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Return to work research funded: but is research necessary?

University of Queensand researcher Dr Venerina Johnston has been awarded a grant to research the skills and behaviours needed by supervisors to help workers return to work after injury or illness.
The grant is part of the Australia-wide $400,000 Institute for Safety, Compensation and Recovery Research (ISCRR) 2012 Development Grants Program.

Dr Johnston, of UQ’s School of Health and Rehabilitation Sciences, will be supported by Ms Kirsten Way, Dr Mary Wyatt, and Dr Bill Shaw.

The project focuses on workers returning to work after a mental disorder or musculoskeletal injury.

“The results will provide the first evidence base to develop a training program for supervisors that is specific to the Australian setting,” Dr Johnston said.

Despite many endeavours, return-to-work rates have not improved across Australia over the past five years.

“Supervisors play a pivotal role in the return-to-work process and yet the specific knowledge, skills and behaviours supervisors require to assist this process have never been identified in the Australian setting.

“This research and the subsequent development of a training program will result in long-term benefits in terms of preventing work disability and reducing compensation costs.”

ISCRR CEO Professor Niki Ellis said that the development grants funded projects with the potential to deliver tangible benefits in the short term to ISCRR’s partners, WorkSafe Victoria and the Transport Accident Commission.

“By supporting smaller scale projects conducted over 12 months, the grants provide an important opportunity for investigators to initiate research that they see will make a difference in a relatively short period of time,” Professor Ellis said.

[Source: http://www.uq.edu.au/news/?article=24284]

Return to work research, is it really necessary?

Well, let’s hope something positive comes from this study. Happy to be a guinea pig if its of any help.

With regards to my own return to work, well my last attempt was a nightmare,  which resulted in me almost taking my own life.

I had been working full time in a senior management position, despite my crippling disability. I was due to undergo major surgery number 6 for gross instability of the shoulder, which was dislocating just about every day at work. My medical treaters, in particular my surgeon, had made numerous, written medical requests for fairly straight forward ergonomic surpport (aids) in the workplace and would actually not allow me to continue work without the ergomomic support in place. A last ditch attempt in writing was made to the Director of Health and Safety (and my boss) to no avail, and I was forced to continue work, full time in visible distress. The ergonomics were, between brackets requested way back in 2006, however multiple urgent, written requests were made during the last 6 months prior to my sixth surgery, to no avail. My boss had the guts to demand I postpone my surgery by a whopping three months as to complete a large project I was working on, and of course she promised in return to implement the necessary level of ergonomic support… bullsh*t.  Anyway, I worked myself stupid up to one week before the surgery. I had a very good performance appraisal and during our “good-luck-for-your-surgery-lunch” my contract was renewed.

I underwent the major surgery. After about 5 to 6 weeks, I obtained a certificate of capacity from my surgeon, detailing the very same restrictions as prior to the surgery. I rang my boss and the return to work coordinator to inform them that I would return to work the following week. Yeah, right!  I was NOT allowed to return to work, mate! Why not? The untrained RTW coordinator told me that the ergonmic needed to be in place before I could return, ha! Obviously I disagreed as there was no problem whatsoever with me working without medical requested ergonomic support prior to the surgery and, interestingly, that 50% of my job consisted of non-office work, so why was I at least not allowed to undertake that part of my job whilst awaiting for the required level of ergonomic support to be in place?

We are talking about ergonomic equipment which you can buy at Office Works here, stuff like an alternative mouse, an under-desk pull out tray, a chair with arm rests, a dictaphone, voice recognition software etc.

Well, guys, they started “implementing” the ergonomics in January. By the beginning of April things were still not in place , I kid you not (!), preventing my return to work. Mid April, I received a termination letter. How nice! After 10 years of loyal service and after having lost my arm due to their bloody stupidity (negligence). Thank you very much.

I had offered to purchase the ergonomics myself, I had offered to undertake the duties that did not involve computer work (and physical restrictions); for Christ’s sakes, they knew I was going to have major surgery at least 4 months prior to the date of the surgery and they knew that the type of surgery I was to have would further impair me (reduce function) in exchange for pain relief (it was about a salvage procedure).

The employer must prepare a return to work plan within 10 days, and must keep in touch with the injured worker. Did you know that?

To terminate me was just plain immoral and unlawful.

The worst part, perhaps, came about 18 months later, when I suddenly started receiving over-friendly emails from a new unknown-to-me return to work coordinator (asking how I was doing, informing that I had been paid etc etc) and my pay slips (salary) started arriving in the mail. Prior to that I had never ever received my pay slips in the mail (after having been sacked). I nearly fell over when I noticed that I was demoted, and seemingly reinstated! When I contacted my lawyer, it became pretty clear that I was “officially still employed by the very same employer” – basically someone (obviously the insurance company or someone highly ranked) must have realised that my employer had made the biggest mistake of their lives and tried to COVER UP. How nauseating.

But rest assured, I still have their sacking letter, all their nasty emails, the immediate “vocational assessment” the insurer sent me to (and their stupid letter sates that the reason being the termination of my employment), but I also have their attempt to bribe me! Yes, they tried to offer me hush money, a miserable $6000 and they were so stupid as to text this to me!

How is that for an example return to work!

It happens every day to many Aussies, we call it “constructive dismissal” and “discrimination”.

I am not sure if “studies” are needed in the field, I would have thought that the culture ought to change… but that is my severely injured opinion.

 

Participate in WorkSafe return to work initiatives on your terms!

Doctors play an important role in the return to work process. For some time calls have been made for doctors to be
appropriately reimbursed for this involvement.(1) The law has now changed and requires employers to consult with doctors about their employee’s return to work (2). However despite this requirement WorkSafe refuses to reimburse the cost of the doctor’s time.
Instead, WorkSafe requires the completion of questionnaires, and template letters (3), a curious move as employers and
insurers have always had the ability to ask questions of doctors in writing. If so asked, the doctor has always had the obligation to supply a report, which is properly costed, properly paid and must be properly reimbursed by WorkSafe.

Now WorkSafe expects the same response, but with little or no charge. The response to these requests (whatever form they are made in) is clearly a medical report. This is an attempt to shift costs and red tape to “healthcare providers”.

Such an attitude will inevitably lead to half-hearted attempts by employers and workers to meet their obligations and doctors who refuse to get caught up in the game will be blamed.

WorkSafe return to work on YOUR terms mate!

Doctors faced with these requests should ensure they are active participants in the return to work process but not agree to bear costs that are properly reimbursable by WorkSafe.

For many years employer associations such as VECCI and Australian Industry Group have complained about the lack of
communication between an employer, an injured employee and their doctor.

On the other side are doctors who say that they are busy, have an obligation to their patient and receive no reimbursement for any time spent talking to employers, insurers or rehabilitation providers.
With good management, communication, proper processes and payment this can work effectively.

The following actions are recommended for practices faced with these WorkCover/WorkSafe requests

So tell your doctor(s) that If their practice receives a WorkSafe questionnaire/ template form or letter with questions to complete they need to treat it as they would a medical report. Print out the document/article from the AMA here.

If your practice receives a telephone call from an insurer, employer or rehabilitation provider regarding an injured patient
Your practice manager should:

  • ask for the query to be put in writing
  • ask that a contemporary authority from the patient be attached
  • provide a quote for completion of a report in answer to the question(s) and provide a timeline for completion
  • ask the employer, insurer or rehabilitation provider to confirm that they will pay for the report
  • If you receive a signed agreement, complete the report and forward with an invoice
  • Alternatively your manager may offer a time when you are available to talk over the phone but will require: contact details on company letterhead; an authority from the patient/claimant; a list of questions to be answered; and a signed agreement that the caller will pay for the cost of the telephone consult (e.g. time based per six minutes or a set fee).

You should indicate clearly to the caller that the cost of the telephone consult will not be reimbursed by WorkSafe.
It is not in your patient’s interest that requests for telephone contact go without a response. The process detailed above
can be set in place so that all requests are treated in the same manner. This way you will be able to deal with your patients in a way that benefits and protects them whilst facilitating their prompt return to work. The process also allows you to providethese services in a sustainable manner for your practice.
The NSW accident compensation scheme currently has reimbursement rates for phone calls to medical practitioners. So why not in VIC?

It is odd that WorkSafe continues to resist recommendations supporting reimbursement. In time WorkSafe may come to appreciate the value of supporting dialogue between employers, workers and their doctors rather than creating additional red tape.

AMA Victoria continues to lobby for proper reimbursement.

 

1. Peter Hanks, Accident Compensation Act Review, Aug 2008
2. An employer must if reasonable and with the workers approval consult with the treating health practitioner. See s196 of the Accident Compensation Act 1985 (Vic)
3. See http://www.worksafe.vic.gov.au/rtw

[Source: http://www.amavic.com.au/  September 2011]

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What a disgrace! And then WorkSafe (and their agents) come crying  about the fact that more and more doctors are refusing to see workcover (and TAC) patients, well… I wonder why, duh!

Stand up for your doctor, take this information along with you next time you see him/her (as s/he may not be aware of these crucial issues).

 

PS. This post is dedicated to ‘Dont get Me Wrong” 😉

Returning injured workers to work: expert suggestions

Following today’s interesting, earlier post about the disillusions and realities about rehabilitation and return to work, there may just be some hope should employers (and of course, workcover case managers) of injured workcover victims follow (some of) Dr Benner’s expert advice regarding return to work.

Let’s face it, every employer has – at some stage- experienced a workers’ compensation claim that ,at first glance, seemed to be for a minor injury. However, as months and even years go past, the claim snowballs into full-fledged disability and the employer (and the case manager) is left wondering what happened (should they care that is), and if anything could have been done to prevent the subsequently high  workcover costs (especially) and,  perhaps, the loss of quality of life for that employee (if they have a heart…).

Returning injured workers to work

Expert Offers Suggestions for Reducing Re-Injury and Returning Injured Employees to Work

According to Dr. Douglas Benner, employers need to learn a new term: functional restoration. “It’s returning employees to the function level they had before they were injured,” he says.

Some employees experienced childhood incidents – such as abuse, alcoholism or drug abuse – which make it more difficult, physically and emotionally, to recover from a work-related injury. There also are other factors, such as pain tolerance and general attitude, which can impact recovery time. The employee’s attitude about the workplace, the employer and coworkers and supervisors also can impact his or her ability to recover from an injury.

You need to determine how people handle illness and injury. Some people make big things out of little things,” says Benner, who is the medical business product development officer for EK Health in San Jose, Calif.
.
For example, two employees trip and fall in the workplace. One employee shakes it off, takes an over-the-counter pain reliever the next day when he feels a little stiff and doesn’t even bother to report the injury. The second employee immediately reports the fall and goes to the hospital for x-rays because he’s worried that he might have re-injured a knee that was damaged in a high school football game. The x-rays are inconclusive, but the employee complains of pain and starts taking the prescription pain reliever Vicodin. He tells his boss he is in too much pain to return to work and he worries that his knee will never feel 100 percent again. (I personally find this a very misleading example, implying that the second injured employee is basically making a fuss over nothing and may be a candidate for malingering perhaps, or for developing psychosomatic ‘injuries’ – or did I miss something here?).

A wise employer will have a nurse practitioner or workers’ compensation claims manager ask the injured employee one simple question, says Benner: “Do you think you are going to recover from this injury?’”

The answer to that question speaks volumes about the recovery path that employee will take, says Benner. If the employee says “no” or “probably not,” then intervention needs to start immediately, with a support system created for that employee. “By the time you’re talking to them about their addiction to opiate painkillers, it’s too late,” says Benner.

He suggests employers look at the STarT Back tool, which was created to group patients suffering from back pain into three categories of risk of poor outcome (persistent disabling symptoms) – low, medium and high-risk. By categorizing patients into these three groups, physicians and physical therapists are able to target interventions to help improve outcome.

The high-risk group often has psychological obstacles to recovery, which requires a comprehensive package of care, including psychological counseling and medical care. Medium-risk patients have physical obstacles to recovery, which require “face-to-face conservative treatment,” including physical therapy and medical treatment. Injured employees who have a low risk of developing a chronic problem require medical advice, reassurance that they will be well soon and, perhaps, medication.

Many of the questions on the survey, such as “In general, I cannot enjoy all the things I used to enjoy,” could apply to any type of workplace injury. Benner suggests adapting the more-specific questions found in the tool to fit the workplace. For example, rather than have the employee agree or disagree with the statement “My back pain has spread down my leg(s) at some time in the last 2 weeks,” have them respond to the statement “My injury has caused other body parts to hurt.”

The tool can be used by physicians, nurses and physical therapists to help claims managers and others determine how much intervention is necessary to return an employee to work. Some high-risk employees, especially those who genuinely fearful of re-injury or who have a history of depression might need to see a psychologist to help them develop a more positive outlook. Others who fall into the medium-risk category might need to see an occupational or physical therapist to help them establish a activity plan to help cope with the negative outlook often associated with injuries that limit normal activities.

Benner recently participated in a panel discussion about early intervention functional restoration, which identifies injured workers at risk for delayed recovery or return to work, and targets them for accelerated treatment, an approach that dramatically reduces lost work days. This injury prevention and safety program helps employees with poor coping skills return to work.

There needs to be a collaborative approach between the physical therapist, the nurse practitioner or the claims manager and the physician,” says Benner. “They need to show the employee that he has experienced measured improvement every week and essentially, coach the employees like a trainer would. Reassure them they’re doing well and they will recover.”

[Source: EHS Today -Nov 28, 2011 2:48 PM, By Sandy Smith]

 

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In my seriously injured opinion, I do find this an interesting article, because for once, it is focusing on the concerns of the employee who may fall into a downward spiral,and it appears to be more aligned with a personalised approach to an injured worker. However, I believe the title of this article is somewhat misleading. The focus of this article appears to be about “holding the hand of the injured employee and coaching the employee”, as if some of us (injured workers) are just wusses.

Wouldn’t it be nice to know that management cared enough about their employees to really take a look at what is really happening in the workplace, and to ensure that an injured employee is not forced back into the very same duties that cause the injury (e.g. carpal tunnels, shoulder injuries, repetitive strain injuries, overuse injuries etc.)?

What do you think of this article?

Letting injured workers heal on the job, yeah right mate

Recently, a visiting overseas “expert” said that employers should attempt to keep all but the most severely injured workers on the job!

The expert, professor Kim Burton, from Kendall Burton Consulting in the UK said that “unless they’re out on a stretcher” employers should, in the first instance, negotiate with the worker to see whether they could be accommodated to continue at work. This improved the employer and employee mindset about the injury and potential for recovery, he said, and could avoid some employees stopping work while they dealt with their situation.

He told the AdvertiserIt’s not so much how serious the injury is, it’s how seriously it’s perceived that may be the obstacle itself”.

Said expert also said that “if someone injured themselves at home – for example, hurt their back gardening – they might “cope with it quite happily” but they were treated differently, and behaved differently, if they sustained a similar injury at work

You can read the entire article on the Advertiser’s website.

http://www.adelaidenow.com.au/let-injured-workers-heal-on-job/comments-e6frea6u-1226137329205

Very interesting and most DESPICABLE is the following comment made by a case manager of Reality:

I wish it was that straight-forward. The problem is that ‘injured’ workers don’t want to go back to work and it’s far easier to go to the GP and get an ‘unfit for work’ certificate. Don’t blame WorkCover/Employers for this states poor return-to-work record, it’s the 90% of ‘injured’ workers who use the system as a tool for a career change!

workcovervictimsdiary.com is extremely offended by this comment.

I am an seriously injured worker who was ‘forced’ to continue working in between 7 major and failed dominant upper limb surgeries,repeatedly made worse and worse by being forced to work in the most inappropriate of circumstances without any provision of medically requested, reasonable ergonomic aids in the workplace! I lost ALL function in my dominant arm at a fairly young age , I am currently on 60% of my wage, if that (the sad thing being that I was assaulted at work just a few weeks prior to completing a Masters at uni with first class honours –> here is someone who was a mature student!). I have NO superannuation payments, need to fight like hell for every bit of my ongoing treatment, and here we have a case manager from reality suggesting injured workers do this for a career change. Well if thats the case, Who in their right mind would put themselves through all that?

Ms reality, I sincerely hope and prey that you will slip, trip, fall, get assaulted, electrocute yourself, and-the-like during the course of your pathetic work, so that YOU may experience the REALITY of being a real injured worker. When this happens, please refrain from seeking support or compassion on this site!

 

Return to work on light duty

The (true) Case: “John” worked for an electrical contractor for over 15 years. In his younger years, he worked installing electrical boxes and running electrical wiring and cable. This was a physically demanding job. As he grew older, he was no longer physically able to work as an on-site electrician. Consequently, he took a less physical job that his boss offered in the shop, dispatching trucks and keeping inventory. He did this for several years until he had a work-related accident where he fell and broke his hip. The injury was severe; John’s orthopedic surgeon recommended a hip replacement. He was kept out of work for two months.

Regardless, within a month after the hip replacement surgery, his employer drove to John’s house and pushed John to return to his job. He offered John a position that would be less physically intense, a special “light duty job” in the company’s warehouse. Disregarding his doctor’s instructions, John went back to work. But just traveling to work and climbing stairs made his hip hurt and hampered his recovery from surgery.

John’s doctor eventually cleared him to return to work with restrictions on his physical activity. These restrictions didn’t allow John from performing his old job in the warehouse.

Return to work on “light duty”: What can go wrong

Once more, his employer pressed John to take a special job supposedly crafted to avoid heavy lifting or too much walking. The employer assured John that his new job would be answering the phones and working a computer. The problem was that John had no prior office or computer experience. Thinking he would be trained to operate the computer and handle office work he went to work. And John waited to be trained, but his supervisor seemed to have no time to instruct him. And so it continued until John was dismissed from his job for lack of productivity and for being unable to operate the computer and handle the office and telephones that no one had ever trained him for.

Therefore, John’s employer fired him after 15 years of loyal service on what can only be described as a pretense. John engaged a lawyer to bring a claim against his employer for “retaliatory or constructive dismissal” because of John’s Worker’s Compensation claim for injury to his hip.

The employer argued that sacking John had nothing to do with his injury, so he was not entitled to any further compensation, since he was capable of working.

Had John simply turned down the office job, and stayed out of work, because of his work-related hip fracture, the Worker’s Compensation insurance carrier would have had to continue to pay him weekly benefits.

Here’s what was done: John’s claim was vigorously pursued and discovery commenced, which allowed John’s lawyer to explore the employer’s legal position. In the face of questioning about the “special” office job and how John came to be sacked, information unfavourable to the employer was uncovered. John’s lawyer revealed details which allowed his lawyers/barrister to convincingly argue that:  (a) the office job was “make-work,” and, (b) the John was sacked for reasons related to his on-the-job accident and workers’ compensation claim.

This claim ultimately settled in John’s favour.

John’s case is certainly far from unique, many employers will go to great lengths to find a way to squeeze an injured worker out of employment. Thanks God perhaps that the legislation has become harsher in 2010 and employers can now be prosecuted and fined!

caution-job-scams-workcover

Vocational assessment, suitable jobs, you-could-be-a-funeral-director scam

Many so called Vocational Assessors you are referred to by workcover insurance companies, will use nothing more than computer testing for “suitable jobs”! This does not take into effect that many injured patients have a multiple of things the matter with them above their main diagnosis and may be socially and otherwise handicapped. A supreme court case in Canada made it clear handicap or impairment had to include ALL problems. There is no evidence counselling someone on a job possibility makes it happen in disabled cases. Canada Disability pension criteria had to be modified to include not just suitable jobs but AVAILABLE and giving substantive gainful employment – measures ignored by workcover insurance companies who will terminate cases for any excuse. I call this the “you could be a funeral director” scam.

Continue Reading…

Return to Work explained

Supporting an injured worker to return to work

An injured worker should be given sufficient time to recover from the injury and not feel pressured into returning to work.

When the injured worker does return, an employer should ensure that they are given appropriate duties and assistance while they recover from the injury.

Your employer is NOT allowed to sack you if you are able to complete the tasks inherent to the job, i.e. with reasonable ergonomic assistance.

 

This might include making reasonable adjustments to the workplace, although these should not cause the organisation unjustifiable hardship.

Reasonable adjustments are changes that allow people with disabilities to work safely and productively.

Examples of reasonable adjustments may include:

  • telephone typewriter phone access for employees with hearing or speech impairments
  • flexibility in weekly hours to allow an employee to attend regular medical appointments
  • screen reading software for employees with vision impairments
  • more regular breaks for people with chronic pain or fatigue
  • desks with adjustable heights for people using wheelchairs
  • dictation (voice recognition) software for injured people who can only use one non-dominant arm
  • alternative computer mouse
  • under-desk keyboard tray
  • carry-bag on wheels
  • docking station for laptop
  • ergonomic chair/seating

Should an external Rehabilitation service provider be engaged (which is often the case) remember that the WorkCover Insurance company must provide you with a choice of at least 3 service providers. Do your research as, from experience, there are quite a few utterly useless rehab service providers out there I tell you (they are barely 20 years old, don’t listen to you and just decide on their own what you need and should work with! – Tip: always ask them to SHOW you how to work with the recommended equipment whilst pretending they have your injury (i.e no use a limb etc)).

Discrimination against an injured worker is against the law, regardless of whether the injury was sustained at work or outside the workplace.

When injuries are caused at work

An employer has certain legal responsibilities under the Accident Compensation Act if an employee is injured at work. Injured employees are only required to return to work when they are well enough to do so and they are entitled to access an occupational rehabilitation program, if required.

In addition, an employer must:

  • hold the injured person’s position open for 12 months (52 weeks)
  • help an injured worker return to their job within 12 months of an injury if they are capable of doing so
  • help an injured worker to return to different or modified duties within 12 months of an injury, if they are fit for work but not able to perform their previous duties

Your employer is NOT allowed by law to terminate your employment, especially during the first 12 months following your injury. Should they do so or attempt to do so, contact your WorkCover Insurance company immediately,contact WorkSafe immediately (see below for more information).

Return to work plans

Following an injury, planning for an employee to return to work should begin as soon as possible and is mandatory.

An employer is responsible for assessing the type and level of support the injured worker will require and maintaining regular communication with the worker during the recovery period.

Planning for a return to work will involve setting realistic and progressive goals, in consultation with the injured worker and their health professional.

As part of this process, an employer is required to develop a return to work plan, which sets out the practical steps to assist the injured worker return to work, or how the injured worker will be supported to remain at work while they recover.

If the injured worker is able to work, the return to work plan must, by law, include an Offer of Suitable Employment.

An Offer of Suitable Employment is a written outline of the suitable duties that have been identified to support the injured worker return to work. Information on Developing and implementing a return to work plan – including all relevant forms and documentation – is available from Worksafe Victoria.

 

RETURN TO WORK OBLIGATIONS

Employers and workers both have “return to work” obligations where an injury has occurred at work.

Essentially, an injured worker must make a reasonable effort to return to work either in their pre-injury duties or other suitable duties. Making a reasonable effort can include attending medical or occupational rehabilitation appointments arranged by the insurer or returning to work on light duties in line with a doctor’s recommendation. If a worker does not comply with their return to work obligations, their weekly payments may be suspended or even terminated.

Employers now have new obligations which they must comply with, to the extent that it is reasonable to do so. Some of those obligations are to: provide suitable employment if a worker has the ability to work; provide a worker with their pre-injury employment if they are fit to return to work; plan a return to work; and consult with a worker, their doctors and a rehabilitation provider about a worker’s return to work.

From 1 July 2010, an employer’s failure to comply with an obligation is an offence. The maximum penalty is currently approximately $105,000. Also, injured workers can now request that WorkSafe prosecute an employer for a failure to comply with their obligations. If WorkSafe declines to prosecute, then the matter can be referred to the Director of Public Prosecutions.

If you have any questions about your return to work obligations, or if you believe your employer may have breached their return to work obligations, you better contact your lawyer for further advice.

Suitable or modified duties and discrimination under workcover

Federal and State Anti-Discrimination legislation makes it unlawful to discriminate against someone on the basis of a disability/impairment. However the occupational health and safety legislation (OHS) requires employers to provide a safe workplace  for their employees.

These obligations can be a fine line when an employer suggests/allocates “suitable appropriate duties” for  injured employees (i.e. workers who have pre-existing injuries, or who are injured at work and are then certified fit to return on normal or light duties).

Restricting working hours, denying overtime or varying work duties (‘suitable duties) can all potentially constitute discriminatory conduct.

 

remember this is also discrimination

 

For example, a court may find that restricting the number of hours an employee recovering from surgery is allowed to work is discriminatory conduct. However, this conduct can be authorised if the employer can show that because the employee could not safely for example manoeuvre heavy machinery, the restriction was necessary to comply with the OHS requirement of ensuring a safe workplace.

Real workcover examples

H J Heinz v Turner5 (2002)

The court held that a workplace policy banning employees on restricted duties from overtime was discriminatory, but was authorised by law as it was a regime of work practice designed to ensure the health and safety of employees in compliance with OHS legislation.

NSWADT in Higginson v Cargill6

In that case, an abattoir worker had major surgery to his knee and was warned that if he slipped or fell he could lose the use of his knee completely. Because of the greater risk for this employee, the employer did not allow him to return to pre-injury duties on the slippery abattoir floor. However, the Tribunal held that the employee was not at a higher risk of slipping than a non-injured employee and that his injury did not prevent him from performing his pre-injury duties safely. Consequently, it was held that the employer discriminated against the employee.

The employer argued that the conduct was necessary to comply with its obligation to ensure workplace safety, but the Tribunal adopted a restricted approach to the statutory exemption. Under this approach, the employer must establish that there is a specific requirement in the other relevant Act relied upon. It must also be shown that the nature of the work and disability, when viewed objectively, leaves no option or discretion but to engage in the discriminatory conduct in order to comply with the requirement. In this case, the Tribunal held that the conduct was not necessary.

French v Sydney Turf Club7 – no discrimination

The Tribunal found that the employer discriminated against an employee by restricting her shifts to four hours. However, as her work injuries precluded her from safely lifting, bending, twisting or lifting loads from below the level of her thigh, the Tribunal found that, viewed objectively, the employee could not safely work a full shift as a bar attendant either with or without reasonable accommodation. Consequently the employer’s decision to limit Ms French’s working hours was necessary to comply with OHS obligations and was lawful.

Perlidis v Brambles Security Service8 – discrimination

Mr Perlidis worked as a member of an armoured vehicle car-crew. He strained his back at work and subsequently returned to work with medical certificates stating that he could lift only restricted loads. The employer decided that based on these limitations, Mr Perlidis could not be a member of any overtime car-crew. The employer argued before the Tribunal that the discrimination was lawful, as, when working overtime, it is important for safety that all members are able to lift full loads. The Tribunal disagreed and found that this was discriminatory conduct. It was held that there were other overtime duties that Mr Perlidis could have performed and therefore it was not necessary to restrict his hours.

An employer’s honest belief as to the employee’s best interests or to the effect of other Acts will not be a defence.

Discriminatory conduct will only be authorised if the employer can show that, viewed objectively, they had no option but to engage in the relevant conduct