VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative DIVISION
review and regulation LIST	
vcat reference No. Z289/2020	
CATCHWORDS	
Review and Regulation List – Improvement Notices issued under section 136 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) requiring the applicant to plan for return to work of injured workers – workers not employees at the time the Improvement Notices were issued – meaning of ‘worker’ and whether it includes ‘former worker’ – interpretation of sections 103 and 104 – purpose of return to work provisions. 	

APPLICANT	Department of Education and Training 	
RESPONDENT	Victorian Workcover Authority – Worksafe Victoria 	
WHERE HELD	Melbourne	
BEFORE	A Dea, Senior Member	
HEARING TYPE	Hearing on the papers 	
DATE OF ORDER and reasons	7 May 2021	
CITATION	Department of Education and Training v Victorian Workcover Authority – Worksafe Victoria (Review and Regulation) [2021] VCAT 449	

Order
Under section under section 129 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) and section 51 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Internal Review Unit decisions made on 25 March 2020 are set aside and substituted with a decision that, as at that date, the applicant was not in contravention of section 104(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

A Dea
Senior Member			

Reasons
Introduction 
1	This case relates to two school teachers who were employed on fixed term contracts with the Department of Education and Training (Department) to work at different Victorian government schools.  Those contracts were made under the Education and Training Reform Act 2006 (Vic) (the ETR Act). 
2	Both teachers were injured at work during the course of their employment.  They made claims under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the WIRC Act) and those claims were accepted by the Department.
3	Both teachers ceased being employed on 27 January 2020, being the last day of their fixed term contracts.
4	One of the teachers was not fit to return to work before the end of the fixed term contract.  The other had returned to modified duties in late 2019 and was certified as having capacity to return to suitable employment from 22 February 2020. 
5	In February 2020, Return to Work Inspector Ms Rhiannon Larkin of the Victorian Workcover Authority (VWA) (the Inspector) attended the two schools.  The Inspector issued Improvement Notices to each on the basis that she reasonably believed the Department was in breach of obligations under section 104(1) of the WIRC Act.  That provision concerns planning for injured workers to return to work.  
6	The Improvement Notices required the Department to remedy the contraventions by making a ‘plan for the worker’s return to work’.
7	The Department disagreed with the view that it had breached the WIRC Act on the basis that, at the time the Improvement Notices were issued, the two teachers were no longer ‘workers’ for the purposes of that Act.  The Department sought internal review of the Improvement Notices.
8	VWA’s Ms Amelia Macknay undertook the internal review.  On 25 March 2020 she made two decisions and, in each, she affirmed the decisions to issue the Improvement Notices (the IRU Decisions).
9	The Department applied to the Tribunal for review of the IRU Decisions, maintaining that the return to work obligations contained in the WIRC Act did not apply to the teachers because, as their employment with the Department had ended, they could not be regarded as ‘workers’.
10	The VWA contended that the provisions in issue applied to the two teachers, despite the fixed term contracts having come to an end.  The VWA contended that, as a result, the Department was obliged to plan for their return to work.
The question for determination 
11	VCAT’s role when undertaking a review under section 129 of the WIRC Act and section 51 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is to make the correct and preferable decision on the application, exercising all of the relevant earlier decision maker’s functions.  VCAT has the power to affirm or vary the decision or to set aside the decision and either substitute a fresh decision or remit the matter for re-consideration.  
12	As there was no dispute about the facts and the proceeding turned on the correct interpretation of relevant provisions of the WIRC Act, the parties proposed that the decision be made on the papers.  They filed an agreed statement of facts (Agreed Statement) and supporting material and they also filed comprehensive written submissions.
13	The sole question for me to determine was whether the teachers were ‘workers’ for the purposes of section 104 of the WIRC Act. 
14	For the following reasons, I agree with the Department’s contentions and find the two teachers were not ‘workers’ when the Improvement Notices were issued and so there could be no reasonable belief that the Department was in breach of section 104 of the WIRC Act by not planning for their return to work.  
15	In short, that is because, at the relevant time, they were not employed by the Department, whether under an express or implied contract or as a result of any agreement or other arrangement, and they were not undertaking any activity for or with the Department which may be treated as the equivalent of employment.  As best I can ascertain it, as at February 2020 when the Improvement Notices were issued, the two teachers had no dealings or relationship of any kind with the Department.  In those circumstances, I am not persuaded the legislature would have intended that the Department as employer take steps to plan for the return to work of persons with whom it had no ongoing employment or employment-like relationship.
16	In those circumstances, I have ordered that the Improvement Notices be set aside.
17	I start with the Agreed Facts and then turn to the parties’ submissions.
The Agreed Facts and key statutory provisions 
18	The following comes from the Agreed Facts and incorporates the key statutory provisions.
The employment arrangements 
19	The Department, by its Secretary, employs Victorian government school teachers to the Victorian government teaching service pursuant to Part 2.4 of the ETR Act. 
20	Two school teachers were employed on fixed term contracts at different Victorian government schools, one at Port Phillip Specialist School and the other at Hume Valley School.
21	Each teachers was a ‘temporary employee’ within the meaning of section 2.4.1 of the ETR Act, being ‘a person engaged in a fixed term position with no entitlement to on-going employment at the end of the fixed term.’  
22	Each of the two teachers’ employment ceased at the end of their fixed term contracts on 27 January 2020 consistent with section 2.4.9(2) of the ETR Act which provides:
An employee employed in a fixed term position ceases to be employed at the end of the term unless the person becomes an on-going employee without a position in accordance with section 2.4.42 or is employed in another position.
Purpose of Part 4 of the WIRC Act 
23	Section 97 of the WIRC Act states the purpose of Part 4 is to provide the following:
(a)  	that employers, workers and other persons involved in the return to work process co-operate to ensure that workers successfully return to work; 
(b) 	that employers are responsible for providing pre-injury employment or suitable employment to enable workers to return to work; 
(c) 	that workers are responsible for participating in the return to work process consistently with their capacity for work; 
(d) 	for workers to be represented, assisted and supported in the return to work process; 
(e) 	for effective occupational rehabilitation for workers to facilitate their early and sustainable return to work.
WIRC Act return to work obligations
24	Sections 103 and 104 of the WIRC Act impose obligations on employers to plan for injured workers to return to work, and to provide ‘suitable employment’ (while the worker has a current work capacity) and ‘pre-injury employment’ (while the worker no longer has an incapacity for work).
25	Relevantly, sections 103 and 104 of the WIRC Act say:
103 	Provide employment 
(1)	An employer must, to the extent that it is reasonable to do so, provide to a worker until the expiration of the employment obligation period – 
(a) 	suitable employment, while the worker has a current work capacity; and

(b) 	pre-injury employment, while the worker no longer has an incapacity for work. 
Penalty: 	In the case of a natural person, 180 penalty units; 
In the case of a body corporate, 900 penalty units.
. . . 
104 	Plan return to work 
(1)  	An employer must, to the extent that it is reasonable to do so, plan the return to work of a worker from the date on which the employer knows or ought reasonably to have known of the worker’s incapacity for work, whichever is the earlier date. 
Penalty:  	In the case of a natural person, 120 penalty units; 
In the case of a body corporate, 600 penalty units. 
(2) 	An employer must, when planning the return to work of a worker, undertake the tasks specified in subsection (3) as often as is necessary to enable the worker to return to work in employment which is consistent with the worker’s capacity for work. 
(3) 	Planning the return to work of a worker includes – 
(a) 	obtaining relevant information about the worker’s capacity for work; and 
(b) 	considering reasonable workplace support, aids or modifications to assist in the worker’s return to work; and
(c) 	assessing and proposing options for suitable employment or pre-injury employment; and 
(d) 	engaging in consultation in accordance with section 105; and 
(e) 	providing the worker with clear, accurate and current details of the worker’s return to work arrangements; and 
(f) 	monitoring the worker’s progress. 
(4)  	For the purposes of this section, an employer knows or ought reasonably to have known of the worker’s incapacity for work from the date of the commencement of the employment obligation period.
26	A ‘worker’ is defined in section 3 of the WIRC Act to mean: 
an individual – 
(a)	who – 
(i)  	performs work for an employer; or  
(ii) 	agrees with an employer to perform work – 
at the employer’s direction, instruction or request, whether under a contract of employment (whether express, implied, oral or in writing) or otherwise; or 
(b) 	who is deemed to be a worker under this Act . . . 
27	The definition of ‘employer’ mirrors that of ‘worker’ and includes: 
(a)	 	a person – 
(i)	for whom a worker works; or
(ii)	with whom a worker agrees to perform work – 
at the person’s direction, instruction or request, whether under a contract of employment (whether express, implied, oral or in writing) or otherwise; and 
(b)  	who is deemed to be a worker under this Act . . . 
28	The Agreed Statement says this at paragraph 7:
A “worker” is defined in s 3 of the WIRC Act to mean, inter alia, a person performing work whether under a contract of employment or otherwise.
29	I took it from that statement that the parties did not contend that the two teachers were workers under paragraph (b) of the definition and so only paragraph (a) was in issue.  
30	I also noted that, while the VWA made submissions as to the meaning of the term ‘otherwise’ in paragraph (a), there were none to the effect that, after the end of the fixed term contracts, there was any implied or oral contract of employment or a promise or expectation of further employment.  I further noted that the Department asserted in its written submissions that, when the fixed term contracts ended on 27 January 2020, neither of the teachers applied for a further role, although roles with the Department were advertised around that time.  The VWA did not dispute that statement in its submissions or other materials.
31	As sections 103 and 104 both refer to the concept of capacity, it is convenient to set out the associated definitions now.  Section 3 of the WIRC Act provides that:
current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment;
. . . 
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment . . .  
32	The term ‘employment obligation period’ also appears in sections 103 and 104 and indicates the period during which the employer’s obligation to make provision for return to work applies.  The term is defined in section 96 of the WIRC Act to mean:
subject to section 103(2) and (3), an aggregate period of 52 weeks, whether or not consecutive, in respect of which a worker has an incapacity for work resulting from, or materially contributed to, by the injury to which the medical certificate or claim relates, beginning on the date on which the employer – 
(a) 	receives from the worker a medical certificate issued in accordance with section 25(1); or 
(b) 	receives a claim for compensation from the worker in the form of weekly payments; or 
(c) 	is notified by the Authority that the worker has made a claim for compensation in the form of weekly payments; or 
(d) 	is notified by the Authority that the worker has provided the Authority with a medical certificate issued in accordance with section 25(1) – 
whichever is earliest . . .
33	I now return to matters covered in the Agreed Statement.
The role of an inspector 
34	The VWA may appoint an officer or employee to be an inspector for the purposes of Part 4 of the WIRC Act.  The role of an inspector is to ensure that employers comply with their return to work obligations under Part 4.  Under section 136(1), an inspector may issue to an employer a Return to Work improvement notice requiring the employer to remedy a contravention of a provision of Part 4, if the inspector ‘reasonably believes’ that an employer is contravening a provision of Part 4.
Port Phillip Specialist School
35	The teacher employed at Port Phillip Specialist School lodged a claim for injury suffered on 24 October 2019, which was accepted.
36	The employee had been employed under a 12-month fixed term contract of employment that ended on 27 January 2020.
37	Between 24 October 2019 and 27 January 2020, the Department had taken steps to propose suitable employment by way of return to work plans, setting out modified duties as a drama teacher.
38	After 27 January 2020, the Department did not take any steps to plan the return to work of the employee.
39	The employee had no capacity to return to work from 7 December 2019 to 4 January 2020, according to a certificate of capacity dated 5 December 2019.  The worker had a capacity for suitable employment from 25 February 2020 to 24 March 2020 according to a certificate of capacity dated 17 February 2020.
40	On 24 February 2020, the Inspector attended at the Port Phillip Specialist School at Port Melbourne.  The Inspector issued Improvement Notice V01035000698L/_136-01 (the Port Phillip Notice) under section 136 of the WIRC Act.
41	At the time the Port Phillip Notice was issued, the teacher was no longer an employee of the Department.
42	The Port Phillip Notice states that the Inspector reasonably believed the Department was contravening section 104(1) of the WIRC Act.
43	The Port Phillip Notice contained a direction by the Inspector to remedy the contravention of section 104, requiring the Department to ‘plan the worker’s return to work’ by 9 March 2020.
44	I add that a witness statement made by the Inspector on 26 October 2020 stated that the contract role being performed by the teacher at the Port Phillip Special School was not filled by another teacher due to a downturn in student numbers.
Hume Valley School
45	The teacher employed at Hume Valley School lodged a claim for injury suffered on 16 September 2019, which was accepted.
46	The employee had been employed under a fixed term contract of employment that ended on 27 January 2020.
47	Between 16 September 2019 and 27 January 2020, the Department had taken steps to propose suitable employment by way of return to work plans.
48	The employee returned to modified duties from 4 November 2019 to 20 December 2019.
49	The employee had a capacity for suitable employment from 22 February 2020 to 22 March 2020 according to a certificate of capacity dated 19 February 2020.
50	On 26 February 2020, the Inspector attended at the Hume Valley School at Broadmeadows.  The Inspector issued Improvement Notice V01035000701L/_136-01 (the Hume Notice) under section 136 of the WIRC Act.
51	At the time the Hume Notice was issued, the teacher was no longer an employee of the Department.
52	The Hume Notice states that the Inspector reasonably believed the Department was contravening section 104(1) of the WIRC Act.
53	The Hume Notice contained a direction by the Inspector, to remedy the contravention of section 104, requiring the Department to ‘plan the worker’s return to work’ by 18 March 2020.
Statutory interpretation
54	The parties agreed that the determination in this case would turn on the interpretation of the term ‘worker’.  The parties were largely agreed as to the proper approach to statutory interpretation.  
55	The Department’s submissions emphasised the text of the provision in issue, to be read in the context of the whole statute, the purpose of the provision and any applicable presumptions of interpretation.
56	Both parties referred me to the following statement of the High Court of Australia in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue: 
The Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself.  Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.  The language which has actually been employed in the text of legislation is the surest guide to legislative intention.  The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
57	The parties also referred me to the following statement of their Honours French CJ and Hayne J in Certain Lloyds Underwriters v Cross:
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all [t]he provisions of the statute . . . ’ (emphasis added).  That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.
 . . . 
A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose.  The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions (citations omitted).
58	The VWA referred me to section 35 of the Interpretation of Legislation Act 1984 (Vic) which provides, relevantly:
(a)	a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and 
(b)	consideration may be given to any matter or document that is relevant including but not limited to – 
(i)  	all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;
(ii) 	reports of proceedings in any House of the Parliament;
(iii) 	explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament …
59	It also referred me to the history of the WIRC Act including the provisions which preceded sections 103 and 104.  In those submissions the VWA quoted from the explanatory memorandum for the Bill which inserted section 104 into the WIRC Act.  Relevantly, clause 104 of the Bill said (italics my emphasis):
Clause 104 obliges an employer to plan their worker’s return to work.  This obligation is qualified by a reasonableness test.  It is intended that this mandatory planning process will prompt the employer to do things to facilitate their worker’s return to work and help them to be more organised in their approach to return to work.  The clause provides some examples of the activities which planning for return to work includes.  
To ensure that planning commences at the earliest opportunity, the obligation applies from the date on which the employer knows or ought reasonably to have known that the worker is not fit for work.  
A worker is under a corresponding obligation to make reasonable efforts to actively participate and cooperate in return to work planning under clause 111. 
60	I now turn to the issues addressed in the parties’ submissions. 
The Department’s submissions 
The meaning of ‘worker’
61	The Department contended the critical word in the relevant provisions of the WIRC Act is ‘worker’ and that it was only if there was a worker for whom planning for return to work existed that the section 104 obligations arose.  The submissions said that the ‘logically anterior point’ was that, as sections 28 and 98 clearly state that Part 4 of the WIRC Act only applies to the return to work of a worker, if there is no worker to be returned to work with the relevant employer, Part 4 (which includes sections 103 and 104) does not apply at all.
62	The Department noted that the Port Phillip and Hume Notices were issued on the basis of the Inspector’s belief that there was, at that time, a contravention of section 104(1).  It was said that could only be so if the two teachers were, at that time, workers.  As they were no longer employed under the fixed term contract by the Department, they could not be within the meaning of the term.  The Department asserted the clear words of the statute directed attention to whether there was a worker at the time of the alleged obligation to plan, not a former worker.
63	The submissions went on to say that, if there was no worker for whom return to work plans could be made, there could be no basis on which to reasonably believe there was a contravention of section 104(1).  In those circumstances, it said neither of the Port Phillip or Hume Notices should have been issued as they failed to identify a worker in respect of whom the Department had an obligation under section 104(1) of the WIRC Act.
The statutory context 
64	The Department’s submissions then focussed on section 104 in the context of section 103 on the basis there was no sensible basis on which to interpret the term ‘worker’ in each section differently.
65	The Department contended that:
•	The obligation in section 104 is subsidiary to or supportive of section 103, in the sense that the planning required by section 104 is designed to achieve the return to work with the injury employer (that is the worker’s employer at the time they were injured) required by section 103.  Section 103 was said to also be part of the statutory context, and the provisions must be read in harmony, or viewed as a whole; 
•	The language used in sections 103 and 104 (and in sections 28 and 98 which stipulate when those sections apply), strongly supports the need for there to be a current worker.  There needs to be a worker at the time the question is asked – does section 103 or 104 require the employer to do something?
•	The obligation is to plan a return to work for a person who is a worker, not someone who was (at the time of injury) a worker.  And a worker is a worker as defined in section 3 – and not someone who formerly was a worker, or at some earlier time had been a worker within that definition; 
•	Thus, when dealing with paragraph (a) workers, where that employment ends for whatever reason (including resignation, the expiry of a fixed term contract, or dismissal for cause), then the employer is no longer required to plan that ex-employee’s return to work – including by offering work – or to provide any work to the ex-employee; and
•	There is no need for section 103 or 104 to state that they no longer apply if the worker’s employment is terminated as that is already the effect of the words used in sections 28, 96, 98, 103 and 104.
66	The Department then contended that the relevant time for assessing whether the person is a worker is the time at which the obligation to plan (section 104) or provide suitable employment (section 103) is to be performed.  That was said to stand in contrast to the compensation provisions in Parts 2 and 3 of the WIRC Act, which are framed around an injury caused to a worker.  For example, section 39(1) of the WIRC Act says: 
If there is caused to a worker an injury arising out of or in the course of any employment, the worker is entitled to compensation in accordance with this Act. 
67	As a result, when determining a worker’s entitlement to compensation, the question of being a worker is assessed at the time of suffering injury and not the time that compensation is allegedly payable.  The effect of section 39(1) of the WIRC Act was said to be that the entitlement to compensation accrues upon suffering injury.  So, compensation might be payable much later, regardless of whether the worker remains a worker of the injury employer because the entitlement has already accrued.  At that later time, what is to be determined is whether the relevant benefit is payable or not, by reference to incapacity, impairment or the need for medical or other services, as required by the specific requirements of the WIRC Act.
68	The Department proposed that sections 103 and 104 must be read together.  It noted:
•	Section 104(1) states the employer must plan the return to work of a worker;
•	Section 104(2) states that the employer must, when planning the return to work of a worker, undertake the tasks specified in section 104(3);
•	Section 104(3) then gives further content to the things an employer must do when planning a return to work.  One of the required planning tasks, in paragraph (c), is ‘assessing and proposing options for suitable employment or pre-injury employment’; and 
•	So, the employer must propose employment as an option to the injured person.
69	The Department noted that the term ‘suitable employment’ is defined in section 3 of the WIRC Act.  Relevantly, the definition says:
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited . . . 
70	The Department said that, while having various limbs, each of paragraphs (a) to (d) of the definition of ‘suitable employment’ refer to ‘employment’ and paragraph (e) refers to training or vocational re-education ‘but only if the employer pays an appropriate wage or salary to the worker’ for the time spent attending.
71	The term ‘pre-injury employment’ is defined in section 96(1) as ‘the employment of a worker in a position which is the same as or equivalent to the position in which the worker was employed before receiving the injury’.
72	The Department contended that the text of section 104 indicates that planning the return to work assumes the existence of an ongoing obligation upon the employer to employ the worker (or pay them a wage/salary to attend training).
73	The Department said that, if the IRU Decisions were correct, the Department must propose options for ‘employment’ despite the teacher no longer being in the employment of the Department, and despite the Department having no contractual obligation to offer any kind of work to the teacher.  If the teacher then accepted a proposed option for employment, the Department would be bound by that agreement (offer and acceptance) to employ the worker.  That would come about by force of the mandatory obligation in section 104(1).  And the subsequent provision of that employment would be as mandated by section 103(1).  It contended that, if the IRU Decisions were correct, section 104 would compel an offer of employment, which if accepted must be provided by reason of section 103.  
74	It was said to be incorrect to distinguish section 104 from section 103 on the basis that it does not require an employer to provide employment but rather simply to plan for employment while the ‘employment obligation period’ was on foot (as proposed in paragraph 22 of the IRU decisions).  The Department contended the attempted distinction did not accommodate section 104(3)(c), and the interaction between sections 103 and 104.
75	The Department went on to contend that a distinction of that kind would create an ‘absurd and inconvenient result’.  The submissions said (at paragraph 63):
The distinction made [in the IRU decisions] posits that s 103 does not compel the Department to provide work to a teacher who no longer has an employment contract.  The result of such a distinction would be that an employer must plan the return to work of a person that it can never be compelled to provide a return to work.  That approach seeks to read s 104 in total isolation, divorced from its context, which is contrary to proper interpretation analysis.  Further, it would give rise to an obligation that has no use at all.  It would be a nonsensical exercise required of the employer, but a necessary one to avoid the commission of a criminal offence.
76	In those circumstances, the Department submitted the supposed distinction should not be accepted because it is not supported by the text.  It was said to be clear from the words of section 104 (including section 104(2) and section 104(3)(c)), that the sole purpose of section 104 is to achieve the provision of employment by the injury employer under section 103(1).  The return to work is the goal of the planning.  
The statutory purpose 
77	The Department then turned to the express statements of objectives and purposes in the WIRC Act and contended they must be read in the context of the WIRC Act as a whole, noting that those express statements also use the defined term ‘worker’.  
78	The Department contended that its construction of sections 103 and 104 would not produce any unfairness to fixed-term employees, or undermine the purpose of returning workers to employment.  Reference was made to section 97 (set out earlier).
79	The Department said:
•	The differential treatment of a fixed term employee flows not from the Department’s interpretation of the statute, but from the fixed term arrangement they chose to enter;
•	Whether the employee was injured or not, the bargain struck was that their employment would end upon the expiry of the agreed term; and 
•	The employment contract did not give the benefits of, and associated with, ongoing employment. 
80	So, any disadvantage with the interpretation proposed by the Department flows from the exercise of the right to freedom of contract.  The difference in how sections 103 and 104 apply to the two teachers concerned was said to simply be a function of how fixed term contracts work and that sections 103 and 104 do not purport to interfere with how contracts of employment operate.
81	It contended that, to say that the purpose of sections 103 and 104 is to maximise the possible return of injured workers to work with their employer does not assist, because the language in section 104, by incorporating the defined term ‘worker’, does not permit a construction that involves reading worker as a former worker of the employer. 
82	The Department reiterated its position that such a conclusion does not deny the injured person the ability to access compensation for the cost of occupational rehabilitation services under section 224(1)(a) of the WIRC Act.  The worker is not left without all assistance in returning to work, but the assistance will be provided towards either seeking a new employment contract with the Department or seeking employment with a different employer.  That was said to be a complementary objective of the WIRC Act.
Rolling fixed term contracts 
83	In its submissions, the Department referred to comments made by the Inspector as to her experience with ‘rolling fixed term contracts’.  The Department noted there was no suggestion in the IRU Decisions that the two teachers were in that situation.  In any case, it contended that such a scenario would not be a reason to distort the clear language of the sections.  Instead, it would be open to the worker or the VWA to contend that the fixed  term nature of the contract was actually a sham, that did not in truth result in the employment automatically ending by the effluxion of time and by force of section 2.4.9(2) of the ETR Act.  
84	The Department stated that the rolling contracts scenario did not answer the question arising in this case, where there was no dispute that the two teachers concerned were not employees after 27 January 2020.  As mentioned earlier, on expiration of their fixed term contracts, neither teacher applied for a new contract with the Department despite positions being advertised.
A construction that avoids absurd results
85	The Department contended it would be absurd and irrational to interpret section 104 as requiring an employer to plan the return to work of a person who resigned, abandoned their employment, ceased employment by the effluxion of an agreed period of employment, or had been dismissed from employment.
86	It was said to be ‘simply illogical’ that the employer would have an obligation to plan for and return to work a worker who resigns or abandons their employment (and plainly does not want to return to work).  Another relevant example was said to be a worker who has their employment terminated for misconduct (whether that misconduct occurred before or after the workplace injury).  On the VWA’s reading, the employer was said to be required to still plan their return to work in accordance with section 104(1) despite the termination of the employment contract.  Further, if the worker has a capacity for work, section 103(1) would compel the provision of work in employment to them despite the termination for cause. 
87	The Department asserted that the statute does not contemplate, or permit, that direct contradiction between the employer’s right to terminate the employment contract for reasons unrelated to the worker’s injury and the employer’s statutory obligations to plan for and provide employment.  That example alone was said to demonstrate why section 103 and section 104 must be read as only imposing an obligation where there is an extant employee or deemed worker.
88	The Department then said that the position of employees who cease to be employed because their contracts end because the contract is discharged by the effluxion of time are in no different a position – the employer does not want their services after that time and the employee has never been promised that work will be available after that time.
89	The Department contended that the critical wording in all the relevant sections – that requires only planning of returns of workers, and for workers to be provided employment – did not accommodate any other construction.  
Presumption against interference with common law freedom
90	The Department further contended that the logical conclusion of the VWA’s stance on section 104(1) applying to people who are no longer employees was that section 103(1) would also apply.  That was said to constitute a ‘dramatic interference with the employer’s ordinary freedom at common law to enter into voluntary contractual relations’. 
91	The Department contended the legislature could not have lightly intended such an infringement of the right to freedom of contract.  It suggested that such an outcome would produce other unreasonable outcomes, and potential conflict with other statutory schemes and offered examples. 
92	The Department proposed that section 103(1) did not contemplate any new contract of employment being created.  The section would only operate where there is an existing contract of employment (or deemed worker arrangement) which simply continues upon the worker’s return to their employment either in their pre-injury role, or a modified role.  That outcome, said to be supported by the text, would produce a reasonable and logical result and would accord with common sense.
Presumption against criminal liability
93	In the event the other submissions were not accepted, the Department referred to the penal nature of sections 103 and 104.
94	It contended that, if there was any remaining ambiguity in its proper interpretation, as a last resort the offence should be construed strictly, so as not to enlarge potential criminal liability.  That was said to call for an interpretation that the obligations did not exist where a person is no longer a worker (including due to expiry of their employment contract).
Conclusion
95	In conclusion, the Department noted that the IRU Decisions proceeded on the basis that a ‘worker’ could include a person who was no longer an employee while also implicitly accepting that there needed to be a ‘worker’ for the obligation in section 104 to exist at the time of issuing the Port Phillip and Hume Notices.  The only categories of worker within the section 3 definition are employees and deemed workers.  The Department noted that when the Notices were issued on 24 and 26 February 2020, the two teachers were not employees or deemed workers.  As such, there was no worker, and so no obligation on the Department to plan a return to work under section 104(1) for the teachers.
96	As a result, the Department contended that I ought not find it had any legal obligation to plan a return to work, or provide work, to a person after their fixed term of employment has expired.
The VWA’s submissions 
The meaning of ‘worker’
97	The VWA referred to the definition of ‘worker’ as an individual who agrees to perform work whether under a contract of employment ‘or otherwise’.  It noted the definition does not expressly exclude or include fixed term contracts, but contended the inclusion of the words ‘or otherwise’ in the definition contemplated an arrangement other than a contract of employment.
98	It noted that, correspondingly, the definition of employer included a person with whom the worker has agreed to perform work under a contract of employment ‘or otherwise’.  That definition was said to be wider than that of ‘worker’ and contemplated an arrangement where work is performed other than pursuant to a contract of employment.  The VWA contended to maintain differently would render the words or expression ‘or otherwise’ in the definitions redundant and they would have no purpose.
The ‘employment obligation period’
99	The VWA placed significance on the concept of the employment obligation period, the definition of which was set out earlier.  The VWA noted that the employment obligation period is defined in section 96 of the WIRC Act with reference to the period for which a worker is incapacitated for work rather than with reference to a worker’s employment contract.  It noted that the word ‘employment’ is not defined.  While accepting that the relevant workers ceased to be employees when their fixed term contracts expired, the VWA submitted that was not akin to them ceasing to be workers.
100	The submissions referred to the observations of McDonald J in Moore v Tatura Milk Industries, to the effect that employment is not a word with an established legal meaning.  His Honour said it may have different meanings depending upon the context in which it is used.  It may refer to the state of being employed, pursuant to a contract of employment or as an independent contractor.  It may refer to an individual’s occupation, business, paid work or an activity in which a person is engaged.  He remarked that employment is a word with more than one meaning. 
101	The VWA submitted that, in the context of section 96, employment can mean an activity in which a worker is engaged, without the existence of a contract of employment.  However, no examples of activities relevant to these circumstances were given. 
102	The VWA submitted that the Department’s contention that an individual is no longer a worker for the purpose of the WIRC Act if they are no longer employed, required ‘a re-drafting of the relevant provisions and a distortion of the provisions in order to fit that interpretation.’  It noted there was no reference in the wording of sections 103 and 104 to ‘current’ worker or a requirement that they remain an employee. 
Statutory context 
103	Like the Department, the VWA referred to the provisions of the WIRC Act dealing with compensation.  It contended that it was inconsistent with those if a worker’s fixed term contract has expired or employment had been terminated whether before or after the expiry of the employment obligation period, because a worker did not cease to be a worker for the purposes of receiving compensation, for the purposes of bringing an impairment benefit claim or making a claim at common law.  It referred to an employer remaining liable under section 70 of the WIRC Act, to a worker whether or not a contract of employment existed, for the purposes of making compensation payments or in respect of a common law action.  
104	The VWA referred me to section 12 of the WIRC Act which sets out the employer’s obligations and states that an employer must comply with the obligations of an employer specified in Division 2 or Part 4 (which includes sections 103 and 104).  It noted that it was a mandatory obligation conditional to the extent that it is reasonable to do so.  So, it was said to contemplate that it may not be possible to either provide a worker with suitable employment or plan for a return to work in certain circumstances. 
105	The VWA Submissions said this at paragraphs 33 and 34:
Whilst on the face of it an expired contract of employment may relieve the employer of the obligation as it is not ‘reasonable’ to comply with the obligations, the applicant is the largest employer of workers with the skill set of the two claimants and has significant resources at its disposal and therefore whether its conduct was reasonable must be assessed in that context.  The actions of the applicant’s return to work coordinator at Port Phillip Special School and assistant principal at Hume Valley School appear to be consistent with there being an ongoing obligation.  Moreover the applicant, contrary to its submission, has previously engaged in return to work planning for a worker whose fixed term contract had expired (see Entry Report V01035000478L and Improvement Notice dated 20 August 2019 attached to Inspector Larkin’s statement).
The preferred interpretation of the obligations imposed on an employer pursuant to sections 103 and 104, is that the obligations exist irrespective of a termination or expiry of a contract of employment.  Moreover the language of the provisions does not import a requirement that an employer re-employ or have in place a contract of employment for the purposes of meeting the obligations.
106	The VWA contended that the ‘employment obligation period’ did not expire when the contract of employment expired but rather extended for the period as calculated by section 96 of the WIRC Act.  The VWA noted that the Port Phillip and Hume Notices were issued under section 136 of the WIRC Act during the employment obligation period.
Objects 
107	The VWA referred to the objects of the WIRC Act including making provision for the effective occupational rehabilitation of injured workers and their early return to work and increasing the provision of suitable employment to workers who are injured to enable their early return to work.  It contended that interpreting the provisions in the manner contended by the Department was ‘clearly inconsistent with the objects of the Act’.  
108	It submitted that, to read into the language of the statute a requirement that there be an existing contract of employment in order for return to work planning to take place, would result in workers whose contract expired or ended within the employment obligation period being deprived of occupational rehabilitation and an opportunity for an early return to work in circumstances where the applicant is the largest employer of workers with the skill set of the two claimants.
The Department’s examples and the reasonableness test
109	The VWA responded to the examples the Department gave to contend that it would be absurd or irrational to interpret section 104 as requiring an employer to plan for return to work a person who has resigned, ceased or abandoned their employment or has been dismissed.  It said that contention was not sustainable as it ignored the text of the provision that stated an employer must plan for the return to work, ‘to the extent that it is reasonable to do so’.  The VWA commented that the reasonableness test would apply to the examples relied on by the Department.
110	The VWA submitted that unreasonable outcomes and potential conflict with other statutory schemes would not be produced by adopting the interpretation it urged.  It said that, where, for example, an employer demonstrated the work no longer existed, where the position no longer existed or where another person now occupied the position, those would be factors, which would go to the reasonableness or otherwise of the employer’s actions in planning for a return to work.
Conclusion 
111	The VWA referred to these observations of Pagone J in Department of Education and Anor v Paul Unsworth: 
The task of construction of statutory provisions is one of ascertaining the intention of Parliament and in that task the provisions should be construed to give them a sensible operation.
112	The VWA submitted that the Department had an ongoing obligation to plan for a return to work of the subject workers.  It contended the IRU Decisions ought to be affirmed.
The Department’s reply submissions 
The Inspector’s witness statement 
113	In its reply submissions, the Department referred to a part of the Inspector’s witness statement which, in its view, confirmed the ‘absurd results’ that flow from the VWA’s proposed construction of sections 103 and 104: namely the fact that the contract role being performed by the teacher at the Port Phillip Specialist School ended on 27 January 2020 due to a downturn in student numbers.  
114	The Department noted that, despite that fact, the VWA maintained there was an obligation to plan for the return to work of that teacher after the teacher’s contract ended, and the position itself no longer existed.
The interpretation of the text of section 104(1)
115	The Department submitted that it was not clear why the VWA contended that the Department’s contentions required a departure from the wording of the text as that submission was not further explained.
116	It maintained its submissions on the interpretation of section 104(1) ought to be accepted. 
Section 104(1) requires there to be a ‘worker’
117	The Department contended that, on the one hand, the essence of VWA’s submission was that the two teachers concerned continued to be workers when their employment contracts ended, but also contended that there was no need for a ‘current’ worker for sections 103 and 104 to apply.  
118	On the first point, the Department submitted that neither the definition of the term ‘employment obligation period’ or the reasons for decision in Moore demonstrated that a teacher who was employed on a contract that came to an end remains a ‘worker’ after that time.  The submission was described as ‘illogical’ and unexplained.
119	The Department contended that reference to section 96, or what ‘employment’ can mean in different WIRC Act provisions, does not address the language of section 104(1).  In its view, section 104(1) only requires the planning of a return to work of a person who is a worker and the VWA’s submissions did not demonstrate that the two teachers remained workers after 27 January 2020.
A worker at the time the obligation in section 104(1) is said to exist
120	The Department then referred to the VWA’s submissions which sought to address a different point as to timing.  The VWA appeared to contend that section 104(1) applies to persons who at an earlier time met the definition of ‘worker’ but no longer did so.
121	The Department responded that section 104(1) did not need to use the word ‘current’ as section 104 already used language that required there to be a worker during the period the obligation was said to exist (that is, from the date of the known incapacity of the worker).
122	The Department submitted that section 104(1) does not say, for example, the employer must plan the return to work of a person ‘who is, or was’, a worker.  Rather, the language used in section 104(1) is that the employer must plan the return to work of a worker from a certain date.  The Department concluded that, if the teacher was not a worker on a given date, there can be no obligation to make plans in respect of them.
Harmonious interpretation with the WIRC Act compensation provisions
123	The Department contended that its construction of section 104 gave a harmonious interpretation to the term ‘worker’ in not only that section, but throughout the WIRC Act. 
124	The difference between the VWA and the Department’s contentions was said to be that the Department recognised the different times at which the different sections require there to be a worker.
125	It referred again to its submission that, in respect of compensation entitlements, the injured person need only be a worker at the time of suffering injury (or at the time of the events that later give rise to injury).  That was said to be because under section 39(1) of the WIRC Act, a worker is entitled to compensation if ‘there is caused to a worker an injury arising out of or in the course of any employment’.  The first limb was said to involve a causal connection and the second was said to involve a temporal connection.
126	By contrast, the Department contended that, for the return to work obligations, it is not sufficient that the person was (at the earlier time of injury) a worker.  Sections 103 and 104 require action by an employer to plan the return to work, and to provide employment.  The question whether there is a person satisfying the definition of worker was said to need to be judged at the time of the obligation to conduct planning or to provide employment.
127	The Department contended there was no conflict created by its reading of the provisions because, while a person ceases to be a worker if their employment ends, their entitlement to compensation does not end simply because they are no longer a worker: that entitlement depends on establishing the person was a worker at the time of suffering injury, or the events causing injury.
128	The Department concluded that the different sections of the WIRC Act involve considering whether a person satisfies the same definition of ‘worker’, but at different points in time.
The section 104(1) reasonableness test 
129	The Department contended that the fact the reasonableness test may be available to it does not bear on the correct interpretation of the term ‘worker’, as the existence of such a person must be established in order for the obligation to plan for return to work to arise.  Only if there was a worker was it open to consider whether reasonable steps were to be taken or had been taken.  It further contended that the reasonableness test defines the content of the obligation, not whether the obligation applies to a particular injured person.
130	The Department contended that it ought not be subject to an obligation that, on the proper construction of the section, does not arise at all.  Section 104(1), read harmoniously with section 103(1), was said not to apply to a person who is no longer a worker, and in respect of whom the Department has no contractual obligation to provide with employment.
Discussion and findings 
131	I have carefully read and considered the parties’ written submissions.  Having done so, I find myself in agreement with the Department and adopt its submissions.
132	In particular, I accept its submissions as to the meaning of ‘worker’ in sections 103 and 104 and the contention that the meaning does not require alteration elsewhere, including in respect of the WIRC Act’s compensation provisions.  
133	I add the following.  
134	The terms ‘worker’ and ‘employer’ are used throughout the WIRC Act.  As indicated by the definitions of those terms, the statutory obligations on employers are intended to apply across the range of employment arrangements, formal and informal.  
135	On the question of the entitlement to compensation, I agree with the Department’s submissions that the source of the entitlement is the fact that the person was a worker at the time of the injury and that entitlement continues even after the individual is no longer employed.  
136	A related example comes from the definition of ‘dependant’ which includes a person who, at the time of the death of a worker, was wholly, mainly or partly dependant on the earnings of the worker.  Any entitlement a dependant may have arises not because of their reliance on a former worker at that time, but rather because the relevant person was a worker at the critical point in time, that is when they died.
137	In neither case does the term ‘worker’ require that the concept of a former worker be included in its meaning because the express terms of the provisions themselves address the time related context.
138	I agree with the Department’s submissions that neither the definition of the term ‘employment obligation period’ or the reasons for decision in Moore demonstrated that a teacher who was employed on a contract that came to an end remains a ‘worker’ after that time.  
139	I add that there was neither evidence nor submissions as to what ‘activity’ these teachers were said to be engaged in which could have fallen within Moore.  While the VWA referred to the Department being a large employer, there was no evidence the two teachers sought employment or were suitable for employment or had any other dealings with the Department which led to the identification of any relationship which fell within the word ‘otherwise’ in the definition of ‘worker’.
140	As a result, I reject the proposition that the Department’s interpretation of the term is inconsistent with the entitlement to the compensation individuals may claim after they cease working for the particular employer.  No other express examples of inconsistency were provided by the VWA and so I can take the point no further.  
141	I also reject the VWA’s contention that the Department’s interpretation is inconsistent with the purposes of the WIRC Act and the objects of Part 4 which I set out earlier.  They include that ‘workers are responsible for participating in the return to work process consistently with their capacity for work’.  I cannot see how a worker with no employment relationship of any kind, formal or informal, can participate in such a process.  Equally, I cannot understand how an employer could meet its obligations under section 104(3) of the WIRC Act to obtain relevant information from a worker it has no relationship with, not to mention consider what workplace support, aids or modifications might be reasonable to allow a return to work which does not exist for that person.  The extract from the explanatory memorandum set out earlier talks about the obligations employers owe ‘their workers’ which, to my mind, pointed to an intention that the obligations arose in the context of a continuing relationship.
142	It follows that I accept the Department’s contention that, in order to arise in a particular case, there must be a worker who is to return to work with an employer.  I accept the proposition that sections 103 and 104 must be read as working together with the planning referred to in section 104 being necessary to ensure that the obligation in section 103 for the employer to provide the injured worker with employment can be achieved.
143	There is nothing express or implied in those provisions or elsewhere in Part 4 which requires an employer to plan for return to work or provide employment to a former worker.  
144	I accept the Department’s submissions that the VWA’s reading would compel the Department to invest time and resources into planning for something which will not happen.  In the circumstances of the two teachers in this case, the future work will not be undertaken not because of the injuries they suffered or their capacity to return to work after late January 2020, but because there was no longer an employment relationship which fell withing the meaning of ‘worker’.  
145	An alternative consequence of the VWA’s interpretation would be that the Department would have been compelled to re-employ the two teachers on and from 28 January 2020.  I accept the Department’s submission that neither section 103 nor any other provision says that.  
146	I accept the proposition that the reasonableness test in section 104 does not assist in the interpretation task but rather provides a potential defence or means of assessing compliance.  There was no material before me which showed that test had room to operate in this case.  
147	I set out earlier section 97 which contains the purposes of the return to work provisions, all of which are contained in Part 4.  On a plain reading, section 97 indicates an intention that there will be a resumption of the worker/employer relationship, whether with modifications or not.  The provision presumes there is a current employer who is responsible for a current worker successfully returning to work, being a participant in the process and being represented, assisted and supported to return.  Consistent with that, paragraph (e) refers to occupational rehabilitation to ensure workers return early and in a sustainable manner.
148	I agree with the Department that a reading of section 104 which required planning for an event which cannot happen would be absurd.
149	In summary, I accept the Department’ characterisation of the correct steps in the analysis, namely:
•	Section 104(1) requires an employer to ‘plan the return to work of a worker’ from the date of actual or constructive knowledge of the worker’s incapacity for work;
•	For section 104(1) to apply in respect of any given injured person, the person must be a worker when the planning is required to be carried out;
•	Paragraph (a) of the definition of worker requires there to be a person who either:
o	Performs work; or 
o	agrees to perform work; 
at the employer’s direction.
•	In this case, the teachers agreed to and did perform work under their contracts up until 27 January 2020;
•	After that date, they were not people who performed or agreed to perform work for the Department, either under a contract of employment or (in any way) otherwise; and 
•	Accordingly, neither of the teachers met the definition of worker on the date the Port Phillip and Hume Notices were issued, and so section 104(1) could not impose any obligation in respect of them.
150	Borrowing the language used by the High Court in Alcan (NT) Alumina Pty Ltd, I am satisfied the purpose of section 104 and the mischief to which it is directed is ensuring injured workers may return to work with their employer in either their previous role or another suitable role.  That is to give effect to the section 10(a) object of making provision for the effective occupational rehabilitation of injured workers and their early return to work and the related section 97(a) object that employers and workers co-operate to ensure that workers successfully return to work.  The Department’s construction of ‘worker’ and how it would apply in section 104 is consistent with that purpose. 
151	The IRU Decisions will be set aside and substituted with a decision that the Department was not in contravention of section 104(1) of the WIRC Act.

A Dea 
Senior Member