Comcare v Ross, Michael John [1996] FCA 680

CATCHWORDS ADMINISTRATIVE LAW - Safety Rehabilitation and Compensation legislation - meaning of 'injury' - 'injury' excludes that suffered 'as a result of a failure to obtain a benefit' in connection with employment - whether failure to obtain a benefit includes failure to retain - construction considered but not decided. Safety, Rehabilitation and Compensation Act 1988, s4 ADMINISTRATIVE LAW - Appeal from AAT - majority finding that injury occurred other than as a result of failure to obtain a benefit - causation - finding open as one fact - no error of law. Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 COMCARE v MICHAEL JOHN ROSS No ACT G21 of 1996

FINN J CANBERRA 2 AUGUST 1996

IN THE FEDERAL COURT OF AUSTRALIA) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. ACT G 21 of 1996 DISTRICT REGISTRY ) ) GENERAL DIVISION ) BETWEEN: COMCARE Applicant AND: MICHAEL JOHN ROSS Respondent COURT: FINN J PLACE: CANBERRA DATE: 2 AUGUST 1996 MINUTES OF ORDERS

THE COURT ORDERS THAT: The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. ACT G 21 of 1996 DISTRICT REGISTRY ) ) GENERAL DIVISION )

BETWEEN: COMCARE Applicant AND: MICHAEL JOHN ROSS Respondent COURT: FINN J PLACE: CANBERRA DATE: 2 AUGUST 1996 REASONS FOR JUDGMENT

This appeal from the Administrative Appeals Tribunal ("the Tribunal") under the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), s44 (1) is of narrow compass. On 23 February 1996 the Tribunal, by a majority, set aside a reviewable decision of Comcare of 16 December 1994 and remitted the matter to Comcare with the direction that Mr Ross was entitled to receive compensation payment for the period 25 January 1994 to 23 February 1994. Though the grounds of appeal to this Court challenged the Tribunal's finding that the condition from which Mr Ross suffered and for which compensation was claimed was within the s4 definition of "disease" in the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act"), the appeal itself was limited to the single issue of whether in the events which transpired Mr Ross had no compensable claim because he fell within the proviso to the SRC Act, s4's definition of "injury". That definition for present purposes excludes from the compensation regime of the Act "any disease [or] injury ... suffered by an employee as a result of ... failure by the employee to obtain a promotion, transfer or benefit in connection with his ... employment". For reasons which I will give below, the question of law Comcare so seeks to agitate does not actually arise in the circumstances of this case. Factual Background This can be mentioned briefly. In 1990 Mr Ross suffered a work-related neck injury while employed as a bus driver with ACTION. He subsequently was certified as being medically unfit to hold a bus driving licence because of this injury. In mid-1993 Mr Ross was redeployed to various positions including one with administrative and courier duties in the city registry of ACTION. On 30 November 1993 he was offered formal transfer to that administrative/courier position as an Administrative Services Officer Grade 1 ("ASO1"). He was in substance occupying that position at the time. If I can interpolate at this stage, while the ASO1 position came under a Clerical/Administrative award and was within the union coverage of the Clerical and Public Sector Union, Mr Ross' position as a bus driver came under an Industrial award and was covered by the Transport Workers Union ("the TWU"). The terms of the respective awards differed in their entitlements, the industrial award alone providing, for example, leisure leave of one week in twenty and a uniform. Mr Ross clearly wished to retain his Industrial Award coverage and TWU affiliation notwithstanding that he was working in the registry. When offered the formal transfer he neither accepted nor declined it but rather sought the advice of the TWU on the matter. On 1 December a meeting occurred involving Mr Ross, a TWU official, the Deputy Chief Executive of ACTION and others. The following is a record of that meeting. I set it out in full simply to illustrate union involvement in this matter. "The meeting was convened by Mr Castle to discuss the redeployment of Mr Ross into the ASO1 position in registry and the return of the Courier vehicle from Belconnen into Head Office. Mr Santi presented the union case that Mr Ross be allowed to continue to garage the vehicle at Belconnen and Mr Ross permanently redeployed to a GSO 5 Courier position. Mr Castle presented ACTION case regarding the vehicle and why there was no permanent GSO 5 for Mr Ross to be redeployed. After a barrage of exchanges/discussion over the duties of the position, Mr Ross's long term suitable employment the Union stated it did not accept managements position at all. As Mr Santi departed the room he advised Mr Castle that the tram buses would be off the road tomorrow." It should be explained that the courier vehicle referred to was in a sense a symbol of the emerging dispute. Mr Ross and, seemingly, the TWU wished to have the vehicle garaged at the Belconnen Bus Depot. ACTION required it to be returned to the Head Office Car Park. On 2 December 1993 the Deputy Chief Executive Officer advised Mr Ross that he had directed that action be taken to redeploy him permanently to the ASO1 position. Nothing further seems to have occurred in relation to this when, on 20 December, Mr Ross commenced recreation leave. He returned to work on 24 January 1994. Five days earlier on 19 January 1994, the Chief Executive Officer of ACTION wrote to the TWU advising that Mr Ross would be redeployed to the ASO1 position on his return from vacation. The following day the TWU replied expressing the union's objection and as well wrote to the relevant Minister indicating an impending industrial dispute with ACTION over the matter. On his return from vacation Mr Ross learned of the change. He indicated he would make no decision in the matter until he had spoken with the TWU. The following day (25 January 1994) he consulted his general medical practitioner and was certified unfit to return for a period which later was extended to 23 February 1994. On 27 January 1994 he lodged a compensation claim citing 25 January as the date of injury. His doctor had diagnosed him as having a reactive stress condition which was aggravated by the situation he found himself in on his return to work. It seems to have been the case that other persons under the Industrial Award were on occasion temporarily engaged to perform courier/administrative functions in the registry and that when so doing they continued to enjoy in some degree at least the entitlements of that Award. The effect of the redeployment of Mr Ross to the ASO1 position would have been that he would no longer be entitled to retain even those benefits. It equally is clear that the applicant resolutely sought to retain his status under the Industrial Award while having employment in the registry. In consequence he "actively resisted" having his position reclassified. To anticipate matters, it is Comcare's submission on this appeal that, in failing either to retain the benefits accruing to him from the Industrial Award, or else to "obtain" them as part of the position to which he was to be redeployed, Mr Ross fell within the proviso to the SRC Act s4 definition of "injury" I have noted above. The Tribunal's Decision The Tribunal divided on the question of whether Mr Ross was entitled to compensation. The conclusion of the dissenting member, Senior Member Allen, is captured in the following two paragraphs: "38.The definition of "injury" refers to the failure to obtain a benefit. In this case the benefit sought to be obtained was the retention in his new position of the benefits of employment under an Industrial Award, together with the right to garage the courier vehicle at a bus depot and work the hours appropriate to a Bus Driver and not those of a Clerical/Administrative Officer. 39. I find that any symptoms that the Applicant may have suffered arose out of a failure by him to obtain a benefit, namely the retention of his status under an Industrial Award, and hence is not compensable." I would emphasise in this the finding in para 39 as to the causation of Mr Ross' injury. It was that finding which resulted in his compensation claim being held to fall within the proviso to the s4 definition. The conclusion of the majority members, Senior Members Burton and Bayne, was that: "21.We respectfully disagree, however, with the Presiding Member's conclusion that the applicant's symptoms occurred as a result of a failure to obtain a promotion, transfer or benefit. The definition of "injury" refers to the failure to obtain a benefit. Here, the applicant was concerned with retaining a benefit. The applicant was not seeking a promotion or transfer. The applicant saw a benefit in remaining as a bus driver under an industrial award. The applicant's resistance to the job change was motivated by his wish to continue to enjoy the benefits of that award. The fact that the applicant saw some benefit in remaining in his position with the classification it carried, and perceived that there was no benefit to him in the reclassified position he was offered, cannot, in our opinion, be regarded as a failure to obtain a benefit. In our opinion, the applicant's symptoms were brought about from the stress he suffered as a result of the conflict in which he found himself, which conflict arose by the union's attempt to protect the applicant from the threat to remove some benefits the applicant already enjoyed from his existing classification. [emphasis added] I note in particular the italicised concluding sentence on causation: the injury did not result from Mr Ross' failure to obtain a benefit. It was a consequence of his being embroiled in a conflict involving his union. In other words, his injury resulted from the manner of conduct of that conflict by others. Earlier in their reasons the Senior Members in referring to the effect the redeployment would have on his award and union coverage had this to say: "6. The applicant [Mr Ross] came into conflict with ACTION management over the issue. The applicant sought the assistance of his union. The TWU organiser attended meetings with the applicant and management. However, the dispute became protracted over a period of some two months. No identifiable process was followed to resolve it. The applicant's evidence was that he found himself in the unenviable position of what he described as being the "meat-in-the-sandwich". The applicant said that while he was given assurances from the union that it would take up the matter on his behalf and that there would be a favourable outcome, management continued to assert its right to effect the changes. The union representative failed to follow through with foreshadowed arbitration or industrial action which it indicated was required to resolve the broader issue of union coverage of the redeployed industrial workers. Management acted unilaterally at times when the applicant was on leave. The applicant gave evidence that the point came where he wanted the union to give him a clear indication whether he was to hold the ASO 1 clerical position or the industrial position. If it was to be the clerical: 'I'd have to go with the decision. I wanted clarification, more than consultation. I had management saying one thing and the union the other'." The Appeal to this Court: a Preliminary Issue It was Comcare's case that the Tribunal's decision raised a single issue for me. This was whether the Tribunal erred in law in making the finding that the proviso to the s4 definition of "injury" did not apply to Mr Ross. Contrarily, counsel for Mr Ross submitted that the majority made no such finding. The proviso was simply irrelevant to the two Senior Members' view of how Mr Ross' injury was caused. And their finding on this being a matter of fact it was not open to challenge on this appeal: see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 461-464. I would have to say that I agree entirely with the latter submission. In my view, a finding that Mr Ross' injury resulted from the conflict (a) in which he became embroiled; (b) which involved his union as well as the senior management of ACTION as protagonists; and (c) I would add in parenthesis, which left him as the "meat-in-the-sandwich", was one clearly open on the evidence before the Tribunal. It is the case that the initial cause of that conflict, given Mr Ross' wish to retain his award and union coverage, was his involvement of the TWU in the matter. But the matter having thus been set in motion, its course in the hands of others created a state of affairs from which it could reasonably be found that the injury could have resulted.