Electricity, Water and Utilities

Fair Work Conciliation Hearing

Posted on 17-5-2017


On the 16th May the ETU’s dispute re Work Capacity Assessment Procedure was before DP Sams of the Fair Work Commission. Both sides argued their case if in fact effective consultation had occurred. DP Sams directed the parties to focus on the key issues of difference in relation to the Procedure.

The ETU outlined the following key issues-

  1. The scope of “employees who work on or near the network” is too broad. The Procedure should be restricted to Live Line & Heavy Vehicle employees as there are statutory requirements in place that Work Capacity Assessments must be carried out for these workers.
  2. The Procedure document is deficient in ensuring that employee’s personal medical history details and specific outcomes of the Assessment are kept confidential and not disclosed to Essential.
  3. The Procedure document is deficient in outlining what the blood and urine test will be used for.
  4. If the employee appeals the Work Capacity Assessment outcome and requests an independent Medical Practitioner it should be at the employers cost, not the employees.
  5. The Procedure document is deficient in outlining what happens if an employee is deemed “Unfit for substantive duty –permanently”.

As part of the application the Union applied for an interim order imposing the status quo. Essential opposed the status quo and after much debate it was agreed that the ETU would not pursue status quo at this stage as Essential agreed to meet over the next couple of days to address the 5 key issues in a timely manner.

The parties met directly after the hearing and significant progress was made on issues 2, 3, 4 & 5. The parties are still apart on issue 1.

Essential did clarify that employees are not required to go to their GP and get a full medical history or reports to present to InjuryNET.

Essential clarified that they do not receive any personal information as a result of what the employee discloses to InjuryNET or specific details of the assessment outcome. That information is kept confidential with InjuryNET covered by Privacy Laws. Essential only receives the outcome of the assessment from InjuryNET stating the employee’s current fitness level -“Fit for substantive duty –unconditional”, “Fit for substantive duty –conditional”, Unfit for substantive duty –temporary” or Unfit for substantive duty –permanently”.

The parties committed to work through the issues over the next few days to try and resolve the dispute. The matter was left open with FWC in case resolution cannot be reached.

As the matter is still in dispute, and until the requirements are clarified, the ETU advises that in the interim, members should hold off attending any medical assessment. If you are threatened with discipline, inform the person threatening you that you are exercising your legal right to be represented by your Union and contact your local delegate or Organiser immediately.

Members are reminded you are legally entitled to have ETU Representation in any employment matter including investigations, performance matters, disciplinary matters, safety matters etc.

The ETU will keep members updated on this matters through our ETU workplace delegate’s network, Facebook and via the ETU website.

Justin Page
Assistant Secretary
ETU NSW