The Fair Work Commission has ruled that it is unreasonable for an employer to direct workers to attend a compulsory health assessment aimed at addressing high injury levels in the absence of first establishing genuine need.
Cement Australia Pty Ltd introduced a compulsory physical risk review program in 2013 as part of its response to the frequency of injuries reported by heavy vehicle drivers in its distribution division, which were higher than the average injury rate across the rest of the business.
Previous efforts by the company to reduce the injury statistics had been unsuccessful, including voluntary functional capacity assessments and practical measures to reduce the risk of slips, trips and falls when drivers were working on or around their vehicles.
The 45-minute assessment was to be carried out bi-annually by an external provider called Kinnect, focusing on areas including blood pressure, muscle and joint function, waist and neck circumference and abdominal strength.
The results were to go on an employees’ health file, while the health professional was asked to identify any programs the employee might benefit from, including a “12 Week Body Transformation Program”.
But the union, the TWU, disputed the company’s right to direct drivers to participate in the assessment, especially given they were already required to have regular medical assessments under the National Heavy Vehicle Accreditation Scheme. The union also had privacy concerns about how the information would be stored and used.
The Company told Commissioner Spencer that the program was designed to test workers’ level of risk in performing their duties, rather than advising of a workers fitness to perform the inherent requirements of their job.
However, the Company admitted that workers who refused to participate in the assessments “could be subject to disciplinary action“, because it deemed participation to be “an essential tool for addressing the level of risk of injury“.
Commissioner Spencer distinguished the case from Grant v BHP Coal Pty Ltd, in which a FWC full bench upheld her earlier ruling endorsing BHP’s right to direct a single employee to participate in a medical assessment by a company-nominated doctor to ensure he could perform the inherent requirements of his position.
In contrast, Commissioner Spencer said Cement Australia sought to direct only its drivers to take part in the medical assessment “based on a general concern regarding the trend of musculoskeletal injuries for the group overall“, without first establishing genuine need for the assessment that was relevant to the requirements of the workers’ jobs.
The Commissioner found that the Company’s direction for the program was unlawful or unreasonable. “There has been an insufficient particularisation of the data to establish a genuine need to direct an entire segment of the workforce to undertake this assessment… Further, the outcome of the Risk Review Program will not provide medical information directed to the inherent requirements of the job or provide a link to reduce the musculoskeletal injury rate,” Commissioner Spencer said.
“In addition, given that there remain questions regarding the process and contradictory information and questions regarding the discharge of the process, the direction has not been made on reasonable terms. The [company] could not conclusively provide that the privacy of employees’ medical information would be secured.”
[TWU v Cement Australia Pty Ltd  FWC 158 (20 April 2015)]
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