Bus medical checks

By: Randall Johnston

The TWU is seeking a review of how medical checks are conducted for bus company employees

Bus operator employee agreements  may soon be revised, to clarify the rules around mandatory medical checks following a recent decision in the Fair Work Commission.

Australia Public Transport Industrial Association (APTIA) national industrial relations manager Ian MacDonald says the Transport Workers Union (TWU) wants to restrict the right for an employer to insist their staff see a doctor of its choosing – only if they suspect the employee cannot undertake the inherent requirements of their job.

The TWU took Cement Australia to the Fair Work Commission over a stipulation in its employee’s contracts that required all staff to have bi-annual medical checks.

The Fair Work Commission ruled that Cement Australia could not make medical health checks compulsory for its workers, in its decision on Friday, April 24.

While those responsible for the lives and safety of passengers, as in the case of the bus industry, will always have to undergo medical checks, exactly who gets to choose who conducts these tests and in what circumstances is it reasonable to require such tests will come under the microscope.

 "The TWU has sought a new provision to be included into the Passenger Vehicle Transportation Award 2010, as part of the four yearly review," MacDonald says.

"The TWU wants to limit an employer’s right to request an employee to see the employer’s doctor to circumstances where the employer has a ‘genuine suspicion of reasonable grounds that an employee cannot perform the inherent requirements of their job."

In the Cement Australia case, the TWU had disputed the Cement Australia’s right to direct its drivers to participate in the medical checks’ program, especially when regular medical assessments were already a requirement under the National Heavy Vehicle Accreditation Scheme.

"The Fair Work Commission agreed and ruled that there must be a genuine need for a medical assessment and it must be relevant to the requirements of the worker’s job," MacDonald says.

The commission also upheld a previous decision which ruled that an employer could direct an employee to undergo a medical check with an employer nominated doctor, but only to ensure that the employee can perform the inherent requirements of their job.

The decision suggests that an employee may not have to make their entire medical history known to their employer, including irrelevant and potentially embarrassing issues, only those medical conditions that are likely to inhibit their ability to do the job.

"The decision does not limit in any way the right of an employer to ensure that an employee is fit for work which is a critical component of a bus driver’ job description, especially from a work health and safety perspective," MacDonald says.

"It is important however that bus operators ensure that this right to require a ‘fit for work’ medical, is imbedded into their enterprise agreements. "

The current Passenger Vehicle Transportation Award 2010 deems ‘an employer may require an employee and the employee will agree to submit to a medical examination upon engagement and thereafter periodically at the discretion of the employer’.

This clause may now have to be altered, in light of the Cement Australia decision – as part of the current review process.

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