Industrial Relations Commission New South Wales

• Medium Neutral Citation: Chau v Visy Board Pty Ltd [2012] NSWIRComm 101
• Hearing dates: 28 August 2012; 29 August 2012
• Decision date: 07 September 2012
• Jurisdiction: Industrial Relations Commission
• Before: Boland J, President

Decision

(1)  Visy Board Pty Ltd shall reinstate Bien Chau in full time employment as a machine operator on and from the date of this decision, subject to a direction to Mr Chau that he avoids repetitive and awkward lifting and not lift more than 20kg in a static lift or 16kg in a dynamic lift. Mr Chau shall at all times comply with the direction.

(2)  Whilst Mr Chau has been reinstated as a machine operator and he shall be paid as such, the employer is at liberty to require Mr Chau to perform the work of assistant machine operator from time to time subject to the lifting restrictions identified in order (1) hereof.

(3) For the period from the date of his application, namely, 20 October 2011 to the date of this decision (excluding the period 30 July 2012 to 28 August 2012), Visy Board Pty Ltd shall pay to Mr Chau an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay less any amount Mr Chau received by way of workers' compensation payments.

• Catchwords: REINSTATEMENT OF INJURED WORKER - machine operator - applicant terminated on basis that he was unsuitable for the inherent physical requirements of his former role - medical assessment found him fit - reinstatement and lost remuneration orders made
• Legislation Cited: Workers Compensation Act 1987
• Cases Cited: Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; (1999) 130 IR 1; IGA Distribution Pty Ltd v Moses (No 2) [2002] NSWIRComm 96; (2002) 114 IR 307; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108; (2006) 151 IR 396; Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited [2008] NSWIRComm 157
• Category: Principal judgment
• Parties: Bien Chau (Applicant); Visy Board Pty Ltd (Respondent)
• Representation: Mr A Britt of counsel (Applicant); MN Compensation Lawyers (Applicant); Mr A Dearden, solicitor (Respondent); Duncan Cotterill Lawyers
• File Number(s): IRC 26 of 2012

DECISION

1 This matter concerns an application by Bien Chau for a reinstatement order under s 242 of the Workers Compensation Act 1987. Mr Chau had been employed by Visy Board Pty Ltd ("the respondent"). He commenced employment with the respondent in 1999 as a Stacker. In 2000, the applicant became an Assistant Machine Operator and Stacker. Later he became a Machine Operator.

2 On 19 April 2005, the applicant sustained an injury to his back during the course of his employment. Since then the applicant has been absent from work for varying periods in each of the years since 2005, most often for reasons associated with a back injury. Mr Chau received workers' compensation.

3 Mr Chau's employment with the respondent was terminated on 8 July 2011. The reason for the termination was that the respondent considered Mr Chau was "incapable of performing your pre-injury duties now or in the foreseeable future."

4 On 20 October 2011 Mr Chau wrote to the respondent enclosing a copy of a medical certificate certifying he was fit to resume work. In the letter the applicant stated:

I wish to return to work immediately in a full time capacity in my pre-injury position as a machine operator.

5 The respondent did not reinstate the applicant. On 16 January 2012, the applicant filed his application under s 242(1) of the Workers Compensation Act seeking reinstatement.

Background

6 Prior to his injury in 2005 the applicant was employed as a machine operator at the respondent's Warwick Farm plant operating the "Texo 3" machine. He was subsequently taken off the "Texo 3" machine and returned as a stacker for that machine, but was paid as an operator. He was working as a stacker but paid as an operator at the time of his injury. He was off work for three months and then returned to work.

7 In about February 2006, the applicant again injured his back. His treating doctor sent him for physiotherapy and he was subsequently certified fit for suitable duties. The respondent had no duties and directed him to stay home. On 4 May 2006, the applicant returned to normal duties.

8 In July 2007, the applicant aggravated his back injury and developed right leg pain. He was off work for a further 3 months. In November 2007, the applicant aggravated his back injury. He was referred to physiotherapy, prescribed painkillers and advised to return to work on light duties. The respondent declined to provide light duties and the applicant was off work for about six weeks. When he returned to work he was placed back on normal stacking duties.

9 In May 2008, the applicant again reported severe back pain and the respondent's workers compensation insurer sent him to a Dr Silva for assessment. In

about November 2008, the applicant was summoned to a meeting with management representatives of the respondent and advised that he did not have to do stacking anymore because they had received Dr Silva's report.

10 In mid January 2009, the applicant was made the operator on the "Ward 2" machine, which involved the following duties: putting ink into the machine which involved lifting a bucket of ink of about 30kg onto the machine about 100mm off the ground five times a day; assisting the stackers to lift the "form and stereos" which weigh from 20kg to 80kg; and operating the machine which involved "pushing buttons". The "Ward 2" machine was decommissioned in June 2011.

11 On 5 August 2009, Dr Greg McGroder, an approved medical specialist appointed by the Workers' Compensation Commission, issued a Medical Assessment Certificate that certified the applicant suffered from 6 per cent "Whole Person Impairment" apportioned equally between the applicant's 19 April 2005 and 21 November 2007 injuries.

12 In December 2009, the applicant sustained an injury to his lower back and was off work until February 2010. In February 2010, the applicant again injured his back and received a medical certificate for light duties. The applicant continued to see his treating doctor and was provided with medical certificates for light duties. However, he was told the respondent had no such duties and was directed to stay at home.

13 On 6 July 2010, the respondent received a letter from Dr Greg Etherington, a spine surgeon who examined the applicant at the request of CGU, the respondent's workers' compensation insurer. The letter stated:

[The Applicant] described the lumbar pain now as being fairly constant. It is made worse with activities, particularly bending and lifting, but it is also made worse with prolonged sitting and standing.

14 On 21 January 2011, Recovre, a workplace rehabilitation provider appointed by CGU, carried out a Workplace Assessment. The Assessment report, dated 17 February 2011, recommended that the applicant graduate towards returning to his pre-injury duties once medically endorsed and the applicant work in the least physically demanding line being the "string wrap" line. However, the applicant was directed to stay at home.

15 On 18 March 2011, the respondent received a report following a Case Conference attended by the applicant and Dr Tran (the applicant's nominated treating doctor). The report stated that during the Case Conference, Dr Tran indicated it was not possible to predict when the applicant would return to pre-injury duties. The report further stated that the applicant was not undertaking any treatment for his lower back or hip injury.

16 On 4 May 2011, the respondent received a copy of a Functional Assessment undertaken by Saskia Van Der Lely of MP Safety Management. The Functional Assessment was sent to Dr Tran to provide comment on the applicant's ability to return to work. On 19 May 2011, the respondent received a copy of Dr Tran's responses to the Functional Assessment. The responses stated that the applicant was unable to perform a number of the tasks assessed. It should be noted that the Functional Assessment was carried out in relation to the "Ward 2" machine, which was no longer in operation after June 2011.

17 On 9 June 2011, Dr Tran sent a letter confirming that the applicant was fully fit for pre-injury duties. Given the short period of time between when Dr Tran had indicated the applicant was unable to perform a number of the tasks assessed in the Functional Assessment and when he certified the applicant was fully fit, the respondent sought answers from Dr Tran in relation to a number of questions.

18 Question 7 asked:

As you are aware, a Functional Assessment was undertaken by MP Safety Management on 2 May 2011. The findings were sent to you by MP Safety Management and you responded on 19 May 2011. In your response you stated that Mr Chau was unable to undertake a majority of tasks assessed. Based on your clinical assessment of Mr Chau, do your responses remain current? YES/NO

19 Dr Tran responded to the question as follows:

YES/NO. Employer had been unable to provide suitable duties. Patient is afraid about his job termination. He is keen to get back to pre-injury duties but will review accordingly to monitor his progress.

20 The respondent sought an independent medical assessment of the applicant. Dr Peter Aldridge, an injury management consultant, subsequently assessed the applicant on 28 June 2011. Dr Aldridge, in correspondence to the respondent, assessed that the applicant was fit for pre injury duties with warm up exercises and continuing home spinal strengthening program also noting "mild degenerative changes with no significant pathology". Dr Aldridge stated:

Given that the underlying condition does not "go away" but the aggravation settles, it is important to realise that any duties that involve manual handling have the potential to aggravate again. The chances of aggravation are less with the lightest of manual handling but almost guaranteed with heaviest manual handling. He should be able to minimise risk by excellent manual handling procedures, warm-up and home exercises and avoiding the heavier manual handling components...

He is at pre-injury duty status now. He has a risk of aggravating his underlying degenerative condition. He should probably avoid heavy manual handling. Light to moderate manual handling is appropriate as long as he continues to perform his home exercise program and his warm-up exercises at work. He may benefit from some one-on-one manual handling training as this will certainly reduce risk of aggravations if he takes it seriously. The Applicant would avoid lifting more than 20Kg in static or 16Kg in dynamic lift. Repetitive and awkward lifting should be avoided. Jerking movements are unsafe. Manual handling in confined spaces axe a risk. Unrestricted pre-injury duties do have a risk of aggravation. His degenerative spinal condition will gradually worsen over the years.

21 Evidence was received from Mr Gerard Schouten, the respondent's General Manager Operations, New South Wales. Mr Schouten explained the steps taken after receipt of Dr Aldridge's report:

On 7 July 2011, I met with Adam Covington, Manufacturing Manager to discuss the Applicant's employment. Following a long discussion regarding the medical evidence, the Functional Assessment of 4 May 2010, we made the decision to terminate the Applicant's employment.

We agreed that, due to the manual nature of the work which required physical exertion for extended periods, the Applicant was unsuitable for the inherent requirements of the position. This was partly based on the fact that on 5 August 2009 the Applicant was assessed as having 6% Whole Person Impairment following injuries to his back sustained on 19 April 2005 and 21 November 2007. I also considered the Applicant's history of recurrent back injuries, and the advice of numerous medical reports that he stood a significant chance of further aggravating his back injury if he performed repetitive movements or lifted weights in the range of duties he was required to perform.

We also gave consideration to the fact that it is in Visy's best interests to assist workers to return to work. We balanced this with the duty of care obligations owed by Visy and its officers to eliminate or reduce risk to employees' health and safety. We decided that we were not prepared to make a decision which would increase the risk of injury to the Applicant.

Further, I remain concerned that the Applicant has not returned to pre-injury status given that the WorkCover Medical Certificates issued by Dr Tran and other doctors and provided to Visy have only been "progress certificates". Visy is yet to receive any "final" WorkCover Medical Certificate which confirms that the Applicant has returned to full pre-injury status. Further, no explanation has been provided regarding the Applicant's condition suddenly and unexpectedly improving to the extent that he was fit for full pre-injury duties according to Dr Tran's correspondence of 9 June 2011 ...

When making the decision to terminate the Applicant's employment, we considered the possibility of alternative positions either within Visy Board or other entities associated with Visy.

Visy operates a number of separate and distinct operating entities. The Applicant was employed in the Fibre Packaging Division which operates over the Warwick Farm and Smithfield sites. Each entity's operations and the products that they manufacture involve diverse machinery and specialised processes that are generally not interchangeable. It is very uncommon for an employee to work at both sites concurrently or to switch sites due to the re-training and induction processes, which can be 18 months in duration and are specific to each site. Despite this, we considered the suitable duties register at various times during the Applicant's periods of injury to assess if suitable duties were available.

Amongst the roles deemed unsuitable were forklift driving, driving the sweeper, stacking and separately working as a corrugator, control panel operator or dry end operator. All of these roles involved bending, lifting, manual handling, stacking, pushing or pulling, twisting or repetitive movements involving a combination of those movements. There are very few jobs at Visy that do not require these manual activities.

Additionally, Visy's workers are generally longstanding employees who are engaged to work with machinery they have operated for many years. Much of the workforce is unionised and, as a result, any disruption to the way in which Visy employs its staff in order to accommodate the Applicant's condition is likely to result in an industrial dispute. Further, the creation of a position to accommodate the Applicant is not possible and would disrupt Visy's production processes.

22 On 8 July 2011, the decision was made to terminate the applicant's employment on the basis that the applicant was unsuitable for the inherent physical requirements of his former role.

23 The applicant continued to consult Dr Tran. On 29 July 2011, Dr Tran saw the applicant and noted his work capability was "8 hrs/day - 5 day week - need assistance for heavy lifting (avoid lifting > 15-20 kg in weight)". Dr Tran again saw the applicant on 15 August 2011. The applicant complained of lower back pain. Dr Tran prescribed "Analgesia, physiotherapy, Active range of motion exercise, Strengthening exercise, Stretching exercise".

24 A further consultation occurred on 2 September 2011 at which time the applicant complained of chest wall pain. Dr Tran proposed an X-ray. On 28 September 2011 the applicant was treated for chest wall pain. It was noted the applicant was "attending gym/swimming regularly". On 4 October 2011 the applicant reported he was not suffering back or hip pain. On 4 November 2011 the applicant reported he was suffering "Persistent dull aching pain over his lower back which has been improving since he has been training at the gym and swimming".

25 The applicant ceased receiving workers' compensation payments on 25 January 2012.

26 On 11 April 2012, at the request of the applicant's lawyers, Dr Roger Pillemer, an orthopaedic surgeon, undertook a medical examination of the applicant and provided a report. The report stated, inter alia:

On direct questioning Mr Chau informs me he has obtained a clearance from his general practitioner to go back to his pre-injury duties but Visy Board are reluctant to take him back....

... Mr Chau has had intermittent ongoing problems with his low back and referred pain down his right lower limb but he is very much better at the present time and in fact he has not had any back pain for a year and he has not had any leg pain for a couple of years.

...

Mr Chau was a strongly built adult male almost certainly from his regular gym work...

He had an excellent range of back movement being easily able to touch his toes with his fingertips and other movements were also full.

...

I note that he had an MRI of his lumbar spine carried out on 6 April 2011 which was reported as being normal and I would agree with this assessment.

From Mr Chau's history it would seem that he has had a mechanical low back problem in the past with discomfort in the lower lumbar region and at one stage referred pain into his right lower limb. As noted, symptoms have long since settled down and he has not had any problems for over a year at this stage. He is also doing regular gym work with an excellent physique and does a lot of weight lifting in the gym...

Noting his history, in my opinion the nature and conditions of his work would have been a substantial contributing factor to his development and recurrent back problem.

...

In my opinion Mr Chau is fit for unrestricted duties at the present time and I would suggest fit for his pre-injury duties. One can certainly understand his employers being reluctant to take him back in view of his previous history, and my only advice to Mr Chau would be to be very careful with heavy lifting and repeated or prolonged bending and twisting activities and at the first sign of any symptoms, it would be sensible to cut back on strenuous activities.

...

Noting his history, it is certainly possible that he will have intermittent ongoing problems with his lower back in future.

...

In my opinion condition (sic) can now be regarded as having stabilised/reached maximal improvement.

...

Mr Chau fits into DRE Category 1 of his lumbar spine at the present time with 0% whole person impairment.

In answer to your very specific question then, in my opinion Mr Chau is fit to return to work on a fulltime basis as either a stacker or machine operator, with the simple precaution that he avoid excessively stressful lifting activities.

Legislation

27 The legislation immediately relevant to a consideration of this matter is Pt 8 of the Workers Compensation Act dealing with protection of injured workers, in particular ss 241, 242, 243 and 244:

241 Application to employer for reinstatement of dismissed injured worker

(1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application.

(2) The kind of employment for which the worker applies for reinstatement cannot be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury.

(3) The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement.

...

242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate

(1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order.

(2) An industrial organisation of employees may make the application on behalf of the worker.

(3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed.

243 Order by Industrial Relations Commission for reinstatement

(1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order.

(2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment.

(3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being:

(a) employment of a kind that is available but that is less advantageous to the worker, or

(b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation).

(4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission.

244 Presumption as to reason for dismissal

(1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received.

(2) That presumption is rebutted if the employer satisfies the Industrial Relations Commission that the injury was not a substantial and operative cause of the dismissal of the worker.

Consideration

28 It was not in issue that the applicant was an "injured worker" for the purpose of s 241. It was also not in issue that the applicant applied for reinstatement to employment in his "pre-injury position as a machine operator." At the time he sought reinstatement, the applicant produced to the respondent a certificate given by a medical practitioner to the effect that the applicant was fit for pre-injury duties subject to "need assistant for heavy lifting".

29 The respondent has refused to reinstate the applicant. In those circumstances, ss 243(1) and (2) provide that the Commission may order the respondent to reinstate the applicant to employment of the kind for which the applicant applied (or to any other kind of employment that is no less advantageous to the applicant), but only if the Commission is satisfied that the applicant is fit for that kind of employment.

30 If the Commission finds the respondent does not have employment of the kind referred to in s 243(2) available, the Commission may order the applicant to be reinstated to employment of any other kind for which the applicant is fit, being:

(a) employment of a kind that is available but that is less advantageous to the applicant, or

(b) employment of a kind that the Commission considers that the respondent can reasonably make available for the applicant (including part-time employment or employment in which the applicant may undergo rehabilitation).

31 The respondent has not sought to rebut the presumption in s 244, probably because the letter terminating the applicant's employment stated the reason as being the applicant's inability to perform his pre-injury duties "now or in the foreseeable future".

32 Whether the Commission would order the respondent to reinstate the applicant to employment of the kind for which the applicant applied (or to any other kind of employment that is no less advantageous to the applicant) is a discretionary decision which could only be made in the applicant's favour if the Commission were satisfied that the applicant was fit for that kind of employment. A determination of fitness for employment must necessarily be made on the basis of medical evidence: see Cansino v South Western Sydney Area Health Service (1999) 130 IR 1 at 11.

33 The kind of employment for which the applicant applied for reinstatement cannot be more advantageous to him than that in which he was engaged when he first became unfit for employment because of the injury: s 241(2). The applicant sought reinstatement to his "pre-injury position as a machine operator." At the time of his injury the applicant was paid as a machine operator, but he was performing the work of a stacker. The applicant had previously performed the work of a machine operator and an assistant machine operator.

34 As the applicant was being paid as a machine operator (but performing the work of a stacker - a lower paid position) when he first became unfit for employment, an order reinstating the applicant to the position of machine operator would not place him in a more advantageous position.

35 The critical question is whether the applicant is fit for employment as a machine operator or to any other kind of employment that is no less advantageous to him. The medical evidence in that respect was as follows:

(a) On 4 October 2011 Dr Tran, the applicant's general practitioner, noted in his medical certificate that the applicant's occupation was that of machine operator and certified that the applicant was fit for pre-injury duties "8 hrs/day - 5 days/week - need assistant for heavy lifting". Dr Tran issued a further medical certificate to the same effect on 4 November 2011. The doctor did not define "heavy lifting" but I note in his evidence, Mr Schouten conceded that where a worker was required to lift more than 30 kilograms "someone would assist with the lift";

(b) On 28 June 2011, at the request of the respondent, Dr Aldridge examined the applicant. Dr Aldridge considered the applicant was at 'pre-injury duty status", but that he "should probably avoid heavy manual handling" and that the applicant "would avoid lifting more than 20Kg in static or 16Kg in dynamic lift." Dr Aldridge also stated:

Repetitive and awkward lifting should be avoided. Jerking movements are unsafe. Manual handling in confined spaces are a risk. Unrestricted pre-injury duties do have a risk of aggravation. His degenerative spinal condition will gradually worsen over the years.

(c) On 11 April 2012 Dr Pillemer, an orthopaedic surgeon examined the applicant at the request of the applicant's lawyers. Dr Pillemer concluded Mr Chau was "fit for unrestricted duties at the present time" and "fit for his pre-injury duties." However, he advised that Mr Chau be "very careful with heavy lifting and repeated or prolonged bending and twisting activities and at the first sign of any symptoms, it would be sensible to cut back on strenuous activities." Dr Pillemer further opined, "Mr Chau is fit to return to work on a fulltime basis as either a stacker or machine operator, with the simple precaution that he avoid excessively stressful lifting activities."

36 The medical evidence overwhelmingly indicates that the applicant is fit for pre-injury duties. In my opinion that evidence must outweigh the lay opinion of Mr Schouten, who was the person that took the decision to terminate the applicant's employment on the ground that the applicant was unsuitable for the inherent physical requirements of his former role. Whilst I do not doubt that Mr Schouten made his decision in good faith and was genuinely concerned at the possibility that the applicant might aggravate his back injury or re-injure his back, medical opinion was unanimous in the view that the applicant was fit for pre-injury duties.

37 I note the respondent's criticism that in April 2012 Dr Pillemer recorded the applicant as advising him that he had not had any back pain for a year and he has not had any leg pain for a couple of years. However, in November 2011, only five months' earlier, the applicant had reported to Dr Tran that he was suffering "[p]ersistent dull aching pain over his lower back..."

38 The applicant was unable to explain this inconsistency. One might draw a conclusion from this that the applicant misled Dr Pillemer. However, that may not have been the case. The applicant is Vietnamese. Whilst he appeared to have a good grasp of English he did not project confidence in the witness box and often took some time before answering questions. There may well have been an explanation for the inconsistency that went to the level of pain that the applicant was experiencing and such an explanation was beyond the applicant under cross-examination. Moreover, I note that in October 2011 the applicant did not report any pain to Dr Tran and further, that it seems from the medical reports the applicant's back problem was gradually easing with the exercises he was undertaking.

39 Notwithstanding the inconsistency I have referred to I do not consider it undermines the medical evidence to any material degree. However, there is a consistent qualification amongst the three medicos, namely, the applicant should avoid repetitive and awkward lifting and heavy lifting, which Dr Aldridge defined as more than 20kg in static or 16kg in dynamic lift. Given these qualifications a clear inference may be drawn that if the applicant does engage in repetitive and awkward lifting or heavy lifting it may have the effect of aggravating or causing a recurrence of his back injury.

40 The machines operated by the respondent have three attendants: the machine operator, the assistant machine operator and the stacker. A machine operator, according to the evidence of Ms Tecson, the respondent's Northern Region Claims Manager, involved, amongst a range of other duties, controlling the operation of the machine, but from time to time assisting the stacker and assistant machine operator in both stacking and clearing blockages. The assistant machine operator assists in controlling the operation of the machine and will assist others in both stacking and clearing blockages. The stacker stacks product, which may include lifting loads of 15-20kg from waist height onto a pallet. This may involve some turning and twisting and pushing cardboard boxes along rollers.

41 It must be kept steadily in mind that the purpose of Pt 8 of the Workers Compensation Act dealing with protection of injured workers is to ensure that employees who have been dismissed as a result of an injury are able to return to work in the event they recover or become fit for work within two years of their dismissal. It is beneficial legislation and should be construed as such.

42 In light of the medical evidence, I am unable to see any reason why the Commission should not exercise its discretion by ordering the respondent to reinstate the applicant to the position of machine operator, subject to the condition that the applicant be directed by the respondent to avoid repetitive and awkward lifting and to lift no more than 20kg in a static lift or 16kg in a dynamic lift.

43 Under s 243(2) the Commission may order the worker to be reinstated to "employment of the kind" for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker). Employment of the kind for which the applicant applied for reinstatement is machine operator. It is arguable, I think, that an order could be made under s 243(2) in this case. That a limit might be imposed on the amount the applicant is to lift in returning to employment as a machine operator does not alter the fact that he is being reinstated to employment "of the kind" for which he applied for reinstatement. In this respect, I note that even with a lifting restriction the applicant could still carry out the inherent requirements of the job of a machine operator (or assistant machine operator). It has not been established that an inherent requirement of the job of a machine operator is to lift more than 20 kg or that such an operator must engage in repetitive and awkward lifting. The machines operated by the respondent are attended by three persons. There is no reason why the assistant machine operator (or machine operator if the applicant was working as the assistant) and the stacker could not provide the necessary assistance where the applicant might be called upon to lift more than 20kg in a static lift or 16kg in a dynamic lift.

44 If I am wrong about the applicability of s 243(2), s 243(3)(b) provides that the Commission may order the worker to be reinstated to employment of "any other kind for which the worker is fit", being:

(b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation).

45 I consider the applicant is fit to perform the work of machine operator or assistant machine operator subject to the applicant avoiding repetitive and awkward lifting and not being required to lift more than 20kg in a static lift or 16kg in a dynamic lift. I am conscious of the fact that the job of stacker involves repetitive lifting and twisting, so I have declined to find the applicant is fit to perform that work.

46 I consider the respondent can reasonably make that work available to the applicant in circumstances where three persons attend machines and the applicant could be provided with assistance for lifts above the weights I have identified. The onus would be on the applicant to ensure he complies with the direction regarding the lifting restrictions. The respondent's onus would be to issue the direction to the applicant, to ensure he understands the direction and to monitor compliance. None of these arrangements impose an unfair burden.

47 The onus in these proceedings is on the respondent to prove to the satisfaction of the Commission that the roles of machine operator, assistant machine operator are either not available or that it is not reasonable for the respondent to make them available: see Cansino at 11-14; Transport Workers' Union of New South Wales (on behalf of Thomas Lawson) v Lindsay Brothers Management Pty Limited [2008] NSWIRComm 157 at [27].

48 The word "available" in s 243(3) does not mean, "a pre-existing specified position designated by the employer which is vacant": see IGA Distribution Pty Ltd v Moses (No 2) [2002] NSWIRComm 96; (2002) 114 IR 307 and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108; (2006) 151 IR 396. The word "available" is to be taken to mean "another position was of avail to, capable of being used by, or at the disposal or within reach of, the employer - whether or not it was vacant at the time": see Riley at [107]; Lindsay Brothers at [28].

49 There was no evidence that the respondent was unable to reasonably make available to the applicant the work of machine operator, assistant machine operator with the lifting restrictions I have proposed. Accordingly, I propose to order the applicant's reinstatement pursuant to s 243(3)(b) of the Workers Compensation Act.

50 Section 243(4) of the Act provides that if the Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission. I propose to make such an order with any amount being reduced by any workers' compensation payments made to the applicant in the relevant period.

Orders

51 The Commission makes the following orders:

(1) Visy Board Pty Ltd shall reinstate Bien Chau in full time employment as a machine operator on and from the date of this decision, subject to a direction to Mr Chau that he avoids repetitive and awkward lifting and he not lift more than 20kg in a static lift or 16kg in a dynamic lift. Mr Chau shall at all times comply with the direction.

(2) Whilst Mr Chau has been reinstated as a machine operator and he shall be paid as such, the employer is at liberty to require Mr Chau to perform the work of assistant machine operator from time to time subject to the lifting restrictions identified in order (1) hereof.

(3) For the period from the date of his application, namely, 20 October 2011 to the date of this decision (excluding the period 30 July 2012 to 28 August 2012), Visy Board Pty Ltd shall pay to Mr Chau an amount equivalent to what he would have earned if he had been paid at the rate of his ordinary weekly rate of pay less any amount Mr Chau received by way of workers' compensation payments.

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Amendments

11 October 2012 - addition to Order 3
Amended paragraphs: Coversheet decision; paragraph [51] Order 3 of judgment

Decision last updated: 11 October 2012