Johnson v Anglo Coal (Callide Management) Pty Ltd
[2005] QSC 255
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- Unreported Judgment
- Johnson v Anglo Coal (Callide Management) Pty Ltd[2005] QSC 255
- Add to List
Johnson v Anglo Coal (Callide Management) Pty Ltd[2005] QSC 255
Reported at [2006] 1 Qd R 235
Johnson v Anglo Coal (Callide Management) Pty Ltd[2005] QSC 255
Reported at [2006] 1 Qd R 235
SUPREME COURT OF QUEENSLAND
CITATION: | Johnson v Anglo Coal (Callide Management) Pty Ltd [2005] QSC 255 |
PARTIES: | DOUGLAS JOHNSON |
FILE NO/S: | BS10039 of 2004 |
DIVISION: | Trial Division |
PROCEEDING: | Trial |
DELIVERED ON: | 14 September 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 July 2005 |
JUDGE: | Mullins J |
ORDER: | It is declared that upon the proper construction of s 48(1) of the Coal Mining Safety and Health Regulation 2001, Dr Adam’s health assessment report dated 16 July 2004 about the applicant is not a health assessment report that shows the applicant is unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk. |
CATCHWORDS: | STATUTES – BY-LAWS AND REGULATIONS – CONSTRUCTION – PARTICULAR WORDS – where section 48(1) of the Coal Mining Safety and Health Regulation 2001 (Qld) applies to a health assessment report about a coal mine worker showing the worker is unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk – where worker had a condition affecting his knees – where nominated medical adviser completed a health assessment report about the worker recommending restrictions on specified activities to be performed by the worker – whether section 48(1) applies to the health assessment report Coal Mining Safety and Health Act 1999 Coal Mining Safety and Health Regulation 2001 Statutory Instruments Act 1992 Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242 Macpherson v Rio Tinto Coal Australia Pty Ltd [2005] QSC 120 |
COUNSEL: | M D Hinson SC and J W Merrell for the applicant P H Morrison QC and S D Anderson for the respondent |
SOLICITORS: | Hall Payne Lawyers for the applicant Blake Dawson Waldron for the respondent |
- MULLINS J: The applicant who is employed by the respondent as a coal mine worker at the respondent’s Callide mine (“the mine”) seeks a declaration that turns on the proper construction of s 48(1) of the Coal Mining Safety and Health Regulation 2001 (“the Regulation”).
Legislation
- The Regulation is made under the Coal Mining and Safety Health Act 1999 (“the Act”). A relevant overview of the Act is set out in Macpherson v Rio Tinto Coal Australia Pty Ltd [2005] QSC 120 at paragraph [3] and in Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242 at paragraphs [11] to [15].
- Division 2 of Part 6 of Chapter 2 of the Regulation establishes the Coal Mine Workers’ Health Scheme (“the scheme”). It is common ground that for the purposes of the scheme, the applicant is a coal mine worker and the respondent is the employer.
- Under s 45(1) of the Regulation the employer must appoint a doctor as the nominated medical adviser to carry out, supervise, and report on, health assessments under the scheme for the employer’s coal mine workers. Subsections (2), (3) and (4) of section 45 of the Regulation provide:
“(2)The employer must include in the contract appointing the nominated medical adviser an obligation on the adviser to discuss, and give advice about, appropriate duties for the worker, under subsection (3).
(3)The discussions must be held with, and the advice given to, the employer and coal mine worker or the worker’s representative.
(4)The employer must also include in the contract an obligation on the nominated medical adviser, if asked by a coal mine worker, to discuss the worker’s health assessment with another doctor nominated by the worker.”
- Under the scheme an employer must ensure that a health assessment is carried out for each person employed by the employer as a coal mine worker: s 46(1) of the Regulation. Under s 46(2) of the Regulation the assessment must be carried out in accordance with the instructions, and covering the matters, in the approved form and by, or under the supervision of, the nominated medical adviser. This is reinforced by the definition of “health assessment report” in schedule 9 to the Regulation. It is defined to mean “a report, in the approved form, about a health assessment, or medical examination of a person”. The approved form is one approved by the chief inspector of coal mines under s 281 of the Act. There was no issue between the parties as to the identification of the approved form and an example of the approved form was exhibit 4 which is shown as having been approved in September 2002. It appears that the approved form may not have complied in all respects with s 58 of the Statutory Instruments Act 1992, but that does not affect the validity of the form: Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242 at paragraph [30].
- The approved form comprises four sections. The approved form includes guidance notes for completing the health assessment and the form. These must be “the instructions” contemplated by s 46(2)(a) of the Regulation. Section 1 is for the employer to complete. The employer must disclose the name of the nominated medical adviser and the worker’s position by reference to a generic job title. There is then a series of six questions which the employer must answer by ticking either the “Yes” box or the “No” box. There is room at the end of this section for addition of comments. The questions cover whether the worker is at risk from dust exposure, occupational noise or hazardous chemicals and enquire whether the worker will be working underground or will require colour discrimination. One of the questions seeks information on whether there are hazardous duties requiring a specific fitness assessment. Section 2 of the approved form is for the worker to complete. There is a list of questions under the heading “Health-related History” that seeks to elicit information about prior surgery, illnesses, injuries, medication and smoking history. Under section 2.4 there is a list of diseases, injuries and conditions with “Yes” and “No” boxes in order to ascertain whether the worker has suffered from any of those diseases, injuries or conditions. Section 2.5 requires the worker to provide the dates of last immunisation against specific diseases and the date of the worker’s last cholesterol test. At the end of section 2 of the approved form is a declaration for the worker to complete in the presence of the examining medical officer that certifies that the information supplied by the worker is true and correct.
- Section 3 of the approved form is for the examining medical officer to complete and requires clinical findings to be set out against the various descriptions of the tests. The tests include colour vision tests, hearing tests and tests relating to the cardiovascular system, respiratory system and musculo-skeletal system. The examining medical officer is required to make observations in relation to urinalysis and blood sugar, the abdomen and the skin. The examining medical officer has to indicate in section 3.17 of the approved form whether the worker’s fitness for duty is likely to be affected by dietary habits, exercise routine, stress level, alcohol consumption or drugs or medication not prescribed by a doctor. Section 3.18 of the approved form requires the examining medical officer to tick the “Yes” or “No” boxes in respect of a series of activities in relation to whether the worker may be not fit for duty in relation to work. Those activities are as an operator of (or working around) heavy vehicles, underground (including use of self-rescue breathing devices and escape), shift work, performing heavy manual handling, in wet or muddy conditions, in dusty conditions, at height or on ladders, in confined spaces or while wearing safety footwear or other personal protective equipment such as earplugs, glasses and respirators or another capacity specified by the examining medical officer. Room is provided within section 3 of the approved form for the examining medical officer to make comments on the various questions.
- Section 4 of the report must be completed by the nominated medical officer and is described as “Report on Health Assessment”. In the guidance notes included in the approved form the nominated medical adviser is instructed to review sections 1, 2 and 3 of the assessment form before completing section 4. The guidance notes also instruct the nominated medical adviser to assess whether the health assessment provides adequate information to make a report on the fitness for duty of the coal mine worker. After setting out the name of the worker, employer and mine, section 4 of the approved form is as follows:
Examination Details | |||||
Date of Examination by EMO | Position (eg job title (generic)) | Is the assessment for Underground work? | |||
|
| Yes □ No □ | |||
As at the date of this examination, the coal mine worker: | |||||
□ | Is fit to undertake any position | ||||
□ | Is fit to undertake the proposed / current position | ||||
□ | The coal mine worker has a condition which results in the following restriction(s) (if necessary, outline management program) | ||||
The duration of the restriction is: |
| ||||
Is a further review necessary? | Yes □ Date / /No □ | ||||
Specify full or type of review required: |
| ||||
Was a chest x-ray taken? | Yes □ Date / /No □ | ||||
As Nominated Medical Adviser, I have explained the restriction / additional assessment to the Coal Mine Worker. | |||||
- Section 46(3) of the Regulation provides:
“(3)The assessment may include matters not covered in the approved form if, having regard to a risk assessment carried out for a task for which the person is to be employed, or is employed, the nominated medical adviser considers the person needs to be assessed in relation to the additional matters to achieve an acceptable level of risk.”
- Section 46(4) of the Regulation provides for the timing of the health assessment:
“(4)The assessment must be carried out-
(a)before the person is employed as a coal mine worker; and
(b)if the nominated medical adviser decides the assessment is necessary after being given a notice under section 49(3)-periodically, as decided by the nominated medical adviser; and
(c)otherwise, periodically, as necessary, but at least once every 5 years.”
- Under s 47(1) of the Regulation the employer must arrange for the health assessment and ask the nominated medical adviser to give the health assessment report to the employer and a copy and explanation of the report to the person to whom it relates. The health assessment report is section 4 of the approved form. Under s 50(3) of the Regulation, the nominated medical adviser must give a copy of the health assessment report and the data or information on which it was based to the chief executive of the Department that administers the Act. The nominated medical adviser has the responsibility, under s 50(1) of the Regulation, for each health assessment carried out by the nominated medical adviser under the scheme, the data on which the assessment was based and a copy of the completed approved form for the assessment. Under s 52(1) of the Regulation it is an offence for a person to disclose to anyone, other than as allowed by s 52 of the Regulation, the contents of a coal mine worker’s medical record obtained by the person under Division 2 of Part 6 of Chapter 2 of the Regulation. The term “medical record” is defined in s 52(6) of the Regulation to mean the personal medical results or clinical findings obtained from a health assessment of a worker. Under s 52(2) of the Regulation a nominated medical adviser may disclose the contents of the record to the coal mine worker or someone with the worker’s written consent. The chief executive is permitted pursuant to ss 52(3) and (4) to disclose the contents of the record in limited circumstances.
- Subsections (1) and (2) of s 48 of the Regulation provide:
“(1)This section applies if the employer is given a health assessment report (the original health assessment report) about a coal mine worker showing the worker is unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk.
- Before taking action to terminate the worker’s employment or demote the worker, the employer must give―
(a)the worker a reasonable opportunity to undergo a further health assessment from another nominated medical adviser or relevant medical specialist chosen by the worker; and
(b)the nominated medical adviser or medical specialist details of the worker’s tasks.”
- If the worker undergoes the further health assessment, s 48(3) of the Regulation requires the worker to give the employer a report about that assessment which is called the “further health assessment report”. Under s 48(4) of the Regulation the employer must give the nominated medical adviser who gave the employer the original health assessment report a copy of the further health assessment report and ask the nominated medical adviser to review the original health assessment report, having regard to the further health assessment report, and give both the employer and worker a report about the review. The worker is required by s 48(5) of the Regulation to pay for the further health assessment. Neither s 48 nor any other provision in the scheme deals with what happens after obtaining the nominated medical adviser’s review of the original health assessment report.
Facts
- The applicant injured his right knee in approximately 1975 and his left knee function has also deteriorated over time. He has been diagnosed with osteoarthritis in both knees. He underwent an arthroscopy of his knees in 2001. In May 2003 the applicant who had been working as a production mine worker at the mine since 1982 was undergoing training at the mines when he was told by a supervisor that he was to start training on the EH4500 trucks. The applicant had not previously been advised that he was required to train or drive on the EH4500 trucks and indicated to Mr Weaven, another employee of the respondent, that he did not feel safe driving them, because they were too big and too fast for him. He explained to Mr Weaven that he had problems with his knees and that he would not drive faster than 22kms per hour, so that he would be able to react in plenty of time if an emergency arose. He explained that his knees “can lock up”, in that he can feel pain in his knees and, while they do not “freeze or actually lock into place”, they can begin to hurt, so that the applicant has to push through the pain barrier. The respondent organised for the applicant to be assessed by an occupational therapist, Ms Camilla Baldock, in July 2003. As a result of that assessment, the applicant was removed from his role as a production mine worker and placed on alternative duties for a period of 4 months.
- In November 2003 the applicant underwent the health assessment required pursuant to s 46 of the Regulation that was his 5 yearly periodic assessment. That assessment was undertaken by Dr Woodward as the nominated medical adviser. Dr Woodward ticked the box in section 4 of the approved form that stated that “The coal mine worker has a condition which results in the following restriction(s) (if necessary, outline management program)”. In the space that followed that box, Dr Woodward wrote:
“No prolonged walking
No walking uneven ground
No squatting
No climbing onto high vehicles
Only drive normal vehicles
Not to be in position which may require quick movement”
- Dr Woodward specified the duration of the restriction as six months and in response to the question on the approved form as to whether a further review was necessary, Dr Woodward ticked the “Yes” box.
- On 16 July 2004 Dr Adam carried out the health assessment of the applicant. Dr Adam was also the nominated medical adviser. In section 4 of the approved form Dr Adam ticked the box that stated “The coal mine worker has a condition which results in the following restriction(s) (if necessary, outline management program)”. In the space that followed that box, Dr Adam wrote:
“1must wear hearing protection
2limited ability for prolonged walking esp over uneven ground; repeated climbing; working in cramped conditions; lifting and carrying heavy objects >15kg.”
Dr Adam described the duration as “permanent – v gradual deterioration anticipated”. In response to the question in section 4 of the approved form “Is a further review necessary?”. Dr Adam left both the “Yes” and “No” boxes blank.
- A conciliation conference involving the applicant and the respondent was convened before Commissioner Spencer of the Australian Industrial Relations Commission (“AIRC”) on 9 August 2004. There was an issue between the parties at that stage as to whether Dr Adam’s report of 16 July 2004 was the original health assessment report for the purpose of s 48(1) of the Regulation or a further health assessment report, as a result of the invocation of s 48(2) of the Regulation. It appears that the parties agreed that Dr Adam’s report was the original health assessment report. After the conciliation conference, Mr Tim Conroy, the industrial research officer from the Construction, Forestry, Mining & Energy Union (Mining & Energy Division) (“CFMEU”) who was present with the applicant at the conciliation conference sent a letter to Mr Paul McCrea, an employee of the respondent, about the steps foreshadowed by the respondent at that conference. Mr Conroy in his letter set out the CFMEU’s view about the nature of the discussions that could be undertaken pursuant to sub-sections (2) and (3) of s 45 on the Regulation with Dr Adam. Mr McCrea on behalf of the respondent replied to Mr Conroy by letter dated 19 August 2004 which set out the process that the respondent proposed in relation to the health assessment of the applicant.
- On 19 August 2004 the site senior executive, Mr Wells, sent a letter incorrectly dated 19 July 2004 to Dr Adam, requesting advice on whether the restrictions that Dr Adam had disclosed as applying to the applicant prevented the applicant from being able to perform the tasks noted in the Functional Job Demands Analysis for each of the tasks that may be required of a production employee that had been prepared by Ms Baldock. Mr Wells provided Dr Adam with those analyses and informed Dr Adam that the tasks which production mine workers were employed to perform included:
“Driving and operating Electric Haul Trucks;
Driving and operating Electric Shovels;
Electric Drill work;
Driving and operating IT Loaders;
Driving and operating Dozers;
Working with pumps; and
Driving and operating Water Carts.”
- Dr Adam responded to Mr Wells by letter dated 18 September 2004 and set out each of the tasks with a detailed comment on the extent to which the applicant would be able to perform that task. Dr Adam indicated that he believed the applicant would be able to perform some of the tasks and, with respect to some other tasks, Dr Adam indicated that the frequency of climbing in connection with that task might affect whether the applicant could perform that task. Dr Adam did not believe that the applicant could perform the task of working with pumps safely.
- Mr Wells was not satisfied with Dr Adam’s response. Mr Wells wrote another letter to Dr Adam dated 7 October 2004 in which he pointed out that Dr Adam’s response did not address a number of other tasks that were necessary in the full role of a production employee. The list of tasks attached to this letter provided much more detail in respect of the activities required to perform the earlier list of tasks provided by Mr Wells by Dr Adam. Mr Wells also provided Dr Adam with Ms Baldock’s report.
- The CFMEU had been provided with a copy of the letter from Mr Wells to Dr Adam dated 7 October 2004. The Queensland district president of the CFMEU sent a letter to Dr Adam dated 12 October 2004 (a copy of which was also sent to Mr McCrea) advising of the CFMEU’s view that the provision of information by the respondent to Dr Adam was a breach of s 46 of the Regulation and requested that Dr Adam not take into consideration Ms Baldock’s report when providing any further clarification to the respondent.
- Dr Adam did not accede to the request of the CFMEU and provided a letter to Mr Wells dated 12 October 2004 in which he revised his opinion about the extent of the applicant’s impairment, as a result of considering Ms Baldock’s Functional Capacity Assessment and the further information provided in Mr Wells’ letter of 7 October 2004. Dr Adam concluded that there were more activities that he would expect the applicant to have difficulty with and described those activities and the reason for his opinion about the applicant’s restrictions in respect of those activities and concluded that the further information given to him coupled with some of Ms Baldock’s observations suggested that the applicant’s impairment was greater than he had estimated.
- Mr Wells and Mr McCrea on behalf of the respondent and the applicant and CFMEU representatives Mr Barker and Mr Conroy attended a meeting with Dr Adam on 25 October 2004 at which Dr Adam provided advice about the applicant’s condition.
- On 5 November 2004 Mr Wells sent a letter to the applicant, incorrectly dated 15 November 2004, which set out Mr Wells’ view of the history of what had occurred since May 2003 and advised that as a result of Mr Wells’ considering the information concerning the applicant including Ms Baldock’s report, the health assessment report of Dr Woodward, the health assessment report of Dr Adam and the clarifications of the restrictions applicable to the applicant obtained from Dr Adam through correspondence and at the conference held on 25 October 2004, Mr Wells stated “I remain concerned that reintroducing you to your role of production employee at the mine would pose an unacceptable level of risk to yourself and to others”. The letter then stated that in accordance with s 48(2)(a) of the Regulation, the applicant was being provided with an opportunity to undergo a further health assessment from another nominated medical adviser or relevant medical specialist.
- The applicant responded by letter dated 8 November 2004. The applicant adopted the position that the health assessment report of Dr Adam did not indicate that he was unable to carry out his tasks without creating an unacceptable level of risk. The applicant also noted that he had understood that it had been agreed by himself and the CFMEU with the respondent that Dr Woodward’s assessment would be disregarded, because of his concern and that of the CFMEU that the respondent provided Dr Woodward with a copy of Ms Baldock’s assessment without his consent.
- Mr Wells sent a letter by facsimile on 9 November 2004 expressing the view that Dr Adam’s health assessment report did show that the applicant was unable to carry out his tasks as a production employee at the mine without creating an unacceptable level of risk. Mr Wells therefore gave notice in that letter that, in accordance with s 48(2) of the Regulation, he was providing the applicant with the opportunity to undergo a further health assessment from another nominated medical adviser or relevant medical specialist chosen by the applicant.
- The applicant disputes that Dr Adam’s health assessment report dated 16 July 2004 is one that shows that the applicant is unable to carry out his tasks as a production employee at the mine without creating an unacceptable level of risk. The applicant therefore disputes that there was any basis for the respondent to make a decision under s 48(2) of the Regulation to give the applicant an opportunity to undergo a further health assessment.
Issues
- This proceeding is concerned only with the application of s 48(1) of the Regulation to the applicant in the circumstances that have occurred. The first issue that is raised is the construction of s 48(1) of the Regulation and, in particular, from what material and to whom it must be shown that the worker is unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk for s 48 of the Regulation to apply. The second issue is whether s 48 of the Regulation did apply in the circumstances. The third issue that is raised as a result of the amendments made to the defence at the hearing was whether the correspondence that passed between the applicant and the CFMEU, on the one hand, and the respondent, on the other, in August 2004 and the steps carried out by the parties thereafter until November 2004 results in the applicant being estopped from seeking the declarations claimed in this proceeding or militates against the exercise of discretion to make the declarations.
Submissions on the construction of s 48(1) of the Regulation
- Mr Hinson of Senior Counsel who appeared with Mr Merrall of Counsel on behalf of the applicant submitted that, on the proper construction of s 48(1) of the Regulation, the report must “show” in the sense of disclose, reveal, demonstrate or cause a reader to understand that the worker is unable to carry out the worker’s tasks without creating an unacceptable level of risk. It is submitted that there is no reference within s 48(1) of the Regulation that requires the determination of whether a worker is unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk to be made by the employer, the site senior executive or other person. The applicant relies on the regime found within Division 2 of Part 6 of Chapter 2 of the Regulation that places the responsibility on the nominated medical adviser to report on the health assessment to the employer.
- Although the applicant acknowledged that the nominated medical adviser’s report on the health assessment is constrained by the terms of the approved form, the applicant relies on the wording of s 48(1) of the Regulation as prescribing what the health assessment report must show, if s 48 is to be triggered. As the health assessment report is completed by the nominated medical adviser, it is submitted that it is what the nominated medical adviser puts in the health assessment report that is critical and all that is required of the employer as the reader of the report is to receive that report, according to its terms, and that it should be apparent from its terms, without reference to anything else, whether it shows that the worker is unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk.
- Mr Morrison of Queen’s Counsel who appeared with Ms Anderson of Counsel on behalf of the respondent submitted that a health assessment is for the purpose of achieving an acceptable level of risk in relation to a worker carrying out tasks, functions or duties at a mine and the scheme requires the nominated medical adviser to restrict an employee from performing any functions, tasks or actions which, if undertaken, would constitute an unacceptable level of risk. It is submitted that when the nominated medical adviser ticks the relevant box on section 4 of the approved form that refers to the worker’s condition, the nominated medical adviser is reporting that the worker has a condition which has led the nominated medical adviser to place restrictions on the functions, tasks or actions (or duties) that the worker can perform. It is submitted that although the condition refers to some aspect of the physical or mental state of the worker, it is no part of the report contained in section 4 of the approved form to reveal what the condition is.
- The respondent relies on the decision of the Full Bench of the AIRC in Hail Creek Coal Pty Ltd v Construction, Forestry, Mining & Energy Union, Australian Industrial Relations Commission, Melbourne, 12 July 2004, PR 948938 (“Hail Creek”) where the Full Bench had to consider the effect of a nominated medical adviser (to whom the Full Bench referred to as the “NMA”) placing a restriction on a coal mine worker when completing the health assessment report. The Full Bench stated at paragraphs [103] to [105]:
“[103] When Division 2 of Part 6 of the Regulation is read in conjunction with the approved form it is apparent that the role of the NMA is to determine whether a coal mine worker is fit to undertake any position or a nominated position at a particular mine. In the event that the coal mine worker has a ‘condition’, the NMA is to apply appropriate restrictions (if any) to the tasks that the worker can perform. By completing the approved form the NMA advises the employer of the restrictions and their duration. It is not an option on the approved form for the NMA to declare that a coal mine worker is ‘unfit for work’. Under the scheme that decision is made by the employer or, more specifically, the Site Senior Executive (SSE). It is the SSE who carries the obligation (at s.42 of the CMSHA) to, amongst other things, ‘ensure that the risk to persons from coal mining operations is at an acceptable level’.
[104]The Section 4 Report (by including any restrictions) and the discussions (if necessary) that are held in accordance with Regulation 45, provide the SSE with the information to reach a decision regarding the future employment of the worker and/or whether the worker should (for the duration of any restrictions) attend the mine, and if so, what duties should be undertaken.
[105]The key point is that once the NMA applies restrictions to a mine worker, the decision as to that worker’s fitness for work is not longer the NMA’s to make. It is the decision of the SSEs. A production worker with a number of restrictions, some of which go to the worker’s core duties, could still attend the mine and perform, for example word processing duties in the Administration Building and not constitute an unacceptable level of risk. Such decisions are the SSE’s discretion provided the SSE meets his or her statutory obligations. For the foregoing reasons it is our view that the Health Scheme does not contemplate that the role of the NMA includes declaring that a worker is ‘unfit for duty’.”
- It is argued by the respondent that the nominated medical adviser will not necessarily know the full list or description of the relevant worker’s tasks, functions or duties or any possible alternatives, because that is not disclosed by what has been included in sections 1, 2 and 3 of the approved form. The respondent relies on the relationship between sections 3 and 4 of the approved form, pointing out that the clinical findings set out in section 3 of the approved form (which cannot be disclosed under s 52(1) of the Regulation) provide the basis for the response of the nominated medical adviser in completing the questions and setting out the observations required in section 4 of the approved form. The submission is therefore made that it is only the recipient of the health assessment report (who will usually be the site senior executive) who can determine whether any restrictions on tasks, functions or duties described by the nominated medical adviser in section 4 of the approved form do, in fact, result in showing that the worker is unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk.
- The respondent interprets the listed restrictions in section 4 of Dr Adam’s report as restrictions on tasks, functions and duties which, if performed would create an unacceptable level of risk. The respondent submitted that each restriction relates to a task which, if performed without applying the restriction, must create an unacceptable level of risk. It is also expressed in the respondent’s written submissions (exhibit 3) in this way:
“Thus the report expressly tells the [site senior executive] that if the employee carries out the following tasks, that will create an unacceptable level of risk:-
(a)tasks involving prolonged walking, especially on uneven ground;
(b)tasks involving repeated climbing;
(c)tasks involving working in cramped conditions;
(d)tasks involving lifting and carrying heavy objects greater than 15 kilograms.”
- The respondent claims, in any case, that Dr Adam’s health assessment report shows on its face that the applicant is unable to carry out his tasks at the mine without creating an unacceptable level of risk.
Construction of s 48(1) of the Regulation
- The expressions that are used in the Regulation that are defined in the Act have the same meaning as those expressions have in the Act, unless the contrary intention appears: s 37 Statutory Instruments Act 1992. The expression “unacceptable level of risk” in s 48(1) of the Regulation is defined in schedule 3 to the Act to mean “risk that is not at an acceptable level”. “Risk” is defined in s 18 of the Act to mean the risk of injury or illness to a person arising out of a hazard and it is specified that risk is measured in terms of consequences and likelihood. “Hazard” is defined in s 19 of the Act as a thing or a situation with potential to cause injury or illness to a person. The expression “acceptable level of risk” is defined in s 29 of the Act as follows:
“What is an acceptable level of risk
29.(1) For risk to a person from coal mining operations to be at an ‘acceptable level’, the operations must be carried out so that the level of risk from the operation is-
(a)within acceptable limits; and
(b)as low as reasonably achievable,
(2) To decide whether risk is within acceptable limits and as low as reasonably achievable regard must be had to-
(a)the likelihood of injury or illness to a person arising out of the risk; and
(b)the severity of the injury or illness.”
Section 30 of the Act sets out what the Act requires to achieve an acceptable level of risk. Part 3 of the Act sets out the safety and health obligations of the various persons involved with a coal mine including the site senior executive. Section 5(1) of the Regulation expressly provides that Chapter 2 of the Regulation (other than ss 47(3) and 52(1)) prescribes ways of achieving an acceptable level of risk at a coal mine in the circumstances mentioned in Chapter 2.
- Although s 46(2) of the Regulation requires the health assessment report to be in the approved form and refers to the approved form, the approved form came into existence subsequent to the making of, and as a result of, the Regulation. Section 48(1) of the Regulation has to be interpreted in the context of the Regulation and the Act: cf Macpherson v Rio Tinto Coal Australia Pty Ltd [2005] QSC 120 at paragraph [13]. It is not appropriate to attempt to construe s 48(1) of the Regulation by reference to the contents of the approved form. I therefore will not be following the approach of the Full Bench of the AIRC in Hail Creek where Division 2 of Part 6 of Chapter 2 of the Regulation was read in conjunction with the approved form.
- It is conceivable that many different consequences may follow as a result of a worker undergoing a health assessment and the report being furnished to the employer, depending upon what the health assessment reveals and what the report records. Section 48(1) of the Regulation does not purport to deal exhaustively with the possible consequences for the employment relationship of the provision of the health assessment report to the employer. All that s 48(1) of the Regulation provides for is a review process of the health assessment report in the limited circumstance that is set out in s 48(1). Although s 48(2) of the Regulation contemplates that, where s 48(1) is applicable, the employer may (but is not bound to) subsequently seek to terminate the worker’s employment or demote the worker, s 48 is not concerned with the process of termination or demotion, except in providing for the condition that must be satisfied before the employer considers whether to take action in that regard where that action is based on the health assessment report. That pre-condition is offering the worker the opportunity to undergo the further health assessment at the worker’s cost which must be reviewed by the nominated medical adviser who did the original health assessment report. The limited purpose of s 48 of the Regulation is illustrated by the fact that it is silent on what happens after the nominated medical adviser reviews the further health assessment report and gives both the employer and worker a report about that review.
- When s 48 of the Regulation is considered in the light of its role in providing a process for the worker to obtain a review of the health assessment report in the limited circumstance specified in s 48(1), the task of construction of that provision is not as complicated as suggested by the respondent’s submissions. Section 48 of the Regulation does not deal with any decision making by the employer or the site senior executive or any other person. Because the health assessment report is the work of the nominated medical adviser, it is logical that the review must be undertaken by another nominated medical adviser or a relevant medical specialist who is chosen by the worker. Section 48 of the Regulation therefore provides a check on the exercise by the nominated medical adviser of the responsibilities entrusted to the nominated medical adviser in reporting on the health assessment of a worker.
- There is no difficulty in giving s 48(1) of the Regulation effect according to its terms. It does not require a decision to be made by the employer or the site senior executive or any other person who receives the health assessment report on whether the health assessment report shows the worker is unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk. It is simply a question of whether the health assessment report shows that or not. Section 48(1) of the Regulation contemplates that there will be cases where the relevant health assessment report does show what s 48(1) of the Regulation requires to be shown before the process of review is able to be used by the worker. It is consistent with the process provided for by s 48 of the Regulation that it must be apparent from the health assessment report itself whether the health assessment report shows that the worker is unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk that cannot be determined by reference to any other materials. I therefore accept the submission of the applicant that s 48(1) of the Regulation should be construed as providing that it is the health assessment report that must show that a coal mine worker is unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk. It was suggested on behalf of the applicant that a health assessment report would show that a coal mine worker is unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk only if the report used the same words that are set out in s 48(1) of the Regulation. That is not necessary. For s 48(1) of the Regulation to apply, the health assessment report must “show” what is specified in that provision which does not mean that it has to “state” it.
Dr Adam’s health assessment report
- During the hearing of this matter much attention was given to the terms of the approved form and the constraint placed on the completion of the health assessment report by reference to the approved form and the instructions or guidance notes contained in that approved form, as a result of the definition of “health assessment report” for the purpose of the Regulation and the application of s 46 of the Regulation. Reference was made in the course of argument to s 46(3) of the Regulation. That is not relevant to this matter. It extends what may be included in a health assessment in addition to what is in the approved form in the limited circumstance set out in s 46(3). That decision is made by the nominated medical adviser at the time the person is assessed where a risk assessment has been carried out for a task for which the worker is to be employed or is employed and the nominated medical adviser considers the worker needs to be assessed in relation to the additional matters to achieve an acceptable level of risk.
- There are curious aspects to section 4 of the approved form. Unlike other questions in section 4 where both “Yes” and “No” boxes are provided for the nominated medical adviser to use in order to respond to a question, the three statements under the opening words “As at the date of this examination, the coal mine worker:” are provided with one box only for the nominated medical adviser to respond to each of the statements. The nominated medical adviser is not restricted to ticking only one of these statements. If the nominated medical adviser were to tick the box next to the statement “is fit to undertake any position”, the intention is obviously to state that the coal mine worker is fit to undertake any position. Although not repeated in submissions, the respondent’s defence places weight on the failure of Dr Adam to tick the boxes that signified the coal mine worker is fit to undertake any position or is fit to undertake the proposed/current position. As a matter of construction of the approved form, it does not follow from the omission of Dr Adam to tick those boxes that Dr Adam was making the statement that the coal mine worker is not fit to undertake any position or is not fit to undertake the proposed/current position.
- One way of reading the approved form is that it is only if the nominated medical adviser ticks the box about the coal mine worker having a condition that results in restrictions, that the nominated medical adviser can use the space provided in the approved form after the three statements to add comments in the nature of setting out the restrictions. That is difficult to reconcile with the instruction given to the nominated medical adviser in the guidance notes to make a report on the fitness for duty of the coal mine worker. If the nominated medical adviser considers the coal mine worker has a condition which makes the worker unfit for duty, the nominated medical adviser is obliged to include that in the report. There is no reason why the nominated medical adviser who declines to state that the worker is fit to undertake any position or the proposed/current position cannot insert in the space provided after the three statements the comment “The worker is not fit to undertake any position” or “The worker is not fit to undertake the proposed/current position” if that were the conclusion that the nominated medical adviser had reached.
- All that Dr Adam has done in completing section 4 of the approved form is certify that the applicant has a condition which results in the two restrictions that are identified in the report. The respondent is not concerned about the restriction that requires the applicant to wear hearing protection. The respondent argues that the second restriction means that if the applicant were to carry out tasks involving the activities that are listed in the report, it follows that the applicant will create an unacceptable level of risk at the mine. That assumes that the applicant will be required to carry out tasks in a way that does not observe the restrictions identified by Dr Adam. There is no basis for making that assumption. All that Dr Adam has done is identify the type of activities for which the applicant has limited ability. It is not clear from the report that the applicant will be required to undertake tasks involving prolonged walking, or repeated climbing or any of the other activities for which Dr Adam has identified the applicant has limited ability. No justification can be found in the terms of the approved form for the construction contended by the respondent that it must follow from the listing of restrictions as a result of the applicant’s condition that performance of any relevant task to which that restriction would apply (without observing the restriction) results in creating an unacceptable level of risk at the mine. Dr Adam’s report falls short of showing that the applicant is unable to carry out his tasks without creating an unacceptable level of risk.
Relief
- In relation to the respondent’s estoppel argument, the exchange of correspondence in August 2004 relied on by the respondent does not show that there was agreement about the process that was set out in the attachment to Mr McCrea’s letter dated 19 August 2004. What the parties agreed upon was that Dr Adam’s health assessment report was an original health assessment report for the purpose of considering the possible application of s 48(1) of the Regulation. There was no confirmation on behalf of the applicant to the process proposed by Mr McCrea. In any case, at the stage that Mr Wells sought further clarification from Dr Adam in the letter dated 7 October 2004, the CFMEU on behalf of the applicant disputed the giving of Ms Baldock’s report to Dr Adam for that purpose. The respondent cannot succeed on the estoppel argument.
- In the points of claim the applicant sought a declaration in respect of the application of s 48(1) of the Regulation to Dr Adam’s health assessment report and an order setting aside the respondent’s decision under s 48(2) of the Regulation to give the applicant an opportunity to undergo a further health assessment. It was conceded on behalf of the applicant at the hearing that all that was necessary was a declaration relating to the application of s 48(1) of the Regulation. As soon as Mr Wells conveyed that he was purporting to act under s 48(2) of the Regulation, the applicant raised the issue that has been the subject of this proceeding as to whether Dr Adam’s report was a health assessment report of the type to which s 48(1) of the Regulation applied. The making of the declaration sought by the applicant resolves that dispute between the parties. I am satisfied that there are no discretionary matters which militate against making the declaration. I shall therefore make the following order:
It is declared that upon the proper construction of s 48(1) of the Coal Mining Safety and Health Regulation 2001, Dr Adam’s health assessment report dated 16 July 2004 about the applicant is not a health assessment report that shows the applicant is unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk.
- The applicant has been successful on the issue that resulted in this proceeding. Subject to hearing submissions from the parties on the question of costs, I am inclined to order that the respondent pay the applicant’s costs of the proceeding to be assessed.