FRIDAY 30 AUG 19 20 th ANNUAL EMPLOYMENT RELATIONS CONFERENCE KEYNOTE SPEAKER: ATTORNEY-GENERAL AND MINISTER FOR INDUSTRIAL RELATIONS, THE HON CHRISTIAN PORTER MP
Managing Ill and Injured Employees 20 th Annual Employment Relations Conference Lydia Daly Special Counsel Nicola McMahon Senior Associate 30 August 2019
Employer’s obligations WH&S Procedural fairness Reasonable / support / Adjustments confidentiality RTW / Suitable Medical alternate evidence duties
Relevant Legislation Work Health and Safety Act 2011 (Qld) and (NSW) Anti-Discrimination Act 1991 (Qld) Anti-Discrimination Act 1977 (NSW) Disability Discrimination Act 1992 (Cth) Workers’ Compensation and Rehabilitation Act 2003 (Qld) Workers’ Compensation Act 1987 (NSW) State Federal Public Service Act 2008 (Qld) Fair Work Act 2009 (Cth) Industrial Relations Act 2016 (Qld) Privacy Act 1988 (Cth) Industrial Relations Act 1996 (NSW) Information Privacy Act 2009 (Qld)
The need to consider psychological conditions ■ 20% of Australians experience a mental illness in any year □ The most common are depression, anxiety and substance use disorders ■ 45% of Australians will experience a mental illness in their lifetime ■ 54% of people do not access treatment for mental illness □ Source: Black Dog Institute ■ Psychological and psychiatric claims currently represent 6.3% of total statutory payments ($59.0 million for 2017-18) ■ The rate of rejection for psychological workers’ compensation claims is 62.4% □ Source: Queensland workers’ compensation scheme statistics 2017 -2018
Reasonable management action ■ Read v Workers Compensation Regulator [2017] QIRC 072 □ Organising a disciplinary meeting in relation to performance issues ■ Allen v Workers’ Compensation Regulator [2018] QIRC 41 □ Meeting to advise employees of reduction in working hours ■ Allwood v Workers’ Compensation Regulator [2017] QIRC 088 □ Psychological injury as a result of a number of events at work and comments concerning bereavement leave
Legal approach to gathering and using medical information ■ It is essential for compliance with WHS duties that an employer can require □ an employee to provide particulars and or medical evidence affirming fitness for work □ an employee, on reasonable terms, attend a medical examination ■ What is reasonable □ turns on facts □ d epends on employer’s policies and employee’s contract terms □ requires a sensitive approach and respect for privacy
Medical examinations when considering mental health ■ Factors to consider □ is there a genuine indication of the need for the examination such as prolonged absences from work or absences without explanation or evidence of an illness which relate to capacity to perform the inherent requirements of the job □ has the employee provided adequate medical information which explains absences and demonstrates fitness to perform duties □ is the industry or workplace particularly dangerous or risky □ are there legitimate concerns that the employee’s illness would impact on others in the workplace □ did the employee agree to the assessment by the practitioner selected by the employer □ was the employee advised of the details of the behaviour which led to the concerns that they were not fit for duty □ was the medical practitioner advised of the issues of concern and were those matters focused on the inherent requirements of the job □ was the medical assessment truly aimed at determining, independently, whether the employee was fit for work in their substantive role
Reliance on medical evidence ■ Yan v Spotless Facility Services Pty Ltd [2017] FWC 922 □ medical evidence did not say employee incapable to perform inherent requirements ■ Boag and Son Brewing Pty Ltd v Button [2010] FWAFB 4022 □ Inherent requirements of substantive role must be considered and not modified, restricted or a temporary alternate position ■ Fia v Jeld Wen [2013] FWC 2694 □ medical evidence at the time of decision certified not fit for pre-injury duties
Reliance on medical evidence cont’d ■ Robinson v Western Union Business Solutions (Australia) Pty Ltd [2018] FCA 1913 □ Employee had been away from work for seven Held: the dismissal was months with a mental illness because of the employee’s mental disability. Any lack □ Employer requested the employee attend IME of ‘capacity’ to return to to ‘assist the business in gaining a clear work was but a understanding of a possible return date’ and the ‘manifestation’ of the employee refused employee’s mental □ The employee eventually agreed to an IME after disability and a numerous requests were made. The employer ‘manifestation’ that could did not arrange the IME not be severed from that disability. □ Two months later, the employer terminated the employee on the basis he could not give an indication of a return date and unreasonably failed to cooperate with the employer
Investigations ■ Duty of care owed to prevent psychiatric injury ■ Hayes v State of Queensland [2017] 1 Qd. R 337 □ Duty to take reasonable care to support an employee, where to the knowledge of the employer, the employee is a risk of harm while their conduct is being investigated ■ Robinson v State of Queensland [2017] QSC 165 □ Plaintiff alleged manager bullied her and failed to properly act on workplace complaints □ Held employer liable for the manager’s failure to properly address complaints and the foreseeable risk of psychiatric harm due to the breach of duty □ Awarded $1.4 million as plaintiff unlikely to ever return to work
Investigations and reasonable directions ■ Eggins v State of Queensland (DJAG/QCS) [2015] QIRC 203 □ direction given three months after doctor certified unfit to participate in process and one month after taking personal leave Illness does not have to ■ Daniel Krcho [2019] FWC 5278 frustrate the □ Employee denied stop-bullying orders to block IME process ■ Mocanu v Kone Elevators Pty Ltd [2018] FWC 1335 □ Employee was able to use a computer to send an email while on leave and therefore able to participate in the workplace investigation while on sick leave
Investigations and reasonable directions cont’d ■ Swanson v Monash Health [2018] FCCA 538 □ Being on personal leave does not absolve an employee’s obligation to follow the lawful and reasonable directions of their employer □ The employee is still bound by the employment contract during period of paid personal leave ■ Laviano v Fair Work Ombudsman [2017] FCCA 19 □ Despite being on personal leave, the employee was subject to an implied duty to communicate with the FWO. Illness did not prevent employee attending IME ■ Bletas v The Star Entertainment Qld Limited [2019] FWC 2792 □ Authority to doctor not a fishing expedition by employer □ Certificate of capacity from own treating doctor of 34 years not sufficient
Direction to provide medical evidence / attend IME ■ Must be a genuine need for information ■ Information sought and circumstances must be reasonable ■ Provide doctor with information about role and work environment ■ Take care to ask the right questions ■ Seek opinion on fitness to participate in the process ■ Reasonable alternatives to facilitate participation
Points to note as an employer ■ Once you know about a worker’s medical/injury history, you will owe them a higher duty of care ■ Treat employees fairly during and after any psychological conditions are raised ■ In the context of an investigation, consider medical evidence provided. Consider seeking additional information/directing the employee to attend an IME ■ Reasons for any disciplinary action □ failure to meet inherent requirements of role □ failure to follow lawful and reasonable direction
Contact Lydia Daly Special Counsel T +61 412 423 432 E ldaly@mccullough.com.au Nicola McMahon Senior Associate T +61 435 557 269 E nmcmahon@mccullough.com.au Disclaimer: This presentation covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. This presentation is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this presentation.
Enterprise Bargaining Update 20 th Annual Employment Relations Conference Michael Moy Partner Liam Fraser Senior Associate 30 August 2019
What we will cover today ■ Recent statistics on enterprise bargaining ■ Legislative assistance ■ Notice of employee representational rights issues ■ Explaining terms and their effect ■ Lodging enterprise agreements – updated forms ■ Emerging issues in bargaining
Recent statistics on enterprise bargaining
Recent statistics on enterprise bargaining Agreements Current at end Quarter (Sep ’10 – Dec ’18) 30000 3000 25000 2500 20000 2000 Number of Number of Agreements Employees Current at 15000 1500 covered end (‘000s) Quarter 10000 1000 5000 500 0 0 Sep-10 Dec-10 Mar-11 Jun-11 Sep-11 Dec-11 Mar-12 Jun-12 Sep-12 Dec-12 Mar-13 Jun-13 Sep-13 Dec-13 Mar-14 Jun-14 Sep-14 Dec-14 Mar-15 Jun-15 Sep-15 Dec-15 Mar-16 Jun-16 Sep-16 Dec-16 Mar-17 Jun-17 Sep-17 Dec-17 Mar-18 Jun-18 Sep-18 Dec-18 Agreements Employees
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