[2015] FWC 158
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.739 - Application to deal with a dispute

Transport Workers' Union of Australia
v
Cement Australia Pty Ltd
(C2014/5969)

COMMISSIONER SPENCER

BRISBANE, 20 APRIL 2015

Dispute regarding whether it is lawful and reasonable to direct part of the workforce to attend a compulsory health assessment to address injury statistics 

[1] This Decision relates to an application made by the Transport Workers’ Union of Australia (the Union/Applicant) pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act). The dispute relates to the Cement Australia Transport Workers (South East Queensland) Enterprise Agreement 2014 (SEQ Agreement) and the Cement Australia Pty Limited Transport Employees (Central & North Queensland) Enterprise Agreement 2014 (C&NQ Agreement), (the Agreements), and the requirement by Cement Australia Pty Ltd (the Respondent/Employer), for employees to participate in a Physical Risk Review Program.

[2] A conciliation conference was held to resolve the dispute but the matter was not able to be resolved between the parties and both parties sought the arbitration of the matter pursuant to the disputes procedure.

[3] Directions, by consent, were set for the filing of an agreed question for Arbitration and for each party to file submissions and evidence in the matter. Various extensions to the Directions were granted and a related Order Requiring the Production of Documents was granted.

[4] The parties agreed the question for Arbitration as follows:

[5] The matter was heard over three days in Brisbane. The Applicant was represented by Mr Robert Reed of counsel, instructed by Ms Rachel Smith of Maurice Blackburn Lawyers. The Respondent was represented by Mr Michael Coonan, Partner, of Herbert Smith Freehills and instructed by Ms Kristin Gamble of Herbert Smith Freehils.

[6] After the final hearing, the Respondent provided to the Commission an amended version of the speaking notes that were relied upon and tendered by the Respondent, in the hearing. The Applicant objected to the revised document on the basis that, by providing the amended notes, the Respondent was making further submissions after the hearing of the matter had closed. The Respondent argued that it had reserved the right upon tendering the document at the hearing to make any corrections after. The Respondent submitted that the amended notes did not contain any material not already before the Commission. The amendments included references to transcript and expanded passages from the transcript, as were raised at the hearing, along with spelling and grammatical corrections.

[7] The Respondent was provided with an opportunity to provide any further comment on the passage or submissions. However, the Applicant relied on the material submitted. I do not consider the final version of the notes introduces new material. While they contain amended references to transcript passages, the transcript is already before this Commission. The Respondent has also referred to extracts of such. The Applicant did not seek to file any material in response to the amended notes. I do not consider the corrected notes significantly depart from the Respondent’s final submissions and accordingly, the document has been accepted.

[8] While not all of the submissions and evidence in this matter are referred to in this Decision, all of such have been taken into account.

Relevant legislation and Agreement clauses

[9] The dispute was notified to the Commission pursuant to s.739 of the Act which provides so far as is relevant to this matter:

[10] Section 738 of the Act relevantly provides:

[11] The relevant procedure for dealing with disputes in the SEQ Agreement is clause 7 which provides, in part, as follows:

[12] The relevant procedure for dealing with disputes in the C&NQ Agreement is clause 8 and an undertaking in relation to this clause applies. Clause 8 contains a similar step to the above. The undertaking in relation to this clause provides that the Employer will not refuse to agree to the matter being referred to the Fair Work Commission for assistance.

[13] Clause 32 of the C&NQ Agreement, relating to Workplace Health and Safety, provides as follows:

[14] Clause 34 of the SEQ Agreement provides as follows:

[15] The parties agreed that Commission has jurisdiction to deal with the dispute by arbitration; the disputes procedure allows for the arbitration of this dispute being a matter under this Agreement, as per the operation of cl.7(d) in connection with cl.32. The parties agree the disputes procedure has been complied with.

Background

[16] The dispute relates to the Physical Risk Review Program (the Risk Review Program) introduced by the Respondent. The overall direction by the Respondent, is that employees are to participate in this Risk Review Program, which includes a compulsory assessment by a health professional. The Respondent submitted that participation in the Risk Review Program is a lawful and reasonable direction. The Applicant submitted that the direction for all employees to participate in the Risk Review Program, is not a lawful and reasonable instruction.

The Risk Review Program

[17] The Applicant submitted that the process of the Risk Review Program requires all employees to participate in a compulsory assessment by a health professional, carried out by an external provider, the firm Kinnect (the assessment).

[18] The Respondent submitted that the Risk Review Program was developed after incidents resulting in lost time that were reported by employees and that the Risk Review Program relates directly to claims that the injury arose out of or in the course of the employment1.

[19] The Respondent outlined the following in relation to the development of the Risk Review Program:

[20] The Applicant referred to the Physical Risk Review Information Sheet 3 (the Information Sheet). It states that the assessment will be undertaken by a Physiotherapist, Occupational Therapist or Exercise Physiologist and will take approximately 45 minutes, during which time the health professional will undertake a range of assessments, as follows:

Blood Pressure

Measures to ensure employee is safe to participate in assessment

Resting Heart Rate

Height and Weight

These factors are considered in overall risk rating

Waist and Neck Circumference

Range of Motion Testing

Muscle and Joint Function: assessors will measure the movement in your joints (e.g getting you to lift your arms above your head) and also the strength in your joints (e.g getting you to hold various positions to determine if any underlying weakness exists)

Positional Tolerance Testing

(Squatting, Kneeling, Balance)

Abdominal Strength/ Stability

Lower Back Flexibility

[21] Following the assessment, the health professional will make an assessment as to whether the employee is at a “high”, “medium” or “low” risk of injury while performing their role.

[22] The Information Sheet states that the assessment of risk and the reason for the assessment will be conveyed by the external health professional to the Group Health and Workers Compensation Manager (the Group Health Manager) via the Physical Risk Review Summary (the Review Summary) document attached to the Information Sheet. The health professional is also asked to identify any other programs he or she thinks the employee will benefit from, including a “Quit Smoking Program”, “12 Week Body Transformation Program” and “Lifestyle Coaching”.

[23] The Information Sheet states that the Review Summary will then be stored on the employee’s “health file” at the workplace.

[24] A flowchart on the Information Sheet indicated that after the Review Summary is completed, the Group Health Manager of the Respondent will then discuss and develop a “health action plan” with the employee. If the employee’s risk assessment is “high”, they will be directed to attend an education session with a “relevant health professional” regarding strategies to reduce the risk of injury, with the risk of disciplinary action if they do not attend.

[25] The Applicant submitted that the Risk Review Program requires all employees to:

[26] The Applicant submitted that at least some of that health and medical information will be stored on the employee’s health file and that while the Risk Review Program is not a comprehensive medical assessment, it is essentially a direction to participate in a medical screening test, through which the Respondent will obtain, and maintain records of, personal medical and health information of its employees.

[27] The Respondent submitted that the three directions given by Cement Australia as part of the Risk Review Program are as follows:

[28] The Respondent submitted, in relation to the available programs to reduce risk, that employees:

Relevant case authority

[29] The Applicant submitted that it is widely accepted that there is a common law obligation upon employees to obey the lawful and reasonable directions of their employers 6 and referred to the test enunciated by Dixon J in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday7 (Darling Island Stevedoring) at 621 – 622:

[30] The Applicant submitted that it is clear that, while the Courts have accepted that employees must follow the lawful and reasonable instructions of their employer, there is an important limit on that obligation, which is informed by many factors, including important considerations of employee’s civil rights.

[31] The Respondent also referred to the established principle that employees are subject to an implied contractual duty to comply with the lawful and reasonable directions of their employer, as set out above in Darling Island Stevedoring.8

[32] It was submitted by the Respondent that this requires an assessment of both whether the direction is lawful, and whether it is reasonable.9 The Respondent submitted that, in line with case authority, a direction will be lawful where it falls within the scope of the contract of employment (or, where the direction forms part of an employer policy, where it is rationally related to the business of the employer), and is not otherwise unlawful,10 while the question of whether a direction is reasonable is assessed objectively, taking into account the nature and circumstances of the employment.11

[33] Both parties relied on the cases of Thompson v IGT (Australia) Pty Ltd 12 and Blackadder v Ramsey Butchering Services Pty Ltd13 as leading authorities in relation to medical information.

[34] In Blackadder v Ramsey Butchering Services Pty Ltd  14 (Blackadder) Madgwick J said, at 476:

[35] The Applicant noted in their submissions that Madgwick J’s Decision in Blackadder was upheld on appeal to the High Court. 15

[36] The Respondent also relied on Blackadder, submitting that the case confirmed that, given the strict obligations imposed on employers to ensure the safety and wellbeing of their employees, it is:

[37] Both parties, in considering whether the direction is lawful and reasonable, relied on the case of Thompson, which cited with approval the findings in Blackadder and Darling. In Thompson, Goldberg J stated at paragraphs 48-52:

[38] The Applicant submitted that there is no case authority on the question of the lawfulness and reasonableness of health screening tests in the workplace. However, the Applicant submitted that the Courts have developed a body of authority on the question of the circumstances in which an employer directing an employee to undergo a medical assessment will constitute a lawful and reasonable direction and that those authorities are directly relevant to these circumstances.

[39] The Applicant submitted that the principles relating to an employer’s right to direct an employee to undergo a medical assessment or provide personal medical information to the employer could be summarised as follows:

[40] The Respondent submitted that a direction to an employee to attend a medical examination will always be lawful and reasonable if:

[41] The Respondent submitted that this applies even where a comprehensive statutory regime already exists in relation to medical examinations required of employees and referred to the case of Grant v BHP Coal Pty Ltd16, where the Full Bench of Commission stated:

[42] Therefore, it was submitted by the Respondent, a direction that employees attend a further or different functional assessment is lawful and reasonable and the direction does not need to be founded on a ‘positive rule of law or an express statutory provision’.

[43] A range of factors have been considered relevant to the Respondent’s direction, including:

Summary of submissions and consideration

Whether the medical information is reasonably necessary and whether there is a genuine indication of need for it.

[44] The Applicant submitted that the Respondent’s direction for all employees to participate in the Risk Review Program, is not a lawful and reasonable instruction, because it is not reasonably necessary, and there is no genuine indication of a need for it, in circumstances where:

[45] The Applicant submitted that the Respondent is accredited under the National Heavy Vehicle Accreditation Scheme. Section 462(1) of the HVNL Act requires that a participant in the scheme must comply with the National Heavy Vehicle Accreditation Scheme: Standards and Business Rules (the Standards and Business Rules).

[46] The Standards and Business Rules, it was submitted, include a standard which requires the development of systems to ensure that drivers are in a fit state for work and can perform work duties safely 17. To meet this standard, participants must demonstrate that its drivers are certified fit to drive a heavy vehicle by a medical practitioner according to “Assessing Fitness to Drive” by Austroads.

[47] It was submitted by the Applicant that the drivers that are the subject of this proceeding are already required to undergo the medical assessment under that statutory scheme and receive a medical certificate certifying their fitness to perform their job at least once every three years (for those employees aged 49 or under) and once every year (for those employees aged 50 or over).

[48] The Applicant provided, as evidence, documents annexed to Mr Mick Screen’s (a tanker operator employed by the Respondent) statement at Annexure MS-3 to Annexure MS-5, to demonstrate that the medical assessment undertaken is thorough and comprehensive. The Applicant submitted that, in undertaking the assessment, the medical practitioner must complete the Private and Commercial Vehicle Driver’s Health Assessment Form, a copy of which is annexed to Mr Screen’s statement at Annexure MS-6.

[49] It was submitted that the form requires the medical practitioner to conduct tests of the following: the Cardiovascular system (blood pressure, pulse rate, heart sounds and peripheral pulses); the Chest/Lungs; the Abdomen (Liver); Neurological/Locomotor (Cervical spine rotation, Back movement, Upper limbs (including joint movements), Lower limbs (including joint movements), Reflexes, and Romberg’s sign (balance)); Vision; Hearing; Urinalysis and Neuropsychological assessment.

[50] The Applicant submitted that it was important that this assessment can be conducted by the employee’s personal General Practitioner if they chose. The Applicant emphasised that the Health Assessment form is not provided to the employer, and that the medical practitioner completes a separate medical certificate which merely identifies whether, following the comprehensive assessment, the employee is fit for his or her duties. A copy of that certificate is annexed to Mr Screen’s statement at Annexure MS-7.

[51] The Applicant submitted that this medical assessment is comprehensive and undertaken by a medical practitioner (rather than a health professional). The medical assessment will more readily identify any health and safety risks that may impact upon the employee’s capacity to do their job safely.

[52] It was submitted that, in circumstances where there is a comprehensive scheme in place to assess employee health, and to identify potential risks, it is not reasonable for the Respondent to then direct employees to participate in a further assessment or screening process.

[53] The Applicant submitted that the legislature has considered and determined the appropriate course for ensuring that drivers of heavy vehicles can perform their jobs safely, namely through the HVNL Act, and that this directly impacts upon the assessment of the reasonableness of the Respondent’s direction for employee’s to participate in a further assessment or screening process.

[54] The TWU witnesses provided examples of other mechanisms in place which assist in identifying and dealing with health and safety risks in the workplace, including voluntary gym membership, voluntary health programs such as a quit smoking program, the process through which employee’s notify management of any health and safety risks and employee’s managing their own health and risk factors.

[55] Therefore, as a consequence of the HVNL Medical Assessment program described above, and the alternative mechanisms in place, the Applicant submitted that it cannot be established that the Risk Review Program is reasonably necessary, or that there is a genuine indication of a need for it.

[56] The Respondent submitted that since 2012, the frequency of injuries being reported by members of the Distribution Division are markedly higher than the average injury rate across the rest of the business and referred to Ms Saba’s evidence that this trend has continued in the years since 2012.18

[57] A taskforce was established in 2012 to review the operations of the Distribution Division, including review of the equipment used, tasks performed, types and frequency of injuries reported, general work environments and related hazards. The Respondent submitted that the review indicated that the injuries being reported were disproportionately occurring while drivers were out of the cabin of their vehicles, for example, Ms Saba detailed that the incidents occurred while they were getting into or out of the cabin, and while they were performing aspects of their day-to-day duties other than driving, such as lifting hoses, and walking around sites. Ms Saba referred to these as musculoskeletal injuries which were being reported without any identifiable driving based trigger.19

[58] Subsequently, the Respondent introduced a number of other measures aimed at reducing the risk of slips, trips and falls when drivers were working on or around their vehicles20 and a slight drop in injuries due to slips, trips and working from heights were reported in the Distribution Division. However, the Respondent submitted that risks of injury and the actual injury rate remained significantly high and in 2014 were trending upwards.

[59] It was submitted by the Respondent that a further review revealed a significant portion of the injuries, were due to musculoskeletal issues. The evidence of Ms Saba, Group Health Manager, indicated that a number of distribution employees were also filing reports that indicated that their injuries were connected to pre-existing soft tissue injuries or degenerative musculoskeletal conditions.21

[60] The Respondent submitted that the injuries could not be addressed by the Basic Fatigue Medicals (BFM), which are mandatory tests of various aspects of health connected to the employee’s ability to safely drive a heavy vehicle for extended periods on specified shift rosters.

[61] It was submitted that BFMs do not sufficiently assess employees’ ability to perform the non-driving requirements of their role and, in particular, do not provide an adequate measure, to alert Cement Australia, of any level of risk to soft tissue or musculoskeletal issues.22

[62] The Respondent detailed that it decided to introduce mandatory Functional Capacity Evaluations (FCEs) for distribution employees in 2013, in order to bring the periodic testing of distribution employees in line with the rest of the business, and to proactively address Cement Australia’s concerns regarding musculoskeletal injury. The Respondent submitted that the TWU objected to the FCE program being introduced on a mandatory basis, and that their key concern was that there was a possibility that employees could lose their jobs, if they were deemed to be permanently unfit to perform the inherent requirements of their role.

[63] Cement Australia agreed to trial FCEs for 12 months as a voluntary program.23 It was submitted that the trial was ineffective as a limited number of employees participated in the program voluntarily and those involved reported positively24. It was submitted that the rate of injury within the distribution division remained well above Cement Australia’s average injury rate, and the voluntary program involvement was not reducing the risk to an acceptable level.

[64] It was submitted by the Respondent that, while Cement Australia has a broad range of other health and safety programs and initiatives in place, it has not been successful in managing the risk of musculoskeletal injury, and therefore there is a clear need for the Risk Review Program25.

Whether the medical information is directed to the inherent requirements of the job, relating to the subject matter of the employment and the performance of the work, having regard to the level of risk of the work environment.

[65] The Applicant submitted that the Risk Review Program is not directed to the inherent requirements of the jobs concerned, as assessments that form part of the Risk Review Program do not appear to be directed to the inherent requirements of the job of a truck driver. Further, it was submitted by the Applicant, that the Risk Review Program would not provide a useful assessment of risk of musculoskeletal injury in the tested workers, and therefore would be ineffective in achieving its stated purpose.

[66] The Applicant also submitted that the program does not deal with identified safety concerns or with existing or reasonably apprehended injuries.

[67] The Applicant submitted that, on the material supplied by Kinnect, it is not apparent that the testing undertaken by the Kinnect health professional could produce a valid assessment of risk of future musculoskeletal injury, in a worker without specific injury who was attending for work. The Applicant referred to the evidence of Dr John Schneider, Occupational Physician, as follows:

[68] The Applicant submitted that it was not possible to identify early warning signs of muscle joint degeneration by conducting the test.

[69] The Respondent was critical of a number of the conclusions drawn by Dr Schneider based on his review of the intent of the program and his review of associated academic literature via the cross-examination of Dr Schneider. The Respondent introduced a number of other journal articles, which they argued demonstrated the link between the Risk Review Program and the aim of reduction in musculoskeletal injuries.

[70] It was submitted by the Respondent that the seriousness of the risk and the proven rate of injury relating to the performance of the work is grave enough to warrant the imposition of further measures to address musculoskeletal injury.

[71] Ms Gianina Saba, Group Health Manager, provided evidence on the nature of the work and the environment in which it is conducted. Ms Saba stated that the work includes transporting bulk cement products, including hydrated lime, which is a hazardous substance, and outlined the occupational health risks faced by truck drivers as identified by Cement Australia as follows 27:

[72] Ms Saba outlined the type of functions performed by Cement Australia’s truck drivers as follows 28:

[73] Ms Saba then outlined the type of functions performed by Cement Australia’s fleet maintenance workers as follows 29:

[74] The Respondent submitted that employees drive large, heavy vehicles, involving tankers, B-doubles, and road trains that haul, in addition to cement: cement products; fly ash; slag; and high grade lime, and in some states, fuels and solvents.

[75] As Ms Saba stated, employees are required to carry out loading and unloading and other duties outside the cabin, both at Cement Australia and client’s premises and in doing so, it was submitted by the Respondent, they are at high risk of injury from bending, twisting, lifting, climbing, reaching, pushing as they unload hazardous materials that can injure persons and the environment.

[76] The Respondent submitted that this occurs, on the Applicant’s own evidence, in a difficult work environment and referred to the evidence of Mr Michael Screen. Mr Screen set out in his statement, common safety issues as follows:

[77] The Respondent submitted that the Risk Review Program had been developed to specifically target identified high levels of risk and injury identified within the Distribution Division, namely musculoskeletal issues. It was submitted that the Risk Review Program was assessed as being the most appropriate way of addressing the observed risk of musculoskeletal injury in the distribution division by Ms Saba, who, it was submitted, is a qualified occupational therapist with extensive experience in the field.

[78] The Respondent submitted that the Program is consistent with the Mission of the business, the sustainable practices of the business, the Health and Safety Policy of the business and the Health and Safety Management System.

[79] The Cement Australia’s Health Assessment Procedure31 provides that:

[80] It was submitted that the Risk Review Program, which would monitor and address this identified health and safety issue, is consistent with the Health Assessment Procedure.

[81] The Respondent referred to the employer’s duty of care under the common law of employment, which included the duty to prevent accidents.32

[82] It was submitted by the Respondent that the Risk Review Program is directly related to the subject matter of employment and the performance of the work and is a tool for the employer to demonstrate its reasonable care for its drivers and maintainers by informing them of the actual level of risk they face in doing their work and on any reasonable grounds might assist in reducing the danger of injury.

Whether the Risk Review Program is proposed to occur on reasonable terms, breaches any law or is supported by legislative duties

[83] The Applicant submitted that it was not lawful or reasonable instruction because it is not being proposed to occur on reasonable terms, in particular:

[84] It was submitted that it is entirely unknown what criteria the health professional conducting the Risk Review will use to determine whether any particular employee is at a “high”, “medium” or “low” level of risk of injury. Further, it was also submitted that it is also unclear how the Respondent will ensure consistency in the assessment in the absence of such criteria.

[85] It was submitted by the Applicant that, despite the Respondent’s assertion on page 2 of the Information Sheet that “no medical information is included” on the Review Summary document that is provided by the health practitioner to the Respondent, the Review Summary has a space where the health professional is expressly requested to provide reasons as to why the employee has been assessed at a particular risk level. It was submitted that providing such reasons may involve the provision of some personal medical information to the employer.

[86] Further, it was submitted, page 2 of the Review Summary indicates that “health findings” will be made in respect of the employee, and that health professional will discuss “lifestyle goals” with the employee. The Applicant submitted that the Review Summary asks the health professional to indicate whether the employee would benefit from other health programs, such as a “Quit Smoking” program. In order for the health professional to make such “health findings” and recommendations, it was submitted, the assessment will necessarily go further than the manner in which the Respondent has described it. The Applicant submitted, by way of example, that there is no suggestion that the Risk Review Program requires the health professional to ask the employee whether they are a smoker in the Information Sheet, yet the health professional is then invited to indicate whether or not the employee should undertake a “Quit Smoking” program.

[87] The Information Sheet details that optional assessments may be selected by the employee during their assessment. The optional assessments include: blood glucose; diabetes education; blood cholesterol; cardiac risk ratio; health discussion: alcohol consumption and physical activity. These are not a requirement of the assessment, and are provided, the Information Sheet states, for the employees’ personal information and education. The Information Sheet states that Cement Australia has directed Kinnect that no information relating to an optional assessment is to be provided to the Respondent.

[88] However, if these optional assessments are selected by an employee, and, as a result of the assessment, the health professional identifies that an employee has a high risk of injury or incapacity; it is uncertain whether the reasons for the Risk that may be recorded on the summary sheet, may include information related to these optional assessments. For example, if an employee indicates a high level of alcohol consumption, whether this will be recorded as a basis for categorisation as high risk, and by default, expose private medical information derived from the optional assessments. The Review Summary that is provided to the employer provides a category of risk that does not definitively that the category of risk is linked to the potential for musculoskeletal injury.

[89] The Applicant submitted that the Respondent has repeatedly advised employees that it is not its intention, in implementing the Risk Review Program, to dismiss employees who receive a “high” risk rating, and that the employee only needs to attend a single further (mandatory) education session to comply with the direction. However, the Applicant submitted that there are indications that this may not be the practice in reality and provided the following examples:

[90] The Respondent submitted that the Applicant has not identified a law that is being breached by the direction to employees to participate in the Risk Review Program.

[91] The Respondent submitted that the implementation of the Risk Review Program is necessary to ensure compliance with obligations under workplace health and safety legislation; to provide and maintain a safe working environment that is safe and without risk to health (so far as is reasonably practicable).33 It was submitted that the Risk Review Program operates as a means of reducing or eliminating the risk of musculoskeletal injury within the distribution division.

[92] The Respondent referred to general duties of care at common law and under statutes as well as specific obligations under Victorian workplace health and safety legislation to monitor the health of employees and, under New South Wales and Queensland legislation, to monitor workers’ health for the purpose of preventing illness or injury arising from the conduct of the business.34 It was submitted that the Risk Review Program is an important component of the Respondent’s broader approach to complying with their obligations and that the Risk Review Program assisted the Respondent to meet its legislative obligations to determine the level of risk and then address the risk in the most reasonably practicable way.

[93] In terms of reasonableness, the detail for the proposed attendance differed between the flow chart as included in Exhibit 7, and the updated information sheet dated 2 September 2014. Ms Saba gave the following evidence regarding the flow chart and associated process:

[94] Under cross-examination, the Group Health Manager was not able to provide the qualifications of the health professional that was to conduct the program nationally 36:

Whether the provision of the medical information respects an employee’s privacy.

[95] It was submitted by the Applicant that the Risk Review Program it is an intrusion into employee privacy that is not necessary. The Applicant submitted that, as described above, medical and health information of employees will be gathered through the Risk Review Program and at least some of that medical and health information will be conveyed to, and stored by, the Respondent. The Applicant contrasted this to the HVNL Assessments undergone by the employee’s, in which very limited information about the assessment results is provided to the employer, given simply a certificate is conveyed.

[96] As referred to in the principles emerging from the case authority above, the Courts have found that employee privacy is an important consideration in determining the reasonableness of an employer’s direction. The Applicant submitted that employee privacy should only be intruded upon, where it is necessary to do so and that, where there is an adequate mechanism in place to assess employee’s health and fitness to perform their jobs, it is not necessary to intrude in employee privacy, in the way proposed, in the Risk Review Program.

[97] The Applicant also noted in their submissions that there are provisions of the Agreements that provide for the implementation of policies relating to workplace health and safety. There is clearly disparity between the parties as to whether this general statement provides a broad right for the employer to direct the workforce to participate in the Risk Review Program which was not specified in the Agreements or foreshadowed at that time. If the employer expected participation in a specific program of this nature, it is expected that the parties would have reached agreement on it, and it would have been included in this provision as with other specific workplace health and safety requirements documented in the provision, such as the wearing of personal protective equipment and the observance of road rules for the driving of heavy vehicles.

[98] In any event, the specific question that is the question the parties have specifically sought for Arbitration is not whether this Risk Review Program fall within clauses 32 and 34, but whether it is a reasonable and lawful direction.

[99] The Respondent referred to the interplay between employee privacy and an employer’s obligation to protect the safety of its workers and others as discussed in Briggs v AWH37, in which the Full Bench of the Fair Work Commission cited with approval the following passage from the 1998 decision of the Western Australian Industrial Relations Commission in BHP Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards Sawmills and Woodworkers Union of Australia, Western Australian Branch:

[100] The Respondent submitted that the above passage applies in the current circumstances.

[101] It was submitted that Risk Review Program assessments are only conducted once every 2 years and take 45 minutes to complete. The Respondent emphasised that they are conducted during work hours and at Cement Australia’s expense, in private rooms by fully qualified allied health practitioners, who will provide employees with useful information about their health and ways that their health condition can be improved, to reduce their risk of injury at work.

[102] The Respondent submitted that only very basic information is received by Cement Australia following the assessment, in the form of the Review Summary, which can only be viewed by two senior Cement Australia employees (Group Health Manager and General Manager Human Resources) and is dealt with in a confidential manner.38 The Employer explains that the Review Summary would be kept on the employees personnel file and it is questionable whether this is appropriate custody of this document, which may contain private medical information, as discussed above.

[103] It was submitted that the minor intrusion into an employee’s privacy cannot outweigh the importance of the Risk Review Program for Cement Australia and for its employees as part of its overall approach to reducing the risk of injury at the workplace, in accordance with its workplace health and safety obligations.

[104] Ms Gianina Saba, Group Health Manager of the Respondent, provided the following information in cross-examination to the storage and access of the medical information:

[105] The following extract from Ms Saba’s cross examination demonstrates that the custody of the information remains vulnerable:

[106] Assurances were provided that Kinnect had a privacy policy, however, it was confirmed that, by virtue of the service agreement between the Respondent and Kinnect, the Respondent would own any information arising out of the assessments. Ms Saba gave the following evidence:

Conclusion

[107] The Respondent submitted in conclusion that the direction that employees participate in the Physical Risk Review Program is both lawful and reasonable. They submitted that they have consulted with employees and the TWU in good faith and accommodated the feedback provided by all parties as far as possible, while still maintaining the value of the Risk Review Program and its ability to address the work health and safety concerns, which caused its introduction. The Applicant maintained that the direction to participate in the Risk Review Program was not lawful and reasonable under the Agreements.

[108] The parties identified key principles arising out of the case authorities. As set out, these issues have been summarised for consideration of whether the direction to participate in the Risk Review Program is lawful and reasonable, as follows:

[109] The direction to participate in the Risk Review Program is a direction made to a group of employees with the general premise of undertaking medical assessments and capturing the results of a number of tests, from which recommendations for voluntary participation in health and lifestyle programs are made.

[110]  The Respondent stated that the seriousness of the risk and proven rate of injury is great enough to warrant the imposition of further measures to address musculoskeletal injury.

[111] Two attachments to Ms Saba’s statement were provided in table form at GMS12 and GMS13, which stated the distribution of injuries for 2013 being 13 for that year, and 14 in 2014 for unexplained musculoskeletal injuries. No data was provided indicating the time off for or severity of these injuries. Ms Saba submitted that these injury figures continued to rise from 2012, but only a basic comparison was provided, not a specific comparison in relation to musculoskeletal injury rates for the Distribution Division, in comparison to the overall workforce of the company. Further, there was no comparison between these figures and for work of this nature generally in the industry for the occurrence of like injuries.

[112]  The conclusions drawn were based on first principle daily observations by the management of employee health, that the tanker operators had the highest rates of obesity and excess soft tissue injuries. The Cement Australia supply chain task force considered a range of responses that were not punitive to drivers but holistic in their approach. 42 It is understood that the program, as set out before the Commission, is a compromise to the original functional capacity program they proposed to initially undertake.

[113] The manner in which the program is to be conducted, and the custody of the medical information arising must be taken into account in assessing the reasonableness of the direction to attend such a program.

[114] Whilst there are issues associated with the discharge of the Risk Review Program (as set out) that may be able to be remedied, there are remaining issues associated with whether the injury information, upon which the Program is founded, actually gives rise to the necessity for the program to be undertaken on a group basis. Further to this is the issue of the efficacy of the program, in achieving the stated aim of reducing musculoskeletal injury at the workplace. For example, if it is that the driver is categorised as high risk, as a result of attending the Risk Review Program assessment, after a further mandatory meeting, only recommendations for health programs will be provided. No further monitoring of attendance or participation in such health programs will be permissible by the employer. Accordingly, in practice, it is questionable how this will reduce the risk of musculoskeletal injury. It also must be considered that the implementation of this Risk Review Program is an additional health test to the statutory scheme of testing for drivers.

[115] In further considering whether the direction was reasonable and lawful, the justification of the Program was considered. Dr Schneider sought to undermine the direction to attend the Risk Review Program on the basis that there was no established link between the program and the reduction in musculoskeletal injuries to be found in the summaries of the academic articles he had selected.

[116] Mr Coonan, in his cross-examination of Dr Schneider, challenged a number of Dr Schneider’s criticisms of the summaries of the articles he had selected. However, in similar terms, the academic articles referred to by the Respondent failed to demonstrate a concluded link between the nature of a program such as the Risk Review Program and a reduction in musculoskeletal injuries.

[117] Mr Kevin Savory, the General Manager of Sales, Marketing and Distribution of Cement Australia, explained the position of the Respondent in implementing the program as follows:

[118] Whilst the attitude of the Employer is acknowledged, the question for Arbitration specifically requires a determination as to whether the direction for the compulsory health assessment of a number of employees, based on general concerns across the group of employees, is a reasonable and lawful direction, taking into account the nature of the program.

[119] It is arguable that, where specific circumstances exist for an individual, it is reasonable and lawful to direct an employee to attend a medical examination, in circumstances where the employer is particularly concerned, on the actual facts, of the ability of an employee to appropriately perform the inherent requirements of the position with the most minimal risk of injury.

[120] The circumstances of the employee in the case of Grant v BHP Coal Pty Ltd 44 as referred to by the Respondent demonstrates the reasonableness and lawfulness of such a direction, also in circumstances where a legislative health testing scheme exists.

[121] The circumstances of the employee in that case are set out below:

[122] The circumstances of the applicant in Grant have some similarities to a driver employed by the Respondent, as a separate legislative health assessment was also required to be undertaken, as is the case with the Cement Australia employees.

[123] In directing the employee Mr Grant to undertake a separate medical assessment with the employer’s doctor, the reasonableness of the direction was set out, on the facts of that matter, as follows:

[124] In terms of the lawfulness of the direction to the individual employee Mr Grant, based on the individual circumstances, the following is set out:

[125] In terms of the reasonableness of the direction, the Full Bench stated as follows:

[126] The significant distinction is that the circumstances related to Mr Grant, provided a reasonable and lawful direction to an employee, as opposed to a direction to a sector of the workforce, based on a general concern regarding the trend of musculoskeletal injuries for the group overall. In particular, the further medical assessment arose out of an enquiry as to whether Mr Grant could undertake the inherent requirements of his position.

[127] On the information provided, and in circumstances where the direction to participate in the program was provided to a segment of the workforce at large, based on general injury information, rather than on the basis of specific factual concerns associated with an individual employee regarding their prospects of injury, or being able to perform the inherent requirements of their job, it is not considered that the direction for the Risk Review Program was lawful or reasonable in the circumstances. Nor would it, on completion of the program address or rectify the Respondent’s concerns regarding the general injury level. The Program has been considered alongside the legislative health screening that currently exists.

[128] The key principles arising out of the case authorities have been taken into account. There has been an insufficient particularisation of the data to establish a genuine need to direct an entire segment of the workforce to undertake this assessment. Further, the outcome of the Risk Review Program will not provide medical information directed to the inherent requirements of the job or provide a link to reduce the musculoskeletal injury rate. In addition, given that there remain questions regarding the process and contradictory information and questions regarding the discharge of the process, the direction has not been made on reasonable terms. The Respondent could not conclusively provide that the privacy of employees’ medical information would be secured.

[129] Accordingly for all of the above aforementioned reasons, taking into account the nature of the Risk Review Program, as presented, the general direction for the employees to participate in the Risk Review Program, is not a lawful or reasonable direction.

The question for arbitration is answered as follows:

ANSWER: No.

[130] I Order accordingly.

al of the Fair Work Commission with member's signature

COMMISSIONER

Appearances:

Mr R. Reed, Counsel, instructed by Ms R. Smith of Maurice Blackburn for the Applicant.

Mr M. Coonan, Partner, Herbert Smith Freehills, with Ms K. Gamble, Herbert Smith Freehills for the Respondent

1 Statement of Gianina Marjorie Saba at [4.5], [4.15] and Attachments ‘GMS-12’ and ‘GMS-13’.

 2   Respondent’s outline of submissions dated 19 November 2014 at [10.3] - [10.10]

 3   Exhibit 1 - Physical Risk Review - Updated Information Sheet dated 2 September 2014

 4   Respondent’s outline of submissions dated 19 November 2014 at [2.3]

 5   Respondent’s outline of submissions dated 19 November 2014 at [2.4]

 6   R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601; Mcmanus v Scott-Charlton (1996) 70 FCR 16.

 7   (1938) 60 CLR 601.

8 R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601; Mcmanus v Scott-Charlton (1996) 70 FCR 16.

9 ,  [80]. 

 10  

 11   Island Stevedoring  at 622. 

 12   (2008) 173 IR 395

 13   (2002) 113 IR 461

 14   (2002) 113 IR 461

 15   Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539

16 Grant v BHP Coal Pty Ltd [2014] FWCFB 3027 at [118].

 17   National Heavy Vehicle Accreditation Scheme: Standards and Business Rules, pp 27 – 28.

18 Statement of Gianina Marjorie Saba at [4.3] to [4.7].

19 Statement of Gianina Marjorie Saba at [4.9] to [4.11].

20 Statement of Gianina Marjorie Saba at [4.12].

21 Statement of Gianina Marjorie Saba at [4.15].

22 Statement of Gianina Marjorie Saba at [4.11], [4.16] and [9.2].

23 Statement of Gianina Marjorie Saba at [5.17] and Statement of Kylie Peta Reed at [3.7].

24 Statement of Gianina Marjorie Saba at [5.21].

25 Statement of Gianina Marjorie Saba at [6.3] to [6.6].

 26   Exhibit 8 - Annexure “JSI” Report of Dr John Schneider at page 5

 27   Statement of Gianina Marjorie Saba at [2.4].

 28   Statement of Gianina Marjorie Saba at [2.6].

 29   Statement of Gianina Marjorie Saba at [2.7].

30 Statement of Michael Screen at [104].

31 Statement of Gianina Marjorie Saba at Attachment ‘GMS-11’.

32 McLean v Tedman (1984) 155 CLR 306 at 313; NSW v Fahy (2007) 232 CLR 486.

33 Occupational Health and Safety Act 2004 (Vic), s 21(1); Work Health and Safety Act 2011 (NSW), s19((3)(a); Work Health and Safety Act 2011 (Qld), s19((3)(a).

34 Occupational Health and Safety Act 2004 (Vic), s 22(1)(a); Work Health and Safety Act 2011 (NSW), s19((3)(g), Work Health and Safety Act 2011 (Qld), s19((3)(g).

 35   PN1321-PN1340, PN1348

 36   PN1297 - PN1318

37 [2013] 231 IR 159.

38 Statement of Gianina Marjorie Saba at [7.3] to [7.15].

 39   PN1281 - PN1294

 40   PN1341 - PN1347

 41   PN1352 - PN 1355

 42   Statement of Gianina Marjorie Saba at [4.8] to [6.4].

 43   PN1789 - PN1793

 44   [2014] FWC 1712; upheld on appeal in Grant v BHP Coal Pty Ltd [2014] FWCFB 3027

 45   Grant v BHP Coal Pty Ltd [2014] FWCFB 3027

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