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C2004/ 354 , Transcript of Proceedings [2004] AIRCTrans 4755 (7 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8211 9077 Fax:(08)8231 6194

TRANSCRIPT OF PROCEEDINGS

O/N 2563
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

C2004/ 354 

TRANSADELAIDE

and

AUSTRALIAN RAIL, TRAM AND BUS
INDUSTRY UNION

Notification pursuant to section 99 of the Act
of an industrial dispute re introduction of
new National Health Assessment Standards for
Rail Safety Workers

ADELAIDE

10.37 AM, FRIDAY, 26 NOVEMBER 2004

PN1

MR P. WELSBY: I appear on behalf of TransAdelaide, with me is MR C. O'DEA.

PN2

MR R. HANCOX: I appear on behalf of the Rail, Tram and Bus Industry Union, South Australia-Northern Territory Branch, and with me is MS. K. VAN BARNEVELD.

PN3

THE COMMISSIONER: Now, this is a section 99 notification from TransAdelaide. I intend to go in to conference shortly but I - as is my usual practice - have asked for this to be put on record to start with just so the parties might put their basis positions, just explain on the record what it is all about just in case the matter goes further and we need to have some basic details of the dispute reported. So. Mr Welsby, if you would like to give me some basic ideas of what we are talking about?

PN4

MR WELSBY: Thanks, Commissioner. I have got a bit of a history that I will probably go through that might take a little longer than what you might have anticipated, but I would like to just put it on the record.

PN5

THE COMMISSIONER: That is fine, no, that is fine.

PN6

MR WELSBY: If I go back to February '99, TransAdelaide introduced an Occ Health and Safety policy titled: Medical Standards and that was a comprehensive document that set down the standards for testing and assessment. To determine fitness for work, including rail safe working operations. Prior to this time, I cannot enlighten the Commission as I was not with TransAdelaide at that time but suffice to say that medical standards in the rail industry are not something that is new, they have been around for a considerable period of time and probably that history is not required at this point in time.

PN7

In December 2003, the National Road Transport Commission issued a comprehensive booklet titled: Proposed National Health Assessment Standards for Rail Safety Workers Preliminary Impact Statement. The purpose of this booklet was to foster consultation and to seek comments on the rail industry before finalising the standards for implementation. Included in that project team - and I can give the Commission an exhibit in relation to that.

PN8

THE COMMISSIONER: Thanks.

PN9

MR WELSBY: Notably the list of people includes on the second page, Roger Joward, the National Secretary, and Allen Classons, the Assistant national Secretary of the Rail, Tram and Bus Union. So I think that is important from the point of view of consultation in terms of these health standards that have been pretty comprehensively followed right through from the development of the draft standards. Also attached there is a national medical working group which includes that number 7, a gentleman called Dr Tim Drew from the Mile End Work Health Clinic who is TransAdelaide's medical practitioner and we have all of our medical examinations done through the Mile End Work Health Clinic.

PN10

THE COMMISSIONER: What I might just do - just for the sake of identifying this, I just might mark this as TA, for TransAdelaide 1, TA1.

EXHIBIT #TA1 MEMBERSHIP OF THE NATIONAL INDUSTRY REFERENCE GROUP AND MEMBERSHIP OF THE NATIONAL MEDICAL WORKING GROUP

PN11

MR WELSBY: Following consultation within the rail industry and receipt of comment from interested parties, the project team finalised the national standards in the first half of 2004. In July 2004 TransAdelaide received advice from Transport SA that the national standards of health assessment for rail safety workers had been adopted in South Australia from 1 July 2004 and constituted a formal requirement of accreditation in South Australia under the SA Rail Safety Act. I hand up an exhibit from - a copy of a letter - from Ms Sherree Goldsworthy of Transport SA.

PN12

THE COMMISSIONER: Yes, we will mark this as TA2, that is a letter from Transport SA - who was it addressed to, Mr Welsby?

PN13

MR WELSBY: It is not shown on there but it was addressed - we received it through the General Manager, Roy Arnold, but it would've been sent to all rail operators.

PN14

MR HANCOX: It was sent to all rail operators in South Australia.

EXHIBIT #TA2 COPY OF LETTER DATED 12/7/04 FROM TRANSPORT SA TO ALL RAIL OPERATORS IN SOUTH AUSTRALIA

PN15

MR WELSBY: At page 1 at the bottom of that page in some bold print you will notice an implementation of the new health assessment system by 30 September 2004 as being a critical date.

PN16

THE COMMISSIONER: 30 September 2004, yes.

PN17

MR WELSBY: I probably need to clarify the relationship between Transport SA and TransAdelaide in relation to accreditation under the Rail Safety Act.

PN18

THE COMMISSIONER: Yes.

PN19

MR WELSBY: In simple terms, the Rail Safety Act requires that TransAdelaide and indeed any other rail operator within South Australia holds appropriate accreditation as an owner and/or operator of a railway. This accreditation is provided by Transport SA and the administrating authority. There is a couple of particular areas of the Rail Safety Act that I would like to speak about and so I will hand up also as an exhibit.

PN20

THE COMMISSIONER: So Transport SA provides accreditation to TransAdelaide and any other rail operator and part of that involves adherence to certain standards and whatever?

PN21

MR WELSBY: Correct. Perhaps if I hand them up together and then they can all make exhibit TA3.

PN22

THE COMMISSIONER: We are looking at an extract, are we, from the Rail Safety Act of 1996?

PN23

MR WELSBY: That is correct.

PN24

THE COMMISSIONER: Yes.

PN25

MR WELSBY: The first of those is the requirement of compliance with rail safety standards, that says at point 25:

PN26

The owner or operator of a railway must comply with safety standards prescribed by the regulations, or determined by the administrating authority to be relevant to the operator of this Act and notified to the owner, or operator.

PN27

So in other words, that gives the authority under which the letter from Ms Goldsworthy of 12 July became enforceable.

PN28

THE COMMISSIONER: The administrating authority being Transport SA?

PN29

MR WELSBY: Correct, and that requires TransAdelaide compliance.

PN30

THE COMMISSIONER: Yes.

PN31

MR WELSBY: The second part of that extract at point 30 talks about railway employees and says that:

PN32

It is a condition of accreditation that an accredited person must take all reasonable steps to ensure that a railway employee who performs railway safety work, (b) is of sufficient good health and fitness to perform the work.

PN33

THE COMMISSIONER: The accredited person meaning, TransAdelaide?

PN34

MR WELSBY: Correct.

PN35

THE COMMISSIONER: Yes, I don't think we need to mark that. This document is just an extract from the Act, Mr Welsby.

PN36

MR WELSBY: Fine, okay. Prior to and following receipt of the advice from Ms Goldsworthy, TransAdelaide consulted with unions and employees on the introduction on the new health standards. This consultation involved meetings of the general managers consultative committee for peak consultation with State union officials, plus consultation committees of the workplace level involving both State union officials and workplace delegates together with Occ Health Safety committees involving elected employee representatives. A number of separate meetings have also taken place between TransAdelaide and the ARTBIU on this issue.

PN37

THE COMMISSIONER: That consultation is between - in what period, from when to when?

PN38

MR WELSBY: In the period prior to July. So from the time that we knew that the health standards were likely to be implemented right through to the present.

PN39

THE COMMISSIONER: Yes.

PN40

MR WELSBY: I don't intend to bore the Commission with the details of those minutes of the meetings but suffice to say they were quite extensive and involved a wide range of people. In addition, TransAdelaide widely distributed a notice titled: New Health Assessment Standards for Railway Safety Workers on notice boards throughout the organisation and as employees became due for their medical they are personally briefed by their respective Occ Health Safety coordinator on the new process that they follow including a blood test that I will get to in detail of a bit later.

PN41

I have an exhibit in relation to that notice that went out on notice boards about the new health assessments for rail safety workers.

PN42

THE COMMISSIONER: Who actually compiled this?

PN43

MR WELSBY: This was compiled in the first instance from the national project team and then we extracted some relevant detail to make it in to a notice of our own.

PN44

THE COMMISSIONER: So this is a TransAdelaide notice?

PN45

MR WELSBY: Yes.

PN46

THE COMMISSIONER: And it was disseminated to relevant employees?

PN47

MR WELSBY: Not to employees individually, but to notice boards and through committees.

PN48

THE COMMISSIONER: When did it go up on notice boards?

PN49

MR WELSBY: I couldn't tell you the exact date but I would think some time probably in about July or August.

PN50

THE COMMISSIONER: This year?

PN51

MR WELSBY: Yes.

EXHIBIT #TA3 FIVE-PAGE DOCUMENT HEADED: NEW HEALTH ASSESSMENT STANDARDS FOR RAIL SAFETY WORKERS, KEEPING ON TRACK WITH YOUR HEALTH AND YOUR CAREER

PN52

THE COMMISSIONER: I'm just identifying these - really I should say to the union, I mean, if there is any issue with any of them later I'm sure you will raise them - but just for identification purposes really. TA3, thanks, Mr Welsby.

PN53

MR WELSBY: So I guess what are the changes to the standards from those previously applying is a critical issue here. In essence, they are not substantial in terms of their impact, but they provide much better clarify to what some times could be a confusing array of standards particularly on a national basis. First is that there are two main risk categories and these are shown on page 2 of that document in that flow chart arrangement where you see on the left-hand side: Safety Critical and on the right-hand side: Non-safety Critical.

PN54

I guess that seems pretty simple at first glance and it is the first group - the safety critical people - that I will concentrate here because they are the ones that are at the centre of this dispute. Safety critical workers are those whose action or inaction due to ill health may lead directly to a serious incident affecting the public or the rail network. The health of these workers regarding attentiveness and vigilance to their job is critical. You will also see in that flow chart that safety critical workers are further broken down in to two categories. Category 1, High Level Safety Critical Worker and, category 2, Safety Critical Worker.

PN55

Tasks are high level safety critical if a serious incident could result from sudden incapacity or collapse, for example, a heart attack. As part of the health assessment, a high level safety critical worker is required to have a cardiac risk or assessment, which identifies the individual's risk of cardiovascular disease and collapse from such. This is in addition to a comprehensive physical and psychological assessment to detect conditions that may affect safe working ability. The cardiac risk assessment is a predictive tool that helps identify if a person is at risk of having a cardiovascular event. It combined information about age, sex, cigarette smoking with results from blood glucose and cholesterol, blood pressure and an ECG to calculate a risk, or that is then is examined by the examining health professional.

PN56

To calculate this cardiac risk assessment requires an individual to have a blood test to measure glucose and cholesterol levels that are used in the overall assessment as described above. The blood test requires the individual to fast for 12 hours prior to having the test. You will note in the standards - - -

PN57

THE COMMISSIONER: Is this for both the high level safety critical workers and the others?

PN58

MR WELSBY: No, only the high level.

PN59

THE COMMISSIONER: Only the high level safety critical.

PN60

MR WELSBY: Correct.

PN61

THE COMMISSIONER: That is the one we are talking, right. Okay.

PN62

MR WELSBY: In the original standards that were put out it required fasting for between 8 and 14 hours. However, Dr Drew, of the Mile End Health Clinic has determined that 12 hours is the optimum time to provide the most accurate readings of cholesterol and blood sugar levels for the cardiac risk assessment. I guess one of the interesting observations about the blood test now becoming compulsory is that the examining doctor has always had the capacity, or authority to take a blood test if considered necessary to pass someone fit to work. So they have always been able to do that, it is now that it is compulsory.

PN63

As part of consultation with unions, TransAdelaide developed a corporate procedure for health assessment and I would like to table that to the Commission.

EXHIBIT #TA4 CORPORATE PROCEDURE OF TRANSADELAIDE TITLED: HEALTH ASSESSMENT PROCEDURE DATED 07/07/2004

PN64

MR WELSBY: Commissioner, although it is dated 7 July 2004, this is an amended version and has been amended during consultation. When TransAdelaide agreed to some additions to this procedure including agreeing to increasing the frequency of periodic medical assessments for high level safety critical workers between 50 and 60 years to 2 yearly, when it was previously at yearly. Providing workers with a 1 hour break following a blood test to allow the worker to have a meal, given that they need to fast for 12 hours before the test. This is paid at base rate and not regarded as a shift, or for the calculation of overtime.

PN65

We also agreed to pay an employee 2 hours should they elect to have the blood test in their own time and/or with their own doctor. Again, this is paid at base rate and not regarded as a shift, or for the calculation of overtime. We also agreed that the blood test would only be used to calculate the cardiac risk assessment and not for the purpose of drug screening. A drug screen is done separately through urine testing. All of these changes were clarified in a letter to the ARTBIU dated 17 November 2004.

PN66

TransAdelaide also has a procedure relating to health and fitness. Now, that is of relevance to this dispute. This procedure requires that:

PN67

That employees have a responsibility to attend for any medical assessment that is required to ensure they meet legislative requirements. Those standards required by the job and person specification and any other task that they may be required to undertake.

PN68

So what is the current dispute about? There is no dispute about the medical itself, indeed, apart from a more detailed form that needs to be completed by the individual for the medical, there has been no real change to the medical nor TransAdelaide's payment of time spent undergoing the medical during normal working hours. Put simply, the dispute is about the fasting period before a blood test and payment associated with that period. As can be seen from previous exhibits and my submission, there is no question that TransAdelaide bares the cost of the medical and the blood test and pays employees to attend for these separate examinations in company work time. In total, this payment could be up to 6 hours, 2 hours for the blood test including the 1 hour meal break and up to 4 hours for the actual medical.

PN69

In addition, we have agreed to pay employees who elect to attend in their own time for the blood test, 2 hours for doing so or the pay employees who undertake the blood test at the commencement of their normal shift for 1 hour, to take a meal due to the fasting period. We believe these options are more than generous and represent a reasonable and fair offer. The medical and blood test are both conducted during normal working hours and TransAdelaide needs the flexibility of employees being available for work following completion of these tests. However, a section of the ARTBIU are not content with this arrangement and seek additional payment.

PN70

I say "a section" because this does not appear to be a clear stand of the ARTBIU as in tram operations and the infrastructure areas where the union has members, they are undertaking the blood tests without any concerns and have not sought any additional payment. I would have to say, in fairness to the branch secretary of the ARTBIU, Mr Hancox has not sought payment for the fasting period. In that regard, I would probably like to table a letter from the branch secretary of the union to Mr Roy Arnold, the general manager of TransAdelaide.

EXHIBIT #TA5 LETTER FROM UNION TO GENERAL MANAGER TRANSADELAIDE DATED 20/08/2004

PN71

MR WELSBY: For the purpose of these proceedings, the important part of this letter to be noted is that nowhere is any objection being raised to the fasting period or any request for payment for the fasting period. The only request for payment is at point 2, where the request is made for employees to be rostered for a minimum shift of 4 hours in accordance with award provisions for the purpose of attending the medical assessment and the pathology blood test. It is predominantly the train driver group of the union that are seeking payment for the fasting period or part thereof and TransAdelaide finds it quite ludicrous that they would seek this payment as it represents a period where they are normally booked off duty anyway. They receive a minimum of 12 hours off between shifts.

PN72

In addition, most normal people spend the amount of time required for fasting between their evening meal and breakfast anyway. We do not see this fasting period as being onerous, particularly when they are given a meal break after the blood test. Medical advice supports TransAdelaide's position that the fasting period is not onerous on anyone. TransAdelaide has done a bit of a survey of other rail organisations to see what they pay in relation to this given that it is a national standard. I have only done a pretty brief summary of what they have provided us with but it is probably useful for the Commission .....

PN73

THE COMMISSIONER: So this is a document compiled by you, presumably, Mr Welsby?

PN74

MR WELSBY: Not by me personally, yes, but by TransAdelaide.

PN75

THE COMMISSIONER: By TransAdelaide.

EXHIBIT #TA6 HEALTH ASSESSMENT SURVEY OF PAYMENTS

PN76

MR WELSBY: As you will see that is not an exhaustive list of all rail organisations around Australia but it is a representative list. From that, there is no consistency with any of the rail organisations, which should be no surprise to anyone. They range probably from QR, Queensland Rail, that approaches the issue similar to TransAdelaide in that they pay employees for the time spent in undertaking the medical and blood test as part of their normal work and then utilise any spare time for training. Right through to V/Line who make a payment equivalent to 12 hours to cover the fasting period and the blood test and then the medical is conducted in work time. Based on that brief survey, TransAdelaide considers that its offer is reasonable and appropriate.

PN77

We need to resolve the issue as we have already been granted two extensions by the regulator to the implementation date for the new health assessment standards. You will recall the letter said that they needed to be implemented by 30 September. We gained an extension to 31 October and then a further extension to 30 November 2004. Once that date is passed, any category one employee who does not undergo a blood test will be deemed unfit to perform safe working duties and in the case of a driver, unable to drive a train. Employees were not presenting for the blood test and/or were not fasting for the required period to give a proper reading to the test.

PN78

I use the past tense as I am pleased to advise the Commission that employees are now presenting for the blood test and we believe have completed the required period of fasting prior to the test. That would then alleviate our concerns about any driver shortage and possible disruptions to services. This change in attitude was brought about by a co-operative arrangement between TransAdelaide and the ARTBIU whereby the general manager of TransAdelaide and the branch secretary of the ARTBIU issued a joint statement and I will perhaps table that.

EXHIBIT #TA7 LETTER FROM MR ARNOLD TO MR HANCOX DATED 22/11/2004 WITH EMPLOYEE NOTICE ATTACHED

PN79

MR WELSBY: In that notice, the pertinent point I guess is paragraph 3, where it says:

PN80

To avoid a difficult situation for all concerned it has been agreed by the ARTBIU and TransAdelaide to jointly endorse a full health assessment including the blood test and back date any additional conditions that may be conciliated/arbitrated at a future time.

PN81

So that was the catalyst for people to go off and undergo the blood test and that has been happening in the last couple of days. However, that does not resolve the issue that the drivers are pursuing and that is payment for the fasting period that needs to be resolved and the parties will be seeking the Commission's assistance in this regard. If the Commission pleases, I would be happy to answer any questions.

PN82

THE COMMISSIONER: Just for my benefit, I wish to go back to what has been agreed. You said you have agreed to pay 2 hours for the blood test?

PN83

MR WELSBY: That is if they do it in their own time.

PN84

THE COMMISSIONER: In their own time. Up to 4 hours for the medical.

PN85

MR WELSBY: That is about what it takes. It can take up to 4 hours. The medical only takes about one and a half to 2 hours but sometimes they can be waiting in the surgery for a doctor to get to them. They need to be transported to the medical and brought back so it can be up to 4 hours.

PN86

THE COMMISSIONER: The actual medical itself can take on average between one and a half to 2 hours? Pretty thorough medical.

PN87

MR WELSBY: It is a pretty thorough medical.

PN88

THE COMMISSIONER: And the blood test is quite separate to that?

PN89

MR WELSBY: The blood test needs to be taken separately because the results need to be back before the examination so that the doctor has got all of the information that they can talk to the person.

PN90

THE COMMISSIONER: And the blood test is taken at - I don't know, Clinpath or Gribbles or something, is it?

PN91

MR WELSBY: No, it is taken at Mile End and then sent to Gribbles for the results.

PN92

THE COMMISSIONER: And the 2 hours is to actually get there, have it taken and get home.

PN93

MR WELSBY: And then the 1 hour for the meal afterwards.

PN94

THE COMMISSIONER: So it includes the 1 hour for the meal afterwards, yes, I see. So the blood test is done a few days in advance of the medical?

PN95

MR WELSBY: Correct.

PN96

THE COMMISSIONER: The medical can be done at Mile End or it can be done by the employee's own doctor?

PN97

MR WELSBY: No, it has to be done at Mile End, the medical. The blood test can be done by their own doctor but not the medical. They have to, as part of the National Health Assessment Standards, the doctor actually has to be accredited to do the examination.

PN98

THE COMMISSIONER: I see, yes.

PN99

MR WELSBY: Mile End Health Clinic is the only one that is accredited to conduct them in South Australia.

PN100

THE COMMISSIONER: Yes, a lot of work has gone into the details, hasn't it?

PN101

MR WELSBY: It has.

PN102

THE COMMISSIONER: How often do they have to undergo these tests?

PN103

MR WELSBY: Depending on their age it could be annually.

PN104

MS VAN BARNEVELD: Two yearly to age 60 and 5 yearly to age 50.

PN105

MR HANCOX: The annual ones are after age 60, Peter.

PN106

MR WELSBY: 60, sorry, yes.

PN107

THE COMMISSIONER: Right, so it is 1 yearly after 60, 2 yearly between 50 and 60 and then up to 50 it is every 5 years, is that right?

PN108

MS VAN BARNEVELD: Yes, Commissioner, that is right.

PN109

MR WELSBY: No, I think it is 4 years up to 40 and then 2 years between 40 and 60 and then annually, isn't it?

PN110

MR O'DEA: The national standard is 5 years.

PN111

MS VAN BARNEVELD: The national standard on page 16 of volume 1, has the information.

PN112

MR HANCOX: You are actually exceeding the national standard.

PN113

MS VAN BARNEVELD: Your policy, yes, over and above.

PN114

THE COMMISSIONER: Well, all right, I think that is probably all for now, Mr Welsby, thank you. Now, again, Mr Hancox, just for getting matters on the record which will no doubt help me. Anything you want to respond to in all of that or Ms Van Barneveld?

PN115

MS VAN BARNEVELD: That is close, thank you, Commissioner. I believe as we see it, Commissioner, the issues are a little bit broader than just this issue of fasting and payment for fasting that TransAdelaide has mentioned. I can take you through some of the issues as we see them.

PN116

THE COMMISSIONER: Yes, please.

PN117

MS VAN BARNEVELD: Just by way of a bit of background, there has been some detailed discussions I believe between TransAdelaide and the union and there have been some things which have been agreed but there are some outstanding issues. So the two things that I believe have been agreed and I am happy for people to correct me, was that TransAdelaide is to meet the total cost to the point of diagnosis of the medical, which has been quite a contentious issue in other rail organisations as well. The second thing is that employees are to be consulted prior to the medical and provided the relevant information. We do have concerns that we are not sure that this is being done adequately and we can discuss that later.

PN118

The outstanding issues as we see them is, we have had I believe a verbal agreement that there is to be a one month notice prior to the assessment. We haven't that in writing yet but I believe that that is agreed between the parties. the second issue is our position is actually that there should be a minimum shift of 4 hours for attending the medical and 4 hours for attending the pathology and that is a total of 8 hours. That is consistent with the position that is taken in New South Wales. So as per the document that TransAdelaide tendered which I believe was marked TA6, which was their survey of health assessments, we have actually done a brief one of our own which contains quite similar information to be honest, although it has a little bit more detail. I would just like to highlight to you some queries I have about the document marked TA6.

PN119

THE COMMISSIONER: Right, we will just mark this one as U1 and we will compare it with TA6.

EXHIBIT #U1 SURVEY OF HEALTH ASSESSMENTS

PN120

MS VAN BARNEVELD: The Pacific National provision which is number one on that document is actually in dispute at the moment, that is not an agreement at all that has been reached.

PN121

THE COMMISSIONER: So you are challenging the accuracy of point one on TA6?

PN122

MS VAN BARNEVELD: Yes, yes, that is definitely in dispute at this point in time and it certainly - well, from our point of view, not the outcome that is going to be reached anyway. ARG, I will have to leave that one because I am not actually sure what the situation is in ARG and I would have to follow that up. Connex, I agree, although we have included a bit more detail in our document which might provide some information and I think one of the points with the Connex is that that is paid at ordinary time. QR, I think the important feature - - -

PN123

THE COMMISSIONER: Just let me - just leave it there for a minute. Connex, so TA6, is a payment of 11 hours for the blood test and three and a half hours for the medical.

PN124

MS VAN BARNEVELD: That is correct.

PN125

THE COMMISSIONER: And what you are saying is:

PN126

An overall payment of 11 hours shall therefore be made to locomotive drivers who satisfactorily complete the blood test phase of the medical examination.

PN127

MS VAN BARNEVELD: Commissioner, that is actually the wording taken straight out of the agreement. I would cross out the word "overall" it is quite misleading. So I just took it straight out of the document so that it was clear to the parties.

PN128

THE COMMISSIONER: Okay:

PN129

A payment of 11 hours shall therefore be made to drivers who satisfactorily complete the blood test phase of the medical examination. Such payment will stand alone and be deemed a non active shift for the purpose of working and calculating shift penalties.

PN130

So that is at base pay sort of thing, I presume that means?

PN131

MS VAN BARNEVELD: Yes, it is, it is.

PN132

THE COMMISSIONER: Just 11 - yes:

PN133

Payment for attendance at a subsequent follow-up medical fitness examination shall be based on the actual time involved subject to a maximum of three and a half hours.

PN134

Can I just stop there to say when we talk about - or when you talk about "subsequent follow-up medical" that happens in every case, does it?

PN135

MS VAN BARNEVELD: Yes, it is incredibly confusingly worded. It is just referring to the proper medical that takes place. So the first 11 hours relates to payment for fasting and an hour for the blood test and then when you go to your medical you have got a maximum three and a half hours for that medical.

PN136

THE COMMISSIONER: I see, yes, but it is the one and only medical, yes.

PN137

MS VAN BARNEVELD: Yes, and then there are other arrangements if you have to go further.

PN138

THE COMMISSIONER: Then as it says:

PN139

Overall, a maximum payment of 14.5 hours shall be paid at ordinary time -

PN140

yes, okay -

PN141

on satisfactory completion of both phases.

PN142

But 11 hours is paid for the fasting?

PN143

MS VAN BARNEVELD: It is 10 for the fasting and 1 for the blood test in reality.

PN144

THE COMMISSIONER: Right, now, we move onto V/Line?

PN145

MS VAN BARNEVELD: Well, sticking with our document then, yes, V/Line is almost replicated, the only distinction is that they classify it as a 21st shift so it would actually be subject to penalty payments.

PN146

THE COMMISSIONER: Okay.

PN147

MS VAN BARNEVELD: Freight Australia was basically a duplication of V/Line.

PN148

THE COMMISSIONER: Yes.

PN149

MS VAN BARNEVELD: Railcorp, the crux of the Railcorp agreement is that they are paid a full 8-hour shift to attend both the pathology and the health assessment. Now, they are actually paid one shift and it counts - if it is an overtime shift it is paid at overtime rates, it would depend on when they are rostered to do it. My understanding of how that agreement was reached was that it was a composition of 4 hours for the medical and 4 hours for the blood testing.

PN150

MR HANCOX: Which is consistent with our claim.

PN151

MS VAN BARNEVELD: Yes, and as Ray just point out, that is consistent with our claim.

PN152

THE COMMISSIONER: 4 hours medical, 4 hours for the blood test?

PN153

MS VAN BARNEVELD: Yes.

PN154

THE COMMISSIONER: So the Railcorp position is the one you are after?

PN155

MS VAN BARNEVELD: Yes, Commissioner, and also the Railcorp position or the Railcorp agreement is backed up by a quite detailed document which will cover off some of the other outstanding issues which I will raise with you in a minute. Just to bring you back to TA6, if I may, just for a second?

PN156

THE COMMISSIONER: Yes.

PN157

MS VAN BARNEVELD: I am just a little bit concerned about the QR survey information which is at point 4. I think here I will just make the point, the QR does not actually make them drive trains at the end of having fasted and attended a blood test. They will have them sit in training or, you know, if there is nothing to do, go home or whatever so I think that that is a very, very - TransAdelaide suggested that their position was quite similar to QR. I would argue that that feature is a very key and very important in terms of a rail safety point of view, distinction between the two positions.

PN158

THE COMMISSIONER: Yes.

PN159

MS VAN BARNEVELD: Besides that I would have to look further into the QR position so that - I don't know that much about it. The other outstanding issues, Commissioner, are ones that are really important to our members and they are issues surrounding what happens when an employee is deemed temporarily unfit after attending a medical. And my experience with the Rail Corp medicals is that there are: you know, this happens given the age of our workforce, given the sedentary nature of their work - we do have a fair few people who fall into that category and, to my knowledge, I'm not sure that we've reached an adequate agreement with Trans Adelaide in relation to that matter. Has it been discussed? Has it been discussed?

PN160

MR ..........: It has been discussed.

PN161

MS VAN BARNEVELD: The other outstanding issue which was equally as important is that there are - or there have been in other rail organisations, employees who have been deemed permanently unfit for category 1 work. So they may have - I don't know, a heart condition that can't be resolved easily or - you know, other underlying illnesses which mean that if they were to collapse, you know - or they are at a high risk of collapsing so - I don't believe there's been an agreement reached again in relation to that issue.

PN162

Just a couple of other concerns is one of the tenets in the Medical Assessment Standards - and I know Trans Adelaide pointed out that we did have quite an instrumental role in the development of those standards and we support what's in those. That's not a contention at all. But there is a suggestion that there should be consultation in relation to the categorisation of employees and I don't think this is whether they fit into a high level safety - the highest safety critical worker - just to safe to critical or a level 3 or 4.

PN163

I'm not sure about the consultation that is in relation to that. Also Trans Adelaide handed up a copy of their policy and you've marked that TA4. I got the impression from Trans Adelaide that we had agreed to this document and I'd just like to point out to the commission that this document has not been agreed to although, obviously these are the sorts of issues that we would like to hold further discussions with Trans Adelaide over and see if we can reach some agreement.

PN164

Commissioner, I think at this point in time, I've given you a reasonable picture of the outstanding issues between parties and, subject to your suggestion, I think there is scope for further discussion.

PN165

THE COMMISSIONER: Yes.

PN166

MS VAN BARNEVELD: If the commission please.

PN167

THE COMMISSIONER: Thanks. Anything arising, Mr Welsby?

PN168

MR WELSBY: No, Commissioner.

PN169

THE COMMISSIONER: Well, we'll go off the record thanks.

OFF THE RECORD [11.21am]

NO FURTHER PROCEEDINGS REPORTED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TA1 MEMBERSHIP OF THE NATIONAL INDUSTRY REFERENCE GROUP AND MEMBERSHIP OF THE NATIONAL MEDICAL WORKING GROUP PN11
EXHIBIT #TA2 COPY OF LETTER DATED 12/7/04 FROM TRANSPORT SA TO ALL RAIL OPERATORS IN SOUTH AUSTRALIA PN15
EXHIBIT #TA3 FIVE-PAGE DOCUMENT HEADED: NEW HEALTH ASSESSMENT STANDARDS FOR RAIL SAFETY WORKERS, KEEPING ON TRACK WITH YOUR HEALTH AND YOUR CAREER PN52
EXHIBIT #TA4 CORPORATE PROCEDURE OF TRANSADELAIDE TITLED: HEALTH ASSESSMENT PROCEDURE DATED 07/07/2004 PN64
EXHIBIT #TA5 LETTER FROM UNION TO GENERAL MANAGER TRANSADELAIDE DATED 20/08/2004 PN71
EXHIBIT #TA6 HEALTH ASSESSMENT SURVEY OF PAYMENTS PN76
EXHIBIT #TA7 LETTER FROM MR ARNOLD TO MR HANCOX DATED 22/11/2004 WITH EMPLOYEE NOTICE ATTACHED PN79
EXHIBIT #U1 SURVEY OF HEALTH ASSESSMENTS PN120