| [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:
Is the requirement by Cement Australia Pty Limited for employees, covered by the Cement Australia Transport Workers (South East Queensland) Enterprise Agreement 2014 and the Cement Australia Pty Limited Transport Employees (Central & North Queensland) Enterprise Agreement 2014, to participate in the Physical Risk Review Program a lawful and reasonable direction?
[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.
[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:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
...
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so...”
[10] Section 738 of the Act relevantly provides:
“738 Application of this Division
This Division applies if:
...
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
...”
[11] The relevant procedure for dealing with disputes in the SEQ Agreement is clause 7 which provides, in part, as follows:
“7. GRIEVANCE AND DISPUTES PROCEDURE
The parties to the Agreement shall observe the following Grievance and Disputes Procedure:
...
(d) In the event of a dispute about a matter under this Agreement or a dispute in relation to the NES, except for dispute related to reasonable grounds for refusal of requests for flexible work arrangements or additional unpaid leave, the following steps should be followed:
...
Step 5 Where it is agreed by the parties, Steps 1 - 4 above may be conducted concurrently.
Emphasis shall be placed on a negotiated settlement. However, if the negotiation process is exhausted without the dispute being resolved, either party may refer the matter to the FWC for assistance. The FWC shall first attempt to resolve the dispute by conciliation. However, where conciliation fails the FWC shall arbitrate in relation to the dispute and the parties will abide by the FWC’s arbitrated decision.
...
(f) The parties to the dispute agree to be bound by any decision made by FWC in accordance with this term. The parties undertake to resolve any dispute in a timely manner in accordance with the procedure set out in this clause and will cooperate to ensure that these procedures are carried out expeditiously.”
[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:
“32. WORKPLACE HEALTH & SAFETY
The workforce (ie. Employees and Management) will develop and maintain local procedures in line with legislation on Work Health and Safety Act 2011 matters, which suit the operations of the Employer.
Both the Employer and the Employees commit to adhere to the applicable Fatigue Management legislation.
Included in these procedures will be active participation in and support of injury management and rehabilitation program and attendance at safety committee meetings.
In accordance with Work Health and Safety Act 2011 requirements, Employees will use or wear, as required from site to site, all safety equipment issued to them by the Employer in such a way as to achieve the purpose for which it was intended.
Rules of the road along with road courtesies are to be observed at all times. Conformance to all regulations relevant to the driving of heavy vehicles will be observed.”
(underline added)
[14] Clause 34 of the SEQ Agreement provides as follows:
“34. Workplace Health & Safety
The workforce (ie. Employees and Management) will develop and maintain site procedures in line with legislation on Work Health and Safety Act 2011 matters, which suit the operations of the Employer. To avoid doubt, this clause is not intended to limit or impact the Employers ability to implement company policies or procedures which cover multiple or all sites.
Both the Employer and the Employees commit to adhere to the applicable Fatigue Management legislation.
Included in these procedures will be active participation in and support of injury management and rehabilitation program and attendance at safety committee meetings.
In accordance with Work Health and Safety Act 2011 requirements, Employees will use or wear, as required from site to site, all safety equipment issued to them by the Employer in such a way as to achieve the purpose for which it was intended.
Rule of the road along with road courtesies are to be observed at all times. Conformance to all regulations relevant to the driving of heavy vehicles will be observed.”
(underline added)
[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.
[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.
[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:
“The PRR Program was designed so that employees would still be tested on a range of areas aligned to their functional job profiles. However, to meet the union’s and employees’ concern, instead of being advised whether or not an employee was fit to perform the inherent requirements of their role, Cement Australia and the employee would be provided with an assessment of the level of risk in performing their duties.
While Cement Australia originally proposed functional capacity assessments for distribution employees, it developed the PRR Program to meet feedback from the TWU and employees relating to fears of employees losing their jobs if found to be unfit to perform the inherent requirements of their role on an ongoing or permanent basis.
Cement Australia has developed the PRR Program to eliminate the fear that an employee would lose their job through their participation in the program, but so that it would still perform the key purpose of proactively addressing the risk of musculoskeletal injury.
Employees will not be told how to live their lives as a result of this program. They will be informed on how their lifestyle and other factors such as hereditary or degenerative conditions increases their level of risk of injury and how they can make informed decisions on how to reduce it.
However, Cement Australia explained that employees who refused to participate in the assessments could be subject to disciplinary action. This is because participation in the PRR Program is an essential tool for addressing the level of risk of injury.
It is designed to be a proactive way of providing information and education to employees on the level of risk they have in performing their work. It does this firstly by alerting them to any existing or developing risks of, or susceptibility to, injury in performing their work and providing them with information and advice on how to reduce that risk.” 2
[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:
“(a) To attend the assessment with a health professional at the employer’s time and cost;
(b) To attend a follow up telephone interview with the Cement Australia Group Health Manager, at the employer’s time and cost to obtain information on wellbeing programs made available, some at subsidised cost, by the employer;
(c) If assessed at a high level of risk, to attend a follow up health education session with a health professional, at the employer’s time and cost that explains the level of risk and what programs are available to reduce the level of risk.” 4
[28] The Respondent submitted, in relation to the available programs to reduce risk, that employees:
“...will not be directed to undertake any lifestyle or fitness program made available to them (some at employer or subsidised cost) at the education session. An employee will not be subject to disciplinary action or be dismissed if they do not undertake the lifestyle/fitness program.” 5
[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:
“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable.
…
The need for some limitation is patent: employment does not entail the total subordination of an employee’s autonomy top the commands of the employer. As was said by the President in Australian Tramways Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42:
A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.
There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case.”
(underline added)
[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:
“Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness.
…
The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach, including, as far as possible, respect for privacy.”
(emphasis added by the Applicant)
[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:
“essential for compliance with … [these obligations] that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee’s continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments.”
(emphasis added by the Respondent)
[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:
“48 The following principles are well established. An employer may give an employee a lawful and reasonable direction, and it is the common law obligation of an employee to obey the lawful and reasonable commands or direction of the employee. In McManus v Scott-Charlton (1996) 70 FCR 16 at 21. Finn J said:
‘The accepted view in this Court is that it is the common law obligation of an employee to obey the lawful and reasonable commands or direction of the employer; see Australian Telecommunications Commission v Hart (1982) 65 ALR 41; Bayley v Osborne (1984) 4 FCR 141…
The “standard or test” of the lawfulness of a command or direction that has been adopted in this Court for common law purposes is that of Dixon J in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 at 621-622:
If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable.
The need for some such limitation is patent: employment does not entail the total subordination of an employee’s autonomy to the commands of the employer. As was said by the President in Australian Tramways Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42:
A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting this work.’
There are obvious and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case.
49 It is also an established principle that it is reasonable to direct an employee to attend a medical examination to determine whether the employee is fit to perform his or her duties and whether he or she can do so safely.
50 In Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395; 113 IR 461, Madgwick J considered the issue of a requirement of an employer in New South Wales for a reinstated employee to undergo a medical examination before reporting for work on reinstatement. Madgwick J said, at 411; 476:
An employee has, as indicated above, strict obligations under the NSW legislation to ensure the safety and well-being of its employees. The importance of occupational health and safety is also reflected in the Act. Whilst an AWA, in general, prevails over conditions of employment specified in State laws to the extent of any inconsistency, provisions which relate to certain matters, such as occupational health and safety, operate subject to any relevant State law (see s 170VR(2) of the Act).
It is in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee’s continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/or lift.
The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of “necessity” accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450.’
Those observations of Madgwick J were not disturbed on appeal to the Full Court of the Federal Court and finally on appeal to the High Court, which upheld Madgwick J’s decision in whole: Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539; 139 IR 338.
51 As I have already noted, an employer has an obligation under the Occupational Health and Safety Act 2004 (Vic) to provide a safe place of work. In carrying out and discharging that obligation, an employer may, from time to time, need to assess and determine whether an employee suffers from a disability that might affect his work. The employer might need to have regard to the nature and consequences of the employee’
52 As I noted earlier, s15(4)(a) of the Disability and Discrimination Act does not render a dismissal unlawful where the disability prevents the employee from carrying out inherent requirements of his or her work. It is because of those matters that it is appropriate that an employer be able to obtain medical information about an employee that might be relevant to the performance of his or her work. It follows, in my view, that there are circumstances in which a requirement to provide medical information to one’s employer, provided it is made on reasonable terms and is shown to be reasonably necessary, does not constitute a detriment in employment but is, as Madgwick J observed, a necessary part of an incident of the employment.”
(emphasis added by the Respondent)
[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:
“...We do not consider that the power to issue a direction that was lawful and reasonable is limited to the extent it is founded on a positive rule of law, or an express statutory provision as in this case.”
[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:
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:
“the functional assessment does not appear to be job specific, nor comprehensive enough to provide any useful assessment of risk or work related injury.” 26
[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:
“a. Pre-start safety check. This involves the driver checking the vehicle, including lifting the bonnet to check the engine. This occurs at the start of every shift. This task involves a combination of standing, pushing, pulling, weight bearing on legs and feet and shoulder flexion movements.
b. Ensuring vehicle roadworthiness and safety during each trip. This includes changing tyres, fixing headlights and basic trouble-shooting tasks. These tasks involve a combination of pushing, pulling, carrying, standing, kneeling, squatting, neck movements, back movements, shoulder movements, wrist and forearm movements, gripping, hand and finger movements and weight bearing on legs and feet.
c. Loading the tanker. This involves a connection process, loading process and disconnection process. This can occur up to eight times a day and typically takes 5-10 minutes. This task involves a combination of pushing, pulling, squatting, kneeling, standing for periods of up to 10 minutes, back, shoulder, hand and finger movements,
d. Driving, including on both private and public roads. A typical shift is 10-12 hours long, however Cement Australia drivers can work up to 14 hours per shift in accordance with the Basic Fatigue Management Regulations. A driver can however only drive a maximum of six hours straight before they must take a 15 minute break out of the cabin. Typically, this involves a driver getting into and out of the cabin of the truck and sitting and driving. This task involves a combination of pushing, pulling, carrying, sitting, driving, standing, kneeling, squatting, neck movements, back movements, shoulder movements, wrist and forearm movements, hand and finger movements and weight bearing on legs and feet.
e. Collecting samples. This involves collecting samples of the mix at regular intervals so testing of the blend can occur. This task involves a combination of pushing, pulling, standing, stairs, kneeling, squatting, back movements, shoulder movements, gripping and weight bearing on legs and feet.
f. Unloading the tanker. This involves getting out of the cabin of the truck, connecting a pipe to both the tanker and the silo, clearing blockages, and disconnecting the pipe from the tanker and the silo. While completing this task, the driver must also take actions to avoid hazards at the site, including monitoring the environment. This task involves a combination of pushing, pulling, standing, walking, squatting, neck movements, back movements, shoulder movements, wrist and forearm movements, gripping and weight bearing on legs and feet.
g. Washing the truck. The frequency and method used to clean tankers can vary nationally. In Sydney and Brisbane it is usually performed automatically via a drive through bay. In country areas the task is done manually more often than in metro areas. This manual task involves a combination of pushing/pulling, twisting, sitting, standing, squatting, neck movements, back movements, shoulder movements, wrist and forearm movements, gripping and weight bearing on legs and feet.
h. Even where cleaning is done automatically, the drivers must still clean windows and window screens. In most, if not all cases, this involves pushing, twisting neck, back and shoulder movement and often above head height.”
[73] Ms Saba then outlined the type of functions performed by Cement Australia’s fleet maintenance workers as follows 29:
“a. Road truck isolation. This involves deactivating, tagging and locking out of vehicle components. This task involves a combination of standing, shoulder movements and weight bearing.
b. Scheduled maintenance. This involves routine inspection of the vehicle and certification that the vehicles are in a roadworthy condition and are being maintained to specifications. This task involves a combination of pushing, pulling, carrying of weights of up to 40 kilograms, standing, neck movements, back movements, shoulder movements, squatting and weight bearing.
c. Repair and replace. This involves the replacement of faulty mechanical, hydraulic or pneumatic parts or systems with new parts, or the repair of components using equipment such as welders, hand tools, grinders, lays and drilling machines. This task involves a combination of pushing, pulling, standing for over 20 minutes at a time, neck movements, back movements, shoulder movements, wrist and forearm movements, gripping, squatting and weight bearing.”
[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:
“Health and safety issues
104. Common safety issues that arise at customer sites include the height of the infill pipes that the tanker hose is connected to and surface conditions, for example, cracked concrete, slurry, sand or gravel on the ground, slippery and/or uneven ground...” 30
[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:
‘Every Cement Australia site is required to assess, monitor and manage the Health and Hygiene hazards associated with their respective business… If a hazard has been identified at a particular site, that site must then develop a monitoring program for that hazard. This process involves both on-site monitoring and health surveillance.’
[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:
You will be supported and monitored by the Group Health Manager during this process.
(emphasis added by the Applicant).
Given the nature of the earlier high risk assessment, Cement Australia expects the employee will take necessary steps to minimize the risk of injury.
(emphasis added by the Applicant).
[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:
“Now, this refers to the process as envisaged by you after the single sheet risk rating was provided?---Correct.
It says you would confirm whether the employee wishes to participate in any recommended rehab programs and provide information of other support available?---Yes.
You then say that for employees rated as low or medium risk they can choose whether or not to participate?---Correct.
Now, can I take you to exhibit 1 again? I take you to the third page of the updated information statement. That's got a number of boxes and arrows?---Yes.
That purports to set out what will happen after the physical risk review?---Yes.
Tells us you will receive a notification of the risk classification, and then it says, "The group health manager will contact you to discuss your risk rating and recommended programs"?---Yes.
It then says, "Together you will develop a health action plan which will detail what health actions you intend to take and what time frames you feel are reasonably appropriate to carry out these actions." Now, that's a directory statement, isn't it?---Yes.
The employee will develop a health action plan?---So let me clarify. Yes, it is a directory statement, but if it's a low, medium risk, there won't be an action plan.
But that's not what it says?---That's why I'm clarifying it.
It's completely at odds with what you say is the completely voluntary nature of any onward treatment of low or medium risk?---Understand how it comes across that way but, yes, the health action plan is only developed if the employee is a high risk, or if they request they want to participate in a program.
One reading that, you simply can't accept that proposition reading that statement.
...
MR REED: You say that's just an error in drafting?---Correct, yes.
Then it further says, doesn't it, and this is in relation to all employees, "You will be supported and monitored by the group health manager during this process"? ---So again it's referring to if you want to develop a health action plan, if you elect to if you're low, medium, or if you are required to if you're a high risk.
Well, that's just simply wrong, isn't it? The intention of the company was that employees would be, as a result of a discussion with you, told to develop a health action plan, and they would be monitored in the implementation of that?---If they elect to do so, or if they're high risk.
There's no indication of election in the way that's phrased in that box, is there? ---It's phrased for them.
Now, of course if you're a high risk, there are some further compulsory steps to be taken?---Correct.
The high risk people must go to a further mandatory education session?---Yes.
It says here "with a relevant health professional". Might that be another Kinnect person?---Yes, potentially, depending on why they're high risk because obviously for different things different health professionals may be involved.
...
Cement Australia's monitoring of that process with the high risk employees continues, doesn't it - sorry, would continue?---So it ends after that. So after they have that follow up session, there's a discussion with that employee to see how the process went, and if they want to continue with any further health programs. If they elect no, then that is the end of their case. That is the only obligation on the employee is to attend that education session. 35
[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:
“... Do you know the identity of that assessor?---Yes. Joel is the assessor.
Sorry?---Joel who produced this documentation.
So you say that this is Mr Wockner, is it?---Mm'hm.
You say that Mr Wockner was going to be your sole contact at Kinnect?---Not sole contact, but the sole assessor, yes.
Sole assessor.
THE COMMISSIONER: So he'll travel nationally.
MR REED: Why wouldn't you tell employees that?---I just didn't. I'm not sure. No one ever asked the question. Obviously from my opinion, that's what I wanted to do to ensure consistency, but whether - the workforce were more interested in what the program contained and how it would be rolled out and whether they would lose their jobs, not, "Is it the same bloke doing it in Gladstone versus Pinkenba?"
You didn't consider that consistency assessment methods might have been an issue?---No, obviously I considered it, because it's already prearranged. It was arranged in June. Whether I communicated that - so that's where we're missing here, is that I haven't communicated that to the workforce because it wasn't a topic of discussion.
You expect us to accept that now?---I can provide you the documented emails if it's necessary.
What class of allied health professional is Mr Wockner?---I'm not sure. He's either an IT, a physio, or an exercise physiologist.
Surely you would want to know that. If you were going to entrust this assessment process with one single employee at Kinnect, you'd want to know what their qualifications were, wouldn't you?---I'm comfortable that he has one of those degrees under his belt.
You're unaware of when he obtained his degree? You're unaware of whether he has any specific occupational health and safety qualifications?---No.
You just have to say anything for the microphone?---Sorry.
That's okay. When did you learn that Mr Wockner was going to be the sole assessor?---I can't remember specific dates. It would have been around May and June when we started coordinating what would be contained in the program.
2014?---Correct.
Why, then, do you say in your statement at paragraph 6.4(b) that the review would be conducted with an allied health professional, for example a physiotherapist, occupational therapist or exercise health professional registered with AHPRA?
---So the gentleman who will be conducting the assessment is going to be one of those allied health professionals and will be registered through that. That's just a general comment about Kinnect.
With respect, I would suggest that's somewhat disingenuous. But the tenor of 6.4(b) surely is that you didn't know the class of professional that was going to be conducting the assessment?---As I've already said, I don't know what class of professional Joel is.”
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:
‘...current standards and expectations of the community concerning health and safety in the workplace as evidenced by legislative prescriptions and judgements of courts and industrial tribunals are such that there will, of necessity, be some constraint on the civil liberties at times and, in particular, an intrusion into the privacy of employees.’
[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:
“Now, the results of those various tests, however they might be measured, is that data that would be retained by Kinnect?---Yes, they would retain the full report, so that it's available if an employee should request it.
But as I understand it, all the employee is entitled to is the page that you received?---No. So they can - an employee is entitled to their full medical record. So if an employee does a pre employment medical, or if they do a physical risk review and they want a copy of that, they can have a copy of that.
Is that part of your contract with Kinnect?---It's a contract with all medical providers that we're able to access that information for the employee, or their employee is able to access it directly.
Well, you've made a point of trying to mollify privacy concerns by stressing that none of that material is going to be coming to Cement Australia?---It definitely isn't, no. So we get this summary sheet. If the employee requests it, I will get it sent directly to their home. So when we hand the original functional capacity valuation, that's how that program (indistinct) is that if an employee said, "Yes, I want a copy of my full assessment," I would contact Kinnect and request that they post that to the employee's home.
THE COMMISSIONER: There's some written undertaking, is there, that the information - so the raw information, if we could call it that - would not be released to the employer, or in fact anyone else, but the employee or their GP under authorisation?---Correct. Yes.
Is that in writing?---In our privacy procedure it would be, that any medical information certainly cannot be released unless authorised by an employee.
But authorised from - any information held in this program, held by Kinnect, cannot be released to Cement Australia?---Correct. Yes. No, whether that's written, no, I'm sure if that's written.
Sorry, Mr Reed.
MR REED: No, that's a question that (indistinct) my mind as well.
THE COMMISSIONER: I'm assuming Cement Australia is willing to enter into such a confirmation?---Absolutely no concerns, yes.
Under such a direction to Kinnect?---Yes, definitely.
MR REED: It would in effect require Kinnect to at least provide material that was their property, its property, to the employee?---I think it would be considered Cement Australia property, because we pay for the assessment, but we would not be accessing the information unless the employee requested it.
But you're not clear on the commercial arrangements in any event between Cement Australia and Kinnect?---I certainly know our position, but whether there's a documented - yes.
You don't produce a copy of any commercial agreement with Kinnect?---No.” 39
[105] The following extract from Ms Saba’s cross examination demonstrates that the custody of the information remains vulnerable:
“But, with respect, you aren't going to know why they've been assessed as high risk, are you?---If they specify. So if someone is high risk as per the next page of this summary, or if they're medium and there's some information about reduced shoulder range of movement, shoulder strengthening program, so if this person was a high risk in that case, we would recommend that they see an exercise physiologist or a physio to talk about their shoulder condition and what things they may want to do to improve or reduce their risk.
But what if, as you conceded could occur, there's no indication at all as to why the high risk assessment has been allocated? How would you find then a relevant health professional?---So I would be contacting Kinnect in that case and saying, "What are your recommendations? Given that you've rated this person high, what is the recommendation and education that would be required?"
But isn't the whole intention expressed by you, or by your company, that medical information concerning the employees would not be transmitted to Cement Australia?---Yes. So this isn't medical information, it's what recommended programs might be beneficial. So I know it's a fine line, but if they say, "We recommend a shoulder strengthening program," I don't care what's wrong with the person's shoulder. What I care about is what strategies we can implement to help reduce their pain and suffering, their risk of injury.
But there's no compulsion on Kinnect to provide you with that information, is there?---No. They can - they don't have to put anything, either low, medium and high. I would
And they don't - sorry?---Based on my experience, if they're rating someone as a high risk, they would be putting a comment as to why - what would be recommended to reduce that level of risk.
There's no obligation on Kinnect to provide you with any further information when you ring up if there's not enough for your purposes?---My expectation is that they would be able to - not medical information, but they would be able to recommend a program to assist reducing that level of risk.
You've said yourself it's a fine line. I mean if one recommends programs related to specific parts of the body, that's an implied provision of medical information, isn't it?---Well, you'd be aware there's a condition related to that joint or muscle.” 40
[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:
“THE COMMISSIONER: Well, is it reasonable to assume that given that Cement Australia is contracting Kinnect to undertake a national program of these assessments that there is a commercial contract in place?---Yes. We have a service level agreement in place, but yes, it doesn't go into the details of information sharing and things like that. So there is a service level agreement in place with Kinnect for this program.
It doesn't have any protocols in relation to the privacy or custody of medical information?---So Kinnect have their own standard privacy statement.
Does that form part of that contract on the basis of the operating protocol?---I'll have to have a look at the actual SLA just to see if it's included. But I know certainly on any of their documentation the privacy clauses are there.
Well, they're the nature of the question in some of them, that I understand Mr Reed is asking. It's probably no surprise to the company that the TWU have, as one of their major concerns, raised these privacy issues. They're probably not surprising to any one of us in employment as to what information we'd consider is relevant. Cement Australia have been transparent, as I understand, said this is the basis for the program, this is why we are starting it, this is the information that should be given, however, and I'm still obviously going through the evidence and it's subject to submissions and re examination, but some of the things that arise that you have said in your evidence, that Cement Australia has custody of the information, as I understand?---So we - because we are requesting the assessment, we own it, but we will never see the raw data. We'll just receive a summary sheet of the assessment.” 41
(underline added)
[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:
“MR COONAN: You have done the program?---No, I have not yet.
Okay. Have you done any of the health programs?---I have. I undertook the Michelle Bridges' program.
...
You see there in the second sentence why the program has been introduced. Can you just reinforce that for the commission again?---I've been with the company since 2000, not in the transport area, but in the manufacturing side of the business and so I've looked after lots of people and been responsible for lots of people and I have come to see Cement Australia - I have a strong commitment to the people of Cement Australia and a strong commitment to Cement Australia and I identify personally with the company. As part of that you don't want to see anyone get hurt and so this is another program to try and address injuries that occur in the workplace and we implement lots of different programs, and this was another one that we wanted to implement to try and fix an area which seems stubborn in that we can't make inroads into. We continually have injuries and with this group of drivers or this group in the transport division and so I just want to improve their health and wellbeing and enjoyment. We know that it improves the productivity, the efficiency of the company. When people are happier and they feel good about themselves, they're better employees. So it's not just about the statistic. That's a red flag, if you like, that there's something not right there, or that's an area that we need to improve. This program is another way, just another way to try and improve the health and wellbeing of our employees.” 43
[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:
“[7] The Applicant was employed by the Respondent as a boilermaker at the Peak Downs Mine (the Mine). The Applicant commenced employment on 25 November 2003, and continued in such until his dismissal on 17 May 2013. The Applicant was employed for approximately 9.5 years. At the time of his dismissal the Applicant was an area delegate for the CFMEU of the field crew (maintenance) at the Mine.
[8] On or about 21 October 2011 the Applicant sustained an injury to his right shoulder while undertaking his duties at the Mine. The Applicant completed light duties for the remainder of the shift on this day.
[9] Between October 2011 and July 2012 the Applicant “reinjured” his shoulder on a “number of occasions” which the Applicant stated occurred both during, and outside, work hours.
[10] In July 2012 the Applicant again reinjured his shoulder while mowing the lawn, outside work hours. Since about 23 July 2012 the Applicant has been on extended sick leave while receiving treatment regarding his shoulder injury. After consulting medical specialists, the Applicant underwent shoulder stabilisation surgery on 12 September 2012. The Applicant had not attended at work in the intervening period between 23 July 2012 and 12 September 2012.
[11] On 27 March 2013 the Applicant stated that he was certified as being fit to return to his pre-injury duties. This medical clearance is at the heart of the dispute between the parties and is discussed further below.
[12] The Applicant attended at the Mine on 2 April 2013, being his first rostered shift since 23 July 2012. The events following relate to the matters for determination in this matter. In summary, the Respondent alleged that it was not satisfied that the Applicant could return to his full pre-injury duties and required the Applicant to attend upon a medical specialist, of the Respondent’s choosing. It is this requirement and the action or inactions of the Applicant which are relied upon by the Respondent in dismissing the Applicant.
[13] The Applicant and his representatives (the CFMEU) sought information from the Respondent (given the Applicant’s medical clearance) as to why further medical information was required and what was relied upon to direct the Applicant to attend for further medical assessment.”
[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:
“[110] The concerns of the Respondent were reasonable. The Applicant had been absent for an extended period. No medical advice or information had been provided by the Applicant regarding the specific nature of the medical condition that existed. Each medical certificate supplied stated “medical condition” as the reason for the Applicant’s being unfit for duty.
[111] The Applicant has given no evidence of any specific steps taken by him to prepare for his return to work, other than turning up at the gate with what he considered was a “medical clearance”. The Respondent also took no steps, during the Applicant’s absence, to monitor the situation or to understand what steps the Respondent might need to take to plan or prepare for the Applicant’s return. No explanation was given by either party during proceedings as to why there was such limited contact made by either party during this period.
[112] At the time of the Applicant’s return to work (2 April 2013) on the basis of the material before them (the medical certificates), the Respondent understood that the Applicant had been absent for a period of some 8 months. During this lengthy period there had been no discussion or specific notification (of the nature of injury or rehabilitation) from either party regarding the Applicant’s absence, beyond the provision of general medical certificates. That situation alone would reasonably have caused the Respondent to seek further information, before allowing the Applicant onto the Mine site to perform potentially dangerous work, in an inherently dangerous workplace. This necessity to confirm the fitness for duty should have been reasonably apparent to any reasonable person returning to work on a mine site, who had had experience in working in mines.
[113] An Employer has an obligation to ensure a safe system of work and a duty of care is owed to all those on their worksites and specifically in relation to the safety of their employees. However, it is also a reasonable expectation that where an employee considers that he is medically fit, the employer will clearly set out the basis for requiring the employee to attend for the further medical assessment. This is particularly so given the confusion around the original reference to the PPI as evidence by Mr Gustafson’s omission in his diary note in relation to this evidence.
[114] The evidence before the Commission is that during the 8 month absence the Applicant underwent surgery on his shoulder and associated rehabilitation. Given the Respondent had little information on these facts (except for the purported medical clearance, written in general terms) it is reasonable that the Respondent sought to confirm the capacity of the Applicant to return to his normal duties. The Applicant himself raised, on arriving at the site, that he was unsure whether his SOP’s would be up-to-date, thus demonstrating his uncertainty about returning immediately to his duties after such a lapse of time.
[115] In the circumstances, it is entirely reasonable that the Respondent would have at least sought further advice and information on the Applicant’s fitness to ensure that it was not exposing the Applicant, or others, to unacceptable risk from any limitation arising from the injury or by virtue of his lengthy absence. The evidence relating to the Applicant’s initial refusal to attend the medical appointment, comply with the investigation, and the taping of conversations, satisfies the Commission that the Applicant was suspicious, or at least uncertain, about the Respondent’s requests. While neither party specifically addressed the Commission as to the basis for the Applicant’s conduct, it was obviously a response to the situation whereby the Applicant considered he held a full medical clearance and that he, and his Union, were not given an explanation as to why the further medical assessment was sought, or what was relied upon for the direction.
[116] Given the nature of the Applicant’s medical history and the fact that the Applicant had had surgery and rehabilitation, the Respondent had reasonable cause to satisfy itself that the Applicant could safely perform his duties and would not expose anyone to an unnecessary level of risk. The medical evidence which the Applicant provided was insufficient and did not particularly focus upon an occupational assessment. However, this position could have been explained to the Applicant and that the Respondent simply sought to have his clearance for duty checked against his actual duties at the mine.
[117] The question then is, was it reasonable that the Respondent require the Applicant to specifically attend a specialist of their choosing, or could the Applicant insist that he be provided an opportunity to attend his medical specialist. In the circumstances of this matter, where the Respondent had a duty arising from their statutory obligations as Coal Mine Operators to ensure the health and safety of the Applicant, and anyone working with him, to ensure prior to the Applicant being returned into the mine operations, I am satisfied that the Respondent was reasonable in requiring the Applicant to attend upon Dr McCartney. The Respondent relied upon the opinion of Dr McCartney as he was specifically trained as an occupational physician, and possessed the knowledge of the Respondent’s operations. That is, his area of medical expertise being the interaction between medicine and the workplace. The Respondent maintained that he had knowledge of the mining industry. In contrast, the Applicant’s suggestion was that he visit his doctors, who were not (on the evidence before the Commission) specialised in this regard. Alternatively, the Applicant sought to be provided with a copy of his position description to provide to his medical advisors. Had the Applicant attended upon Dr McCartney and the resulting report not been favourable to the Applicant, it would then have become a matter, presumably, for the Applicant to seek his own second opinion. Had this occurred, and the Respondent refused that opportunity, this would have been a relevant consideration in an unfair dismissal application.”
[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:
“[104] In relation to a contractual right to require the employee in that matter to attend a medical examination it was found that the Respondent must rely upon an implied contractual term (in the absence of an express term). It was stated that a term may be implied into a contract, where the term was “necessary for the reasonable or effective operation of the contract”. It was found that, given that the Act and Regulations set out a comprehensive scheme for these matters it was not necessary to imply the more general term into the contract.
[105] While I agree that the Coal Act does set out obligations upon an employer and employee within the Coal industry, the Coal Act and Regulations do not do so exhaustively. The Act specifically acknowledges that whilst obligations are imposed upon coal mine workers, and other persons at a coal mine, those obligations extend to an obligation:
“to take any other reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk”
[106] It is apparent that the Coal Act acknowledges that a person may be obligated to take action, not otherwise stipulated by the Act, to “ensure anyone is not exposed to an unacceptable level of risk”. The legislation does not provide an impediment, to limit when an employer may otherwise lawfully direct an employee to attend upon a medical assessor, where reasonable concerns exist for ensuring the employee is medically fit to return to his duties at the mine.”
[125] In terms of the reasonableness of the direction, the Full Bench stated as follows:
“[122] As we have mentioned earlier, the Commissioner found that Mr Gustafson was lawfully permitted by s.39 of the CMSH Act (so far that such a direction must be expressly founded upon a positive rule of law) to direct the Appellant to attend a medical examination for a functional assessment when he presented for work.
[123] The Commissioner found this direction to be reasonable after a very lengthy absence from the workplace, following surgery, and with only generalised medical certificates (which did not refer to surgery having taken place and were absent any information about any rehabilitation). There was no evidence before Mr Gustafson, or the Commissioner, that the Appellant had undergone a functional assessment upon seeking to resume work.
[124] The Appellant’s injury was known to be exposed to aggravation. The Appellant’s “role involved heavy manual tasks”. Further, the Appellant had expressed a willingness to attend a medical practitioner of his own choice for purposes of a functional assessment.
[125] This, generally, was the context in which the Commissioner reached her findings as to the reasonableness of the instruction (to attend a medical practitioner for the purpose of a functional assessment) given to the Appellant:
“Given the nature of the [Appellant’s] medical history and the fact that the [Appellant] had had shoulder surgery and rehabilitation, the Respondent had reasonable cause to satisfy itself that the [Appellant] could safely perform his duties and would not expose anyone to an unnecessary level of risk.”
[126] Mr Gustafson acted reasonably, the Commissioner concluded, in requesting the Appellant to undertake a functional assessment in such circumstances. Mr Gustafson directed the Appellant to attend on a medical practitioner who was a trained occupational physician with knowledge of the mining industry and the Respondent’s operations.
[127] There is no evidence overlooked by the Commissioner to the effect that Mr Gustafson exhibited any predetermined view of the Appellant’s state of health or revealed any malevolent intent in directing the Appellant to undertake the assessment. The Appellant was placed him on full pay in the interim period (whilst the functional assessment confirmed the Appellant’s fitness for work).
[128] We add that the Commissioner also had before her a statutory declaration signed by the Appellant in which the Appellant had, for purposes of a claim for damages under WorkCover, declared he had a 20% permanent impairment arising from his shoulder injury.
[129] Generally, we are of the view that the Commissioner’s findings were open to her.
Conclusion in respect of Appeal Grounds 1 and 2
[130] In respect of Appeal Grounds 1 and 2, we discern no error in the Commissioner’s evaluation of the circumstances such that it is objectively wrong, or otherwise invites the Full Bench to substitute its own evaluation. The Commissioner properly construed the power available under CMSH Act for the Respondent to direct the Appellant on reasonable grounds to attend a functional assessment. We also consider, in any event, the Respondent was able to direct the Appellant to do such things that are not unlawful, and which are reasonable and properly an incident of the employment relationship, or fall within the scope of the contract for service. We have also found that the Respondent’s direction to the Appellant can be so characterised.” 45
[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:
Is the requirement by Cement Australia Pty Limited for employees, covered by the Cement Australia Transport Workers (South East Queensland) Enterprise Agreement 2014 and the Cement Australia Pty Limited Transport Employees (Central & North Queensland) Enterprise Agreement 2014, to participate in the Physical Risk Review Program a lawful and reasonable direction?
ANSWER: No.
[130] I Order accordingly.
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].
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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