North Queensland Return to Work Conference Scott Falvey 28 April - PowerPoint PPT Presentation

North Queensland Return to Work Conference Scott Falvey 28 April 2017

Managing an aging workforce Why is the averaging working age going up?  Baby boom post World War II  Life expectancy is going up  Retirement age is going up  Birth rate is going down

Why is this a concern for employers? • Because aging will eventually cause a worker’s physical, mental and motor skills to decline. • Creates new risks and issues for both the employer and worker to manager together: – Muscle strength and elasticity declines, meaning worker may be at greater risk of muscular skeletal injuries – Balance can decline, meaning the worker may be at greater risk of slip, trip, fall injuries – Bone density declines, meaning that if an accident occurs, the worker may be at greater risk of significant injury – Cartilage deteriorates, leading to greater risk of joint damage

What to consider Equipment Do you have the right equipment for your workforce? • PPE – braces, strapping and supports • Lifting aids – do you have sufficient aids, are they always used? Workplace Have you considered potential workplace redesign? • Storage – no lifting above head or shoulders • Slip, trip, fall hazards Role redesign Do you need to consider redesigning the worker’s role? • Can we rotate or remove strenuous tasks? • Shift length/work breaks • Roster patterns • Repetitive tasks Training Up skilling and/or reinforcement • Up skilling to transition to new role • Retraining to reinforce correct techniques and methods

What to consider Health & Can you assist your workers to arrest the effects of aging? • Education Promote healthy lifestyle • Provide education on the effects of aging • Programs to encourage exercise • Access to health and fitness professionals Rehabilitation Supporting workers to return to work • Stay in contact • Educate workers on the importance of rehabilitation • Enforce rehabilitation programs • Encourage rehabilitation / arrestment after return to work

Competing obligations Source Obligation / Risk • Work Health and Safety Act 2011 (Qld) Failure to do all things reasonably ( WHS Act ) practical to ensure the safety of the worker and others • Anti ‐ Discrimination Act 1991 (Qld) Discrimination due to impairment ( AD Act ) • Disability Discrimination Act 1992 (Cth) Discrimination due to disability ( DD Act ) • Fair Work Act 2009 (Cth) ( FW Act ) Termination due to a temporary absence • Adverse action claim • Unfair dismissal • Workers’ compensation and Rehabilitation Misuse of a workers’ compensation Act 2003 (Qld) ( WCR Act ) document • Termination due to workplace injury within 12 months of its occurrence

Six steps – Be patient, be kind Step 1 Do any time restrictions apply? Step 2 Can the worker meet the genuine occupational requirements of their role? Step 3 Are there adjustments that I can make to the role, or does the worker require special services/facilities? If so, would making/allowing these adjustments, or providing these services/facilities, place an unjustifiably hardship on the business? Step 4 What evidence do I have and can I use it? Step 5 Have I afforded the worker procedural fairness? Step 6 Has the relationship become frustrated?

Step 1 – Are there any time restraints? S352 FW Act – temporary absence • An employer must not dismiss an worker because the worker is temporarily absent from work due to absence or injury. • A ‘ temporary absence ’ includes any absence due to illness or injury not exceeding more than three months, or three months in any 12 month period, unless the worker was on paid personal/carers’ leave for the duration of the absence. • An worker must provide a medical certificate or statutory declaration within 24 hours of the illness or within such longer period as is reasonable in the circumstances.

Step 1 – Are there any time restraints? S232 WCR Act – termination due to workplace injury • S232B – an employer must not, within 12 months after a worker sustains an injury, dismiss the worker solely or mainly because the worker is not fit for employment. • S232D(2) – a worker who has been dismissed due to injury, may apply to the employer, within 12 months after the injury occurs, for reinstatement to the worker’s former position. • S232D(3) – the worker must provide a doctor’s certificate certifying his/her fitness for work in the former position.

Step 2 – Meeting the genuine requirements FW Act ‐ Offence Exemption • • Section 351 ‐ A person must not take not unlawful under any anti ‐ adverse action against another discrimination law in force in the place because the person has a physical or where the action is taken OR taken mental disability because of the inherent requirements of the particular position concerned; or DD Act ‐ Offence Exemption • • Section 15 – A person must not Section 21A ‐ The person is unable to discriminate directly or indirectly in the carry out the inherent requirement of area of employment. the role, even if reasonable adjustments are made • Section 21B ‐ If avoiding the discrimination would result in an unjustifiable hardship

Step 2 – Meeting the genuine requirements AD Act ‐ Offence Exemption • • Section 15 – A person must not Section 11 – the discrimination is caused discriminate in the areas of work. by the imposition of a reasonable term • • This includes: Section 25 – the discrimination is caused  in any variation in terms of work; by the imposition of a genuine  by dismissing the person; occupation requirement  by denying or limiting access to • Section 35 – the person would require opportunities for promotion, special services or facilities the supply of transfer or training benefits; or which would impose an unjustifiable  by treating the person unfavorably hardship • Section 108 ‐ the act is necessary to protect the health and safety of people at a place of work

Step 2 – Meeting the genuine requirements Chivers v State of Queensland [2014] QCA 141 • The worker was a trainee nurse working in a hospital operating 24 hours per day, seven days per week. • Due to a pre-existing injury, the worker was permanently unable to undertake nightshift duties. • At the end of her training program the worker sought to be appointed to a permanent role. • The employer did not offer a permanent role and instead notified the worker that they were extending her probation.

Step 2 – Meeting the genuine requirements Chivers v State of Queensland • In deciding what a genuine occupational requirement is, an employer should consider: – what does the worker’s employment contract require them to do? – what tasks is the worker actually required to carry out and the skills the worker is required to hold/maintain? – in what circumstances are those tasks and skills to be performed; and – what function does the worker perform as part of the employer’s overall undertaking?

Step 2 – Meeting the genuine requirements Chivers v State of Queensland • Establishing a genuine occupation requirement can be difficult threshold to meet. • Is it a requirement or is it just how it’s always been done? • Must consider whether the particular job requirements can be adapted so that they meet both the employer’s and worker’s needs. • An employer can make limited temporary exceptions to a genuine occupational requirement. For example, accommodating a short term temporary illness or injury.

Step 3 – Reasonable adjustment/special services • Must consider whether there are any ‘reasonable adjustments’ which can be made, or special services/facilities that could be provided, that would allow the worker to undertake the role. • When considering this employer the must have regard to all relevant circumstances of the case, including: – the nature of the services, facilities or adjustment; – the cost to the business; – the financial circumstances of the business; – any disruption the supply or adjustment may cause; and – the nature of any benefit or detriment to all people concerned.

Step 4 – What evidence do I have and can I use it? What evidence do I need? • Ideally, medical evidence confirming: – the nature of the worker’s injury. – whether the worker is fit to undertake the ‘genuine occupational requirements’ of his / her role? – if not, how long will it be before the worker is fully fit to undertake the ‘genuine occupational requirements’ of his/her role? – are there any adjustment that the employer can make to the worker’s role? – are there any special services or facilities that would assist the worker to perform their role?

Step 4 – What evidence do I have and can I use it? Section 572A WCR Act • A person must not use or obtain a ‘ worker’s compensation document’ for a purpose relating to the employment of a worker by the person or another person • Penal section - breach = criminal penalty – up to 100 penalty units • “ Employment ” means any process for selecting a person for employment or for deciding whether the employment of a person is to continue • A “ worker ” is a person who is or was a claimant or worker for any provision of the WCR Act • A ‘ worker’s compensation document ’ is any document relating to the worker’s application for compensation or claim for damages.