SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Hail Creek Coal Pty Ltd v Haylett & Anor [2015] QCA 259 PARTIES: HAIL CREEK COAL PTY LTD ACN (appellant) v MICHAEL KEITH HAYLETT (first respondent) DAVID PARKER (second respondent/not a party to the appeal) FILE NO/S: Appeal No of 2014 SC No 9545 of 2014 DIVISION: PROCEEDING: Court of Appeal General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane [2014] QSC 280 DELIVERED ON: 4 December 2015 DELIVERED AT: Brisbane HEARING DATE: 19 June 2015 JUDGES: ORDERS: CATCHWORDS: Margaret McMurdo P and Philippides JA and Burns J Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. The appeal is dismissed with costs. 2. The cross-appeal is allowed. It is declared that the Section 4 - Health Assessment Report of Dr Parker dated 23 September 2014 is valid and meets the requirements of section 46 Coal Mining Safety and Health Regulation 2001 (Qld). 3. The appellant is to pay the first respondent s costs of and incidental to the appeal and the cross-appeal. EMPLOYMENT LAW EFFECT OF INDUSTRIAL AWARDS, AGREEMENTS OR LEGISLATION ON EMPLOYMENT CONTRACT PARTICULAR CASES where the first respondent commenced employment with the appellant as an operator in January 2009 where from 2010 until September 2014 the first respondent worked solely as a drill rig operator where on 23 September 2014 the second respondent, as the Nominated Medical Adviser, completed a Health Assessment Report for the first respondent where on 23 September 2014 the second respondent assessed the first respondent as fit for the proposed/current position of drill rig operator but unfit for heavy or continuous jarring and

2 COUNSEL: SOLICITORS: 2 vibration and unfit for heavy haul trucks or dozers where on 30 September 2014 the appellant asked the second respondent to reconsider his assessment and to assess the first respondent against the occupation of operator rather than drill rig operator where on 30 September 2014 the second respondent revised his assessment and determined that the first respondent was unfit for the proposed/current position of operator where the first respondent applied to the Supreme Court for declarations that, for the purposes of the Regulation, the task for which he was employed was that of drill rig operator and that the Health Assessment Report of 30 September did not meet the requirements of the Regulation where the primary judge found that both the 23 September and the 30 September Health Assessment Reports were dependant on matters extraneous to the form and were therefore invalid where the primary judge gave orders declaring the Health Assessment Report of 30 September was not in accordance with law and is of no effect under the Regulation where the appellant appeals contending that the primary judge erred in finding that the Health Assessment Report of 30 September was invalid where the first respondent cross-appeals contending that the primary judge erred in failing to find that the task for which he was employed was that of drill rig operator, and that the court erred in finding that the 23 September Health Assessment Report was dependant on factual matters extraneous to the form whether the second respondent carried out the Health Assessment Reports on 23 September and 30 September 2014 in accordance with the instructions and matters of the form whether the judge erred Acts Interpretation Act 1954 (Qld), s 24AA Coal Mining Safety and Health Act 1999 (Qld), s 6, s 7, s 33, s 34, s 37, s 41, s 62 Coal Mining Safety and Health Regulation 2001 (Qld), s 46 Fair Work Act 2009 (Cth) Haylett v Hail Creek Coal Pty Ltd [2013] QDC 340, related Haylett v Hail Creek Coal Pty Ltd [2014] QSC 176, related Haylett v Hail Creek Coal Pty Ltd & Anor (No 2) [2014] QSC 280, related MBR v Parker [2012] QCA 271, cited J Murdoch QC for the appellant D Kent QC for the first respondent G O Driscoll for the second respondent Sparke Helmore Lawyers for the appellant Hall Payne Lawyers for the first respondent Avant Law for the second respondent [1] MARGARET McMURDO P: The first respondent, Michael Haylett, commenced employment as an operator with the appellant, Hail Creek Coal Pty Ltd, in its open cut coal mine, on 12 January From 2010 until September 2014 he worked solely as a drill rig operator. Hail Creek Coal appointed the second respondent, Dr David Parker,

3 3 as a Nominated Medical Adviser (NMA), under the Coal Mining Safety and Health Regulation 2001 (Qld), to conduct Health Assessment Reports for employees. On 23 September 2014 Dr Parker completed a Health Assessment Report for Mr Haylett. He indicated on the approved form under the Regulation, which contained information from Hail Creek Coal, Mr Haylett and an Examining Medical Officer (EMO), Dr Lockwood, that Mr Haylett Is fit to undertake the proposed/current position subject to the following restriction(s) Unfit for heavy or continuous jarring and vibration. Unfit for working above shoulder height. Fit for drill rig operation but unfit for heavy haul trucks or dozers. On 30 September 2014, Hail Creek Coal asked Dr Parker to reconsider and to assess Mr Haylett against the occupation of operator rather than drill rig operator. That same day Dr Parker revised his assessment to record: Is not fit to undertake the proposed /current position because of the following restriction(s), adding an accompany memo that in spite of the fact that Mr Haylett is able to operate the drill rig, he is clearly unfit for the full inherent duties of the role of operator. [2] Mr Haylett applied to the Supreme Court for declarations that, for the purposes of the Regulation, the task for which Mr Haylett was employed was that of drill rig operator; that the Health Assessment Report as amended on 30 September 2014 did not meet the requirements of the Regulation in that it was not directed towards the task for which Mr Haylett was employed; alternatively, that the amended Health Assessment Report did not meet the requirements of the Regulation in that it was based on an impermissible direction from Hail Creek Coal and/or did not represent Dr Parker s medical opinion. [3] The primary judge declared that the Health Assessment Report of 30 September 2014 was not in accordance with law and is of no effect under the Regulation and ordered Hail Creek Coal to pay the costs of both Mr Haylett and Dr Parker. [4] Hail Creek Coal has appealed from those orders on the following grounds: (1) The court erred in law in finding that, in effect, no information other than that explicitly referred in the approved form can be considered by the NMA in making an assessment under s 46 Regulation; (2) The court erred in law in finding that since information provided to the NMA as to the role of operator was not contained in the approved form, the NMA s Health Assessment Report did not comply with s 46(3) Regulation; (3) The court erred in law in declaring that the Health Assessment Report of 30 September 2014 was not in accordance with law and is of no effect; (4) The court s construction of the words in accordance with the instructions, and covering the matters, in the approved form in s 46(3)(a) Regulation is contrary to and inconsistent with the Court of Appeal s construction of those words in MBR v Parker; 1 (5) The court erred in law in not having regard to evidence as to Dr Parker s experience as an NMA and his knowledge, acquired in that role, as to the position of operator at Hail Creek Coal; (6) The court erred in not accepting that the position of operator for which Mr Haylett was employed under his contract of employment could require him 1 [2012] QCA 271.

4 4 to perform multi-tasking in the operation of heavy equipment for which he was competent but unfit to operate, namely haul trucks and dozers; and (7) The court erred in not having regard to the relevant industrial instruments under the Fair Work Act 2009 (Cth) which establish broadband job classifications for coal mine workers. [5] Hail Creek Coal seeks orders allowing the appeal, setting aside the orders made at first instance and instead dismissing Mr Haylett s application. It also seeks a costs order in its favour in respect of both this appeal and the original proceeding. [6] Mr Haylett has cross-appealed on the grounds that the court erred: (1) in failing to find that the task for which he was employed by Hail Creek Coal within the meaning of s 46 Regulation was that of drill rig operator; and (2) in finding that Dr Parker s assessment of 23 September 2014 was dependant on factual matters other than those found in the approved form. [7] Mr Haylett seeks orders dismissing the appeal and allowing the cross-appeal, together with a declaration that, for the purposes of s 46 Regulation, the task for which Mr Haylett was employed by Hail Creek Coal was that of drill rig operator and a declaration that the Health Assessment Report of 23 September 2014 meets the requirements of s 46 Regulation. At the hearing, counsel for Mr Haylett stated that he was only seeking the second of those declarations. 2 He also sought his costs of the appeal and the cross-appeal. [8] Dr Parker s counsel stated at the appeal hearing that he was present solely to protect the costs order made in his client s favour by the primary judge and noted that Hail Creek Coal had agreed to pay Dr Parker s costs of and incidental to this appeal. [9] Before discussing the competing contentions as to the grounds of appeal and crossappeal and stating my conclusion for dismissing the appeal and allowing the crossappeal, I will set out the relevant aspects of the statutory provisions, the form and the background facts. Relevant statutory provisions The Hail Creek Agreement 2011 [10] Mr Haylett was employed under a collective bargaining agreement, The Hail Creek Agreement 2011, 3 made under the Fair Work Act 2009 (Cth) and approved by the Fair Work Commission on 13 April Under its cl 2, Scope, the Agreement applies to employees based at the mine site working in operator and maintainer roles. Under its cl 5.3, Work, Hail Creek may require an Employee to carry out any work that is within their competence, subject to safety and statutory requirements. Under its cl 6, Classifications, Employees will be engaged and classified in operator or maintainer positions. Its Annexure 1, Salary Structure, states that operators have a minimum base salary of $60,000 per annum and maintainers have a minimum base salary of $69,250 per annum. Coal Mining Safety and Health Act 1999 (Qld) [11] The Coal Mining Safety and Health Act 1999 (Qld) places obligations on coal miners and others to provide for safety and health management systems at coal mines to 2 Appeal Transcript T1-21, line AB, 109.

5 5 manage risk effectively. 4 It allows for the making of regulations for the coal mining industry to require and promote risk management and control 5 and to provide for the health assessment of coal mine workers. 6 Part 3, Div 1 of the Act imposes safety and health obligations on persons including those conducting coal mining operations. 7 Failure to discharge obligations is an offence. 8 Obligations in relation to risk can be discharged by complying with a relevant regulation. 9 Part 4, Div 3 deals with the safety and health management systems for a coal mine, that is, a system which incorporates risk management elements and practices that ensure the safety and health of persons who may be affected by coal mining operations. 10 The legislative purpose of the Act places considerable emphasis on health and safety in the operation of coal mines. 11 Coal Mining Safety and Health Regulation 2001 (Qld) [12] The Coal Mining Safety and Health Regulation 2001 (Qld), Ch 2, All coal mines, Pt 6, Fitness for work, Div 2, Coal mine workers health scheme, Subdiv 3, Health assessments and health monitoring, s 46 relevantly provides: 46 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 (c) periodically, as decided by the nominated medical adviser, but at least once every 5 years. (3) An assessment must be carried out (a) (b) in accordance with the instructions, and covering the matters, in the approved form; and by, or under the supervision of, the nominated medical adviser. (4) An assessment may include matters not covered in the approved form if, having regard to a risk assessment carried out for a task for which the person is to be employed, or is employed, the nominated medical adviser considers the person needs to be assessed in relation to the additional matters to achieve an acceptable level of risk. (5) Despite subsection (3)(a), a person may undergo an assessment (a subsequent assessment), in accordance with some of the instructions only, and covering some of the matters only, in the approved form if 4 Coal Mining Safety and Health Act 1999 (Qld), s 7(b). 5 Above, s 7(c). 6 Above, s 7(k). 7 Above, s Above, s Above, s Above, s See especially s 41.

6 (a) (b) (c) 6 Relevant aspects of the approved form [13] The approved form relevantly provided: the person has previously undergone a health assessment (a previous assessment); and the subsequent assessment relates to a matter identified at a previous assessment; and the assessment is carried out to ensure the person is able to carry out the person s task at the mine without creating an unacceptable level of risk having regard to the matter mentioned in paragraph (b).

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9 Background facts 9 [14] Hail Creek Coal on 9 December 2008 offered Mr Haylett employment in the role of operator, commencing 12 January Mr Haylett then held competencies as a haul truck, grader, dozer and light vehicle driver. He subsequently obtained further competencies in drill rig, water truck, water cart, lighting plant, vehicle loading crane and medium vehicle operation. He worked in the dragline drill and blast section of the mine under a mine supervisor and was initially responsible for operating a bulldozer. After he injured his neck at work, he underwent a C6/7 discectomy and fusion in August He returned to work in October 2010 and, to accommodate his injury, was exclusively employed as a drill rig operator. He brought a common law claim for damages. Hail Creek Coal admitted liability and was subsequently ordered to pay damages and interest of $626, The future damages component of that award was assessed on the basis that Hail Creek Coal had retrained Mr Haylett and that he was then working as a member of a drill crew in less strenuous activity. 14 [15] On 14 November 2013 EMO Dr Robert Green examined Mr Haylett under s 46 Regulation for a periodic health assessment and noted in completing Section 3 of the form that he had limited neck movement and that his plant operation [was] currently limited to drill rig only. 15 Mr Haylett in completing Section 2 of the form recorded his Job Title or Description as OPERATOR. 16 Dr Parker as NMA considered Dr Green s report as EMO when on 18 November 2013 he completed Section 4 Health Assessment Report of the form. Dr Parker recorded that Mr Haylett was unfit for his current position because of a significant and foreseeable risk of further injury or aggravation of medical condition which prevents him from performing occupational demands of the role. 17 This Health Assessment Report was set aside in the Supreme Court 18 on the basis that it impermissibly referred to a prediction of future risk rather than addressing a current problem. 19 At about the time of Dr Parker s 18 November 2013 assessment, Hail Creek Coal stood down Mr Haylett from his employment and he has not returned to it. [16] On 2 September 2014, Hail Creek Coal arranged for Dr Parker to complete another Section 4 Health Assessment Report. Hail Creek Coal in completing Section 1 of the form noted under Coal Worker s Position, Description : OPERATOR. Mr Haylett in completing Section 2 of the form noted under 2.2 that he was employed from 2010 to 2014 by Hail Creek Coal 20 and under Work History, Job Title or Description : DRILL RIG OPERATOR. Another EMO, Dr Lockwood, in completing Section 3 of the form and commenting on his answer to question 3.18, Is there any reason why the coal mine worker may be not fit for duty in relation to work : Mr Haylett has had a good outcome following his discectomy and fusion in AB, Haylett v Hail Creek Coal Pty Ltd [2013] QDC Haylett v Hail Creek Coal Pty Ltd [2013] QDC 340, AB, AB, AB, Haylett v Hail Creek Coal Pty Ltd [2014] QSC 176. This judgment refers to Dr Parker s assessment on 19 November Above, [21] [22]. 20 The approved form records RIO TINTO but it is common ground that Rio Tinto is synonymous with Hail Creek Coal.

10 10 He is fit to work as a drill rig operator on a full time basis, with no work above shoulder height. In fact he has completed these duties successfully from [17] Dr Parker as NMA, in completing Section 4 of the form on 23 September 2014, crossed the box indicating that he considered Mr Haylett: Is fit to undertake the proposed/current position subject to the following restriction(s), adding: Unfit for heavy or continuous jarring and vibration. Unfit for working above shoulder height. Fit for drill rig operation but unfit for heavy haul trucks or dozers. 22 [18] On 30 September 2014 Hail Creek Coal s human resource manager, Mr Lawler, telephoned Dr Parker and asked him to assess Mr Haylett, for the full and substantive role of a mobile equipment operator [including] but not limited to drill rigs, haul trucks, dozers, graders and water-carts. 23 [19] Later that day, Dr Parker responded by amending his Section 4 Health Assessment Report of 23 September 2014 by deleting his previous cross and instead crossing the box next to the question, Is not fit to undertake the proposed/current position because of the following restriction. His notation: Unfit for heavy or continuous jarring and vibration. Unfit for working above shoulder height. Fit for drill rig operation but not for heavy haul trucks or dozers remained. [20] In a memo dated 30 September 2014 attached to the amended assessment he recorded: I have been asked by Mr Haylett s employer Rio Tinto to review the Section 4 report I recently completed I have been asked to assess him for the full and substantive role of a mobile equipment operator. I understand that this includes but is not limited to drill rigs, haul trucks, dozers, graders and water-carts. In light of this, and in spite of the fact that Mr Haylett is able to operate the drill rig, he is clearly unfit for the full inherent duties of the role of operator. I have therefore changed the Section 4 report to reflect this. [21] On 8 October 2014 Mr Haylett commenced the proceeding with which this appeal is concerned. The primary judge s reasons [22] The primary judge noted that the District Court was wrong to assess Mr Haylett s damages on the basis that Hail Creek Coal had retained him in a secure position as a drill rig operator. 24 [23] After referring to the relevant facts and s 46 Regulation, her Honour found that Dr Parker gave honest evidence and noted that he denied that either Mr Haylett or Hail Creek Coal dictated to him what he ought to write in the assessment. Dr Parker understood that operator meant a position that involves operating a variety of heavy machinery including heavy haul trucks and dozers. 25 Her Honour considered that the Hail Creek Agreement governed employment at the mine; it provided that employees are employed in either operator or maintainer positions; and Mr Haylett was employed there as an operator. 26 Hail Creek Coal s case was that there was no position of drill rig operator and that multi-tasking was an essential requirement of an operator s 21 AB, AB, AB, Haylett v Hail Creek Coal Pty Ltd & Anor (No 2) [2014] QSC 280, [2]. 25 Above, [12]. 26 Above, [13].

11 11 employment because it allowed the mine supervisor to manage the crew in a flexible manner. Her Honour found that the evidence did not support this view of multi-tasking. There was no evidence of any disadvantage to Hail Creek Coal in having Mr Haylett operate only a drilling rig from October 2010 to November Nor was there evidence to explain why he could not continue to operate only a drilling rig. 27 Not all those employed as operators were capable of operating all the various pieces of equipment at the mine. Some employees are trained and competent for some machines but not others. Prior to his accident Mr Haylett was not competent to operate a drill rig but he retrained and then worked as a drill rig operator. There was no evidence he had been directed to operate any equipment other than a drill rig since October [24] Her Honour concluded that, on the evidence before her, the duties of an operator are to operate equipment at the mine site as directed by someone with authority on behalf of Hail Creek Coal. There was no evidence that for an employee to be an operator it was necessary for the employee to operate more than one piece of equipment. Mr Haylett had been an operator for three years operating only a drill. 29 [25] Her Honour rejected the contention that the District Court judgment in favour of Mr Haylett gave rise to an issue estoppel in Mr Haylett s favour. 30 There was no evidence Hail Creek Coal had given Dr Parker an impermissible direction. Both Mr Haylett s union representative and Hail Creek Coal s human resources manager were interested in Dr Parker s assessment and spoke to him about it. The Regulation and the form allow the employer to specify the role or position against which the worker is to be assessed for fitness. Her Honour found that: there is room for the view that the reason the employer had to contact Dr Parker was that [Mr Haylett] and his union representative had asked Dr Parker to assess Mr Haylett against the role of drill rig operator, rather than simply operator, which the employer had specified at section 1 on the form. 31 [26] Her Honour noted Mr Haylett s contention that s 46 Regulation required the NMA to assess the employee for a task in accordance with the form and that this was not done. The judge considered that the Regulation requires the NMA to assess the employee for the task or tasks involved in their current or proposed employment. 32 The form does not sit comfortably with the Regulation in that it does not invite the NMA to assess fitness for a task, but rather for a Position which the form contemplates will be a generic job title. Her Honour concluded that task in s 46 Regulation included tasks and, having regard to the instruction in the Regulation to assess in accordance with the form, she should construe the NMA s role as to assess fitness for the tasks involved in the position nominated by the employer, here, the extremely generic position of operator. 33 [27] The term operator, the judge considered, was so wide that it was wholly inadequate for a medical practitioner to assess fitness for it as it would be impossible to ascertain what tasks were required to be performed by someone occupying the generic position of operator. Some substantive content had to be given to the term. Dr Parker should 27 Above, [14]. 28 Above, [15]. 29 Above, [17]. 30 Above, [18]. 31 Above, [19]. 32 Above, [20]. 33 Above, [21].

12 12 have been provided with information as to what the role of operator entailed. On 23 September 2014 he was told that Mr Haylett was employed as a drill rig operator. On 30 September 2014 he was told that Mr Haylett was to be assessed as to his ability to operate various types of machinery, including machinery which vibrated. His different conclusions on 23 and 30 September showed how his assessment depended, not on the instructions and matters in the form as required under s 46(3) Regulation, but upon matters extraneous to it. It followed that his assessments on 23 and 30 September 2014 did not accord with s 46(3). They were not carried out in accordance with the instructions and matters in the form but in accordance with advice Dr Parker otherwise received. For those reasons her Honour declared that the assessment of Dr Parker dated 30 September 2014 was not in accordance with law and is of no effect under the Regulation and ordered Hail Creek Coal to pay the costs of both Mr Haylett and Dr Parker. Hail Creek Coal s contentions in the appeal [28] Hail Creek Coal emphasises that Mr Haylett s contract of employment stated that he was employed as an operator. The Hail Creek Agreement provided for employment as an operator. Under its cl 5.3, Hail Creek Coal could require him to carry out any work within his competence, subject to safety and statutory requirements. It could direct or require him to operate a haul truck, grader, water truck, drill, dozer or light vehicle. When he joined Hail Creek Coal he held competencies to operate haul trucks, dozers, graders, and light vehicles. In completing Section 4 of the form on 23 September 2014, Dr Parker erroneously used the position drill rig operator against which to assess Mr Haylett s fitness for duty. This was inconsistent with the form which required him to assess fitness against the generic position of operator. For that reason Mr Lawler telephoned Dr Parker on 30 September 2014 and explained that the form required Dr Parker to assess the employee s health for the position nominated by Hail Creek Coal in Section 1 of the form, namely OPERATOR. Dr Parker then amended his Section 4 Health Assessment Report, to correctly record that Mr Haylett was not fit for the position of operator. The only task or function he could safely undertake as operator was that of drill rig operation. As he could not undertake the tasks of operating haul trucks or dozers, he was not fit to undertake the position of operator. [29] Hail Creek Coal contends that the primary judge erred in finding that Mr Lawler s phone call to Dr Parker resulted in the doctor wrongly taking into account matters extraneous to the form in completing his assessment. The Health Assessment Report was not inconsistent with the Regulation and was not invalid. The Regulation, Hail Creek Coal contends, does not preclude the NMA from considering information not contained in the form. The primary judge s approach was inconsistent with MBR v Parker 34 where s 46(3)(a) Regulation was construed as a step by step set of instructions to the employer, the worker and the NMA, consistent with the guidance notes for completion attached to the front of the form. The terms of the Regulation and form allow an NMA to receive any relevant information needed to discharge the NMA s obligation to report on the worker s fitness for the position. Mr Lawler did no more than remind Dr Parker of the terms of the requirements of the form and the Regulation in completing the Health Assessment Report. Dr Parker was entitled to amend the form under s 24AA Acts Interpretation Act 1954 (Qld). [30] Next, Hail Creek Coal contends that the primary judge erred in not taking into account Dr Parker s knowledge and experience as NMA. It is clear from his completion of 34 [2012] QCA 271.

13 13 the forms on 23 and 30 September 2014 that he appreciated an operator could be required to complete many different tasks from drill rig operator, (which Mr Haylett could safely perform) to operating heavy haul trucks and dozers (which he could not safely perform). [31] Further, Hail Creek Coal emphasises that, under s 46(4) Regulation, what must be considered is the contract of employment and what the employee was engaged to do, not what the employee is employed to do at the time of the health assessment. Hail Creek Coal emphasises that the Agreement always refers to the position of operator whereas drilling is listed merely as a competency. Consideration of the Agreement and awards made under it would have aided the primary court in understanding that the coal mining industry designates job titles and functions in a broadband manner. It supports the conclusion that under the Health Assessment Report Mr Haylett needed to be fit for all types of work as operator. [32] The fact that Hail Creek Coal had managed Mr Haylett s duties as operator for some years by employing him solely as a drill rig operator did not disentitle it from requiring him under cl 5.3 of the Agreement to carry out work within his competence as operator, subject to safety and statutory requirements. [33] As to Mr Haylett s cross-appeal, Hail Creek Coal contends the primary judge rightly rejected these contentions. 35 It submits, however, that in doing so her Honour s reasoning was inconsistent with her finding that Mr Lawler was not entitled to remind Dr Parker of the employer s nominated position for the worker. The cross-appeal erroneously advances the proposition that Dr Parker s Health Assessment Report of 23 September 2014 was valid, when it was not directed to the assessment of fitness for the position of operator as nominated by Hail Creek Coal as employer, but only to one part of that position, namely drill rig operation. Mr Haylett s contentions [34] Mr Haylett submits that the judge s decision was entirely consistent with MBR v Parker 36 which determined that an NMA completing Section 4 of the form could not make predictions about whether the worker may develop future restrictions. Rather, Mr Haylett contends, MBR v Parker supports the reasoning of the primary judge. Dr Parker as NMA, Mr Haylett submits, was required to take into account the information on the form as at 23 September Dr Parker s 23 September assessment was made on the information in the form and the judge was wrong to consider it was based on information extraneous to it. [35] Mr Haylett emphasises that s 46(3) Regulation focuses on the task being performed by a coal mine worker. In this case, Dr Parker knew from the form that Mr Haylett was working exclusively in drill rig operation for three years preceding and at the time of the assessment. Hail Creek Coal s contention that it was legitimate for Mr Lawler to direct Dr Parker about the duties of an operator overlooks the terms of s 46(3) and that Dr Lockwood and Dr Parker both apprehended that Mr Haylett had worked and was working solely as a drill rig operator. The Act is concerned with achieving an acceptable level of risk of injury. 37 The Hail Creek Agreement cl 5.3 allows an employer to require an employee to carry out work as an operator within their competence, but always subject to safety and statutory requirements. Hail Creek Coal 35 Haylett v Hail Creek Coal Pty Ltd (No 2) [2014] QSC 280, [20] [22]. 36 [2012] QCA Coal Mining Safety and Health Act 1999 (Qld), s 6.

14 14 was therefore not entitled under the Agreement to direct Mr Haylett to perform tasks within the role of operator which he could not safely perform. It followed that the task for which Dr Parker had to assess Mr Haylett was the task or tasks involved in his present employment, drill rig operation. [36] As to his cross-appeal, Mr Haylett contends that the 23 September 2014 Health Assessment Report is valid. The primary judge should have found that under s 46 Regulation the task to be considered by Dr Parker in completing the Health Assessment Report was that of drill rig operator. As the primary judge identified, there was no evidence that to be an operator the employee must operate more than one piece of equipment; Mr Haylett had been employed as an operator for the past three years operating only a drill rig. 38 Mr Haylett contends that it was unlikely that the term task in the Regulation included tasks but, even if it did, it was not necessary in this case for the NMA to assess fitness for all tasks involved in the position of operator nominated by the employer. [37] Further, Mr Haylett contends the primary judge erred in finding that Dr Parker s 23 September 2014 Health Assessment Report was dependant on factual matters other than those in the form. The scheme established by the Regulation and the form provides that the EMO, here Dr Lockwood, has an evidence gathering function and records his findings in Section 3 of the form. Dr Lockwood recorded in Section 3 that Mr Haylett had performed the task of operating a drill rig and no other task from 2010 until Mr Haylett completed his Section 2 of the form, giving his Job Title or Description as DRILL RIG OPERATOR. Dr Parker s 23 September 2014 assessment did not rely on matters external to the form. The need for substantive content to be given to the generic term operator to which the primary judge referred 39 was met by the information provided in Mr Haylett s Section 2 and Dr Lockwood s Section 3 of the form. The primary judge should have concluded that Mr Haylett s task as at 23 September 2014 was drill rig operator; that he was fit to undertake that task; and that the 23 September 2014 Health Assessment Report is valid. [38] Mr Haylett submits that if Hail Creek Coal s contentions were correct, a worker would be unfit if the worker had any health restrictions which could have an impact upon any possible task performed by any operator employed by Hail Creek Coal; this would set an unrealistic standard. He contends that the Agreement is not helpful in construing the Regulation and the form as it is an agreement for industrial purposes. By contrast, the Regulation and the form are concerned with health and safety. For all these reasons he contends that Dr Parker s Health Assessment Report of 23 September in which he found that Mr Haylett was fit for the position of operator, albeit with restrictions, is valid. Conclusion [39] The Hail Creek Agreement cl 5.3 makes clear that Hail Creek Coal employed Mr Haylett as an operator and could require him to carry out any work within his competence. But importantly, this was subject to safety and statutory requirements. As Mr Haylett pointed out, the Agreement is of limited utility in construing the Act, Regulation and form. It was a collective bargaining agreement for industrial purposes; its principal concern, unlike the Act, Regulation and form, was not with coal mining safety and 38 Haylett v Hail Creek Coal Pty Ltd & Anor (No 2) [2014] QSC 280, [17]. 39 Above, [22].

15 15 health. Nevertheless, it is desirable that the Act, the Regulation and the form should be construed in harmony with the Agreement. [40] It is common ground that Hail Creek Coal as employer had to ensure that Mr Haylett as a coal mine worker who is or is to be employed for a task other than a low risk task, was subject to a periodic health assessment. 40 It is also common ground that Mr Haylett was not employed in a low risk task within the meaning of that phrase in s 46(1) Regulation. The term task is not defined in the Regulation and has its ordinary meaning: a piece of work to be done or undertaken. 41 The assessment had to be carried out in accordance with the instructions, and covering the matters, in the approved form 42 and under the supervision of an NMA. 43 Consistent with s 32C(a) Acts Interpretation Act; the over-riding concern of the Act and the Regulation with safety and health management; and the use of the plural tasks in s 48 Regulation, I cannot accept Mr Haylett s contention that the primary judge erred in finding that task in s 46 includes tasks ; it clearly does. But that is of no particular assistance to Hail Creek Coal. Whether assessing a coal mine worker s health against the general position, operator, or the more specific position, drill rig operator, may require assessing the worker s health against more than one task or piece of work. [41] Dr Parker had to carry out the assessment in accordance with the instructions on the front of the form. 44 Those required him as NMA to review the sections of the form completed by Hail Creek Coal (Section 1), Mr Haylett (Section 2) and Dr Lockwood as EMO (Section 3). It then required Dr Parker as NMA to assess whether this provided adequate information for him to report on Mr Haylett s fitness for duty as a coal mine worker and, if so, to complete Section 4 Health Assessment Report. Section 1 of the 23 September 2014 form made clear that Hail Creek Coal employed Mr Haylett as an operator. Section 2 made clear that Mr Haylett had been employed from 2010 to 2014 by Hail Creek Coal as a drill rig operator. Section 3 made clear that Dr Lockwood as EMO considered Mr Haylett had a good outcome following surgery and was fit to work as a drill rig operator on a full time basis with no work above shoulder height and that he had completed these duties successfully from 2010 to Dr Parker was obliged to consider that information in determining if there was adequate information to make the assessment and, if so, in completing the form s Section 4 Health Assessment Report. The fact that when completing another form in November 2013 Mr Haylett recorded his Job Title or Description as OPERATOR is irrelevant. Dr Parker s 23 September 2014 assessment was not to be made on the November 2013 form. [42] The primary judge rightly concluded that the Regulation and Section 1 of the form allowed Hail Creek Coal as employer to specify the role or position against which the worker is to be assessed for fitness. 45 Her Honour also rightly identified that s 46 Regulation requires the NMA to assess the worker for the task or tasks involved in their current or proposed employment 46 and that the form (at least when uncompleted) does not in terms address this. 47 I consider, however, that the form as partially completed on 23 September 2014 was capable of inferentially addressing the question 40 Coal Mining Safety and Health Regulation 2001 (Qld), s 46(1) and s 46(2)(c). 41 The Australian Concise Oxford Dictionary. 42 Coal Mining Safety and Health Regulation 2001 (Qld), s 46(3)(a). 43 Coal Mining Safety and Health Regulation 2001 (Qld), s 46(3)(b). 44 Coal Mining Safety and Health Regulation 2001 (Qld), s 46(3). 45 Haylett v Hail Creek Coal Pty Ltd (No 2) [2014] QSC 280, [19]. 46 Above, [20]. 47 Above, [21].

16 16 of the task or tasks for which Mr Haylett is or is to be employed so that Dr Parker could complete his assessment. When completing his Section 4 Health Assessment Report on 23 September 2014, Dr Parker knew from Section 1 that Mr Haylett s position was operator. He knew from Sections 2 and 3 that Mr Haylett had been employed by Hail Creek Coal as a drill rig operator from 2010 to 2014; that he had a good outcome following his surgery in 2010; that he was fit to work as a drill rig operator on a full time basis with no work above shoulder height; and that he had successfully completed these duties since [43] When s 46(3) is read with s 46(4) Regulation, the inevitable conclusion is that an NMA must complete the form s Section 4 Health Assessment Report only in accordance with the instructions and covering the matters in the form unless s 46(4) (which is not relevant to this case) operates. That is not to say, as Hail Creek Coal rightly contends, that the NMA (or, for that matter, the EMO) cannot act on knowledge they have gained through their experience and expertise as NMAs and EMOs concerning the task or tasks undertaken by coal mine workers in the position or positions in which the partially completed form indicates the worker is or is to be employed. But ultimately that does not assist Hail Creek Coal in this appeal. It was clear from the partially completed form which Dr Parker was considering on 23 September 2014 when completing his Health Assessment Report that the task or tasks against which he was assessing Mr Haylett s health were those undertaken in the roles of operator, and as more specifically identified in Section 2 and Section 3 of the form, drill rig operator. There was nothing in the form to lead him to conclude that Mr Haylett was or was to be employed as an operator of something other than a drill rig. On that information, he was entitled to conclude as he did that Mr Haylett was fit to undertake the proposed/current position of operator subject to the restrictions that he was unfit for heavy or continuous jarring and vibration, and for work above shoulder height, but was fit for drill rig operation although unfit for heavy haul trucks or dozers. [44] The primary judge acknowledged that there was room for the view that Mr Haylett s union representative asked Dr Parker to assess his fitness against the role of drill rig operator. 48 In other words, the judge considered this was a possible view of the evidence but did not go on to make that finding. Later the judge said that Dr Parker was told that Mr Haylett was employed as a drill rig operator. It is unclear whether her Honour inferred this from the information in the 23 September 2014 form or whether she found the union representative gave this information to Dr Parker. In the absence of a clear finding to that effect, I am not persuaded her Honour found the union representative provided this information. Even if there was such a finding, that did not mean the assessment was not carried out in the accordance with matters in the 23 September form as it included the information that Mr Haylett was then and had for many years been employed as a drill rig operator and there was nothing in Section 1 of the form completed by Hail Creek Coal to indicate the contrary. For the reasons I have given I consider Dr Parker s assessment was carried out in accordance with the instructions and matters in Sections 1, 2 and 3 of the completed form. Her Honour erred in reaching the contrary conclusion. 49 [45] Consistent with this reasoning, Mr Haylett has had considerable success in his crossappeal but the orders he seeks are problematic in that they differ from the orders he 48 Haylett v Hail Creek Coal Pty Ltd & Anor (No 2) [2014] QSC 280, [19]. 49 Above, [22].

17 17 sought at first instance. His primary concern now is for this Court to declare that the assessment of 23 September 2014 meets the requirements of s 46 Regulation. As this was not an order he sought at first instance, this Court would be slow to grant that relief. Despite her Honour s conclusion that neither the assessment of 23 September 2014 nor that of 30 September 2014 were carried out in accordance with the Regulation, the only declaration given was that Dr Parker s assessment of 30 September 2014 was not in accordance with law and is of no effect under the Regulation. Ordinarily it would follow that in the absence of any declaration of invalidity in respect of the 23 September 2014 assessment, that assessment remains valid. But this appears to be inconsistent with her Honour s statement that both the assessment of 23 September 2014 and the assessment of 30 September were dependant on matters extraneous to the form. 50 In the interests of clarity it is prudent to allow the cross-appeal and make the declaration sought by Mr Haylett. [46] But what of the 30 September 2014 assessment? It is true, as Hail Creek Coal contends, that Dr Parker could amend his assessment. 51 On 30 September 2014 Hail Creek Coal s Mr Lawler telephoned Dr Parker instructing him to assess Mr Haylett for the full and substantive role of a mobile equipment operator [including] but not limited to drill rigs, haul trucks, dozers, graders and water-carts. 52 This information was not in the form although Hail Creek Coal could have included it in Section 1. Mr Lawler was not merely reminding Dr Parker of the requirements of the form and the Regulation; he was instructing Dr Parker to consider matters not in the form. Her Honour found that Dr Parker, acting on that instruction, revised his Health Assessment Report. In doing so, her Honour correctly found Dr Parker acted on matters extraneous to the form. That conclusion was entirely appropriate in light of the evidence so that the judge rightly declared that Dr Parker s assessment of 30 September 2014 was not in accordance with law and is of no effect under the Regulation. In making that declaration, her Honour was not acting inconsistently with MBR v Parker which turned on its own quite different facts. [47] On the construction I take of the Regulation and the form, and in light of the way Sections 1, 2 and 3 of the 23 September form were completed, her Honour s findings about multi-tasking are not relevant to the outcome of this appeal. My conclusions are neither inconsistent nor discordant with the Agreement which allows Hail Creek Coal to require Mr Haylett to carry out any work within his competence, but subject always to safety requirements. My conclusions are also consistent with the Act s requirement that employers like Hail Creek Coal who conduct coal mines have in place safety and health management systems to manage risk effectively. It follows that, in my view, Hail Creek Coal s appeal should be dismissed. Orders [48] I propose the following orders: 1. The appeal is dismissed with costs. 2. The cross-appeal is allowed. It is declared that the Section 4 - Health Assessment Report of Dr Parker dated 23 September 2014 is valid and meets the requirements of section 46 Coal Mining Safety and Health Regulation 2001 (Qld). 50 Above, [22]. 51 Acts Interpretation Act 1954 (Qld), s 24AA. 52 AB, 88.

18 18 3. The appellant is to pay the first respondent s costs of and incidental to the appeal and the cross-appeal. [49] PHILIPPIDES JA: I have had the advantage of reading the draft reasons of McMurdo P. I agree with those reasons and with the orders proposed. [50] BURNS J: I agree with the reasons of, and the orders proposed by, the President.