Recent developments in the area of medical assessments should
serve as a warning to all employers about how they approach the
obtaining of health information to manage employment risks.
The Fair Work Commission recently held in Transport
Workers' Union of Australia v Cement Australia Pty
Ltd1that the mere fact of increased risk in a
particular working environment does not give employers the ability
to direct employees to have medical assessments as of right.
Although this case does not contradict the existing principle that
a lawful and reasonable direction can be issued from an employer to
an employee to attend a medical assessment on proper grounds, the
scope of those grounds have been limitedby the decision in this
It had earlier been held by the Fair Work Commission that it is
a lawful and reasonable direction to send a specific employee to a
company appointed physician for the purposes of assessing whether
or not they are capable of performing the inherent requirements of
their position. This was distinguished in the circumstances of this
new decision, where the assessments were to be made across a whole
sector of the workforce as part of a preventative measure to
address high rates ofinjury in a particular type of role.
The distinction ultimately related to the purpose of the tests.
It is a matter of settled law that employees need to be able to
perform the inherent requirements of their position safely,
however, the test in this casewas not whether or not they could
perform their duties, but as to whether or not they bore more
significant risks in those duties due to their general health and
lifestyle. It was communicated to the employees, and was true as a
matter of fact from the tests, that the results of those tests
would not be used to assess task capability, but just the health of
employees to assist them in self-managing their health in the hope
of reducing instances of injury.
The program was, in fact, specifically created as aresult of
fears that testing in relation to inherent requirements could
result in some employees losing their jobs. The recommendations
from the assessments were only likely to result in recommendations
to the employees to alter particular lifestyle factors or take part
in voluntary programs. They would not lead to significantly amended
systems of work or otherwise directly link to the perceived risk of
It should be noted that significant considerations taken into
account by the Commission included the fact that an existing
compulsory assessment scheme existed under relevant safety
legislation, and that the assessments themselves were non-specific.
Because of the lessened need to obtain these assessments, and the
general nature of the data obtained, the Commission considered the
perceived need for the assessments insufficient to counterbalance
the employees' right to privacy. The direction by the employer
to participate in the assessments was held to be beyond the scope
of a lawful and reasonable direction.
For employers, this does not mean the end of health assessments,
but it does provide a number of guidelines as to how to structure
the obtaining of health information:
Health assessments should be structured to provide
informationon the performance of the inherent requirements of a
If a health assessment is to be arranged for more than a single
employee, such as a whole sector of the workforce, it should be
clearly linked to a concrete element of their shared duties;
Consideration should be given as to whether or not there are
less invasive ways to obtain the health information;
Assessments should seek to obtain detailed, highly specific
information rather than a general assessment of fitness or
If an existing regulatory scheme exists, consideration should
be given to whether or not a further assessment is required,
particularly when considering what the inherent requirements of a
Finally, it is critical that a genuine need to obtain the
information exists, not merely a preference or a "fishing
expedition" as to possible health issues, even if this is
motivated by the desire to protect employees.
Kaden Boriss has a significant degree of experience in helping
to draft and review assessment protocols relating to the inherent
requirements of a position or positions. If you are considering
implementing assessments, or need to review your existing
assessment arrangements in light of this decision, please feel free
to contact us if you require advice.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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