulations;

whichever is the lower amount.

Section 170JC provides:

(1) Part VIII has the same effect in relation to orders under this Part as it does in relation to awards.

(2) For the purpose of applying Part VIII in that way, an order under this Part is, unless the order provides otherwise, taken to bind all employers and employees of the kind covered by the order (whether or not named or described in the order).

(3) In addition to any other right that an employee covered by an order under this Part may have under Part VIII (as it applies in accordance with this section):

(a) the employee may apply to the Court to enforce the order by injunction or otherwise as the Court thinks fit; and

(b) if the order is an order under Subdivision B of Division 3 - the employee may apply to a court of competent jurisdiction as defined in section 177A to enforce the order by injunction.

ISSUES IN THE APPEAL

15 In its appeal, the appellant challenged the orders concerning the reinstatement of the respondent, submitting that an order for reinstatement simply revives the contract of employment. Ordinarily under a contract of employment, an employee does not have a right or entitlement to work. Accordingly an order cannot be made, in exercise of a power to order reinstatement (or an order requiring compliance with such an order), which confers such a right on the employee and the corresponding duty on the employer to provide work. In addition, an order cannot, or alternatively should not, be made requiring an employer to reinstate an employee on terms which might expose the employer to liability under state occupational health and safety laws. Effectively, the appellant was challenging order 3 of the orders made on 21 May 2002 and order 2 to the extent that it required the appellant to provide work as a boner to the respondent.

16 The respondent challenged orders 3 and 4 as being orders the primary judge had no power to make. Order 3 did not enforce the order of the Commissioner but, rather, limited its operation. The respondent submitted that the words "for a period of 14 days" should be deleted and the order should conclude with the words "so long as the employment relationship continued".

CONSIDERATION OF THE ISSUES

17 A convenient starting point in considering the issues raised in the appeal is to determine the nature of the power exercised by the Commission when reinstatement is ordered and the effect of such an order. The resolution of that question would inform the answer to the question of what is the nature of the jurisdiction exercised by the Court when issuing injunctive relief to enforce a reinstatement order of the Commission.

18 It can be seen that the power to order reinstatement under s 170CH can be exercised when several conditions are satisfied. The first, in subs (1), is that the Commission has found that the termination was harsh, unjust or unreasonable. Plainly enough, this part of the Act, Division 3 of Part VI, is remedial and intended to provide employees with a statutory remedy when, amongst other things, an employer terminates employment harshly, unjustly or unreasonably. The second condition concerns the matters set out in subs (2). The third is found in the opening words of subs (3), the Commission must consider it is appropriate. If it is not appropriate, the discretionary power conferred by subs (6) enables the Court to order the employer pay the former employee an amount in lieu of reinstatement. Thus the power to order reinstatement is exercised when the Commission has been satisfied about each of these matters and decides to make a reinstatement order. It should be noted that the Commission has the power under s 170JD to revoke an order made under Part VIA (which would include an order of reinstatement) and may do so (whether it is obliged to do so is an issue I need not decide) when circumstances have changed. If a final injunction had been made to enforce an order that was later revoked, then the Court would have power to dissolve the injunction: see QDSV Holdings Pty Ltd (t/a Bush Friends Australia) v Trade Practices Commission (1995) 59 FCR 301 at 315.

19 It can be seen from subs (3) that a reinstatement order can take one of two forms. It is not a bare power to simply order "reinstatement". The first, in par (a), is that the reinstatement involves reappointment of the employee to the position in which the employee was employed in immediately before the termination. The second, in par (b), is that the reinstatement involves appointment to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination. Content is given to what is meant by "reinstate the employee" in the opening words of the subsection by these two paragraphs. Nonetheless, the word "reinstate" gives colour to the nature of the obligation of an employer if an order is made under the subsection, much in the same way as a defined term can give colour to the definition: see Western Newspapers Pty Ltd v Warren (1994) 1 IRCR 393 at 412. Indeed the submissions of both the appellant and the respondent in this appeal focused almost exclusively on authorities dealing with the meaning of the words "reinstate" or "reinstatement".

20 It is true, as counsel for the appellant submitted, that an order for reinstatement might require an employer to reinstate the employment contract in circumstances where there was no work to be done by the employee. An example referred to by the appellant was Australian Workers Union v Pioneer Concrete Pty Ltd (1991) 38 IR 365, in which it was decided an order for reinstatement could be made in relation to employees who had worked at a quarry even though the quarry had closed. What could not be ordered, so the Commission found, was that the employer reopen the quarry to actually provide work at it for the reinstated employees. Another example referred to was Shop, Distributive and Allied Employees' Association v Myer (NSW) Pty Ltd (Macken J, Industrial Commission of New South Wales, 6 July 1983, unreported) in which the Commission canvassed the possibility of making an order requiring a retailer (which had sold its business to another retailer) to re-employ an employee even though no work might be provided to the employee because the retailer no longer conducted the relevant business. To these authorities could be added Sutherland v Hills Industry Ltd (Keely J, 22 September 1982, unreported) which concerned a case where an employee had been dismissed in contravention of s 5 of the Conciliation and Arbitration Act 1904 (Cth). An issue arose about whether an order for reinstatement "to his old position or in a similar position" should, as a matter of discretion, be made under s 5(5). There was some evidence that the old position no longer existed and a submission was made by the employer that, in those circumstances, no order should be made. Keely J said:

Counsel for both parties agreed that any order made by the Court should be in the form that [the employee] be "reinstated to his old position or in a similar position". [Counsel for the employer's] second submission was that it followed that the Court should not give such a direction unless it was satisfied that his old or a similar position exists saying that the order must be capable of being reasonably complied with. I reject that submission as being much too sweeping. The mere fact that a position had been abolished (if it had occurred in a particular case) in order to prevent a direction to reinstate an employee could not thwart the intention of the section but, in any event, on the facts, I am not satisfied that "his old or a similar position" does not exist.

21 However these cases concerned exceptional circumstances and do not really answer the question raised in this case, namely what is the nature of the power to order reinstatement, and the effect of such an order in circumstances where positions existed in the business of the employer of the type occupied by the dismissed employee at the time of dismissal. Many of the cases concerning what an order for reinstatement comprehends, at least in the context of New South Wales industrial laws, were considered by the Industrial Commission of New South Wales in Court Session in Retail Traders Association of NSW v Shop, Distributive and Allied Employees' Association of NSW (1990) 36 IR 38. In those authorities it is comparatively clear, to repeat some of the language used, that an order for reinstatement is not to achieve a notional or academic reinstatement but a practical one. It requires a re-establishment of the pre-existing employment relationship as a matter of reality and not in some notional or fictional way. The purpose of such an order is to place the dismissed employee in a position that he or she was in before the dismissal. It is to restore the status quo ante.

22 In relation to legislative provisions in almost identical in terms to s 170CH(3), a Full Court of the Industrial Relations Court of Australia said in Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240 at 244, concerning a case where the pre-existing position had been abolished:

We have already set out the terms of s 170EE(1)(a)(ii) of the Act. The subparagraph empowers the Court to require the employer to reinstate the employee by appointing him or her "to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination". This might be a specific position, the availability and suitability of which is revealed by the evidence. On other occasions, the Court will not specify a particular position. Provided that the Court is satisfied that reinstatement is practicable and appropriate, it is open to the Court to make an order in terms of par (a)(ii), leaving it to the employer to choose the position and to comply with the Court's order to provide terms and conditions that are no less favourable than those on which the employee was employed immediately before the termination. If this course is taken, the employer may select an existing position, or he or she may create a new position for the purpose. If the latter, contrary to the submission of counsel for the employer, it will not be to the point that, in the absence of the order, the employer might not have created the position. We appreciate that creation of a new position may occasion a cost, or other disadvantage, to the employer. Where there is evidence that this will be so, that evidence may be relevant on the issues of practicability and appropriateness. But it would be contrary to principle to treat such evidence as necessarily determinative. The occasion for the order arises because the employer has acted unlawfully in terminating the employee's employment. A reinstatement order is akin to an injunction compelling a wrongdoer to restore the position of the innocent party. In considering whether to grant an injunction, a court will always take into account the consequences of an order to the wrongdoer but the existence of adverse consequences has never been regarded as excluding the possibility of an order being made.

The employer submitted that an order that might require an employer to create a position involved something other than the exercise of judicial power. Reference was made to Queen Victoria Memorial Hospital v Thornton [1953] HCA 11; (1935) 87 CLR 144 esp at 150 in which the High Court declared invalid a provision in a Commonwealth Act conferring on a magistrate the power to require an employer to engage an employee. However that case is far removed from the present. An order made under s 170EE(1) of the Act is a remedy ordered after the determination of whether there had been a termination in contravention of the Act. The power to mould a remedy, if authorised by statute, is not inconsistent with the exercise of judicial power even if it imposes on the person bound by the order an obligation to take steps to effectuate it.

In the present case there was clear evidence of positions to which the respondent might be appointed by operation of an order for reinstatement. They were the positions occupied by the casual contract labour. No question of who bears the onus of proving impracticability thus arises proceeding, as we are, on the basis that this is a rehearing. This is so because the evidence clearly demonstrates the existence of other positions. Thus an order for reinstatement can be made requiring the employer to appoint the applicant to another position. The Court can then impose the condition that the terms and conditions of employment will be no less favourable than those enjoyed by the respondent immediately prior to his termination. It does not matter whether the position is one that would otherwise attract those terms and conditions. Accordingly we are not satisfied that the reinstatement of the appellant is impracticable."

It is to be noted that a judgment of a Full Court of that Court ordinarily would, on matters of construction, be followed in this Court: see Qantas Airways Ltd v Cornwall (1998) 84 FCR 483 at 488-491 and Commonwealth Bank of Australia v Finance Sector Union [2002] FCAFC 193 at [23].

23 The above passage illustrates that appointment to a position as a means of reinstatement entails more than paying wages or reinstating the contract of employment. It involves placing the employee back into a position, either the position formerly occupied or another position. In my opinion, the power to make an order under s 170CH(3)(a) or (b) extends to making an order requiring the employer to permit the employee to take up the position formerly occupied by the employee, or another position, including performing the duties of that position and receiving the benefits from doing so.

24 That is not to say, however, that the employer would be precluded, thereafter, from lawfully altering the position of the employee by requiring the employee to perform other duties, standing down the employee or even dismissing the employee. An employer can. However, if these steps were taken capriciously or unreasonably it may be that they could be viewed as steps designed to nullify the effect of the reinstatement order. The order is intended to have the effect earlier described and, to that extent but only to that extent, overrides any contractual or other rights the employer may have.

25 If this is the nature of the power exercised by the Commissioner, it is nonetheless necessary to ascertain what he intended by the order made on 29 March 2000. It is to be recalled that the order directed that the "applicant shall be reinstated to the position in which he was employed prior to the termination of his employment". It is not entirely clear what the effect of the order is insofar as it speaks of "reinstated to the position in which he was employed" and recourse can be had to the Commissioner's reasons in determining what the order meant: see Repatriation Commission v Nation (1995) 57 FCR 25 at 31. The Commissioner made no express positive findings concerning the work being done by the respondent prior to the termination, though he did make such findings in relation to the work the respondent was requested to do, namely hot neck boning. The Commissioner found, on balance, the respondent had a pre-existing medical condition that meant he was unable to perform the work of hot neck boning, and he was not trained to do that work. It is therefore unlikely that the order for reinstatement was intended to bring about a situation where the appellant would be doing hot neck boning.

26 It is clear from the Commissioner's reasons, read as a whole, that he thought it was unfair of the appellant to request the respondent to move from the work he had been doing to perform hot neck boning work. Indeed it is clear that the Commissioner concluded that the termination both arose from the direction (to do hot neck boning), and was unreasonable because of that direction. While it is not stated expressly, it is tolerably clear that what the Commissioner had in mind was that the respondent would, by operation of the order, take up employment again in the position of boner doing the work he had done before the direction to transfer to another part of the abattoir to do hot neck boning.

27 To construe the order this way has some support in the authorities quite apart from what can be gleaned from the Commissioner's reasons and the terms of the order itself. Perhaps on one view the "position" of boner to which the respondent was to be reinstated was a technical position description of "boner" (which might include hot neck boning). On another the "position" was the practical work that the respondent had been regularly engaged in prior to his termination (boning conducted solely in the big boning room). The meaning of the word "position" in an employment context was considered in State Rail Authority of New South Wales v The Honourable Justice Bauer (1994) 55 IR 263 (and in the related matters of State Rail Authority of New South Wales v Tyrrell (1993) 49 IR 236 at 240-241 and State Rail Authority of New South Wales v Tyrrell (No 2) (1993) 51 IR 14 at 19-20).

28 That matter related to a dispute which arose after a State Rail Authority employee was injured at work. Following the injury, he was moved onto "light duties" which he went on to perform for a period of six years, after which time he was dismissed. It was common ground between the parties that the employee had been dismissed as he was unfit to work in the position of labourer/acting storeman class 3, which had been his position prior to the injury. The employee sought an order he be reinstated and the issue arose as to the position he could be reinstated to by operation of any order. The case related to s 154C of the Industrial Arbitration Act 1940 (NSW), which enables an injured employee who is dismissed as a result of an injury to apply to the employer for reinstatement to his or her former position and, if necessary, seek an order to that effect. In the Bauer case, Sheller JA addressed circumstances where the work actually performed by an employee may differ from the broader position description:

"Bauer J...when he came to construe the legislation...suggested five possible meanings of the word "position": "(a) the actual job which the worker was doing when he was injured (b) the actual nominal job classification in which the worker was employed at the time of the injury (here Storeman, Class 3) (c) a job which whilst not the same as that being done at the time of injury is similar both in wages or in the level of `fitness' required (d) a job which, though requiring a lower level of fitness, was suitable for the level of fitness of the worker after the injury (e) a job that the worker was actually doing at the time of the dismissal".

...

As Bauer J pointed out, if a person is employed as a labourer, that person may hold a position, whether it has an express classification or description or not, whereunder heavy labouring work is required. By the same token, whether so classified or described, a person may hold a position whereunder only light labouring work is required. It is open to find that these are different positions."

29 Sheller JA concluded that the employee was entitled to reinstatement to the position in which he had been performing light duties, and the provision did not operate on the footing that the only reinstatement available was to the substantive position in which he was classified. While plainly the legislation considered in that case was directed to a specific statutory purpose, namely the protection of injured workers, there is no warrant for concluding, in my opinion, that beneficial legislation intended to protect employees who have been unlawfully dismissed, embodied in Division 3, cannot be given effect to by means of orders of the Commission with similar practical effect.

30 The primary judge was, in this matter, correct in concluding that the order of the Commissioner was to reinstate the respondent to a position undertaking boning in the big boning room, and that the appellant had not complied with that order. That is not to say that the Commissioner intended that the appellant could not exercise such rights as it had under the AWA to ask the respondent to perform other duties. But the existence of those rights does not deny the intended effect of the order.

31 It is now necessary to turn to the nature of the jurisdiction exercised by this Court under s 170JC(3) as part of considering the submissions that the primary judge had no power to make two of the orders he did. It can be seen from the terms of s 170JC that the Court's function is to determine whether injunctive relief should issue effectively enforcing an order of the Commission. As far as I am aware, there has been no discussion of the nature of the Court's jurisdiction under this section. I should note, parenthetically, that there is no issue raised in these proceedings about the nature of the Commission's jurisdiction and whether it involves the exercise of judicial power. Nor is it suggested that the power exercised by the Court under this section does not involve the exercise of judicial power: for a discussion of the issue more generally see King v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 1900; (2000) 109 FCR 447. However a power similar, in principle, to that exercised under s 170JC is exercised by the Court under s 127(6). That is, a power to require compliance with an order of the Commission by injunctive relief.

32 The nature of the power conferred by s 127(6) was considered by North J in Australian Paper Ltd v Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15. Of this power, his Honour said at 16-17:

On 10 March 1998, the applicant filed an application in this Court for injunctions under ss 127(6) and 127(7) of the Act. Section 127(6) provides:

"The Court may, on the application of a person or organisation affected by an order under subsection (1), grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person or organisation:

(a) has engaged in conduct that constitutes a contravention of subsection (5); or

(b) is proposing to engage in conduct that would constitute such a contravention."

The present application is brought under s 127(7), which provides:

"If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (6)."

The power to grant an injunction is a discretionary power in very wide terms. The word "may" in s 127(6) is used in a permissive sense (Acts Interpretation Act 1901 (Cth) s 33(2A)). Even if the Court determines to grant an injunction, the terms may be moulded to meet the needs of the particular circumstances. The power to grant an interim injunction is in equally wide terms.

The jurisdiction of the Court arises only if there is an order made by the Commission and a person or organisation has contravened or proposes to contravene that order. Sections 127(6) and (7) are sometimes loosely referred to as provisions for the enforcement of orders of the Commission by the Court. While this approach describes the result in some cases, it does not adequately explain the role of the Court. The Court only acquires jurisdiction if the Commission has made an order, but the mere fact that the Commission has made an order does not mean that the Court is bound to, or will grant, an injunction. The grant of an injunction is an independent function performed by the Court. The Court is not entitled to grant an injunction without satisfying itself that an injunction is appropriate in all the circumstances. In performing its function, the Court will determine whether the respondents have contravened, or propose to contravene, the Commission's order and will take into account the circumstances of such industrial action to establish whether the circumstances justify the grant of an injunction. The proceedings in the Commission leading to the making of the order under s 127(1), the positions put by the parties to the Commission, the decision of the Commission, and the responses of the parties to that decision may well be relevant facts bearing on whether the Court should grant an injunction. The independent function of the Court follows from the different roles the Court and the Commission perform under s 127. The order of the Court may be enforced through contempt proceedings, by fine, sequestration or imprisonment. Thus, in determining whether to grant an injunction, the Court must consider whether, if there were to be conduct in breach of the injunction, it would be of such nature or effect that, in all the circumstances, it should carry the possible consequence of a fine, sequestration or imprisonment. These considerations do not arise when the Commission makes an order under s 127(1).

By conferring a power on the Court expressed in terms of a power to grant an injunction, Parliament intended that the Court would be guided by the principles established by equity for the grant of an injunction. The Act does not modify the principles applicable to injunctive relief as do some statutes providing for a remedy by way of injunction. Examples of such statutes are collected by Gummow J in Ricegrowers' Co-operative Ltd v Howling Success Australia Pty Ltd (1987) ATPR 48,489, at 48,492; Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543, at 548; and ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248, at 254. See also I.C.F. Spry, Equitable Remedies, 5th ed (1997), at pp 444-446.

These observations generally are apt to apply to the exercise of the power conferred by s 170JC(3). However two further observations can be made. The first is that the terms in which the power is conferred do not indicate that it can be exercised by the Court only in circumstances where the reinstatement order (or other order made by the Commission under Part VIA) has not been complied with or has been breached. One could expect, ordinarily, that a party would have recourse to the Court for injunctive relief when there had been non-compliance. However there is no reason, in my opinion, to read down the section so as to limit the Court's power to issue relief in those circumstances.

33 The second observation is this. If, as discussed earlier, a reinstatement order is made requiring the employer to place the employee back in the same position, the order modifies, to that extent, the contractual and other rights (such as rights under an award or an AWA) of the employer. Also, as discussed earlier, an employer could not capriciously or unreasonably seek to frustrate the reinstatement order by subsequent action. A failure to give effect to the order, if it is later supported by an injunction of this Court, would put the employer at risk of being in breach of the injunction and in contempt of the Court: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 at 46-47. In addition, in appropriate circumstances, an employee who has the benefit of an order of the Court (and, in addition though probably less likely, an employer affected by the order) might approach the Court for ancillary relief if the injunction supporting the reinstatement order was being frustrated by the conduct of a party bound by it. The role of the Court in such circumstances is a limited one and the applicable principles were considered by R D Nicholson J in two related judgments, Maritime Union of Australia v Geraldton Port Authority (2000) 106 IR 119 and Maritime Union of Australia v Geraldton Port Authority [2001] FCA 236; (2001) 111 FCR 434.

34 The immediate issue raised in these proceedings is whether the primary judge could and should have made the third and fourth order of 21 May 2002. Both the appellant and the respondent challenged the fourth order and submitted the primary judge had no power to make it. I understood that both parties consented to that order being set aside. Without expressing a view as to the power of his Honour to make the fourth order, I am prepared to give effect to the agreement of the parties and set aside that order.

35 Thus the remaining issue is whether the primary judge had power to make the third order and, if so, whether the exercise of his discretionary power to make it miscarried, in the sense discussed in House v R [1936] HCA 40; (1936) 55 CLR 499. His Honour concluded that the appellant had breached the reinstatement order. This conclusion is correct. Before the Commissioner, the medical condition of the respondent and his capacity to perform work was an issue. It does not appear to have been argued by the appellant, or argued successfully, that the medical condition of the respondent precluded him resuming employment and doing the boning work in the boning room that he had done before the attempt was made to transfer him to hot neck boning. It was not open to the appellant, in my opinion, to raise as a reason for not giving effect to the order of the Commission, the medical condition of the respondent.

36 It is to be recalled that the appellant, after the Commissioner made the order, wrote to the respondent indicating that it had concerns about his physical capacity to perform his work and excused him from further attendance at work. The relevant parts of the letter were quoted by the primary judge in a passage set out at [3], above. The appellant apparently decided to take this approach because of medical evidence tendered in the Commission. However the time and place to explore the relevance of that evidence was during the hearing in the Commission. In many respects the determination of the Commission is final: see Miller v University of New South Wales [2002] FCA 882; (2002) 115 IR 404. It was not open to the appellant to seize on that evidence so as to deny the respondent the benefit of the Commission's order.

37 As to the power of the primary judge to make the third order, it is necessary to bear in mind, having regard to what has been said to this point, that had the third order only operated at the immediate point in time the respondent first resumed employment (in the sense of recommencing to perform his duties) pursuant to the second order, it would have been unexceptionable. The third order would have simply stated in express terms what the second order required. Approached in this way, the question is whether his Honour had power to require that state of affairs (the respondent performing his duties as a boner doing chilled boning work in the big boning room) to continue for 14 days, or, as the respondent would have it, continue for as long as the employment relationship continued (though the respondent effectively submitted that any such order was required to be of that duration).

38 His Honour, in making the third order in the terms he did, was endeavouring, in a practical way, to resolve what was or may have become an intractable problem involving conflict between the appellant and the respondent. However, the power conferred by s 170JC is, in terms, to enforce the order made by the Commission. If the order required, as I earlier discussed, the reinstatement of the respondent by him resuming his former duties then an order effectively requiring that situation to continue for 14 days went beyond what was necessary or appropriate to enforce the order made by the Commission. The order did not accommodate the possibility that the appellant might lawfully require the respondent to perform other duties in that period of 14 days if he was fit to do so or even terminate his employment, if to do either was lawful and not for the purpose of defeating or frustrating both the injunction issued by this Court and the order of the Commission. Accordingly, the primary judge should not, in my opinion, have included in the third order the words "and for a period of 14 days thereafter". It follows from what I have said that I reject the submission made by the respondent as to the form the third order should have taken.

39 The last issue is whether the primary judge erred, when exercising his discretionary power to make the second order and the third order (and, I apprehend, even if modified in the way I have just discussed). The gravamen of the appellant's submission was that an order requiring the appellant to allow the respondent to resume his duties as a boner effectively required it to employ someone doing work in circumstances where the employee was at risk of injury because of a pre-existing medical condition. This was said, in a fairly general way, to contravene state occupational health and safety laws. The issue arose because by the time the primary judge was considering whether to grant the injunction, there was medical evidence led by the appellant (in a report dated 17 May 2001 by a doctor who, having regard to his qualifications, appears to be an obstetrician and gynaecologist) which may have raised a question about the respondent's ability to perform any boning work and the possible adverse impact on his health of doing so. There was medical evidence that the respondent had led which was to the opposite effect. His Honour's approach to this evidence was to say (in the passage set out at [13] above) that compliance with any order this Court made would furnish a defence to any liability under those state laws. Again, his Honour was endeavouring, in a practical way, to resolve what was or may have become an intractable problem involving conflict between the appellant and the respondent.

40 However, I am not confident that this approach involves an appropriate exercise of the discretion to grant an injunction effectively requiring an employee to resume employment he may not be able to do at all or at least without possible future injury to himself. That is, in the face of the evidence it may well have been necessary for the primary judge to determine, as a matter of fact, whether engaging in this employment was possible or might expose the respondent to further injury. However, as a result of a direction made by a Full Court on 29 May 2002, an up-to-date medical report (dated 8 October 2002 and based on an examination undertaken that day) has been obtained by the appellant. The respondent sought to tender the report in this appeal. Its tender was not opposed by the appellant. It is plainly relevant evidence that was not available when the matter was heard by the primary judge and should be admitted: see Cottrell v Wilcox [2002] FCAFC 53 at [16]- [24].

41 The report was from Dr Hefner and said:

Re: Steven BLACKADDER

Could I qualify my remarks concerning this man, on the basis of being an Orthopaedic Surgeon, certainly not an Occupational Therapy medicine man, nor somebody who knows all about abattoir work although I have toured of the local Macksville abattoir and seen what these people do.

Steven Blackadder presents today 8.10.02, looking as a fit man, no obvious fat on him, no obvious disabilities and was quite open and honest about his condition, informing me that he had had a right elbow problem for a long time, having had a dislocation at the age of 18 years, having a further dislocation back in 1982 which resulted in him having an anaesthetic to have it replaced, he then went on as your work history detailed, to work successfully as a boner working with big portions of meat, but as he said he could managed [sic] that with his right hand, if he used his knife in the correct manner and did a slashing type action.

At the moment he has been 3 years off work, which means that if he did go back to work, he would need to come back on a restricted basis to gradually build up to the full strength and full requirements of working on the meat chain. This is not an unusual practice in the abattoirs as I believe in the past this is how people are brought back in to work.

Looking at him physically, as I said he is physically very well. The most important thing is his right elbow, when you look at his right elbow he has an elbow with deformity around it, he has no pain in it at this point in time, he has restriction in movement, meaning he cannot fully extend it, and he cannot do full flexion so his range of movement is from 25-130º, he has a valgus deformity of 30º, and he has no evidence at this point of ulnar nerve entrapment or problems.

The other movement which he cannot do properly, is supination or pronation, he has only half that range of movement.

I saw xrays today dated June 2002, and they certainly show an osteoarthritis with gross osteophytes, narrowing of joint space and all the usual features suggestive of a long-standing osteoarthritic process.

To answer your questions, my findings on examination is that this man has an osteoarthritic right elbow.

The treatment at this stage is that he requires no treatment. If the patient had pain and requested treatment he could be sent to one of the better elbow men who may carry out a debridement of all those particles, but whether that would give him any better function or long-term relief would be debatable.

I would consider this man could return to his previous position, that of being a hind-quarter boner, but he would have to come back to work on a gradual basis to work things in so he doesn't get a lot of tendonitis and problems of that nature.

You have asked me as an Orthopaedic Surgeon would he be able to perform hot-neck boning, from what I could gather I would have to say NO, simply because part of the knife action there is a twisting action which involves supination and pronation of the forearm, and this man is already limited in that ability to do that.

To answer question 5, you would have to get an Occupational Therapy person to work that out for you.

To answer question 6 that would have to be worked for the patient by an Occupational person who could put him through the paces in the appropriate work place.

The overall prognosis is that this man has an osteoarthritic process affecting his right elbow, at this point in time there is no pain or restrictions on him doing most normal activities, if he has been previously able to work as a boner in a normal boning room then I am sure he could go back to that with appropriate support from the work place.

Yours sincerely

(PA HEFNER)

42 This report constitutes clear, recent and expert opinion that the respondent can perform the work he was performing at the time of his termination and to which, by operation of the Commission's order, he was to resume performing. It is not said in the report that to do so will have an adverse effect on his health. In those circumstances even if the primary judge erred in the way he dealt with the medical evidence current at the time he was considering whether to grant an injunction, it is an error that does not warrant correction by this Full Court on appeal.

43 In the result, the appeal should be allowed in part. Order 4 of 21 May 2002 should be set aside and order 3 varied by deleting the words "and for a period of 14 days thereafter" but the appeal otherwise dismissed.

44 Since preparing the above reasons, I have had the opportunity of reading the reasons for judgment of the majority, Tamberlin & Goldberg JJ. It would be apparent from what I have already said that I respectfully disagree with their analysis. Given the potential importance of the issues raised in this appeal having regard to the approach of the majority, I should make some further observations. In my respectful opinion, the majority do not give sufficient weight to the development of the jurisprudence in this country concerning what is meant by reinstatement, and narrowly and inappropriately focus on contract law to answer the questions raised in this appeal. The Industrial Commission of New South Wales has exercised a reinstatement jurisdiction since 1902. The first reinstatement order it made was in Newcastle Wharf Labourers' Union v Newcastle and Hunter River Steamship Co Ltd [1902] AR (NSW) 1. The manner in which the power to order reinstatement has been exercised (and, in particular, what has come to be viewed as the seminal judgment in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95) has been influential in the development of jurisprudence in other States where industrial tribunals have exercised a similar power, and also relevant to the approach of the High Court to issues presented for determination from time to time. Of particular relevance in this appeal, is that the approach in Re Loty has been adopted by Parliament as the touchstone for the exercise by the Australian Industrial Relations Commission of its jurisdiction concerning termination of employment including the grant of remedies such as ordering reinstatement under s 170CH(3).

45 As a result of a series of decisions of the High Court and limits arising from federal law (discussed at [7.40] of the report of the 1985 Hancock review of the Australian Industrial Relations Law and Systems), the Australian Conciliation and Arbitration Commission was viewed as having no substantive power to order reinstatement. The exercise of such a power would rarely involve conciliation or arbitration to prevent or settle an interstate industrial dispute and might often involve the exercise of judicial power: see R v Gough; Ex parte Cairns Meat Export Co Pty Ltd [1962] HCA 56; (1962) 108 CLR 343, R v Portus; Ex parte City of Perth [1973] HCA 64; (1973) 129 CLR 312 and R v Gough; Ex parte Meat & Allied Trades Federation [1969] HCA 71; (1969) 122 CLR 237. It was thought by many that after the judgment of the High Court in Re Ranger Uranium Mines Pty Ltd; ex parte Federated Miscellaneous Workers Union of Australia [1987] HCA 63; (1987) 163 CLR 656, the law may have altered and previous limits on the federal tribunal's power might not operate so restrictively.

46 However, the judgment of the High Court in the Re Federated Storemen & Packers Union of Australia; ex parte Wooldumpers (Victoria) Ltd [1989] HCA 10; (1989) 166 CLR 311 suggested otherwise. In the result, the Commonwealth Parliament enacted in 1993, the Industrial Relations Reform Act 1993 (Cth) which, inter alia, created the Industrial Relations Court of Australia and conferred on it a power to grant remedies in respect of an unlawful termination (see Subdivision C of Part VIA and Division 3 more generally). The grant of such a power by the Australian Parliament was a very significant step in the regulation of the workplace by federal law, and included a power to reinstate the employee (s 17EE(2)(b)). The indirect source of the Commonwealth's legislative power was principally the Convention Concerning Termination of Employment at the Initiative of the Employer to which Australia was a signatory. The Industrial Relations Court rejected the notion that its jurisdiction was on all fours with that of state industrial tribunals exercising a power to order reinstatement on the basis that the parties should have "a fair go all round": see Liddell v Lembke t/a Cheryls Unisex Salon (1994) 56 IR 447 and Fryar & Simpson v Systems Services Pty Ltd (1995) 60 IR 68. Particularly relevant, for present purposes, was the judgment of Gray J who expressly rejected the notion (in Fryar & Simpson v Systems Services Pty Ltd (supra) at 90) that under the applicable federal law the Court was to ensure that the parties were to have a "fair go all round" in accordance with the principles discussed by the New South Wales Industrial Commission in Re Loty.

47 However the legislative scheme introduced in 1993 (and later modified) was to change as a result of the enactment of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) which introduced the provisions that need to be construed in this appeal. This amending legislation effectively abolished the Industrial Relations Court of Australia and, to the extent that there was to be a statutory right to seek the remedy of reinstatement under federal law, it was by application to the Commission and not the Federal Court (other than in very limited and narrow circumstances). These amendments made it clear that the powers exercised by the Commission were, in principle, to be exercised in the way discussed in Re Loty: see the judgment of O'Loughlin J in Robertson v South [2000] FCA 1402. So much is apparent from s 170CA which provides:

"(1) The principal object of this Division is:

(a) to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee's employment in certain circumstances; and

(b) to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and

(c) to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable; and

(d) to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and

(e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivisions D and E, to assist in giving effect to the Termination of Employment Convention.

(2) The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a "fair go all round" is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95. "

(Emphasis added)

48 Thus Parliament intended that the nature of the power exercised by the Commission to order reinstatement was to be understood in the light of the principles discussed in Re Loty to which I now briefly make mention. The case was an unusual one. Two clerical employees of the Australian Workers Union were dismissed during a period of intense internal division within the union. Their union, the Federated Clerk's Union of Australia, brought proceedings in the Industrial Commission of New South Wales seeking their reinstatement. One employee, Miss Holloway, was successful and the other, Mr Loty was not. In his judgment ([1971] AR (NSW) 95 at 99) Sheldon J made it clear that the notion of "a fair go all round" is not concerned with contractual rights (for example, that the dismissal may have involved the lawful exercise of a contractual right by the employer) but involves an evaluation of the industrial justice of making a reinstatement order which includes (see 99) the "likely practical outcome if an order of reinstatement is made". This observation is directed to the practical outcome of making an order requiring the employer to provide, on one hand, and enabling the employee take up, on the other, work at the point of reinstatement of the type being done at the time of dismissal. Indeed his Honour said (see 106) in relation to whether a reinstatement order should be made for Miss Holloway:

"An award of reinstatement is not a guarantee of permanent employment. It is a restoration of the status quo where a dismissal is regarded by an arbitrator as having been unfair. This point needs special emphasis in this case. If I make an award of reinstatement in this case, it would be in order to put the parties in the position where they would have been as from 8^th February if the dismissal had not take place. The future would depend upon events but if co-operation proved impossible either through Miss Holloway's fault or, after a fair trial, because of invincible incompatibilities in temperament and outlook, the Commission would not intervene again. It has no right to try and run the branch office by remote control. Its sole right is to require the parties to start again from the point where an injustice occurred.

Subject to what I say later, I think that, although it is close to the border, a case has been made out for reinstatement ".

49 Ultimately an order for reinstatement was made in relation to Miss Holloway but on the condition that she, inter alia, "cooperate in the performance of her work" with the union officials (see 107). Mr Loty was unsuccessful because Sheldon J considered he would not be able, if reinstated, to do the work he had done at the time of dismissal. It was the nature of that work (for example, representing the union in industrial tribunals) that led to his Honour to conclude a reinstatement order should not be made (see 109-110). It is beyond doubt, in my opinion, that Sheldon J approached the entire question of effecting "a fair go all round" on the footing that if a reinstatement order was made it would entail the employee resuming work in the position formerly held. That is, performing the duties of the position from which the employee was dismissed and in respect of which the reinstatement order was to operate.

50 The importance of Re Loty as establishing accepted principles to be applied in claims for reinstatement was recognised by the High Court in its joint judgment in Re Ranger Uranium Mines Pty Ltd; ex parte Federated Miscellaneous Workers Union of Australia (supra). Re Loty was decided in 1971. In the same year the High Court had occasion to consider the jurisdiction of the Industrial Relations Commission of New South Wales (more precisely a conciliation committee exercising the same powers as the Commission) to deal with an application for the reinstatement of a council employee: see North West County Council v Dunn [1971] HCA 34; (1971) 126 CLR 247 (argued, it would appear, at about the same time as Re Loty). In issue was the interaction of the legislation under which the Commission operated and provisions in the Local Government Act 1919 (NSW) dealing with the dismissal of council employees. Walsh J gave the leading judgment. His Honour referred to then existing principles governing the reinstatement jurisdiction of the Commission. It did not differ markedly from the principles discussed in Re Loty. His Honour indicated (at 263) that an application for reinstatement (under s 74 of the relevant legislation) did not involve an investigation of the respective legal rights of the employer and the employee but rather the question of whether the legal right of the employer (to dismiss) had been exercised so harshly or oppressively against the employee as to amount to be an abuse of that right. The relevant inquiry was not what the employer had the right to do but rather what the employer ought to do or to have done. In my opinion this approach is consistent with a reinstatement application (and the remedy) not being concerned with contractual rights but, as indicated earlier in these reasons, with reinstatement in a real and practical way.

51 I should mention one further High Court authority. It does not directly concern Re Loty though does deal with what is comprehended by reinstatement. It concerned the powers of an industrial tribunal under Victorian legislation to order reinstatement. In this matter the High Court had occasion to consider the correctness of a decision of the Supreme Court of Victoria, namely R v Marshall; ex parte Plumrose (Australia) Ltd [1983] 1 VR 469. In the High Court, the leading judgment was of Wilson J (Mason and Deane JJ agreeing) who said (at 515):

With all respect to their Honours in Plumrose, I would make three comments about that decision. First, a clear distinction should be drawn between employment of a person and reinstatement of a recently dismissed employee. As the court rightly observed, the power to direct that A employ B is a very drastic one. It is not lightly to be inferred in the absence of compelling language. But the difficulty of drawing such an inference is perhaps very much less in a case where, in the context of arbitrating a dispute concerning the fairness of a recent dismissal, a claim for reinstatement is made. The fact that industrial legislation in other places may expressly confer such a power does not necessarily deny its availability in the absence of such express mention; on the contrary it may serve to identify such a remedy as forming part of the recognised armoury of available remedies in the modern pursuit of harmonious industrial relations. However, it will always be a power to be exercised with caution having regard to the circumstances of the case. There will be many cases where the working relationship of employer and employee is so close that to impose such a relationship by an award would be quite destructive of industrial harmony.

Wilson J was plainly proceeding on the basis that an order for reinstatement would bring about the performance of work of the reinstated employee. It is for this reason, as it was in Re Loty, that the power to order reinstatement must be exercised with considerable caution and with an eye to what will happen if the employee resumes working in his or her former position. Indeed, as I discussed earlier in these reasons, this is doubtless why Parliament has required the Commission to consider a variety of matters before proceeding to order reinstatement.

52 As noted earlier, Re Loty has been adopted in various state tribunals as establishing the relevant principles for determining whether an order should be made reinstating an employee to his or her former position: see in Victoria, Re Registered Nurses Conciliation & Arbitration Board (1984) 9 IR 19 at 30; in Queensland, as an example, in Cook v Department of Primary Industries (IRC (Qld), Commissioner Swan, 22 May 1997, Unreported); in South Australia in Gnatenko v General Motors-Holdens Ltd (1976) 43 SAIR 760; and in Western Australia in Deng v Sin-Aus-Bel Pty Ltd t/a The Ascot Inn (1997) 77 WAIG 1091, where Sharkey P said:

In this jurisdiction, as in all others, it is the overriding concept of fairness that governs the exercise of the Commission's powers. The classic statement of fairness is that of Sheldon J of the former New South Wales Industrial Commission in In re Loty and Holloway v AWU (1971) AR 95 at 99, adopted in Miles and Others t/a Undercliffe Nursing Home v FMWU 65 WAIG 385 (IAC) as follows:

The jurisdiction has been variously stated: in re Loty and Holloway v Australian Workers' Union (1971) AR 95 at 99 Sheldon J said that even though in the dismissal be it summary or on notice, the employer has not exceeded his common law and/or award rights, the Court was entitled to enquire as to whether the employee had received "less than a fair deal". He also approved what had been said in an earlier case whether there had been "a fair go all round". In a later case Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union (New South Wales Branch) (1973) AR 231 at 233 Watson J thought that even if there are grounds for terminating the contract of employment it was still open to the tribunal to examine the severity or otherwise of the step of dismissal.

53 I am not aware of any suggestion in any state jurisdiction that a reinstatement order, if made, does not contemplate the reinstated employee being permitted to resume work in a real and substantial way. That is, performing the work performed at the time of dismissal (if reinstated to the pre-existing position).

54 I accept, on the facts of this case, an issue might arise about the nature of the duties of the respondent at the time of his dismissal. He was not then working. I have taken the view, for reasons given, that the Commissioner who made the reinstatement order contemplated that the respondent would return to work performing the duties of a boner. On the other hand, it might be thought (though, in my opinion, wrongly) that the order contemplated the respondent would return to performing no duties because he was performing none at the precise time of dismissal. However the judgment of the majority does not appear to turn on that factual distinction. Rather it appears to propound a general principle that if a reinstatement order is made there is no obligation on the employer to allow the reinstated employee to resume the duties being performed at the time of dismissal. That approach overlooks, in my respectful opinion, the effect of the reinstatement order at the point of reinstatement and its modification of any contractual rights the employer may otherwise have had at that time.

I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 21 February 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 472 of 2002

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RAMSEY BUTCHERING SERVICES PTY LTD Appellant/Cross Respondent
AND:	STEPHEN BLACKADDER Respondent/Cross Appellant
JUDGE:	MOORE, TAMBERLIN & GOLDBERG JJ
DATE:	21 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

TAMBERLIN AND GOLDBERG JJ:

55 The background and facts giving rise to this appeal are set out comprehensively in the reasons for judgment of Moore J which we have had the benefit of reading in draft.

56 This appeal concerns two questions of principle which arise for consideration under provisions of the Workplace Relations Act 1996 (Cth) ("the Act"). The questions are:

(a) does the power of the Australian Industrial Relations Commission ("the Commission") found in s 170CH(3)(a) of the Act, which enables it to make an order requiring an employer to reinstate an employee where it has made a finding that the employer terminated the employee's employment in circumstances which were harsh, unjust or unreasonable, extend to requiring or ordering that the employer provide work for the employee upon reinstatement?

(b) what is the extent of the power of the Court under s 170JC(3)(a) of the Act to enforce such an order by injunction?

Whilst we respectfully agree with the conclusion reached by Moore J in respect of the second question, we have reached a different conclusion to Moore J in relation to the first question. For reasons to which we shall refer, we are of the opinion that par 2 of the order referred to in par [59] below should be varied by deleting the words "namely a boner performing chilled boning work in that part of the respondent's [Ramsey's] premises known as the big boning room" and that par 3 of the order should be set aside. However, like his Honour, we are prepared to give effect to the agreement of the parties that par 4 of the order referred to in par [59] below be set aside.

57 On 29 March 2000 the Commission made the following order:

"1. The applicant [the respondent to the appeal] shall be reinstated to the position in which he was employed prior to the termination of his employment without loss of continuity of service or entitlements within 21 days from the date of this decision.

2. The applicant is to be reimbursed for all lost salary and entitlements from the date of termination to reinstatement less the salary the parties agree the applicant received through alternative employment."

58 Thereafter the appellant, ("Ramsey"), agreed to pay the respondent, ("Mr Stephen Blackadder"), his remuneration which applied as at the date of his earlier termination but would not supply him with work unless he was prepared to undertake a medical examination, which Mr Blackadder effectively declined to do.

59 Mr Blackadder commenced a proceeding in the Federal Court pursuant, inter alia, to s 170CH of the Act seeking an order enforcing the order made by the Commission. On 21 May 2002 a judge of the court made, inter alia, the following orders:

"2. The respondent [the appellant to this appeal] reinstate the applicant to the position in which he was employed prior to the termination of his employment, namely a boner performing chilled boning work in that part of the respondent's premises known as the big boning room;

3. Upon such reinstatement and for a period of 14 days thereafter the respondent shall furnish the applicant with his usual work in such position, excepting in case of shortage of stock to slaughter.

4. In the event of a dispute thereafter as to the applicant's physical capacity to perform the work that thereafter might lawfully be required of him, the parties and each of them are to refer the matter to the Disputes Committee established under the Australian Workplace Agreement which, as was common ground in the proceedings, binds the parties.

5. The respondent is to pay the applicant within 17 days hereof an amount of $1,100 for interest.

6. Orders to take effect on and from Monday 27 May 2002.

7. Liberty to apply to Justice Madgwick before 1pm on Wednesday 29 May 2002 as to a stay on 48 hours notice."

60 Ramsey appealed against those orders, relying upon the following grounds of appeal:

"2. His Honour erred in law in concluding that the effect of an order of reinstatement under the Workplace Relations Act is to require the former employer not only to reinstate the employment relationship but to create a duty to provide work.

3. His Honour's error of law in relation to the reinstatement led his Honour to misconstrue the obligations imposed on the appellant by the Australian Workplace Agreement binding upon the appellant and the respondent.

4. To the extent that his Honour had jurisdiction to order that the appellant provide work to the respondent his Honour erred in the exercise of that jurisdiction in directing that work be provided in the face of medical evidence, accepted by his Honour, that the respondent was not fit for the work in question."

61 Section 170CH of the Act is in the following terms:

"(1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (6) if it has determined that the termination was harsh, unjust or unreasonable.

(2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's undertaking, establishment or service; and

(b) the length of the employee's service with the employer; and

(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and

(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and

(e) any other matter that the Commission considers relevant;

that the remedy ordered is appropriate.

(3) If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by:

(a) reappointing the employee to the position in which the employee was employed immediately before the termination.

(b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination.

(4) If the Commission makes an order under subsection (3) and considers it appropriate to do so, the Commission may also make:

(a) any order that the Commission thinks appropriate to maintain the continuity of the employee's employment; and

(b) subject to subsection (5)--any order that the Commission thinks appropriate to cause the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination.

..."

62 The issue which arises concerns the extent of the power to make an order requiring Ramsey to reinstate Mr Blackadder by reappointing him to the position in which he was employed immediately before the termination of his employment. Ramsey contends that the concept of reappointing Mr Blackadder to the position in which he was employed requires looking at the contract under which he was employed and then reappointing him to the position provided for in that contract, without there being any requirement on such reappointment for Ramsey to provide Mr Blackadder with the same work he was undertaking prior to his termination, or indeed any work at all.

63 Mr Blackadder was employed as a boner in Ramsey's abattoir at Grafton and his employment was regulated by an Australian Workplace Agreement ("the AWA"). There was no provision in the AWA whereby Ramsey was obliged to supply or provide Mr Blackadder, or any other employee subject to its terms, with work. Ramsey's submission therefore was that if the Commission had power under s 170CH(3)(a) to require Ramsey to provide work to Mr Blackadder upon his reinstatement then he was obtaining more than that to which he was entitled under his contract of employment.

64 Mr Blackadder contends that the concept of reappointing him to the position in which he was employed immediately before the termination of his employment pursuant to s 170CH(3)(a) involves looking at more than contractual rights. It encompasses looking at the factual position which existed immediately before the termination of his employment and involves putting Mr Blackadder in the factual matrix he was in prior to the termination as well as the legal matrix. If at the point of termination Mr Blackadder was being provided with work, then on reinstatement and reappointment Ramsey is obliged to provide him with work.

65 At common law there is no obligation upon an employer under a contract of employment to provide work to an employee unless the contract specifically requires that such work be provided, or unless it is necessary for the employee to continue to be employed in order to maintain a particular profile, such as an actor, or unless the nature of the work for which the employee is employed is such that the employee's career and future prospects depend upon the employee working in a particular way, or unless the level of the employee's remuneration depends upon the extent of the work the employee is able to undertake. There is nothing in the legislation, nor in the accompanying Explanatory Memorandum or Second Reading Speech, which suggests that s 170CH(3)(a) is intended to furnish employees with a right to work which, prior to instituting a proceeding in respect of an unlawful termination of employment, they would not have.

66 The common law position was explained in Turner v Sawdon [1901] 2 KB 653. AL Smith MR said at 657:

"It is within the province of the master to say that he will go on paying the wages, but that he is under no obligation to provide work. The obligation suggested is said to arise out of the undertaking to engage and employ the plaintiff as their representative salesman. It is said that if the salesman is not given employment which allows him to go on the market his hand is not kept in practice, and he will not be so efficient a salesman at the end of the term. To read in an obligation of that sort would be to convert the retainer at fixed wages into a contract to keep the servant in the service of his employer in such a manner as to enable the former to become au fait at his work."

67 In Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647 Asquith J said at 650:

"It is true that a contract of employment does not necessarily, or perhaps normally, oblige the master to provide the servant with work. Provided I pay my cook her wages regularly she cannot complain if I choose to take any or all of my meals out. In some exceptional cases there is an obligation to provide work. For instance, where the servant is remunerated by commission, or where (as in the case of an actor or singer) the servant bargains, among other things, for publicity, and the master, by withholding work, also withholds the stipulated publicity."

68 The distinction between the two classes of employment contract, those which impose a duty to provide work and those that do not, was explained by Lawrence LJ in Marbe v George Edwardes (Daly's Theatre) Limited [1928] 1 KB 269 at 288 in the following terms:

"Contracts of employment fall under two categories; first those in which the only obligation imposed upon the employer is the payment of the agreed remuneration, and no duty is cast upon the employer to give active occupation - this no doubt is the more usual form of contract; and secondly those in which the employer engages not only to pay the agreed remuneration but also to afford to the employee an opportunity of doing the work for which he is engaged. Whether a given contract falls within the first or second category depends primarily on the express words of the contract, but may also depend upon the character of the employment, and possibly upon the amount and nature of the remuneration."

69 An example of a contract of employment in which there was an express obligation imposed on the employer to provide the employee with work is found in Montreal Public Service Co v Champagne (1917) 33 DLR 49. There the employee was given the power under the contract to engage and dismiss all employees of the company and it provided that all the administration of the company's business was, subject to the direction and control of the directors, to be under the control of the employee.

70 There have been a number of cases in which courts have found that employers have an obligation to provide an employee with work where the employee has particular skills or talents which the employee needs to keep in regular activity, or where the employee occupies a particular unique position, or where an aspect of the employee's remuneration depends upon work being performed: White v Australian and New Zealand Theatres Ltd [1943] HCA 6; (1943) 67 CLR 266 at 273-274; Langston v Amalgamated Union of Engineering Workers [1974] 1 WLR 185 at 192; Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 at 342-343; William Hill Organisation Ltd v Tucker [1999] ICR 291. Such an approach was taken in Wesoky v Village Cinemas International Pty Ltd [2001] FCA 32 in which Merkel J found that a significant aspect of the promised remuneration depended on the employer providing the opportunity, or not depriving the employee of the opportunity, to earn it and that the employee had undertaken a specific and unique overseas posting. For a different approach in which the court refused to find an obligation to provide a specialist surgeon with work, see Mann v Capital Territory Health Commission [1981] FCA 160; (1981) 54 FLR 23 at 29-30.

71 These cases turned on the terms of the particular contract of employment. For example, in White v Australian and New Zealand Theatres Ltd (supra), which involved an opera singer, there was an express term of the contract that work would be given. The employee was bound by the contract to perform the work if so directed by the employer and a specific direction had been given. In Wesoky v Village Cinemas International Pty Ltd (supra), a condition was found to have been implied from the contractual terms concerning remuneration, namely that an equity interest would be conferred as a consequence of working in an executive position overseas for Village Cinemas. These cases are distinguishable from the present case where there is no similar or corresponding contractual provision.

72 In the present circumstances Mr Blackadder does not fall into any of the categories in which courts have been prepared to find an obligation on the part of the employer to provide the employee with work. There is no provision in the AWA which requires Ramsey to provide the employees with work other than a requirement that adequate and sufficient labour be provided by Ramsey to follow boners "in order to avoid congestion" (cl 37.12). Boners' entitlement to bonuses depends on overall productive output as extra payments are calculated on the basis of overall work done in excess of the required tally per boner, and such extra payment is divided equally between the relevant boners (cl 36.14). Hence any extra pay to which Mr Blackadder might be entitled does not depend upon Mr Blackadder's individual work or productivity but rather on the output and productivity of the group of employees as a whole.

73 Thus if Ramsey is obliged, on the reinstatement of Mr Blackadder, to provide him with work, Mr Blackadder is obtaining a benefit or advantage to which he was not entitled prior to the wrongful termination of his employment.

74 Section 170CH(3) empowers the Commission to "reinstate" an employee in one of two ways. First, by "reappointing" the employee to the position in which the employee was employed immediately before the termination as is provided for in s 170CH(3)(a). Alternatively, by appointing the employee to another position, but on terms and conditions no less favourable than those on which the employee was employed immediately before the termination as is provided for in s 170CH(3)(b). In both cases it is the appointment of the employee to the particular position which satisfies the obligation "to reinstate the employee".

75 As the authorities indicate, "reinstatement" is a broad term capable of different meaning according to context. The particular designated form of reinstatement provided for by s 170CH(3) is the reappointment of Mr Blackadder to the "position" in which he was employed immediately before the termination or his appointment to another position on terms and conditions no less favourable than his previous terms and conditions. The section does not contemplate that Mr Blackadder will be better off than he was before the termination. Nor does the section require that Mr Blackadder will be given the benefit of an additional obligation on the part of his employer which did not exist prior to the termination.

76 The fact that reinstatement ordered under s 170CH(3) can be satisfied by appointing the employee to "another position" which may involve different work demonstrates that the use of the term "position" does not carry with it a right to undertake work which was undertaken by the employee prior to the unlawful termination.

77 We consider the emphasis on appointing the employee to a "position" demonstrates that it is the contractual position which is either to be restored in its earlier terms or in equivalent terms. By using the terminology of "appointing" as opposed to "re-employing" for example, there is indicated a legislative intention to re-establish rights or equivalent rights which were destroyed by the wrongful termination. The language does not indicate a legislative intention to provide more than that to which the employee was entitled prior to the wrongful termination.

78 In our opinion, where a person is reinstated by appointment to a position in which he or she was acting at the time of dismissal pursuant to s 170CH(3)(a), then that provision requires that the person should be restored to all the contractual entitlements which applied in respect of that position at the time of the wrongful dismissal so far as possible, but should not be given any additional entitlement which the person did not previously have under the relevant terms of the person's employment.

79 Thus we agree with the submission made by Ramsey in this case that:

"The Appellant ... complied with the Order of the Commission as soon as the Appellant placed the Respondent on its payroll in the position of a Boner and commenced to pay the Respondent from 20 April 2000."

80 We note that this submission is in accordance with the preferred view expressed by Asquith J in Jackson v Fisher's Foils, Ltd [1944] 1 KB 316 at 322 where his Lordship said:

"If the matter were res integra, I personally should find some difficulty in resisting the argument [that]: ` "Reinstatement" means reinstatement in his employment, and his employment means the contractual position which he occupied as against his employer before his dismissal. That contractual position permitted the employer to withhold work from the employee providing he paid him his wages.' I am satisfied, however, that the matter is covered by authority. It appears that this precise argument was addressed ... to the court in Hodge v Ultra Electric, Ld [1943] KB 462 at 465.... The court rejected that argument."

His Lordship in that case, however, felt constrained by the precedent referred to and followed it. That precedent turned on wartime emergency legislation in different terms to s 170CH(3) which made no reference to the particular manner in which reinstatement was to be effected.

81 We consider that where the terms of employment of the position in which a reinstated person was previously engaged entitled that person to require that work be given, then he or she could take appropriate action after reinstatement to assert any such right. If, under the terms of employment, the person was not entitled to be given work then the employer is entitled simply to appoint the person again to the position without providing work. The existence of an obligation to reinstate by reappointment does not require the conferral of any additional entitlement to work.

82 A number of cases were cited to the Court in support of the proposition that the obligation to reinstate carried with it an obligation to provide the employee with work, for example, Jackson v Fisher's Foils, Limited (supra); Retail Traders Association of New South Wales v Shop, Distributive and Allied Employees Association of New South Wales (1990) 36 IR 38. However, those cases fell to be determined in contexts and under legislation different in terms to that found in s 170CH(3).

83 In his judgment in the present case, Moore J relies upon a passage in Anthony Smith & Associates Pty Limited v Sinclair (1996) 67 IR 240 at 244 (at par [22] above), which was concerned with a provision in almost identical terms to s 170CH(3), as support for the proposition that appointment to a position as a means of reinstatement involves more than paying wages or reinstating the contract of employment. We do not read that passage as supporting the proposition that the former section, s 170EE(1)(a)(ii), empowered the Court to make an order which included the conferral of a right on the employee to undertake the work required to be performed in that position.

84 We conclude that the appeal should be allowed, that par 2 of the orders made on 21 May 2002 should be varied by deleting the words "namely a boner performing chilled boning work in that part of the respondent's premises known as the big boning room", as the words carry with them an implication that Ramsey is obliged to provide Mr Blackadder with chilled boning work and that he be allowed to undertake that work in the big boning room. We also conclude that pars 3 and 4 of the orders made on 21 May 2002 should be set aside and that the appeal and cross-appeal should otherwise be dismissed.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin and Goldberg.

Associate:

Dated: 21 February 2003

Counsel for the Appellant/Cross Respondent:	G J Hatcher SC and R Moore
Solicitor for the Appellant/Cross Respondent:	Hannigans Solicitors
Counsel for the Respondent/Cross Appellant	S Crawshaw SC and C Magee
Solicitor for the Respondent/Cross Appellant:	MRM Solicitors
Date of Hearing:	7 November 2002
Date of Judgment:	21 February 2003