C2007/2505, Transcript of Proceedings [2007] AIRCTrans 220 (2 May 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16791-1

COMMISSIONER BLAIR

C2007/2505

s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
Construction, Forestry, Mining and Energy Union Mr Ross Gilliland
and
W. Bremner and Sons
(C2007/2505)

MELBOURNE

11.39AM, THURSDAY, 19 APRIL 2007

Continued from 28/2/2007

PN1

MR K FAROUQUE: I appear for the CFMEU and MR R GILLILAND.

PN2

MR D SULLIVAN: I'm from the Australian Industry Group representing Bremner, with me MR A WYLIE from the company.

PN3

THE COMMISSIONER: Thank you. Now, this matter is listed for report back. Mr Farouque, it's the union's application.

PN4

MR FAROUQUE: Yes, Commissioner. Commissioner, you will last recall, and I think I handed up a chronology of events the last time we were here and I wonder, does the Commission have a copy of that chronology?

PN5

THE COMMISSIONER: Yes, I do.

PN6

MR FAROUQUE: Commissioner, you will last recall when we were before the Commission I set out that Mr Gilliland was due to see his orthopaedic surgeon on 27 March. He did attend that appointment. He was referred off for further investigations, scans and MRI investigations which occurred on 28 March. He went back to see the orthopaedic surgeon on 12 April 2007. The orthopaedic surgeon, I think, premised on the reports that he received, as he told Mr Gilliland, that he doesn't need an operation to his knee. He's referred him to further physiotherapy and indicated to Mr Gilliland that he should continue to take anti inflammatory medication.

PN7

He has essentially him that he doesn't consider that he needs to come back to see him at this stage and that's where, I suppose, the medical situation lies, Commissioner. In relation to the work circumstances, as I understand it, Mr Gilliland has been working consistently at Bremner. There was one particular job which he indicated to Bremner that he was unable to do that. It involved an installation, I think, of six very low windows, and that's, as I understand it, the only work that he's indicated to his employer that he has been unable to do in terms of jobs that have been assigned to him.

PN8

On that particular occasion what happened is that another glazier then performed that task and Mr Gilliland performed the task which had been previously assigned to that other glazier. So, Commissioner, that is the situation we say Mr Gilliland is working. It's working effectively and I think the Commission will recall from what was said previously by the employer, at the previous Commission hearing, Mr Gilliland is a very efficient worker, a very good glazier and has a very high level of skill.

PN9

So, Commissioner, that really is the circumstance in relation to the medical situation today. I was informed by Mr Gilliland that the orthopaedic surgeon said that he was going to send a letter to Mr Gilliland's general practitioner. I intended to contact the general practitioner, sent him an authority so that I could have a discussion with him, but I haven't heard anything back from that GP at this stage, Commissioner. So that's really where the matters lies.

PN10

THE COMMISSIONER: Thanks for that. Mr Sullivan?

PN11

MR SULLIVAN: Thank you, Commissioner. The company is still of the same opinion. At this stage it doesn't know any different about the situation with Mr Gilliland's knee in that he can't do all the job that's expected of him. We're not sure by him doing some of that work, whether it's going to get worse, better or whether he'll return back to normal duties work and we'd like some assurances from the doctors about what it means. Just to say he doesn't need an operation doesn't give us much comfort at all. It's not going to get worse, and work that he will be given could then aggravate it and then put us in a situation of Workers' Compensation, et cetera.

PN12

So we really need some sort of medical assistance to tell us if there are limitations, what those limitations are, whether any type of work that he has to go as a glazier would have a negative effect on that knee over time and then that will give some assurances to the company that we can effectively use Mr Gilliland, and at this time, as we said at the first discussion, the company only has five glaziers. It really needs all of them to be doing similar work because they don't know at what stage they're going to get all glazing contracts that do require low glazing.

PN13

If that occurs and they can't use one of their employees, it significantly hampers them. So again, we just reiterate we'd require a lot more detail from the doctor so that we can be safeguarded against injuring the employee.

PN14

MR FAROUQUE: Commissioner, can I just clarify one matter. I think Mr Gilliland has instructed me that I referred to one on occasion upon which he was unable, or indicated to his employee that he didn't consider himself able to perform the task. That involved installation, I think, of six windows. There are other occasions when he has in fact low glazing and he has in fact also performed glazing on roofs.

PN15

So it's not as if there's some kind of universal situation where he's just saying that he's unavailable, unable to perform all low glazing tasks. He has been assigned low glazing tasks and he has performed them. There was one occasion on which he didn't feel able to do that task and he indicated that to the employer and there was an exchange in terms of assigned tasks between another employee in the particular way as I have previously indicated.

PN16

THE COMMISSIONER: What documentation is there in regards to Mr Gilliland's, if you like, ability to do his work? I mean, what Mr Sullivan is saying is that all they have is verbal.

PN17

MR FAROUQUE: Yes. Well, Commissioner, I think there was a letter to - I've got a copy, Commissioner. I think the employer will have a copy of a letter from his treating general practitioner which is, I think, dated 27 February 2007.

PN18

THE COMMISSIONER: Right, but he's since seen the orthopaedic surgeon.

PN19

MR FAROUQUE: Yes, on 12 April.

PN20

THE COMMISSIONER: So what documentation have we got from the orthopaedic surgeon or from his general practitioner?

PN21

MR FAROUQUE: Well, the orthopaedic surgeon was going to send a letter to his GP, Commissioner, and I've attempted to contact the GP to get some clarification from the GP, but haven't heard any response from the general practitioner. I'm happy to endeavour to obtain some type of report, Commissioner, if that would be of assistance to the Commission, but I'm not sure whether the orthopaedic surgeon has in fact yet sent the letter to the GP, it being, you know, the consultation only occurred on 12 April.

PN22

THE COMMISSIONER: Right.

PN23

MR FAROUQUE: Following the scans that I referred to. So, Commissioner, that really is the state of play at the moment. As I said, and I hear what the employer has said about wanting to receive some indication in some formal sense, but Mr Gilliland is performing essentially normal tasks, Commissioner, subject to that one example that I indicated earlier, which occurred last week.

PN24

THE COMMISSIONER: Right. So what do you seek from today, Mr Farouque?

PN25

MR FAROUQUE: Well, Commissioner, I don't apprehend that the employer at this stage is indicating that it, you know, treats the employment at an end or the like. I understand what they say is that they want some further indication in relation to Mr Gilliland's medical capacity before it decides what course it proposes to take. So, Commissioner, perhaps in that scenario we could endeavour to provide that information to the employer and to the Commission and then perhaps, if necessary, come back before the Commission or, if there's no need to come back before the Commission because the matter is satisfactorily communicated to the employer or it regards information that it has received satisfactorily, then we may not need to trouble the Commission again.

PN26

THE COMMISSIONER: Right. Mr Sullivan?

PN27

MR SULLIVAN: Commissioner, I think a couple of things should be put in context. The applicant was terminated for the reasons that, when he did low level glazing he would go off injured, sick. Under these circumstances he's doing it. We're not sure whether he's going to take time off because in their own testimony, basically they said is when he does it, it hurts his knee. So he is doing it at the moment. We're not sure how that will affect his knee. Our view would be similar. What would be in a WorkCover situation. We would like, when the doctor gets the report from the surgeon that he comes out and has a look at where the applicant works, looks at it and says, yes, he can, or no, he can't or says he should be careful of this just so the company can protect the applicant and the applicant's protected himself.

PN28

THE COMMISSIONER: But it would appear to me that what the company seeks is a carte blanch understanding or commitment, if you like, that Mr Gilliland would never take any time off or do himself an injury. I mean, a certificate and any advice you get from a GP or a specialist, is relevant at the time. But that doesn't give a guarantee that two, three, four years down the track that something may not happen, or something may happen to Mr Gilliland that reactivates an injury. Well, that's a chance that you take. It's a chance that he takes. It's a chance that the employer takes.

PN29

If the employer is after a carte blanch guarantee that Mr Gilliland may never take a day off or may never require to go back to a GP or even an orthopaedic surgeon to have his knee re-examined, you're not going to get it.

PN30

MR SULLIVAN: No, we're not looking for that, Commissioner. We're not looking for a guarantee that he won't take time off. Looking for assistance from the medical profession and say, he shouldn't be bending, and if they say by him bending it's going to aggravate it, well, let him bend. That's all we're asking for. Not seeing any documentation, our understanding was that he needed an operation.

PN31

THE COMMISSIONER: Yes.

PN32

MR SULLIVAN: So by working - - -

PN33

THE COMMISSIONER: I think he was under that view as well.

PN34

MR SULLIVAN: So that's why we need clarity and if the doctor says, yes, he can bend, but he shouldn't bend five hours a day, fine. At least we can manage it. We know what we're doing then. But if he says he can't bend at all otherwise you're going to aggravate it, well, we've got to say, well, how can we work him in this sort of glazing, that's all. It's a bit like the normal return to work when you say they have to stand for an hour, sit for an hour and walk round for an hour.

PN35

That's all we're looking for. Some guidance so we know that forcing Mr Gilliland to do low level stuff won't make him go off work.

PN36

THE COMMISSIONER: So the proposition from Mr Farouque is that contact will be made with the GP. Documentation will hopefully be provided from the GP based on the orthopaedic surgeon's report. A copy of that provided to the company to indicate whether there are any limitations and once the company have that - and a copy to the Commission - once the company have that, you'll be able to assess the work requirements of Mr Gilliland or whether or not the position that the company has taken (a) that we can't employ him any more, it's either confirmed or it's not, or they might be able to accommodate what his difficulties, if any, might be. And then there might be some need for further discussion between the company and the union and may be a report back, but you might be able to work out the accommodation of Mr Gilliland providing it's so restrictive that it becomes prohibitive, and there may be no need to come back to the Commission.

PN37

So is that a reasonable proposition to be followed?

PN38

MR SULLIVAN: That's certainly the position of the company, as the company said, they believed the applicant to be a very good employee. It's just that under the restrictions, he's finding it difficult to cope.

PN39

THE COMMISSIONER: Yes, but you need to know what those restrictions are, if any, is that right?

PN40

MR SULLIVAN: Yes, Commissioner.

PN41

THE COMMISSIONER: Yes, okay. Well, Mr Farouque, I understand that you made attempts to contact the GP.

PN42

MR FAROUQUE: Yes. In fact I've sent an authority to obtain a medical report to the GP, Commissioner.

PN43

THE COMMISSIONER: Right. Well, maybe you need to - - -

PN44

MR FAROUQUE: You know what it's like dealing with doctors in terms of pinning them down to dates and getting documents. I'll do my best to follow it up and obtain the relevant indication from the doctor.

PN45

THE COMMISSIONER: Mr Gilliland, what sort of relationship do you have with the doctor? Is he a long time doctor of yours, is he?

PN46

MR GILLILAND: Yes.

PN47

THE COMMISSIONER: Right, okay.

PN48

MR GILLILAND: Well, the last five years at least, anyway.

PN49

THE COMMISSIONER: Well, that's a long time.

PN50

MR GILLILAND: Yes.

PN51

THE COMMISSIONER: It might help if you could indicate to the doctor - I mean, Mr Farouque corresponding is one thing and with authorisation from you, is one thing, but sometimes it may help with you being the direct patient, you could indicate to your doctor that there is some urgency about him responding to Mr Farouque's request and you can indicate that the matter has been to the Commission twice and he needs to respond as quickly as possible. So can you do that?

PN52

MR GILLILAND: I can do that.

PN53

THE COMMISSIONER: Good, okay. Mr Sullivan?

PN54

MR SULLIVAN: Commissioner, Mr Wylie would like to make a comment.

PN55

THE COMMISSIONER: Yes, sure. Yes, Mr Wylie?

PN56

MR WYLIE: Just added to all this was that, as I said last time, Ross is a very good tradesman and it's very rare nowadays you find the old style tradesman and that's - because of the area where we work a lot of the old houses, with a lot of the older people that, you know, like the good tradesman, of which Ross is, this decision was made because all we had was a letter from the doctor saying that he wasn't to kneel. We couldn't get any more sort of detailed evidence. So at the end we had no alternative but to take the action we did.

PN57

Let me tell you that we don't want to get rid of Ross, but as Mr Sullivan said, we only have five glaziers and to try and, you know, sort of circulate things around, it's very hard. Ross has done work lower than what he's been asked to and, you know, I've taken notice of that and I know that on one occasion Ross did say, no, look, I can't get down to do that and we were able to accommodate it. That may not always happen. But all we want out of this is to know, okay, he's only allowed to kneel for a certain amount of time or how low can he kneel.

PN58

We need some guidance on this and this is where this has all stemmed from.

PN59

THE COMMISSIONER: No, look, I completely appreciate where you're coming from. That's why the Commission is more than happy to have Mr Gilliland try and contact the doctor direct to indicate the urgency of him providing information that gives you some certainty and some assurance that he's able to perform work, and if there are some restrictions, to the degree those restrictions apply and how you might be able to manage those.

PN60

MR FAROUQUE: Commissioner, can I just say that I don't think it was ever said that it was medical information that I have to hand that - I don't think it was ever said that there was an absolute prohibition on him kneeling. I think that in about May 2006 there was indication from his doctor that he should avoid lifting anything above 10 kilograms and should not be bending and kneeling on a repetitive basis. That was in mid last year, and then in February 2007, there was correspondence to the company which indicated, from Mr Gilliland's doctor, that he'll benefit from being prevented from lifting and carrying anything above 10 kilograms of weight for the next few weeks.

PN61

So it's not, you know, what I'm saying is that this might be a little bit of a storm in a teacup in the sense that there's no - I don't think it's ever been said that there's an absolute prohibition on Mr Gilliland bending, and I can understand what the company is saying. I will endeavour to assist them to provide some clarity following the consultations with the orthopaedic surgeon and the communication from the orthopaedic surgeon to the GP.

PN62

It may be, Commissioner, that what Mr Sullivan said about the doctor coming out, I don't think that's in the normal course that doctors do that. If that be necessary, it might be necessary for a return to work consultant to be involved in that process, as they ordinarily are under WorkCover systems and return to works in those kinds of situations, Commissioner.

PN63

THE COMMISSIONER: All right. Well, I think the parties are reasonably clear on how to move forward. The Commission will adjourn today's proceedings to a date, if necessary, to be fixed and either parties free to have the matter brought back on if they wish. Hopefully the documentation from the doctor will be able to give the company sufficient comfort to allow Mr Gilliland to continue with his old style tradesman work.

PN64

MR FAROUQUE: Yes, indeed.

PN65

THE COMMISSIONER: Someone considered me an old style tradesman once, but then I became a Commissioner. So we'll stand adjourned to a date and time to be fixed, thanks.

<ADJOURNED INDEFINITELY [11.59AM]