DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Stephen Martin
v
TNT Australia Pty Ltd T/A TNT
(C2016/2875)

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – inherent requirements of the role, return to work

Introduction

[1] This Decision relates to an application filed on behalf of Mr Stephen Martin (the Applicant), pursuant to s.739 of the Fair Work Act 2009 (the Act), to deal with a dispute concerning the Applicant’s ability to perform the inherent requirements of his role as a Bulk Freight Delivery Driver, with TNT Australia Pty Ltd T/A TNT (the Respondent/Employer/TNT).

[2] The Applicant was represented by Mr Robert Reed of counsel, instructed by Ms Margarita Cerrato of the Transport Workers’ Union of Australia (TWU). The Respondent was represented by Mr Bilal Rauf of counsel and instructed by Ms Catherine Tirado, Employee Relations Business Partner, TNT.

[3] The parties confirmed that the arbitration of the matter was within the jurisdiction of the Fair Work Commission (the Commission), pursuant to s.739 of the Act and clause 12, Dispute Resolution Procedure of the TNT-TWU Fair Work Agreement 2014-2017 (the Agreement).

Questions for Determination

[4] The parties agreed on the following questions for determination for the Arbitration. The questions are as follows:

1. Is Mr Martin fit to perform the inherent requirements of the role of Bulk Driver with TNT?

2. Should the Applicant be returned to his role immediately with appropriate ‘work hardening’ as recommended by Dr Christopher Cunneen, Occupational Physician?

Background

[5] The Respondent operates a global express freight business offering a range of services including express, priority and same date services. TNT has a broad customer base such that the requirements of their customers varies considerably.

[6] The Applicant has been employed by the Respondent since 1996 as a truck driver and as a ‘Bulk Delivery’ driver since 2008. Prior to commencing a period of unpaid leave, the Applicant worked at the Respondent’s Salisbury Depot.

[7] In early 2014, the Applicant was stood down, without pay, as a result of an injury to his right knee. The Applicant undertook a period of light duties following the injury. A workers’ compensation application in respect of this injury was not successful. On 29 April 2014, the Respondent wrote to the Applicant confirming that his application for workers’ compensation had been rejected and that the Respondent was withdrawing the light duties that the Applicant had been working on. The letter went on to state:

“I therefore formally advised you that you would not be able to continue to perform any duties until you are fit to fulfil the complete duties of your role, and you are able to provide a medical clearance that would enable such.”

[8] The letter further advised that the Applicant’s “offer of employment” was not being withdrawn, that further absences would be consistent with the Respondent’s industrial instrument and leave policies, and that the Respondent would be “keeping in touch regularly” in relation to his recovery.

[9] On 24 April 2015, the Applicant underwent a total right knee replacement and on 24 September 2015, obtained a medical clearance from his General Practitioner to return to work. At a meeting on 28 September 2015, the Applicant sought to return to work on the basis of that medical clearance. The Respondent advised the Applicant that it wanted to have a further assessment done to ensure that he was fit to return to his normal role. It is the Applicant’s evidence that at that meeting his TWU representative asked the Respondent representatives about the purpose of the assessment and whether or not there were other issues or concerns apart from those arising from the Applicant’s right knee. 1 The Applicant states that the response was that the purpose of the assessment was to “ensure my right knee was ok and that there were no other concerns”2.

[10] On 1 October 2015, the Respondent issued the Applicant a letter with the subject line “Fitness for Duties and Functional Assessment”. 3 The letter relevantly stated:

“During this meeting we discussed that TNT holds reasonable concerns regarding your knee replacement surgery earlier this year and that you may not be fit for all duties that are required to be performed, and form the inherent requirements of the Driver/Dockhand role. TNT is also concerned that you may not be able to safely perform those requirements.

…

…TNT requires you to attend the medical appointments below, so that you can be assessed against TNT’s functional assessment and fitness for work for the safe employment of a Driver/Dockhand.”

[11] The letter ‘required’ the Applicant to attend two medical appointments; a functional assessment with an Exercise Physiologist at an organisation called Kinnect, and a fitness for duties assessment with Dr Chris Cunneen, Occupational Physician.

[12] The Applicant states that during the functional assessment with Kinnect, he successfully lifted various weights above shoulder height and waist to shoulder height as well as from floor to waist height. The Applicant states that he completed the floor to waist lifts, up to a weight of 25kgs, without any pain or issues. At this point, the Applicant states that he began to sweat lightly and said words to the effect that having not worked for 18 months, he was not used to doing physical work. The Applicant asked to stop there because he “never [had] to lift anything this heavy or heavier than this anyway” 4. The Applicant states that he could have lifted heavier from floor to waist, but as he “never” had to lift anything heavier he did not think it was necessary.

[13] The Applicant attended the fitness for duties assessment with Dr Cunneen on 30 October 2015. During that appointment, Dr Cunneen asked the Applicant various questions, including questions relating to his medical history. In around 2005, the Applicant sustained a back injury and he honestly answered questions about this injury as best he could. The Applicant states that, his answers in respect of the back injury were “vague” because he had not reviewed his medical records, as his understanding was, the assessment was in respect of his knee injury.

[14] It is of assistance to consider, briefly, the Applicant’s evidence in respect of that back injury. In 2005, the Applicant injured his back, which, to the best of his recollection, was a prolapsed disc, which was bulging. The Applicant underwent surgery in 2006 to remove the disc. The Applicant was certified as fit to return to work and did so in 2006. Since his return to work from the back injury, the Applicant states that he has had no further issues with this back injury or the resulting surgery and that further has not had a sick day relating to that injury or surgery. 5 The Applicant states he has not had any further lower back pain or any restrictions arising from this injury.

[15] The Applicant did have a further back injury in 2010 that resulted in time off work. The Applicant states that this injury was as a result of pulled muscles in his back, just below the shoulder. This injury was resolved with rest, physiotherapy and anti-inflammatory medication. It is the Applicant’s evidence that this injury did not relate to the previous disc injury.

[16] On 14 January 2016, the Applicant attended a further meeting with the Respondent. The Applicant was handed a “show cause” letter. The TWU, on behalf of the Applicant, disputed that show cause letter, which was ultimately withdrawn by the Respondent.

[17] On 4 March 2016, the Applicant attended a further meeting at which he was provided a further show cause letter. That letter had the subject “Outcomes of Fitness for Duties Assessment”. This show cause letter relevantly stated:

“I refer to the fitness for duties assessment performed on you on 30 October 2015 and the supplementary report provided dated 25 November 2015. I enclose a copy of the assessment reports prepared by Dr Christopher Cuneen (sic), Occupational and Environmental Physician.

The Assessment was conducted in light of:

a) Your ongoing medical conditions specifically your knee and lumbar spine condition;

b) Your pattern of work-related injuries; and

c) TNT’s duty of care to take reasonable steps to ensure that you are not injured at work.

As you are aware TNT has a duty of care to ensure that your health and safety, and the health and safety of others are not put at risk. Based on the above, TNT held reasonable concerns about your ability to safely carry out the inherent requirements of your role.

The assessment results reported that:

A lift limit of 20 kg is required to perform the inherent requirements of your role as Bulk Driver.

You are unfit to perform your usual duties as a PUD Driver (including Bulk) as you are unable to perform the work unrestricted.

There is a risk of further injury or exacerbation of your underlying lumbar spine condition with some of the heavy and more awkward aspects of the lifting requirements. Dr Cunneen opines “that to require this employee to lift >20kg unaided or without the use of any mechanical aids, would be associated with at least a moderate risk of further work-related exacerbations and aggravations to his underlying degenerative Lumbar Spondylosis, in the future”.

Due to the nature of TNT’s freight profile, TNT reasonably requires PUD Drivers and Dockhands to be able to lift the following weights:

a) 40 kg floor to waist;

b) 30 kg waist to shoulder; and

c) 20 kg above shoulder.

The results of the assessment indicate that you are unable to safely perform the inherent physical requirements of your current role and impose significant restrictions on the kind of work that you can safely perform at TNT.”

[18] The show cause letter indicated that the Respondent sought to consult with the Applicant regarding the assessments and their impact upon the Applicant’s suitability for continued employment in his current position and any alternative positions the Applicant might otherwise be qualified to safely perform. The letter advises that should suitable alternative roles not be identified, the Applicant’s employment would be terminated as a result of incapacity to safely perform the inherent requirements of the position.

[19] The present application was lodged on the same day. A conference was convened before the Commission. It was agreed at that conference that the Applicant would attend the further show cause meeting that had been set for the next day. At that meeting the Applicant states he was advised that the Respondent’s decision that he would not be returned to his role “stood”. A further conference was convened before the Commission. Directions were subsequently issued by consent for the parties to file material in support of their respective positions to determine this matter by Arbitration.

Relevant Agreement and Legislative Clauses

[20] Sections 738 and 739 of the Act provide as follows:

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

...

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.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(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.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

[21] The Disputes Procedure in the Agreement provides as follows:

“12. DISPUTE RESOLUTION PROCEDURE

Any dispute or grievance that arises at the workplace between;

a) a Transport Worker/s and the Company, including but not limited to

a dispute about any condition of employment or the NES; and/or

b) between the TWU and the Company about the interpretation or

application of this Agreement, including but not limited to a dispute

about any Transport Worker's conditions of employment or the

Company's compliance with the NES in relation to one or more

Transport Workers.

with the exception of termination of employment, shall be dealt with in the

following manner:

12.1. The matter must first be discussed by the aggrieved Transport Worker(s) directly with his or her or their immediate supervisor.

12.2. If the matter remains in dispute, it must next be discussed with the

supervisor's immediate superior or another representative of the

Company appointed for the purpose of this procedure. The TWU

delegate for the worksite has the right to attend and participate in this

discussion as a representative of a Transport Worker provided that the

TWU delegate is the representative of the Transport Worker's choice;

12.3. 1f the matter remains in dispute, it must next be discussed with the

relevant manager of the Company. The TWU State Secretary (or his/her nominee) has the right to attend at and participate in this discussion as the representative of a Transport Worker provided that the relevant TWU State Secretary is the representative of the Transport Worker's choice;

12.4. 1f the matter in dispute remains unresolved, the Company's Employee

Relations Manager (or nominee) will meet the State Secretary of the

TWU (or nominee) and discuss the matter.

12.5. 1f the matter remains in dispute, it must next be submitted to the Fair Work Commission (FWC) for conciliation. For this purpose, it is agreed that the action FWC may take includes arranging conferences of the Parties or their representatives at which FWC is present; and arranging for the Parties or their representatives to confer among themselves as conferences at which FWC is not present.

12.6. 1f the matter is not resolved in conciliation conducted by the FWC, the

Parties agree that the FWC shall proceed to arbitrate the dispute and/or otherwise determine the rights and/or obligations of the Parties to the dispute. In relation to such an arbitration, the Parties agree that:

a) The FWC may give all such directions and do all such things as are

necessary for the just resolution of the dispute, including but not

limited to those things set out in Division 3 of Chapter 5 of the Fair

Work Act 2009.

b) Before making a determination the FWC will give the Parties an

opportunity to be heard formally on the matter(s) in dispute.

c) In making its determination the FWC will only have regard to the

materials, including witness evidence and submissions, put before

it at the hearing and will disregard any admissions, concessions,

offers or claims made in conciliation.

12.7. The decision of the FWC will be binding on the Parties subject to the

following agreed matters:

a) There shall be a right of appeal to a Full Bench of FWC against the

decision, which must be exercised within 21 days of the decision

being issued or within such further time as the Full Bench may

allow.

b) The appeal will be conducted in accordance with the legal

principles applying to an appeal in the strict sense.

c) The Full Bench (or a nominated member of the Full Bench) shall

have the power to stay the decision pending the hearing and

determination of the appeal.

d) The decision of the Full Bench in the appeal will be binding upon

the Parties.

12.8. Until the matter is resolved by agreement, conciliation or arbitration,

work will continue in accordance with the status quo. No party is to be

prejudiced as to the final settlement by the continuance of work in

accordance with this procedure.

12.9. 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 disputes in a timely manner in accordance with the procedure set out in this clause and will co-operate to ensure that these procedures are carried out expeditiously.”

Inherent Requirements – Documentary Evidence

[22] Before the Commission are a number of documents that are relevant to this task including:

• Safety Bulletin: Core Physical Demands of Front Line Operational Roles and Maintaining Fitness for Work;
• Backsafe Training;
• TNT Express Australia Driver Handbook;
• Work Health and Safety (Hazardous Manual Tasks) Code of Practice 2015; and
• Physical Demands of Core Positions within TNT.

[23] Some of these documents are considered in closer detail below.

[24] In addition to these documents, the Commission conducted an inspection of the Respondent’s Redbank Depot with the parties. The Redbank Depot is a new facility at which the Applicant has not worked, given the length of time, which he has been absent from the workplace. However, it is agreed that the role of Bulk Driver is ostensibly the same as the Redbank Depot, as was undertaken by the Applicant at the Salisbury Depot. During this inspection the Commission and parties viewed the duties of Bulk Drivers and the freight trucks and equipment available.

TNT Driver Handbook

[25] The TNT Driver Handbook (the Handbook) is designed to help drivers provide TNT customers with efficient and professional service. The Handbook also gives drivers the information needed to comply with their legal obligations and general best work practice standards. The Handbook states:

“..the information is designed to make you safer in the workplace and on the road TNT prides itself on its safety record and has many processes in place to ensure you go home to your loved ones in the same state of health as when you left them…”

[26] Section 7.4 of the Handbook refers to “Lifting, Carrying, Pushing and Pulling”. The section commences:

“Poor manual handling practices account for half of all injuries sustained by TNT personnel. Severe back and shoulder injuries can be permanent and painful.”

[27] The section goes on to state:

“NB: Never attempt to lift freight that is too heavy for you:

• Use correct manual handling techniques (think ‘BACKSAFE’!) when lifting/putting down freight
• Always assess the weight of the load before lifting an item

…

• If an item is greater than 20kg…and does NOT have a ‘Heavy’ sticker, put one on it
• Use lifting aids such as a trolley
• Get assistance for heavy items (i.e. items you believe are outside your comfort zone to lift alone, or are too awkward) if lifting aids are not available….”

Safety Bulletin: Core physical demands of front line operational roles and maintaining fitness for work

[28] This Safety Bulletin is dated April 2016 and acknowledges that the work undertaken by TNT’s front line workers is physically demanding. The Safety Bulletin states that to support TNT’s obligations in ensuring that “any new employees entering the business” can safely perform the inherent requirements of their roles, it has identified and documented the “core physical demands” of various frontline operational roles, including that of Bulk Driver. These assessments were undertaken on the basis of a “detailed task analysis” that examined and identified the physical demands for the operational roles. This included:

• Weights of the cartons that are required to [be] handled when performing the role
• Location of where these cartons are placed/picked up from e.g. above shoulder height, from floor level
• The type of movements required to be performed e.g. pushing, carrying, stooping
• The frequency that each movement is required to be performed e.g. occasional, frequent, constant
• Force required to perform task
• Overall physical demands of the task (this described the primary movement types, the frequency that these are performed, weights needed to be lifted and force required)
• Description of physical demands of task (task description + physical demands including weights required to be lifted and where/how these weights are lifted)

[29] It is noted that this task analysis does not refer to any of the available mechanical aids, to assist with lifting.

[30] The result of the analysis identified above is said to have identified that workers applying for or “currently performing” a number of roles, including Bulk Driver, need to be able to complete the following “to be able to safely perform the inherent requirements of” the roles:

• 40kg floor to waist/waist to floor
• 30kg waist to shoulder height/shoulder height to waist
• 20kg above shoulder height/above shoulder height to shoulder

[31] Again, it is noted that the document does not specify that the lifts have to be undertaken unaided.

[32] Following from these, the Safety Bulletin states that TNT has developed, among other things, a “Physical and Functional Assessment Form” required to be completed as part of fitness for duties assessments. In addition to a number of general functional capacity assessments, the assessment is said to involve “specialist tests” to determine:

“…if there is the presence of a (sic) injury and/or condition that increases the risk of a person being injured or will prevent a person from being [able to] safely…perform the inherent requirements of their role.”

[33] This is said to include close examination of the, amongst other things, the knee and lower back.

Physical Demands of Core Positions within TNT

[34] The Physical Demands of Core Positions within TNT (Physical Demands Document) is dated 1 July 2013. The document is separated into various positions, including that of Bulk Driver. For a Bulk Driver, the overall physical demand rating is said to be “Medium to Heavy”. In that description is a table under the heading “Overall Physical Demands of Task”. The table is split into columns regarding a list of physical demands, and frequencies at which those demands may occur. The content of that table relevant to the present dispute may be summarised as follows:

• Occasional lifts of Up to 40kg – ground to shoulder level; and
• Infrequent shoulder lifts.

[35] In the table “Description of Physical Demands of Task” the following “Physical Demands” are listed next to “Loading/Unloading Deliveries”:

• Frequent standing % walking
• Occasional to frequent Occasional to frequent lifting, carrying and handling items of different weights, shapes and sizes up to 40kg from ground to waist, 30+ kg from waist to shoulder and 10-20kg above shoulder height
• Frequent gross, plate and/or pinch grasping
• Occasional to frequent handling items of different weights, shape and sizes
• Occasional to frequent pulling/pushing of pallet jack (loaded/unloaded)
• Occasional medium to heavy pushing/pulling force for pallet jacks, closing/opening curtains and lifting gates from ground to above shoulder level.

[36] The Document defines the frequencies as:

Occasional – 0-33% of an 8 hour day (0-20 mins per hour)

1 lift every 30 minutes

Frequent – 34-60% of an 8 hour day (20-40 Mins per hour)

1 lift every 2 minutes

Constant – 67-100% of an 8 hour day (40-60 mins per hour)

1 lift every 30 seconds

Inherent requirements - Consideration

[37] The Applicant submits that the evidence establishes that what have been “deemed” by the Respondent to be inherent requirements are not and, in fact, cannot be, the inherent requirements of the Applicant’s role. The Applicant asserts that the inherent requirements of the Applicant’s role are to “perform manual handling tasks in accordance with the Respondent’s safety procedures and safe systems of work”.

[38] The task of properly identifying the inherent requirements of a role was extensively considered by the Full Bench of Fair Work Australia in J Boag and Son Brewing Pty Ltd v Allan John Button 6 (Boag). The Applicant submits that Boag requires that the nature of inherent requirements is that they must be an essential feature or requirement of a role. Inherent requirements cannot be created by an employer for things which are not essential and must be reasonable and objectively assessed.

[39] The Applicant submits that those items set out in the Core Demands Document cannot be inherent requirements of the role. Rather, the Respondent has implemented a safe system of work in respect of manual handling. That system is comprised of training in manual handling (BackSafe training) and the Driver’s Manual. These documents require that employees do not lift freight alone that is too heavy (in excess of 20kgs) or awkward in shape or size. In these circumstances, employees are required to place a heavy sticker on the items and either use manual handling aids or get assistance. If these options are not available, employees are instructed to either return the freight to the Depot or not pick it up from a customer, and alternative arrangements can be made.

[40] The Applicant accepts that employees are required to comply with safety policies and procedures. The Applicant’s letter of appointment requires that the Applicant comply with the Driver’s Manual.

[41] That the Core Demands document was distributed at a tool box meeting in mid-April 2016, does not make the contents of that document an inherent requirement. It is the Applicant’s submission, that compliance with that document would cause employees to breach other safety procedures, with possible consequences for disciplinary action.

[42] If the contents of the Core Demands document are inherent requirements, the Applicant submits that they are otherwise not reasonable or lawful. In this respect the Applicant relies upon Dr Munn’s evidence and Dr Cunneen’s initial statement, whereby both recorded their surprise as to a significant risk of injury associated, with lifting any weight of more than 20kg unaided.

[43] Further, the Applicant submits that the Code of Practice 2015 advocates a risk management approach to the assessment of manual handling tasks and for appropriate controls to be implemented to manage those risks.

[44] The Respondent submits that to consider whether the inherent requirements of the Applicant’s role are unreasonable is beyond the scope of the agreed questions for arbitration. The Applicant had initially sought that the questions for arbitration include a question in respect of whether the Core Demands (document) were reasonable and/or lawful, which was opposed by the Respondent and ultimately not agreed. To approach the matter in this manner would interfere with managerial prerogative, a principle which is well-established and recognised.

[45] The inherent requirements of the Applicant’s role were established by the Respondent on the basis of a rigorous and independent task analysis of the core functions performed by employees of TNT. The documents established by this review and analysis (Core/Physical Demands Document and associated assessment documents) have since been used by the Respondent.

[46] The Respondent submits that the Commission should not engage in an approach that would involve consideration of the relative merits of the different positions or options. Rather, the Commission must consider whether the Applicant has demonstrated that the Respondent’s position, as it relates to him, is unjust or unreasonable to warrant the Commission’s intervention. The Respondent submits that this is consistent with well-established principle as relates to managerial prerogative. This determination must be made on the basis of the evidence before the Commission, importantly, whether TNT had a reasonable basis for its position, not whether another approach or position may be preferable.

[47] The Respondent disputes that the Physical Demands document was “merely distributed” in April 2016. The Respondent submits that the document was the subject of rigorous and independent task analysis of the core functions of the Respondent’s employees. The Respondent submitted that the documents are a part of a pre-employment screening process and have been since January 2013. This does recognise that these limits were introduced as benchmarks during the Applicant’s employment.

[48] The Respondent submits that what the Applicant is requesting that the Commission do is to consider what the inherent requirements of the Applicant’s role ought to be, rather than to consider what they are. The Applicant submits that the applicable documents must be read together.

[49] The Core Physical Demands document (that the Respondent submitted reflects the inherent requirements of the Bulk Driver) has been previously considered in Phillip Alcock v TNT Australia Pty Ltd T/A TNT Express 7. In that Decision, dealing with the same employer, the Member observed that a document that contains the physical demands of the position, establishes the minimum thresholds of capacity:

“That is, the Physical Demands document is the one that should be seen as establishing minimum thresholds of capability, or to put it another way, the inherent requirements of the position, at least as they relate to the physical fitness of a given employee. When TNT Express require a driver to be able to safely lift 40 kg from floor to waist height; up to 30 kg from waist height to shoulder height; and up to 20 kg from shoulder to above shoulder height, and cannot guarantee a driver will not be required to do those things, the effect of its requirement is not to say that a driver must be able to lift to these capacities that on a very high frequency, but rather its effect is to say that these are lifting limits that a driver must be able to withstand in the course of an ordinary or routine shift. A driver is expected to be able to pick up and deliver, for the vast majority of their time on their own, parcels that fall within those limits.”

[50] The Applicant submits that Alcock is not authority for the proposition that the inherent requirements of the Applicant’s role are as set out in the Core Demands document. The Applicant distinguishes Mr Alcock’s matter on the basis that the conclusions in Alcock were premised on the basis that Mr Alcock was, in fact, required to lift freight weighing in excess of 20kgs and up to 40kgs. The evidence in this matter does not establish as a matter of fact that the Applicant is similarly required to do so.

[51] Further, the Applicant contended that the Commissioner erred in accepting that the Respondent’s safe system of work was overridden by the requirements in the Core Demands document. The Applicant submits that the Respondent cannot override its statutory obligations in respect to workplace health and safety by requiring employees to perform work that is in breach of a safe system of work.

[52] The Respondent submits that Alcock and the conclusions from it, are pertinent in this matter. The Commission made an objective finding that the Physical Demands document was appropriate having regarding to, amongst other things, the practicalities of the work of a Bulk Driver. The Respondent submits that to succeed in its submissions, the Applicant must show that Alcock was incorrect.

[53] The determination of the inherent requirements of a position requires an analysis not only of the terms on which a person has been employed, but the job they do, how they perform it at the workplace and the organisation within which the job is performed (there was a volume of evidence on these matters). The following is relevantly extracted from the Decision in Qantas Airways v Christie 8, in assessing inherent requirements:

"The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer's undertaking and, except where the employer's undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation." 9 

[54] And further:

“In determining the meaning of the relevant phrase in s.170DF(2) the court laid down the following propositions:

(a) a stipulation in a contract of employment is not necessarily conclusive to show whether a requirement is inherent in an employee’s position; 10

(b) there may be many situations in which the inherent requirements of a particular position are properly identified as the characteristic tasks or skills required for the work done in that position, but that is not always so; 11

(c) an inherent requirement is something that is essential to the position, and an employer cannot create an inherent requirement by stipulating for something that is not essential or by stipulating for qualifications or skills which are disproportionately high when related to the work to be done;  12

(d) a practical method of determining whether or not a requirement is inherent is to ask whether the position would be essentially the same if that requirement were dispensed with;  13

(e) the “position” in the relevant statutory provision under consideration in that case was the “particular bundle of contractual rights and obligations, supplemented by the operation of statute”.  14

[55] I do not agree with the Respondent that the Commission must accept what the inherent requirements of a position are, simply on the basis that they are asserted to be inherent requirements by an employer. Rather, the case law establishes that the correct approach, is to objectively determine what the inherent requirements of a position are on a consideration of the evidence which includes the terms on which a person is employed, the job that they undertake as well as relevant surrounding circumstances. Evidence was provided on these matters. Further, the questions for arbitration in this matter have been agreed. What has not been agreed is what are the inherent requirements for the position such that the Commission has an agreed basis on which to approach the questions for determination. The parties have not agreed what are the inherent requirements of the job or otherwise approached the matter on the basis of an agreed statement of facts.

[56] However, I do accept the Respondent’s submissions that it is not the job of this Commission to consider several approaches or options and choose which option it prefers or considers to be most reasonable. In this matter, the Respondent has asserted what it considers are the essential requirements of the position. That assertion is disputed by the Applicant on a number of bases.

[57] In line with the criteria as set out in X v The Commonwealth 15 the inherent requirements for a bulk driver must be considered in combination with the surrounding context of the Applicant’s workplace and duties, and it is recognised also the requirements of the Employer and their actual approach to the conduct of the duties at the workplace. That is, in the context of TNT’s workplace and the physical capabilities of the employees generally, that perform these similar tasks. The requirements of the workforce generally must be considered as well as the workplace generally. The assessment must take into account; the employees, the nature of the job and tasks in combination with the reasonable accommodations, for example, the lifting aids available and other manual handling procedures and practices.

[58] The Applicant submitted that the role of a Bulk Delivery Driver includes delivering and picking up bulk freight, but in practice 90% of freight is usually palletized, but there can also be some large items of freight. The Applicant submitted that bulk freight is normally delivered to or picked up at commercial premises, where warehouse/store staff have various pieces of manual handling equipment available. It was emphasised, that the Applicant, to aid in lifting, had access to a pallet jack and a two-wheeled hand trolley, permanently on his truck. Another type of truck was also referred to, that has a hydraulic lift, at the rear, for lifting freight.

[59] The Applicant’s representative relied on the following points from the evidence from Mr Seers, Hub Operations Manager, and Mr Zichy-Woinarski, General Manager Workplace Risk, to demonstrate that the Applicant is able to perform his duties, on the same terms, as other employees are required to do so. The following elements that emerged from the evidence of the Respondent witnesses, supported the capability of the Applicant, to perform the duties of his role; that is the lifting of freight and/or utilising the available equipment associated with lifting the freight. In this regard, the Applicant summarised Mr Seers’ evidence as follows: 

“(e) “There is no set weight limit for Heavy. Rather, it is what an individual driver feels is heavy to lift.”;  16

(f) if a driver believes that freight is heavy and unsafe to lift, they can contact the supervisor and advise they cannot deliver the freight;  17

(g) in the case of picking up freight, enquiries would be made of the customer in advance as to the nature of the freight;  18

(h) if the pick-up item could not be lifted unaided, the supervisor may send another driver to assist and, if that was not possible, the pick-up would be declined and a tailgate truck sent out;  19

(i) the presence of a “Heavy” sticker on an item of freight does not mean that the driver cannot lift the freight;  20

(j) during manual handling training drivers are told that if lifting freight is above their capacity, then they are to ask their supervisor for assistance;  21

(k) the presence of a “Heavy” sticker on a piece of freight is to alert the driver to assess the freight before lifting;  22

(l) there has been no instruction to drivers to not lift above 20 kgs;  23

(m) if an item which appeared difficult to manage was to be delivered to an unfamiliar customer, it was a good practice, encouraged by TNT, for the driver or supervisor to contact the customer in advance to determine if there was mechanical or manual assistance at the site ;  24”

[60] Importantly in assessing whether the Applicant can perform the inherent requirements of the job; the further evidence of Mr Seers is relevant:

“(n) if a driver assessed a 40 kg item as too heavy or awkward to handle, TNT encouraged the driver to seek assistance and there would be no repercussions;  25

(o) every employee is managed in accordance with their personal circumstances and medical requirements and TNT ensures that employees can safely perform the inherent requirements of their roles;  26

(p) the overriding rule was that TNT’s requirements were subject to safe manual handling procedures.  27”

[61] In contrast to the TNT, Core Physical Demands, designated weights, Mr Zichy-Woinarski stated TNT does not stipulate the maximum lift for its workers 28, nor does it provide any information to its workers that requires, that they are not to lift more than 20 kg29. Mr Zichy-Woinarski also stated that the safety of an unassisted lift was a matter of self-assessment by the driver30, and importantly he also stated that “the driver’s self-assessment of their comfort and what he was safely able to lift was an overriding safety mechanism” 31.

[62] It is noted in Dr Cunneen’s initial report of 30 October 2015, he makes particular comment in his recommendations for the Applicant’s return to work, as per below, as does the other assessing medical practitioner, both expressed surprise, at a lifting weight of 40 kg: 

“RECOMMENDATIONS:

I would advise the following restrictions for next 4 weeks:

1. Fit to work normal hours.

2. No lifting greater than 10kg for first 2 weeks with progressive increase over next 2 weeks to normal weight/duties.

Comment: I note the Functional Demands Of Core TNT Positions (Bulk Driver) references on Page 6, “Lifting 40kg plus”. I am surprised this amount is flagged for Bulk Drivers alone, as there is a significant risk of musculo-skeletal injury associated with any employee lifting any weight of more than 20kg unaided.”

(emphasis added)

[63] Dr Cunneen’s further evidence sought to alter this statement. However, I agree with the Applicant’s representative’s assessment of Dr. Cunneen’s oral evidence regarding his retraction of his commentary on the 40kg weights as previously set out as follows:

“Dr Cunneen’s oral evidence 32 was in most respects unsatisfactory. He attempted to resile from the statements in his first report set out at paragraph 30 above. He volunteered while being questioned about an unrelated matter that the reference to “any employee” was a “typo”33 and that the second statement was restricted to Mr Martin only. That evidence should be treated with extreme caution. It lacked conviction. At best, the doctor’s position was that his brief was to assess Mr Martin only and he could not comment on the TNT workforce generally.34 Dr Cunneen’s assessment of Mr Martin’s capacity must also be called into question. His conclusions that Mr Martin suffered from lumbar spondylosis and “recurrent work related injury” were unsupported by any solid evidence and must be regarded as conjecture. The doctor had no medical imaging of the lumbar spine.35 He seemed unaware that the 2010 incident involved muscular injury and could therefore not be regarded as an aggravation of the 2005 injury36. He conceded that any back pain since 2006 had not been disc related and that Mr Martin had stated there had been no back pain at all since 2010.37 Mr Martin denied that he had been diagnosed with lumbar spondylosis38 and that evidence should be accepted. Of greater assistance is the evidence of the specialist occupational physician, Dr Josh Munn. Dr Munn’s first witness statement39 annexes a report of 11 May 201640 in which Dr Munn points out that the lifting requirements which TNT has sought to impose on its Bulk Drivers are in excess of the maximum weights recommended in Manual Handling Guidelines issued by Liberty Mutual Insurance and NIOSH.41”

[64] He also emphasised, in demonstrating the concern of practitioners with a 40 kg lift, this should be taken into consideration, as relevant to the Applicant’s case:

“In a further statement, 42 Dr Munn confirmed his agreement with the propositions that an unaided lift in excess of 20 kgs would pose a significant risk of injury to any employee, and that a 40 kg lift should be safely performed as a two person lift. Dr Munn was not cross-examined about those opinions.

Similar conclusions had been reached by Dr Edwin Butler, a specialist in occupational and environmental medicine, in a report of 3 June 2015, 43 in which Dr Butler had been assessing the fitness for work of another employee, Mr Askew, whose roles included that of forklift driver44. Having noted in an earlier report TNT’s physical demand that the worker be able to lift up to 40 kgs between floor and waist height, Dr Butler stated his opinion that “lifting 40 kg from floor to waist, even on an occasional basis, would be considered a hazardous manual task and would carry with it a foreseeable risk of a number of injuries, particular back injuries. In answer to your request for further recommendations to be considered by TNT, I recommend that TNT review the manual handling requirements in the forklift operator position to identify risk control methods to prevent future injuries, not only to [Mr Askew] but also other workers employed in the same position.

The Commission will note that the same lifting requirements as for Bulk Drivers are said to be imposed on Forklift Drivers 45 and that Dr Butler worked for Sonic Health which was an advisor to TNT in the formulation of its physical and functional assessment.46”

[65] Effectively, in this matter, the Applicant argued that, on the job, the requirement to lift 40kg was rarely required and if it was required for freight over 20kg, mechanical lifting aids were available to any employee. The evidence of Mr Delamotte supported this. Further, the Applicant and Mr Delamotte, in their work as Bulk Drivers, stated they regularly used these lifting aids to lift freight of more than 20kg. Further in specifically examining the Applicant’s duties, the evidence of Mr Delamotte, 47 a Bulk Driver of 28 years’ experience with the Respondent, confirmed the duties of the Applicant, that could be undertaken and that were agreed with in the evidence of Mr Trent Seers, Hub Operations Manager at Redbank Depot.

[66] In addition, this evidence stated that these aids, such as hydraulic lifting devices on trucks and or trolleys could be utilised at the customers’ premises, if no assistance was available at a particular site. If no assistance was available at a site, the evidence indicated that such could be indicated to the supervisor and arrangements made for an additional person to assist at the site or for arrangements to be made with the customer to enable the delivery of the freight.

[67] It does not appear to be the case that TNT directs or requires employees to use manual handling devices or aids at any particular time but rather leaves such matters to the individual judgment of each driver. Integral to this, TNT considers that drivers should make this assessment on each occasion by assessing the risk of each particular item and particularly when heavy items do need to be moved. The evidence before me does not establish that this is so likely that it would be unreasonable to accommodate the Applicant in this respect. It is unclear why manual handling aids or other avenues would not as a matter of routine, be available to the Applicant and be used in circumstances to reasonably accommodate a potential limitation. However, the clear obligation for this assessment rests with the Applicant for the use of the mechanical aids.

[68] The evidence before me does establish that 90% of the delivery items in respect of the Applicant’s role is on a pallet. Some pallets are required to be broken down but the evidence indicates that it is up to the individual driver to assess for themselves whether they are able to safely lift an item. If they are unable to safely lift an item it is further up to the driver how to safely perform the work; be it by use of a pallet jack, trolley or other aid, a fellow worker or by making arrangements for the safe delivery of the item. The evidence before me does not establish that lifting items in excess of 40kgs is an inherent requirement of the job. Indeed, the evidence would appear to be that for any item of over 20kgs it is presumed or preferred that individual drivers assess the item and take appropriate steps to safely manage that risk. The Applicant stated further, that the movement of curtains or gates on the truck would not cause him any difficulty, as they are well less than 20kg in weight. Mr Delamotte stated that the bulk drivers rarely had to lift gates on trucks and that in any event gates weighed no more than 10kg and the curtains on the trucks no more than 5 kg and that these moved on a sliding mechanism, and would cause the Applicant no difficulty.

[69] Accordingly, on the evidence in relation to this particular application, it can’t be concluded that TNT has established that the ability to lift weights of over 40kg, unaided, is an essential requirement of the position of Bulk Driver as it relates to the Applicant. This conclusion has been reached as set out for a number of reasons. Primarily, the Driver’s Handbook establishes that what employees are required to do is use correct manual handling techniques, assess items before lifting, take necessary steps to safely lift such items, and if not able to do so then seek assistance. That is, what is essential to the job of a Bulk Driver. The further evidence establishes that in circumstances where an item could not be safely lifted and there was no assistance available, a Bulk Driver should arrange assistance.

Medical Evidence

[70] The question in relation to the inherent requirements can also be answered in the affirmative on the basis of the medical evidence and the process in having those assessments performed. The medical evidence establishes that the Applicant is able to lift at least 25 kilograms and it has been recommended that he return and undertake appropriate work hardening. 48

[71] The Kinnect Functional Assessment Report on the Applicant provided the following opinion:

“Purpose of Assessment:

Mr Martin was referred to KINNECT for a functional capacity assessment to determine Mr Martin’s functional capacity and identify any restrictions to perform his duties as a bulk driver at TNT Express.  

Opinion

In my opinion Mr Martin demonstrated good functional capacity, however did not meet all of the reviewed job demands of the pre-injury job as a bulk driver. Mr Martin reported he is capable of performing his full duties despite having been off work for the majority of 2014/2015…

In my opinion Mr Martin demonstrated reduced capacity for lifting. Mr Martin’s job role requires him to lift up to 40kg occasionally over a 12 hour working shift (please refer to Physical Demands below). In my opinion Mr Martin demonstrated the capacity to lift up to 25kg safely from floor to waist height. Mr Martin was not observed to lift heavier than this as he ceased testing due to self-reports of ‘not want[ing] to lift heavier as I am starting to sweat”. In my opinion Mr Martin demonstrated the capacity to lift up to 30kg from waist to shoulder height and up to 20kg above shoulder height. This task was ceased by the assessor as Mr Martin met the lifting requirements. Mr Martin commented that he “would not have lifted any heavier without assistance”. In my opinion Mr Martin demonstrated good positional tolerances, however demonstrated reduced capacity for kneeling. This task was ceased at 45 seconds, Mr Martin reported it did not “feel right at the tip of the knee cap”. Mr Martin demonstrated good strength in his quadriceps during repetitive squatting, however, was slightly limited in his range and did not bend to 90 degree knee flexion despite demonstrating a passive range of motion of up to 100 degree flexion. In my opinion Mr Martin demonstrated good capacity for standing, sitting, forwards reaching and above shoulder reaching (see results below).

In my opinion Mr Martin demonstrated functional range of movement, however reduced range was observed during right knee flexion. In my opinion reduced right knee range of movement does not functionally reduce his ability to perform his job role. In my opinion Mr Martin demonstrated average grip strength which was consistently observed during lifting tasks.”

[72] In Dr Cunneen’s Report of 30 October 2015, Dr Cunneen noted that when seen on that day, the Applicant was six months post-surgery for his right knee, and despite undergoing no post-operative rehabilitation or physical therapy, the Applicant had made a good recovery from knee joint surgery. The knee was well aligned, not loose and stable, and as he detailed at page 6 of the Report, the Applicant had capacity to return to work to his full pre-injury role with his progress and he provided restrictions for the next four weeks.

[73] The Respondent, in assessing the Applicant’s ability to return to work, relied on not just an assessment of the knee injury, the reason for the assessment, but that part of the medical report that cited as a difficulty to return to work; the potential exacerbation of a prior back injury. There had previously been no evidence of this causing the Applicant any difficulty, in his prior recent years and for that reason no specific medical information had been provided to the doctor on his back, nor had the Applicant been put on notice, that this was under medical review. He therefore did not have any of the relevant medical information, regarding his prior back injury, and it can be construed that, the Applicant considered this questioning as the routine gathering of uncontroversial background medical information. The questioning that was put to the Applicant in the circumstances, without having provided specific documentation, regarding his medical history related to his back was in the context, that it had not been that there was any on-going difficulty arising from back problems, in undertaking his duties. The requirement for the further medical examination was established on the basis of the knee injury and his associated absence from the workforce.

[74] The onus would be on the employer to treat employees having experienced a similar back history to be put on notice that they would be screened in the same way. No evidence was brought by the Employer of screening employees who have previously experienced similar back injuries, but have not exhibited further problems; in this way.

[75] The evidence did not sustain that this was the reason for the employer requiring the medical assessment, nor did the employer provide evidence regarding their approach to other employees who may potentially harbour a suspected weakness from a surgical procedure undertaken sometime prior, that had not arisen as a difficulty in later years in the performance of their duties. 

[76] This diagnosis emerged as a surprise to the Applicant, and emanated from a very casual oral exchange between the doctor and the Applicant regarding, his medical background and symptoms, without forewarning of the assessment, on this basis or having the associated factual medical documentation. The conclusion from this cursory assessment had significant implications for the Applicant, and cannot be considered to be a fair approach to such an assessment.

Conclusion

[77] It is recognised that TNT is a significant commercial enterprise with a large workforce and as such, as a business, it is necessary to operate in the most optimally efficient and safe manner, with uniform guidelines across employees. The Respondent emphasised that their physical and functional assessment document was used as part of their pre-employment assessment for prospective employees. It is recognised it also had wider application to the workforce. This matter at hand, can be distinguished (from a pre-engagement test), in that this was not a pre-employment assessment, but the assessment of a long term employee who was injured and had been working without issue prior to this injury. In addition, on the Applicant’s case, he was cleared by his Doctor, as fit to return to his job and further cleared to return with a minimum amount of work hardening back on the job, to perform his duties.

[78] The onus is on the Employer to demonstrate that the employee (specifically in the current circumstances) cannot meet the inherent requirements of the position. The Respondent’s approach was that they could not provide through alternative means, reasonable accommodation of the Applicant’s physical limitations and that the Applicant’s case was considered against the recently reviewed core physical demands. The Respondent stated it could not provide guarantees that the Applicant, in the discharge of his duties, would not be required to lift, handle and apply force to objects that are greater than 20kg.

[79] The evidence demonstrates that TNT’s operations rely on the judgment of drivers to take responsibility for their own safety and assessing the lifting of freight. The evidence of the drivers substantiates that they are aware of this responsibility and are acutely aware of the mechanical lifting aids provided by the Employer to assist them in discharging the duties. TNT, as per the evidence, supplies a number of mechanical and lifting aids in this regard, which employees are strongly encouraged to use where they think it appropriate. All employees are required to assess the safety of a lift, prior to performing that task and have an obligation to undertake their duties in accordance with the safe manual handling techniques and practices.

[80] The responsibility lies with the Applicant to self-report to the Employer, if in fact against the process of work demands and the environment as has been described in the evidence (with mechanical aids available) he finds, he cannot in fact, undertake the duties, after the appropriate work hardening, as recommended.

[81] The evidence does not represent that what is asserted as the inherent requirements of the role of Bulk Delivery Driver are the inherent requirements in practice. For the aforementioned reasons and on the evidence, a satisfactory conclusion cannot be made, that the Applicant would not be able to perform these duties by following the manual handling policy reflected in TNT’s Driver’s Handbook. I am also not satisfied that the medical evidence establishes that the Applicant is limited in performing the duties identified. The way in which the concluding medical assessment was conducted was unfair to the Applicant for the reasons outlined above.

[82] The questions for Arbitration are answered as follows:

1. Is Mr Martin fit to perform the inherent requirements of the role of Bulk Driver with TNT?

Answer: Yes.

2. Should the Applicant be returned to his role immediately with appropriate ‘work hardening’ as recommended by Dr Christopher Cunneen, Occupational Physician?

               Answer: Yes.

[83] I Order accordingly.

COMMISSIONER

Appearances:

Mr Robert Reed, Counsel, for the Applicant.

Mr Bilal Rauf, Counsel, for the Respondent.

Hearing details:

Brisbane:

25 and 26 July 2016 and August 8 2016.

 1   Exhibit 2 at 22.

 2   Ibid.

 3   Exhibit 2, SM4.

 4   Exhibit 1 at 25.

 5   Exhibit 1 at 28.

 6   [2010] FWAFB 4022.

 7   [2014] FWC 9120 at [44]

 8   Qantas Airways Ltd v Christie (1998) 193 CLR 280

 9   Qantas Airways Ltd v Christie, (1998) 193 CLR 280, p.284 (per Brennan CJ)

 10   (1998) 193 CLR 280 at [1] per Brennan CJ and [37] per Gaudron J.

 11   (1998) 193 CLR 280 at [33] per Gaudron J.

 12   (1998) 193 CLR 280 at [34] per Gaudron J.

 13   (1998) 193 CLR 280 at [36] per Gaudron J.

 14   (1998) 193 CLR 280 at [114] per Gummow J.

 15   (2000) 200 CLR 177.

 16   Ex.12 (Seers affidavit) at paragraph 12.

 17   Ex.12 (Seers affidavit) at paragraph 13.

 18   Transcript at PN2108.

 19   Transcript at PN2109.

 20   Ex.12 (Seers affidavit) at paragraphs 15 and 21.

 21   Ex.12 (Seers affidavit) at paragraph 19.

 22   Ex.12 (Seers affidavit) at paragraph 21.

 23   Ex.12 (Seers affidavit) at paragraph 25.

 24   Transcript at PN2192-2199.

 25   Transcript at PN2208-2209.

 26   Ex.12 (Seers affidavit) at paragraph 27.

 27   Transcript at PN 2210.

 28   Ex.8 (Zichy-Woinarski affidavit) at paragraph 98; see also Transcript at PN1562, 1556-1564, 1854.

 29   Ex.8 (Zichy-Woinarski affidavit) at paragraph 104.

 30   Transcript at PN1602-1608; PN1639-1640.

 31   Transcript at PN1854-1856.

 32   Transcript at PN1662-1840.

 33   Transcript at PN1747-1749.

 34   Transcript at PN1764, 1771, 1773, 1775,1790.

 35   Transcript at PN1792.

 36   Transcript at PN1704-1705.

 37   Transcript at PN1814.

 38   Transcript at PN419-420

 39   Ex.4 (witness statement of Dr Josh Munn made 18 May 2016) (first Munn statement).

 40   Annexure JM-3 to ex.4 (first Munn statement).

 41   The National Institute for Occupational Health and Safety (US).

 42   Ex.5 (Witness statement in reply of Dr Josh Munn of 11 July 2016) (Munn reply statement) at paragraph 2.

 43   Annexure GD-5 to ex.6 (first Delamotte affidavit).

 44   Transcript at PN2028-2029.

 45   Ex.9 (19 page Core Physical Demands document) at pages 5-6.

 46   Transcript at PN1298.

 47   Affidavit of Greg Delamotte dated 1 May 2016 and Affidavit in reply of Greg Delamotte (undated) filed 8 July 2016.

 48   Ex.10 Report of Dr Cunneen dated 30 October 2015 at page 6 and Report of Dr Cunneen dated 25 November 2015 at pages 1 and 2.

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