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The Medical Restrictions Board of Reference (BOR) was appointed by Senior Deputy President Marsh by Order dated 25 November 2002 (AW766599 PR 925041) as part of the terms of settlement in matter C2002/3762 and the application for a Board of Reference by Australia Post and the CEPU (BOR 2002/78). The appointment was in relation to decisions made by Australia Post to direct an employee onto sick leave in accordance with its Non Work Related Medical Restrictions (NWRMR) policy. The Medical Restrictions Board of Reference presided over by Ms Lyndall Soetens, has operated pursuant to the terms of the above-mentioned Order since its inception under the auspices of the Australian Industrial Relations Commission. The new Work Choices legislative reforms called into question the status of the Board of Reference and in particular its power to arbitrate in these cases and to hand down a binding decision (refer s 524(4) of the Workplace Relations Act 1996). As a result, the parties, namely Australia Post and the CEPU agree to enter into the following agreement. Agreement Between Australia Post and the CEPU The terms of the Agreement between Australia Post and the CEPU which is to be effective immediately are as follows: 1. Ms Lyndall Soetens, formerly appointed as Board of Reference pursuant to s131 of the Workplace Relations Act 1996 and the Order of SDP Marsh dated 25 November 2002 (ref AW766599 PR 925041) (the Order) be appointed as a private arbitrator. 2. Ms Soetens in her role as a private arbitrator continue to be bound by the terms of reference set out in the Order (refer copy at Annexure I) and the Statement issued by Commissioner Blair dated 20 December 2002 (AW766599 PR926114) (refer copy at Annexure 2). 3. The Board of Reference continue to be referred to as the "Medical Restrictions Board of Reference" by the parties so as to distinguish it from the standing Board of Reference. 4. The terms of reference in the Order shall remain unchanged save that the two (2) exceptions in relation to the prescribed timeframe for the lodgement of an appeal to the Board of Reference cited on page 3 of the Order, namely (a) and (b) no longer apply. 5. If either of the parties wishes to vary the terms of reference in the Order, the party seeking the variation must advise the other party in writing of the variation sought. The parties commit to discussing and trying to reach agreement on the variation sought within two weeks of the date of the initial notification of the requested change. July 2006
PR925041
Workplace Relations Act 1996 s.131 application for a Board of Reference and
(BOR2002/78)
(C2002/5563)
AUSTRALIA POST GENERAL CONDITIONS
OF EMPLOYMENT AWARD 1999
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:
3. The following conditions shall apply to any grievance appeals to the Board of Reference:
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 AW766599 PR926114 AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.99 notification of industrial dispute and (C2002/3762) AUSTRALIA POST OPERATIONS AWARD 1999 (ODN C No.10230 of 1995) [AW766599] Various employees Postal services STATEMENT [1] Following a further conference with the parties today, 20 December 2002, the Commission will issue the following statement: [2] First, in regards to the protocols, it is the Commission's view that the protocols currently being developed will not be applied retrospectively to those employees of Australia Post that were stood down (whose standing down. gave rise to this application) and who are currently under review by the medical restrictions board of reference. [3] Secondly, there is an issue that has arisen as to whether the, what is now termed, medical restrictions board of reference are to take into consideration the amended policy issued as part of the terms of settlement reached on 29 October 2002 regarding the possibilities of redeployment as identified in Clause 10 of the Terms of Settlement. It is the Commission's view that the same principle would apply as applied in the protocols, ie. there is to be no review on a retrospective basis by the board of reference about the redeployment opportunities. The board of reference is to operate within the policy that existed at the time that those stand-downs occurred. [4] Thirdly, an issue arose regarding whether or not, if. after the medical restrictions board of reference, a decision was made that Australia Post had followed the procedures and an employee continued to be stood down, if new medical evidence arose, what processes would be in place for that new medical evidence to be reviewed by Australia Post and, if rejected by Australia Post, what appeal process would apply. It was the Commission's understanding that no process would apply to review Australia Post's decision to reject new medical evidence. It suggested to the parties initially that a s99 application may be the appropriate step. However, the Commission has now been advised that, what may be termed, the standing board of reference is able to be utilised to have a decision by Australia Post reviewed. The Commission made its position clear also that the s99 is always available to the Union or to Australia Post for an aggrieved employee. However, if the standing board of reference process were not utilised then it would be the Commission view to refer the parties back to that process to be dealt with in the first instance. BY THE COMMISSION. |
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