FEDERAL COURT OF AUSTRALIA

Grant v BHP Coal Pty Ltd [2017] FCAFC 42

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    There is no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    On 4 December 2015, a single judge of this Court dismissed a proceeding challenging two decisions of the Fair Work Commission (“FWC”). This is an appeal against that judgment.

2    The appellant, Darrin James Grant, commenced proceedings in the FWC alleging that he had been unfairly dismissed from his employment by the first respondent, BHP Coal Pty Ltd. That application was dismissed by Commissioner Spencer on 14 March 2014. On 18 June 2014, the Full Bench granted the appellant permission to appeal, but dismissed the appeal.

3    The appellant then filed an application in this Court seeking certiorari, mandamus and various declarations. The primary judge found that the appellant had failed to establish error, jurisdictional or otherwise, in the decisions of the FWC at first instance or on appeal and dismissed the application.

4    For the reasons that follow, the appeal must be dismissed.

Background

5    The appellant commenced employment with the first respondent as a boilermaker at the Peak Downs Mine in central Queensland on 25 November 2003. The appellant injured his right shoulder on 21 October 2011 while undertaking his duties at the mine. Between October 2011 and July 2012, the appellant re-injured his shoulder on a number of occasions, both during and outside work hours.

6    In July 2012, the appellant re-injured his shoulder again, this time while mowing his lawn outside work hours. From 23 July 2012, the appellant was on extended sick leave, undergoing shoulder stabilisation surgery on 12 September 2012.

7    There was very little contact between the appellant and his employer while he was on sick leave, other than the appellant providing his employer with a series of medical certificates from his general practitioner and treating orthopaedic surgeon. These eventually included a certificate from his general practitioner stating that the appellant was “fit to return to his normal duties as and from Monday, April 1st 2013” and a later certificate from his orthopaedic surgeon to similar effect.

8    The appellant attended the mine site to recommence work on 2 April 2013. The Field Maintenance Superintendent at the mine, William Gustafson, informed the appellant that he would need to see “a BMA doctor” and that he would be sent home on full pay until an appointment could be arranged for him to see the doctor.

9    On 10 April 2013, the appellant received an email from Mr Gustafson directing him to attend a medical appointment with a Dr McCartney on 17 April 2013. The purpose of the medical examination was said to be to understand any limitations with respect to the appellant’s fitness for work and how his condition impacted upon his ability to perform his role as a boilermaker at the mine.

10    The appellant was dissatisfied with the requirement to attend the medical appointment. That was reflected in text messages from the appellant to Mr Gustafson requiring that any correspondence be forwarded to the appellant’s union and requesting an explanation of the basis upon which he had been “suspended” and directed to attend the appointment. On 16 April 2013, the appellant attended the mine for work but was refused entry.

11    On 17 April 2013, Mr Gustafson left a message on the appellant’s telephone reminding him of the appointment with Dr McCartney scheduled for that day. The appellant responded by text saying that he had asked for a letter indicating why he had been stood down and saying that he had questions regarding the doctor’s appointment. Mr Gustafson left a further message on the appellant’s telephone saying that he was directing the appellant to attend the doctor’s appointment and that failure to do so would be considered a failure to comply with a reasonable direction.

12    At 10.55 am on 17 April 2013, five minutes before the scheduled appointment, the appellant telephoned Dr McCartney and asked whether he was required to bring anything to the appointment. Dr McCartney said that if the appellant had any radiological investigations, x-rays, CTs or MRIs that were relevant, then bringing those along “would be good”.

13    The appellant left a message on Mr Gustafson’s telephone stating that Mr Gustafson had neglected to let him know that he needed to bring x-rays, scans and the like. He said that he needed to reschedule the appointment because he did not have any of that material with him.

14    The appellant then telephoned Dr McCartney requesting that the appointment be rescheduled on the basis that he did not have the x-rays and other scans with him. Dr McCartney said that he did not need the x-rays and scans for the appointment and could always get the reports from the radiologist, but that it was up to the appellant as to whether he wanted to reschedule.

15    Mr Gustafson then left a message on the appellant’s telephone saying that Dr McCartney had explained that he could see the appellant without the appellant having the scans and that he was willing to see the appellant between 1.30 pm and 2.30 pm that day. Mr Gustafson’s message said that failure to attend the appointment would result in disciplinary action. The appellant claimed that he had missed Mr Gustafson’s call, but Commissioner Spencer found that his evidence was illogical and that he received the message prior to when he claimed to have received it. The appellant did not attend the appointment.

16    On 18 April 2013, Mr Gustafson notified the appellant that an investigation was being conducted in relation to his refusal to attend the appointment and required him to attend a meeting on the following Monday, 22 April 2013. An impasse developed at the meeting where the appellant refused to answer any questions unless they were put in writing and Mr Gustafson refused to put the questions in writing.

17    At a further meeting on 30 April 2013, the appellant was provided with a notice requiring him to show cause why his employment should not be terminated. The show cause notice said that the appellant’s refusal to attend the two appointments with Dr McCartney and his refusal to participate in the interview with Mr Gustafson on 22 April 2013 amounted to refusals to follow lawful and reasonable directions contrary to his obligations as an employee. The letter also stated that the appellant’s actions in taping conversations without the consent of other parties undermined the trust and confidence relationship that needed to exist between the appellant and the first respondent.

18    On 6 May 2013, the appellant responded to the show cause notice, stating that he had not failed to follow any reasonable direction and indicating that the direction to attend upon Dr McCartney was unlawful and unreasonable.

19    At a further meeting on 6 May 2013, the appellant’s employment was terminated. The reasons for termination were essentially those given in the show cause letter.

Decision of the FWC at first instance

20    The appellant applied to the FWC for remedies for unfair dismissal pursuant to s 394(1) of the Fair Work Act 2009 (Cth) (“FW Act”). The question before the FWC was whether the dismissal was, within s 385(b) of the FW Act, harsh, unjust or unreasonable.

21    The first respondent resiled from its reliance upon the recording of conversations by the appellant as a reason for the termination of his employment. Commissioner Spencer expressly found that there was no evidence that the appellant recorded any conversation without the consent of the other party to the conversation, but found that his conduct in seeking to tape conversations was nevertheless relevant to the question of whether the termination was harsh, unjust or unreasonable.

22    Having regard to s 387 of the FW Act and the parties’ submissions, the principal issues which fell for determination by the Commissioner were:

1.    Whether the employer’s directions that the appellant attend the medical appointments with Dr McCartney were lawful (in the sense of being authorised by statute or under the contract of employment).

2.    Whether such directions were reasonable.

3.    Whether the appellant had failed to comply with the employee’s directions.

4.    Whether the appellant had unreasonably refused to cooperate and participate in the investigation process.

5.    In light of the Commissioner’s findings on the issues indicated above, whether the termination was harsh, unjust or unreasonable.

23    The Commissioner found that Mr Gustafson’s directions that the appellant attend the appointments were authorised by s 39(1)(c) of the Coal Mining Safety and Health Act 1999 (Qld) (“the CMSH Act”). Section 39(1)(c) requires a coal mine worker to take any “reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk”. The Commissioner found that the section gave Mr Gustafson authority to direct the appellant to attend the medical appointments.

24    The Commissioner noted that the appellant had undergone surgery to his shoulder and associated rehabilitation. He had been absent from work for eight months, there had been very little contact between the appellant and his employer during that time, and no steps had been taken to prepare for his return to work. The appellant was to perform potentially dangerous work in an inherently dangerous workplace. The Commissioner held that in those circumstances it was reasonable for the employer to have sought to confirm the capacity of the appellant to return to his normal duties. The parties and the Commissioner tacitly proceeded on the basis that Mr Gustafson’s directions were the directions of the employer.

25    The Commissioner then turned to the question of whether it was reasonable for the employer to require the appellant to attend the specialist of its choosing, or whether the appellant should have been permitted to attend his own treating doctor for a report. The Commissioner noted that Dr McCartney was an occupational physician who had knowledge of the mining industry and, more specifically, the employer’s operation. In contrast, the appellant’s treating doctors were not so specialised. The Commissioner concluded that it was reasonable for the employer to require the appellant to attend the appointment with Dr McCartney.

26    The Commissioner next considered whether the appellant had failed to comply with the directions that he attend the appointments with Dr McCartney. The Commissioner found that the appellant’s representation to Mr Gustafson that x-rays and other scans were “required” for the appointment was “misleading” and “not entirely truthful or transparent”. The Commissioner concluded that the appellant did not have any legitimate reason for failing to attend either of the two appointments and there was a valid reason for the appellant’s dismissal.

27    The Commissioner found that the appellant’s refusal to respond to Mr Gustafson’s questions unless they were put in writing was unreasonable and improper. This was also a valid reason for the appellant’s dismissal.

28    The Commissioner found that while there was no evidence that the appellant had recorded any conversations without consent, the fact that he felt it was necessary to do so was concerning and undermined the employment relationship of mutual trust and confidence. Further, the Commissioner accepted that a “notice of claim for damages” form completed by the appellant and given to WorkCover Queensland demonstrated that the appellant was, in fact, not fully fit to return to work and had a degree of permanent impairment arising from the injury.

29    The Commissioner concluded that in all the circumstances the termination was not harsh, unjust or unreasonable. Accordingly, the application was dismissed.

Decision of the Full Bench of the FWC

30    Before the Full Bench, the appellant contended that Commissioner Spencer erred in finding that the directions that the appellant attend the medical appointments on 17 April 2013 were lawful and reasonable. The appellant submitted that neither the CMSH Act nor the contract of employment authorised the first respondent to give such directions. The Full Bench rejected that submission, holding that s 39(1)(c) of the CMSH Act imposed an obligation on Mr Gustafson and authorised him to direct the appellant to attend the appointments. The Full Bench also found that there was an additional and complementary obligation imposed upon the appellant under s 39(2)(d) to comply with instructions given for health and safety by a supervisor.

31    The Full Bench concluded that the employer also had the power under the contract of employment to require the appellant to attend the appointments relying upon a passage from the judgment of Dixon J in R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621.

32    The Full Bench rejected the appellant’s argument that s 39(1)(c) of the CMSH Act applied only to a direction given “at a coal mine”. The Full Bench considered that the scope of s 39 of the CMSH Act was not restricted to conduct within the geographical confines of a coal mine.

33    The Full Bench rejected the appellant’s argument that the Commissioner erred in finding that the respondent had valid reasons for terminating the appellant’s employment. The Full Bench found that the Commissioner had made no error in assessing the evidence.

34    The appellant submitted that he was not obliged to obey an instruction to answer questions at the interview on 22 April 2013 as he was protected by privilege against self-incrimination. The Full Bench noted that this argument had not been raised at first instance and that no reason was put as to why the Full Bench should consider a new argument of this kind on appeal. The Full Bench held that, in any event, privilege against self-incrimination did not apply to the appellant’s interview.

35    The Full Bench rejected a number of other arguments put by the appellant. It is unnecessary to describe those findings for the purposes of this appeal.

36    The Full Bench ultimately decided that permission to appeal should be granted, but that the appeal should be dismissed.

Judgment of the primary judge

37    The appellant commenced proceedings by way of originating application in the Federal Court of Australia. The appellant sought the issue of writs of certiorari quashing the decisions of Commissioner Spencer and the Full Bench, and mandamus against the Full Bench pursuant to s 39B of the Judiciary Act 1903 (Cth).

38    The appellant also sought various declarations in the original jurisdiction of the Court. The first respondent submitted that the application for such declarations should be dismissed as an abuse of process. The primary judge expressed misgivings about whether the application for declarations was an abuse of process, but decided that the proper course was to first consider the application for writs of certiorari and mandamus, before considering the application for relief in the original jurisdiction.

39    Notwithstanding that the Full Bench appeared to have already decided the issue, the parties asked the primary judge to make a finding of fact as to whether Mr Gustafson was a “supervisor” within s 39(2)(d) of the CMSH Act. Her Honour found that Mr Gustafson was a “supervisor” at the relevant times.

40    The primary judge noted that an application for relief under s 39B of the Judiciary Act would usually require the appellant to demonstrate jurisdictional error. The appellant submitted that the Full Bench fell into jurisdictional error by failing to deal with two of his arguments, namely: that it would be an infringement of personal liberty to insist that the person attend a medical examination; and that the employer could not retrospectively change the basis upon which the requirement to attend the appointment was given.

41    The appellant also submitted that the Full Bench and Commissioner Spencer had made jurisdictional errors, or errors on the face of the record, by finding that Mr Gustafson could lawfully direct the appellant attend the medical appointments, and by failing to find that the appellant’s privilege against self-incrimination meant the employer had no right to require the applicant to participate in the interview process.

42    The first respondent accepted that the appellant had made a submission to the Full Bench to the effect that s 39(1)(c) of the CMSH Act should be read down so as not to interfere with the appellant’s asserted fundamental right not to undergo a medical examination, and conceded that the Full Bench did not explicitly mention that submission in its reasons. However, the primary judge held that it was clear that the Full Bench had given detailed consideration to the proper interpretation of s 39 of the CMSH Act. Her Honour noted that the Full Bench held, inter alia, that s 39 “imposes a broad obligation” and creates “an obligation of...broad remit”. Her Honour considered that these findings answered the applicant’s submission that the Full Bench did not address the appellant’s argument.

43    The appellant submitted that the Full Bench failed to deal with his argument that the first respondent had retrospectively changed the asserted basis for giving the directions. The appellant contended that the first time Mr Gustafson referred to s 39 of the CMSH Act was in an affidavit filed in the FWC over five months after the termination. Her Honour noted that Commissioner Spencer had in fact found that Mr Gustafson had told the appellant prior to the termination that he relied on the CMSH Act, and that finding was not challenged before the Full Bench. The Full Bench also found that Mr Gustafson had relied on the CMSH Act, although he had not specified the section under which he was acting. Her Honour rejected the factual premise of the appellant’s submission that the Full Bench did not address his submission.

44    The primary judge was satisfied that there was no error on the part of the Commissioner or the Full Bench in finding that the first respondent had lawfully directed the appellant to attend the medical appointments with Dr McCartney. Her Honour concluded that s 39(1)(c) of the CMSH Act permitted Mr Gustafson to direct the appellant to attend the medical appointments. Her Honour also held that even if the FWC had misconstrued the CMSH Act, that error would not have amounted to jurisdictional error.

45    The primary judge rejected the appellant’s submission that the Full Bench had made a jurisdictional error in finding that privilege against self-incrimination did not apply. Her Honour held that privilege against self-incrimination did not apply to the workplace investigation into the appellant’s conduct.

46    Having found that the decisions of Commissioner Spencer and the Full Bench were not only made within jurisdiction, but in accordance with legal principle, her Honour declined to order certiorari or mandamus or make the declarations sought by the appellant.

Legislation

47    Section 394(1) of the FW Act provides that a person who has been dismissed may apply to the FWC for an order granting a remedy. Section 382 of the FW Act provides that a person is protected from unfair dismissal if, relevantly, the person is an employee who has completed at least the minimum period of employment and an enterprise agreement applies to the person.

48    Section 385 of the FW Act provides:

385    What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a)    the person has been dismissed; and

(b)    the dismissal was harsh, unjust or unreasonable; and

(c)    the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)    the dismissal was not a case of genuine redundancy.

49    Section 387 of the FW Act provides, relevantly:

387    Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a)    whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

…

(h)    any other matters that the FWC considers relevant.

50    It was in the course of deciding whether there was a valid reason for the appellant’s dismissal for the purposes of s 387(a) of the FW Act that the FWC considered the CMSH Act and the Coal Mining Safety and Health Regulation 2001 (Qld) (“the CMSH Regulation”).

51    The objects of the CMSH Act are set out in s 6 and include protecting the health and safety of persons at coal mines and requiring that the risk of injury or illness resulting from coal mining operations be at an acceptable level.

52    Part 3 of the CMSH Act deals with the safety and health obligations of persons at coal mines. Part 3 contains four Divisions. Division 1 (ss 33 – 38) is headed “Preliminary”.

53    Section 33(1) provides, relevantly:

33    Obligations for safety and health

(1)     Coal mine workers or other persons at coal mines or persons who may affect safety and health at coal mines or as a result of coal mining operations, have obligations under division 2 (safety and health obligations).

54    A “coal mine worker” is defined in the Dictionary to the CMSH Act as an individual who carries out work at a coal mine, and includes an employee of the coal mine operator. The appellant and Mr Gustafson were coal mine workers. Section 34 of the CMSH Act provides that a “person on whom a safety and health obligation is imposed must discharge the obligation”, and sets out maximum penalties for contravention of the section.

55    Section 37 provides, relevantly:

37    How obligation can be discharged if regulation or recognised standard made

(1)     If a regulation prescribes a way of achieving an acceptable level of risk, a person may discharge the person’s safety and health obligation in relation to the risk only by following the prescribed way.

(2)     If a regulation prohibits exposure to a risk, a person may discharge the person’s safety and health obligation in relation to the risk only by ensuring the prohibition is not contravened.

(3)     Subject to subsections (1) and (2), if a recognised standard states a way or ways of achieving an acceptable level of risk, a person discharges the person’s safety and health obligation in relation to the risk only by—

(a)    adopting and following a stated way; or

(b)     adopting and following another way that achieves a level of risk that is equal to or better than the acceptable level.

56    Section 38 provides:

38    How obligations can be discharged if no regulation or recognised standard made

(1)    This section applies if there is no regulation or recognised standard prescribing or stating a way to discharge the person’s safety and health obligation in relation to a risk.

(2)     The person may choose an appropriate way to discharge the person’s safety and health obligation in relation to the risk.

(3)     However, the person discharges the person’s safety and health obligation in relation to the risk only if the person takes reasonable precautions, and exercises proper diligence, to ensure the obligation is discharged.

57    Division 2 of Pt 3 consists only of s 39 and has the heading “Generally applicable safety and health obligations of persons”. Section 39 provides:

39    Obligations of persons generally

(1)    A coal mine worker or other person at a coal mine or a person who may affect the safety and health of others at a coal mine or as a result of coal mining operations has the following obligations—

(a)     to comply with this Act and procedures applying to the worker or person that are part of a safety and health management system for the mine;

(b)     if the coal mine worker or other person has information that other persons need to know to fulfil their obligations or duties under this Act, or to protect themselves from the risk of injury or illness, to give the information to the other persons;

(c)     to take any other reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk.

(2)     A coal mine worker or other person at a coal mine has the following additional obligations—

(a)     to work or carry out the worker’s or person’s activities in a way that does not expose the worker or person or someone else to an unacceptable level of risk;

(b)     to ensure, to the extent of the responsibilities and duties allocated to the worker or person, that the work and activities under the worker’s or person’s control, supervision, or leadership is conducted in a way that does not expose the worker or person or someone else to an unacceptable level of risk;

(c)     to the extent of the worker’s or person’s involvement, to participate in and conform to the risk management practices of the mine;

(d)     to comply with instructions given for safety and health of persons by the coal mine operator or site senior executive for the mine or a supervisor at the mine;

(e)     to work at the coal mine only if the worker or person is in a fit condition to carry out the work without affecting the safety and health of others;

(f)     not to do anything wilfully or recklessly that might adversely affect the safety and health of someone else at the mine.

58    The expression “supervisor” is defined in s 26 of the CMSH Act as a “coal mine worker who is authorised by the site senior executive to give directions to other coal miners in accordance with the safety and health management system”. It is now common ground that Mr Gustafson was a supervisor at the relevant times.

59    The expression “acceptable level of risk” is defined in s 29 of the CMSH Act as requiring coal mining operations to be carried out so that the level of risk is within acceptable limits and as low as reasonably achievable. Under s 18(1) and (2), a “risk” is the risk of injury or illness to a person arising out of a hazard and is measured in terms of consequences and likelihood. Section 19 provides that a “hazard” is a thing or a situation with potential to cause injury or illness to a person.

60    Division 3 of the CMSH Act deals with the obligations of holders, coal mine operators, site senior executives and others. Section 42 provides, relevantly:

42     Obligations of site senior executive for coal mine

A site senior executive for a coal mine has the following obligations in relation to the safety and health of persons who may be affected by coal mining operations—

…

(c)     to develop and implement a single safety and health management system for all persons at the mine;

…

61    Section 42 of the CMSH Regulation provides:

42    Safety and health management system for personal fatigue and other physical and psychological impairment, and drugs

(1)    A coal mine’s safety and health management system must provide for controlling risks at the mine associated with the following—

(a)     personal fatigue;

(b)     other physical or psychological impairment;

Example of other physical or psychological impairment—

an impairment caused by stress or illness

(c)     the improper use of drugs.

…

(3)    The system must provide for protocols for other physical and psychological impairment for persons at the mine.

…

(5)     The site senior executive must consult with a cross-section of workers at the mine in developing the fitness provisions.

…

(6A)     If the fitness provisions provide for the assessment of workers for a matter mentioned in subsection (1)(a) or (b), the site senior executive must establish the criteria for the assessment in agreement with a majority of workers at the mine.

…

(8)     In this section—

fitness provisions means the part of the safety and health management system that provides for the things mentioned in subsections (2) to (4).

62    Section 46 of the CMSH Regulation provides:

46     Requirement for health assessment

(1)    The employer must ensure a health assessment is carried out for each person who is to be employed, or is employed, by the employer as a coal mine worker for a task other than a low risk task.

(2)    An assessment must be carried out–

(a)    before the person is employed as a coal mine worker; and

(b)     if the nominated medical adviser considers the assessment is necessary after being given a copy of a notice under section 49(3)–periodically, as decided by the nominated medical adviser; and

(c)    otherwise–periodically, as decided by the nominated medical adviser, but at least once every 5 years.

The parties’ submissions

63    The notice of appeal contains nine grounds, some of which overlap, some of which are so vague as to be meaningless and some of which were not argued. The appellant’s case as argued is that the primary judge erred in failing to find that the decisions of the FWC were attended by jurisdictional error, or error on the face of the record, in that:

1.    Commissioner Spencer and the Full Bench misconstrued s 39(1)(c) of the CMSH Act as authorising an employer to direct an employee to attend and undergo a medical examination.

2.    The Full Bench failed to consider the appellant’s argument that the language of s 39(1)(c) is not sufficiently clear and unambiguous to abrogate an employee’s fundamental right not to be subjected to a medical examination.

3.    The Full Bench erred in finding that privilege against self-incrimination did not apply to the interview conducted on 22 April 2013.

64    In respect of the first two arguments, the appellant submits that s 39(1)(c) of the CMSH Act provided no authority for the employer, through Mr Gustafson, to direct that the appellant attend the medical appointments with Dr McCartney. The appellant relies on s 37(1) of the CMSH Act which provides that if a regulation prescribes a way of achieving an acceptable level of risk, a person may discharge the person’s health and safety obligation in relation to the risk only by following the prescribed way. The appellant submits that s 39 sets up obligations and the CMSH Regulation prescribes the only method of satisfying the obligations. As the CMSH Regulation does prescribe ways of dealing with risk created by physical impairment, the only way for the employer to discharge the obligation is by following the method prescribed. The appellant submits that complying with the CMSH Regulation is a defence to a charge that the employer has not satisfied its obligation under s 39. The appellant’s submissions on this issue will be discussed in more detail later in these reasons.

65    The appellant also argues that he has a fundamental right to refuse to undergo a medical examination against his will. He argues that the principal of legality requires that s 39(1)(c) of the CMSH Act should not be interpreted as abrogating that right as it does not contain sufficiently clear and unambiguous words to do so. He submits that the Full Bench failed to consider this argument.

66    The appellant argues that he was not required to answer questions at the interview on 22 April 2013 because he was protected by privilege against self-incrimination. The appellant relies, in particular, on the judgment in Murray Irrigation Ltd v Balsdon [2006] NSWCA 253 at [38]-[40]. He argues that the Full Bench’s finding that privilege against self-incrimination did not apply was wrong.

67    In response, the first respondent submits that the construction of s 39(1)(c) of the CMSH Act adopted by Commissioner Spencer, the Full Bench and the primary judge was correct, essentially for the reasons given by them. The first respondent contends that even if there was a misconstruction of s 39(1)(c) by Commissioner Spencer and the Full Bench, any such error was not jurisdictional. It also submits that there can be no error of law on the face of the record by the Full Bench, as the reasons of the Full Bench are not part of the record.

68    The first respondent concedes that if the Full Bench did not consider the appellant’s submission that s 39(1)(c) of the CMSH Act should be read down so as not to interfere with a fundamental right or human right, such an error is capable of being a jurisdictional error. However, it contends that the primary judge was correct to conclude that the Full Bench did deal with that submission.

69    The first respondent has filed a notice of contention asserting that to the extent that the primary judge held that there was no implied contractual right for the first respondent to direct the appellant to attend a medical examination by Dr McCartney, that finding was in error. The first respondent submits that the appellant was required, pursuant to an implied term of the contract of employment, to obey any direction by the first respondent that was not unlawful (in the sense that it was not prohibited by any law) and which falls within the scope of the contract of employment. It contends that the directions to attend the medical examinations were not unlawful and fell within the scope of the contract of employment.

70    The first respondent submits that privilege against self-incrimination is not available in respect of questions asked in the sphere of employment. It argues that, in any event, the appellant had no privilege against self-incrimination because there was no real appreciable risk that he would thereby have incriminated himself by answering the only question asked of him at the interview. The first respondent also argues that the appellant failed to claim privilege against self-incrimination, whether in the interview or in his evidence before the FWC. Further, the first respondent argues that there was no jurisdictional error where, as noted by the Full Bench, the question of privilege against self-incrimination was not raised before Commissioner Spencer and the Full Bench was concerned only with the correction of error.

Consideration

71    It is necessary to provide a further explanation of the issues before the FWC in order to give context to the parties’ submissions.

72    Section 387 of the FW Act provides that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account a number of specified matters, including whether there was a valid reason for the dismissal related to the person’s conduct. The appellant contended before the FWC that the reason given by the employer that he had failed to comply with directions to attend the medical appointments was not valid because Mr Gustafson had no legal authority to give those directions.

73    There are four relevant paths through which an employer may arguably be authorised to direct that a coal mine worker attend a medical examination. The first is under the protocols for physical and psychological impairment within the mine safety and management system developed pursuant to s 42 of the CMSH Regulation. However, it is common ground that the first respondent’s safety and health management system was invalid and inapplicable as it had not been made in accordance with s 42(5) of the CMSH Regulation, which provides that the site senior executive must consult with a cross-section of workers at the mine in developing the fitness provisions. The second path is under s 46 of the CMSH Regulation, which deals with health assessments. However, s 46 has no application to a health assessment in circumstances such as the present where the employer wishes to ascertain the fitness for work of an employee returning from injury. The third path is through s 39(1)(c) of the CMSH Act, depending on the construction of that provision. The fourth path depends upon whether there was an implied term in the contract of employment allowing the employer to require an employee to attend a medical examination. It is in this context that the latter two issues arose before the FWC.

Construction of s 39(1)(c) of the CMSH Act

74    The appellant submits that, contrary to the views of the FWC and the primary judge, s 39(1)(c) of the CMSH Act does not authorise an employer to direct that an employee attend a medical appointment or undergo an medical examination. He argues that the CMSH Act and the CMSH Regulation form a cohesive scheme such that the Regulation may be used to construe the Act, and that s 39(1)(c) must be read down to conform with the legislative scheme. The appellant relies on s 37(1) of the CMSH Act which states that if a regulation prescribes a way of achieving an acceptable level of risk, a person may discharge the person’s safety and health obligations in relation to the risk only by following the prescribed way. Section 46(2) of the CMSH Regulation provides for health assessments for employees to be carried out at specified times. The appellant submits that since the CMSH Regulation makes such provision, the effect of s 37(1) of the CMSH Act is that the employer is only obliged to comply with the CMSH Regulation by having health assessments carried out at the specified times in order to discharge its obligation under s 39(1). He submits that s 39(1) does not impose any further obligation on the employer and, consequently, the employer has no power to direct an employee to attend a medical examination outside the times specified in the CMSH Regulation.

75    There are a number of textual and contextual factors which tell against the appellant’s construction of the CMSH Act.

76    Section 39(1)(c) of the CMSH Act relevantly obliges a coal mine worker “to take any other reasonable and necessary course of action to ensure that anyone is not exposed to an unacceptable level of risk”. A literal or natural reading of the section would require a supervisor to take a course of action directing an employee to attend a medical examination when that course is reasonable and necessary to ensure that no one is exposed to an unacceptable risk of injury.

77    Section 39(2)(d) of the CMSH Act creates an obligation on a coal mine worker to comply with instructions given for health and safety of persons given by, relevantly, a supervisor at the mine. A natural reading of that provision would require that a coal mine worker comply with a supervisor’s direction, given for the health and safety of the worker or other persons, to attend a medical examination.

78    Contrary to the appellant’s submission, no adequate reason appears from the statutory context to construe ss 39(1)(c) and 39(2)(d) other in accordance with their natural meanings.

79    The scheme of the CMSH Act, relevantly for present purposes, starts with Div 1 of Part 3, which has the heading “Safety and health obligations”. Section 33(1) provides that coal mine workers who may affect safety and health at coal mines and certain other persons have obligations under Div 2. Division 2 consists solely of s 39. Accordingly, s 33(1) indicates that s 39 imposes obligations on coal mine workers. That is consistent with the heading of Div 2, namely “Generally applicable safety and health obligations of persons” and the text of s 39.

80    Section 34 provides that a person on whom a safety and health obligation is imposed must discharge the obligation. A failure to discharge the obligation is an offence punishable by a fine or imprisonment.

81    The legislative scheme demonstrates that s 39 operates to impose obligations for health and safety on coal mine workers and the other persons specified in that section in the circumstances set out in that section. The safety and health obligations imposed by s 39 can only be discharged in one of four ways. First, under s 37(1), if a regulation prescribes a way of achieving an acceptable level of risk, a person may discharge the obligation in relation to the risk only by following the prescribed way. Second, under s 37(2), if a regulation prohibits exposure to a risk, a person may discharge the obligation in relation to the risk only by ensuring the prohibition is not contravened. Third, under s 37(3), if a recognised standard states a way of achieving an acceptable level of risk, a person can discharge the obligation in relation to the risk only by adopting and following a stated way or another way that achieves a level of risk that is equal to or better than the acceptable level. Fourth, under s 38, if there is no regulation or recognised standard prescribing or stating a way to discharge the person’s obligation in relation to a risk, the person may choose any appropriate way to discharge the obligation in relation to the risk. An obligation on a coal mine worker under s 39 in relation to a particular risk remains until the obligation is discharged in one of these four ways.

82    Section 282(2) and Schedule 2 of the CMSH Act allow regulations to be made about, inter alia, the health of persons employed at a coal mine, including pre-employment and periodic medical examinations and health assessments, to decide a person’s fitness for work at a coal mine. Section 37(1) of the CMSH Act applies where the CMSH Regulation prescribes a way of achieving an acceptable level of risk and provides for how the person can discharge the person’s safety and health obligation “in relation to the risk”. Section 48 provides that it is a defence in a proceeding for a contravention of an obligation imposed under Div 2 or Div 3 “in relation to a risk” for the defendant to prove that the defendant has followed the way prescribed in the CMSH Regulation to prevent the contravention. Importantly, the words “in relation to the risk” in s 37 and “in relation to a risk” in s 48 call for identification of the particular risk that is being dealt with in the CMSH Regulation.

83    Section 38 of the CMSH Act recognises that a regulation cannot prescribe a way to discharge a person’s safety and health obligation in relation to every risk to safety and health arising at a coal mine. Section 5 of the CMSH Regulation itself specifically provides that it does not deal with all circumstances that may expose someone to risk at a coal mine. That can occur because the CMSH Regulation does not deal with an area or topic of risk at all, or because it deals with an area of risk generally, but not in terms that cater for a specific risk that may arise. It is necessary to identify the particular risk and consider whether the CMSH Regulation prescribes a way of achieving an acceptable level of risk in relation to that risk in order to determine whether s 37(1) applies. The mere fact that the CMSH Regulation prescribes ways to achieve an acceptable standard of risk in relation to some risks does not mean that compliance with the CMSH Regulation in relation to those risks discharges the obligation arising under s 39 in relation to different risks. If the CMSH Regulation does not deal with the identified risk (and there is no relevant recognised standard), s 38 requires that a coal mine worker choose an appropriate way to discharge his or her safety and health obligation.

84    Mr Gustafson identified a risk arising from the appellant’s return to work. That risk was potential harm to the safety and health of the appellant and others because of his injury. Mr Gustafson was obliged under s 39(1)(c) of the CMSH Act to take any reasonable and necessary course of action to ensure that no one was exposed to an unacceptable level of risk. The CMSH Regulation deals with the topic of the health assessments of persons employed or to be employed at a coal mine. Section 46(2) of the CMSH Regulation provides two ways to achieve an acceptable standard of risk, namely requiring health assessments to be carried out before employment, and periodically as decided by a medical advisor. However, s 46(2) does not deal with the particular risk identified in this case, namely a risk concerning the physical capacity of a coal mine worker already employed and who is returning to work outside the time for a periodic assessment. Accordingly, the CMSH Regulation did not prescribe a way of achieving an acceptable level of risk in relation to that identified risk and s 37(1) of the CMSH Act had no application. Section 38 required Mr Gustafson to choose an appropriate way to discharge his safety and health obligation in relation to the risk. The way he chose was to direct the appellant to attend Dr McCartney for a medical examination.

85    There are other contextual matters which tell against the appellant’s submission as to the construction of s 39 of the CMSH Act. If the appellant is correct, where the CMSH Regulation only prescribes the periodical medical examinations which the employer must have carried out (and where there is no relevant safety and health management system in place), the employer has no power under the CMSH Act to compel the worker to attend an examination in response to an emerging risk. According to the appellant’s argument, the employer could not, for example, require a coal mine worker apparently having psychotic episodes to attend a psychiatric examination before being allowed back to work. Plainly, that could lead to the exposure of the worker and other employees to an unacceptable risk of harm. The result would be at odds with the first two objects of the CMSH Act, namely protecting the health and safety of persons at coal mines and requiring that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level, and inconsistent with provisions such as ss 30, 31, 33 and 34 which are aimed at eliminating unacceptable risk. As Atkinson J noted in Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242 (“Edwards”) at [12], the CMSH Act was developed as a result of deliberations between government, representatives of the mining industry and unions and was brought in against the background of four major coal mine disasters in Queensland in the previous 23 years. Against those objects and that background, it seems unlikely that the legislature intended that the broad obligations for safety and health obligations enacted in s 39 should be read down in the way the applicant contends.

86    The appellant also submits that every person has a fundamental right to refuse to undergo a medical examination against his or her will. He argues that s 39(1)(c) of the CMSH Act should not be interpreted as abrogating that right as it does not contain sufficiently clear and unambiguous words to do so.

87    In Starr v National Coal Board [1977] 1 All ER 243, Scarman LJ at 249 described a person’s right to personal liberty as a fundamental right which would be infringed by requiring the person to undergo a medical examination. It is settled that statutory provisions are not to be construed as abrogating fundamental rights or important common law rights, privileges and immunities in the absence of clear words or necessary implication to that effect: see, for example, Coco v The Queen (1994) 179 CLR 427 at 437; X7 v Australian Crime Commission (2013) 248 CLR 92 at [21], [86] and [158]. That principle is known as the principle of legality.

88    However, the limits of the principle must be borne in mind. In Lee v New South Wales Crime Commission (2013) 251 CLR 196, Gageler and Keane JJ said:

313    ...The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.

314    The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed…

89    It is true that ss 39(1)(c) and (2)(d) of the CMSH Act do not declare in express terms that a coal mine worker may be required to undergo a medical examination. However, as we have discussed, the language, objects and the statutory scheme make it clear that the legislature intended that a coal mine worker can be required to undergo a medical examination if it is reasonable and necessary to ensure that anyone is not exposed to an unacceptable level of risk. A further indication that the legislature directed its attention to this issue is that s 282 and Sch 2 of the CMSH Act specifically allow regulations to be made about pre-employment and periodic medical examinations and health assessments to decide a person’s fitness for work at a coal mine. Thus, the legislature contemplated that the physical or mental state of a coal mine worker could create a risk to safety and that the employer might require coal mine workers to attend medical examinations to alleviate that risk. This view is reinforced by the explanatory notes for the Coal Mining Safety and Health Bill 1999 (Qld). Section 4 of the Legislative Standards Act 1992 (Qld) describes “fundamental legislative principles” as the principles relating to legislation that underlie a parliamentary democracy based on the rule of law, including protection of the rights and liberties of individuals. The Explanatory Notes state:

However, in the hazardous industries that the legislation is intended to control, persons may endanger the safety and health of large groups of other people by failing to meet safety obligations.

It is necessary to strike a balance between the right of persons not to be endangered by the actions of others and the rights of the individual. In this case there has to be some compromise on [fundamental legislative principles] to ensure safety of others.

90    We are satisfied that there is a legislative intention underlying ss 39(1)(c) and (2)(d) of the CMSH Act to curtail the right to personal liberty to the extent that coal mine workers (and others described in those provisions) may be required to attend medical examinations if the circumstances set out in those provisions are met.

91    There was a question before the FWC as to whether Mr Gustafson’s directions were reasonable and necessary. Commissioner Spencer decided that the directions were reasonable, but did not consider whether they were necessary. While that was a matter mentioned in the course of the appellant’s oral submissions, that issue was not raised before the Full Bench or the primary judge or in the proposed grounds of appeal in this Court. The appellant made no application to amend his grounds of appeal.

92    The primary judge was correct to find that no error, jurisdictional or otherwise, was made by Commissioner Spencer and the Full Bench in deciding that the directions to the appellant to attend the medical appointments were authorised under s 39(1)(c) of the CMSH Act.

Whether the directions that the appellant attend the medical appointments were authorised under the contract of employment

93    The first respondent’s notice of contention asserts that the primary judge erred in holding that there was no implied term in the contract of employment allowing the first respondent to direct the appellant to attend a medical examination. Her Honour’s conclusion was consistent with the judgment of Atkinson J in Edwards. In that case at [39], Atkinson J held that it was unnecessary to imply a term in the contract of employment in light of the employer’s statutory right to require medical examinations under s 46 of the CMSH Regulation and its right to develop protocols for the examination of employees under s 42 of the CMSH Regulation.

94    The first respondent submits that there is an implied term in every contract of employment that an employee is required to obey any direction by the employer that is not unlawful (in the sense that it is not prohibited by any law) and which falls within the scope of the contract of employment. It cites the judgment of Dixon J in R v The Darling Island Stevedoring & Lighterage Co Ltd at 621-622 in support of that proposition. The first respondent contends that the directions to the appellant to attend the medical examinations were not unlawful and fell within the scope of the contract of employment.

95    The first respondent’s submission raises potentially complex issues concerning the legality of a requirement by an employer that an employee undergo a medical examination against his or her will in the absence of legislative authority to do so. The first respondent did not develop its argument. Neither did the appellant provide any detailed response.

96    It is unnecessary to consider the first respondent’s notice of contention in order to decide the appeal and, in the circumstances, it is undesirable to do so.

Whether the Full Bench failed to consider the appellant’s argument concerning the principle of legality

97    Before the Full Bench, the appellant argued that the principle of legality required that s 39(1)(c) of the CMSH Act should not be interpreted so as to abrogate his fundamental right or human right to refuse to undergo a medical examination. The appellant argued before the primary judge that the Full Bench had failed to deal with this argument. The first respondent concedes that if this submission had been made out, it would amount to jurisdictional error, but contends that the primary judge was correct to conclude that the Full Bench dealt with the appellant’s argument concerning the principal of legality.

98    The primary judge noted that while the Full Bench did not specifically address the appellant’s submission, it did address the overarching question as to whether the first respondent was entitled to direct the appellant to undergo a medical examination pursuant to s 39(1)(c) of the CMSH Act. Her Honour noted that the Full Bench found that s 39 was “couched in broad terms”, that it “imposes a broad obligation” and creates “an obligation of…broad remit”. Her Honour concluded that those findings answered the applicant’s submission that the Full Bench did not address the applicant’s case that s 39(1)(c) of the CMSH Act should be read down by application of the principal of legality.

99    The primary judge’s reasoning on this issue is, with respect, unpersuasive. The appellant’s argument was, in part, that s 39(1)(c) was couched in terms too broad or general to abrogate the appellant’s fundamental right to personal liberty. The Full Bench’s statements to the effect that s 39(1)(c) imposes a broad obligation did not address the appellant’s argument.

100    However, there is a passage in the reasons of the Full Bench which suggests that it did consider the appellant’s argument. The Full Bench said:

Essentially, the Appellant contends that there must be a discernible, positive rule of law supporting Mr Gustafson’s direction and in the absence thereof his direction was unlawful…As we have said, above, we are of the view that Mr Gustafson’s direction was supported by a positive rule of law.

101    The Full Bench’s reference to a “positive rule of law” was taken from a description of the appellant’s submissions contained in the first respondent’s written submissions. That description encompassed the appellant’s argument that parliament is presumed not to enact legislation which interferes with the liberty of the subject without making it clear that this was its intention. In our opinion, the reference to a “positive rule of law” demonstrates that the Full Bench did consider the appellant’s argument as to the principle of legality. Accordingly, the Full Bench did not commit the error attributed to it by the appellant.

Whether the Full Bench erred in finding that privilege against self-incrimination did not apply to the interview

102    Mr Gustafson notified the appellant that an investigation was being conducted in relation to his refusal to attend the medical appointments with Dr McCartney. The appellant attended a meeting with Mr Gustafson for that purpose on 22 April 2013. A query was put to the appellant by Mr Gustafson, which the Full Bench described as asking the appellant “to explain his reason for not attending the medical appointments as directed”. The appellant refused to answer any questions unless they were put in writing.

103    Commissioner Spencer found that the appellant unreasonably refused to cooperate and participate in the investigation process by refusing to answer questions unless they were put in writing. The Commissioner was satisfied that the appellant’s refusal to participate in the investigation process was a valid reason for the dismissal.

104    The Full Bench noted that the appellant had not raised any issue of privilege against self-incrimination before the Commissioner and said that no reason had been put as to why the Full Bench should consider a new argument of this kind on appeal. The Full Bench nevertheless went on to say that a workplace investigation interview intended to inquire as to an employee’s conduct did not attract privilege against self-incrimination.

105    The primary judge did not accept that privilege against self-incrimination was capable of being enlivened in the workplace investigation. Her Honour held that there was no exposure to a civil penalty in the circumstances of the investigation.

106    Privilege against self-incrimination means that a witness cannot be compelled to answer questions that may show the witness has committed a crime with which the witness may be charged if the answers may place the witness in real and appreciable danger of conviction: Sorby v The Commonwealth (1983) 152 CLR 281 at 294.

107    The appellant’s argument is that if s 39(2)(d) of the CMSH Act, which requires a coal mine worker to comply with an instruction given for safety and health by a supervisor, applies, then a failure to discharge that obligation is potentially an offence under s 34. The appellant submits that he was protected by privilege against self-incrimination and was not required to answer questions at the disciplinary interview. He argues that answering any questions about failing to attend a medical examination may have shown that he had committed an offence, and that his answers may have placed him in real and appreciable danger of conviction. He submits that he was entitled to refuse to answer his employer’s questions and, therefore, his refusal to answer questions was not a valid reason for his termination.

108    The respondent submits that the appellant had no privilege against self-incrimination “because that privilege is not available in the sphere of employment”. That proposition is too wide. It is established that privilege against self-incrimination is capable of applying in respect of questions asked of an employee by an employer: Police Service Board v Morris (1985) 156 CLR 397 at 403, 408 and 411. In the present case, the applicant’s failure or refusal to attend the appointments with Dr McCartney appeared inconsistent with his obligation under s 39(2)(d) of the CMSH Act and exposed him to a penalty for an offence against s 34(1). Privilege against self-incrimination was at least capable of applying to questions asked of the appellant in the workplace interview.

109    In considering whether privilege against self-incrimination applies, the test traditionally applied is whether the person claiming the privilege genuinely and reasonably apprehends a danger from being compelled to answer the question objected to: Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 421-422. The claimant must show that there is a real and appreciable risk of criminal prosecution if he or she answers, and that he or she has a bona-fide apprehension of that consequence on reasonable grounds: Re Australian Property Holdings (in liq) No 2 (2012) 93 ACSR 130, [115], Anderson v Australian Securities and Investments Commission [2012] QCA 301 at [22]. A real and appreciable risk does not exist if a witness’ prior statements have already exposed the witness to a risk of prosecution where giving answers will not lead to any increase in jeopardy to which the witness is already exposed: Gemmell v Le Roi Homestyle Cookies Pty Ltd (in liq) [2014] VSCA 182 at [87]; see also Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372 at [41].

110    In the interview with Mr Gustafson, the appellant was asked to explain his reasons for not attending the appointments as directed. It is certainly arguable that the appellant was not entitled to refuse to answer on the basis of privilege against self-incrimination because the answer could only have been exculpatory, rather than adding to his jeopardy. For example, he could have explained that he did not attend the appointments because he did not have his scans and medical records as he asserted to Mr Gustafson on 17 April 2003, or he could have said he did not receive the instruction in time to attend the re-scheduled examination, as he asserted in his evidence before Commissioner Spencer. The appellant voluntarily gave evidence before Commissioner Spencer about these events, perhaps demonstrating that he did not genuinely apprehend a danger from being compelled to answer the question he was asked in the interview. However, as the appellant did not raise the issue before Commissioner Spencer, there has been no attempt to identify and make findings upon all the relevant factual circumstances. The question of whether privilege against self-incrimination applied cannot be determined by this Court in such a vacuum of facts.

111    In any event, the appellant made no claim of privilege against self-incrimination at the interview. He merely declined to answer questions unless they were put in writing. It is for the person claiming privilege to assert it and to identify its precise basis: see Heydon JD, Cross on Evidence (LexisNexis) at [25100]; Re Trade Practices Commissioner v Arnotts Limited [1989] FCA 256 at [6].

112    Further, the Full Bench’s reasons must be construed as declining to consider the privilege argument as it had not been raised before Commissioner Spencer, but indicating a view that in any event there was no merit in the argument. As the appellant has not attempted to demonstrate any error in the decision of the Full Bench to decline to consider the argument, any error attending the Full Bench’s view that privilege did not apply is immaterial.

Conclusion

113    For the reasons we have given, the appeal must be dismissed. The parties have not asked the Court to make any order as to costs and, accordingly, there will be no order as to costs.

Associate:    

Dated:    10 March 2017