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 & Education Can you assist your workers to arrest the effects of aging?

• 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) (WHS Act)

• Failure to do all things reasonably

practical to ensure the safety of the worker and others Anti‐Discrimination Act 1991 (Qld) (AD Act)

• Discrimination due to impairment

Disability Discrimination Act 1992 (Cth) (DD Act)

• Discrimination due to disability

Fair Work Act 2009 (Cth) (FW Act)

• Termination due to a temporary

absence

• Adverse action claim
• Unfair dismissal

Workers’ compensation and Rehabilitation Act 2003 (Qld) (WCR Act)

• Misuse of a workers’ compensation

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

• Section 351 ‐ A person must not take

adverse action against another because the person has a physical or mental disability Exemption

• not unlawful under any anti‐

discrimination law in force in the place where the action is taken OR taken because of the inherent requirements

• f the particular position concerned;
• r

DD Act ‐ Offence

• Section 15 – A person must not

discriminate directly or indirectly in the area of employment. Exemption

• Section 21A ‐ The person is unable to

carry out the inherent requirement of 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

• Section 15 – A person must not

discriminate in the areas of work.

• This includes:
• in any variation in terms of work;
• by dismissing the person;
• by denying or limiting access to
• pportunities for promotion,

transfer or training benefits; or

• by treating the person unfavorably

Exemption

• Section 11 – the discrimination is caused

by the imposition of a reasonable term

• Section 25 – the discrimination is caused

by the imposition of a genuine

• ccupation requirement
• Section 35 – the person would require

special services or facilities the supply of which would impose an unjustifiable 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
• ccupational 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
• f the WCR Act
• A ‘worker’s compensation document’ is any document relating to the

worker’s application for compensation or claim for damages.

Step 4 – What evidence do I have and can I use it?

CFMEU v Leighton Contractors Pty Ltd [2012] FMCA 487

• The worker was a operator working Leighton’s Moorvale coal mine.
• In August 2011, the worker claimed to have suffered a workplace injury

(severe whiplash), while driving over a bumpy road surface.

• Workers statutory claim for compensation accepted by insurer.
• In September 2011, the employer received information that the worker may

be being disingenuous about the extent and nature of his injury.

• In October 2011, Leighton required the worker to undertake an independent

medical examination.

• In November 2011, Leighton received a report from a private investigation

firm, which indicated that the worker was being disingenuous in the reporting of his symptoms.

Step 4 – What evidence do I have and can I use it?

CFMEU v Leighton Contractors Pty Ltd

Leighton commenced disciplinary action against the worker.

• The CFMEU filed an application for injunctive relief against Leighton

claiming that: – Leighton was taking “adverse action” against the worker because the worker had exercised his workplace right to make a workers’ compensation claim; and – both the investigator’s report and the independent medical report, were ‘workers’ compensation documents’.

• FM Burnett agreed that both the investigator’s report and the independent

medical report, were ‘workers’ compensation documents’, as they both related to whether or not the worker was entitled to compensation.

• FM Burnett declined to grant injunctive relief but also found that Leighton

had not engaged in adverse action.

Step 4 - What evidence do I have and can I use it?

Columbine v GEO Group Australia t/a GEO [2014] FWC 6604

• The worker worked for GEO as a correctional officer.
• Suffered a workplace injury in September of 2011 and was allowed to return

to work on ‘light duties’ performing administrative work.

• In March 2014 the worker was advised that the administrative role was no

longer required and that she would need to be returned to her original role.

• The worker provided a medical certificate stating that she could return to

work for four hours a day, with a 10 minute limitation on standing, and a 20 minute limitation on walking.

• The employer advised that it was considering terminating her employment.

Step 4 - What evidence do I have and can I use it?

Columbine v GEO Group Australia t/a GEO

Within two weeks the worker provided a new medical certificate stating that she was fit to return to work as a correctional officer.

• In response, the Employer demanded:

– That the worker’s doctor provide a report, setting out the reasons and basis for the doctor’s change in prognosis; and – That the worker provide an authority to allow GEO to speak/correspond with the worker’s doctor directly.

• The worker refused to comply.
• The worker was dismissed for failing to comply with a reasonable and lawful

direction.

Step 4 - What evidence do I have and can I use it

Columbine v GEO Group Australia t/a GEO

Fair Work Commission held: – that GEO’s request for both a further report, and authorisation to discuss the workers injury with her doctor were reasonable and lawful directions. – a request that the worker assist GEO to be confident that her return to work would not cause a risk to herself and others, in the context of a prison environment, cannot be construed as unreasonable; – accordingly, worker was not unfairly dismissed.

Step 5 – Procedural fairness

Best practice:

• Advise the person of the medical evidence and what you believe this means

for the employment relationship.

• Allow the person an opportunity to have a support person present.
• Provide the person with a reasonable time frame and opportunity to

respond.

• Give appropriate consideration to any response.

Step 6 – Has the relationship become frustrated?

• Is the incapacity of such a nature, or is likely to continue for such a period,

that the further performance by the worker of their obligations is impossible

• r something radically different.
• Must consider:

– the terms of the contract, including the provisions made for sick pay; – how long the employment would have continued; – the nature of the employment; – the nature and effect of the illness; – the length of the worker’s past employment

Summary

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?

For more information, please contact: Scott Falvey, Principal or James Christensen, Senior Associate

sfalvey@mcw.com.au jchristensen@mcw.com.au