Australasian Meat Industry Union of Employees (Queensland Branch) v National Meat Association of Australia (Queensland Division) Industrial Organisation of Employers and Oakey Abattoirs Pty Ltd [1998] QIRC 331 (1998) 158 QGIG 530

530 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 August, 1998 Ql.'EENSLAND INDUSTRIAL RELA'I10NS COMMlSSION Workplace Reiatiom .Act 1997 s. 291 •-- a_pplica(ion i{Jr order:,; Australasian Meat Indttstry l inion of Employees ((Jue ens land Bran(;h) AND N-~tional Meat i\ssociation of .Australia. (Queensland Div_isi•.)n) Industrial Organ1sation of Ernployers and {)a.key Abattoirs Pty Ltd (lVo_ .13795 of 1998,! COJ\1MlSSIONER BLOOM.FIELD 14 .August 1998 Application for Injunctive Orders under s. 291 Act - Argued N-on- Compliance w;fu ,. 233 Workplace Relations 1\c! 1997 (Qld) Payme,it for first day of con1pensabk injury - Thtesh~)ld l'-'~ue- -- Power .and Juri~diciion af C'.onunission - Ciain1erl incon~1Ste.ucy bdWt\cn Act a:nd Federal Award •- Oakey Aballoirs respondent to F,~dernl Award ... Argue.d that Co.nunisslon has no r,-01,ver to intei1}n::.t Fe-Oc.n1i Aw.:u:d -- Reference !n s. l52(1) of rV.orAplcu.e Relalions .A.ct 1996 (C'th) -~ Cornrnission ti.as power to C1._Jnsid.t:r th';;" .Apphcation - ~[11re-shold issue rejected 29/5/9K A.rbitrated 1',-faae-r - /\rgued i11t.::onsLstency hc,tween provision of F0der21J i-\Ward ;i.rtd .c-. 233 -- hK"tJnslstency c-xists -- En1p"loyer not acting in breach of s. 233 of Stale Act ...Application for foju11e1ivc Order, di,missed. DEClS101' 'Ihis dec.lsion re-latcs ro an Apphcation by the. A.ustralasian ~Y1cat Industry Union uf Ernplr,yee~ (Qucensiand Branch) (A:VHEr) for ir~junctive nrders undBr s. 291 of the Workplace Rdalions Act 1997 (Qld) St;;te Act) to require Oakey Abattoir,-: Pt;· Ltd Company) to ct1n1μly \.Vith s, 2'33 of the State Act by paying tvages on the first day of an injury to .any of 1ts employee.~ 'Hlho suffer an injury fo.r iAtJich coffqxmsation is payahk- unde-r the }'\-'orkCov€r Queensland /let 1996 (th ..~ \VorkCover ./~ct). I issued decision on a thre.sho1d n1at1eL on 29 ~1av 1998, in fr:iund that "I had jurisdiction to hc.ar and dete~1fne tlF!- APl)iication a11d that I ~\.vould h~~ar the n1erit~ of t½.c: case a1 a ,.-rubsequent dat..-:, Tins decision z.ti.;:aJs μ,1th the rncrit1. 1ifr L. Ni:Jrris, who repre3c-nte<l 1\_\flElJ, in.fnrrn.ed rne- th.:it the factual b:u::kgrounJ of h~e ITh-LHer \Vas thRt the Company had, about January l 997, declmed to pay any ernpioyee their fuH wage:o for tht: day when an injury, within the mean.ing of the w·orkCover Act, happened. He ir,dicated that the Company had taken 1h,, position !hat ilic Queensland Meatworks Industrial Agreement Award 1993 (the QMIA Award) invalidated the operation of s. 213 of 1he State Act by virtue of s. 109 of the Constitution and, semb/e, s. 152(!) of fue Workplace Relations Act 1996 (C'th) (the Federal Act). Mr Norris indicated that the AMJE0 disputed ilie Company's illterpretation on the basis that the QMIA Award did not invalidate the operation of s. 233 of the State Act. Mr Non-is put to me !hat where there is ar; a!legeJ incomistl'ncy between a federal award am:! State legisfation s. 152 of the Federal Act must he applied. Section 152, insofar as it relates to lhe issue before me, is in the following terms:-- "152 Awards to prevail over Sfate laws and State ;,war<.ls (1) Subje.,ct to th}.c: section, if State ]aw or a Stat.e -3J.vard is incon..si.~1ent with, or deals with a rnatter dealt w.tth. ln an award. fue la.tter prevails and the fonner, to !h,: extent of the incoI<Sistency or in relation to thiO matter dealt Ivith. is invalid.". Mr Norris submitted that the leading authority on the subject was Metal Trades lndustr, ,4ssocialion of Austraha v Anu1lgamated Metal Worker:t' and Shipwrights Union {1983) 152 CLR 632, He ~ub:m.iue<l that the decision was authority for the proposition that the appropriate test to establish whether there is any inconsistency to identify lhe conduct or matter with which the. award deals, ?v1r Norris went on to submit that two propositions emerge fn)J.'11 the decision viz.:-- (i) It is essential to determme !hc: ,1Jbject-man.c:r fuat the award deals with; and (ii) the subject-matter that th,, award deals with may leave srnne small ari\a that ,t does no, deal \vilh that will he ,:,ipable of regulation by a state law.. Applying such proposition Mr !',;orris suhmit!ed tint the subject matter th.at s. 23~ of the State Act dealt wlth was workers' comptmsatlon and rai~ed four argurnc.nts tc suppc}ft tl:1at contendon. He argued that th,, QMIA Award did no! deal with the subject matler of v:orke-r~· coxripensation and that si1niiarly, it did r.K1t deal Viifri: the concepts of ''itccld.e-nt pay 1 ' f)f ''xnake up pay''. He also indicated that the only po,;sible part of the QM!A Award that n1ight. possibly hear on the subj,;.:.ct niatter 1~{ workers> con:,p~-nsa.tion c-ccurred jn dause- 16 "'Sick I.,cave)?, which, relevantly, is in the following terrns:-- "SICK LEAVE (a) An employee other than ~1 ca8ua1 employee who is absent fron:-i W{)rk on accz,unr. of personal iHnes:-; or on account of ini"urv by accide-nt shall be- entitled to le.ave- vf absence without d~x11.1.:~tio~1 of pay, ,ubJecl to !he fc,Howing conditions and iimitatious: {i} ffr shall not be cntitlt:'<l to be- paid leave. absence f•)f any period in respect rl ~;;.:hich he is entitled to \Yorkers' Conrpen-:;arion. (b) Notw1chstauding anything comaimxl in subdause hereof an ernpioy,,e injury !hrnugh an accident arising out of aud in the course 0f en1ploy1nent (not bejng an ir~1ury in respe-ci of \vhich he 1s 0ntith,.J t(} '1Norkers' Con1pensatiun) nece.ssitating ht~ attendance during working hours to a d{.··•ctur 1 chemist or irained nurse, nr at a hospitat shall not :ruffor any deduction from his pay for time (110! ,:xcee<lmg ,.; hours) so occupied on the day of the ;,.cc;dent and ~hall reirr;bursed by the en1ployer aH expense re4~onabJy incurred in corruection \Vi\h such atte-ndancc.''. i\fr Noni<£ subn1iU6d Ltat the ConID:U,ssjon should cou5trtk~ l11]s dause a...,;; ll<Jt entering upon the- subject r:natter of workers' co.rnp-~Rsation f;,,)f four {4) rea.sonB a__.;; foiiows>- "{JI TI1e obvious rnrent of paragraph J 6(a)(i) iJ li.i prevent 'double dipr,ing' 1 28 1998 GOVERNMENT INDUSTRIAL GAZETTE 531 (hJ paragraph 16(a)(i) dearly recognises the subject-rnatter of worke-rs cornpensation and tlee.s not purport to e-nter into it: (ii1 '1 Clau..\e 16(h) conten1rlate.s ·payment on ilif, first day in re,spect of a non compea~abie injmy. It seems incon:;istc.nt ilia! dause 16 would prmide thereafter (as ihe respondent urges) that no payment should be made on the first day of a compensah\e ir~ury - the. better view is !ha, the clause ai:,predates !he provisinns of the workers compensation act ,md, giv~n that payment is required to made on tlw first day, does not de;,.! with tl:vu subject"matter; <iv) 1No.rkcrs' compensatton legislation has be-en in operation since 1916, and !he provisions relatJng to !he first day of payment since 195 Traditionally, Commonwealth awards havt: entered this 'fieltf. An intention to ex.dude s1.1ch orovi.~ions should not be lightly inferred, partit.u1ar1y where the state legislation has been in force at the time the commonwealth arbitrator settles the rndustnal dispute by making an award: Fabros v Jmercoflfine:mal Hotel Sydney (1993) 53 IR 19'3 at 204.l•. Mr Norris also ;;ubmittcd that 1here we.re sever,,! factors which should he given ,_;veight to hy the- C..-0rrmJ.ission in deciding to exercise it;; disz."tction to issue the orders sought under s. 291. In doing so he 1c-ferre<l to fue fad that the re-;pondent Co;4,any has had the opportnnJty to make .an a.pphcafi.flfi. pursuant to s. 15:; of the l'ederal Act to haves, 233 of !he State Act declared invalid beca,1Se of the operation of clause l 6 of the QMIA Award. In addit)c,.n, ht- also subrnitted "'issuing orders in the nature of a rn.;1-ndatory restorative 1njund-1on (to order payment for past failure,S to comply -.vith s. Z:U) and a perpetual injunction would finally determine this rnatter) ,vhcn .rnost other fon1.m-s ore not able t-o do so'\ J'A.r (i Arnold. of the Sational Me.at As,'.\{">Ciatinn of 1\ustn.1lia (Queensland [?ivi~-;ion) industrial Organisation of Ernpioy~.rsf who reprnsente~i :he respondent Company a:gued that " federal awe.rd of the Australian In,Jus!rial .Relations Commission regarded as a federal law ;ind the provisions of the QYilA Av,:ard o-verrod.e tlH)se ins. 233 of the State 1-\ct by virtue c{ s. of fue Constitution, "l11e- rnethod for the balance of payment .in respect o! tirnc not workc<l un day au i".:rnpk">ye-c injured is uot pri::)\.1ded for in the \\\.>rk Act (Q[d). The only placce melhod for paynieui is provided fnr i.; in the QML¼ and the State w·orkphce Rdations Ad. Tbi~ bt;.ing the case, an t:;rrq:,Joyer who en1ploys under U:1e QMIA mu,t make pay.m<'.nt to lnjurc:d worker through the method pfcvided ttcre, To OO~y t¾e State Act would be zno.nl&Jous, a.-s .it apph~s only to en1ployces who are covered by that .i\.cC'. H,;; a.iso subrn.itted that the principles ti> dedde whethi:r an inconsistency existed were weH-sett.ie-<l <tu<l cited lvlet,cl Trades Industry A.vsoc£ation of Australia arul Others "' Anuifgarnated Jfetal WK-,rkers and Slupv.•rights Union and Othets (l 98'3) t 52 CLR 632, 4 IR 284 at 289 as foUow~s:- "ln the. case 0% ,m ,1ward which deals with a dispute between parties wb.t\~e- re.btlon5 apm.t fron1 the award are ordinarily goveffv:d hy Statf'. hnv, including the corn:rnon iaw 1 the ex.istem:e of the State iaw is for rnost. part assurned and this assurnpiJon wiH be relevant in discerning any L'1cons1stency. ]11e coutraz::t of e-rnployrnent iL.:;elf is the mo.'<l obvious il!ustratio;L To th<0 extent that it not varied by the aw;1fd 1 iL~ obhgations \v1H u1tixnate.ly be derived frorri State law. The yni:~stion often he whether the, award provisions arc intended to suppleraent nKX.iify rather than supplant State law," He alsQ re.fe1Te.d rn.e extracts from the ded~irn~ in Clyde EnginEeri.ng Ccw,/.burn p916) 37 CLR 466 at 499 and Victoria v The Convnon:wealth (19T7) 58 CLR at 630. After refe:n1ng ffif' h) these- (:'.1.St:-s Mr i\.rn.0ld subrrntted>·· ·'Applying the;:·e te.sts to the fat'ts of this case the only conclusion that can be drawn is that the Pederai ,,.A.. ward must overridt:- the State A.ct The crucial point to be niade is that the- Federal Awa.rd is ct..-,.ntern.pla.ting sou~ething entfrely different to that (}f the State Workplace Relations Act. The Award specifically makes refore.r,c~ to payrnc.nts in respect cf pencx·ls ,vh.en en1.ployces are receiving Workers' Compensation payments, TI1e met.'iod for payment for the balance of the day of injury (in terms of compensable injury) for the ernp!oyee is that of sick ieave. 'llie State Act ,-pecifically m.akc;; provision for the employer lo make full paym::,nt cl wages for the da:y the injury ()ccurs. Hence, the inconsistency arises. 11,e scope of lhe Fe,kral Award mu5t be taken to cover the field in respect of the issue in dispute - that is specifically balance of day payment, The Federal Award leaves no room for the addition of furt.hc:r comn:ritments on the employers' behalf in r<"Asped of how payment should he made. Conclusion It see~ to me- that in order to estabhsh whether an. inconsistency exists it is neces,,ary to examine the relevant provisions of the WorkCover Act 1996, the State Act and clause 16 of the QMIA Award to discern precisely what matter(s) each of !he. Acts, and the Award, respectively, deal with. A!thcmgh not relevant to the matter of any inconsiste,ncy bdween the Stole. Act and the QMIA Award. have chr,;en to look at the provisions of the WorkCover Act because it helps to clarify what matter(~) the State Act and the QMlA Award deal with. Insofar a, it is relevant to the. app!icatiix1 before me the W orkCover Act deals with two issues, Firstly. JJie Act provides an entitlement to e.mp!oyees who suffer an mjury. wi!hin the meaning of the Act, to receive compensation during the period of their incapacity. ln thi~ regard, s. 168(2) of the. WorkCover Act provides no entitlement to an employee to he paid workers' 1,;ompensation until:- (i) 1n the case of a worker who visits a doctor or dentist on the day the worker stops work became of an mjury which asse.ssc,d as resulting m tota.l or p;utiaI incapacity for work - the day after !he wnrke,r stops work because of fu,,. in1ury; and (n) fo the case of a worker who visas a doc1or or dentist on a day later th:m the day on which the worker stopped work- lhe day on lVhich the doctor or dentist a:;..'i't::.ssed the injury as resulting in tot.al or partial incapacity for work. Sr;condly, me \VorkCover Act provides, at s, 70(2), that the employer mu,t pay to the injured worker an a.m,,unt "equal to the compensafi,m thar ~( rhis section did not apply, l'roui,d be payable to the vvorker by 1VorkCover the period UP to four days that start.r on the day that c,ynpensation. i~s· payable lo the ,-,,)orker,n Corn1-1ensation is payable hy WorkCover from the time gpecified i11 Regulation 16 cl WorkCov~r Qneenshnd Regulation 1997. By a combined reading of 69, 70 and 168 of the WorkCover Act the pays:ne.nts made to an ernployee - either hy the en:q.1.loyer or by WorkCover itself - from the times specified at 168(2.) ahove) and m Regulation J6 art' to he regarded a.s payments of workers' compensation. However, the \.VorkCov~r Act provides no entltlen1cnt to an e-In.ployt;r;:: to be paid fr,r any lost time oceurring on th:; day of the inJUIY nor, because of s. J68(2)(n), for any time ,xcurring between tlie day of the injury occurring and the date upon which a doctor or dentist ass,,sses tk,t the hijured worker is totally or p;utiaHy incapacitated for \Vork The endtl~:rr1ent tt> he. pa.id on the, day of an :injury is said !o arise because of.,. 233 of the State ALi which j;'fo,ides>•· "·233. (1) An injured er:nployee is entitled to be paid full 1vages rhe when the in;ury happens. (2) Subsection ( lj applies despite an b-tdusrn·ai instrurnent or employment contract.·•. "lt~jury" is defined to rnean. ·· an inji-tl}' H-'ithin the nu:-aning '-'.f th.e lVcrR·ers · Compensation Act 1990 or l11orkC:7ver Queensland Ac! 1996 for vvhich P.>tfrkers' cotnpensation is payable under that Act," The provision al 23 3 can be seen to 27182__ 1 DOC -- 1 of 2 -- 532 GOVERNMENT fNDUSTRIAL GAZETTE 28 Whilst linked to the receipt of workers' compensation (see above) the payment ls not !o be regarded as a payment of wockers' compensation, This is because compe1rn1tion entitlements are no! payabk after ihe times specified at s. 168(2) above. The "'day when the iajury hap_pen;,·' 1 13 n<>t such a day, Accordingly 1 the- ent]derneni of an injured emph)yee to be paid \Vagcs in respect of the day \Vhen the injury happeu,.s: although r;:.lated to payment of workers' comj)<,nsation, is not a paymem c{ workers' co:mpens.iliorL It is, however, an en.title-rn.....':_nt tr> be pairl \vages in respet.":t of tin1t- !wt because of an iil)ury, (]au.l'.c 16 of the- Qi\:ili-\ A. i,.vard rekvant1y mdicates that:- •'11n ernployee other than ti ctisual employee who is absent fron1 his wo1* on accoun1 rif. . injury by accident Jh..all be entitled to leave of absence ivithout deduction u,f pay, sul.)ject lo the foll,,_nving conditions and li.mitations: /i) He sh.ill no/ be entitled paid leave of absence for ,.my period in respect of h'hich fw is t!"ntitled to 1-Vlirkers' Compen'.;al/.OJt.. n_ fn my vie·,,v dause .16 de~Js with the- subject rna.tter of the 0ntitlerne-nt of an enip1oyee iltjured by accident to leave of absence without dedudion of pay in circumstanees -;..vhc.n.~:-~ (i) ~fhc employee i.s othe1 than a casual ernployee; an<l (i:) Hie employee is absent from work on ac,x:,unt of inJury by accids:nt: and (iii) The absence is in respect of a period during which the ernp.!oyee i.s nor entitk<l to workers' compe.n.:;;;:ttion. ln that sense, the QM!A Award enables an employee, otheI than a casual empk•yte, v-/ho Jbsent from work on l;tccnunt of 1njury by accident to, inter dai1n a.~y pay which has been lost 'Jor the day ...,,vhen an injury hctppens" as '-iick kave subject to the limitation th.at !he e..rnployec ca1n1.:,t (alsc) da.irn for any r,e-riod that he/she is entitkd to workers; c.:;rnpemation. A ca-.HcJ en-1ployee is .not entitkd ts.1 {~}a.int /\n itl}ury foE which workers' t.~on1pen.s21t1on may later hccorn(-:: payable. by virtue of the provision of 70 an.d .168 <--{ t..½.e \Vo-rkCover Ac{ a.nd Re-gulatton 16 of the Wo.r.kCovt~r {/ueensiand R.eguJ.a.tion 1997 - is nevt~.rtheless an ''11\jury hy accident" wilhm the meaning of Cl3.u$t": 16 of tlK QMl.A Award. Ac12:ord.ingly, in rny the pn:,isions of 233 of the State. A.ct. to bonow frorn the \vor&;; <'J the High Cuuit in the },fetal Trt:tdc; Case r,,.':fe1red to above, " . plainly interfere "H-'ith rhe relationship of employer and ernployee as established by (th<' Qlvfl4 Award) Both in sub;ect matter and effect," [ ! 983 j l 52 CLR 632 at 644). The Q.\11A Award f'1<wision ckarly suppfan!s the State Act because: it deals tvit.~ rhe sa.r11e subject niatter, being the entitlement of an ensployet- to paid "for ,he day when the injury lwpp,,m", The Award also deal., with the subject matter of the ,rntitlement. of a casual en:ip!Pyee to be _raid sick le.ave. by staling that there is no such entitle1nenL In my view, there is dear rucou.sistency bc::tween the provisions of t.'.fa.use 16 and the provi.-.;ioos ;)f ~" 23.3 of the State AcL Censequt:-ntly, by the operation ctf s. 152(1) of tl1t- Federal Act the provisions of clause 16 of th~~ Q,VHA Award prevail and the provision., uf s, 233 of the Workplace Reiaflo,11s Act 1997 are invalid to the t>xtent of the incor..:-:istency. .In th.ls \'.U.S..';. tbc inz.:o.n3.istency is tJ10 entitk-1nent of an injur~-d en1ployt~e to be pa.id ·1;-:;r the day rvhen .the injiay happens·· as sick leave. Aoxirdmgly, con.tra,.ve-nrion ef l\pplication. having frmnd that tl1e cnip!o_yer has not a.ded in 233 of the Workpla(e Rek1Jions Act ]99i, I dtsrr1lss the Co:rnmission orders acc(":,rdlngly. AJ-. BLOOl\<1FIEJ .D: Cumrnissio.ner. Appearances:-- -~1r L, Norris fn.r the Australa.si<.tll f¥1eat. 1nrhlstry \.Jnion {Quevn.sfand Branch). Employees G. iunold and :\Ifs K. Brown~ of lhe National A,,seq;;tt(:>YJ cf i\us:raJia (Queensland Division) Industri;;1,i l1rganisatinn of Ernplc~y:::;:rs (>akey Abano.irs Pty l,kt Rdeac;ed: 14 August 1998. 28 INDUSTRIAL GAZETTE 533 -- 2 of 2 --