Bindaree Beef Pty Ltd v The Australasian Meat Industry Employees' Union, Newcastle and Northern Branch on behalf of Riley [2012] NSWIRComm 74

Industrial Relations Commission New South Wales Medium Neutral Citation: Bindaree Beef Pty Ltd v The Australasian Meat Industry Employees' Union, Newcastle and Northern Branch on behalf of Riley [2012] NSWIRComm 74 Hearing dates: 23 May 2012 Decision date: 11 July 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President, Haylen J, Tabbaa C Decision: The Full Bench makes the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed. 3. The stay order made by Staff J on 12 January 2012 is dissolved. Catchwords: APPEAL - Application by injured meatworker for reinstatement in employment - Application granted at first instance - Whether tribunal at first instance had jurisdiction under Workers Compensation Act 1987 to order reinstatement - Whether tribunal at first instance erred in finding that respondent employee had produced to the appellant a certificate given by a medical practitioner as to fitness for employment of a kind for which he applied for reinstatement for the Commission's jurisdiction under s 241 of the Workers Compensation Act to be enlivened - Whether tribunal erred in not properly identifying and determining the nature and conditions of the work of slicer, in not properly identifying and determining the risk of injury and/or re-injury to the respondent employee upon undertaking the work of slicer and in failing to give weight to the evidence regarding the nature of the respondent's injury - Whether the tribunal at first instance erred in not correctly interpreting and applying the Occupational Health and Safety Act 2000 - Leave to appeal granted - Appeal dismissed Legislation Cited: Discrimination Act 1992 (Cth) Industrial Relations Act 1996 Fair Work Act 2009 (Cth) Occupational Health and Safety Act 2000 Workers Compensation Act 1987 Work Health & Safety Act 2011 Workplace Injury Management & Workers Compensation Act 1998 Cases Cited: Adam P Brown Male Fashions Pty Limited v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 Australian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910 Australian Workers' Union v John Holland Pty Ltd (2000) 103 IR 205 AWU v John Holland Pty Ltd [2001] FCA 93 Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212 Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349; (2001) 112 FCR 232 De Mestre v A D Hunter Pty Ltd (1960) 77 WN (NSW) 143 Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19 Hallett [1969] SASR 141 Helal v McConnell Dowell Constructors (Aust) Pty Ltd (No 3) [2011] FCA 1344 Kassem v Colonial Mutual General Insurance Company Limited [2001] NSWCA 38 Leticia Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; (1999) 130 IR 1 Maritime Union of Australia v CSL Australia Pty Limited [2002] FCA 513 Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828 Purvis v The State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 R v Blaue [1975] 1 WLR 1411 R v Evans and Gardiner (No 2) [1976] VicRp 53; [1976] VR 523 R v Rudebeck [1999] VSCA 155 R v Smith [1959] 2 QB 35 Riley and Bindaree Beef Pty Ltd [2011] NSWIRComm 1057 Speirs v Industrial Relations Commission of New South Wales & Anor [2011] NSWCA 206 Category: Principal judgment Parties: Bindaree Beef Pty Ltd (Appellant) The Australasian Meat Industry Employees' Union, Newcastle and Northern Branch on behalf of Anthony Terry Riley (Respondent) Representation: Mr A Moses SC with Mr D Stewart of counsel (Appellant) Mr M Perry of counsel (Respondent) Berry Buddle Wilkins (Appellant) Carroll & O'Dea Lawyers (Respondent) File Number(s): IRC 17 of 2012 Decision under appeal Jurisdiction: 9102 Citation: Riley and Bindaree Beef Pty Ltd [2011] NSWIRComm 1057 Date of Decision: 2011-12-23 00:00:00 Before: Macdonald C File Number(s): IRC 63 of 2011