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
AW766599 PR935041
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996 s.131 application for a Board of Reference
and
(BOR2002/78)
rs.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 procedure 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 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 (\4) 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
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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