• See AW766597 - Award as varied to 10 March 2006 (variation PR932567)
  
• See Orders re Board of Reference
  
• See Agreement re Board of Reference
  

Workplace Relations Act 1996 s.131 application for a Board of Reference

Australia Post and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(BOR2002/78)

s.33 action on Commission's own motion

(C2002/5563) AUSTRALIA POST GENERAL CONDITIONS OF EMPLOYMENT AWARD 1999 (ODN C1989/25759) [AW766597]
Postal services

SENIOR DEPUTY PRESIDENT MARSH MELBOURNE, 25 NOVEMBER 2002
Board of Reference

ORDER

A. Further to the terms of settlement published by Commissioner Blair on 31 October 2002 (PR924260) in matter C2002/3762 and the application for a Board of Reference by Australia Post and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) in matter BOR2002/78, the Commission makes the following order appointing a Board of Reference in relation to decisions made by Australia Post to direct an employee onto sick leave in accordance with its Non-Start Policy:

1. The Board of Reference:

(a) will be constituted by a Commissioner, a former Commissioner, a Deputy Industrial Registrar or a former Deputy Industrial Registrar;

(b) will determine employee grievances in relation to decisions made by Australia Post to direct an employee on sick leave in accordance with its procedures for line managers on the management of employees with non-work related medical restrictions ("medical restrictions policy");

(c) will only determine in each case before it, whether or not the decision of Australia Post to direct the employee onto sick leave under its "medical restrictions policy" was harsh, unjust or unreasonable, having regard to:
(i) the medical evidence upon which Australia Post based its decision;
(ii) the employee's medical condition and work restrictions at the time of the direction;
(iii) the inherent requirements of the employee's actual position;
(iv) Australia Post's compliance with the terms of its "medical restrictions policy" (as amended in clause 10 of the Terms of Settlement at Attachment 1);
(v) the employee's compliance with reasonable requests by Australia Post under the "medical restrictions policy";
(vi) any other circumstances that the Board of Reference thinks is relevant.

(d) after having heard from the parties, may, if it determines that the direction by Australia Post was harsh, unjust or unreasonable, make one or more of the following determinations, namely that Australia Post:
(i) revoke its direction to the employee that he/she remain on sick leave;
(ii) re-credit any leave credits which have been used by the employee whilst on a period of any paid leave as a result of the direction by Australia Post;
(iii) make a payment to the employee in respect of the actual wages (ordinary wages plus shift penalties if appropriate) lost as a result of not being in attendance at work during the period that the employee was directed on sick leave;
(iv) make available to the employee under the "medical restrictions policy", work in the employee's current position, provided the employee can meet the inherent requirements of the position;
(iv) look at the redeployment opportunities in accordance with paragraph 10 of the enclosed Terms of Settlement.

(e) will use its best endeavours to determine any grievances within fourteen (14) days of the lodgement of a grievance appeal.

2. Any determination of the Board of Reference may be reviewed by the Commission on the application of either party, provided that a notice of an application of a review of such determination shall be given to the Commission within fourteen (14) days of such determination (and a copy provided to the other party), provided that the Commission may extend the time for the filing of the notice at its discretion.

3. The following conditions shall apply to any grievance appeals to the Board of Reference:

(a) an appeal can only be lodged by an employee following a decision by Australia Post to direct the employee on to sick leave;

(b) appeals must be lodged within fourteen (14) days of the direction by Australia Post to an employee to commence sick leave *;

(c) appeals must be addressed to the Deputy Industrial Registrar of the Australian Industrial Registry in each State;

(d) no appeal shall be sent to or accepted by the Board of Reference until the matter has been discussed at the state level between the employee and or his/her representative and a representative from the relevant area of Australia Post. Such discussions will occur within 7 days of Australia Post receiving notification of the intention to bring an appeal;

(e) an appellant may represent himself/herself or be represented by an officer or employee of the respective union; Australia Post may be represented by any employee of Post.

* The only exceptions to the prescribed time frame for the lodgement of an appeal to the Board of Reference are in the case of:
(a) employees in NSW the subject of the joint review following the conciliation of this matter and who, as at 29 October 2002, were on sick leave in accordance with a direction by Australia Post and who have notified Australia Post by 8 November 2002 of their intention to appeal the decision to be directed on to sick leave to the newly constituted Board of Reference;
(b) an employee, other than those referred in the immediately preceding paragraph (a), who has been directed on to sick leave under the "non start policy" which employee shall have fourteen (14) days from the establishment of the Board of Reference to file an appeal against Australia Post's decision to the Board of Reference; and
(c) where the Board of Reference grants an extension of time.

B. This order will come into force on 25 November 2002 and shall remain in force for a period of six months.

BY THE COMMISSION: SENIOR DEPUTY PRESIDENT