C2005/5798, Transcript of Proceedings [2007] AIRCTrans 86 (26 February 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16541-1

SENIOR DEPUTY PRESIDENT DRAKE

C2005/5798

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION-PSU GROUP, VICTORIAN REGION MR RON LEVER
AND
AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/5798)

SYDNEY

10.29AM, TUESDAY, 26 SEPTEMBER 2006

Hearing continuing

PN1

MR R LEVER: I appear on behalf of the CPSU.

PN2

MR S JAUNCEY: I have already been granted leave in this matter I believe. With me is MR J O’SHEA the human resources advisor for ANSTO and the relevant officer responsible for return to work issues. Also present is MR R DAVIS the industrial relations advisor. Your Honour if there is perhaps one issue I can just raise with the appearances. This is a dispute which has been notified, listed and progressed as a dispute between ANSTO and the CPSU. There was some initial discussion about whether Mr Lever would intervene as a party in his own right. That did not occur and I am presuming that Mr Lever appears here today as a duly authorised representative of the CPSU speaking on behalf of the CPSU rather than in an individual capacity and I would just ask if Mr Lever could just confirm that or otherwise explain the basis of his appearance.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes. First of all, I’m sorry to have kept you waiting, it was unavoidable. Mr Lever, are you a duly authorised representative of the CPSU?

PN4

MR LEVER: Yes, I am your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Does that satisfy you Mr Jauncey?

PN6

MR JAUNCEY: Yes I just wanted to make sure we all know the basis on which we are progressing.

PN7

THE SENIOR DEPUTY PRESIDENT: Good thank you. Mr Lever the request for notification was by the CPSU on your behalf. Has that situation altered or is it that you are appearing as representing the CPSU and also on your own behalf?

PN8

MR LEVER: I’d say the latter, but I’m actually appearing for both. I’m also appearing for myself as well.

PN9

THE SENIOR DEPUTY PRESIDENT: That’s a more accurate position then. Yes and what can I do for you?

PN10

MR LEVER: It has been requested that 5798 be re-opened as we believe ANSTO are in breach of the agreement reached and finalised by exchange of letters on 6 April 2006. The agreement was entered into in good faith. ANSTO have not complied with the following terms of the agreement. To develop a proper return to work plan in the normal way. ANSTO engaged Dr Kaplan outside the terms of the agreement. They requested a medical, legal report, this was not the intent of the agreement. ANSTO developed their own return to work program in my absence and that of my medical practitioner. In addition ANSTO have breached my privacy by disclosing my medico legal report from Dr Kaplan to Comcare.

PN11

THE SENIOR DEPUTY PRESIDENT: Right, well I think what is necessary here Mr Lever is for you to – I have the terms of the settlement, which are fairly broad, a lot of detail in there that’s not touched upon and mainly because it wouldn’t usually be necessary. You I think need to provide me with a document that details the manner in which you say the agreement was meant to be effected and the manner in which you say it has been breached. Have you prepared such a document?

PN12

MR LEVER: No I haven’t prepared a document. It’s basically - my basis is the normal process for a return to work program as stipulated by the Safety Rehabilitation Compensation Act and the engagement of a rehabilitation provider that it is common that in fact, mandatory, that the individual being re-introduce into the workforce is involved in the rehabilitation program and in fact, there is a process where the individual needs to sign off indicating that they agree with that return to work program

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, I don’t want you to detail any further at the moment. Mr Jauncey what do you say about, in general terms, the allegation that the agreement has been breached?

PN14

MR JAUNCEY: It is denied your Honour. Your Honour, if I could just respond to one other matter and very quickly before responding to your Honour’s question. Your Honour this is not a matter in which the SRC Act applies.

PN15

THE SENIOR DEPUTY PRESIDENT: What’s the SRC?

PN16

MR JAUNCEY: The Safety Rehabilitation Compensation Act.

PN17

THE SENIOR DEPUTY PRESIDENT: Sorry, yes.

PN18

MR JAUNCEY: It is effectively the Federal Workers Compensation legislation for Federal Government agencies and some others. Mr Lever applied under that Act for compensation. His application was rejected by Comcare at first instance. It was rejected by Comcare on review and it was rejected by the Administrative Appeals Tribunal on 11 September of this year. As a result we say that the SRC Act has no application in this matter consistent with every decision of everybody who has ever determined it so far.

PN19

Now your Honour in relation to the agreement, ANSTO has sought to develop a return to work arrangement for Mr Lever, regardless of whether the SRC Act applies or not with a view to returning any ill or injured employee to the workplace. That agreement was most recently recorded in a 6 April 2006.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, I have that.

PN21

MR JAUNCEY: In a letter to your Honour’s associate. Under the agreement it was agreed that ANSTO would seek to obtain a list of Health Services Australia group psychiatrists in the city of Wollongong area. That Ms Nerida Savage from Commonwealth Rehabilitation Services would choose a psychiatrist off that list. That she would make an appointment to see the psychiatrist and that the appointment and scheduling would be made by consensus with Mr Lever and that the report would be regarded as a confidential report for the purposes of seeking a development of the return to work program.

PN22

All of that occurred and in fact, the psychiatrist chosen off the list by Ms Savage, was a Dr Robert Kaplan who was indeed, one of the psychiatrist that Mr Lever’s representative and the CPSU put forward on the list of three preferred psychiatrists. So they can hardly complain that it was Dr Kaplan when they suggested him themselves. On 22 May a report was provided by Dr Kaplan and I can provide your Honour with a copy.

PN23

THE SENIOR DEPUTY PRESIDENT: If you wish. You don’t suggest it’s a breach of confidentiality if I look at the report Mr Lever?

PN24

MR LEVER: No, that’s fine your Honour.

PN25

MR JAUNCEY: Now your Honour this is a report from Dr Kaplan of the liaison clinic dated 22 May 2006. Dr Kaplan in his report identifies in detail Mr Lever’s medical history, the examination, the information provided, and then towards the end of the report, sets out his assessment of Mr Lever’s medical condition at that time. Your Honour can see half way down on the second last page of the report, Dr Kaplan records his assessment thus:

PN26

Seen some 18 months after he left work Mr Lever does not have anxiety or depression. While he is preoccupied with his workplace and financial difficulties he does not have any changes that would be expected with a psychiatric disorder such as mood changes. Apart from the Endep to assist sleep, he has no other problems with going back to work. On this presentation and history today I am unable to find that Mr Lever has a psychiatric disorder. If he did have an adjustment disorder at the time he left work in December 2004, he did not describe any symptoms indicating that this was the case. The only way this would be clarified is by detailed examination of the other reports. As Mr Lever does not have a psychiatric condition, there are no restrictions on his ability to return to work and resume pre-injury duties.

PN27

Now your Honour upon receipt of this report, ANSTO made appropriate arrangements to seek to have Mr Lever return to work.

PN28

THE SENIOR DEPUTY PRESIDENT: Which were?

PN29

MR JAUNCEY: Desk space and a work station were cleared to make sure that there was an available work station within the work area. ANSTO also spoke with Ms Nerida Savage from Commonwealth Rehabilitation Services. My understanding is that Ms Savage had a number of discussions with Mr Lever about his return to work, about the day on which it would occur and that she in fact, arranged to meet him that morning at the ANSTO site together with
Ms Zlata Rispey, who is ANSTO’s nurse and ANSTO’s rehabilitation case coordinator with the aim of making appropriate arrangements to get Mr Lever back into site to do needed to be done during the morning, to make sure that the security and access controls were all properly put in place with the security reactivated, and things like that.

PN30

So it’s not as if ANSTO has ignored this or tried to exclude Mr Lever from the workplace, quite the reverse. Unfortunately, what has subsequently occurred is that Mr Lever has provided further medical certificates from his GP, at first recording him completely unfit for work for a period of time, and since August recording him as being fit for work subject to not working for at more than four hours a day, and subject to not having any contact with various persons in the workplace including Mr Davis and Mr Crackenthorp, who was actually Mr Lever’s supervisor in the IT area.

PN31

Now your Honour the GP reports have been provided in just a couple of lines on certificates. The GP reports are inconsistent with the detailed psychiatric report obtained through the agreed process.

PN32

THE SENIOR DEPUTY PRESIDENT: Do they identify a condition
Mr Jauncey?

PN33

MR JAUNCEY: I’m sorry.

PN34

THE SENIOR DEPUTY PRESIDENT: Do they identify a condition?

PN35

MR JAUNCEY: They do. Yes, your Honour there is a certificate dated
3 July 2006 which states that Mr Lever is completely unfit for work throughout the month of July on the basis of aggravation of earlier psychological injuries. It provides no more detail than that.

PN36

THE SENIOR DEPUTY PRESIDENT: Right thank you.

PN37

MR JAUNCEY: From August it has been described as anxiety and depression relating to interpersonal conflict in the workplace. Now your Honour what has occurred here is that all that has happened is ANSTO has said well, we had a detailed psychiatric report that said you were fit. We made arrangements accordingly, you’ve since said that you were unfit, and now aren’t you fit in a very limited way. We can’t just work on one line certificates when they are inconsistent with psychiatric reports and ANSTO has simply made a further appointment for Mr Lever to go and have a more thorough detailed psychiatric report done once again.

PN38

THE SENIOR DEPUTY PRESIDENT: By whom?

PN39

MR JAUNCEY: By Dr Michael Pryor, it was scheduled for 11 September just passed, but Mr Lever declined to attend.

PN40

THE SENIOR DEPUTY PRESIDENT: Right thank you Mr Jauncey. Mr Lever, in which way do you say that the arrangements, presuming that you accept that they are in broad outline the chronology, in which way do you say that that chronology breaches the agreement?

PN41

MR LEVER: In relation to the chronology that’s been put by Mr Jauncey?

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, do you agree that that’s accurate?

PN43

MR LEVER: Well no, I think there’s a lot of things in there that’s not accurate at all.

PN44

THE SENIOR DEPUTY PRESIDENT: All right.

PN45

MR LEVER: If I may just hand up, I prepared a two page document prior to seeing Dr Kaplan and it was basically explaining my position and my views in regard to returning to work. I would like to hand that up to you. As I stated earlier a return to work program, a return to work program that is initiated in the normal way and those words were carefully selected. You may recall Mr Jauncey actually used those words in our agreement I think on 20 March that my rehabilitation program would be done in the normal way.

PN46

We understood that to mean and Adrian Barwick, my representative at the time, and the CPSU’s representative, also understood that to mean that they were going to engage in a return to work program consistent with what section 36 I believe of the SRC Act provides for and a power that’s been delegated to rehabilitation providers, such as the Commonwealth Rehabilitation Services. So it was always my understanding that that was what was going to take place. As I said earlier, I was never approached to discuss a return to work program either with Nerida Savage. When I questioned her in relation to that she informed me that ANSTO had instructed her that they were going to do it a different way, a different way to what the normal way I understood was going to occur.

PN47

ANSTO were trying to direct me back to a work position, or workplace where I suffered an injury. Notwithstanding what Mr Jauncey has stated in relation to the initial decision rejecting my claim and the subsequent reconsideration also affirming that decision. The AAT have denied me compensation and that was as of 11 September 2006, but during the hear Comcare had acknowledged and accepted that I did suffer a psychological injury and that injury occurred through the workplace. The reason I didn’t get compensation is that they used an exclusory provision to prevent me from obtaining compensation for that injury.

PN48

THE SENIOR DEPUTY PRESIDENT: I’m going to stop you there Mr Lever, thank you, have a seat. It seems to me that I need to read the two decisions that have been handed down. Mr Lever should put in writing his objections to the process. Mr Jauncey I understand what you’ve outlined, it’s a very simple process that you rely on. I think you should put that in writing. I don’t require any more than what you’ve put to me this morning and I’ll list this matter and hear from Mr Lever.

PN49

I don’t at the moment want to take submissions about documents I haven’t seen, about judgments or decisions that I haven’t read, because of my own personal circumstances this morning I’ve delayed everyone for half an hour, and it would be in any event even if they were all before me difficult to deal with them. So I’ll give this matter another date, by which time I expect Mr Lever will have all those materials available for me.

PN50

MR LEVER: Can I just say one more thing your Honour?

PN51

THE SENIOR DEPUTY PRESIDENT: Yes.

PN52

MR LEVER: In relation to Dr Bede’s medical certificate, he made that certificate on the basis of three, four medical reports, and the concession made by Comcare in the AAT hearing. I will obviously put that in the documentation.

PN53

THE SENIOR DEPUTY PRESIDENT: Well you say that Mr Lever, but it’s not in the certificate. So, you’re saying that isn’t enough. If you think that that’s the basis on which he made the report, perhaps you should get him to provide a report that says that.

PN54

MR LEVER: Okay, thank you.

PN55

THE SENIOR DEPUTY PRESIDENT: I can’t take submissions from you about what might have been in the Doctor’s mind when he did what he did. Okay, Mr Jauncey are you opposed to what I propose?

PN56

MR JAUNCEY: Not at all, your Honour, if it would assist your Honour over the next period I can also provide your Honour’s associate with a copy of the Comcare’s decision.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Has there been any appeal for the AAT decision?

PN58

MR JAUNCEY: I do not know.

PN59

THE SENIOR DEPUTY PRESIDENT: Mr Lever?

PN60

MR LEVER: The appeal time finishes on 9 October, and we are considering the matter.

PN61

THE SENIOR DEPUTY PRESIDENT: And what?

PN62

MR LEVER: We are considering an appeal at the moment.

PN63

THE SENIOR DEPUTY PRESIDENT: All right thank you. I’m involved in a lengthy Canberra hearing for many days in October, I won’t be able to list this matter until 13 November. Are you free?

PN64

MR JAUNCEY: Apart from the fact that it’s my birthday your Honour I’m happy to be here.

PN65

THE SENIOR DEPUTY PRESIDENT: You think that would be hard times, don’t you? As it’s a significant one Mr Jauncey, I can give you the 14th?

PN66

MR JAUNCEY: I might be better off taking it your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: You might. Do you have a preference Mr Lever? Are either of those dates available to you?

PN68

MR LEVER: The 14th sounds fine to me your Honour.

PN69

THE SENIOR DEPUTY PRESIDENT: I think the 13th might be better, he might be in no condition to run the case on the 14th. I don’t expect it would be a lengthy matter Mr Lever if you reduce the matters you complain of to writing and you provide the documents in advance it should only take two hours.

PN70

MR LEVER: Thank you.

PN71

THE SENIOR DEPUTY PRESIDENT: I’ll list the matter at 10 o’clock on the 13th.

PN72

MR JAUNCEY: Your Honour, if I could just ask one thing. Your Honour indicated that your Honour wished for short written submissions from us, was there any particular timetable, or we just get them in a week or two before?

PN73

THE SENIOR DEPUTY PRESIDENT: No, I think your position as outlined simple enough that is, your submission, that if you give me a chronology of those events that would be good. Mr Lever has got his in by the close of business on the 3rd and you responded some time in that last week, that would be convenient. Did you want to say something Mr Lever?

PN74

MR LEVER: As far as the chronology is concerned, that will all be on transcript, so I can refer to that, from today’s hearing?

PN75

THE SENIOR DEPUTY PRESIDENT: Well he is going to put just an outline of what he said today in writing anyway.

PN76

MR LEVER: Okay.

PN77

THE SENIOR DEPUTY PRESIDENT: Is that right Mr Jauncey?

PN78

MR JAUNCEY: Yes, I shall do so sometime after the 3rd.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes and all you need to do is in the last week respond to the materials Mr Lever will have got in by close of business on 3rd. I’ll see you then.

<ADJOURNED UNTIL FRIDAY 13 OCTOBER 2006 [10.55AM]