C2004/354, Transcript of Proceedings [2005] AIRCTrans 426 (21 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10422

COMMISSIONER DANGERFIELD*

C2004/354

S.99 - notification of an industrial dispute

TransAdelaide
and
Australian Rail, Tram and Bus Industry Union
(C2004/354)
Rail Industry (TransAdelaide) Award 2002

ADELAIDE

10.14AM, WEDNESDAY, 09 FEBRUARY 2005

Continued from 08/02/2005

PN547

THE COMMISSIONER: Now, Mr Welsby is on his feet. Right.

PN548

MR WELSBY: Yes. Thank you, Commissioner. Firstly I would like to go to item 3 that I asked to be deferred yesterday, item 3 being the income maintenance for permanent incapacity. I am pleased to report that I believe that we have now resolved that matter. Just briefly, and to put something on the record that will probably give comfort to my union colleagues, I would just say that the problem has arisen by conflicting advice that was contained in two letters that TransAdelaide sent to the Rail Tram and Bus Union that caused confusion, probably on my part rather than on their part.

PN549

My instructions are that TransAdelaide will abide by the commitment that was given in U11 that was tabled yesterday, U11 being a letter from Roy Arnold, the General Manager of TransAdelaide to Ray Hancox, branch secretary of the Rail Tram and Bus Union dated 30 August 2004. Wherein on page 2, at the second point 5, TransAdelaide makes the statement that in response to a question that had been raised by Mr Hancox, that was employees who were declared permanently unfit for duties should have maintained income and employment with TransAdelaide for the duration of their working life, the answer being consistent with current policy and practice, TransAdelaide will endeavour to find ongoing employment within the organisation and then in the wider public service, current income maintenance provisions will apply. On that basis I believe it is - the issue is resolved, but I guess that is up to the unions to indicate whether that resolves the issue for them.

PN550

MR HANCOX: That would certainly resolve the issue, Mr Commissioner.

PN551

THE COMMISSIONER: Right. Excellent. That disposes of item 3. Where do we go from there?

PN552

MR WELSBY: I wish to respond to what Ms van Barneveld put to you yesterday in relation to drug testing of periodical medical assessments. As
Ms van Barneveld submitted yesterday, TransAdelaide is required to ensure, under the Railways Safety Act, or the Rail Safety Act, that a railway employee who performs railway safety work does not carry out that work whilst under the influence of drugs. And to meet this requirement, as part of accreditation to operate as a rail provider, TransAdelaide has in place a procedure for drug testing, and I would like to hand up that procedure as an exhibit if I could.

EXHIBIT #TA12 THE TRANSADELAIDE CORPORATE PROCEDURE IN RELATION TO OHS AND W DRUG TESTING

PN553

MR WELSBY: On page 4 of that exhibit, at point 5, there is a major heading called process, and the procedure then goes on to say, compulsory testing:

PN554

Compulsory drug testing will occur in the following circumstances, at pre employment medical assessments, at subsequent periodic medical assessments.

PN555

There is also other areas covered, but these are the two at issue here, I believe. Although the pre employment medical assessment I do not believe is at issue, because that is quite clearly covered in the national standards. Given this is an occupational health safety and welfare procedure I am confident that it would have involved consultation with employer groups, so it would not have been introduced by TransAdelaide without consultation.

PN556

THE COMMISSIONER: With employee groups, you mean?

PN557

MR WELSBY: Employee groups, yes, sorry.

PN558

THE COMMISSIONER: Right.

PN559

MR WELSBY: The process that TransAdelaide uses in terms of conducting drug screens is by urine testing and analysis. And this process of conducting urine tests for drug screenings has been a standard practice for TransAdelaide in terms of pre employment medicals, change of classification medicals, and importantly, periodic medicals for some time. So in that regard I would submit that TransAdelaide is not introducing something new here.

PN560

THE COMMISSIONER: Can I just ask there, in regard to the urine tests, as I understand those tests, and I have some knowledge of it as a result of other matters in this Commission, that would - if a urine test is positive that indicates that a person has been exposed to a particular drug.

PN561

MR WELSBY: Correct.

PN562

THE COMMISSIONER: But, it might have been, in the case of cannabis, for example, it might have been over the previous couple of months, because cannabis can hang around in the system for quite some time. So if there is a positive reading on one of those panel 5 tests or whatever they call it - what do you then do? Or is it a zero tolerance policy?

PN563

MR WELSBY: TransAdelaide has a zero tolerance to drugs, yes.

PN564

THE COMMISSIONER: Okay. So if a person has any trace of any illegal substance they do not start work.

PN565

MR WELSBY: Correct.

PN566

THE COMMISSIONER: Okay. And that is common, is it, through the industry?

PN567

MR WELSBY: Yes, I believe so.

PN568

THE COMMISSIONER: So, you do not go on to have - if there is a positive result in the urine test you do not go on to have a blood test which can then determine, of course - tell you a lot more.

PN569

MR WELSBY: They can, yes. They can, but not necessarily.

PN570

THE COMMISSIONER: All right. Anyway, it is not immediately relevant here, but I was just interested to know.

PN571

MR WELSBY: The point I would like to make about the fact that we are not introducing something new is just to clarify for the Commission.
Ms van Barneveld, did not make any suggestion along those lines, but I just want to clarify for the Commission's benefit, that this is not a new practice, if you had been given that impression by her submission yesterday. It is not something new that we have introduced as a result of these new medical standards. Exhibit U8 was tabled as part of the argument put forward by the union yesterday, and that is an extract from the national standards for health assessment of rail safety workers. And, I think an attempt was made to imply that the standard specifically excluded drug screening being conducted at periodical health assessments. And this is not entirely true. What the standard says is that they are generally not included.

PN572

A quite different connotation I would suggest, and certainly does not exclude them from being conducted. That is at point 7.5 of that exhibit, the third paragraph. So it says periodic health assessments generally do not include a drug screen, so it does not exclude them from being conducted. On the same theme, a letter was tabled from Mr Henniker - - -

PN573

THE COMMISSIONER: Let us stop there, and have a look at that paragraph. I am just wondering whether - periodic health assessments generally do not include a drug screen, however, assessment for drug or alcohol dependence is an aspect of the safety critical worker periodic health assessment. How do you harmonize those two sentences?

PN574

MR WELSBY: I would think that part of that would be there is a questionnaire that the employee goes through that needs to be answered.

PN575

THE COMMISSIONER: Oh, I see - - -

PN576

MR WELSBY: So, we are not just necessarily talking about so-called recreational drugs, we are talking about medications as well, which may exclude someone from undertaking railway safety work. So, it is not just, you know, those so-called recreational drugs. So, it would be if people were under medication they would need to declare that at the time of their medical, and therefore the doctor would make an assessment on that medication. There could also be outward signs for doctors that would trigger that there is potentially a problem here. As I said, on the same theme, a letter from Mr Henniker of Transport SA was also tabled as exhibit U9. I find this letter a bit perplexing in that it has an element of conflict in it, I believe. On the first page of that exhibit, in the last sentence, Mr Henniker says:

PN577

It also notes that periodic health assessments do not include a drug screen.

PN578

As I have just demonstrated, in terms of the national standards, I do not believe that is the case. As he has missed out the word, generally, which we have indicated provides a quite different context to the words. The conflict also continues in terms of page 2 of that letter. Again, in the last sentence, where he says:

PN579

This office supports those views in that drug screening is not specifically required by the standards for those workers completing periodic health assessments.

PN580

So, on one hand he is saying they do not include a drug screen, and then he goes on to say they do not specifically - they are not specifically required. So he is having a bit both ways, and is not being specific. TransAdelaide would submit that neither of those documents specifically exclude TransAdelaide from requiring a drug screen to be conducted at a periodic health assessment.

PN581

THE COMMISSIONER: Can I just clarify there - is it TransAdelaide's intention to routinely do the drug testing at those things, or just occasionally?

PN582

MR WELSBY: Routinely.

PN583

THE COMMISSIONER: Okay.

PN584

MR WELSBY: The final document that - - -

PN585

THE COMMISSIONER: And can I just - sorry - if they do it routinely at those assessments, do they do those drug tests at other times as well?

PN586

MR WELSBY: Yes. We have a random testing regime as well.

PN587

THE COMMISSIONER: Okay.

PN588

MR WELSBY: The final document that Ms van Barneveld tabled is exhibit U11, that I earlier referred to, that is a letter from Roy Arnold, General Manager of TransAdelaide to Ray Hancox, dated 30 August, 2004. And she referred to page 2 of that letter, in respect of point 1, the first point 1 of that letter, that says the blood test would be used for the health assessment only, not used for random drug screening or DNA testing. So I acknowledge that it does say that the blood test would be used for the health assessment only, and not for random drug screening or DNA testing, but this response was only provided to a question that specifically asked that. What it does not go on to say is that drug screening through urine analysis would continue in accordance with normal practice. Now, in hindsight the letter should probably have included this information, as it was certainly always TransAdelaide's intention to continue this practice.

PN589

I would also like to say that if this letter mislead the ARTBIU then it certainly was not TransAdelaide's intention to do so. It is certainly true that TransAdelaide has a number of avenues through which it can subject its employees to a drug test, including random testing and show cause. In view of that, it is somewhat perplexing that the ARTBIU would object to a drug screen being conducted during a periodic health assessment, particularly given that the employee receives a month's notice of the assessment. I have not - I have deliberately not commented on the letter from Mr Claassens that was also tabled as exhibit U10, on the basis of my objection yesterday as to the validity of that exhibit, as I do not consider it carries weight in the overall assessment of the issue.

PN590

I believe we should place more weight on the view of the regulator and the national standards themselves. In conclusion, I would have to say that it would be unusual for an organisation to be penalised for exceeding the required standards. That is, whilst there is no requirement for a drug test to be performed at a periodic health assessment, by choosing to do so TransAdelaide is actually exceeding the standard. It is also, in exceeding the standard, meeting its requirement under the Rail Safety Act.

PN591

THE COMMISSIONER: What do you say about the issue of trust that I think was raised yesterday by the union?

PN592

MR WELSBY: I think it is an interesting one and perhaps I do have to comment on Mr Claassens' letter, where he talks about that, as an issue, that he believes was discussed in the national project team. And I find that one somewhat difficult to comprehend in that, if it is okay for it to be conducted at a pre employment medical, and it is okay to conduct it at an upgrade medical, then why is it such a confidential issue about periodic medicals?

PN593

THE COMMISSIONER: Okay. Ms van Barneveld.

PN594

MR WELSBY: That is all I have, Commissioner.

PN595

MS VAN BARNEVELD: Thank you, Commissioner. I do have a few things to clarify. My first question, and I suppose this is more to Mr Welsby, is I am not quite sure how TransAdelaide interpret the meaning `generally do not require a drug screen' to equal `permission to conduct a drug screen for every single worker who does a periodic health assessment'. I would also highlight, to the Commission, the letter from Mr Claassens actually should probably be given even much more weight than probably Mr Welsby has been giving it. If you have a look at the letter from Transport SA which the union handed up yesterday, and that Mr Welsby has just referred to, the last paragraph, and this was remiss of me yesterday, the last paragraph of that letter, signed by Derek Henniker, says:

PN596

Your correspondence reflects comments quoted of those as being those of Ms Powning and Mr Claassens. This office supports those views, in that drug screening is not specifically required by the standard for those workers completing periodic health assessments.

PN597

I must admit that I should have provided a copy of the email to which Mr Henniker is referring. In that email I pose a specific scenario to the regulator, and I was hoping he had included it in his letter, which he didn't, and that basically put the same scenario that Mr Claassens addressed, in that the reason there is not drug screening at the time of the medical is that one, organisations can do it at other times, as Mr Welsby has just explained to the Commission, and secondly, that there is this issue of trust. The medical is not designed to test for drugs, the medical is designed to highlight, or to identify, illnesses or potential illnesses in drivers or other category one workers, which could result in them collapsing, and their collapse leading to a catastrophic incident on the railways.

PN598

There is absolutely no connection between the drug testing component, which should not be there, and that, and we would argue, as would Ms Powning form the Department of Infrastructure, who was instrumental in the Victorian standard, which was then adopted as the national standard, and Mr Claassens, who I acknowledge Mr Welsby treats as suspicious because he works for the union. So I would argue that, quite strongly, as the South Australian regulator has acknowledged, drug screening is not supposed to be part of a periodic health assessment. I am happy to supply a copy of the email to the Commission.

PN599

THE COMMISSIONER: Yes, I think that would be useful. Is your strongest point on this the trust argument?

PN600

MS VAN BARNEVELD: It is. The main reason that it was not included from those people's recollection of discussions, and it is not just the union's recollection as Mr Welsby suggests, it is Jan Powning's recollection and others, and in fact I think Dr Bruce Hocking also - Alex Claassens spoke to him yesterday, and he also confirmed that, that the issue was - you know - rail workers, some of them, and there is - - -

PN601

MR WELSBY: Just with due respect, I mean, we are talking about people that we have not gone any evidence about - - -

PN602

MS VAN BARNEVELD: No, but I can supply that to the Commission.

PN603

MR WELSBY: I am not doubting the veracity of what Ms van Barneveld is saying, but she is quoting people that have not provided anything to quote from.

PN604

MS VAN BARNEVELD: Well, that is not true because Mr Henniker's letter says my correspondence reflects comments quoted as those being of Ms Powning and Mr Claassens, and they are to whom I am referring.

PN605

MR WELSBY: But, we do not have those - - -

PN606

MS VAN BARNEVELD: So, if I supply the email to the Commission that would clarify it.

PN607

THE COMMISSIONER: It would help. It might help, I am happy to concede that, but if there is any objection though from TransAdelaide on that email for whatever reason, that is the difficulty. When could you supply it?

PN608

MR WELSBY: I doubt that there would be, because I was probably going to ask for it myself, because it could change the context of Mr Henniker's response.

PN609

THE COMMISSIONER: Yes, that is the only reason - - -

PN610

MR WELSBY: What was actually put to him.

PN611

THE COMMISSIONER: Yes, that is the only reason. It would just supply some context which would probably complete it.

PN612

MS VAN BARNEVELD: Yes. It is. I apologise for not including it earlier.

PN613

THE COMMISSIONER: All right. Well, we can do that after proceedings.

PN614

MS VAN BARNEVELD: Yes. I think that basically concludes my response, Commissioner. Thank you.

PN615

THE COMMISSIONER: Any final comment at all, Mr Welsby?

PN616

MR WELSBY: Just one small comment. Play was made, just then, about the medical being about determination of someone's sudden incapacity which could lead to a disastrous situation. I mean, I would suggest that anyone who was affected by drugs would certainly come within that category.

PN617

MS VAN BARNEVELD: No, not if it - - -

PN618

MR HANCOX: I suppose I am going to have to buy into this argument, Commissioner, because even though we had several discussions over this particular aspect of drugs in the rail industry, and I do not believe it is a high incidence of drugs in the rail industry, we have always argued that there should be a test for impairment, not just presence. And I am sure blood testing and all that sort of thing does not give any indication of impairment.

PN619

THE COMMISSIONER: Yes. Look, this is perhaps a bit of a side issue. But, I dealt with a long standing, quite famous now, infamous unfair dismissal matter involving a zero tolerance policy in a particular industry. And, I can understand a zero tolerance policy in some areas, perhaps train driving is one of them, bus driving and that sort of thing. But, one must always be careful, I think, to guard against the fact that sometimes people can have traces of, and cannabis is the one - or it could be other things - it could be - - -

PN620

MR HANCOX: Opiates.

PN621

THE COMMISSIONER: Yes, opiates, from use of codeine and that sort of thing. Any one of us in here today might currently have in our system - a urine test might show that we currently have in our system traces of something - and if we are then accused of - well, you just clearly cannot do your job or you cannot even drive a truck, whatever, there are some issues there. Certainly there are some issues in the unfair dismissal jurisdiction. Now, I do not know what happens here with people flying airplanes and that sort of thing, I mean, maybe you have got to kick away from parties where there is unusual smoke around the place or whatever, I do not know. But, even walking down the street, from what I understand, any of us could be affected by these things, or by taking codeine or whatever, that sort of thing. Have you got any - I mean, this is probably not directly relevant to this Mr Welsby, but I mean - how does that all work through?

PN622

MR WELSBY: It is a vexed argument. I certainly, when I get on a plane would hope that the guy up the front has not been at a party the night before where that funny smoke was present, but yes, it is a vexed question, and it is a difficult issue to deal with. I think, about the confidentiality issue associated with this testing is that as we have recognised, and as the standards say, TransAdelaide just gets a simple yes or no - there can be some clarifications on it from the medical practitioner. So, I would have thought that the medical practitioner has some flexibility to make an interpretation about the test, and if he believes - if he or she believes that a minute trace of a particular drug in the system does not have relevance, then I do not know that they would advise TransAdelaide. I do not know that.

PN623

THE COMMISSIONER: So you rely entirely on the medical report.

PN624

MR WELSBY: Yes.

PN625

THE COMMISSIONER: Yes, that may well be the case, and then presumably if there is a trace found the medico would say well, where have you been lately and a few questions like that would be asked. Yes, well - look, it is a little bit of a side issue what we are talking about now, but it is an interesting thing. I think whenever you have zero tolerance policies on any - on any issues at all - an employer has to be very careful about how you deal with them. On the other hand, I think there is room for - in areas of considerable public safety, or the other issue - or the other area I think about is, for example, with the armed forces.

PN626

They had a zero tolerance policy as I understand, and you do not want peace keepers swaggering through with arms and whatever in a dangerous area under the influence of - or who are regular uses in one form or another. I mean, clearly it is appropriate in some circumstances. I just say, whenever I hear zero tolerance I think, be very careful, because - particularly in this area of drug testing - but anyway, that is a bit of a side issue.

PN627

MR WELSBY: I think the point is taken, and I think it will be an ongoing argument for some time now.

PN628

THE COMMISSIONER: Yes.

PN629

MR HANCOX: I must say I am a little bit confused, because Mr Welsby appears to be saying different things here. He appears to be saying that a medical practitioner can test, but under the confidentiality rules, he is not allowed to tell TransAdelaide, if that particular person has a - because all they tell TransAdelaide as a result of this new health assessment is whether he or she is fit to perform the duties that are required of them. Nothing more. Anything else is totally illegal.

PN630

MR WELSBY: I think probably it comes down to - - -

PN631

MR HANCOX: I then ask the question, well, why do the drug test in the first place if the doctor is not allowed to tell the employer?

PN632

THE COMMISSIONER: No. Well, look I think tests are done and it is up to medical people to interpret those tests. They can interpret them how ever they want and the employer can only ever go on what the medico says. And if they have noticed that there are minute traces which they think are irrelevant or could have been picked up walking down the street or whatever then the medico is, I suppose, entitled to say, well look, I will not even mention. I presume that is the case - but, for those of us who are lay people struggling with this - I mean, it is all a bit of a mystery, isn't it. Now, there is that issue, what else do we have Mr Welsby?

PN633

MR WELSBY: Nothing further to put to you, I do not believe. I think we have put all of our arguments.

PN634

THE COMMISSIONER: Right. Now, the only other thing, was I said yesterday, in regard to the work - in regard to the agreed statement of facts, there were those documents attached to that, and I have not gone through and done this exercise, but those documents that are attached to it, are they covered in the exhibits that are already before the Commission or are there separate ones there. And I am talking, first of all, let us go through them one by one. And there are two ways of doing this, either we can just note that they are covered in the exhibits already or if they are not we can just sort of include them in the agreed statement of facts.

PN635

MS VAN BARNEVELD: Commissioner, I know some are, but I am not sure if all are.

PN636

THE COMMISSIONER: Okay. Well, does either party have any objection to the letter from Mr Arnold, of 22 November, 2004, to Mr Hancox, which is the first of the letters that I have got, and it is attaching to that a document headed employee notice health assessments, jointly signed.

PN637

MS VAN BARNEVELD: No, Commissioner.

PN638

THE COMMISSIONER: No objection to that?

PN639

MR WELSBY: No objection.

PN640

THE COMMISSIONER: So that is in effect - I will just include that as part of the agreed facts, and if I have to refer to it in the decision I will simply say it is the letter of such and such, in the bundle of - in the document - in the bundle of documents that were agreed facts. The next letter we have got, the 20 August letter from the union to Mr Arnold, Friday, 20 August, 2004. No problem with that?

PN641

MR WELSBY: No.

PN642

THE COMMISSIONER: The next one was the letter from TransAdelaide to Mr Hancox, dated 17 November, 2004.

PN643

MR WELSBY: No objection.

PN644

THE COMMISSIONER: Then we had the corporate procedure, health assessment procedure, organisational development - - -

PN645

MR HANCOX: Was that marked a draft, Commissioner, or is it?

PN646

THE COMMISSIONER: Yes, it is marked as a draft - that is a draft, yes.

PN647

MR WELSBY: I have got a feeling that that was handed up as an exhibit in our first hearing.

PN648

THE COMMISSIONER: It may well have been, dated 7 July, 2004, it may have been, it does ring a bell. In fact, I have just noticed, for example, that the previous letter that I referred to, that letter of 20 August - Friday, 20 August, that is already TA5 - I just noted that.

PN649

MR WELSBY: Yes, it is exhibit TA4, Commissioner.

PN650

THE COMMISSIONER: Yes, it is. Yes, it says TA4 on the top actually. TA4, and then the final document I have got - now, this probably needs a bit of explanation. This is the document, about one and a half pages, headed health assessments, national standards - it looks like, or it purports to be, minutes of a meeting, is it, or notes of a meeting. Attendees, Mr Hancox, Mr Williams, Mr Gehangary, Mr O'Day, Mr Cotton - location, the meeting was conducted in the boardroom of the ARS and commenced at 12.20 pm, purpose on Friday, 26 November, 2004, a conciliation hearing was held before me, et cetera. It is an undated document, it is the last document in the bundle of agreed facts. Can you put a context to that, Mr Welsby?

PN651

MR WELSBY: Yes. And, perhaps I might help Mr Hancox out here. They are notes that were taken by TransAdelaide that were not distributed and necessarily accepted by the union. So I think I would - - -

PN652

THE COMMISSIONER: They are not formal minutes - - -

PN653

MR WELSBY: I would like to put that qualification around them.

PN654

THE COMMISSIONER: TransAdelaide file notes.

PN655

MR WELSBY: Correct.

PN656

THE COMMISSIONER: Yes.

PN657

MR WELSBY: So, I guess I would have to say that it would not be something that the Commission probably should rely upon in making a decision.

PN658

THE COMMISSIONER: No, okay.

PN659

MR WELSBY: As to facts that were put in there.

PN660

THE COMMISSIONER: Okay. I will - and I think that is probably wise - if I put a pencil through that, a bit like the other one we did yesterday - one of the union ones I think. I will not have regard to that, because it is obviously not formal minutes, it is just some sort of file notes somewhere. All right. Well, that disposes of that, and I think, probably, that is all we need to cover. I just remind the parties that if you could get those sort of agreed statement of outcomes, that would - from each of the parties - that would be useful - and if that could be in, perhaps by the end of the week?

PN661

MS VAN BARNEVELD: Just to clarify, Commissioner. That is not an agreed statement of outcomes, but rather our draft orders?

PN662

THE COMMISSIONER: Draft orders, or draft statement of preferred outcomes, or something like that, from each party. And that would - and that statement, also, would sort of pick up and reiterate what you understand to be the agreements arising out of these proceedings.

PN663

MS VAN BARNEVELD: Okay.

PN664

THE COMMISSIONER: I think there are a couple of matters that have been agreed, and I think it would be useful if each of you could just confirm what you understand your agreements to be, so that they do not come unstuck in the process. I think we have got transcript to help us, but I think it would be useful if each party said, this is our statement of outcomes, this is our statement of what we understand to have been agreed during the course of these proceedings. Each of you do that, you exchange it, of course, with each other, give it to me, and that will help me, and also I think it will help you in making sure that these agreements that have been reached do not come unstuck.

PN665

MS VAN BARNEVELD: Thank you, Commissioner.

PN666

THE COMMISSIONER: All right. That concludes the hearing of the matter. I think what I can say is the transcript presumably will come through in the next few days, or whatever. As indicated, I am away for the next couple of weeks, but I will get on to it with some degree of expedition and hopefully it won't - won't hang on to this for too long before I can give a decision in the matter. Thank you.

PN667

MS VAN BARNEVELD: Thank you.

<ADJOURNED INDEFINITELY [10.49AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TA12 THE TRANSADELAIDE CORPORATE PROCEDURE IN RELATION TO OHS AND W DRUG TESTING PN552