AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.111(1)(f) applications to vary an exceptional matters order
s.107 reference to Full Bench
Hail Creek Coal Pty Ltd
and
Construction, Forestry, Mining and Energy Union
(C2003/6881)
(C2003/6967)
HAIL CREEK PREFERENCE OF EMPLOYMENT ORDER 2003
(ODN C2003/956)
[PR935309]
Coal industry | |
VICE PRESIDENT ROSS |
|
SENIOR DEPUTY PRESIDENT DUNCAN |
|
COMMISSIONER BACON |
MELBOURNE, 12 JULY 2004 |
Applications for relief from clause 4 of the Hail Creek Preference of Employment Order 2003 - variation of order - evidentiary rulings - meaning of unsuitable - incapable of meeting the inherent requirements of the position - observations about the Queensland Coal Mine Workers' Health Scheme - relief granted in respect of Messrs Albert, Cusack and Mitchelson - not persuaded that the other individuals are unsuitable - relief declined.
INDEX
Para | |
1. Introduction |
[1] |
2. Preliminary Issues |
[16] |
2.1 Variation of the Preference Order |
[17] |
2.2 Evidentiary Rulings |
[19] |
2.2.1 Improperly Obtained Evidence |
[23] |
2.2.2 Irrelevant Evidence |
[39] |
2.2.3 Hearsay Evidence |
[42] |
2.2.4 Opinion Evidence |
[44] |
2.3 Access to Medical Records |
[64] |
3. The Assessment Process |
[67] |
3.1 The Interviews |
[68] |
3.2 The Psychometric Assessment Tools |
[71] |
3.2.1 The Applied Reading Test |
[77] |
3.2.2 The Spatial Relations Test |
[79] |
3.2.3 The Abstract Reasoning Test |
[83] |
3.2.4 The Personality Profile Test |
[88] |
3.2.5 Overall Psychometric Assessments |
[89] |
3.2.6 The Accident Risk Management Questionnaire |
[90] |
3.2.7 Experiential Exercises |
[91] |
3.3 Health Assessments |
[95] |
4. The Contentions |
[109] |
4.1 The Meaning of "Unsuitable" in the Context of the Preference Order |
[111] |
4.2 The Relevance of the Psychometric Test Results |
[141] |
4.3 The Accident Risk Management Questionnaire |
[158] |
4.4 Employer Access to Medical Records - Mutual Trust and Confidence |
[172] |
4.5 The Medical Evidence |
[191] |
4.5.1 Dr Fenner's Evidence |
[191] |
4.5.2 Dr Schneider's Evidence |
[273] |
4.6 Some Observations about the Coal Mine Workers' Health Scheme |
[280] |
4.6.1 Review of Health Assessments |
[282] |
4.6.2 Health Assessments for Individuals Seeking Employment |
[286] |
4.6.3 Discussions Regarding Appropriate Duties |
[290] |
4.6.4 The Section 4 Report on Health Assessment |
[293] |
4.6.5 Section 3 Clinical Findings |
[297] |
4.6.6 The Coal Mine Workers' Health Scheme Manual |
[302] |
5. The Individuals |
[307] |
5.1 Mitchell Joseph Albert |
[308] |
5.2 Edward Hugh Appleton |
[348] |
5.3 Garry William Barnes |
[373] |
5.4 Gabriel Pani Crichton |
[409] |
5.5 Robert Edward Cusack |
[434] |
5.6 Athol Earnest Finger |
[472] |
5.7 Donald George Halverson |
[495] |
5.8 Morgan Kenneth Ray Lindley |
[558] |
5.9 Bruce Charles Mitchelson |
[585] |
5.10 Brian Peter Walsh |
[587] |
6. Conclusion |
[628] |
DECISION
1. INTRODUCTION
[1] On 25 July 2003 the Commission as presently constituted issued the Hail Creek Preference of Employment Order 20031 (the Preference Order). The Preference Order is an exceptional matters order made pursuant to s.89A(7) of the Workplace Relations Act 1996 (Cth) (the WR Act). The parties bound by the order are the Construction, Forestry, Mining and Energy Union (the CFMEU) and Hail Creek Coal Pty Ltd (Hail Creek Coal).
[2] For present purposes the relevant parts of the Preference Order are:
"4. PREFERENCE IN EMPLOYMENT
4. This order shall operate to ensure that Hail Creek shall give preference in employment to the persons listed in Schedule A hereto for any vacant positions at the Hail Creek Coal Mine for the term of this order. Hail Creek shall employ the persons listed in Schedule A in any vacant positions at the Hail Creek Mine that those persons are reasonably qualified to perform.
Immediately following the date of the commencement of this order, Hail Creek shall:
4.1 Invite each of the persons listed in Schedule A to an interview so as to match each person with likely future vacant positions;
4.2 Determine a list of seniority of the persons listed on Schedule A based on each individual's length of service with Pacific Coal Pty Ltd at the Blair Athol coal mine;
4.3 Offer preference in employment on the basis of the list of seniority created in accordance with 4.2, i.e. the person with the longest service at Blair Athol shall be offered the first vacant position for which he or she is qualified and suitable;
4.4 If a situation emerges that there are more persons on the Schedule A list than vacant positions, Hail Creek shall fill any future vacancies on a progressive basis in accordance with this order.
5. RELIEF FROM ORDER
Hail Creek may, before appointing any person to the vacancy, apply to the Commission for relief from clause 4 of this order if Hail Creek is of the view that the person identified by clause 4 is unsuitable for the position. The onus of establishing unsuitability shall lie with Hail Creek. In the event of such an application the test that Hail Creek will be required to meet will not be that other applicants are more suitable for the position but rather that the relevant person is unsuitable.
6. ORDER CEASES TO APPLY
This order shall cease to apply to any person in Schedule A who accepts or rejects a written offer of employment made in accordance with this order. This order shall cease to apply to any person who accepts or rejects a written offer of employment made by Pacific Coal Pty Ltd for a position at its Blair Athol coal mine.
7. DISPUTES
Any dispute concerning the application of this order shall be referred to the Australian Industrial Relations Commission for determination."
[3] The names of 16 persons are set out in Schedule A of the Preference Order.
[4] On 15 December 2003 Hail Creek Coal notified the Commission of applications for relief pursuant to clause 5 of the Preference Order. These applications were made without prejudice to Hail Creek Coal's application for prerogative writ relief, which was listed before the Full Federal Court in matter N860 of 2003 on 19 and 20 February 2004.
[5] On 23 December 2003, Hail Creek Coal informed the Commission that the applications related to the following persons named in Schedule A to the Preference Order:
[6] The applications seek relief from clause 4 of the Preference Order. Hail Creek Coal is of the view that the persons identified in paragraph [5] above are "unsuitable" for relevant positions with Hail Creek Coal at the Hail Creek Mine.
[7] Hail Creek Coal initially contended that the relevant positions at Hail Creek have, as part of their inherent requirements, the following attributes:2
1. the ability to be multi-skilled;
2. the ability to work in a multi-skilled team environment; and
3. the ability to actively participate in Hail Creek Coal's safety system known as PASS (Positive Attitude Safety System).
[8] It is submitted that these attributes require the ability to think laterally, communicate effectively and demonstrate reading, listening, problem solving and forward planning skills.
[9] Each of the persons referred to in paragraph [5] above have been assessed by Hail Creek Coal as to their fitness for work and their respective competencies. Following those assessments Hail Creek Coal is of the view that each of the persons named is unsuitable for any relevant positions at the Hail Creek Mine.
[10] Before turning to some preliminary issues we propose to briefly set out some background to the Hail Creek Mine.
[11] The mine is owned and operated by a joint venture between Sumisho Coal Development Pty Ltd, Marabushi Coal Pty Ltd and Queensland Coal Pty Ltd and is described as the Hail Creek Project. The Hail Creek Mine is located approximately 50 kilometres from the town of Nebo and about 140 kilometres by road from Mackay.
[12] The joint venture partners have appointed Hail Creek Coal to manage and operate the Hail Creek Project. Hail Creek Coal is the employer of all employees at the Hail Creek Mine, excluding the senior management team.
[13] The Hail Creek Mine produces premium quality coking coal. All of the coal produced is exported to countries such as Japan, China and India.
[14] The mine was said to have been designed differently from the other mines managed by Pacific Coal. Mr Davies described that design thus:
"15 Hail Creek was designed and developed as a mine with a single integrated production process. That is mining, processing and handling are integrated in a single process. There is no raw coal stockpile, as there is no process for separation of mining, raw coal stockpiling and coal preparation and handling. Shipment is the only isolated process, as train allocation is largely outside the control of Hail Creek Coal.
16 Raw coal is not stockpiled and then washed and prepared in a separately scheduled process. Mining of raw coal, feeding to the wash plant and coal preparation are a continuous process. The management of reject material is also different. The reject product is managed by pumping combined coarse and fines materials process to a codisposal, and not to a wet fines reject dam.
17 The process also means that control systems for the Coal Handling Preparation Plant (CHPP) are situated in and operated from the mine administration area and not in the CHPP itself."3
[15] We deal with this issue later in our decision.
2. PRELIMINARY ISSUES
[16] It is convenient to deal with two preliminary matters before turning to the assessment process used by Hail Creek Coal in respect of the positions at the Hail Creek Mine, namely:
2.1 VARIATION OF THE PREFERENCE ORDER
[17] On 10 February 2004 we granted Hail Creek Coal's application to vary the Preference Order in the following respects:
"A. The above order is varied by the addition of the following clause:
8. TEMPORARY SUSPENSION
Subject to the undertaking set out below, the operation of Clause 4 (except sub clause 4.2) will be suspended with respect to each person listed in Schedule A for whom an application for relief from the Order is made under Clause 5 of the order (the application) until the application has been heard and determined.
8.1 Undertaking
In the event that any application for relief from the order is unsuccessful, Hail Creek Coal undertakes to make an offer of employment as an operator to that person within 24 hours, and if the offer is accepted, that person will be paid from the date of their acceptance as if they had commenced employment and they will commence employment at the start of the first induction run by Hail Creek Coal following their acceptance. This does not apply to or otherwise affect offers which may be made by Rio Tinto Coal Australia at Blair Athol Mine.
B. This order shall come into effect on and from 10 February 2004 and shall remain in force for a period of six months."4
[18] In view of the undertaking given by Hail Creek Coal, and reflected in the variation, the CFMEU consented to the variation sought.
2.2 EVIDENTIARY RULINGS
[19] On 11 February 2004 we heard and determined a number of objections taken by the CFMEU to aspects of the witness statements filed by Hail Creek Coal. The objections taken fell into four broad categories:
[20] We made rulings in respect of these matters during the course of the hearing. Consistent with the usual practice we only provided very brief reasons at that time. As the NSW Court of Appeal observed in Kwan v Kang:
"In many instances it will be open to a trial judge to make evidentiary rulings without giving reasons. In other instances, very brief reasons would be appropriate. It will be rare for the exigencies of a case to require lengthy and detailed reasons to be given in support of such rulings."5
[21] We now propose to provide more detailed reasons because some of the matters canvassed during submissions, and our ruling in respect of them, are relevant to our determination of the substantive application.
[22] We propose to briefly set out the arguments advanced by the parties in respect of each of these four areas before setting out our reasons for the rulings made.
2.2.1 Improperly Obtained Evidence
[23] The essence of the CFMEU's objection is that the material relating to the applicants' medical records was improperly obtained in that it was disclosed to Hail Creek Coal by the Nominated Medical Advisor (the NMA), Dr Fenner, in breach of the confidentiality provisions set out in s.52 of the Coal Mining Safety and Health Regulation 2001 (Qld) (the CMSHR or the Regulation).
[24] The CMSHR is made pursuant to the Coal Mining Safety and Health Act 1999 (Qld) (the CMSHA). Division 2 of Part 6 of the Regulation deals with the Coal Mine Workers' Health Scheme. That scheme provides that each employer must appoint a doctor (the NMA) to carry out, supervise, and report on, health assessments under the division (s.45(1)(a)).
[25] Employers must ensure that a health assessment is carried out for each person who is to be employed by the employer as a coal mine worker (s.46(1)). Health assessments must be carried out by, or under the supervision of, the NMA and in accordance with the instructions, and covering the matters, in the approved form (s.46(2)).
[26] Section 52 of the Regulation deals with the confidentiality of the contents of a coal mine worker's medical record, it states:
"52 Confidentiality of medical record
(1) A person must not disclose to anyone, other than under this section, the contents of a coal mine worker's medical record obtained by the person under this division.
Maximum penalty-100 penalty units.
(2) A nominated medical adviser may disclose the contents of the record to the coal mine worker or someone with the worker's written consent.
Example of someone with the worker's written consent-
The worker's representative at the mine.
(3) The chief executive may disclose the contents of the record-
(a) to the worker; or
(b) with the written consent of the worker, to a doctor, hospital or other person; or
(c) to a person for research purposes, but only if the identity of the worker is protected.
(4) Despite subsection (3)(b), the chief executive may disclose the contents of the record to a doctor or hospital without the worker's consent if-
(a) the doctor or hospital needs to obtain the contents to treat the worker; and
(b) the worker is unable to give the consent.
(5) Subsection (1) is not a safety and health obligation for the Act.
(6) In this section-
"medical record", of a coal mine worker, means personal medical results or clinical findings obtained from a health assessment of the worker."
[27] The CFMEU contends that some of the material filed in the proceedings sets out the personal medical results or clinical findings obtained from the health assessments of the workers who are the subject of these proceedings. These medical records were disclosed by Dr Fenner, the NMA for the Hail Creek Mine, without the consent of the workers concerned and in breach of his obligations under s.52.
[28] The CFMEU also contends that Dr Fenner discussed the medical records of these workers with Mr Davies, without the workers concerned being present, in breach of his obligations under ss.45(2) and (3). Subsections 45(2) and (3) provide:
"(2) The employer must include in the contract appointing the nominated medical adviser an obligation on the adviser to discuss, and give advice about, appropriate duties for the worker, under subsection (3).
(3) The discussions must be held with, and the advice given to, the employer and coal mine worker or the worker's representative."
[29] It is argued that it is impermissible for the NMA to have separate discussions with the employer without the presence of the worker concerned or his/her representative.
[30] In support of its contention that the evidence in question ought to be excluded, the CFMEU relied on s.138 of the Evidence Act 1995 (Cth), which states:
"Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."
[31] Hail Creek Coal opposed the CFMEU's application and contended that the material challenged ought to be admitted. The arguments advanced in support of Hail Creek Coal's contention may be distilled into five broad points.
[32] First, s.52 of the Regulation must be read in the context of the CMHSA as a whole and regard must be had to the objects of the Act, namely:
"(a) to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations; and
(b) to require that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level."
[33] It was argued that s.52 is to be construed so as to provide some flexibility to the NMA, as a strict construction would undermine the primary objective of the CMHSA. Reference was made to s.14A of the Acts Interpretation Act 1954 (Qld) in this regard.
[34] Second, the CFMEU's construction of s.45(3) is incorrect. The word "and" is not to be read conjunctively in the context of that subsection.
[35] Third, the statements of Dr Fenner are admissible pursuant to s.275A(1) of the CMSHA, which states:
"275A Disclosure of information
(1) A person must not disclose information concerning the personal affairs of a person or commercially sensitive information obtained by the person in the administration of this Act, unless the disclosure is made-
(a) with the consent of the person from whom the information was obtained; or
(b) in the administration of this Act; or
(c) in a proceeding under this Act or a report of the proceeding; or
(d) in a proceeding before a court in which the information is relevant to the issue before the court."
[36] It is contended that the Commission is a court for the purpose of s.275A(1)(d). In this regard it is submitted that the Commission has been held to be a court in other statutory contexts.6 The definition of "court" in the Evidence Act 1977 (Qld) was also relied upon.
[37] Fourth, in the event that we were against Hail Creek Coal in respect of its construction arguments in respect of ss.45(3), 52 and 275A the material should still be admitted having regard to the discretionary considerations in s.138 of the Evidence Act 1995 (Cth).
[38] Finally, it is argued that as a federal statutory body the Commission is not bound to give effect to the terms of the CMSHA and CMSHR (s.109 of the Constitution) and has a general discretion as to the admission of evidence (s.110 of the WR Act).
2.2.2 Irrelevant Evidence
[39] The CFMEU contended that the evidence in respect of Positive Attitude Safety System (PASS) and the results of the psychometric tests is not relevant to the facts in issue and ought to be excluded consistent with s.55 of the Evidence Act 1995 (Cth). Section 55 states:
"(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence."
[40] In respect of the psychometric results the CFMEU also relied on the terms of a confidentiality agreement between Hail Creek Coal and each of the persons who are the subject of these proceedings. It is argued that the use of these results breaches the confidentiality agreement.
[41] In reply Hail Creek Coal contended that the material is relevant and ought to be admitted. Further it is said that the confidentiality agreement comprehended the use of the psychometric results in these proceedings.
2.2.3 Hearsay Evidence
[42] The CFMEU argued that the hearsay evidence ought to be excluded consistent with s.59 of the Evidence Act 1995 (Cth) which states:
"The hearsay rule-exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect."
[43] Hail Creek Coal argued that the material was not relied upon as evidence of the truth of what was said, rather it sets out what Mr Davies was told. On this basis the material ought to be admitted.
2.2.4 Opinion Evidence
[44] The CFMEU contended that the challenged evidence was opinion evidence that was not based on specialised knowledge and therefore it ought to be excluded consistent with the provisions of ss.76 and 79 of the Evidence Act 1995 (Cth). Sections 76 and 79 state:
"s.76 The opinion rule
(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
(2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect."
"s.79 Exception: opinions based on specialised knowledge
If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge."
[45] Hail Creek Coal did not contend that Mr Davies was an expert.
[46] Before turning to our ruling in respect of each category of objection taken we wish to briefly set out the general approach of the Commission with respect to such matters.7
[47] We note at the outset that the Commission is not bound by the rules of evidence. In this regard s.110 of the WR Act relevantly provides:
"(1) Where the Commission is dealing with an industrial dispute, it shall, in such manner as it considers appropriate, carefully and quickly inquire into and investigate the industrial dispute and all matters affecting the merits, and right settlement, of the industrial dispute.
(2) In the hearing and determination of an industrial dispute or in any other proceedings before the Commission:
(a) the procedure of the Commission is, subject to this Act and the Rules of the Commission, within the discretion of the Commission;
(b) the Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just; and
(c) the Commission shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms."
[48] While the Commission is not bound by the rules of evidence that does not mean that those rules are irrelevant. As the then President of the Industrial Relations Commission of Western Australia said in respect of a similar provisions in the then Industrial Relations Act 1979 (WA):
"However, this is not a licence to ignore the rules. The rules of evidence provide a method of enquiry formulated to elicit truth and to prevent error. They cannot be set aside in favour of a course of inquiry which necessarily advantages one party and necessarily disadvantages the opposing party (R. v War Pensions Entitlement Appeal Tribunal: ex parte Bott [1933] 50 CLR 228 Evatt J. at 256 (dissenting)). The common law requirement that the Commission must not in its reception of evidence deny natural justice to any of the parties acts as a powerful control over a tribunal which is not bound by the rules of evidence."8
[49] A similar observation was made by the Industrial Commission of New South Wales in PDS Rural Products Ltd v Corthorn:
"First, it is correct to say, as the commissioner did, that he was not bound to observe the rules of law governing the admissibility of evidence (s 83). It should be borne in mind that those rules are founded in experience, logic, and above all, common sense. Not to be bound by the rules of evidence does not mean that the acceptance of evidence is thereby unrestrained. What s 83 does do in appropriate cases is to relieve the Commission of the need to observe the technicalities of the law of evidence. Common sense, as well as the rules of evidence, dictates that only evidence relevant to an issue which requires determination in order to decide the case should be received. This means that issues must be correctly identified and defined. This did not happen in this case."9
[50] We agree with the above observations. In our view the rules of evidence provide general guidance as to the manner in which the Commission chooses to inform itself.
[51] In relation to the evidence which discloses the "medical records" of the persons who are the subject of these proceedings, we concluded that the disclosure of this material to Hail Creek Coal by Dr Fenner was in breach of the terms of the confidentiality provisions of s.52 of the Regulation. The material was disclosed without the consent of the individual concerned. A "medical record" is defined in the Regulation to mean "personal medical results or clinical findings obtained from a health assessment of the worker".
[52] A copy of the form prescribed for use in health assessments is attached to Mr Davies' statement10 as Annexure PMD10. Section 3 of that form is headed Clinical Findings - it states:
Section 3 - Clinical Findings - Examining Medical Officer to complete
3.0 |
ID Check |
Type |
||
3.1 |
Height |
cm |
Comment | |
3.2 |
Weight |
kg |
3.3 |
Vision |
Visual acuity |
||||||||
Uncorrected |
Corrected |
3.4 Visual fields (by confrontation) | ||||||||
· |
Right |
Left |
Right |
Left |
||||||
(a)-(b) |
Distant |
6/ |
6/ |
(e)-(f) |
6/ |
6/ |
Abnormal |
_ |
Normal |
_ |
(c)-(d) |
Near |
N |
N |
(g)-(h) |
N |
N |
||||
|
3.5 |
Colour Vision Test (if indicated by employer) Ishihara (if abnormal, the NMA to arrange practical test) |
Abnormal |
_ |
Normal |
_ |
3.6 |
Work-related colour vision practical test (if Ishihara test abnormal) |
Unsatisfactory |
_ |
Satisfactory |
_ |
3.7 |
Hearing |
Audiogram |
500 Hz |
1000 Hz |
1500 Hz |
2000 Hz |
3000 Hz |
4000 Hz |
6000 Hz |
8000 Hz | |
(a)-(h) |
Left |
· |
|||||||
(i)-(p) |
Right |
(q) |
Time since last high noise exposure? |
hours |
| ||||
(r) |
Audiogram result |
Abnormal |
_ |
Normal |
_ | ||
(s) |
Were hearing aids used |
Yes |
_ |
No |
_ | ||
(t) |
Auditory canals |
Abnormal |
_ |
Normal |
_ | ||
(u) |
Tympanic membranes |
Abnormal |
_ |
Normal |
_ | ||
The result is normal if hearing threshold is 40dB or less in the better ear at 500, 1000, 1500 and 2000 Hz. If an abnormal result impacts on a coal mine worker's "fitness for duty", the NMA should consider a practical test. | |||||||
Examining Medical Officer's comments on Questions 3.1 to 3.7 (Note any abnormality, including past noise exposure, workers' compensation claims and tinitus) |
3.8 |
Cardiovascular System |
Systolic |
Diastolic | ||||
(a) |
Blood Pressure |
||||||
(b) |
(Repeated if necessary) |
||||||
(c) |
Pulse rate |
/min |
|||||
(d) |
Peripheral pulses |
Absent |
_ |
Present |
_ | ||
(e) |
Heart sounds |
Abnormal |
_ |
Normal |
_ | ||
(f) |
Evidence of cardiac failure or oedema |
Yes |
_ |
No |
_ | ||
(g) |
Varicose veins |
Yes |
_ |
No |
_ | ||
(h) |
E.C.G. (if indicated by some abnormality) |
Abnormal |
_ |
Normal |
_ | ||
Examining Medical Officer's comments on Questions 3.8 |
|
3.9 Respiratory system
Litres |
Observed |
Predicted |
Observed/Predicted % | ||||||||||
Forced exp. Vol. 1 sec- FEV1 |
(b) |
(e) |
(h) |
||||||||||
Forced vital capacity - FVC |
(c) |
(f) |
(i) |
||||||||||
FEV1/FVC% |
(d) |
(g) |
|||||||||||
3.10 |
Spirometry (abnormal includes FEV1/FVC<70%) |
Abnormal |
_ |
Normal |
_ | ||||||||
3.11 |
Auscultation of chest |
Abnormal |
_ |
Normal |
_ | ||||||||
3.12 |
(a) Was chest x-ray undertaken (as advised by employer) |
Yes |
_ |
No |
_ | ||||||||
(b) |
Date x-ray was taken |
/ / |
_ | ||||||||||
(c) |
Quality of film? |
Unsatisfactory |
_ |
Satisfactory |
_ | ||||||||
(d) |
What was the result? (Also attach x-ray film to this Report) |
Abnormal |
_ |
Normal |
_ | ||||||||
3.13 |
Musculo-skeletal system |
3.14 |
Urinalysis and Blood Sugar |
Present |
Absent | ||||||||
Abnormal |
Normal |
(a) |
Sugar |
_ |
_ | ||||||||
(a) |
Lower back |
(b) |
Protein/albumin |
_ |
_ | ||||||||
(i) |
Range of movement |
_ |
_ |
(c) |
Blood |
_ |
_ | ||||||
· (ii) |
Posture and gait |
_ |
_ |
(d) |
Blood sugar analysis (optional) |
_ |
_ | ||||||
(iii) |
Straight leg raising |
_ |
_ |
3.15 |
Abdomen | ||||||||
(b) |
Neck - range of movement |
_ |
_ |
(a) |
Abdominal scars |
_ |
_ | ||||||
(c) |
Joint movements |
(b) |
Abdominal mass |
_ |
_ | ||||||||
(i) |
Upper Limbs |
_ |
_ |
(c) |
Hernia |
_ |
_ | ||||||
(ii) |
Lower Limbs |
_ |
_ |
3.16 |
Skin | ||||||||
(iii) |
Reflexes |
_ |
_ |
(a) |
Eczema, dermatitis or allergy |
_ |
_ | ||||||
(b) |
Skin cancer or other abnormality |
_ |
_ | ||||||||||
Examining Medical Officer's comments on Questions 3.9 to 3.16 (where applicable include result of additional testing) |
3.17 |
Is the coal mine worker's fitness for duty is likely to be affected by any of the following? | ||
Yes |
No | ||
(a) |
Dietary Habits |
_ |
_ |
(b) |
Exercise routine |
_ |
_ |
(c) |
Stress Level |
_ |
_ |
(d) |
Alcohol Consumption |
_ |
_ |
(e) |
Drugs or medication not prescribed by a doctor |
_ |
_ |
3.18 |
Is there any reason why the coal mine worker may be not fit for duty in relation to work: | ||
Yes |
No | ||
(a) |
As an operator of (or working around) around heavy vehicles |
_ |
_ |
(b) |
Underground (including use of self-rescue breathing devices and escape) |
_ |
_ |
(c) |
Shift work |
_ |
_ |
(d) |
Performing heavy manual handling |
_ |
_ |
(e) |
In wet or muddy conditions |
_ |
_ |
Yes |
No | ||
(f) |
In dusty conditions |
_ |
_ |
(g) |
At height or on ladders |
||
(h) |
In confined spaces |
_ |
_ |
(i) |
While wearing safety footwear or other personal protective equipment such as ear plugs, glasses and respirators |
_ |
_ |
(j) |
Another capacity - define .............................................................. |
_ |
_ |
Examining Medical Officer's comments on Questions 3.17 and 3.18 |
|
Examining Medical Officer's name and address Please print or stamp |
Signature Date / / |
[53] The material challenged falls within the definition of a "medical record" in the Regulation.
[54] We had regard to the arguments advanced by Hail Creek Coal but did not find them persuasive. While s.52 is to be construed in the context of the statutory scheme as a whole, and having regard to the objects of the CMSHA, such an approach cannot defeat the clear language of the confidentiality provision. We were satisfied that confidentiality is an integral aspect of the statutory scheme as a whole.
[55] In respect of Hail Creek Coal's s.275A argument we doubt that the Commission is a court for the purpose of this provision. But even if the Commission was a court for this purpose that would not have persuaded us to admit the challenged material. In our view the use of s.275A in the manner proposed would simply be a device to circumvent the specific provisions of the Regulation.
[56] Section 138 of the Evidence Act 1995 (Cth) is relevant to the exercise of our discretion to exclude the challenged material. The proper construction of s.138 was considered by Branson J in Employment Advocate v Williamson.11 In that case her Honour concluded that the words "improperly" and "impropriety" extend to cover evidence obtained by "unfair" as well as "unlawful" means. Further, her Honour made it clear that s.138 is not limited to evidence obtained by the police or other enforcement organisations.12
[57] For completeness we note our acceptance of Hail Creek Coal's contention that s.109 of the Constitution permits the Commission to receive evidence in a manner that overrides any limitations under State law. We did not exclude the evidence on the basis that we had no jurisdiction to receive it. Rather we excluded it in the exercise of our discretion pursuant to s.110 because it was our view that it would have been unfair to admit the evidence in question.
[58] In the circumstances it is unnecessary for us to deal with the CFMEU's argument in respect of the proper construction of s.45(3).
[59] In respect of the evidence which the CFMEU contends is "irrelevant" we were not persuaded that this material ought be excluded. Evidence is relevant if it is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue.
[60] Hence the test is whether the evidence could rationally affect the determination of a fact in issue. We were satisfied that the challenged evidence is of this character. It would have been premature to discard this material at that stage of the proceedings in the absence of further argument.
[61] We were not persuaded by the CFMEU's submissions in respect of the confidentiality agreement. In our view that agreement comprehended the use of the results of the assessment process in these proceedings.
[62] In respect of the hearsay evidence we were not persuaded to uphold the objection having regard to Hail Creek Coal's concession as to the use to which the evidence was to be put. The parties were able to address us in submissions as to the weight to be attributed to this evidence.
[63] We were persuaded to exclude Mr Davies' opinion evidence in respect of the ARM-Q test. Hail Creek Coal conceded that Mr Davies is not an expert in this regard13 and it was provided with an opportunity to bring forward admissible evidence in respect of the ARM-Q.
2.3 ACCESS TO MEDICAL RECORDS
[64] It is also convenient to record here that on 8 February 2004 we rejected an application by Hail Creek Coal for access to certain medical records in respect of a number of the individuals who are the subject of these proceedings. At that time we foreshadowed that Hail Creek could make a further application in the event that it emerged from the evidence led by the CFMEU that it was relying on some of the material to which Hail Creek Coal was seeking access.14
[65] It later emerged that the CFMEU was advancing an affirmative case with respect to the fitness for work of a number of the persons who are the subject of these proceedings. In those circumstances we determined that, despite our earlier ruling excluding material which disclosed the medical records of individuals without their consent, fairness now required that Hail Creek Coal have access to certain medical records in respect of the relevant individuals.15 We extract from the statement we made on 24 February 2004 the following:
"A. The following documents are now to be produced to the CFMEU and its legal representatives and to Hail Creek Coal and its legal representatives:
1. The documents and other things produced to the Commission by Dr Peter John Fenner pursuant to the directions order of the Full Bench dated 15 January 2004 in respect of the following persons:
2. The documents and other things produced to the Commission by Dr John Daniel Schneider pursuant to the directions order of the Full Bench dated 15 January 2004 in respect of the following persons:
3. The documents and other things produced to the Commission by Ms Janet Benstead pursuant to the directions order of the Full Bench dated 30 January 2004 in respect of the following persons:
4. We have decided to issue a direction to Dr Peter John Fenner to produce material in his possession in respect of Gary Wayne Mannion and Robert David Smith. A copy of the direction is attached."
[66] We now turn to consider the assessment process which was undertaken in respect of each of the persons who are the subject of these proceedings.
3. THE ASSESSMENT PROCESS
[67] The selection process used by Hail Creek Coal for positions at the Hail Creek Mine involved five steps:16
1. A review of application forms
2. Interviews
3. Assessment test (involving personality profiling, psychometric testing, the Accident Risk Management Questionnaire and experiential exercises)
4. Coal Mine Workers' Health Scheme examination
5. Approval by the Site Senior Executives and General Manager.
We make no comment in respect of the first step.
3.1 THE INTERVIEWS
[68] The interview process was conducted in two phases. In the first phase the interview panel used a set of questions from a pro forma questionnaire.17 In the second phase a panel used a different set of questions which is designed to elicit responses in similar topic areas to those covered in the first phase, but in a different way.18
[69] At the end of the interview process the interviewers discuss the results. An evaluation page was provided as an aid to the interviewers to assist them to form a conclusion as to whether an applicant should progress to the next stage. Some interviewers used a scoring system (1 to 5), some preferred a short commentary, some used both and some used neither.
[70] Mr Davies' evidence was that after the interviews he discussed each applicant with the other interviewers. The discussions were summary in nature relating to the interviewers impressions of the applicant, their response to the questions and general behaviour in the interviews. Mr Davies says that the interviewers discussed:
"(a) how we had perceived their demeanour;
(b) their preparedness to answer our questions openly and fully;
(c) the reasons they gave for seeking a job at the Hail Creek Mine; and
(d) any particular issues that were identified during the interview, including anything we should look for in the experiential exercises for those we interviewed prior to the exercises or any issues which confirmed or contradicted the behaviour we had observed in the experiential exercises for those we interviewed after the exercises."19
3.2 THE PSYCHOMETRIC ASSESSMENT TOOLS
[71] Both abilities and profiling testing tools were used for the recruitment and selection process at Hail Creek Coal.20 The abilities tests used were:
1. the Australian Council of Educational Research (ACER) Applied Reading Test (the Applied Reading Test);
2. the Differential Aptitude Test Space Relations Test (the Spatial Relations Test); and
3. the standard Progressive Matrices (PM58) Test (the Abstract Reasoning Test).
[72] The abilities test results are not measured in terms of pass or fail. They are measured in terms of a candidate's percentile ranking against a general population group. For each of these tests a range of population groups is available from the original publisher of the test. A candidate's performance in the tests is rated relative to the population group against which the candidate is assessed.
[73] The population group used for the percentile rankings for the three abilities tests used by Hail Creek Coal was a relevant group of applicants for basic technical and operator roles within the mining industry in Australia. This population consisted of approximately 400 applicants for positions at mine sites in Australia who were short listed for assessment centres. This is said to enable the comparison not only of each applicant's scores on a single test but also of an individual applicant's strengths and weaknesses relevant to that group. As this norm group is constructed from applicants for basic operator roles within the mining industry, it is contended that this also allows for the comparison of an applicant with a sample of his or her peers.
[74] Scores are not considered in their raw state but are transformed to "percentile scores" for interpretation. Percentile scores are generally summarised as:
[75] In her statement Ms Walters, who is a registered psychologist and who undertook the psychometric assessments, says:
"Ordinarily where low results are obtained on the abilities testing, an applicant would not be automatically disqualified from proceeding further in the recruitment and selection process. Low results highlight to the employer that they should investigate the application further. This would normally be done through the use of other tools in the recruitment and selection process, such as review of the interviews and their application forms, experiential exercise observations and so on."22
[76] Each of the tests used is described below.
3.2.1 The Applied Reading Test
[77] The Applied Reading Test assesses a candidate's ability to read and understand reading material, such as would be encountered in roles of a technical nature or in training to use equipment or carry out basic technical operations. It was originally formulated for the testing of apprentices. Performance on the test is intended to be independent of technical knowledge and reading speed. A candidate is required to read passages of text and then answer questions about the content of that text.
[78] In her statement Ms Walters says:
"29 The Applied Reading Test is recommended for use in the selection of applicants for basic technical and trades positions and to identify people who would benefit from remedial assistance with reading. The results are not isolated and are not individually used to determine whether an applicant is suitable or not for a position."23
3.2.2 The Spatial Relations Test
[79] The Spatial Relations Test requires applicants to choose a shape from a sequence of shapes which correctly represents what an unfolded shape will look like when folded. The choices become progressively more difficult.24
[80] The Spatial Relations Test assesses a candidate's ability to visualise shapes and objects in three dimensions, both in rotated and unrotated forms. The diagrams are large and clear. The task focuses solely on the candidate's judgment of how the objects would look. It does not measure the candidate's vision and a candidate does not require literacy skills to complete the Spatial Relations Test.
[81] Spatial ability is relevant for positions where job holders are required to imagine the effects of manipulation on objects or to understand the relationship between physical objects and their representations in two dimensions, such as in plans, maps and diagrams. The Spatial Relations Test is aimed at a broad range of spatial ability levels.25
[82] In her statement Ms Walters says:
"38 A low level of performance in the Spatial Relations Test suggests that the candidate will find it difficult to create or hold a mental picture visualising the object the candidate is required to operate through space. This may make them more prone to unforced accidents or incidents which could be avoided by candidates with good spatial ability."26
3.2.3 The Abstract Reasoning Test
[83] The Abstract Reasoning Test measures an applicant's ability to reason with abstract material and provides an estimate of general ability with no requirement for any degree of language skills. The test involves thinking logically in order to identify patterns and logical implications. It is designed to measure the non-verbal component of general intelligence, often referred to as "non-verbal reasoning" or "abstract reasoning".
[84] The Abstract Reasoning Test is available in various levels of difficulty. The PM58 or "standard" edition of the test was selected for the Hail Creek recruitment process. This edition is aimed at measurement within a population with a broadly average level of intelligence.
[85] The Abstract Reasoning Test involves an applicant working through a series of patterns in order to identify missing sections of the design. To do this successfully, the applicant must identify particular features of the design and form a "construct" which explains the pattern. The applicant can then logically predict the content of the missing section and identify it within the options provided. As the patterns progress in a particular
way, the applicant can build up an idea of the kinds of constructs which might apply to future patterns. There is an element of training within this test which enables an assessment of the applicant's ability to learn from experience. In the Abstract Reasoning Test, the first few questions are simple and are designed to enable each person to complete them, regardless of ability. The patterns and designs become progressively more difficult throughout the Abstract Reasoning Test.
[86] Candidates for this test do not require reading skills in order to complete it. Instructions are given orally. Therefore, the test is able to measure reasoning ability even for those applicants with severe literacy problems.27
[87] In her statement Ms Walters says:
"45 A low performance in the Abstract Reasoning Test suggests an applicant has difficulty understanding information and drawing logical conclusions. This can result in inappropriate actions and inability to predict the outcome of actions and events. It indicates the applicant may have difficulty in working out the best action to take in a given situation." 28
3.2.4 The Personality Profile Test
[88] The personality profile questionnaire is a proprietary tool developed by PsychPress for behaviour styles assessment which had been designed and standardised for the Australian population. In her statement Ms Walters describes the questionnaire in these terms:
"46 . . . It measures 16 primary personality factors and 5 global personality factors. Some of the factors are factors which predict performance across most jobs (such as emotional stability and conscientiousness).
47 Other factors and combinations of factors (such as group orientation and abstractedness) are more specifically related to the work environment at Hail Creek Coal, which requires capacity for team behaviours and a safety focussed environment.
. . .
51 The personality profile questionnaire is an interpretative tool, which relies on the experience and training of the interpreter to review the various factors and produce an overall report designed to predict a person's preferences for behaviours in different situations. Although certain responses are desirable on some scales in the context of a particular job, they do not have a value generally, ie. one score is not, in itself, better than another. Further, responses are considered in an holistic way as the appropriateness of a particular preference may be modified by preferences on another scale. It is therefore the interactions and general pattern of responses which is considered rather than scores on individual scales . . ."29
3.2.5 Overall Psychometric Assessments
[89] Ms Walters prepared an overall psychometric evaluation of each of the ten persons who are the subject of these proceedings. The methodology adopted by Ms Walters in preparing such an overall evaluation is explained by her as follows:
"51 . . . In my overall evaluation, ability test scores are given the greatest weight, as research strongly suggests that this type of information is the best predictor of job performance. When I prepare the overall evaluation of reports I approach them in the following way:
(1) where a candidate scores well in the abilities testing, I will allocate them as an average candidate or higher (ie above average or well above average), depending on the various aspects of the personality profile, which may highlight strengths or weaknesses within their personality for the role they are applying for;
(2) where a candidate scores poorly in the abilities testing, I will allocate them as an average candidate or lower (ie below average or well below average), again depending on the various aspects of the personality profile which may highlight strengths or weaknesses for the role they are applying for.
52 Where a candidate achieves low results on the abilities tests, has a number of aspects of their personality which are of concern given the role they have applied for and has few or no aspects of their personality which are positive indicators given the role they have applied for, it is possible to say that it is far less likely that such a person will perform adequately in the position, as against other candidates for the position."30
3.2.6 The Accident Risk Management Questionnaire
[90] The ARM-Q purports to assess an applicant's beliefs and attitudes towards general safety issues. It is submitted (by Hail Creek Coal) that the questionnaire helps to identify applicants who present a greater risk for accidents and injuries in the workplace. The profile is designed to predict specific behavioural outcomes in respect to accidents and injuries. It is not a skills test or a personality assessment. The ARM-Q is further discussed at paragraph [158] and following of this decision.
3.2.7 Experiential Exercises
[91] The experiential exercises were done progressively in three teams. First, in a large team (up to 24), a medium sized team (up to ten) and a small team (up to five). The teams are given rules for the exercise and must complete the tasks themselves. The tasks were facilitated by Cadden Crowe consultants. Cadden Crowe, a recruitment consultancy, were engaged to assist in the selection process.
[92] In these exercises, the interviewers observed how people react to the situation in which they find themselves. Do they take time to identify any safety risk involved in the task to determine appropriate control measures? Do they listen to the task being explained? Are they prepared to accept the ideas of others? Do they stress? Do they ignore rules? Do they take risks (acceptable or unacceptable)? Do they avoid or create or resolve conflict? Do they participate in or retreat from problem solving? How do they work in teams? Do they identify and manage hazards? Who are leaders and who are followers?
[93] We note here that little direct evidence was adduced in respect of the applicants' performance in these exercises. Mr Davies sets out some brief observations in this regard but the Cadden Crowe consultants who facilitated the tasks were not called.
[94] In his statement Mr Davies describes the experimental exercises in these terms:
"89 Experiential exercises for the Applicants were also conducted. This was the hardest step to replicate test conditions that applied on other intakes principally due to the size of the group. In this process the exercises were:
(1) an exercise called `Spider's Web'. This involved two poles with a number of ropes tied between them in a spider web shape. All 16 of the Applicants participated in the exercise together. The exercise required each of the Applicants to get from one side of the Spider's Web to the other without touching any of the ropes. Each `hole' in the spider's web could only be used once, unless the group was specifically advised otherwise,
(2) an exercise called `Ropes exercise'. The Applicants were broken into two groups of eight. Each group received four ropes of different lengths, which they were required to join to make a perfect square. Once one member of the team touched any of the ropes, the entire team had to be blindfolded to complete the exercise; and
(3) an exercise called `Eggsplosion'. In this exercise the 16 Applicants were divided into groups of 4. Each group received an egg, a metre of tape and 20 straws. Each group was required to build a construction to shield an egg from a 2 metre fall. Each group was required to give a 30 second presentation on a part of the exercise. The resources were assigned a value and the structure had to be as cost effective as possible.
At the commencement of each exercise the group were advised of the need to spend time reviewing, identifying and planning to manage the risks."31
3.3 HEALTH ASSESSMENTS
[95] One of the objects of the CMSHA is to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations and to require that the risk of injury or illness to any person resulting from coal mining operations is at an acceptable level (Section 6). Section 7 of the CMSHA provides that one of the ways the objects of the CMSHA are to be achieved is by providing for the health assessment of coal mine workers. Schedule 2 of the CMSHA provides that the subject matter for regulations includes the health of persons employed or to be employed at a coal mine.
[96] Division 2 of Part 6 of the CMSHR make provision for a coal mine workers' health scheme, including:
[97] Hail Creek Coal has appointed Dr Fenner as its Nominated Medical Advisor (NMA).
[98] Dr Fenner's primary role as the NMA is to undertake, supervise and report on health assessments for existing and prospective employees.
[99] In carrying out such health assessments Dr Fenner completes a health assessment form, called a Confidential Health Assessment Form, prescribed under s.281 of the CMSHA. A copy of that form is attached to Mr Davies' statement as Annexure PMD10.32
[100] The Form is in four sections. Each section places obligations on different parties. For the present purposes those obligations are as follows.
Section 1. The employer is to complete this section. It informs the NMA of the worker's position by providing a "generic job title" and the coal mine at which the coal mine worker is (or is proposed to be) employed. Six specific questions are required to be answered relating to the environment in which the employee will work (i.e. underground, noise, hazardous chemicals, etc.). In addition there is a general question relating to hazardous duties which may require a specific fitness assessment.
Section 2. The coal mine worker completes Section 2. The section provides details about the coal mine worker, his or her work history and his or her medical history.
Section 3. This section is to be completed by the Examining Medical Officer (which may be the NMA). Section 3 of the approved form is set out at paragraph [52]. It can be seen that Section 3 requires the Examining Medical Officer (EMO) to make a number of clinical findings and after doing so, the EMO is required to answer the following questions:
"3.17 |
Is the coal mine worker's fitness for duty is likely to be affected by any of the following? | ||
Yes |
No | ||
(a) |
Dietary Habits |
_ |
_ |
(b) |
Exercise Routine |
_ |
_ |
(c) |
Stress Level |
_ |
_ |
(d) |
Alcohol Consumption |
_ |
_ |
(e) |
Drugs or medication not prescribed by a doctor |
_ |
_ |
3.18 |
Is there any reason why the coal mine worker may be not fit for duty in relation to work: | ||
Yes |
No | ||
(a) |
As an operator of (or working around) around heavy vehicles |
_ |
_ |
(b) |
Underground (including use of self-rescue breathing devices and escape) |
_ |
_ |
(c) |
Shift work |
_ |
_ |
(d) |
Performing heavy manual handling |
_ |
_ |
(e) |
In wet or muddy conditions |
_ |
_ |
(f) |
In dusty conditions |
_ |
_ |
(g) |
At height or on ladders |
_ |
_ |
(h) |
In confined spaces |
_ |
_ |
(i) |
While wearing safety footwear or other personal protective equipment such as ear plugs, glasses and respirators |
_ |
_ |
(j) |
Another capacity - define ............................................................ |
_ |
_" |
Section 4. Must be completed by the NMA. It is in the form set out below.
Coal Mine Worker's Health Scheme
Section 4 - Report on Health Assessment - Nominated Medical Advisor to complete
Coal Mine Worker's Details
Family Name Given Name(s)
Employer Mine(s) (if applicable)
Examination Details
Date of Examination by EMO |
Position (eg job title (generic)) |
Is the assessment for | |
Underground work? Yes _ No _ |
As at the date of this examination, the coal mine worker :
_ Is fit to undertake any position
_ Is fit to undertake the proposed / current position
_ The coal mine worker has a condition which results in the following restriction(s) (If necessary, outline management program)
The duration of the restriction is:
Is a further review necessary? Yes _ Date / / No _
Specify full or type of review required:
Was a chest x-ray taken? Yes _ Date / / No _
As Nominated Medical Adviser, I have explained the restriction / additional assessment to the Coal Mine Worker.
I have been advised of the outcome of this assessment. (Practical constraints prevented this from being a compulsory item) |
Coal Mine Worker's Signature |
Date / / |
Nominated Medical Adviser's name and address Please print or stamp |
NMA Signature |
Date / / |
Distribution of Report on Health Assessment:
(a) copy to coal mine worker at address show on page 2;
(b) copy to employer;
(c) copy of Health Assessment Form to Health Surveillance Unit, Department of Natural Resources and Mines, GPO Box 2454, Brisbane 4001
[101] Consistent with the requirements of Regulation 52, the Section 4 Report does not disclose any medical records of the coal mine worker to the employer. Thus the answers to the Section 3 questions are not made known to the employer, although it would be expected that if the EMO answers "Yes" to the questions asked at Sections 3.17 and 3.18 a corresponding restriction would appear on the Section 4 Report. The Section 4 Report requires the NMA to declare to the employer whether the coal mine worker:
_ Is fit to undertake any position;
_ Is fit to undertake the proposed/current position;
_ Has a condition which results in the following restriction(s) (if necessary, outline management plan).
[102] If a restriction is placed on a coal mine worker the NMA is required to determine the duration of the restriction. The NMA is also required to determine whether a further review is necessary (and if so, when) and to explain any restriction/additional assessment to the coal mine worker.
[103] When Division 2 of Part 6 of the Regulation is read in conjunction with the approved form it is apparent that the role of the NMA is to determine whether a coal mine worker is fit to undertake any position or a nominated position at a particular mine. In the event that the coal mine worker has a "condition", the NMA is to apply appropriate restrictions (if any) to the tasks that the worker can perform. By completing the approved form the NMA advises the employer of the restrictions and their duration. It is not an option on the approved form for the NMA to declare that a coal mine worker is "unfit for work". Under the scheme that decision is made by the employer or, more specifically, the Site Senior Executive (SSE). It is the SSE who carries the obligation (at s.42 of the CMSHA) to, amongst other things, "ensure that the risk to persons from coal mining operations is at an acceptable level".
[104] The Section 4 Report (by including any restrictions) and the discussions (if necessary) that are held in accordance with Regulation 45, provide the SSE with the information to reach a decision regarding the future employment of the worker and/or whether the worker should (for the duration of any restrictions) attend the mine, and if so, what duties should be undertaken.
[105] The key point is that once the NMA applies restrictions to a mine worker, the decision as to that worker's fitness for work is no longer the NMA's to make. It is the decision of the SSEs. A production worker with a number of restrictions, some of which go to the worker's core duties, could still attend the mine and perform, for example word processing duties in the Administration Building and not constitute an unacceptable level of risk. Such decisions are at the SSE's discretion provided the SSE meets his or her statutory obligations. For the foregoing reasons it is our view that the Health Scheme does not contemplate that the role of the NMA includes declaring that a worker is "unfit for duty".
[106] Some time in late July or early August 2003 Mr Davies contacted Dr Fenner and asked him to reserve some time to conduct health assessments on a number of persons. Dr Fenner sets out his recollection of his discussions with Mr Davies at paragraph 68 of his statement of 5 March 2004:
"68 Mr Davies then came to see me. He explained to me that he wanted me to do health assessments on 16 candidates. He told me that these candidates were the people who had previously been in dispute with the Blair Athol mine. He said to me that Hail Creek Coal had been told to employ these people and Hail Creek Coal needed to assess these people for work at Hail Creek to find out if they were suitable. He explained to me he was planning an assessment centre and, because most of them were travelling some distance, he wanted to ensure all their health assessments could be conducted whilst they were in Mackay for the assessment centre process. He told me he wanted me to assess them exactly as I would assess any other candidate. I told him that it was my practice that every health assessment I conducted was conducted to comply with the requirements of the CMSHA and the CMSHA Regulations. He also explained he wanted me to personally conduct all the assessments. I arranged for the necessary time to be allocated for me to undertake health assessments for these individuals on 27, 28 and 29 August 2003."33
[107] Dr Fenner conducted the health assessments and prepared the health assessment reports on the 16 candidates, including the ten persons the subject of the application before us, on 27, 28 and 29 August 2003. Dr Fenner then forwarded the health assessment reports to Mr Davies.
[108] Each of the ten individuals the subject of these proceedings also undertook a five panel drug test which purports to identify the following drugs at the threshold levels indicated:
1. |
Methamphetamine |
500ng/ml |
2. |
Morphine |
300ng/ml |
3. |
Cocaine/Benzoylecgonine |
300ng/ml |
4. |
Benzodiazapine |
200ng/ml |
5. |
Marijuana/Tetrahydrocannabinol |
50ng/ml |
4. THE CONTENTIONS
[109] Five broad issues emerged from the contentions:
1. What is meant by the word "unsuitable" in the context of the EMO.
2. The weight to be attributed to the psychometric tests and experiential exercises.
3. The weight to be attributed to the ARM-Q results.
4. Whether the refusal of seven of the applicants to consent to providing Hail Creek Coal with access to their medical records was relevant to an assessment as to their suitability for employment.
5. The medical evidence.
[110] We now turn to deal with each of these issues before setting out our conclusions in respect of each of the persons the subject of this application.
4.1 THE MEANING OF "UNSUITABLE" IN THE CONTEXT OF THE PREFERENCE ORDER
[111] The key issue for determination in these proceedings is whether or not the individuals concerned are "unsuitable for the position" at the Hail Creek Mine for which they have applied. This issue requires that some consideration be given to what is meant by the word "unsuitable" as it appears in the Preference Order. Hail Creek Coal contends that "suitable" must mean more than "qualified" as both terms are used in the order. In this regard Hail Creek Coal drew attention to the following parts of the Preference Order:
Clause 4 says:
". . . Hail Creek shall employ the persons listed in schedule A in any vacant positions at the Hail Creek Mine that those persons are reasonably qualified to perform."
Clause 4.3 provides that Hail Creek shall:
"Offer preference in employment on the basis of the list of seniority created in accordance with 4.2, i.e. the person with the longest service at Blair Athol shall be offered the first vacant position for which he or she is qualified and suitable."
In clause 5:
"Hail Creek may, before appointing any person to the vacancy, apply to the Commission for relief from clause 4 of the order if Hail Creek is of the view that the person identified by clause 4 is unsuitable for the position."
[112] The argument advanced relies on the fact that the Preference Order itself makes a clear distinction between suitable and qualified, and on the conjunctive use of both qualified and suitable in clause 4.3, to express differing criteria for the offer of preference in employment. Further the Preference Order requires Hail Creek Coal to first determine if a
person is qualified and then provides the right to come to the Commission if it is of the view that a person in clause 4 is "unsuitable", rather than not "qualified".
[113] It was submitted that in cases where the meaning of the word "suitable" has been considered, courts have ascertained the meaning of the word having regard to the context in which it appears and based on the circumstances of the particular matter.34
[114] The decision of the High Court of Australia in Dugan v Mirror Newspapers Ltd35 is relied on by Hail Creek in this context. It concerned an attempt by the notorious Darcy Ezekiel Dugan to bring an action of defamation against the respondent Mirror Newspapers Ltd. At the time Dugan was in prison. He had been convicted in 1950 of a felony punishable by sentence of death but that had been commuted to penal servitude for life. In 1970 he had been convicted of a further felony while released on licence and sentenced to 14 years imprisonment. He was in prison serving these sentences concurrently when he brought the action. The respondent pleaded Dugan's status as a convicted felon as a bar to the bringing of the action. The Supreme Court of New South Wales both at first instance, and on appeal, ruled that Dugan could not bring such an action while he remained a convicted felon. Dugan applied for special leave to appeal.
[115] The point in this case, noted by Barwick CJ in his decision was:
"The substantive argument for the applicant has been that that law of England (that a person attainted could not sue) did not become part of the law of the colony (of New South Wales) because it was unsuited to the conditions of the colony at the time, ie either 1788 or 1828."36 [emphasis added]
Barwick CJ said that the question was not whether the operation of the law in the colony caused inconvenience but whether it could be suitably applied. He reached the conclusion that it could not be said the law was unsuitable and otherwise agreed with Jacobs J.
[116] Jacobs J does not appear to have given particular consideration to the question of suitability, relying rather on the passage of various items of legislation by the Imperial Parliament which established to his satisfaction the act of implanting the concept of attainder in the colony's legal system. However his Honour's decision, and the basis on which he came to it, does lend support to the proposition advanced by Mr Tuck that suitability or unsuitability should be assessed in the context in which the terms appear and the circumstance in which a decision is made.
[117] It was further submitted on behalf of Hail Creek Coal that suitability in the current context must include notions of "fit" to work in the position and at the workplace and appropriateness for the position and the workplace. Hail Creek Coal submitted that this involves consideration of both the physical and mental attributes and capacity of the relevant person.
[118] What Hail Creek Coal believed was involved in the assessment of suitability was:
"13.1 the requirements of Hail Creek Coal for workers to:
(a) be multi-skilled;
(b) be able to work in a team environment;
(c) be able to actively participate in Hail Creek Coal's safety system - the Positive Attitude Safety System (PASS);
(d) be risk focused;
(e) be able to identify and manage hazards;
(f) possess a strong understanding of safety systems and procedures;
(g) be prepared to challenge anyone who is working unsafely;
(h) watch out for fellow workers;
(i) demonstrate safe work behaviours;
(j) have sufficient cognitive ability to perform the role;
(k) have the aptitude for the role;
(l) demonstrate judgment;
(m) have functional and technical skills;
(n) demonstrate interactive skills;
(o) demonstrate emotional intelligence and wisdom;
(p) demonstrate an even temperament;
(q) demonstrate drive, motivation and aspiration to make a difference; and
(r) demonstrate comfort with Hail Creek Coal's business direction, culture and intent.
13.2 the information obtained in the process to ascertain these matters being:
(a) the completed application forms;
(b) the 2 interviews;
(c) the results of the psychometric tests;
(d) the results of the ARMs questionnaire; and
(e) the experiential exercises.
13.3 medical information obtained from the pre-employment health assessments conducted by the Nominated Medical Adviser (NMA) to the Hail Creek Mine, Dr Peter Fenner; and
13.4 the obligations on the coal mine operator and the senior site executive under the Coal Mining Safety and Health Act (CMSHA)."37
[119] Hail Creek Coal contends that the inherent requirements for a position at the Hail Creek Mine are those detailed in paragraphs 14 to 34 of Mr Davies' statement of 19 January 2004.38 It is only applicants with the skills and abilities specified that Hail Creek Coal regards as suitable for employment by it.39 The relevant paragraphs of Mr Davies' 19 January 2004 statement are set out below:
"14 Hail Creek has been designed differently from the other mines managed by Pacific Coal.
15 Hail Creek was designed and developed as a mine with a single integrated production process. That is mining, processing and handling are integrated in a single process. There is no raw coal stockpile, as there is no process for separation of mining, raw coal stockpiling and coal preparation and handling. Shipment is the only isolated process, as train allocation is largely outside the control of Hail Creek Coal.
16 Raw coal is not stockpiled and then washed and prepared in a separately scheduled process. Mining of raw coal, feeding to the wash plant and coal preparation are a continuous process. The management of reject material is also different. The reject product is managed by pumping combined coarse and fines materials process to a codisposal, and not to a wet fines reject dam.
17 The process also means that control systems for the Coal Handling Preparation Plant (CHPP) are situated in and operated from the mine administration area and not in the CHPP itself.
18 This layout and process requires more involved planning and quicker response times to respond and deal effectively with unplanned events. Hail Creek Coal requires its staff, not just to be able to respond quickly, but more importantly to plan ahead for implications of what is happening in the process, with a major requirement for problem solving and team skills.
19 This is reinforced in what is called the `15th shift' at the mine. In every 28 days, each crew has an `on-the-job', but `off-the-tools', 8 hour shift, where there is no work on any equipment. Under the original rosters, this was the 15th shift in the roster cycle. On the 15th shift, each crew undertakes an 8 hour session to review critical issues in crew effectiveness. It involves an effectiveness review of:
This involves not just a review of past events but planning for future events and issues.
20 Crews propose changes to improve crew effectiveness and amend or develop new Key Performance Indicators. Tasks are assigned to crew members singly or in teams. They are required to look at the changes, review the implications of the changes (not just for the crew, but other crews and the business as a whole) and implement approved changes. If any change impacts on Standard Operating Procedures (SOP) then the crew will be involved in the change management process to review that SOP.
21 An inherent part of the system is that coal mine workers at Hail Creek work in a multi-skilled team environment. The crews are established to ensure there is a skills mix across the crews so that all crews can perform all tasks relevant to their particular crew activity. Tasks are then allocated to crew members at the start of each shift and different tasks will be allocated to team members from shift to shift.
22 A typical mechanical equipment mining crew consists of around 14 people. Amongst a typical crew at Hail Creek, there are the following operating skills:
23 Not every person must have every skill. However, the crew must have sufficient numbers of persons with different sets of skills, who are competent and prepared to use those skills. For example, a number of people will have truck skills combined with dozer skills. Others will have truck and loader skills. For a limited period there are persons with only truck skills, but they are in the process of being multi-skilled.
24 Each person can be assigned to carry out any of their skills (or more than one of their skills) on any shift. Further, in the event of illness, absenteeism or vacancy within a crew, all tasks can still be performed by the crew, as the requisite skills exist, in sufficient depth, within the crew to fill the gap.
25 The emphasis on safety tasks is no coincidence. The major emphasis on all operations at Hail Creek is safety. In addition to, and separate from any legislative requirements, Hail Creek demands that it and its employees organise and carry out work safely. The safety requirements are in addition to those required by law. The Coal Board Medical and compliance with the Coal Mining
Safety and Health Act 1999 (CMSHA) are not sufficient in themselves to satisfy Hail Creek's safety requirements.
26 As part of the process Hail Creek has introduced the PASS system, in which every employee must actively participate.
27 PASS stands for `Positive Attitude Safety System', which has been implemented throughout Hail Creek Coal. PASS is a proprietary system developed in Canada. PASS reinforces that everyone working for Hail Creek Coal maintains a proactive attitude to safety. It focuses on positive reinforcement of safe behaviours by all persons in each crew or work area with a daily task of addressing and improving unsafe behaviours.
28 The key elements of PASS are:
(a) positive observation and feedback. PASS requires managers to provide positive feedback for safe behaviours on a daily basis, thereby reinforcing safe behaviours. This extends beyond time at work to time spent away from work;
(b) safety huddles for all crew members at the start of each shift and all employees at the start of each day. Huddles are led by a team member and not a supervisor or manager. They may be invited to the huddle but it is a crew responsibility.
(c) Three questions are asked at the safety huddle at the beginning of the shift or day:
(1) Did we have a safe shift yesterday? Why was that? Two team members are asked to answer that question;
(2) Did we see someone doing something safe yesterday? Two team members are asked to answer that question; and
(3) What are we going to do today to have a safe shift? One person is asked and must give a detailed answer.
(d) charting safe days. Each crew's daily performance is captured on a safe day chart. There are three measures of performance. `A means that the day was safe and someone did something to fix something or improve safety. `B' means the day was an acceptable safe day. `C' means the day was unsafe if any one (or more) team members believed that something at work or away from work was unsafe. `A' days are recorded in an A log, so superior safety performance is never lost.
(e) The grade for the previous shift or day is given by crew or team members to itself, and that all workers must be actively involved in assessing their own and others' safety performance and improvement;
(f) Huddles conducted at the commencement of every shift or day, also to focus on improvement. Questions are asked:
(1) How did you improve safety yesterday?
(2) Who did you give positive reinforcement to yesterday for superior safety performance? and
(3) What are we going to do to improve safety today?
All present at the huddle are expected to participate in the answers to these questions.
(g) a report down system. This requires managers to visit their areas of responsibility and record the previous day's results. Specifically, PASS requires positive acknowledgement of `A' performance;
(h) check-offs. This occurs at the end of each shift or day and involves the team leader seeking active input from team members about hazards or injuries occurring during the shift or day. This information is then communicated to the oncoming shift and, where relevant, other areas such as the safety group, enabling identified hazards to be addressed in the next shift's safety huddle before work commences;
(i) positive observation and feedback. This occurs through the A log identified above, and in the conduct of the daily safety huddles;
(j) Managers keep a PASS safety improvement white board, where crews record a possible safety improvement and management then addresses those safety improvements and records the steps to be taken; and
(k) When a safety improvement task has been completed it remains on the PASS safety improvement white board, for a period of time, as a positive reinforcement. The PASS white board is located in an open area where it is visible to all employees.
Now shown to me and marked PMD1 is a presentation explaining the PASS system.
29 All of these demands require certain attributes in each member of the crew. It demands people who participate and contribute to work safely and not just be followers. They must be able to work in teams, make a mental contribution through lateral thinking, effective communication, reading and listening skills, problem solving and forward planning.
30 Again safety is a major consideration. The Hail Creek Health & Safety and PASS require effective communication, positive team relationships, involvement in hazard and change identification, rectification and improvement.
31 Consistent with this approach to the operation of the Hail Creek Mine, there are certain attributes which Hail Creek Coal regards as necessary in its coal mine workers in relation to safety, ability and personal skills.
32 In relation to safety the worker must:
(a) be risk focused;
(b) be able to identify and manage hazards;
(c) possess a strong understanding of safety systems and procedures;
(d) be prepared to challenge anyone who is working unsafely;
(e) watch out for fellow workers; and
(f) demonstrate safe work behaviours.
A Coal Board Medical clearance is not sufficient indication of a person's ability to work safely, without risk of injury to themselves or others.
33 In relation to ability, the worker must:
(a) have sufficient cognitive ability to perform the role;
(b) have the aptitude for the role;
(c) demonstrate judgment; and
(d) have functional and technical skills.
Possession of functional/technical operation skills on mechanical equipment is not a sufficient qualification for a position at Hail Creek.
34 In relation to personal skills, the worker must demonstrate:
(a) interactive skills;
(b) emotional intelligence and wisdom;
(c) even temperament;
(d) interpersonal skills;
(e) drive, motivation and aspiration to make a difference; and
(f) comfort with Hail Creek Coal's business direction, culture and intent."40
[120] In relation to the alleged "unique" nature of Hail Creek, a contrary view is espoused by Mr Barnes, one of the CFMEU's witnesses. He said that after he read Mr Davies' statement going to the alleged unique nature of Hail Creek he consulted the Pacific Coal web site:
"6. . . . which amongst other things, contains a media release authorised by Dr Grant Thorne, the Managing Director of Pacific Coal and dated 5 November 2003. The media release contains the following statement:
`Coal is mined at Hail Creek using conventional dragline and truck/shovel techniques'.
7. Similarly, elsewhere on the web site in a section entitled `Our Operations' is the following description of the Hail Creek mine operation:
`Mining will be conducted using conventional dragline and truck/shovel techniques.
Initially, coal will be extracted from the Hynds Seam subcrop. Pre- stripping will begin using small equipment, with the dragline being introduced in the second year of mining.
Mining will progress to two seam operation in the third year. As the amount of overburden increases as the seams go deeper, a large electric shovel and trucks will be brought in to handle wast (sic) haulage.
Coal mining is by hydraulic excavator and campaigned by seam to be processed separately in the on-site Coal Preparation Plant.
The Coal Preparation Plant will remove dirt and impurities from the mined coal, allowing the mine to produce coal products that meet strict customer quality standards.'
. . .
9. It is my opinion, that with minor variations (such as the location and function of the CHPP), the description of the Hail Creek mine contained in the Pacific Coal web site describes every open cut coal mine that I have ever been associated with. Indeed, I would not be surprised if the description of the Hail Creek mine would substantially apply to every open cut coal mine in Queensland, whether operated by Pacific Coal or not.
10. In addition, I would question whether Mr Davies' assertions concerning the special or unusual organisational features of the mine are correct. In particular, it is my experience that multi-skilling and team-based organisational models have been a common feature of the coal mining industry in Queensland since the early 1990's."41
[121] We do not deprecate the company's emphasis on safety, multi-skilling and other organisational matters. But on the material before us we are not persuaded that Hail Creek is unique such that it requires skills and personal characteristics different from the requirements of other open cut coal mines in Queensland. This conclusion is relevant when suitability of individuals for positions at Hail Creek is to be considered. It also means that experience at other mines is a proper consideration for suitability.
[122] It emerged during the course of oral argument that the parties broadly agreed with the proposition that "suitable" means capable of performing the inherent requirements of the position. The difference between the parties centres on what the inherent requirements are in respect of the positions in question.42
[123] For our part we think that in the context of the Preference Order "unsuitable" means incapable of performing the inherent requirements of the position.
[124] The phrase "inherent requirements" has been judicially considered to mean something that is essential to the position.43 To determine what are the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement of the particular position.44 As her Honour Gaudron J said in Qantas Airways Ltd v Christie:
"A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with."45
[125] In our view the inherent requirements of the positions in this case are as follows:
1. The ability to carry out the tasks encompassed by the particular employment. In the case of a Mobile Equipment Operator this means having the requisite qualifications and skills to operate the equipment in question.
2. The ability to work effectively in a multi-skilled team environment.
3. Implied in every contract of employment are obligations of fidelity and good faith,46 and mutual trust and confidence.47 It is also an implied warranty of every contract of employment that the employee possesses and will exercise reasonable care and skill in carrying out the employment.48 These obligations and warranties are inherent requirements of every position.49
4. To be able to perform the duties of their employment without unreasonable risks to their health and safety or to the health and safety of others.50
[126] The Hail Creek Job Demands Manual will be relevant to our assessment of whether the individuals concerned meet the inherent requirements of the relevant positions.
[127] It is convenient to deal now with the evidence of Messrs Davies and Hannigan in relation to this issue. Hail Creek Coal primarily relied on Mr Davies' evidence in support of its contentions about the inherent requirements of the positions in this case. Mr Davies was not cross-examined in respect of these issues.
[128] Despite the fact that Mr Davies' evidence was unchallenged we are not bound to accept it. The evidence amounts to little more than an assertion about the skills, characteristics and attributes that Mr Davies believes are required for the positions in question.
[129] Some of the matters specified are highly subjective and no real basis has been advanced for regarding them as inherent requirements for the positions. For instance, it is not apparent to us why a candidate for a position as a Mobile Equipment Operator must demonstrate "emotional intelligence and wisdom". Nor is it made clear how much emotional intelligence and wisdom is required. Some of the characteristics specified amount to little more than a thinly disguised attempt to reinstate managerial prerogative into the selection process in respect of the persons who are named in the Preference Order. In this context we note the following exchange with counsel for Hail Creek Coal during closing argument:
"VICE PRESIDENT ROSS: It's posited that an inherent requirement is to demonstrate comfort with Hail Creek Coal's business direction, culture and intent. How does one objectively satisfy that?
MR TUCK: Well, the way in which Mr Davies says that is determined is through the interview process, effectively, and the experiential test.
VICE PRESIDENT ROSS: So if the interviewers say, `We're not satisfied that this individual has demonstrated comfort with Hail Creek Coal's business direction, culture and intent,' that's the end of them, because they haven't met an inherent requirement of the position?
MR TUCK: If that's accepted to be an inherent requirement, then that would be the position. Yes."51
[130] It is of course open to an employer to specify a range of requirements which it considers relevant to the selection of new employees. But that does not mean that the employer's requirements are essential to the position. They are not necessarily inherent requirements.
[131] Other than the four matters we have identified we are not persuaded that the other matters referred to in Mr Davies' evidence are inherent requirements of the positions in question.
[132] We now turn to deal briefly with Mr Hannigan's evidence.
[133] Mr Hannigan is General Manager - Operations at the Hail Creek Mine and had been manager of the project from June 2001 assuming his current role on completion of construction of the mine in 2003. He is Site Senior Executive (SSE) under the CMSHA and has considerable experience in mining.
[134] Mr Hannigan's evidence was that Mr Davies had reported to him and kept him updated regarding the employment of candidates for employment at the Hail Creek Mine in various intakes in 2002 and 2003. As a consequence of the reports and updates it became apparent to him in early December 2003 that relief from the orders should be sought, at least in respect to some of the applicants. An application to that effect was made on 15 December 2003. On 17 December 2003 Mr Hannigan met with Mr Davies and discussed each of the applicants. Mr Davies recommended that Hail Creek Coal seek relief from the order in respect of ten named persons who are the subject of the application. Mr Davies outlined in general terms the basis on which he considered each of the applicants was unsuitable. Mr Hannigan accepted Mr Davies' recommendations.
[135] In his later statement, Mr Hannigan said that he remained fully cognisant of his responsibilities as SSE for the mine and implementation of the Safety Health Management Systems. He outlined the work the applicants would have to do and referred to the requirements set out in the job description manual. He said that as SSE of the Hail Creek Mine he believed that each of the persons in respect of whom the application for relief was sought was not suitable for employment at the Hail Creek Mine because they posed an unacceptable level of risk to themselves and, in some cases, to others at the mine.
[136] In cross-examination Mr Hannigan agreed he had still not read the earlier reports of Dr Fenner in respect of the individuals in these proceedings. He was aware of the documents, but he had not read them. He was not aware that in August 2003 Dr Fenner had ticked the box "is fit to undertake the proposed current position" in respect of a number of the persons in these proceedings. He was told the people were not suitable for work because of a number of issues.
[137] Mr Hannigan could not say whether the results of various assessment tests that were presented to him were raw scores or percentile scores. In regard to his procedure he said that people make recommendations to him, he challenges them on their recommendations so that he can understand their reasoning and then if the response makes sense he will accept the recommendation.
[138] It is plain from the summary just completed that Mr Hannigan relied on the recommendations of Mr Davies for his decision on whether or not the persons named in the current application were suitable for the positions on offer.
[139] Hail Creek Coal submitted that in light of the requirements of the CMSHA and the obligations placed upon him as the SSE, Mr Hannigan will be in an invidious position if any of the employees found by the NMA to be unfit for work, are found by the Commission to be suitable and Hail Creek Coal is therefore required to employ them.
[140] The difficulty with this submission is that it assumes that there is a rational and logical basis for Dr Fenner's assessment of the individuals concerned. For reasons we set out later, we are not satisfied that this is the case. In circumstances where the report of the NMA is discredited we are not persuaded that Mr Hannigan would be in an invidious position, as contended by Hail Creek Coal, in the event that we refused to grant the relief sought.
4.2 THE RELEVANCE OF THE PSYCHOMETRIC TEST RESULTS
[141] The CFMEU contends that the purpose of the psychometric tests is to help identify those who are likely to perform best in the job and they have nothing to do with the suitability of the challenged persons to do the job. In the alternative it is argued that the material is of such a theoretical or esoteric nature as to be incapable of assisting in the determination of suitability.
[142] The CFMEU relied on the evidence of Dr Elizabeth Allworth in support of its contentions.52 Dr Allworth is a principal of Allworth Juniper, organisational psychologists. Her professional qualifications consist of a PhD from the School of Behavioural Sciences (Macquarie University), a Master of Psychology (Applied) (1st class Hons.) (University of New South Wales) and a Bachelor of Arts (Psychology) (1st class Hons.) (Australian National University). A full statement of Dr Allworth's qualifications, experience and published work is appended to her witness statement and marked with the letter "A". Dr Allworth was not cross-examined in respect of her evidence.
[143] Dr Allworth provided a report setting out her opinion with respect to the relevance of the psychometric tests used by Hail Creek Coal in its August 2003 assessment process. The questions addressed in the report are:
1. Are the psychometric tests used for the selection of the 10 former employees relevant to the role of Mobile Equipment Operator at Hail Creek both in terms of the abilities and competencies they measure and the level at which they are pitched?53
[144] Dr Allworth concluded that, assuming that it is appropriate to select the ten applicants rather than directly reappoint them, the choice of psychometric tests is "generally defensible in terms of their relevance to the role of Mobile Equipment Operator and its underlying competencies, their psychometric properties and their application in a broader selection process involving multiple selection methods".54
[145] In her report Dr Allworth also observes that those applicants who receive higher scores on the tests are likely to perform better on the job than those with lower scores. According to Dr Allworth:
"In a selection context, the employer would be justified in preferring those applicants with strong results across the psychometric testing as these are the ones that are likely to learn more quickly, to be more technically proficient and to demonstrate the competencies assessed through the psychometric testing process."55
[146] The second question answered in Dr Allworth's report was:
2. Does performance on the tests provide a valid indication of the individual's ability to successfully undertake the requirements of the role of Mobile Equipment Operator at Hail Creek? That is, would a candidate who performs poorly on the tests be unable to do the job?56
[147] In respect of this question Dr Allworth concludes that:
". . . in the absence of local validation data, it is not possible to infer that applicants with lower scores on the tests will be unable to perform the requirements of Mobile Equipment Operator and therefore unsuitable for the role. I believe these claims can only be justified if it is possible to show empirically that applicants who score below a particular percentile ranking are also observed to be unable to perform the role."57
[148] Dr Allworth was asked:
3. What contribution do the tests make in predicting the performance of individuals who already have experience and demonstrated capabilities in similar roles within the company?58
[149] Dr Allworth's conclusions in respect of this issue are as follows:
"Psychometric tests such as those used with the Hail Creek applicants can add value in the selection of experienced candidates by differentiating those who are expected to show higher levels of performance from those who are likely to perform less well. If the selection of the applicants who are likely to perform best is the goal of the employer, then the psychometric tests could have utility. However, their contribution is marginal, and possibly meaningless, if the person has already demonstrated the capacity to fulfil the requirements of the role and relative performance effectiveness is not in question, as indicated in the Preference of Employment Order."59
[150] Hail Creek Coal seeks to rely on the psychometric test results in the assessment of the suitability of the ten persons who are the subject of these proceedings.
[151] Hail Creek Coal relied on the evidence of Anne Carol Walters in support of its contentions. Ms Walters is a registered psychologist with a Bachelor of Science (Psychology) (Hons) (University of Wales) and a Master of Science (Neurophysiology) (London Guildhall University). A full statement of Ms Walters' qualifications and experience is set out at paragraphs 2-16 of her statement.60 Hail Creek Coal does not rely on Ms Walters as an expert witness, rather she is advanced as a witness of fact in relation to the tests she conducted and the results obtained.61
[152] In the course of her statement Ms Walters describes the psychometric tests used in the Hail Creek Mine assessment process in August 2003. The test results for each of the ten individuals who are the subject of these proceedings are annexed to her statement.62 We have referred to this material earlier in our decision.
[153] In terms of assessing the results of the psychometric tests Ms Walters says:
"55 The abilities test results are not measured in terms of pass or fail. They are measured in terms of a candidate's percentile ranking against a general population group. For each of these tests a range of population groups is available from the original publisher of the test. A candidate's performance in the tests is rated relative to the population group against which the candidate is assessed.
56 The population group used for the percentile rankings for the three abilities tests used was a relevant group of applicants for basic technical and operator roles within the mining industry in Australia. This population consisted of approximately 400 applicants for positions at mine sites in Australia who were short listed for assessment centres. This enables the comparison not only of each applicant's scores on a single test but also of an individual applicant's strengths and weaknesses relevant to that group. As this norm group is constructed from applicants for basic operator roles within the mining industry, this also allows for the comparison of an applicant with a large sample of his peers."63
[154] In our view the following findings may be made on the basis of the material before us:
1. The psychometric tests used are relevant to the role of Mobile Equipment Operator and its underlying competencies.
2. The test results measure a candidate's percentile ranking against a general population group. The results are not measured in terms of pass or fail. The population group used for the percentile rankings for the three abilities tests used by Hail Creek Coal was a group of about 400 applicants for basic technical and operator roles at mine sites in Australia who were short listed for assessment centres.
3. Applicants who receive higher scores on the tests are likely to perform better on the job than those with lower scores.
4. Psychometric tests enable predictions about which applicants are likely to perform better than others on the job, but they do not in themselves enable assessments to be made about a candidate's capacity to actually do the job. Below average performance on a test does not necessarily predict below average performance on the job or inability to do the job. It is feasible that a candidate with a below average result on the test could perform adequately on the job.
[155] In assessing the relevance of this material it is important to recognise that the issue before us is whether any of the ten individuals concerned are "unsuitable" for the position for which they have applied. The question is not whether the individuals concerned were the best candidates for the vacancy. This is made clear from clause 5 of the Preference Order which states:
"The onus of establishing unsuitability shall lie with Hail Creek. In the event of such an application the test that Hail Creek will be required to meet will not be that other applicants are more suitable for the position but rather that the relevant person is unsuitable."
[156] Contrary to the CFMEU's contentions we are not of the view that this material has nothing to do with the suitability of the challenged persons to do the job for which they have applied. However, we recognise that the material does not provide a direct measure of a candidate's capacity to actually do the job. Rather the results measure a candidate's percentile ranking against a reference group and enable predictions to be made about which applicants are likely to perform better than others.
[157] Having regard to the nature of the task before us we are of the view that this material is of some, albeit limited, relevance. We have accorded little weight to the results of the psychometric tests.
4.3 THE ACCIDENT RISK MANAGEMENT QUESTIONNAIRE
[158] Mr Davies gave evidence concerning the ARM-Q and the reasons behind Hail Creek Coal's decision to use it during the assessment process. Mr Davies said that:
"Hail Creek Coal deems it essential to be able to select employees on their attitudes to safety and their safe working attributes, both as part of its health and safety plans and the CMSHA. An applicant's safety attitudes and attributes are gauged by using what is called the Accident Risk Management Questionnaire (ARMs).
ARMs is a tool developed by safety professionals and psychologists which focuses on accident prevention by assessing peoples' beliefs and attitudes to safety.
In the ARMs assessment the applicant completes a questionnaire that identifies their approach and reaction to safety issues. I cannot produce a copy of the test as it is a proprietary product protected by confidentiality obligations imposed upon the administrators licensed to use the test.
The applicants' results were returned to Hail Creek. For the 16 Applicants they were returned on a sheet setting out the results of three different applicants on each form, with applicants' names codified to protect identity."64
[159] It will be recalled that we upheld an objection by the CFMEU to that part of Mr Davies' evidence which sought to express an opinion about the validity of the ARM-Q test. In rejecting that part of Mr Davies' evidence we provided Hail Creek Coal with an opportunity to bring forward admissible evidence in relation to the ARM-Q. A further statement of Mr Davies, dated 16 February 2004, was subsequently tendered.65 Annexed to that statement is a copy of the ARM-Q test by a firm of management consultants called Prospect Consulting.66 Mr Davies could not recall who he received this document from, nor was anyone from Prospect Consulting called to give evidence.
[160] The Prospect Consulting document says, among other things:
- accept personal responsibility for their own behaviour and results,
- avoid risks and follow safety procedures,
- manage their own stress and performance,
- take professional and quality approach to driving, and
- maintain a quality orientation;
Case studies relating to MIM Holdings Oakey Creek Coal Mine and BHP also form part of the document.
[161] The Prospect Consulting document is, in fact, a promotional document extolling the virtues of the ARM-Q. It encourages readers who would like to "positively influence your organisation and achieve similar results" to "act now and discuss your needs with a Prospect consultant".
[162] Ms Anne Carol Walters, who is a registered psychologist, administered the ARM-Q to the Hail Creek applicants by distributing the questionnaire, taking the groups through the relevant instructions and collecting the completed answer sheets. Ms Walters also gave this evidence concerning the ARM-Q:
"The ARMs questionnaire results are not reported as a raw score and a percentile ranking. The answer sheets for the ARMs questionnaire are assessed by a formula protected by the company that developed the test, People & Quality Solutions Pty Ltd. I am licensed to administer the questionnaire. As set out above, I do not assess the ARMs questionnaire answer sheets. I do not obtain the results of the ARMs
questionnaire. I believe that Hail Creek Coal receives the outcomes of the tests from People and Quality Solutions Pty Ltd through Cadden Crowe.
The ARMs questionnaire results are reported for each candidate as one of:
(1) `invalid profile' which means the results could not be interpreted. This is either because of distortion (where there is a high impression management score suggested from the results pattern) or because of accuracy (which is where the responses are in an inconsistent pattern, or the candidate has answered "Strongly disagree" to a question in the questionnaire which asks whether the candidate has answered the questions truthfully);
(2) `not recommended';
(3) `recommended with training';
(4) `recommended';
(5) `highly recommended for a safety sensitive position'."
[163] We were provided with copies of the results of the ARM-Q for each of the individuals the subject of these proceedings.
[164] Dr Elizabeth Allworth, an Organisational Psychologist called by the CFMEU, was of the opinion that the ARM-Q could be justified, as safety awareness and risk management are core competencies for the role. Dr Allworth makes no distinction between the other psychometric facts and the ARM-Q in her general assessment:67
"If the purpose is to help identify those who are likely to perform best on the job, the psychometric tests completed by the Hail Creek applicants and the normative standards applied can, in my opinion, be justified.
However, I consider there is no justification for concluding that the results of any of the applicants tested would deem them to be unable to perform, or unsuitable for, the role of Mobile Equipment Operator. Such a claim can only be made if there is empirical evidence showing that a particular pattern of results and scores below a certain level or, these tests is significantly correlated with failure to acquire the skills required to perform effectively in the role. I am not aware of such data being available. I note that Anne Walters acted appropriately in this regard by reporting comparative results only and avoiding comments about the applicants' actual ability to perform the target role."
[165] Professor Mark Anthony Griffin is Professor of Management in the Faculty of Business at Queensland University of Technology. He gave evidence in respect to the ARM-Q, on behalf of the CFMEU.68
[166] Professor Griffin is experienced in the use of recruitment and training tools. He says that such tools must be validated and it is important to show that applicants' scores on the tool are predictive of subsequent performance on relevant tasks. For everyday tasks there is "normal" distribution across the population. For safety outcomes such as accidents the situation is more complex. After reviewing the available material Professor Griffin concludes
that none of it provides specific evidence that the ARM-Q has been properly validated for use as a selection tool.
[167] In cross-examination Professor Griffin conceded that he had no practical experience with the ARM-Q. He also conceded that he had no knowledge of the work performance criteria or safety systems in place at Hail Creek. He agreed it was difficult to get statistical data and that in his evidence he was talking about the general principles of selecting someone on an attitude or awareness.
[168] This application is to exclude people from the benefits of the Preference Order. Generally the Commission would not interfere with an employer's right to choose its employees, but the context of these proceedings is quite different. Here the Commission has decided that Hail Creek will give preference to the individuals named in the Preference Order. Relief is available if the Commission concludes that an individual is unsuitable. The order makes it clear that Hail Creek Coal bears the onus of proving unsuitability.
[169] We do not believe that Hail Creek Coal has met its obligation to provide us with a sufficient level of understanding of the ARM-Q such that we could confidently rely upon it in determining the application before us. On the limited material before us we are not persuaded that the ARM-Q has been properly validated for use as a selection tool.
[170] We note that the Prospect Consulting document also says:
"Selection
The Accident Risk Management Questionnaire is used widely around the world to identify higher risk applicants prior to placing them into safety sensitive positions. Higher risk areas and applicants can be identified prior to placement into hazardous environments and assist new employee selection, orientation and training. The ARM-Q is one of the most objective and non-discriminatory methods of selection. However, it should not be used as the only factor in making a hiring or placement decision. The ARM-Q should be used in conjunction with other measures such as interviews, reference checks, work history, job knowledge, safety record, training, etc. The ARM-Q can only used with existing personnel as a research or safety awareness training and development tool." [emphasis added]
[171] Each of the individuals who are the subject of these proceedings has extensive experience in the coal mining industry. All of them have previously worked at Blair Athol. It was open to Hail Creek Coal to seek to confirm the results of the ARM-Q assessments by reference to the "work history" and "safety record" for the relevant individuals. Such data would have been available to Hail Creek Coal. Indeed the safety record of Mr Finger has been relied on by Hail Creek. Mr Finger was questioned about three safety matters (one in each of 1995, 1996 and 1997). We think that it is significant that, for the relevant individuals, Hail Creek Coal did not provide the individuals' "safety records" in order to support its contention that weight should be attached to the results of the ARM-Q assessment. The failure to provide such evidence leaves it open to us to draw the inference that it would not have assisted Hail Creek Coal's case. For the foregoing reasons we are not prepared to attach weight to the results of the ARM-Q assessment.
4.4 EMPLOYER ACCESS TO MEDICAL RECORDS - MUTUAL TRUST AND CONFIDENCE
[172] In respect of seven of the persons who are the subject of these proceedings69 Hail Creek Coal contended that one of the reasons why they were not considered suitable for employment was their refusal to consent to providing Hail Creek Coal with access to their medical records. Mr Davies sent each of the applicants concerned a letter in the following terms:
"As you are aware, in compliance with the order of the AIRC on 23 July 2003, HCC is presently assessing your application for employment with it.
One issue relevant to your application is your fitness for work. As you may be aware, under the legislation which controls the coal industry, it is a requirement that people who work in coal mines only do so if they are fit and will not affect the safety and health of others.
You saw the Nominated Medical Advisor, Dr Fenner, as part of the interview process.
Can you please sign and return the enclosed consent authorising Dr Fenner to release to HCC his file concerning his consultation with you and any other reports/fitness evaluations held by him about your fitness for work in the coal industry, so that HCC can continue its assessment of your application."70
[173] Seven of the applicants refused the company's request. For example, Mr Albert's letter in reply to that sent by Mr Davies says:
"I refer to your recent correspondence requesting me to consent to authorise Dr Fenner to release to Hail Creek Coal (HCC) details of the health assessment he conducted.
Please be advised that I have consulted with my Union in respect to this request and as a consequence of that advice I reply as follows:
I do not consent to Dr Fenner releasing that information to HCC and I draw your attention to s52 of the `Coal Mining Safety and Health Regulation 2001' in this regard."71
[174] The other applicants who refused to comply with Hail Creek Coal's request replied to Mr Davies' letter in similar terms.
[175] Hail Creek Coal submitted that the refusal of seven of the applicants to consent to providing the company with access to their medical records was relevant to an assessment as to their suitability for employment. It was argued that such refusal showed that "it would not be possible to establish an employment relationship of trust and confidence between [the applicant] and Hail Creek."
[176] As a general proposition we accept that mutual trust and confidence is a necessary ingredient in every employment relationship. In 1933, in Blyth Chemicals Ltd v Bushnell, Dixon and McTiernan JJ expressed the view that "conduct which is . . . destructive of the necessary confidence between employer and employee is a ground for dismissal."72 More recently, in Concut Pty Ltd v Worrell, Gleeson CJ, Gaudron and Gummow JJ observed, in obiter dictum:
"Formulations of the obligations of an employee in terms such as those in . . . Blyth Chemicals may be understood . . . as the re-expression of equitable obligations in terms of implied contacts. If so, the importation is well established and beneficial, and nothing turns upon it for present purposes."73
[177] In the same case Kirby J went further, stating that:
"The ordinary relationship of employer and employee at common law is one of importing implied duties of loyalty, honesty, confidentiality and mutual trust."74
[178] There are also numerous authorities of the Industrial Relations Court of Australia,75 the Federal Court,76 State Supreme Courts77 and the Commission78 which have accepted that it is an implied term of every employment contract that "an employer would not, without reasonable cause, conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee."79 While the implied term is usually formulated as imposing obligations on the employer, in truth the obligation is a mutual one.
[179] While we accept that "mutual trust and confidence" is a necessary ingredient in the employment relationship it is important to recognise that these words represent a collection of legal rights and obligations, and do not refer to the ingredients of a personal relationship. As McCarry observed:
"Moreover the words `trust and confidence', just like the employee's reciprocal duties of `fidelity and good faith', do not now refer to the ingredients of a personal relationship, even if they once did. The words now represent, in shorthand form, a bundle of legal rights which have more to do with modes of behaviour which allow work to proceed in a commercially and legally correct manner than with ingredients in a personal relationship."80
[180] In terms of legal rights and obligations neither party to an employment contract is obliged to disclose facts material to the decision of the other party about whether to enter into that contract. Contracts of employment are not ubberimae fidei contracts.81
[181] In the circumstances of this case it is important to recognise that in deciding not to consent to the release of their medical assessment file each of the applicants relied on s.52 of the CMSHR. This provision appears in Division 2 of Part 6 of the Regulation which provides for a Coal Mine Workers' Health Scheme. Section 52 protects the confidentiality of medical records. Subsection 52(1) provides:
"A person must not disclose to anyone, other than under this section, the contents of a coal mine worker's medical record obtained by the person under this division."
[182] The Regulation goes on to specify the very limited circumstances in which the contents of a worker's medical record may be disclosed to someone other than the worker concerned.
[183] The contents of a medical record may be disclosed to someone by a NMA or by the Chief Executive of the department, with the written consent of the worker concerned (ss.52(2) and 3(b)). The Chief Executive may also disclose such a record to a person for research purposes, "but only if the identity of the worker is protected" (s.52(3)(c)).
[184] Subsection 52(4) provides that the Chief Executive may disclose the contents of a worker's medical record, without the worker's consent, if:
"(a) the doctor or hospital needs to obtain the contents to treat the worker; and
(b) the worker is unable to give the consent."
[185] For the purpose of the section a "medical record" is defined to mean "personal medical results or clinical findings obtained from a health assessment of the worker".
[186] As we have set out earlier in our decision a feature of the Coal Mine Workers' Health Scheme is that the NMA determines whether a worker is fit to undertake a particular position. The NMA advises the employer or prospective employer that in the NMA's opinion the worker is fit to undertake the position in question, with or without restrictions. This is done by providing the employer with a completed form, not by disclosing the worker's personal medical results or clinical findings to the employer.
[187] Given the statutory scheme we fail to see how it can be reasonably said that the refusal of seven of the applicants to consent to the release of their medical records to the company is relevant to an assessment as to their suitability for employment. The statutory scheme provides that the NMA assesses a worker's fitness for a particular position. The employer may rely on that assessment.
[188] It also needs to be borne in mind that each of the seven workers are simply asserting their statutory right to have their medical records kept confidential. If the assertion of such a right has a detrimental impact on their employment prospects then the statutory scheme is undermined.
[189] We have also had regard to the fact that Hail Creek Coal has been inconsistent in the approach it has taken to this issue. In his evidence Mr Davies conceded that Mr Smith, one of the persons mentioned in the Preference Order, was offered a position at Blair Athol despite his refusal to release his medical assessment to the company.82 No explanation was provided by Mr Davies as to why Mr Smith's refusal to accede to the company's request did not create an impediment to his employment, unlike the position taken by the company in respect of the other seven persons who refused to release their medical records.
[190] We are not persuaded that the refusal of seven of the applicants to consent to providing the company with access to their medical records is relevant to an assessment of their suitability for employment.
4.5 THE MEDICAL EVIDENCE
4.5.1 Dr Fenner's Evidence
[191] We note at the outset that Dr Fenner is proffered as a witness of fact. He is not put forward as an expert in occupational medicine, but rather as a witness of fact in his role as an NMA in respect of the tasks he undertook.
[192] In response to a question put about whether Dr Fenner was being put forward as an expert in occupational medicine, Mr Tuck said:
"No. He's being put forward as a witness of fact, based - in his role as an NMA . . . on the tasks that he undertook . . .
But it doesn't diminish their evidence to suggest that they're not witnesses - expert witnesses because of the way in which the Evidence Act ought to be read. In my submission, that's irrelevant. That draws a distinction between someone who, for example, is a doctor who has been consulted by someone and he's examined them and is giving evidence about that and an expert coming from outside of the process and simply passing an expert view in relation to a position. Certainly, Dr Fenner is put forward as a qualified medical practitioner with a long history in occupational medicine who acts as an NMA and undertook tests and his findings in relation to those tests. It doesn't diminish his status to suggest that he's paid or is engaged by Hail Creek to do that." 83
[193] There is some ambiguity about the manner in which Hail Creek Coal seeks to characterise Dr Fenner's evidence. In its written submissions in respect of a number of the individuals who are the subject of these proceedings, Hail Creek Coal relies on Dr Fenner's "professional opinion" that the person concerned is unfit for work. On the basis of Mr Tuck's submission it would seem that Dr Fenner's evidence is adduced to establish that he conducted certain tests in the course of his medical assessment of the individuals concerned. In a number of instances Dr Fenner concluded that the individual concerned was unfit for work and/or that there were restrictions on the type of work which they could carry out. Hail Creek relies on the fact that Dr Fenner reached such a conclusion.
[194] Given their statutory role, (and provided that the statute has been properly applied), the fact that an NMA has expressed an opinion about an individual's health and capacity to work in a coal mine would ordinarily carry significant weight.84
[195] But the fact that Dr Fenner, as the NMA, has expressed an opinion in respect of the individuals before us is not determinative of the question of whether or not the individuals are fit to undertake the relevant positions. Indeed it would be surprising if the position were otherwise. If Dr Fenner had been called for the purpose of giving an expert opinion his opinion would be judged like any other evidence. It must be comprehensible and reach conclusions that are rationally based. The process of inference that leads to the conclusions must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about their reliability.85 For an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence.86 Further, the degree to which an expert is objective and impartial will impact on the evaluation of the probative value of the expert evidence.87
[196] We have applied the same approach to our assessment of Dr Fenner's evidence in this case.
[197] A number of considerations have led us to place little weight on Dr Fenner's evidence. We mention three general matters before turning to some specific considerations relating to the health assessments reports in respect of the individuals who are the subject of these proceedings.
[198] The first general observation we make is that Dr Fenner was not an impressive witness. On occasions he was argumentative and non-responsive to questions put,88 evasive89 and changed his evidence during cross-examination.90
[199] The second general observation is that the evidence leads us to conclude Dr Fenner has a poor understanding of the Coal Mine Workers' Health Scheme and his obligations as an NMA within that scheme.
[200] We have already commented on Dr Fenner's inappropriate disclosure of clinical findings. The evidence establishes that Dr Fenner provided clinical findings and/or medical records to the employer without the written consent of the mine worker. This is inconsistent with the Regulation. Dr Fenner places clinical findings on the Section 4 Report that is forwarded to the employer. Further, the evidence in this matter establishes that, without the requisite written consent, Dr Fenner discussed the clinical findings and/or medical records arising from the August health assessments of the individuals the subject of these proceedings, with Mr Davies of Hail Creek Coal. Such discussions took place without the knowledge or permission of the individuals concerned. To the extent that the discussions related to the appropriate duties for the individual, there was no corresponding discussion between the NMA and the relevant mine worker as is required by Regulation 45(3).
[201] It is also of concern that Dr Fenner provides "individual" health assessments to people who are simply looking for work in the Queensland coal mining industry. At the time such health assessments are undertaken the individuals concerned do not know the position or mine in which they may eventually work nor do they know the identity of the employer for whom they may eventually work. Such a health assessment is clearly not consistent with the Health Scheme.91 We refer to this matter later in our decision.
[202] We also find it disturbing that, on his own evidence, Dr Fenner always ticks the "No" option in relation to the questions directed to the EMO or NMA at points 3.17 and 3.18 of the approved form, irrespective of his concluded view arising from the health assessments. Those questions are repeated in full in paragraph [100] above. The questions are important. Dr Fenner's somewhat frivolous approach to these questions is inappropriate and leads to farcical outcomes. One of the questions in 3.18 of the approved form is:
"Is there any reason why the coal mine worker may not be fit for duty in relation to work:
. . .
(h) in confined spaces"
[203] Dr Fenner in assessing Mr Barnes answered "No" to that question suggesting that Dr Fenner's view was that Mr Barnes was fit for duty in relation to work in confined spaces. Yet Dr Fenner noted on Mr Barnes' Section 4 Report the following restriction:
"not to enter areas of restricted access, or where rapid egress may be needed."
[204] Leave aside the second part of the restriction, there is little difference between a "confined space" and an "area of restricted access". If there is a difference, we think that it is most likely that an area of restricted access would include a confined space. The responses given by Dr Fenner on the approved form in respect of Mr Barnes are contradictory. Frankly, they result in a nonsense.
[205] There are many similar examples. The August Section 4 Report in respect of Mr Walsh has the following comment:
"Back Weakness needs weight restriction."
[206] Leave aside that Dr Fenner as the NMA is supposed to determine the restriction on the weight to be lifted by Mr Walsh, at question 3.18 Dr Fenner indicates that there is no reason why Mr Walsh is not fit for duty in relation to work performing heavy manual handling. Mr Halverson received a similar clearance at 3.18 in his assessment, however his Section 4 Report states that he should:
"Avoid lifting ® arm till settled."
[207] Dr Fenner conceded in his evidence that he must accept the criticism that arises from the foregoing inconsistencies. We agree. Dr Fenner's inconsistent and contradictory approach to the completion of the approved form in his assessment of mine workers diminishes his standing as an NMA and diminishes the weight to be attached to his evidence.
[208] The third general matter relates to Dr Fenner's evidence regarding his qualifications. During the course of his cross-examination Dr Fenner was taken to a document published by the Australasian Faculty of Occupational Medicine (the Faculty) called "Guidelines for Health Assessment for Work".92 The Faculty is part of the Royal Australasian College of Physicians and is the body which represents specialist occupational physicians. The part of the document to which Dr Fenner was referred states:
"Whilst many medical practitioners with both interest and experience in occupational medicine describe themselves as occupational physicians in Australia and New Zealand only those accredited by the Australian Faculty of Occupational Medicine are able to demonstrate in a publicly acknowledged standardised manner their level of expertise."
[209] After being taken to this extract the following exchange took place between Mr Slevin, counsel for the CFMEU, and Dr Fenner:
"MR SLEVIN: You're not a member of the Australian Faculty of Occupational Medicine are you, doctor?
DR FENNER: I am. I am.
MR SLEVIN: You are?
DR FENNER: And the Australian and New Zealand Society for Occupational Medicine.
MR SLEVIN: I don't think that appears in your CV, doctor?
DR FENNER: Possibly not. It gets left out a lot.
MR SLEVIN: It gets left a lot. So you've just not included it in your CV?
DR FENNER: Possibly not. It is in my statement somewhere that I'm an accredited - I can take trainees, supervised trainees as a supervisor of the Australian Faculty.
MR SLEVIN: Are you referring to paragraph 10 of your statement where you say you're an approved - you're approved as an accredited supervisor of trainees in occupational health by the Australian Faculty of Occupational Health. Is that what you're referring to?
DR FENNER: Yes.
MR SLEVIN: And you're suggesting that it's located in Melbourne. If you to the front of the Guidelines for Health Assessment. The Australasian Faculty of Occupational Medicine is located in Sydney. So it's a different name and a different place but you contend it's the same body?
DR FENNER: Yes."
[210] Dr Fenner's Curriculum Vitae is attached to his statement.93 It states that in 1993 he "became an associate of the Australian College of Occupational Health". At paragraph 10 of his statement he says:
"I am also approved as an accredited `Supervisor' of trainees in Occupational Health by the Australasian Faculty of Occupational Health, which is located in Melbourne and forms part of the Royal Australasian College of General Practitioners."
[211] As is apparent from his cross-examination the body Dr Fenner is in fact referring to in his statement is the Australasian Faculty of Occupational Medicine.
[212] After Dr Fenner's evidence concluded the parties were asked to confer with a view to clarifying Dr Fenner's status within the Faculty.
[213] On the last day of the proceedings Mr Tuck, counsel for Hail Creek, tendered a document from the President of the Faculty clarifying Dr Fenner's status in the following terms:
"This is to confirm that Dr Peter Fenner is an Affiliate member of the Australasian Faculty of Occupational Medicine.
Dr Fenner has been a Financial Affiliate member of AFOM since 1994. There are currently three categories of membership, although the Faculty no longer grants Affiliate status:
Fellow (FAFOM)
Affiliate Member
Trainee
An Affiliate member of the Faculty is a Registered Medical Practitioner with an expressed interest in occupational medicine. The category of Affiliate member of the Faculty in no way bestows or implies specialist status. An Affiliate member of the Faculty who wishes to achieve specialist status must transfer from the designation of Affiliate and enter the Training program."
[214] The letter from the Faculty raises serious doubts about the accuracy of Dr Fenner's statement that he is accredited by the Faculty to supervise trainees in occupational medicine. Dr Fenner is only an affiliate member of the Faculty, a status that "in no way bestows or implies specialist skills". If he wished to achieve specialist status he would be required to enter the training program, as a trainee. Yet Dr Fenner would have us believe that he has been approved as an accredited supervisor of such trainees. We think this is improbable.
[215] It seems to us that Dr Fenner has either exaggerated his standing within the Faculty or has been careless with respect to the statements he has made regarding his professional status. Whichever view one takes it weakens the credibility of his evidence.
[216] In addition to these general observations, there are three specific matters relating to the health assessments before us which have led us to attach little weight to Dr Fenner's evidence, namely:
[217] We will deal with each of these matters in turn.
4.5.1(i) Inconsistencies in the Section 4 Reports
[218] In August 2003 Dr Fenner issued Section 4 Reports for each of the ten people who are the subject of these proceedings. In eight of those Section 4 Reports Dr Fenner ticked the box indicating that "at the date of the examination, the coal mine worker is fit to undertake the proposed/current position". In seven of those eight Dr Fenner also ticked the box indicating that "the coal mine worker has a condition which results in the following restriction/s". Clearly Dr Fenner, in completing the Section 4 Reports in August 2003, certified that provided certain restrictions were observed, eight of the individuals were fit to undertake the proposed position. The eight individuals were Messrs Albert, Appleton, Barnes, Crichton, Finger, Halverson, Lindley and Mitchelson. Dr Fenner confirms this in his affidavit94 at paragraphs 51 to 53:
"51 When I complete the Report, I state whether the candidate:-
51.1 is fit to undertake any position. I never tick this box; or
51.2 is fit to undertake the proposed/current position. I only ever pick this category alone if the candidate has absolutely no health issues at all; or
51.3 has a condition which results in the following restriction(s); or
51.4 a combination of the above.
52 It is my usual practice, and is consistent with the practice of the majority of NMAs, when completing a Report which contains restrictions to tick two boxes on the Report, being:
52.1 the box indicating the coal mine worker is fit to undertake the proposed position; and
52.2 the coal mine worker has a condition which results in the following restrictions.
53 This is because, provided the restrictions are adhered to, the coal mine worker is fit for the position for which he or she has been assessed. I also identify in the Report whether a further review is necessary. On occasions I may wait for the candidate to forward me extra information, such as HBA1c results before I complete the Report."
[219] On 16 January, after receipt of the results of the functional capacity tests conducted by Ms Benstead, Dr Fenner issued further Section 4 Reports for Messrs Halverson, Cusack and Walsh. Dr Fenner did not discuss any of the restrictions in the January Reports with the relevant applicant.
[220] In February 2004 Dr Fenner, relying on the medical records and the clinical findings made in the August 2003 assessments (and Ms Benstead's reports), completed "revised" Section 4 Reports for eight of the people who are the subject of these proceedings.
[221] In the February Section 4 Reports Dr Fenner assessed five people (Messrs Barnes, Cusack, Halverson, Mitchelson and Walsh) as "unfit for work"; one person (Mr Albert) was fit to undertake the proposed position; there were no revised Section 4 Reports for two people (Messrs Crichton and Finger) and two people (Messrs Lindley and Appleton) were found to have a condition that required restrictions to be applied.
[222] Other than the report of Ms Benstead regarding Mr Halverson, there is no additional information that might explain the significant change in Dr Fenner's assessment reports of August 2003 and February 2004 for Messrs Barnes, Halverson and Mitchelson given that they are based on the same assessment, medical records and clinical findings. For example, Mr Barnes' August 2003 assessment was that he was fit to undertake the proposed position with the following restrictions:
"1. Weight 128 - not to use equipment with 120k or less rating.
2. Glasses near vision
3. BMI 40 - not to enter areas of restricted access, or where rapid egress may be needed."
[223] A comment (rather than a restriction) was also included which stated:
"76/90 - Fair - weak pelvics
Knees good."
[224] No further review was required by Dr Fenner.
[225] Without any further examination of Mr Barnes, Dr Fenner's "revised" February 2004 Section 4 Report for Mr Barnes states:
"_ Not to drive, climb or use any equipment without rating 130kg maximum load
Working postures trunk and neck
Manual handling
Unfit for work"
[226] Dr Fenner's evidence in relation to his changed view between August and February on Mr Barnes' fitness for work is:
"172 . . . I state that Mr Barnes is unfit for work.
173 This is my opinion because if Mr Barnes tries to perform a number of the duties for the proposed position he will be placed at increased risk of injury. As indicated in my earlier reports, there is also a restriction on Mr Barnes' ability to move freely around the Hail Creek mine as he would be required to do if he was an operator." [emphasis added]
[227] As an NMA Dr Fenner should know that the Health Scheme does not provide to an NMA the discretion to designate a mine worker as "unfit for work". This is discussed in paragraphs [103-105] above. In the February 2004 Section 4 Report in respect of Mr Barnes Dr Fenner introduces a new restriction, if indeed it is a restriction, of:
"Medium risk of injury if has to spend long periods operating machinery, particularly up to 11 hours shifts"
[228] There is no similar restriction or comment in the August Section 4 Report. Both reports are based on the same medical records and clinical findings. We are left with the choice that the August 2003 Section 4 Report by Dr Fenner was deficient or that the February 2004 report has been expanded in order to better support Hail Creek Coal's objective of not being required to employ Mr Barnes. The same choices are open in relation to all of the new
restrictions or comments, including the transformation of Dr Fenner's overall assessment that Mr Barnes was "fit to work in the proposed position with restrictions" in August 2003 to "unfit for work" in February 2004.
[229] Mr Halverson's circumstances also demonstrate Dr Fenner's inconsistent and inappropriate approach to the Health Scheme Medical Assessments and the Section 4 Reports. They also reveal the uncertainty that arises from such an approach.
[230] Mr Halverson attended Dr Fenner for his Health Scheme Assessment on 29 August. Dr Fenner issued a Section 4 Report for Mr Halverson on that day, in which Dr Fenner certified that Mr Halverson:
"_ was fit to undertake the proposed position;
· has a condition which results in the following restrictions:
1) Glasses for near vision
2) Right shoulder joint pain and weakness - avoid lifting right arm till settled.
3) Suggest EST before job starts.
4) HBAIC from GP 9.6 (Aug 2003)
Back 72/90 fair.
Knees good."
[231] Dr Fenner also indicated that a further review was necessary:
"_ audiogram after 3 months work;
· when Right shoulder strong"
[232] Dr Fenner's evidence is that he finalised the Report, discussed it with Mr Halverson, asked Mr Halverson to sign it and provided a copy to Mr Halverson. Dr Fenner's evidence continues:
". . . I did not sign off on the Report down the bottom, where I have crossed out my signature, because I required the further information from the EST and from the right shoulder review to form a view as to whether Mr Halverson was fit for work. This is an example of a situation where Mr Halverson may only be fit for work if all the matters I have identified in the restrictions are attended to and I have undertaken a further review based on the further information I receive."
[233] We were not told when Dr Fenner crossed out his signature on the Section 4 Report. We assume it was immediately after he signed it and had indicated on the Report that Mr Halverson was fit to undertake the proposed position. We make this assumption because Dr Fenner provided a copy of the Report to Mr Halverson immediately following the Assessment on 29 August. We have assumed that the copy given to Mr Halverson (which is not in evidence) is the same as the one held by Dr Fenner (ie that both have Dr Fenner's signature crossed out).
[234] We also note that on the copy of the Section 4 Report that has been provided to us that it is not readily apparent that the signature has been crossed out. The crossing out is easily overlooked. Indeed Mr Halverson and Mr Davies in their evidence did not mention that Dr Fenner had crossed out his signature. Nobody contended that the Report was anything other than a valid Section 4 Report. We know from his evidence what Dr Fenner intended to convey by crossing out his signature. That intention could not reasonably be understood from a reading of the Section 4 Report. Dr Fenner's failure to adequately convey his intentions on the Section 4 Report is of concern.
[235] It is Dr Fenner's evidence that he crossed out his signature because he required further information. If Dr Fenner was unable to determine whether or not Mr Halverson was "fit for work" until he received the results of the EST (and the right shoulder review), Dr Fenner should not have ticked the box that declared Mr Halverson was fit to undertake the proposed position. When Dr Fenner reached the conclusion that he required further information and crossed off his signature, he should have also crossed off his declaration that Mr Halverson was fit for the proposed position.
[236] If Dr Fenner believed that the results of the "EST" were so critical to his assessment of Mr Halverson's health, why did he only suggest and not require that Mr Halverson undertake an EST before job start? If the EST results were critical to Dr Fenner's assessment, why didn't the Doctor require a review of Mr Halverson's health assessment when the EST results were known? Indeed Dr Fenner makes no reference to any review of the EST results on the Section 4 Report. At that time (August 2003) Dr Fenner had no concerns about declaring a person as "unsuitable for work". If in Dr Fenner's opinion, Mr Halverson was "unsuitable" or "should not start work" until the EST test results were known, Dr Fenner should have clearly indicated that on the Section 4 Report.
[237] After the Section 4 Report was issued, Mr Davies and Dr Fenner had a discussion about Mr Halverson's medical records, contrary to the Health Scheme. During this discussion Dr Fenner agreed to Mr Davies' proposal that Mr Halverson undertake a Functional Capacity Evaluation (FCE). In our view it is not consistent with the Regulations for the employer, absent the mineworker, to propose or suggest to an NMA what tests a mineworker should have included in the Health Scheme Assessment. Dr Fenner, as the NMA, did not discuss with Mr Halverson the addition of the FCE to Mr Halverson's Health Scheme Assessment. Mr Halverson, amongst other things, was advised by Mr Davies by letter dated 30 August95 that he needed to contact Mr Davies "to arrange to undergo a Functional Capacity Test". It was not made clear to Mr Halverson by the NMA (directly or improperly through Mr Davies) that the FCE was now part of his Health Scheme Assessment.
[238] Ultimately Mr Halverson undertook the FCE and the results were provided to Dr Fenner. After Dr Fenner received the results of the FCE he issued a further Section 4 Report (the January Section 4 Report). Dr Fenner was required to provide a copy of the Report to Mr Halverson but did not do so.96
[239] The January Section 4 Report said that Mr Halverson:
"1) Glasses for near vision;
2) Suggest exercise test before job start;
3) Needs back strengthening."
[240] There is no duration identified for the restrictions. Dr Fenner did not indicate that any further review of Mr Halverson's health assessment was necessary. The Doctor signed and dated the Section 4 Report but at a place other than in the box provided. We were not told why he did this. The significance, if any, of such an act is not readily apparent to us. We observe that nobody contended that the January Section 4 Report was anything but valid.
[241] Mr Halverson's January Section 4 Report has only one restriction. The restriction is the need for Mr Halverson to wear glasses. Dr Fenner makes a suggestion for an EST before job start. He also makes an observation that Mr Halverson's back needs strengthening.
[242] Dr Fenner's evidence concerning the January Section 4 Report is that:
"Mr Halverson requires an exercise stress test and needs back strengthening. I am not able to certify Mr Halverson as fit for work and what restrictions may be required until that is completed."
[243] The January Section 4 Report certified that Mr Halverson was able to commence work at Hail Creek with the sole restriction being that he needs to wear glasses. The Health Scheme clearly allows a person with such a restriction to operate machinery in an opencut coal mine. That is uncontroversial.
[244] Despite Dr Fenner's evidence, the January Section 4 Report did not require that Mr Halverson undertake an EST before job start rather it suggested such a course of action. It is not clear to us whether such a "suggestion" made by the NMA becomes a mandatory test for the purposes of the Health Scheme. We doubt that to be the case.
[245] If Dr Fenner needed further results (of the suggested EST) in order to assess Mr Halverson's health, he should have organised for those tests to be undertaken as he is empowered to do by s.46(3) of the Regulation. In any event if Dr Fenner believed that Mr Halverson should not start work until the results of the EST were known, why didn't he write that on the January Section 4 Report?
[246] Dr Fenner's completion of Mr Halverson's January Section 4 Report conveyed a health assessment Report that is contrary to Dr Fenner's evidence. The Report does not provide any restrictions (other than the need to wear glasses) nor does it require a further full or partial review of Mr Halverson's health. Surely if Dr Fenner was unable to form a view about Mr Halverson's fitness until the EST results were known, Dr Fenner was obligated to indicate on the Section 4 Report that Mr Halverson's health assessment would be partially reviewed once the EST results were known.
[247] We also observe that the January Section 4 Report (completed after the FCE results were known) is more favourable than the August Report. There is not one additional restriction applied by Dr Fenner as a result of the FCE report. Indeed a previous restriction has been removed, as has the need for a partial review following an audiogram after three months work.
[248] Apart from the fact that it is signed and dated at a place other than the box provided, the January Section 4 Report is not extraordinary. It is a valid Section 4 Report in which an NMA, Dr Fenner, has certified that Mr Halverson is able to work at the Hail Creek Mine provided he wears his glasses. Dr Fenner's evidence is to the contrary. This conflict in the evidence is a matter of significance. Dr Fenner's inability to accurately convey his intentions
when completing the Section 4 Report is of concern. The "suggestion" and "observation" made on the Section 4 Report have only added to the uncertainty.
[249] Four weeks after completing the more favourable January Section 4 Report and based on the same clinical findings and FCE Report, Dr Fenner, on 13 February, issued a further Section 4 Report for Mr Halverson (the February Section 4 Report). The February Section 4 Report states that Mr Halverson has a condition that requires the following restrictions:
"_ requires glasses to meet visual standards
· working overhead compromises safety and places him at increased risk of injury.
· Unfit for heavy manual work.
· Has a medical condition described as Austroads Publications (2003) "Assessing fitness to drive".
· Unfit for work in areas where anything apart from mild exertion is required (eg slopes - egress from pits, stairs on the Coal Wash Plant etc)
· Not to work in areas where heat exhaustion may be a possibility or areas where reasonable aerobic fitness is necessity in the event of danger needing access or rapid egress
Work posture
· long hours per day operating shift machinery with or without whole body vibration (particularly up to 11 house), places him at increased risk of injury.
Working postures trunk and neck
· Extended work overhead (e.g. replacing headlights), places him at increased risk of injury.
Unfit for work."
[250] The duration of the restrictions are "until risks are assessed and report available". A further partial review was necessary in "3-6 months or when necessary investigations [are] complete". It was not made clear to us what risks are to be assessed and what report is to become available. Nor were we made aware of what "investigations" are said to be necessary.
[251] Dr Fenner has signed the February Section 4 Report for Mr Halverson in a place other than the box provided. We were not told why Dr Fenner did that. We were not told the significance, if any, of such an act.
[252] In January Dr Fenner, on his evidence, was unable to determine Mr Halverson's fitness or otherwise for the proposed position without the results of an EST. Four weeks later, without any further medical evidence and certainly without the EST results, Dr Fenner made such a determination. Further, without any additional medical evidence, Dr Fenner in February applied a number of restrictions which were not applied in January.
[253] The cases of Messrs Barnes and Halverson are examples of Dr Fenner's inconsistent and inappropriate approach to the health scheme assessments. They also show the uncertainties that arise from Dr Fenner's approach. We have formed the view that the evidence establishes that Dr Fenner approached the February Section 4 Reports in a partisan way and that he deliberately set out where possible to produce Section 4 Reports that better supported Hail Creek Coal's objective of not being required to employ the individuals that are the subject of these proceedings.
4.5.1(ii) The Hail Creek Job Demands Manual
[254] This matter concerns Dr Fenner's approach to the consideration of risk factors which may or may not be present in relation to certain positions at the mine. The Health Scheme assessments that were conducted by Dr Fenner in August 2003 were unusual in that the employer, in this case Hail Creek Coal, ordinarily determines the position for which the applicant is being considered. Indeed it is a requirement of the approved form that the employer complete Section 1 which is as follows:
Section 1 - Employer to complete
Name of Nominated Medical Adviser |
Employer | |
Coal Worker's Position - (provide generic job title) |
Mine (eg Southern Colliery if applicable) | |
(a) |
Is the coal mine worker at risk from dust exposure (x-ray needed)? |
_ Yes |
_ No |
(b) |
Will the coal mine worker be working underground? |
_ Yes |
_ No |
(c) |
Does the coal mine worker require colour discrimination? |
_ Yes |
_ No |
(d) |
Is the worker at risk from occupational noise? |
_ Yes |
_ No |
(e) |
Is the worker at risk from hazardous chemicals? (comment) |
_ Yes |
_ No |
(f) |
Are there hazardous duties requiring a specific fitness assessment? (comment) |
_ Yes |
_ No |
Comment..............................................................................................................................................................................................................................................................................................................................
[255] Hail Creek did not complete Section 1 of the approved form. Rather the individuals were provided with a summary of the job demand list for "mechanical equipment operation, maintenance, mine services and coal preparation".97 The health assessments for the ten individuals were carried out based on the job demands for the positions which each of the individuals identified to Dr Fenner as the positions they were seeking.98 Presumably Dr Fenner also stepped into Hail Creek's shoes and answered the questions in (a) to (f) in Section 1 of the approved form.
[256] Dr Fenner's evidence on this point is as follows:
"MR SLEVIN: How did you know what positions you would be testing for when you did the health assessment?
DR FENNER: It doesn't matter. The way that we do the medicals is to find an accurate way of assessing the health and fitness of someone suggesting that there are areas where they may be suitable or unsuitable. It gives like an edge of a jigsaw and then it's up to the mine site to decide whether that medical jigsaw fits into the job jigsaw to form a job category. That's not my job. I'm only there to give a medical.
MR SLEVIN: On the standard Section 4 that you provide to the employer you had to provide the position that you are testing for or assessing for. That's correct, isn't it, doctor?
DR FENNER: That's correct.
MR SLEVIN: So it must matter in some form?
DR FENNER: Each of - each of them bar one put down Plant Operator. And so that covers probably the majority of the positions involving equipment at the site. None of them said that they were in the engineering or other areas. One gave a job as - I can't remember exactly but it's in the notes and I can give a - gardener was part of the job."99
[257] The Section 4 Reports of August 2003 reveal that Dr Fenner recorded in the relevant box that the position(s) for which the applicants had been assessed and the positions the applicants were seeking were:
Walsh |
Plant Operator |
Mitchelson |
Plant Operator; Pump Operator; Open Cut Examiner |
Barnes |
Production |
Halverson |
Plant Operator; Coal Plant Operator |
Appleton |
Plant Operator; Production |
Finger |
Production |
Cusack |
Plant Operator |
Lindley |
Plant Operator |
Crichton |
Plant Operator |
Albert |
Plant Operator |
[258] It is Mr Davies' evidence that the Job Demands Manual that was provided to each of the applicants was also provided to Dr Fenner. According to Mr Davies' evidence that "Dr Fenner conducts his [Health Scheme] assessments in accordance with a booklet of job demands provided by Hail Creek".100 The first observation that we make is that the Job Demands Manual has (relevantly) five positions or "Job Titles". They are:
[259] It is clear that each person sought a position in "Pit Operations". Mr Halverson also applied for the position of "Coal Preparation Plant Operator" and Mr Mitchelson also applied for "Mine Services" (given his inclusion of "Pump Operator") respectively. None of this is particularly contentious.
[260] The Job Demands Manual then provides, as its title suggests, an analysis of the demands of each job or position, including, an analysis of the job demand by time. The demands for Pit Operations consist of five pages and covers the following:
"1. Job Summary
2. Job Suitability
3. Key to interpreting working postures, manual handling, vibration & sensory demands
4. Working Postures - Lower Body
5. Working Postures - Trunk and Neck
6. Working Postures - Shoulder and Arm
7. Manual Handling
8. Vibration
9. Sensory Acuity
10. Description of Demands
11. Other Hazards"
[261] We extract Sections 3, 4, 5, 6, 7, 8, 9 and 10 to demonstrate the operation and detail of the job demand manual.
3. Key to interpreting working postures, manual handling, vibration & sensory demands.
Shading indicated the range commonly found for working postures, manual handling, vibration and sensory demands. Note: The above job has a large variation of demands depending on the tasks performed on any shift. |
Job demands by time 0. Not required 1. Rarely required (1-5%) 2. Occasionally required (5-33%) 3. Frequently required (34-66%) 4. Constantly required (67-100%) |
4. WORKING POSTURES - LOWER BODY
Posture |
0 |
1 |
2 |
3 |
4 |
|
Standing - flat surface |
||||||
Standing - uneven or inclined |
May spend up to 2-3 hours working on guideposts, moving cables, minor maintenance or other activities standing on uneven surfaces | |||||
Walking - flat |
||||||
Climbing - ladders, stairs, on machinery etc |
May climb on / off machine up to 8 times per shift (stairs, ladders, using grips on machine i.e. Dozer) | |||||
Sitting - seats with back supports |
May spend up to 11 hours a shift operating machinery. | |||||
Sitting - on stools, on machinery components etc |
Minor maintenance | |||||
Lying - on back or side |
||||||
Crouching |
Minor maintenance, repairing cutting edges, moving light plants, or other activities | |||||
Kneeling |
||||||
Crawling |
Restricted space in excavator car body |
5. WORKING POSTURES - TRUNK AND NECK
0 |
1 |
2 |
3 |
4 |
||
Upright forward facing |
Majority of machinery - truck, Excavator, etc | |||||
Stooped / forward flexed |
Some leaning forward in excavator when working area close to excavator. May stoop working on guideposts, moving cables, minor maintenance or other activities | |||||
Overhead or extended |
Replacing headlights | |||||
Side bending |
||||||
Rotated / twisted |
Ripping in Dozer. Reversing and working facing backwards on mobile machinery. |
6. WORKING POSTURES - SHOULDER AND ARM
0 |
1 |
2 |
3 |
4 |
||
Waist to shoulder height |
Required for majority of machinery | |||||
Overhead - flexion or abduction > 90 at shoulder |
Replacing headlights | |||||
Close to body |
Required for majority of machinery | |||||
Forward reach ->50cm |
Working on minor maintenance | |||||
Awkward wrist - deviation from neutral> 15 degree |
Excavator requires large amount of movement to work joystick levers |
7. MANUAL HANDLING
Location of load / object |
0-30cm from body |
30-60cm from body |
60cm+ from body |
Comments |
Above shoulder |
A person may occasionally be required to work outside the optimal but the majority of work is in the hip to shoulder close range close to body | |||
Hip to shoulder |
||||
Floor (feet) to hip |
||||
Below feet/floor |
Weight / Force |
0 |
1 |
2 |
3 |
4 |
|
Very light <4.5 kg |
Hand controls | |||||
Light 4.5-10 kg |
||||||
Medium 10-20 kg |
Excavator teeth, Ripper boots weight approx. 30kg. Moving lumps of coal/rock from roadway. | |||||
Heavy 20-45 kg |
||||||
Very heavy 45+ kg |
How Force Applied |
0 |
1 |
2 |
3 |
4 |
|
Gross hand / arm - e.g. pushing large object |
Working on guideposts, moving cables, minor maintenance or other activities | |||||
Fine hand / arm - e.g. controls, hand tools |
Operation of controls for machines, Repetitive movements | |||||
Gross leg - e.g. pushing large object |
||||||
Fine leg / foot - e.g. pushing pedal |
Operation of controls for machines except excavator (no pedals) |
8. VIBRATION
Vibration Exposure |
0 |
1 |
2 |
3 |
4 |
|
Whole body |
Exposure in machinery/vehicles when driving on rough roads | |||||
Hand/arm |
9. SENSORY ACUITY
0 |
1 |
2 |
3 |
4 |
||
Tactile / feeling |
Touch used for manual handling activities including operating controls | |||||
Smelling |
To determine type of leaks | |||||
Hearing |
To listen to machine and communicate e.g. 2 way | |||||
Vision |
Driving / operating | |||||
Depth perception (three dimension vision) |
Driving / operating | |||||
Near acuity (50cms. or less) |
Minor maintenance tasks | |||||
Middle distance (50-100cm) |
Viewing dashboards & displays on machinery | |||||
Far acuity (6ms or more) |
Driving / operating | |||||
Field of vision (range of vision to side with eyes on fixed point) |
Driving / operating | |||||
Accommodation (adjust to differing light levels) |
Especially at night when adjusting to lights; day time and night-time glare | |||||
Colour vision (select colours) |
Look for contaminated coal. |
10. DESCRIPTION OF DEMANDS
Tools Used:
Hand tools for minor maintenance.
Machinery Equipment Operated:
Dozer, Excavator, Hauler, Grader, Water Truck, Excavator
Personal Protective Equipment:
Standard
Work Surfaces / Environment:
Typically seating in air-conditioned cabs of vehicles.
May need to walk around and perform manual handling on pit floor (compacted dirt) on roadways.
Characteristics of Objects Handled:
The majority of manual handling involves the operation of machine controls. Other materials are handled infrequently, depending on the task at hand e.g. machine parts for minor maintenance, replacing excavator teeth, moving lighting plant. Machine parts typically weight up to 30kg and may be awkward to grip.
Location of Weighted Demands / Work Activities
Operation controls of machinery are generally at the ideal height and within easy reach. Cables are at ground level. Machine components may be in range from ground to overhead.
[262] It would be expected that an applicant for a position in "Pit Operations" would have his or her fitness for such a position assessed against the demands of that position as contained in the manual. That is clearly Mr Davies' expectation. But it is apparent from Dr Fenner's evidence that he did not take that approach, or at least that was not the approach he took in relation to the eight individuals in respect of whom he issued further assessments in February 2004.
[263] Dr Fenner says that even if an individual was applying for the position of Pit Operations he would apply the demands from that position together with the job demands which related to Mine Services and Coal Preparation Plant Operator.101
[264] Dr Fenner gave the following evidence during the course of his cross-examination:
"MR SLEVIN: Which chapters did you have reference to when you sat down and looked at this jobs manual?
DR FENNER: What I did with them was I cut and pasted from mine services, pit operation, coal preparation, plant operation.
MR SLEVIN: And who told you to use those chapters?
DR FENNER: Nobody.
MR SLEVIN: You chose those as being the appropriate chapters to deal with what positions?
DR FENNER: I did.
MR SLEVIN: You made the choice, but what positions did you have in your mind when you actually sat down and chose these three chapters?
DR FENNER: Generic. I cut and pasted every single one. I put them altogether, and ones where they were repetitive I combined, so it wasn't one specific job because I don't choose jobs. I broke them down into groups of type of work that would be possible, again because I felt that way that someone might be suitable for one area and not another, and it's not my job to put them into those areas. It's my job to supply the information so that these people can be placed as appropriately and as safety and health-wise as possible. That's my job.
MR SLEVIN: Would you call the positions that you were dealing with production positions then?
DR FENNER: Sorry?
MR SLEVIN: Would you call them production positions?
DR FENNER: Yes.
MR SLEVIN: You call them mobile plant operators?
DR FENNER: Yes.
MR SLEVIN: Or did you test for something more than simply mobile plant operators?
DR FENNER: I don't test for any set position. I test on a person's physical and their medical assessment because very often they may be required to do a job in more than one area and I try to cover as much as possible so they're able to be adaptable and move from one area to another, rather than just completely tied down to one area."102
[265] The problem with Dr Fenner's approach, taken in at least the February 2004 reassessments, is that the applicants are assessed against job demands which are either not present or are not required to the same extent in the job or position being applied for. We find this further taints the February 2004 Reviews.
4.5.1(iii) The Modified Kraus Weber Test
[266] A number of the restrictions which Dr Fenner records in the Section 4 Reports he has prepared are based on the results from his modified Kraus Weber test.
[267] The original Kraus Weber test rates back strength and flexibility based on the number of seconds a person can hold a particular position. In that sense it is a static test. A number of exercises are used for this purpose including abdominal obliques and hip flexors.103
[268] The methodology used by Dr Fenner is a departure from the standard Kraus Weber test. Dr Fenner has modified the standard test by placing reliance on the number of repetitions that a person can do in respect of prescribed exercises, rather than relying on a static test.104
[269] Dr Fenner conceded that he was unaware of any scientific evaluation that would validate the modified Kraus Weber test he uses.105 In his evidence Dr Schneider stated that apart from Dr Fenner, he was not aware of any other NMA that used the Kraus Weber test, or a modification of that test, for assessing fitness to work.106
[270] Attached to Dr Schneider's statement is a publication by the Australasian Faculty of Occupational Medicine entitled "Guidelines for Health Assessment for Work".107 In a section of that document headed "Predicting Back Injury" considerable doubt is cast on the value of various tests and investigative procedures in terms of assessing work fitness and their capacity to predict back injury. The document states:
"There is extensive research on tests to predict back injury in the workplace. Risk factors that have been considered include anthropometry, posture, spinal mobility, muscle strength, physical fitness, radiography, psychological and psychiatric problems and social factors, job satisfaction and smoking. There are various investigative procedures available, which can be used to assess work capabilities; however, no definable benefit, in terms of work fitness, has been identified.
The studies reported contain flaws, such as confounding by concurrent implementation of other safety measures. Overall, the findings are inconsistent and contradictory. They are research tools, which may be of benefit in the future. There is insufficient evidence to recommend their use in clinical practice at present."108
[271] Despite Dr Fenner's assertions to the contrary we think it reasonable to conclude that he was using the modified Kraus Weber test to predict the likelihood of back injury.109 If the test results showed some muscle weakness then he imposed work restrictions to reduce any risk of injury. Inherent in this approach is the assumption that the test results provide an indication of the risk of injury.
[272] We are not satisfied that the modified Kraus Weber test used by Dr Fenner is an appropriate test for assessing fitness for work. Nor are we satisfied that the results of such a test provide a proper scientific basis for the restrictions imposed by Dr Fenner in his Section 4 assessments.
4.5.2 Dr Schneider's Evidence
[273] On the view we have taken of Dr Fenner's evidence we have only needed to make limited reference to Dr Schneider's evidence. Given that position, we do not deal with Dr Schneider's evidence in detail. We note that Dr Schneider is a NMA for a number of coal mines. Dr Schneider however, is not the NMA for Hail Creek Coal. That is a matter of significant weight. Much of these proceedings, particularly as advanced by the CFMEU, concerns the proper application of the Health Scheme.
[274] Whilst we have a discretion to determine this matter irrespective of the detail of the Health Scheme, we think it prudent to adopt an approach that is consistent with the Regulation. Those regulations for new entrants (as opposed to employees) do not allow for an alternative NMA or medical specialist opinion to be obtained for review by the original NMA. We comment about that fact later in our decision. It is our preference to determine the health assessment grounds on which Hail Creek Coal relies by dealing with evidence and the health assessments of Hail Creek Coal's NMA, Dr Fenner.
[275] We are concerned about the divergent views of Dr Fenner and Dr Schneider in their assessments of the fitness for work of these individuals. Those who are responsible for administration of the Regulation should be similarly concerned. Consistency of approach by NMA's is obviously an integral factor in the success of the Health Scheme. An individual's entry into the coal mining industry or an employees continued employment in the industry, should not be dependent upon some "lucky dip" of significantly varying approaches or standards by NMA's to Health Scheme Assessments.
[276] We make the same criticism of Dr Schneider as we did of Dr Fenner for providing individual health assessments.
[277] We agree with Hail Creek Coal's submissions that Dr Schneider, in relation to his assessment of the applicants, has not conducted Health Scheme Assessments in accordance with the Regulation. Such assessments or at least the Section 4 Reports of such assessments can only be properly undertaken by the Hail Creek NMA.
[278] Although the evidence is that he does it to a significantly lesser degree than Dr Fenner, we find that Dr Schneider has also disclosed "clinical findings" without the written permission of the mine worker. This is in breach of his obligations in the Regulation. Dr Schneider's responses in cross-examination on this point do not reflect favourably upon him as a witness.
[279] We also think that Hail Creek Coal's criticism of Dr Schneider's approach of his "Occupational Nurse" conducting the examinations required by s.3 of the approved form is well founded. We think that the Regulation requires such clinical findings to be made by a Doctor (see Regulations 46(2) and (5)).
4.6 SOME OBSERVATIONS ABOUT THE COAL MINE WORKERS' HEALTH SCHEME
[280] After considering the evidence of Drs Fenner and Schneider and the detail of the operation of the Health Scheme we think that it is appropriate to make some general observations in relation to the Scheme's operation. The evidence before us suggests that, at least within part of the Queensland coal mining industry, there is considerable misapplication of the Coal Mine Workers' Health Scheme. We do not need to make specific findings about that, however it would be inappropriate for us to refrain from doing anything after we have been made aware of certain practices, some of which are inconsistent with the Regulation.
[281] The following observations should be brought to the attention of the Safety and Health Advisory Council established in accordance with s.7(d) of the CMSHA. Our suggestions are made as a result of our concerns. Whether or not the Council finds merit in them or takes any action regarding our concerns is, of course, a matter for the Council.
4.6.1 Review of Health Assessments
[282] We are concerned that the fact that the NMA is both appointed by the employer and paid by the employer may lead to a lack of confidence by workers in the Health Scheme. Findings have been made in relation to Dr Fenner's partisan approach in the present proceedings. If the Health Scheme is to maintain the confidence of the workers and employers subject to it then a more open "review" process should be implemented.
[283] The Health Scheme currently contains a "review" process with these fundamentals:
[284] This review process has the features of an "appeal from Caesar to Caesar". In these proceedings two doctors, both NMA's, after completing the same health assessment process have reached different conclusions in relation to seven of the applicants. The Health Scheme "review" process should fairly and transparently determine such differences. In our view this could be achieved by amending the review process in the following way:
[285] We also note that there is presently no review process available to prospective coal mine workers. It is not immediately apparent to us why it is appropriate for a prospective employee to have fewer rights under the Health Scheme than an existing employee. We think that consideration should be given to rectifying this anomaly.
4.6.2 Health Assessments for Individuals Seeking Employment
[286] Both Drs Fenner and Schneider, each of whom has been appointed as the NMA for a number of large coal mines, gave evidence that some contractors to coal mining companies refuse to consider individuals for employment if they do not have a "current" or "recent" Section 4 Report. The evidence is that individuals attend NMA's for a health assessment for which the individual pays. Often, as the individual is only seeking employment in the industry and has not been selected to fill a vacancy, they are not aware of the position to which they will be appointed or the mine at which he or she may work, or even the employer by whom the individual may be engaged. For convenience we will refer to health assessments conducted in the foregoing circumstances as individual health assessments. Despite the obvious deficiencies and irregularities with this practice, both Drs Fenner and Schneider provide health assessments to such individuals.
[287] It seems that for these contractors the Health Scheme Section 4 Report has become akin to a motor vehicle driver's licence. That is if an individual has a "current" licence he or she can be employed by a contractor and without a further health assessment be assigned to work at any coal mine. The alternative is that these contractors understand their obligations under the Health Scheme and simply ignore them for the tawdry purpose of transferring the cost of the health assessment from themselves to the prospective employee. Neither approach is consistent with the Health Scheme.
[288] We think that the Health Scheme is quite clear. Unless the circumstances of subreg. 45(5)(b) exist, for a health assessment to be conducted in accordance with the scheme, it must be arranged, and paid for, by the employer. The obligations on contractors are contained at s.43 of the CMSHA. Contractors are required to comply with the Health Scheme. Steps should be taken to prosecute those contractors who are failing to meet their obligations under the Health Scheme. If subreg. 45(5)(b) is providing a loophole to these contractors, steps should be taken to close that loophole.
[289] It seems to us that the integrity of the Health Scheme would be better maintained if all NMA's immediately ceased the practice of providing individual health assessments. A Health Assessment Report can only be provided by an NMA when the health assessment is undertaken in accordance with the Regulation. The Regulation does not provide for NMAs to conduct individual health assessments. We think that this problem could be more conclusively overcome if the Regulation was amended to prohibit NMAs from conducting individual health assessments.
4.6.3 Discussions Regarding Appropriate Duties
[290] During the hearing Regulations 45(2) and (3) came under scrutiny. Those regulations are as follows:
"(2) The employer must include in the contract appointing the nominated medical adviser an obligation on the adviser to discuss, and give advice about, appropriate duties for the worker, under subsection (3).
(3) The discussions must be held with, and the advice given to, the employer and coal mine worker or the worker's representative."
[291] There was debate in these proceedings about whether or not the discussions required by subreg. (3) could be constituted by a discussion between the NMA and the employer (i.e. in the absence of the mine worker) together with a second discussion between the NMA and the mine worker. We think that in order to maintain the integrity and transparency of the Health Scheme the Regulation should make it clear that any discussion (for the purpose of the subregulation) between the employer and the NMA must include the mine worker and that it is impermissible for the employer and the NMA to discuss appropriate duties for the mine worker in the mine worker's absence. In certain circumstances telephone conferences between the three parties would be sufficient. The Regulation could provide an exception when the mine worker has provided both the NMA and the employer with a written authority allowing such discussions to take place in his or her absence.
[292] We also note that there is no obligation in the Regulation that requires the contract between the employer and the NMA to be in writing. We think there should be Regulatory obligation for the contract to be in writing.
4.6.4 The Section 4 Report on Health Assessment
[293] On the evidence before us there is both confusion and dissatisfaction on the part of the NMA's with the form and content of the Section 4 Report. We think some of this arises as a result of a misunderstanding of the NMA's role in the event that restrictions are applied to a mine worker. We have discussed this earlier in our decision.
[294] We think that the Section 4 Report, with some minor amendments, could be improved to remove some of the confusion and dissatisfaction. We think that the Section 4 Report should on its face make it clear that the NMA is to select only one of the three options available, if that is what is intended. If two options may be selected then that should be made clear on the form.
[295] It also seems to us that the Section 4 Report should make it clear that if the NMA indicates that a further review is necessary the NMA must specify the (approximate) date of the further review. The obligation to arrange the review falls to the employer. It is obviously impossible for the employer to arrange such a review within an appropriate timeframe if the NMA does not specify the (approximate) date on which such a review should take place.
[296] The Section 4 Report should carry a prominent warning to NMAs that without the written consent of the mine worker, the NMA is prohibited from disclosing to anyone (other than to the Chief Executive of the relevant government department and the mine worker) the contents of the coal mine worker's medical record obtained in accordance with the Health Scheme. Given the observations made earlier it may be useful if a paragraph was also included warning NMAs against conducting health assessments for individuals (i.e. health assessments that have not been paid for and arranged by the employer).
4.6.5 Section 3 Clinical Findings
[297] Dr Fenner gave evidence to the effect that if he required more information before being certain whether or not to apply restrictions to a mine worker he would issue the Section 4 Report on health assessment and note on it that the mine worker (for example) "needs a functional capacity evaluation (FCE)". Dr Fenner says that he does this because the employer may not want to pay the for FCE. Further it is the doctor's evidence that there have been occasions when the employer has refused to pay for the further test and as a result the test has not been carried out. This approach is inconsistent with the Health Scheme. The decision to proceed with the further testing is not a discretion of the employer.
[298] If, during a health assessment, the NMA considers that the person needs to be assessed in relation to matters not covered in the approved form, the NMA is empowered at Reg. 46(3) to include such matters in the health assessment. Put another way, if the NMA concludes that it is necessary for the person to undertake further tests in order that the NMA can receive additional information to determine if any restrictions are necessary to achieve an acceptable level of risk, those further tests are included in the health assessment.
[299] As the results of the tests which are required may not be known for some time, the NMA could provide a Section 4 Report with appropriate restrictions (if any) for the condition that is the subject of the further tests. The Section 4 Report would show that the duration of the restrictions was "until the further review". Obviously a further review is necessary and after indicating this on the Section 4 Report the NMA would determine the date of the further review to be on a date that it was likely that the results of the further tests would be available to the NMA.
[300] The review would then be conducted and the NMA would be in possession of all the necessary information to allow him or her to make an informed decision on the restrictions (if any) to be applied to the coal mine worker in order to achieve an acceptable level of risk.
[301] We think that the right of the NMA to include additional tests in the health assessment should be included in the approved form. Section 3, before question 3.17 or after question 3.18, appear to be logical and convenient locations for such a paragraph. As it was of some concern to Dr Fenner, the paragraph should also include the basis on which the additional tests can be required (Regulation 46(3)) and the fact that the employer is required to pay for the additional tests.
4.6.6 The Coal Mine Workers' Health Scheme Manual
[302] The Coal Mine Workers' Health Scheme Manual (the Manual) contains, amongst other things, the following in its overview:
"This manual has been compiled for the information of all persons who have an interest in the Coal Mine Workers' Health Scheme. It is designed to provide an overview in non-technical terminology of the operation of the Scheme."
[303] The copy of the Manual which was appended to Dr Fenner's evidence is dated April 2001 and contains the word "Draft" as a preface to the title. It is Dr Fenner's evidence that to the best of his knowledge, this document is the latest version of the Manual and is in use generally.
[304] It seems to us that the Manual contains some points that appear to be inconsistent with the Regulation.
[305] Such inconsistencies may have contributed to Dr Schneider's misunderstanding in respect of the persons who are permitted under the Regulation to perform the examination to obtain the clinical findings referred to in Section 3 of the approved form. We think that Regulations 46(2) and (5) require the medical examination assessment to be carried out by a doctor but the Manual contains the following, at p. 28:
"As defined in the regulation, an examining medical officer may be a medical practitioner or a suitably qualified health professional." [emphasis added]
[306] There are other inconsistencies between the Manual and the Regulation. If Dr Fenner's copy is the current Manual, then it appears the manual is, in parts, inconsistent with the Regulation, is misleading and causing confusion. The Manual should be updated.
5. THE INDIVIDUALS
[307] We now turn to consider the results of the assessment process in respect of each of the persons who are subject to an application for relief on the grounds of unsuitability.
5.1 MITCHELL JOSEPH ALBERT
[308] Mr Albert is 37 years of age. He was employed by Pacific Coal at the Blair Athol minesite as a Production Employee from 30 April 1990 until 17 August 1998. While working at Blair Athol Mr Albert used the following operator skills:110
[309] At paragraph 10 of his statement Mr Albert says:
"At Blair Athol mine we worked in teams. Multi-skilling was a feature of the Blair Athol mine which meant I was required to use different skills at different times depending on the requirements of the team or supervisor."111
[310] Mr Albert completed the ARM-Q, the Applied Reading Test, the Spatial Relations Test, the personality profile questionnaire, the Abstract Reasoning Test and the group activity tests on 28 August 2003.
[311] Mr Albert's ARM-Q result states that he meets the minimum requirements for a safety sensitive position, with training required in risk avoidance and driver attitude.112
[312] Mr Albert was interviewed by two teams of interviewers on 29 August 2003. The team which interviewed Mr Albert using questionnaire A consisted of Messrs Shane Hughes and Paul Davies. The team which interviewed Mr Albert using questionnaire B consisted of Messrs Andrew Carey and Joe Grimmond. The actual forms and notes used by each of the interviewers are attached to one of Mr Davies statements.113 Messrs Hughes, Carey and Grimmond did not give evidence in the proceedings.
[313] At paragraph 23 of his statement in respect of Mr Albert, Mr Davies says:
"There was no indication of anything which would prevent Mr Albert from moving forward in the process arising from the interviews."114
[314] Mr Albert's behaviour in the experiential testing was observed by Mr Grimmond, who facilitated his team in the "Ropes Exercise". In his statement in respect of Mr Albert, Mr Davies says that Mr Grimmond informed him "that he observed Mr Albert, together with Mr Barnes, took over the team, did most of the planning, and acted in a joint leadership role."115
[315] Mr Albert's other test results are:
Applied Reading |
37th percentile |
Below average |
Spatial Relations |
60th percentile |
Above average |
Abstract Reasoning |
19th percentile |
Well below average |
Personality Profile |
30th percentile |
Below average |
[316] In respect of Mr Albert's results in the Abstract Reasoning Test, Ms Walters says:
"Mitch performed poorly on the Non-Verbal Reasoning test. This suggests that he may be less able to think things through in a logical way than most and may have difficulty in solving problems he has not previously encountered."116 [emphasis added]
[317] On the basis of his psychological assessment Ms Walters recommended Mr Albert as an average candidate for the position of Mobile Equipment Operator. In that assessment Ms Walters said that "[Mr Albert's] profile suggests that he has a strong work ethic and is likely to be very conscientious and hard working."117
[318] In his drug test of 29 August 2003 Mr Albert tested positive to methamphetamine and Marijuana/Tetrahydrocannabinol.118
[319] On 30 September 2003 Mr Davies sent a letter to Mr Albert stating, among other things:
"The drug tests undertaken by Dr Fenner on 29 August 2003 returned a positive sample for methamphetamine and THC when assessed against the Australian Standard that is used by Hail Creek under its Fitness For Duty Policy.
Accordingly, you have failed to fulfil the medical requirements for a role at Hail Creek. To enable Hail Creek to determine whether in the future you may be able to be matched against any likely future vacancies, would you please ask your own Doctor to provide Dr Fenner with the details of any medication that has been prescribed for you and the reasons for that medication.
Depending on that further information, you may also be required to take a further medical, including a further drug test. This information may also be relevant to the validity of your declaration as to any medical or physical impediments that would prevent you from meeting your preferred role requirements."119
[320] In compliance with Mr Davies request on 23 October 2003 Mr Albert sent a letter from his general practitioner, Dr Mohammed Rahman, to Dr Fenner. That letter is set out at Annexure E to Mr Albert's statement and says:
"This is to advise that Mitchell Albert DOB 09/06/66 came to see the doctor at the above named surgery on 28/01/03 and got a script for Duramine 40mg per day, but did not start taking it until August 2003."120
[321] Duramine is a diuretic and contains methamphetamine.
[322] In his statement Dr Fenner says that he has read Dr Rahman's letter and makes the following observation in respect of it:
"It is unusual that a doctor would prescribe a medication in January 2003 and that the patient would not commence that medication until August 2003. Dr Rahman does not state that he prescribed the medication, nor the purpose of the prescription. Based on my assessment of Mr Albert's health in August 2003, it is extremely unusual that a doctor would prescribe duramine for Mr Albert when he told me in his health assessment that he took it for stress/depression. He also did not indicate he had only recently started on it."121
[323] In his evidence Mr Albert says that he told Dr Fenner that he was taking Duramine for stress, depression and his weight.122 Mr Albert also said that Dr Rahman was incorrect in stating that he did not start taking Duramine until August 2003.123 According to Mr Albert he started taking Duramine in November 2002124 and finished taking it in August 2003,125 he has not taken Duramine since that time.126 Mr Albert's correction of Dr Rahman's letter only emerged during cross-examination. It did not appear in his statement.
[324] It is relevant to note that there are a number of inconsistencies between Dr Rahman's medical notes of consultations with Mr Albert and Mr Albert's recollection. Mr Albert's evidence is that he saw Dr Rahman in November 2002 and said that he would like to lose weight and sought a prescription for Duramine.127 According to Dr Rahman's notes Mr Albert's weight at that time was 89.4 kg.128 Mr Albert attended Dr Niewald (a colleague of Dr Rahman's) on 28 January 2003. Mr Albert's evidence was that his weight at that time was 98 kg. The medical notes provided by Dr Rahman record a weight of 90 kg. The following exchange takes place between Mr Albert and Mr Tuck in respect of this discrepancy:
"MR TUCK: Do you see there, Mr Albert, that the weight that has been recorded against that consultation is 90 kilos, not 98?
MR ALBERT: Yes.
MR TUCK: You have no reason to not believe that that's a proper recording of your weight at that time?
MR ALBERT: No.
MR TUCK: So your weight was 90 rather than 98?
MR ALBERT: Yes, but when I started the course I was around 98 kilos. That's why I started the course.
MR TUCK: Can you turn over to the other page. There is a stamp there, 29 November?
MR ALBERT: Yes.
MR TUCK: And it says:
Lose weight. Wants Duromine.
MR TUCK: And your weight there is 89.4 kilos, not 98?
MR ALBERT: Yes. Well, my scales are different from theirs."129
[325] During the course of cross-examination Mr Albert was asked if he had an explanation as to why he had tested positive for marijuana. Mr Albert replied that three weeks earlier he had been on a two week holiday and over that period had shared three cigarette-sized smokes with some friends. When asked whether that was something he did regularly Mr Albert said "Not really, no".130
[326] Dr Appleton was called by Hail Creek Coal to provide expert evidence in relation to the detection of drugs in urine. Dr Appleton is a fellow of the Royal College of Pathologists of Australasia specialising in chemical pathology. Chemical pathology is the branch of pathology which deals with the biochemistry of the human body. A significant part of this field is to do with drug metabolism, drug clearance, dealing with toxins, toxicology etc. In his witness statement Dr Appleton says:
"THC is usually only detectable for 3 - 4 days after use for a casual user of marijuana and for 3 - 4 weeks for a chronic user of marijuana. For this purpose, a casual user of marijuana is someone who uses cannabis on average less than once a week and a chronic user is someone who uses cannabis several times a day each day for a period of at least some weeks."131
[327] Annexed to Dr Appleton's statement, and marked CAA2, is a copy of a table contained in Research and Public Policy Series No. 25, "Drug Use Monitoring in Australia (DUMA) Drug Detection Testing" written by Toni Makkai and published by the Australian Institute of Criminology in 2000. It states that the length of time that a drug is detected in urine, on average, for cannabis (THC) (which is the active ingredient of marijuana) is 2-10 days after casual use and up to 30 days after use for a chronic user.
[328] On the basis of his own evidence Mr Albert would be categorised as a casual user of marijuana.132
[329] Dr Appleton was asked to comment on Mr Albert's drug tests in light of his evidence about his marijuana usage. Dr Appleton says:
"18 I have been asked to assume that Mr Albert's evidence is:
18.1 three weeks prior to taking the drug test, the results of which are CAA1, Mr Albert returned from a two week holiday;
18.2 during his two week holiday, he shared approximately 3 cigarettes sized smokes of marijuana with friends.
19 Based on that scenario, the positive result at CAA1 is an exceptional result, and is not consistent with the statistical data on when casual users of marijuana will return a positive result to a drug detection test. In my opinion, based only on that use, a test would not register positive for THC three weeks later. Based only on that use, in my experience with supervising Queensland Medical Laboratory's drug testing laboratory, it would be exceptional to test positive even one week after such use."133
[330] Dr John Howard Lewis was called by the CFMEU to provide an expert opinion on Mr Albert's drug test report and the evidence of Dr Charles Appleton.134 In his evidence Dr Lewis notes that the Instacheck test which was used in this instance is an on-site pre-screening test only. Contrary to Dr Appleton's evidence, Dr Lewis says that Instacheck does not conform to the relevant Australian standard (AS/NZS 4308) because the standard provides that drug testing be conducted by appropriately trained laboratory personnel, under the supervision of an expert toxicologist. The standard also requires that any screening test producing a result greater than the defined cutoff value shall be subjected to a confirmation test. Dr Lewis is the chairman of Standards Australia Committee CH/036, the group
responsible for the development of the relevant standard and we prefer his evidence in this regard to that of Dr Appleton.
[331] Dr Lewis offered the following criticism of the Instacheck test:
"On-site devices, such as the Instacheck do not meet Standards because, inter alia, they are often more sensitive to drugs and metabolites than corresponding laboratory-based tests. Manufacturers of devices may elect to design their products to be more sensitive so as not to create "false negatives", i.e not to miss any positives."135 [emphasis added]
[332] During cross-examination Dr Lewis conceded that he has not conducted testing on the Instacheck device to ascertain whether or not it is more sensitive to drugs.136 Further it is relevant to note the cutoff for methamphetamine in the Australian standard is 300 ng/ml compared to a 500 ng/ml cutoff with the Instacheck device. Dr Lewis conceded that a test regime that has a cutoff of 500 ng/ml would not be as sensitive to drugs as a device or method which has a cutoff of 300 ng/ml.137
[333] A number of Dr Appleton's observations are the subject of specific comment by Dr Lewis. We set these out below:
1. Dr Appleton: usually a casual user will not test positive where they have ceased using marijuana beyond three to four days prior to the test.138
Dr Lewis says: "Dr Appleton's statement is not absolutely correct. I would agree with him that an infrequent user of marijuana should eliminate the metabolites within that time period. However, due to many variables, genetic predisposition etc, that time frame could be shorter or longer."139
During his oral evidence Dr Lewis was asked how the taking of a diuretic would impact on the time period one might consider to be reasonable for the detection of marijuana. He replied in the following terms:
"The diuretic has an effect of diluting the urine, it enhances the urine output and so would dilute any drug out of the system, out of the bladder. So it would make detection harder . . ."140
2. Dr Appleton: usually a chronic user of marijuana will not test positive in accordance with AS 4308 where they have ceased using marijuana beyond three to four weeks prior to the test.141
Dr Lewis says: "I would agree with Dr Appleton that in general, chronic users of marijuana would eliminate metabolites within 3-4 weeks of cessation of use."142
3. Dr Appleton: Mr Albert's test result is "exceptional" and is not consistent with that of a casual user of marijuana.143
Dr Lewis says: "Dr Appleton's statement cannot be considered because there is no proof that Carboxy-THC was even present in the employee's urine. The on-site test may have given a false positive reaction. If the test did indeed identify marijuana metabolites, no quantitation was performed. Because the test is known to be very sensitive to marijuana metabolites, it may well have identified past use.
It is an accepted practice to compare sequential "normalised" urinary concentration values of Carboxy-THC from an employee, in order to form an opinion as to whether that person had continued to use. As this does not appear to have been conducted, Dr Appleton's evidence must be discounted."144
4. Dr Appleton: It would be "exceptional" to test positive even one week after the use attested to by Mr Albert.145
Dr Lewis says: "It is difficult to agree with Dr Appleton's statement. While I would agree that a casual user would be expected to eliminate marijuana within a short period of time, a casual user may only use on one night a week but may smoke many "cones" of marijuana on that night."146
[334] Mr Albert's health assessment dated 29 August 2003 states that he is fit to undertake the position of plant operator. Dr Fenner has also ticked the box stating that Mr Albert has a condition which results in restrictions on the type of work that he may undertake. But no restrictions are specified. The assessment also states that Mr Albert is to undergo another audiogram three months after commencing employment.147
[335] In his witness statement Dr Fenner states that Mr Albert is fit for work.148 Dr Fenner also says that the drug and alcohol test which Mr Albert undertook is not part of the requirements of the statutory health assessment under the Regulation.149
[336] In respect of Mr Albert, Hail Creek Coal contends he is unsuitable because of:
[337] For reasons we have already given we are not persuaded that the last matter relied on by Hail Creek is relevant to an assessment of Mr Albert's suitability for employment.
[338] In relation to the second matter Mr Albert pleaded guilty to a charge of being in possession of goods suspected of being stolen and the goods subject of the charge belonged to Blair Athol mine. At the time Mr Albert received a final warning in relation to the incident.
[339] On 15 June 1998 Mr Albert received a letter from Paul McCrea, the Manager - Business and Employee Services, in the following terms:
"I formally advise you that you are placed on a final warning for the unauthorised possession of Blair Athol Coal Property.
In reaching our decision in this matter we have investigated the circumstances fully, including giving you the opportunity to explain your position and to answer our allegations on 20 May 1998, 27 May 1998 and 4 June 1998.
The reasons for our decision are:
1. A Caterpillar `O' Ring Kit was discovered by police at your above address on Tuesday 19 May 1998. This was an identical kit to that stocked at the Blair Athol warehouse. The person you claimed to have received it from does not agree that he gave it to you. The date you claimed to have received it was prior to the first date of delivery of this item into Australia. We therefore find your explanation unsatisfactory.
2. An enclosed fluorescent light with lead was discovered by police at your above address on Tuesday 19 May 1998. You admit that this was an item you took from Blair Athol over 4 years ago. You could not produce any authorisation for possession of this item as is required for any property that is removed from the minesite. Your claim that the item was on loan is not accepted as equipment is only loaned for private use for a period of a few days or a specific project. To still not have returned "loaned equipment" after 4 years is unauthorised possession.
3. An electrical kit containing 2 crimping tools and hundreds of electrical connections was found by police at your above address on Tuesday 19 May 1998. You admit that the equipment was taken from Blair Athol without authorisation over 4 years ago. Written authorisation is required to remove any property from the mine and therefore you had unauthorised possession of Blair Athol property.
4. 2 pressure pack cans of lubricant were found by police at your above address on Tuesday 19 May 1998. You admit that these items were removed from the minesite without authorisation. Again, written authorisation is required to remove any property from the mine and therefore you had unauthorised possession of Blair Athol property.
You admit that you were aware of the system in place for authorisation to remove property and claim to have used this system on a number of occasions. Removal of equipment that is the property of Blair Athol Coal without authorisation is a very serious matter that in most cases will lead to termination of employment.
On this occasion we have decided to issue you with a final warning and not termination, but we advise that any further instances of misconduct of this nature of any other instances of misconduct will result in your termination."150
[340] Mr Albert was asked about this final warning during re-examination. According to Mr Albert the explanation he provided to his employer at that time (Pacific Coal) was that another person had given him the property and he was not prepared to give his employer their name.151 In further cross-examination Mr Albert conceded that he had told Blair Athol that the property had been given to him by Joe Masteroni from Hastings Deering.152 The following exchange then takes place between Mr Albert and Mr Tuck:
"MR TUCK: Mr Albert, you've said you wouldn't give the name and you immediately recall attending an interview where you gave the name?
MR ALBERT: Yes. That's what I'm saying, I didn't give the name of the person that gave it to me.
MR TUCK: You gave them a false name, Joe from Hastings?
MR ALBERT: That's right. Because Joe had actually gave it to the other person and that's already all been dealt with in the - - -"153
[341] In relation to Mr Albert's drug test results and on the basis of Dr Appleton's expert testimony Hail Creek Coal submitted that we should draw an inference about the veracity of Mr Albert's evidence. That is, either Mr Albert was not telling the truth as to when he last used marijuana or that he is not a casual user but is a chronic user.
[342] We are satisfied that on the material before us such an inference should be drawn. There are a number of troubling features about Mr Albert's evidence including:
[343] In relation to the last matter the evidence of Drs Appleton and Lewis is broadly consistent with respect to the time taken for casual and chronic marijuana users to eliminate metabolites of THC from their urine. Dr Lewis says that while an infrequent marijuana user should eliminate the metabolites within the three-four days suggested by Dr Appleton that timeframe could be shorter or longer depending on many variables. But it will be recalled that Mr Albert said that he was taking Duramine, a diuretic, at the relevant time and according to Dr Lewis taking a diuretic has the effect of diluting the drug out of the system more quickly. Hence one would expect the time interval for detection to be shorter than the average.
[344] Drs Appleton and Lewis both agree that usually chronic users of marijuana would eliminate metabolites within three to four weeks of cessation of use.
[345] In Dr Lewis' opinion there is no proof that Carboxy-THC was even present in Mr Albert's urine because the test may have given a false positive reaction or because it is very sensitive to marijuana metabolites it may well have identified past use. The basis for Dr Lewis' opinion in this regard was not properly explained. While Dr Lewis' evidence was generally critical of the Instacheck device he conceded that he had not conducted any testing on the device to ascertain whether it was in fact more sensitive to marijuana metabolites. We have had regard to the CFMEU's submissions regarding the absence of a confirmatory test. While these submissions have some force they must be balanced with the other material before us.
[346] On the basis of all the material before us we have concluded that Mr Albert has been less than frank with regard to the explanation he has provided for his drug test results.
[347] We have been persuaded that Mr Albert is unsuitable for a position at the Hail Creek Mine. We wish to emphasise that our conclusion is based on the unsatisfactory nature of the explanation provided by Mr Albert in respect of his drug test results. We have not found Mr Albert to be unsuitable because of the test results. An isolated positive drug test would not of itself result in a finding of unsuitability. In this context it is relevant to note that Hail Creek's Fitness for Duty Policy154 sets out a graduated response to positive drug tests. It is only after a third confirmed positive test result that there is a review of the employee's continued employment with the company. This review may result in termination of employment.
5.2 EDWARD HUGH APPLETON
[348] Mr Appleton is 52 years of age. He was employed by Pacific Coal at the Blair Athol minesite as a Production Employee from 6 January 1986 until 24 August 1998. While working at Blair Athol Mr Appleton used the following operator skills:155
[349] Mr Appleton was also authorised by Blair Athol to conduct training at the mine in the following equipment:
[350] Annexure B to Mr Appleton's statement is a copy of a letter dated 26 September 1997 from the Mine Manager at Blair Athol appointing him as a Workplace Trainer and Workplace Assessor. Mr Appleton has a Certificate III qualification in Assessment from Queensland TAFE.157
[351] At paragraph 7 of his statement Mr Appleton says:
"At Blair Athol mine we worked in teams. Multi-skilling was a feature of the Blair Athol mine which meant I was required to use different skills at different times depending on the requirements of the team or supervisor."
[352] Mr Appleton completed the ARM-Q, the Applied Reading Test, the Spatial Relations Test, the personality profile questionnaire, the Abstract Reasoning Test and the group activity tests on 28 August 2003.
[353] Mr Appleton was interviewed by two teams of interviewers on 28 August 2003. The team which interviewed Mr Appleton using questionnaire A consisted of Messrs Shane Hughes and Paul Davies. The team which interviewed Mr Appleton using questionnaire B consisted of Messrs Andrew Carey and Joe Grimmond. The actual forms and notes used by each of the interviewers are attached to one of Mr Davies statements.158 Messrs Hughes, Carey and Grimmond did not give evidence in the proceedings.
[354] At paragraph 17 of his statement in respect of Mr Appleton, Mr Davies says:
"In respect of Mr Appleton, the consensus was that in almost every step of the process he questioned the purpose or the process. He wanted to know the background of the interviewers. He wanted to know why we were using (what he considered) a non standard interview panel, two people not three. He indicated he had done nothing since his BAC redundancy other than programs for the other Applicants. It was also the consensus that he was not open to accepting views on how things should be done that differed from his way."
[355] Mr Davies observed Mr Appleton in the experiential testing exercise. According to Mr Davies:
"Mr Appleton questioned every instruction he received and every rule which was made for this exercise, and raised up to 10 additional issues."159
[356] Mr Appleton's ARM-Q result was noted as "Not Recommended" and that Mr Appleton required safety awareness training in safety control, driver attitude and quality orientation.160
[357] Mr Appleton's other test results are:
Applied Reading |
6th percentile |
Well below average |
Spatial Relations |
5th percentile |
Well below average |
Abstract Reasoning |
3rd percentile |
Well below average |
Personality Profile |
8th percentile |
Well below average |
[358] Ms Walters makes the following observations about Mr Appleton:
"Ned's performance on all the ability tests was poor, suggesting that he may have considerable difficulty with all but the most routine aspects of the role.
Depending on whether Ned's poor performance on the Reading test is a result of a specific reading difficulty or a more general language problem, he may also have some difficulty understanding instructions and direction given orally as well as in writing." 161 [emphasis added]
[359] Ms Walters described Mr Appleton as a "well below average" candidate for the position of Mobile Equipment Operator.
[360] Mr Appleton's drug test results were negative. Mr Appleton's health assessment dated 27 August 2003 states that he is fit to undertake the position of plant operator. Dr Fenner has also ticked the box stating that Mr Appleton has a condition which results in restrictions on the type of work that he may undertake. The restriction says "need on site testing - signs and stickers".162
[361] The assessment also states that Mr Appleton is to undergo a review one month after commencing work. Such review is to consider the "report of vision test on signs".163
[362] A revised Section 4 Report was subsequently prepared by Dr Fenner and it is attached to his statement of 15 February 2004. In that report Dr Fenner has not ticked the box indicating that Mr Appleton is fit to undertake the position of plant operator. Dr Fenner says:
"Mr Appleton has a restriction and requires on site testing for accurate knowledge and identification of warning signs, danger signs and warning stickers and this restriction applies until Mr Appleton is tested. I state that Mr Appleton should be reviewed after the on site test.
This is the same opinion as I expressed in my report dated 27 August 2003."164
[363] In his evidence Mr Davies said that the restriction identified in Dr Fenner's report could be managed on-site. It was not contended that Dr Fenner's assessment of Mr Appleton rendered him unsuitable for a position at the Hail Creek Mine.165
[364] In respect of Mr Appleton, Hail Creek Coal contends he is unsuitable because of:
[365] For reasons we have already given we are not persuaded that the last matter relied on by Hail Creek Coal is relevant to an assessment of Mr Appleton's suitability for employment. The other matters relied on by Hail Creek Coal are based on information obtained during the assessment process.
[366] The results of Mr Appleton's ARM-Q are set out at Annexure PMD 12 to Exhibit Hail Creek 11. No meaningful explanation of these results was provided and we have already made a number of general observations about the company's reliance on the ARM-Q results. There is no other evidence before us which corroborates the conclusion that Mr Appleton not be recommended for a safety sensitive position. In particular no material has been adduced concerning safety issues arising from the interviews, reference checks, work history, job knowledge, safety record or training, that supports the conclusion reached.
[367] During the time Mr Appleton was employed at Blair Athol he attended a training course on "Safe and Efficient Blasting in Surface Coal Mines". There is no suggestion that his attendance or performance on that course was in any way deficient.
[368] In relation to the results of the psychometric tests Mr Appleton is described as a "well below average" candidate for the position of Mobile Equipment Operator. But that conclusion was qualified in Ms Walter's report, in the following terms:
"It is possible that Ned found the testing a novel and stressful experience and that he found it difficult to concentrate in the assessment situation. It is therefore possible that his mental capacity is underestimated to a degree by these tests."167 [emphasis added]
[369] The proposition that Mr Appleton's test results underestimate his mental capacity is supported by Mr Appleton's qualifications and experience. He had been appointed a "Workplace Trainer and Workplace Assessor" at the Blair Athol Mine. Part of that role included the preparation, delivery and assessment of training.168 Mr Appleton also has a Certificate III qualification in Assessment from Queensland TAFE and a Certificate of Competency in Workplace Training.
[370] In terms of his experience it is relevant to note that Mr Appleton had over 12 years experience at the Blair Athol mine and is competent to operate a range of plant and equipment.
[371] In the course of Mr Davies' evidence he made a number of unfavourable observations about Mr Appleton's performance during the assessment process.169 In our view the fact that Mr Appleton questioned the process and the instructions given to him must be seen in the context of his past treatment by Hail Creek and Pacific Coal Pty Ltd. These matters are detailed in our decision of 25 July 2003.170
[372] We have not been persuaded that Mr Appleton is unsuitable for the position of Mobile Equipment Operator at the Hail Creek Mine. We decline to grant the relief sought.
5.3 GARRY WILLIAM BARNES
[373] Mr Barnes is 46 years of age. He was employed by Pacific Coal at the Blair Athol minesite as a Production Employee from 1 August 1983 until 17 August 1998. While working at Blair Athol Mr Barnes used the following operator skills:171
[374] Mr Barnes has a Certificate IV in Assessment and Workplace Training and a Certificate III in Occupational Health and Safety.172 Mr Barnes is also a qualified Open Cut Examiner, which is a safety position with a similar function to that of a Mine Deputy for underground operations.173
[375] Mr Barnes completed the ARM-Q, the Applied Reading Test, the Spatial Relations Test, the personality profile questionnaire, the Abstract Reasoning Test and the group activity tests on 28 August 2003.
[376] Mr Barnes was interviewed by two teams of interviewers on 29 August 2003. The team which interviewed Mr Barnes using questionnaire A consisted of Messrs Shane Hughes and Paul Davies. The team which interviewed Mr Barnes using questionnaire B consisted of Messrs Andrew Carey and Joe Grimmond. The actual forms and notes used by each of the interviewers are attached to one of Mr Davies statements.174 Messrs Hughes, Carey and Grimmond did not give evidence in the proceedings.
[377] At paragraph 17 of his statement in respect of Mr Barnes, Mr Davies says:
"In respect of Mr Barnes, the interviewers felt he showed initiative and participated actively in the interview. He was keen to extend the coverage of the Order to include senior training System Coordinators and Open Cut Examiners."
[378] Mr Barnes' ARM-Q result states that he is recommended for a safety sensitive position.175
[379] Mr Barnes' other test results are:
Applied Reading |
55th percentile |
Average |
Spatial Relations |
70th percentile |
Above average |
Abstract Reasoning |
33rd percentile |
Below average |
Personality Profile |
55th percentile |
Average |
[380] In respect of Mr Barnes' results in the Abstract Reasoning Test, Ms Walters says:
"Overall, Garry performed quite well on the ability tests and his spatial ability appears to be particularly strong. His performance on the Non-Verbal Reasoning test was a little weaker than is ideal, but suggests that he will be able to cope with most problem solving situations he is likely to encounter in this role."176
[381] On the basis of his psychological assessment Ms Walters recommends Mr Barnes as an "average" candidate for the position of Mobile Equipment Operator. In that assessment Ms Walters states:
"Garry would appear to have considerable leadership potential, which if properly managed could be put to very good use in a supervising or team leader position."177
[382] Mr Barnes' drug tests were negative.
[383] Mr Barnes' health assessment dated 27 August 2003 states that he is fit to undertake a position in production. Dr Fenner has also ticked the box stating that Mr Barnes has a condition which results in restrictions on the type of work he may undertake. The restriction says:
"1) Wt 128 - not to use equipment with 120K or less rating
2) Glasses near vision
3) BMI 40 - not to enter areas of restricted access, or where rapid egress may be needed."178
[384] While Dr Fenner has not ticked the box specifying that a further review is required, the section specifying the type of review has the notation "Wte BMI". We infer this means that Mr Barnes' weight and body mass index is to be reviewed. No date is specified for the review.179
[385] In his statement of 3 February 2004 Mr Barnes says that his current weight is 116 kg, further he says:
"I do not perceive any problem with my mobility, flexibility, aerobic or general fitness. Indeed, I regard myself as in relatively good health for my age. For example, I have played competitive rugby league for most of my life and I only retired playing A Grade rugby league for the Clermont club when I was 40."180
[386] In his witness statement of 15 February 2004 Dr Fenner states that, having reviewed Mr Barnes' statement and the information he obtained in his assessment of Mr Barnes on 27 August 2003, he is now of the opinion that Mr Barnes is "unfit for work".181 Dr Fenner says:
"173 This is my opinion because if Mr Barnes tries to perform a number of the duties required for the proposed positions he will be placed at increased risk of injury. As indicated in my earlier reports, there is also a restriction on Mr Barnes' ability to move freely around the Hail Creek mine as he would be required to do if he was an operator.
174 I have indicated that Mr Barnes should be reviewed fully, when the risk factors are addressed. I estimate that is approximately 3 - 6 months from the issue of the Barnes Report, however, it is impossible to be exact about this, as these matters are largely a matter for Mr Barnes . . . Now shown to me marked PJF42 is a true copy of the Barnes Report."182
[387] In his Section 4 Report in respect of Mr Barnes dated 13 February 2004 Dr Fenner identifies some seven restrictions:
"Gary Barnes:
· Not to drive, climb or use any equipment without rating 130kg maximum load
· Glasses for near vision
· Not enter areas of restricted access or where rapid egress may be needed in any emergency situation
· Medium risk of injury if has to spend long periods operating machinery, particularly up to 11 hours shifts
Working postures trunk and neck
· Stooping or flexing to lean forward in excavators and other, similar equipment - places him at increased risk of injury
· Rotating and twisting when ripping in a dozer or when reversing and working backwards on mobile machinery places him at increased risk of injury
Manual handling
· Whole body vibration in exposed in machinery or vehicles, particularly traveling on rough roads places him at increased risk of injury
Unfit for work"183
[388] There are a number of inconsistencies between Dr Fenner's Section 4 assessments in respect of Mr Barnes' health:
1. In his first Section 4 Report Dr Fenner indicates that Mr Barnes is fit to undertake the proposed position. In his report of 15 February 2004 Dr Fenner says that he is now of the opinion that Mr Barnes is unfit for work.
2. In his first Section 4 Report Dr Fenner places the following restriction of Mr Barnes:
"not to use equipment with 120k or less rating"
In his February 2004 assessment Dr Fenner imposes the following restriction of Mr Barnes:
"Not to drive, climb or use any equipment without rating 130kg maximum load"
3. A number of the restrictions imposed in Dr Fenner's Section 4 Report of 13 February 2004 are not mentioned in his earlier assessment of Mr Barnes' fitness for work, for example:
"Medium risk of injury if has to spend long periods operating machinery, particularly up to 11 hours shifts"
Dr Fenner's only medical examination of Mr Barnes took place on 27 August 2003.
[389] In respect of Mr Barnes, Hail Creek Coal contends he is unsuitable because of:
[390] For the reasons we have already given we are not persuaded that the second matter relied on by Hail Creek Coal is relevant to an assessment of Mr Barnes' suitability for employment.
[391] Hail Creek Coal submits that, on the medical evidence:
[392] We are not persuaded that Mr Barnes is unsuitable for the position of Mobile Equipment Operator.
[393] In his August 2003 Section 4 Report in respect of Mr Barnes, Dr Fenner stated that he was fit to work in a production position. Dr Fenner also identified three restrictions, namely, that Mr Barnes required glasses for near vision, was not to use equipment with a 120 kg or less rating and was not to enter areas of restricted access or where rapid egress may be needed. The report also stated that Mr Barnes has fair to weak pelvic muscles. This clinical finding was based on the application of the Kraus Weber test as modified by Dr Fenner.
[394] A number of points may be made in respect of the three restrictions identified.
[395] The first is that the evidence establishes that Mr Barnes has reduced his weight to less than 120 kg. Further, Mr Hannigan's evidence is that the equipment at Hail Creek is rated above 120 kg.185 Hence even if this restriction was warranted it would not create an impediment to Mr Barnes being employed at Hail Creek.
[396] The second is that Mr Barnes has glasses for near vision.
[397] Finally, the third restriction relates to access and egress to restricted areas.
[398] Mr Barnes has applied for a position in Pit Operations. The Hail Creek Job Demands Manual sets out the requirements for such a position at pages 18-22.186 Two points may be made in this regard:
[399] Further, Mr Davies conceded in cross-examination that it would be "unusual" for someone employed in Pit Operations to work in confined spaces.189
[400] We are not persuaded that this restriction renders Mr Barnes unsuitable for employment at Hail Creek. Our conclusion in this regard is fortified by the fact that one of the sixteen former Blair Athol employees subject to our Exceptional Matters Order - Mr Robert David Smith - has a similar restriction, yet he has met the suitability requirements at Hail Creek and had been employed at Blair Athol.190
[401] As we have already noted, Dr Fenner's revised February 2004 Section 4 Report in respect of Mr Barnes contains four further restrictions. It also concludes with the opinion that Mr Barnes is unfit for work.
[402] The additional four restrictions relate to Dr Fenner's clinical finding that Mr Barnes has fair to weak pelvic muscles.191
[403] We are not satisfied that the additional four restrictions are soundly based, for two reasons.
[404] First, Dr Fenner's assessment of Mr Barnes' pelvic muscles is based upon his use of the modified Kraus Weber test. As we have already said, we are not satisfied that this is an appropriate test for assessing fitness for work. Nor are we satisfied that the results of such a test provide a proper basis for the restrictions imposed by Dr Fenner.192
[405] The second reason for our conclusion is that Dr Fenner did not require Mr Barnes to undergo a Functional Capacity Evaluation (FCE). This is significant because Dr Fenner's evidence is that: "It is my usual practice to refer candidates with relevant medical difficulties for a Functional Capacity Evaluation."193 No satisfactory explanation is provided for Dr Fenner's departure from his usual practice in this instance. We infer that at the time he examined Mr Barnes Dr Fenner did not regard his "fair to weak pelvic muscles" to be of such concern as to warrant a FCE.
[406] Dr Fenner concludes his February 2004 Section 4 Report in respect of Mr Barnes with the opinion that Mr Barnes is unfit for work. Hail Creek relies on Dr Fenner's opinion in this regard despite the fact that he is not proffered as an expert witness. It seems to us that Dr Fenner's conclusion cannot be divorced from the various restrictions he has placed on Mr Barnes. We have decided that a number of those restrictions are not soundly based. It follows that his conclusion is similarly flawed and we reject it.
[407] Mr Barnes had 15 years experience at the Blair Athol mine. He is competent to operate numerous types of plant and equipment. He is also a qualified Open Cut Examiner.
[408] We have not been persuaded that Mr Barnes is unsuitable for the position of Mobile Equipment Operator at the Hail Creek Mine. We decline to grant the relief sought.
5.4 GABRIEL PANI CRICHTON
[409] Mr Crichton is 53 years of age. He was employed by Pacific Coal at the Blair Athol minesite as a Production Employee until 17 August 1998. At the time of his termination he had 10 years service. While working at Blair Athol Mr Crichton used the following operator skills:194
[410] Mr Crichton completed the ARM-Q, the Applied Reading Test, the Spatial Relations Test, the personality profile questionnaire, the Abstract Reasoning Test and the group activity tests on 28 August 2003.
[411] Mr Crichton was interviewed by two teams of interviewers on 27 August 2003. The team which interviewed Mr Crichton using questionnaire A consisted of Messrs Shane Hughes and Paul Davies. The team which interviewed Mr Crichton using questionnaire B consisted of Messrs Andrew Carey and Joe Grimmond. The actual forms and notes used by each of the interviewers are attached to one of Mr Davies statements.195 Messrs Hughes, Carey and Grimmond did not give evidence in the proceedings.
[412] At paragraph 15 of his statement in respect of Mr Crichton, Mr Davies says:
"He could not provide examples of some of the conduct or attributes being questioned including examples of a big mistake, of willingness to learn etc. Otherwise, the concensus [sic] was that whilst he did not display any more positive or more negative attributes, his interview was unremarkable."
[413] In respect of Mr Crichton's participation in the experiential exercises Mr Davies says:
"I observed Mr Crichton's behaviour in the experiential exercises. I observed that a group of three or four including Mr Crichton did not get involved in the exercises. Further in the ropes exercise, his group did not consider and place controls on safety issues."196
[414] Mr Crichton's ARM-Q result was noted as "not recommended for a safety sensitive position" and required safety awareness training in the areas of safety control, risk avoidance and stress tolerance.197
[415] Mr Crichton's other test results are:
Applied Reading |
15th percentile |
Well below average |
Spatial Relations |
3rd percentile |
Well below average |
Abstract Reasoning |
3rd percentile |
Well below average |
Personality Profile |
8th percentile |
Well below average |
[416] In respect of Mr Crichton's test results Ms Walters says:
"His performance on all the ability tests was well below average. He may be expected to have more difficulty than most in making visual judgements and understanding the relationships between objects. Depending on whether his difficulty is in relation to reading specifically or in verbal language skills more generally, he may also have difficulty in following information and instructions given orally as well as in writing. His results on the Non-Verbal test suggest that he may have difficulty with all but the most routine tasks in this role."198
[417] On the basis of his psychological assessment Ms Walters recommends Mr Crichton as a "well below average" candidate for the position of Mobile Equipment Operator.
[418] Mr Crichton's drug test results were negative.
[419] Mr Crichton's health assessment dated 27 August 2003 states that he is fit to undertake the position of plant operator. Dr Fenner has also ticked the box stating that Mr Crichton has a condition which results in restrictions, namely, he is required to wear glasses.199
[420] In respect of Mr Crichton, Hail Creek Coal contends he is unsuitable because of:
[421] The results of Mr Crichton's ARM-Q are set out at Annexure PMD11 to Exhibit Hail Creek 13. We have already made a number of general observations about the company's reliance on the ARM-Q results.
[422] Further, Ms Walters' assessment of Mr Crichton is inconsistent with the proposition that he is unsuitable for a safety sensitive position, Ms Walters says that "his overall approach to safety appears to be good"; "He seems to take things a little more seriously than most and thinks things through before taking action"; and "He will be prepared to follow rules and procedures quite closely".200
[423] Mr Crichton's ARM-Q result also stated that he required safety awareness training in, among other things, stress tolerance. This too is at odds with Ms Walters' assessment which states:
"Stress Tolerance
Strengths
· Gabriel appears to be as emotionally stable and to experience as much physical tension as most people and would be expected to cope reasonably well with stress.
· He appears to enjoy a certain amount of pressure to maintain his interest.
· He appears to have a moderate level of confidence in his own ability.
Areas for development
None identified."201
[424] The second matter relied upon by Hail Creek as establishing Mr Crichton's unsuitability is his failure to properly complete his health and safety declaration. Specifically Mr Crichton ticked on that document:
[425] Hail Creek Coal contend that the manner in which Mr Crichton completed the health and safety declaration supports the fact that his performance on the applied reading test was very poor and suggests that he has considerable difficulty understanding written information.
[426] Mr Crichton was not cross-examined about the manner in which he completed the health and safety declaration. We do not know why he ticked each of the mutually exclusive boxes. He may have made a mistake. But we don't think that one such error is sufficient to support a conclusion that he has considerable difficulty understanding written information. We now turn to the psychometric test results.
[427] As we have already noted the test results measure a candidate's percentile ranking against a general population group, in this instance a group of about 100 applicants for basic technical and operator roles at mine sites in Australia who were short listed for assessment centres. The results enable predictions to be made about which applicants were likely to perform better than others on the job, but they do not in themselves enable assessments to be made about a candidates capacity to actually do the job. These are important limitations because, as stated in paragraph 5 of the Preference Order, the onus of establishing unsuitability lies with Hail Creek Coal and the test it must meet is not that other applicants are more suitable for the position, but that the individual concerned is unsuitable.
[428] The test results must be viewed in the context of Ms Walters overall assessment of Mr Crichton and his work experience.
[429] In addition to the test results and comments relied upon by Hail Creek, Ms Walters made a number of other, more favourable, observations about Mr Crichton, in particular:
"Gabriel's profile suggests that he has a strong work ethic and is likely to be very conscientious and hard working."
"He is more organised than most people and likes to plan his work in advance. However, he is still able to adapt his plans when circumstances require it and is thus probably very efficient."
"He seems sufficiently independently minded to be able to think for himself and take the initiative when necessary."
"Gabriel takes a balanced approach to decision making, taking account of logic and verifiable facts but without neglecting more intuitive approaches when these are relevant."
"Although he is concerned with the immediate practical requirements of his role, this is not so extreme as to suggest that he is unable to see the longer-term implications and the `bigger picture' at the same time."
"[M]oderately trusting and quite a warm person generally and is likely to be able to establish cooperative relationships with his colleagues given time."203
[430] Ms Walters does not say that Mr Crichton could not function effectively in a team environment, rather it is suggested that he may not contribute to his team's ideas and progress as much as is desirable. We do not think that such an assessment renders Mr Crichton unsuitable. Ms Walters also says:
"He seems to be quite confident in social situations and enjoys being the focus of attention. This is however not so extreme that is would disrupt interactions within his team.
. . .
He expresses a slight preference for working and making decisions independently. He will probably show some initiative, but his independence is not so extreme that he would find it difficult to work in a team-based environment."204
[431] The assessment centre results must also be balanced against Mr Crichton's 10 years experience at the Blair Athol Mine. He worked in a team environment while employed at Blair Athol and utilised a range of operator skills.
[432] Since his employment at Blair Athol ended he has worked with a number of contractors on coal mines in Queensland including the Newlands Coal Operations Project operated by Thiess Pty Ltd. While employed by Thiess he was authorised to operate a range of plant and equipment.205
[433] We have not been persuaded that Mr Crichton is unsuitable for the position of Mobile Equipment Operator at the Hail Creek Mine. We decline to grant the relief sought.
5.5 ROBERT EDWARD CUSACK
[434] Mr Cusack is 54 years of age. He was employed by Pacific Coal at the Blair Athol minesite as a Production Employee from 9 May 1988 until 24 August 1998. While working at Blair Athol Mr Cusack used the following operator skills:206
[435] Mr Cusack undertook the ARM-Q, the Applied Reading Test, the Spatial Relations Test, the personality profile questionnaire, the Abstract Reasoning Test and the group activity tests on 28 August 2003.
[436] Mr Cusack was interviewed by two teams of interviewers on 29 August 2003. The team which interviewed Mr Cusack using questionnaire A consisted of Messrs Shane Hughes and Paul Davies. The team which interviewed Mr Cusack using questionnaire B consisted of Messrs Andrew Carey and Joe Grimmond. The actual forms and notes used by each of the interviewers are attached to one of Mr Davies statements.207 Messrs Hughes, Carey and Grimmond did not give evidence in the proceedings.
[437] At paragraph 22 of his statement in respect of Mr Cusack, Mr Davies says:
"The consensus of the interviewers was that Mr Cusack did not establish a good relationship with the interviewers. He was fixed in his ways and quite dogmatic."
[438] There is no direct evidence regarding Mr Cusack's participation in the experiential exercises.
[439] Mr Cusack's ARM-Q result states that he meets the minimum requirements for a safety sensitive position, with training required in risk avoidance.208
[440] Mr Cusack's other test results are:
Applied Reading |
18th percentile |
Well below average |
Spatial Relations |
3rd percentile |
Well below average |
Abstract Reasoning |
1st percentile |
Well below average |
Personality Profile |
8th percentile |
Well below average |
[441] In her assessment report Ms Walters makes the following comments about Mr Cusack's test results:
"His performance on all the ability tests was well below average. He may be expected to have more difficulty than most in making visual judgements and understanding the relationship between objects. Depending on whether his difficulty is in relation to reading specifically or in verbal and language skills more generally, he may also have
difficulty in following information and instructions given orally as well as in writing. His results on the Non-Verbal test suggest that he may have difficulty with all but the most routine tasks in this role."209 [emphasis added]
[442] In Ms Walters' opinion Mr Cusack was a "well below average" candidate for the position of Mobile Equipment Operator.
[443] Mr Cusack's drug test results were negative.
[444] Dr Fenner examined Mr Cusack on 29 August 2003. In Section 2 of the relevant form Mr Cusack indicates that he has suffered from, or is suffering from, a number of medical conditions, namely:
[445] At the time of the examination Mr Cusack was taking a number of prescribed medications: Thyroxine, insulin, coversyl, aspirin, diaformin, noten and gemfibrizol.
[446] In the space for the Examining Medical Officer's comments Dr Fenner records that Mr Cusack told him that he was "easily breathless". In this regard Mr Cusack's spirometry reading was abnormal. He achieved 69 per cent for his observed forced expiration in the first second and 67 per cent in his forced vital capacity. A result of 70 per cent or more in each of these tests is required to demonstrate good respiratory function.210
[447] Dr Fenner also notes that Mr Cusack's range of movement in his lower back, his straight leg raising and his range of neck movements were all abnormal.211 He made the following notes in the place for the Examining Medical Officer's comments:
"(a) when he bent over he was still 20 centimetres from the floor;
(b) his side flexion was only 20 per cent of normal range;
(c) his extension (that is, leaning backwards) was poor;
(d) his straight leg raising was only 70 degrees;
(e) his neck was short and muscular and he had poor rotation."
[448] The 29 August 2003 Section 4 Report completed in respect of Mr Cusack says that he has conditions resulting in restrictions, namely:
[449] The report also notes that Mr Cusack's back is assessed at 59/90 and weak, his knees are average and his aerobic fitness is low.
[450] It is also relevant to note that Dr Fenner did not tick the box `Is fit to undertake the proposed/current position',212 nor did he sign the form (or more accurately his signature is crossed out). In this regard Dr Fenner says: "I did not sign at the bottom of the Report, as I needed more information before I was prepared to certify whether Mr Cusack was fit for work or not."213
[451] In November 2003 Mr Cusack provided Dr Fenner with a copy of his HBA1c results, which are set out below214:
Date: |
13/9/02 |
4/4/03 |
6/5/03 |
4/6/03 |
27/10/03 |
Result: |
9.3 |
11.3 |
10.5 |
10.7 |
8.5 |
[452] When Mr Cusack was examined by Dr Fenner in August 2003 his blood sugar level was 12.5.
[453] Mr Cusack is an insulin dependent diabetic. The information provided by his treating doctor says that the range of results suggesting good control of his diabetes is 7-8. A result above 10.0 is in the reference range for poor control.215
[454] Mr Cusack attended a functional capacity evaluation by Janet Benstead and Associates on 4 December 2003. A copy of the evaluation report is annexed to Mr Cusack's witness statement.216 The report concludes in the following terms:
"Mr Cusack is a 54 year old man who is hoping to obtain a position as a mobile equipment operator with Hail Creek Coal. He advised he has had `a stent in his heart', is a well controlled insulin dependent diabetic and had a cortisone injection in his right shoulder after an injury 6/7 years ago. He does not find any of these issues have limited his level of function. His BMI was in the morbidly obese category - he advised he is currently seeing a dietician to assist in losing weight.
Assessment results indicated he had slightly stilted movement patterns when arising from squat and kneel positions, and demonstrated slightly reduced balance during squatting tasks. This is likely to be attributable to reduced flexibility and his overweight status. He was able to lift 25kg from ground level to waist level with little difficulty, and 20kg to eyelevel (muscular maximum). His cardiovascular fitness appeared poor despite the step test result.
On the day of the assessment, there were no functional deficits that would indicate he would be unable to perform work as a mobile equipment operator, however, I am unable to comment on his ability to tolerate jolting and jarring forces from plant.
Mr Cusack would be likely to benefit from a weight loss and fitness program, and he should consult his Treating Medical Officer regarding this."
[455] On 14 November 2003 Mr Cusack attended at the practice of Dr Egan in Mackay and undertook an exercise stress test. A copy of the report is annexed to Mr Cusack's statement.217 The summary of the report states: "No ECG changes indicative of Ischaemia".
[456] Dr Fenner reviewed the FCE report from Ms Benstead in December 2003. After reviewing the report Dr Fenner prepared a further Section 4 Report in respect of Mr Cusack, dated 16 January 2004.218 This report is referred to as the Cusack Further Report in Dr Fenner's witness statement. At paragraph 189 of that statement Dr Fenner says:
"189 The FCE report supports my conclusions that Mr Cusack has a weak back, average knees and low aerobic fitness. From the health assessment I conducted I know Mr Cusack is overweight, he has diabetes which appears poorly controlled based on the HBA1c results provided to me, his BMI puts him in the category of being obese, he has a significant number of risk factors for heart disease and he has already had intervention in relation to the functioning of his heart and coronary arteries. Given all these medical factors, it is my opinion that Mr Cusack has significant medical problems which need to be addressed and he is a high risk candidate for driving duties and for long shifts. The Cusack Further Report which contains my opinion in relation to Mr Cusack, after considering the results of the FCE. Based on my assessment of him:
189.1 Mr Cusack requires glasses for near vision and night driving;
189.2 I am still not prepared to certify him as fit for work, because he should have an EST to check his heart fitness before any final view is formed as to his fitness for work; and
189.3 he has poor aerobic fitness which makes him unsafe for work at a mine site until his aerobic fitness is improved."219
[457] The 16 January 2004 Section 4 Report says that Mr Cusack has conditions resulting in restrictions. The following comments are made in this regard:
"1) glasses for near vision and night driving
2) poor aerobic fitness unsafe for mine site until improved
3) needs exercise stress test before starting work."220
[458] Contrary to Dr Fenner's opinion we are not of the view that Ms Benstead's report supports his conclusion that Mr Cusack has a "weak back". Ms Benstead's report does provide some support for Dr Fenner's opinion that Mr Cusack has low aerobic fitness. While Ms Benstead notes that Mr Cusack's result in the three minute step test was "above average" this is qualified by the following observation: "Mr Cusack was observed to sweat profusely, with a relatively high rate of respiration during the more physical aspects of the assessment". Ms Benstead also states that: "Mr Cusack would be likely to benefit from a weight loss and fitness problem, and he should consult his treating Medical Officer regarding this".
[459] Dr Fenner first saw Dr Egan's report when he received Mr Cusack's witness statement in February 2004. Dr Fenner says that this report does not change his opinion about Mr Cusack's fitness for work because:
"191.1 it records that Mr Cusack achieved a maximum heart rate of 60.47%. It is necessary for a candidate to achieve a maximum heart rate of 85% before the results of the exercise stress test are meaningful, because otherwise the heart is not exerted adequately to test whether there are problems in the heart's performance. This report is not, therefore, a true test of Mr Cusack's cardiovascular health;
191.2 it lists that Mr Cusack is taking Noten. Noten is a medication which is prescribed to treat blood pressure or abnormal heart performance. It has the effect of slowing the heart rate. If Mr Cusack takes Noten to control his blood pressure, then he can cease taking Noten for a three day period, and undertake a conventional exercise stress test which will give a proper test of his heart, without jeopardising his medical management. If Mr Cusack takes Noten to control abnormal heart performance, it would not be appropriate for him to cease taking Noten, and he would need to undertaken a Thalium exercise stress test. A normal EST on medication such as Noten is unacceptable for assessment;
191.3 it records that he terminated the test on the basis of leg discomfort. There is no information about the leg discomfort. It is clear from the medications and the indication for the test which are listed at the top of the report however that:
(a) Mr Cusack has a number of chronic medical conditions. He is a diabetic who takes insulin and diaformin. In the Report I prepared in August 2003 I requested that Mr Cusack provide his HBA1c results to me. From the results Mr Cusack gave me in November 2003, it is clear Mr Cusack's diabetes is not well controlled;
(b) Mr Cusack has arterial disease, which is a common complication of diabetes, particularly poorly controlled diabetes. He takes aspirin to thin his blood, which enables it to flow more easily through his arteries. He has a stent in one of the arteries to his heart;
(c) he has an under active thyroid and takes Thyroxine to stimulate his thyroid. This can be a risk factor in heart disease;
(d) as I have dealt with above, he takes Noten, which slows his heart rate. I am not certain whether he takes this to control his blood pressure or irregularities in the performance of his heart; and
(e) he takes Coversyl for blood pressure control, to reduce heart failure and to provide kidney protection prevalent in diabetics.
191.4 it concerns me that the exercise stress test was terminated for leg discomfort. This suggests Mr Cusack may have arterial disease in his legs. If he has this, he would be likely to experience disabling cramps in his legs, particularly if he was having to move quickly, and that would potentially make him unsafe to work at a mine, especially in an emergency situation. This needs further investigation as it is potentially an indication of a condition known as intermittent claudication which is specifically referred to in the draft guidelines which are exhibit PJF2 to this statement."221
[460] On 13 February 2004 Dr Fenner issued a further Section 4 Report in respect of Mr Cusack.222 That report says that Mr Cusack is unfit for work and identifies eight restrictions:
"Plant operator
· Unable to spend many hours per day operating shift machinery, particularly up to 11 hours - compromises safety and places him at increased risk of injury
· Requires glasses to meet visual standards
· Cannot do work overhead without compromising safety and places him at increased risk of injury
· Restricted capacity for low or ground level work - places him at increased risk of injury
· Major limited capacity for heavy manual work places him at increased risk of injury
· Working and walking on uneven grounds places him at increased risk of injury.
· Has a medical condition described as restriction in Austroads Publications (2003) "Assessing fitness to drive" -
Manual handling
· Should not be exposed to whole body vibration in exposed in machinery or vehicles, particularly traveling on rough roads as places him at increased risk of injury - places him at increased risk of injury."223
[461] In his witness statement Dr Fenner states that his medical opinion is that "Mr Cusack is unfit for work until his cardiovascular fitness is investigated with an appropriate EST, his low aerobic fitness is addressed and his diabetes is better controlled."224
[462] Dr Schneider examined Mr Cusack on 12 November 2003. In his witness statement Dr Schneider sets out his assessment of Mr Cusack in these terms:
"In my opinion, based on the clinical findings and information available to me at the time I considered Mr Cusack was fit to work as a Mobile Plant Operator with the restriction that correction was required for near vision.
Mr Cusack was found to have some mixed hearing loss and was taking regular medication for a number of chronic medical conditions, which at the time of review, appeared adequately managed and controlled. In order to address and monitor his medication and chronic medical conditions I recommend medical review in 4-5 months, together with a review of his vision and hearing yearly."225
[463] The health assessment form completed in respect of Mr Cusack is set out at Annexure JDS13 to Dr Schneider's statement. Section 2.4 of the form notes that Mr Cusack has diabetes. There is no reference to Mr Cusack's HBA1c results. Nor does it appear that a blood glucose test was carried out during the course of his examination by Dr Schneider. In these circumstances it is difficult to determine the basis for Dr Schneider's conclusion that Mr Cusack's diabetes (being one of his chronic medical conditions) "appeared adequately managed and controlled".
[464] In relation to Mr Cusack's EST results, Dr Schneider says:
"Mr Cusack underwent an exercise stress test at the Dept of Nuclear Medicine and Cardiology at St Andrews Hospital on 8th March 2004. This was reported as follows, `Inconclusive test as the patient was unable to obtain an adequate heart rate that is probable due to the presence of beta blocker therapy. However with the above proviso significant pathology was not identified'.
I would be happy to accept this, together with the absence of any significant ischaemic changes in his ECG during the test, to consider him fit to operate mobile equipment with regular medical surveillance as recommended."226
[465] Dr Schneider does not address the limitations in Mr Cusack's EST which are set out in Dr Fenner's statement (see paragraph [459] above). Dr Fenner's evidence in this regard was not shaken during cross-examination.227 In his statement in reply Dr Fenner says, at paragraph 38:
"In that regard, I conducted the thalium ESTs for Queensland X-Ray at the Mater Hospital in Mackay for approximately 7 years from 1995 to 2002. I estimate I have personally conducted in excess of approximately 10,000 ESTs, including approximately 4,000 of the thalium ESTs. The thalium ESTs are those which are frequently ordered by cardiologists prior to a procedural surgery or to obtain post-operative information and are usually performed on candidates with serious heart disease. As I have previously stated, to obtain any information which will enable an informed opinion about Mr Cusack's state of health, it will be necessary for him to be withdrawn from the beta-blocker for a period of time prior to the EST, if it is medically safe to do so. If it is not medically safe to do so, then he needs to undergo a thalium EST."228
[466] We accept Dr Fenner's evidence in respect of this issue and prefer it to Dr Schneider's.
[467] In respect of Mr Cusack, Hail Creek Coal contends he is unsuitable because of:
[468] We have concluded that Mr Cusack is not presently fit to undertake the position of Mobile Equipment Operator at Hail Creek Coal.
[469] While a number of the restrictions identified by Dr Fenner in his March 2004 Section 4 Report are either not relevant to the position in question or are not supported by the evidence, we are of the view that given Mr Cusack's chronic medical conditions, his low aerobic fitness and poorly controlled diabetes render him unsuitable at this time.
[470] In the circumstances it is unnecessary for us to address the other contentions advanced by Hail Creek in support of its application.
[471] We grant the relief sought in respect of Mr Cusack.
5.6 ATHOL EARNEST FINGER
[472] Mr Finger is 43 years of age. He was employed by Pacific Coal at the Blair Athol minesite as a Production Employee from 12 August 1985 until 28 August 1998. While working at Blair Athol Mr Finger used the following operator skills:229
[473] Mr Finger is a panel beater by trade.
[474] Mr Finger completed the ARM-Q, the Applied Reading Test, the Spatial Relations Test, the personality profile questionnaire, the Abstract Reasoning Test and the group activity tests on 28 August 2003.
[475] Mr Finger was interviewed by two teams of interviewers on 28 August 2003. The team which interviewed Mr Finger using questionnaire A consisted of Messrs Shane Hughes and Paul Davies. The team which interviewed Mr Finger using questionnaire B consisted of Messrs Andrew Carey and Joe Grimmond. The actual forms and notes used by each of the interviewers are attached to one of Mr Davies statements.230 Messrs Hughes, Carey and Grimmond did not give evidence in the proceedings.
[476] At paragraph 23 of his statement in respect of Mr Finger, Mr Davies says:
"In respect of Mr Finger:
(a) all interviewers felt Mr Finger had not actively participated in the experiential exercises which had occurred earlier that morning;
(b) all interviewers felt he was extremely quiet and controlled in his demeanour. It was extremely difficult to get any discussion going with him. This confirmed our views about his lack of participation in the experiential exercises;
(c) he was unable to respond to questions when asked to explain by examples his behaviour in situations arising generally in the workplace. We all felt Mr Finger did not demonstrate safety awareness, initiative, stress tolerance, a willingness to learn or problem solving abilities in his answers;
(d) from his performance in the interviews and the experiential exercises, Mr Finger did not demonstrate interpersonal behaviours that would make him suitable for employment at Hail Creek which focuses on team work and requires all team members to understand the nature of the work environment and to actively participate in the shift's tasks."231
[477] Mr Finger's ARM-Q result states that he meets the minimum requirements for a safety sensitive position, with training required in the area of driver attitude.232
[478] Mr Finger was cross-examined about a number of incidents in which he was involved when employed at Bair Athol. In particular it would appear that:
[479] Mr Finger's other test results are:
Applied Reading |
22nd percentile |
Below average |
Spatial Relations |
15th percentile |
Well below average |
Abstract Reasoning |
7th percentile |
Well below average |
Personality Profile |
30th percentile |
Below average |
[480] In Ms Walters' assessment Mr Finger was a "well below average" candidate for the position of Mobile Equipment Operator.
[481] In her assessment report Ms Walters makes the following comments about Mr Finger's test results:
"His performance on all the ability tests was below average. He may be expected to have more difficulty than most in making visual judgements and in understanding the relationship between objects. He will probably be able to cope with routine tasks but may have difficulty in understanding more complex ideas and in solving novel problems. Depending on whether his difficulty is in relation to reading specifically or in verbal and language skills more generally, he may also have difficulty in following information and instructions given orally as well as in writing."236 [emphasis added]
[482] It is apparent that a number of Ms Walter's negative observations about Mr Finger are subject to some qualification. Despite her assessment of Mr Finger as a well below average candidate, Ms Walter makes the following favourable comments:
"Willing to follow rules and procedures and quite well organised, Athol nevertheless seems to retain a degree of flexibility and will be likely to be an efficient operator but to be comfortable in responding to changes in circumstances. Quite conscientious, he is likely to be as concerned as most to meet his obligations but will balance these with reference to his own needs. Although he is unlikely to appear particularly enthusiastic, he seems to have sufficient drive and a strong enough work ethic to be consistent with putting a reasonable level of effort into his work. His overall thinking style appears to be quite balanced so that, although he will focus on achieving immediate goals and be quite objective in his decision making, he will also take into account more subjective information and to consider the longer term view."237
[483] Mr Finger's drug test results were negative.
[484] Mr Finger's health assessment dated 27 August 2003 states that he is fit to undertake a production position.238
[485] In respect of Mr Finger, Hail Creek Coal contends he is unsuitable because of:
[486] Hail Creek has not persuaded us that Mr Finger is unsuitable for the position of Mobile Equipment Operator. In relation to occupational health and safety considerations we rely on our previous observations about the ARM-Q results. In any event, Mr Finger's results in this regard would not deem him unsuitable for the position for which he has applied.
[487] Hail Creek Coal also relies on a number of incidents involving Mr Finger when he was employed at Blair Athol. There is no material before us in respect of the relative seriousness of these incidents. We do not know how much damage was caused to company property. And other than the evidence in respect of Mr Finger's strained elbow, we do not know if anyone
was injured in any of these incidents. Nor is there any evidence to suggest that Mr Finger was disciplined or provided with additional training arising out of these incidents. Despite this, we have taken into account that in 13 years of employment at Blair Athol Mr Finger was involved in three safety incidents.
[488] It is also relevant to note Ms Walters' observations about Mr Finger's approach to safety:
"Although Athol's overall anxiety level does not appear to be particularly high and he seems to be generally less tense than most people, he does appear to be more inclined to respond to difficulties in a more emotional way. As a result, he may be inclined to take criticism personally and may also tend to panic in emergencies. Apart from this however, his approach to safety seems to be quite good and he is neither impulsive nor inclined to take risks."239 [emphasis added]
[489] The suggestion is that he "may also tend to panic in emergencies" is heavily qualified, unlike the observation that he is "neither impulsive nor inclined to take risks". Nor is there any evidence before us suggesting that Mr Finger panicked in an emergency situation while employed at Blair Athol.
[490] We also note that Ms Walters said that Mr Finger was:
[491] The observations made by the interviewers (see paragraph [476] above) are general and subjective in nature. In relation to Mr Finger's interpersonal skills, Ms Walters says:
"When working with people, Athol seems to be quite reserved and is likely to hold back from involvement in team activities. His is seems to have a moderate level of self confidence, but will be less concerned with interacting with people and particularly with influencing them than most. As a result, he may make less of a contribution to his team's thinking than is ideal, particularly as he appears to be relatively independent in his thinking and will probably prefer to act and make decisions alone. This, coupled with his apparent difficulty in trusting others, suggests that he may have more difficulty than most in adapting to working in a team and, although he will not be concerned to push his own views on others, neither will he be easily persuaded to act according to group consensus if he disagrees."240
[492] Ms Walters does not say that Mr Finger could not function effectively in a team environment, rather it is suggested that he may make less of a contribution to his team thinking than is ideal. We do not think that such an assessment renders Mr Finger unsuitable.
[493] The assessment centre results must also be balanced against Mr Finger's 13 years experience at the Blair Athol mine and the fact that he is competent to operate a range of plant and equipment. Mr Finger worked in a team environment while employed at Blair Athol.
[494] Mr Finger is qualified and suitable for the position of Mobile Equipment Operator at the Hail Creek Mine. We decline to grant the relief sought.
5.7 DONALD GEORGE HALVERSON
[495] Mr Halverson is 64 years of age. He was employed by Pacific Coal at the Blair Athol minesite as a Production Employee for some thirteen years until 17 August 1998. While working at Blair Athol Mr Halverson used the following operator skills:241
[496] Mr Halverson completed the ARM-Q, the Applied Reading Test, the Spatial Relations Test, the personality profile questionnaire, the Abstract Reasoning Test and the group activity tests on 28 August 2003.
[497] Mr Halverson was interviewed by two teams of interviewers on 29 August 2003. The team which interviewed Mr Halverson using questionnaire A consisted of Messrs Shane Hughes and Paul Davies. The team which interviewed Mr Halverson using questionnaire B consisted of Messrs Andrew Carey and Joe Grimmond. The actual forms and notes used by each of the interviewers are attached to one of Mr Davies statements.242 Messrs Hughes, Carey and Grimmond did not give evidence in the proceedings.
[498] At paragraph 23 of his statement in respect of Mr Halverson, Mr Davies says:
"The interviewers felt Mr Halverson did not display any initiative or motivation. This was confirmed by his performance in the experiential exercises. He was not an active participant. He had the view that everyone should get paid the same whether they put in a full day or not. The interviewers' consensus was there should be pay differentials based on performance."243
[499] Mr Halverson's ARM-Q result states that he was "not recommended" and required safety awareness training in all areas of the ARM-Q being safety control, risk avoidance, stress tolerance, driver attitude and quality orientation.244
[500] Mr Halverson's other test results are:
Applied Reading |
4th percentile |
Well below average |
Spatial Relations |
85th percentile |
Well above average |
Abstract Reasoning |
27th percentile |
Below average |
Personality Profile |
15th percentile |
Well below average |
[501] In her assessment report Ms Walters makes the following comments about Mr Halverson's test results:
"Don performed very well on the Space Relations test and would be expected to be more skilled than most a making visual judgements and understanding the relationships between objects. He may therefore be expected to be able to cope well with tasks involving manual handling and materials movement.
Areas for development
Don's performance on all the Applied Reading tests was poor, suggesting that he may have considerable difficulty with all but the most routine kinds of documentation. Depending on whether his poor performance on the Reading test is a result of a specific reading difficulty or a more general language problem, he may also have some difficulty understanding instructions and direction given orally as well as in writing.
His performance on the Non-Verbal Test suggests that he is likely to have more difficulty than most in solving novel problems and in interpreting information. However, he is likely to be able to cope with most routine tasks and relatively straightforward difficulties."245
[502] In Ms Walters' assessment Mr Halverson was an "average candidate" for the position of Mobile Equipment Operator.
[503] Mr Halverson's drug test results were negative.
[504] We deal with Dr Fenner's Section 4 Reports in respect of Mr Halverson shortly.
[505] In respect of Mr Halverson, Hail Creek Coal contends he is unsuitable because of:
[506] Hail Creek submits that, on the medical evidence, Mr Halverson is unsuitable, in this regard:
[507] In his August 2003 Section 4 Report in respect of Mr Halverson, Dr Fenner stated that he was fit to work as a plant operator and coal plant operator. Dr Fenner also ticked the box "The coal miner has a condition which results in the following restrictions". The "restrictions" identified are explained in Dr Fenner's statement in these terms:
"108 The Report on Mr Halverson's health assessment which I completed and provided to Hail Creek Coal shows that he has conditions resulting in restrictions. They were:-
108.1 Mr Halverson requires glasses for near vision;
108.2 Mr Halverson has right shoulder pain and weakness and he should avoid lifting with his right arm until this has settled;
108.3 I suggested Mr Halverson should undergo an Exercise Stress Test (EST) before starting the job;
108.4 HBA1c results should be obtained from his general practitioner, as his level was 9.6 in August 2003; and
108.5 a further review was required when his right shoulder was stronger. If he had started work, an audiogram should be performed three months after he had started work."246
[508] Dr Fenner also says: "I did not sign off on the Report down the bottom, where I have crossed out my signature, because I required the further information from the EST and from the right shoulder review to form a view as to whether Mr Halverson was fit for work."247
[509] In our view Dr Fenner's explanation in respect of this issue is unconvincing. It is inconsistent with the fact that in the August 2003 Section 4 Report he ticked the box indicating that Mr Halverson was fit to undertake the proposed position. Further, Dr Fenner only suggested that Mr Halverson undergo an EST before starting the job. He did not require him to undertake an EST.
[510] Mr Davies discussed Mr Halverson's Section 4 Report with Dr Fenner soon after he received it. During that discussion Mr Davies suggested that Mr Halverson should undergo a Functional Capacity Evaluation. Dr Fenner agreed, though he had not suggested that an FCE was necessary in his Section 4 Report.248
[511] On or about 27 October 2003 Mr Davies caused a letter dated 27 October 2003 to be sent to Mr Halverson advising, among other things, that Hail Creek was commencing a recruitment process for Mechanical Equipment Operators and asking him to contact Mr Davies to arrange an FCE test, confirm he had corrective glasses and arrange for HBA1c results to be provided to Dr Fenner.249
[512] Mr Halverson attended a Functional Capacity Evaluation by Janet Benstead and Associates on 4 December 2003. A copy of the evaluation report is annexed to Mr Halverson's witness statement.250
[513] In respect of Mr Halverson's right shoulder Ms Benstead's report says:
"Right shoulder: Reduced range of movement in flexion (reduced by approximately 20 degrees), abduction (reduced by approximately 10 degrees), and external rotation. Client advised his right shoulder was "a bit achy" at the end of range in flexion, abduction and external rotation. Strength testing of all shoulder movements revealed similar strength in both upper limbs through most of range, slight reduction of strength noted in right shoulder at end range of flexion and abduction. Resisted movements produced no reports of pain. Mild crepitus audible at end of range in flexion and abduction."
[514] The report concludes in the following terms:
"Mr Halverson is a 63 year old man who is hoping to obtain a position as a mobile equipment operator with Hail Creek Coal. He advised he was involved in a motor bike accident when he was 18 years old and sustained a right shoulder injury, which settled after approximately 2 months, and he had no further problems with the shoulder until approximately 2 months ago, when it began to ache a little, and have some reduction in movement.
Assessment results indicated he had some reduction in right shoulder range of movement and strength, but this was minimal, and would only be likely to be problematic if prolonged overhead work was required (which should not be required as a plant operator). No other functional deficits were observable.
On the day of the assessment, there were no functional deficits that would indicate he would be unable to perform work as a mobile equipment operator, however, I am unable to comment on his ability to tolerate jolting and jarring forces from plant."
[515] On the basis of Ms Benstead's report Dr Fenner issued a further Section 4 Report in respect of Mr Halverson, dated 16 January 2004. In his witness statement Dr Fenner refers to this report as the Halverson Further Report and makes the following observations in respect of that report:
"177 In the Halverson Further Report, I state that Mr Halverson requires an exercise stress test and needs back strengthening. I am not able to certify Mr Halverson as fit for work and what restrictions may be required until that is completed.
178 This is my opinion because:
178.1 when I did my assessment of him in August 2003, I noted right shoulder weakness. I also recommended an EST;
178.2 when I reviewed the report of Ms Benstead it was clear that his right shoulder issues had resolved adequately for work he may be undertaking;
178.3 this still leaves unresolved possible concerns about other aspects of his fitness for work, which would be addressed by the information obtained in an EST."251
[516] We note that there is an inconsistency between the actual Section 4 Report252 and what Dr Fenner says is in the report. The report says: "Suggest exercise stress test before job start." [emphasis added] In any event it is not clear why Dr Fenner now requires an EST when he only suggested such a test in his earlier report. Ms Benstead's report does not suggest that such a test is necessary. Rather, Ms Benstead's report states that in respect of aerobic fitness Mr Halverson's three minute step test was "above average".
[517] No explanation is provided as to why Mr Halverson needs "back strengthening". In his earlier Section 4 Report Mr Halverson's back assessment was noted as fair and his musculo-skeletal system movement results were normal.253
[518] A further Section 4 Report in respect of Mr Halverson was completed by Dr Fenner on 13 February 2004.254 In that report Dr Fenner states that Mr Halverson is unfit for work. In his witness statement Dr Fenner says that this is his opinion because:
[519] Dr Fenner's February 2004 report states that Mr Halverson is unfit for work and has conditions resulting in restrictions, namely:
"Plant Operator
· Requires glasses to meet visual standards
· working overhead compromises safety and places him at increased risk of injury
· Unfit for heavy manual work
· Has a medical condition described as restriction in Austroads Publications (2003) "Assessing fitness to drive"
Work posture
· Long hours per day operating shift machinery with or without whole body vibration (particularly up to 11 hours), places him at increased risk of injury
Working postures trunk and neck
· Extended work overhead (e.g. replacing headlights) places him at increased risk of injury"255
[520] A number of points may be made in respect of the eight restrictions identified.
[521] The first is that in his witness statement Mr Halverson says that he has spectacles that correct his near vision and he has informed Hail Creek Coal of this fact.
[522] The second restriction relates to working overhead. Mr Halverson has applied for positions in Pit Operations. The Hail Creek Job Demands Manual sets out the requirements for such positions at pp. 18-22.0 Two points may be made in this context:
[523] The third restriction states that Mr Halverson is unfit for heavy manual work. It is unclear to us what this restriction means - no weight limits are prescribed. In respect of Pit Operations the Job Demands Manual says:
"The majority of manual handling involves the operation of machine controls. Other materials are handled infrequently depending on the task at hand e.g. machine parts for minor maintenance, replacing excavator teeth, moving lighting plant. Machine parts typically weigh up to 30kg and may be awkward to grip."3
[524] We are not persuaded that this restriction renders Mr Halverson unsuitable for employment at Hail Creek.
[525] The fourth restriction is that Mr Halverson has a medical condition described as a restriction in the Austroads publication "Fitness to Drive" (2003). As Dr Fenner does not indicate in his evidence what the "medical condition" referred to is, we are not persuaded that this "restriction" renders Mr Halverson unsuitable for employment.
[526] The fifth restriction is that Mr Halverson is unfit for work in areas where anything apart from mild exertion is required. We are not satisfied that there is a proper medical basis for the restriction identified.
[527] When examined by Dr Fenner in August 2003 Mr Halverson's ECG result showed he had "abnormal repolarisation, possibly non specific". Dr Fenner says that this result "gives rise to a general concern about the state of Mr Halverson's cardiovascular system".4 In the same examination Dr Fenner recorded that Mr Halverson's blood pressure and pulse rate were normal.5 Whatever concerns Dr Fenner may have had about Mr Halverson's cardiovascular system in August 2003 he did not think it necessary to require him to undergo an EST, such a test was only suggested. In her later report Ms Benstead notes that Mr Halverson had above average aerobic fitness.
[528] The sixth restriction is that Mr Halverson is not to work in areas where heat exhaustion may be a possibility or areas where reasonable aerobic fitness is a necessity in the event of danger needing access or rapid egress. Two points may be made in this regard. The first is that the Job Demands Manual makes it clear that positions in Pit Operations typically involve sitting in air conditioned cabins. The second point to note is that implicit in the restriction is the proposition that Mr Halverson does not have reasonable aerobic fitness. To the extent that the opinions of Dr Fenner and Ms Benstead disagree on this point we prefer Ms Benstead's opinion. Ms Benstead specifically tested for aerobic fitness, using a three minute step test. There is no suggestion that Dr Fenner performed any particular test to ascertain Mr Halverson's aerobic fitness. In his statement Dr Fenner makes the following observations about FCEs:
"In an FCE, a person is required to perform a number of repetitive movements over a much longer period of time and it is the closest it is possible to come to a simulation of conditions which are likely to prevail at a workplace. The persons who perform FCEs have been to coal mines and assessed work requirements."6
[529] The seventh restriction relates to work posture and states that "Long hours per day operating shift machinery with or without whole body vibration (particularly up to 11 hours), places him at increased risk of injury". The medical basis for this restriction is not explained and it is inconsistent with Ms Benstead's report. We do not accept that this restriction makes Mr Halverson unsuitable for work at Hail Creek.
[530] The final restriction relates to trunk and neck work postures and states that "Extended work overhead (e.g. replacing headlights) places him at increased risk of injury". This restriction is in similar terms to restriction two and it is unnecessary to repeat our earlier comments. In addition to our earlier comments we note that in her report Ms Benstead said:
"Assessment results indicated that he had some reduction in right shoulder range of movement and strength, but this was minimal, and would only be likely to be problematic if prolonged overhead work was required (which should not be required as a plant operator). No other functional deficits were observable."7 [emphasis added]
[531] In addition to the specific restrictions identified Dr Fenner states that his report is based on his "medical opinion that Mr Halverson's poorly controlled diabetes and his generalised heart abnormality require further investigation before it is possible to determine whether, with appropriate restrictions, Mr Halverson may be fit for work at the Hail Creek Mine."8 Dr Fenner also observes that Mr Halverson's high blood pressure is "not well managed".9 We have already remarked on Mr Halverson's "generalised heart abnormality" and we are not persuaded that it makes Mr Halverson unsuitable for a position at Hail Creek. We now turn to issues raised in respect of Mr Halverson's diabetes and high blood pressure.
[532] When Dr Fenner examined Mr Halverson in August 2003 his HBA1c level was 9.6. Dr Fenner indicated that his earlier HBA1c results should be obtained from his general practitioner.10 In his witness statement Dr Fenner makes the following general observations about diabetes and its testing:
"Diabetes is tested and reviewed because of its impact on health and safety. Poorly controlled blood sugar affects vision, causes swelling of the eye lens and causes biochemical changes that predispose to abnormalities in almost every organ in the body, particularly the heart and brain. The range of proper control for a diabetic is that their HBA1c measures between 6 and 7. If HBA1c is above 7, this indicates less than good control. If it is above 10, it is very poorly controlled. The HBA1c result is an average of the previous three months' blood sugars. Blood sugars that are poorly controlled make one tired, affect the speed of thought processing, numb the nerves reducing pain sensitivity and cause an immense list of other abnormalities that can affect the safety of the person. That is why I ask for HBA1c results as they give a candidate's blood sugar readings over a period of time and show whether they have control of their blood sugar. Blood sugar readings at a particular time are essential and diabetics should do this daily, or more frequently, to monitor their blood sugar levels. On a daily basis, good control of blood sugar occurs when there is a reading of between 6 - 8 first thing in the morning before eating and the result is 6 or below for the remainder of the day, measured at least two hours from anything to eat or drink."11
[533] Dr Fenner reviewed notes provided by Mr Halverson's doctor. These notes are set out at Annexure PJF45 to Exhibit Hail Creek 27. Mr Halverson's HBA1c results are as follows:
Date: |
03/06/00 |
22/03/01 |
22/06/01 |
16/04/02 |
19/12/02 |
10/7/03 |
Result: |
6.2 |
6.9 |
7.4 |
8.1 |
8.6 |
9.6 |
[534] The reference ranges set out in Mr Halverson's medical records are as follows:
HBA1c result | |
non-diabetic |
< 6.0% |
good control |
< 7.0% |
poor control |
> 10.0% |
[535] In respect of the 8.1 HBA1c result in April 2002 Mr Halverson's doctor notes that the result is "ok". Dr Fenner disagrees with this opinion. He makes the following observations in respect of Mr Halverson's HBA1c results:
"183 I have reviewed the notes produced by Mr Halverson's doctor in response to a direction from the Commission . . .
183.1 Mr Halverson's diabetes is not well controlled and at times it is poorly controlled. This is recorded in the doctors' notes on three occasions;
183.2 his HBA1c results have been trending consistently upwards since 22 March 2001, when that result was 6.9, to 10 July 2003, when that result was 9.6, which demonstrates poor control;
183.3 Mr Halverson does not attend his doctor regularly to have his diabetes monitored. For example, he did not attend between May 2002 and November 2002, a period of approximately 6 months or between December 2002 and May 2003, a gap of 5 months. His HBA1c results should be being taken every three months, however the last result contained in his medical files is in July 2003, when it was 9.6, which demonstrates poor control. He may not be being well advised, as the doctors' notes record that a result of 8.1 is `ok'. It is not. The range for good control of a non-insulin dependent diabetic is between 6 and 7;
183.4 he does not appear to have attended the doctor for further testing in January 2004, as the doctors' notes suggest he should have;
183.5 the episode of difficult wound management and infection Mr Halverson had in May 2004 illustrates the difficulties a person can experience with poor control of blood sugar levels. Where blood sugar levels are poorly controlled, bacteria breed more easily and wounds heal more slowly;"12
[536] It is apparent that there is a difference of view between Dr Fenner and Mr Halverson's treating doctor in respect of what constitutes appropriate control of diabetes. The reference ranges used by Mr Halverson's doctor are set out above. According to Dr Fenner if HBA1c is above 7 this indicates "less than good control"; 9.6 demonstrates "poor control" and above 10 is "very poorly controlled".
[537] We note that based on the information provided Mr Halverson's HBA1c results have not been above 10.
[538] We are not persuaded that Mr Halverson's diabetes is poorly controlled. In his statement in reply Dr Fenner repeats his opinion that "HBA1c results of more than 8 indicate sub-optimal control and HBA1c results of more than 9 indicate poor control and that more intensive management is required".13 In support of this assertion Dr Fenner refers to Annexure PJF7 which he says "is a true copy of the effects of certain ranges of control for diabetes, which is printed at the base of the HBA1c reports received back from the laboratories which confirms this".14 The document relied on gives no indication as to who is expressing the opinion in question, nor is any material adduced setting out the medical basis for the assertion made.
[539] The reference ranges Dr Fenner has applied are inconsistent with the approach taken by Mr Halverson's treating doctor. In circumstances where Hail Creek Coal bears the onus of establishing that Mr Halverson is not suitable for employment we are not satisfied that this onus has been discharged.
[540] In this regard we indicate our agreement with the following observations by the Full Bench in Kennedy v Cumnock No. 1 Colliery Pty Ltd:
"The requirement to take medication regularly, and perhaps to seek regular medical attention as well, is one borne by many citizens in regular employment. Insulin-dependent diabetics and epileptics are familiar examples of people in this category. The scope for an employer to supervise the taking of medication in those cases is obviously quite limited. The risks of injury to such employees and to their co-workers if medication is not taken may be supposed to be considerable. It would be unusual to suggest that employees with such illnesses should be excluded from the workforce as a matter of principle because of the difficulty an employer must necessarily have in monitoring compliance with the relevant regime of treatment."15
[541] We also note that Hail Creek employees can have their specific health concerns, such as hypertension and diabetes, targeted and monitored through the Company's "Wellness Program".16
[542] In respect of Mr Halverson's high blood pressure Dr Fenner says:
"Mr Halverson's high blood pressure is not well managed. His blood pressure was elevated when he attended the doctor in November 2002. It was still elevated when he attended the doctor in December 2002. It was even more elevated when he attended the doctor in May 2003. When Mr Halverson's blood pressure is elevated, given his other medical conditions, he is at greatly increased risk of cardiac disease and strokes."17
[543] Mr Halverson's blood pressure results, as extracted from his medical records, are set out below:
Date |
B.P. |
23 April 2002 |
160/96 |
30 April 2002 |
146/82 |
23 November 2002 |
160/90 |
19 December 2002 |
140/88 |
19 May 2003 |
150/96 |
8 July 2003 |
145/86 |
10 July 2003 |
120/66 |
[544] We note that when he was examined by Dr Fenner, Mr Halverson's blood pressure was 120/80 which Dr Fenner described as "normal".18
[545] Dr Fenner's observations in respect of Mr Halverson's blood pressure are inconsistent with observations he has made in respect of other persons he has examined. Dr Fenner describes Mr Halverson's blood pressure as at 19 December 2002 as "elevated". Mr Halverson's blood pressure at that time was 140/88. In his examination of Mr Barnes in August 2003 Dr Fenner recorded his blood pressure at 140/9019 which he described as "normal".20
[546] We are not persuaded that the medical evidence renders Mr Halverson unsuitable for employment at Hail Creek Coal.
[547] The second matter relied upon by Hail Creek Coal in support of its contention that Mr Halverson is unsuitable is his refusal to permit access to the full results of his health assessment or his FCE results. For reasons we have already given we are not persuaded that Mr Halverson's refusal to permit access to the full results of his health assessment is relevant to an assessment of his suitability for employment. We adopt the same view in respect of his FCE results. In this regard we note that these results were provided to Dr Fenner, the NMA for the Hail Creek Mine.
[548] The third matter relied upon by Hail Creek Coal is Mr Halverson's failure to provide a properly completed application form. This is dealt with at paragraph 11 of Mr Davies' statement, Exhibit Hail Creek 16. It is said that part of Mr Halverson's application for employment was incomplete. The relevant form is set out at Annexure PMD7 to Exhibit Hail Creek 16. The parts of the form which have not been completed deal with Mr Halverson's employment history and questions on p. 3 of the form.
[549] Hail Creek Coal's representatives had the opportunity to ask questions of Mr Halverson in respect to any of these matters during the interview process.
[550] No submission is made as to why it is contended that the partial completion of the employment application form makes Mr Halverson unsuitable for employment and we are not persuaded that it does.
[551] In respect of Mr Halverson's ARM-Q results these are set out at Annexure PMD8 to Exhibit Hail Creek 16. We have already made a number of general observations about the company's reliance on the ARM-Q results. There is no other evidence before us which corroborates the conclusion that Mr Halverson not be recommended for a safety sensitive position. In particular, no material has been adduced concerning safety issues arising from the interviews, reference checks, work history, job knowledge, safety record or training, that supports the conclusion reached.
[552] Finally Hail Creek rely on Mr Halverson's results in the Applied Reading Test and the Abstract Reasoning Test.
[553] Mr Halverson's results in the Applied Reading Test were "well below average" and his Abstract Reasoning Test result was "below average". We have already remarked on the nature of these tests and their limitations. We also note that Ms Walters's overall assessment was that Mr Halverson was an average candidate for the position of Mobile Equipment Operator.
[554] Mr Halverson's results in the Spatial Relations Test were "well above average". On this basis Ms Walters said that he may "be expected to cope well with tasks involving manual handling and materials movement". The Job Demands Manual makes it clear that materials handling is a central component of the position in question.
[555] The general description of jobs in Pit Operations is set out in the Job Demands Manual as follows:
"Operating a variety of machinery associated with moving coal from pit to dump station and overburden from pit to waste dump.
Activities associated with maintaining pit roads and moving equipment from one pit to another.
Minor maintenance activities associated with the above equipment Small amount of computer and paperwork at a desk."21
[556] The assessment centre results must also be balanced against Mr Halverson's 13 years experience at the Blair Athol mine and the fact that he is competent to operate a range of plant and equipment.
[557] We have not been persuaded that Mr Halverson is unsuitable for the position of Mobile Equipment Operator at the Hail Creek Mine. We decline to grant the relief sought.
5.8 MORGAN KENNETH RAY LINDLEY
[558] Mr Lindley is 65 years of age. He was employed by Pacific Coal at the Blair Athol minesite as a Production Employee for some ten years until 17 August 1998. He first commenced work in the mining industry in 1962. Prior to commencing work at Blair Athol he worked in a variety of different positions in the industry and has operated most forms of mining equipment. While working at Blair Athol Mr Lindley used the following operator skills:22
[559] Mr Lindley completed the ARM-Q, the Applied Reading Test, the Spatial Relations Test, the personality profile questionnaire, the Abstract Reasoning Test and the group activity tests on 28 August 2003.
[560] Mr Lindley was interviewed by two teams of interviewers on 27 August 2003. The team which interviewed Mr Lindley using questionnaire A consisted of Messrs Shane Hughes and Paul Davies. The team which interviewed Mr Lindley using questionnaire B consisted of Messrs Andrew Carey and Joe Grimmond. The actual forms and notes used by each of the interviewers are attached to one of Mr Davies statements.23 Messrs Hughes, Carey and Grimmond did not give evidence in the proceedings.
[561] At paragraph 15 of his statement in respect of Mr Lindley, Mr Davies says:
"In respect of Mr Lindley, the consensus of all the interviewers is that it was a very difficult exercise. He was very hard of hearing and we had to speak very loudly (at times shout) to get through to him. He had difficulties providing examples of the requested behaviours. He did not display any initiative."24
[562] There is no direct evidence before us regarding Mr Lindley's participation in the experiential exercises.
[563] Mr Lindley's ARM-Q result was noted as an invalid profile for accuracy.25
[564] Mr Lindley's other test results are:
Applied Reading |
6th percentile |
Well below average |
Spatial Relations |
10th percentile |
Well below average |
Abstract Reasoning |
7th percentile |
Well below average |
Personality Profile |
8th percentile |
Well below average |
[565] In her assessment report Ms Walters makes the following observations about Mr Lindley's test results:
"Morgan's performance on all the ability tests was poor, suggesting that he may have considerable difficulty with all but the most routine aspects of the role.
It is possible that Morgan found the testing a novel and stressful experience and that he found it difficult to concentrate in the assessment situation. It is therefore possible that his mental capacity is underestimated to a degree by these tests. This may be supported by the difficulty he had in understanding the basic test instructions, which had to be repeated for him individually on both the Space Relations and Non-Verbal test. It is therefore possible that his mental capacity is underestimated to a degree by these tests.
Depending on whether Morgan's poor performance on the Reading test is a result of a specific reading disability or a more general language problem, he may also have some difficulty understanding instructions and direction given orally as well as in writing."26 [emphasis added]
[566] In Ms Walters' assessment Mr Lindley was a "well below average" candidate for the position of Mobile Equipment Operator.
[567] Mr Lindley's drug test results were negative.
[568] Mr Lindley's health assessment dated 27 August 2003 states that he is fit to undertake the position of plant operator.27 The report also states that he has conditions resulting in the following restrictions:
[569] In his witness statement Mr Lindley says that he has glasses to correct his vision and that he has informed Hail Creek Coal of that fact.28 Attached to Mr Lindley's statement is a letter from Central Queensland Audiology Pty Ltd in the following terms:
"Mr Lindley was fitted with completely-in-the-canal hearing aids bilaterally on the 10th of December 2003.
Unaided thresholds, which indicate the softest sounds perceived without hearing aids, show a binaural percentage loss of 39.5%.
Aided thresholds, which indicate the softest sounds perceived with hearing aids, show a binaural percentage loss of 18.2%.
This indicates a 21.3% improvement in hearing thresholds. This equates to a significant improvement in the functional hearing ability that would be maximized in a quiet environment. Mr Lindley's performance in more challenging acoustic environments has not yet been established.
Mr Lindley's hearing aids have only recently been fitted, and in the absence of further rehabilitation appointments, maximum benefit of the aids may not currently be achieved as further fine tuning of the instruments may be indicated as well as an adjustment period for the auditory system."29
[570] Dr Fenner reviewed the report from Central Queensland Audiology Pty Ltd and made the following comments:
"200 The audiograms attached to the report indicate that, with the new hearing aids, Mr Lindley's hearing comes within the standards permitted for work at a coal mine.
201 The matter which is outstanding is whether Mr Lindley's hearing aids are compatible with the hearing protection used at a coal mine. If they are not, there is major risk that Mr Lindley's hearing will be further damaged by the working environment.
202 Based on this new information, my opinion is that Mr Lindley cannot presently be certified fit for work at a mine and he has a restriction of unfit until compatibility of his hearing aids and hearing protection has been established.
203 I have prepared a Section 4 Report based on that further review of the information in Mr Lindley's statement and the information I obtained in my health assessment of Mr Lindley on 27 August 2003 (Lindley Report). In the Lindley Report, I state that Mr Lindley was outside the suggested standards for the Coal Board and whilst recently fitted aids may bring him within those standards, it is not clear whether those aids are suitable or unsuitable for the workplace.
204 Mr Lindley is restricted from work until a determination is made on whether he is within the limits contained on the Form with satisfactory aids. A further review by me is required once that determination has been undertaken. Now shown to me marked PJF51 is a true copy of the Lindley Report.
205 As at the time of preparing this statement, I have not received any further information about Mr Lindley's hearing aids to enable me to form a view about whether the restriction can be lifted on Mr Lindley."30
[571] Mr Lindley was assessed by Dr Schneider on 6 November 2003. Dr Schneider recommended that "he use hearing aids at work unless practical testing indicated that his hearing was fundamentally adequate without these aids".31 In his statement Dr Schneider says that he reviewed a speech discrimination report dated 9 March 2004 in respect of Mr Lindley.32 The report indicates satisfactory speech discrimination of moderately loud conversation (65dB), without a requirement for hearing aids, however for accurate discrimination of quiet conversation hearing aids were recommended. On the basis of this report Dr Schneider says:
"The cabs of most mining vehicles are air-conditioned and not particularly noisy; in this environment, particularly with a radio adjusted appropriately, it is unlikely that Mr Lindley would require hearing aids. Whether hearing protection was required, and the nature of that protection, would be dependent on the results of noise monitoring. It is probable that this information is readily available through the safety professional on site. If not, personal noise dosimetry is readily available and would be a prudent measure as part of any comprehensive hearing conservation program."33
[572] In respect of Mr Lindley, Hail Creek Coal contends he is unsuitable because of:
[573] For the reasons we have already given we are not persuaded that the second matter relied upon by Hail Creek is relevant to an assessment of Mr Lindley's suitability for employment. We note that in this context Hail Creek also relied on Mr Lindley's failure to provide the audiologist's results to Dr Fenner in December 2003 despite the fact that Dr Fenner's August 2003 Section 4 Report identified that Mr Lindley needed hearing aids. We don't think this issue is relevant to Mr Lindley's suitability. Dr Fenner's August 2003 Report did not indicate that Mr Lindley's assessment was to be reviewed after he had been assessed by an audiologist. The Section 4 Report simply said that Mr Lindley needed hearing aids. Mr Lindley has met that requirement.
[574] In relation to the third and fourth matters we are not persuaded that Mr Lindley's failure to complete a valid ARM-Q profile or his psychometric test results provide a sufficient basis for concluding that he is unsuitable for employment at Hail Creek Coal.
[575] It was apparent during the assessment centre process that Mr Lindley was very hard of hearing. Mr Davies recalled that during the interview process the interviewers had to speak very loudly and at times shout to get through to him. In her assessment report Ms Walters states that Mr Lindley had difficulty in understanding the basic test instructions and that it was possible that his mental capacity was underestimated by the tests. Ms Walters also observed that Mr Lindley may have found the testing a novel and stressful experience and hence found it difficult to concentrate.
[576] In our view it is likely that Mr Lindley's hearing deficiency had an adverse effect on his results during the assessment process. In these circumstances it would be unjust to determine Mr Lindley's suitability on the basis of those results.
[577] Since his participation in the assessment process and his examination by Dr Fenner, Mr Lindley has been fitted with hearing aids which have resulted in a significant improvement in his hearing thresholds. Aided thresholds, which indicate the softest sounds perceived with hearing aids, show a binaural percentage loss of 18.2 percent.
[578] Mr Lindley's hearing aids have not been tested in a challenging acoustic environment. He has worn them in industrial work areas but has not used them on a mine site. It is unclear whether Mr Lindley's hearing aids are compatible with the hearing protection used at a coal mine.
[579] There is a conflict in the evidence of Drs Fenner and Schneider regarding the appropriate action to be taken in respect of Mr Lindley. In Dr Schneider's opinion Mr Lindley's hearing difficulties can be managed on-site. Whether hearing protection was required and the nature of that protection would be dependent on the results of noise monitoring on-site.
[580] Dr Fenner is not prepared to certify Mr Lindley as fit to work until compatibility of his hearing aids and hearing protection has been established. He accepts that with his new hearing aids Mr Lindley's hearing comes within the standards permitted for work at a coal site.
[581] We prefer Dr Schneider's evidence in respect of this issue.
[582] It seems to us that there are inconsistencies in Dr Fenner's approach to Mr Lindley's hearing deficiency. In his original August 2003 medical assessment34 in respect of Mr Lindley, Dr Fenner certified that he was fit to undertake the proposed position provided he used hearing aids. No mention was made in the original assessment of the need to ascertain compatibility between Mr Lindley's hearing aids and the hearing protection used on-site before Mr Lindley commenced employment. In this context we note that Dr Fenner's "summary" of that Section 4 Report35 goes beyond what is actually stated on the report.
[583] Further, in his 5 March statement Dr Fenner says that Mr Lindley is "profoundly deaf". Dr Schneider comments on this clinical finding in his statement, in these terms: "Noise Induced Hearing Loss, the condition that the examinee has, does not cause profound deafness but more correctly results in distorted and abnormal hearing, as it effects hearing loss at higher more than lower frequencies".36 Dr Schneider was not cross-examined in respect of this part of his evidence and it was not challenged by Dr Fenner in his statement in reply dated 15 March 2004.37 Dr Fenner's failure to properly describe Mr Lindley's condition is a further reason for preferring Dr Schneider's evidence in respect of this issue.
[584] We have not been persuaded that Mr Lindley is unsuitable for the position of Mobile Equipment Operator at the Hail Creek Mine. We decline to grant the relief sought.
5.9 BRUCE CHARLES MITCHELSON
[585] It is conceded that because of his present unavailability, Mr Mitchelson is unsuitable for a position at the Hail Creek Mine at this stage.38 In these circumstances it is unnecessary for us to deal with the other bases upon which Hail Creek Coal contend that Mr Mitchelson is unsuitable.
[586] We will grant the relief sought in respect of Mr Mitchelson.
5.10 BRIAN PETER WALSH
[587] Mr Walsh is 53 years of age. He was employed by Pacific Coal at the Blair Athol minesite as a Production Employee from 19 March 1980 until 24 August 1998. While working at Blair Athol Mr Walsh used the following operator skills:39
[588] Mr Walsh completed the ARM-Q, the Applied Reading Test, the Spatial Relations Test, the personality profile questionnaire, the Abstract Reasoning Test and the group activity tests on 28 August 2003.
[589] Mr Walsh was interviewed by two teams of interviewers on 27 August 2003. The team which interviewed Mr Walsh using questionnaire A consisted of Messrs Shane Hughes and Paul Davies. The team which interviewed Mr Walsh using questionnaire B consisted of Messrs Andrew Carey and Joe Grimmond. The actual forms and notes used by each of the interviewers are attached to one of Mr Davies statements.40 Messrs Hughes, Carey and Grimmond did not give evidence in the proceedings.
[590] At paragraph 15 in his statement in respect of Mr Walsh, Mr Davies says:
"There was nothing of note in Mr Walsh's interview indicating he was other than a genial applicant who was trying to please the interviewers."
[591] In respect of Mr Walsh's participation in the experimental exercises Mr Davies says:
"I observed Mr Walsh's behaviour in the experiential testing in relation to the `ropes' exercise. Mr Walsh was only an occasional participant in the exercise and the group as a whole did not put controls in place for safety issues."41
[592] Mr Walsh's ARM-Q result states that he meets the minimum requirements for a safety sensitive position, with training required in driver attitude.42
[593] Mr Walsh's other test results are:
Applied Reading |
31st percentile |
Below average |
Spatial Relations |
25th percentile |
Below average |
Abstract Reasoning |
15th percentile |
Well below average |
Personality Profile |
8th percentile |
Well below average |
[594] In her assessment report Ms Walters makes the following comments about Mr Walsh's test results:
"Brian adopts a practical approach to his work and is concerned with verifiable facts and logic in making his decisions, although he may tend to neglect more intuitive approaches.
He is concerned with the immediate day to day requirements of his role and may overlook the more theoretical or longer term implications.
Although his performance on the Applied Reading test was quite weak, he is likely to be able to understand relatively simple documents, particularly if these are of a familiar nature and expressed in a clear and simple way. He will probably be able to cope with the majority of documents he is likely to encounter in this role.
Areas for development
His performance on all the ability tests was below average. He may be expected to have more difficulty than most in making visual judgements and in understanding relationships between objects. He will probably be able to cope with most routine tasks but may have difficulty in understanding more complex ideas and in solving novel problems."43
[595] In Ms Walters opinion Mr Walsh was a "below average" candidate for the position of Mobile Equipment Operator.
[596] Mr Walsh's drug test results were negative.
[597] Dr Fenner examined Mr Walsh on 27 August 2003. In the Section 4 Report44 Dr Fenner states that Mr Walsh has conditions which result in restrictions. The "restrictions" identified are:
"80.1 Mr Walsh requires glasses for near and far vision;
80.2 Mr Walsh has back weaknesses and needs weight restrictions to be assessed by an FCE. He is to avoid vibration and difficult access situations until the FCE. His back is assessed as 56/90 and weak;
80.3 Mr Walsh has a knee problem and he is to avoid uneven ground until he is assessed by FCE. It is a right knee problem and was not assessed by me in the health assessment because he could not undertake the necessary exercises; and
80.4 His hearing should be reviewed 6 months after starting work."45
[598] While Dr Fenner did not tick the box "Is fit to undertake the proposed/current position", he did sign the form - contrary to what occurred in respect of Mr Cusack.
[599] Mr Walsh attended a Functional Capacity Evaluation by Janet Benstead and Associates on 4 December 2003. A copy of the evaluation report is annexed to his statement46 and it concludes in the following terms:
"Mr Walsh is a 53 year old man who is hoping to obtain a position as a mobile equipment operator with Hail Creek Coal. He advised he has had neck and lower back pain `on and off' for a number of years, but does not find this limits him significantly in his ability to carry out work or domestic tasks. He has experienced right knee problems, which he attributed to prolonged kneeling whilst carrying out previous work tasks of carpeting and painting duties at ground level. He advised he had an arthroscope in 1998 that did not fix the problem, and then received physiotherapy treatment that he felt assisted to a degree. He stated he finds he avoids kneeling due to his right knee problem, but generally the only time his right knee tends to affect him is stiffening a little after prolonged sitting - after walking for a brief period of time, this resolves. His BMI was in the obese category - he advised he plans to lose weight in the future.
On the day of the assessment, Mr Walsh had reduced range of movement in his lower back and neck. He reported poor tolerance to overhead work (due to likely neck pain and stiffness), and bending (to lower back discomfort - he tended to avoid lower trunk flexion by flexing at the hips). His ability to squat was poor, his movement patterns were stilted at times, particularly during squatting and kneeling tasks, and he demonstrated moderately reduced balance during squatting tasks. This is likely to be attributable largely to reduced flexibility and also his weight. He advised he prefers to half kneel rather than squat or kneel. He was able to lift 25kg from ground level to waist level with little difficulty, and 20kg to eyelevel (muscular maximum), and carry 25kg. His cardiovascular fitness appeared poor despite the step test result. His reduced range of neck rotation would require additional trunk rotation if he was required to check for vehicles behind his vehicle (he advised he would generally use mirrors to check behind him when in a vehicle). There were no functional deficits that would indicate he would be unable to perform work as a mobile equipment operator, however, I am unable to comment on his ability to tolerate jolting and jarring forces from plant.
Mr Walsh would be likely to benefit from a weight loss and fitness program. He should discuss with his doctor exercises to improve his lower back and neck flexibility."
[600] Dr Fenner received the FCE report from Ms Benstead in December 2003. After reviewing the report Dr Fenner prepared a further Section 4 Report in respect of Mr Walsh dated 16 January 2004.47 This report is referred to in Dr Fenner's statement as the Walsh Further Report. In that report Dr Fenner lists the following "restrictions":
"1) Glasses for near and far vision
2) Back weakness
3) Knee problems
4) Poor aerobic fitness."
[601] Dr Fenner states that in his opinion Mr Walsh is unfit until he has improved his back weakness, knee problems and his aerobic fitness enough for safe handling and egress. In his statement Dr Fenner sets out the basis of his opinion, in the following terms:
"153.1 when Mr Walsh did the back exercises component of the health assessment for me in August 2003, he received low scores across most of those exercises and was actually unable to complete some of them. This suggested to me that his back was weak in all areas, not just a localised area;
153.2 Mr Walsh was unable to do the right knee exercises, because they caused him pain;
153.3 in her summary, Ms Benstead reports that:
(a) Mr Walsh told her he has experienced right knee problems and he avoids kneeling due to his right knee problem;
(b) on the day of the assessment he had reduced range of movement in his lower back and neck;
(c) he reported poor tolerance to overhead work, due to likely neck pain and stiffness;
(d) he reported poor tolerance to bending, due to lower back discomfort;
(e) his ability to squat was poor;
(f) his movement patterns were stilted at times and he demonstrated moderately reduced balance during squatting tasks;
(g) his cardiovascular fitness was poor, despite the step test result;
(h) his reduced range of neck rotation would require additional trunk rotation if he was required to check for vehicles around his vehicle;
(i) she was unable to comment on his ability to tolerate jolting and jarring forces from plant;
(j) he would benefit from a weight loss and fitness program and he should discuss with his doctor exercises to improve his lower back and neck.
153.4 Ms Benstead's findings were consistent with my observations in my examination of Mr Walsh that Mr Walsh has a weak back, a poor right knee and low aerobic fitness."
[602] On 13 February 2004 Dr Fenner prepared a further Section 4 Report in respect of Mr Walsh.48 That report says that Mr Walsh is unfit for work and identifies some 14 restrictions:
"_ Unable to spend long periods operating machinery, particularly up to 11 hours shifts, without compromising safety and placing him at increased risk of injury
· Requires glasses to meet visual standards
· Cannot work overhead without compromising safety and placing him at increased risk of injury
· Unfit for low or ground level work - places him at increased risk of injury
· Must not perform any heavy manual work
· Limited working and walking on uneven ground unless access and egress needed for one particular job (i.e. not recurrent uneven ground)
· Has a medical condition described as a restriction in Austroads Publications (2003) "Assessing fitness to drive"
Work posture
· Difficulty climbing on and off machines, and possibly on ladders
· Unable to crouch for minor maintenance etc. without compromising safety and places him at increased risk of injury
· Unfit for recurrent kneeling, or long periods of kneeling
· Unfit for crawling.
Working postures trunk and neck
· Stooping or flexing to lean forward in excavators and other, similar equipment places him at increased risk of injury
· Rotating and twisting when ripping in a dozer or when reversing and working backwards on mobile machinery places him at increased risk of injury
Manual handling
· Should not be exposed to whole body vibration in exposed in machinery or vehicles, particularly traveling on rough roads."
[603] These restrictions stem from what Dr Fenner refers to as Mr Walsh's "back weakness", "knee problems" and "aerobic fitness". 49
[604] Mr Walsh underwent an EST on 8 March 2004. The results are set out at Annexure JDS4 to Dr Schneider's statement, Exhibit CFMEU 25. The report concludes in the following terms: "Negative and adequate stress test".
[605] Having regard to the results of the EST Dr Fenner revised his opinion and says, in his statement in reply, that he is "satisfied that Mr Walsh has adequate aerobic fitness for the position of operator at the Hail Creek mine."50 Dr Fenner goes on to say:
"It remains my opinion, however, that Mr Walsh's poor right knee function, especially with his back muscle weakness, are significant barriers to him being able to work safely and I do not consider him fit for the role of operator, as I have set out at paragraphs 153-160 of my earlier statement."51
[606] We note that Dr Fenner's remarks about Mr Walsh's poor right knee function and his back muscle weakness derive from his examination of Mr Walsh in 2003 and the application of the modified Kraus Weber test.
[607] In respect of Mr Walsh, Hail Creek Coal contends he is unsuitable because of:
[608] We turn first to the issues arising from Mr Walsh's medical assessment.
[609] Hail Creek Coal contends that Mr Walsh is unsuitable because of "his back and knee problems, which did not allow him to complete the CMSHA health assessment". In this context it is important to bear in mind that in his evidence Dr Fenner said that when he examined Mr Walsh in August 2003 he believed that he needed further information from an FCE to make an assessment of Mr Walsh in relation to his back and knees.52 Mr Walsh subsequently underwent an FCE and Ms Benstead's report concludes in these terms:
"There were no functional deficits that would indicate he would be unable to perform work as a mobile equipment operator, however, I am unable to comment on his ability to tolerate jolting and jarring forces from plant."53
[610] It is apparent that there are a number of inconsistencies between Ms Benstead's report and the restrictions identified in Dr Fenner's February 2004 Section 4 Report in respect of Mr Walsh. For example, Dr Fenner says that Mr Walsh "cannot work overhead without compromising safety and placing him at increased risk of injury". In Section 2 of Ms Benstead's report she deals with Dynamic Tolerances. This includes a three minute overhead reaching test. Ms Benstead records "no restriction" in respect of this test and notes: "Client advised he would expect he would have difficulty with prolonged overhead work due to neck stiffness/pain."
[611] We do not propose to canvass all of the inconsistencies between Ms Benstead's report and Dr Fenner's evidence. We accept Ms Benstead's report and prefer it to Dr Fenner's evidence. In doing so we rely on the general observations we have made in respect of Dr Fenner's evidence. We also rely on Dr Fenner's own evidence to the effect that an FCE "is the closest it is possible to come to a simulation of conditions which are likely to prevail at a workplace".54
[612] Hail Creek Coal also rely on Dr Fenner's restrictions with respect to avoiding vibration and areas of restricted access or uneven ground. Dr Fenner's February 2004 Section 4 Report identifies two restrictions in this regard:
"_ Limited working and walking on uneven ground unless access and egress needed for one particular job (i.e. not recurrent uneven ground).
· Should not be exposed to whole body vibration in exposed in machinery or vehicles, particularly traveling on rough roads."
[613] The first restriction is inconsistent with Ms Benstead's report. In the Dynamic Tolerances section of that report "no restriction" is recorded in respect of walking on uneven ground. Ms Benstead records: "No discomfort reported during walking task. Noted to take relatively short steps. Gait length improved a little towards the end of the walking task."55
[614] We note that the Job Demands Manual does not indicate that walking on uneven surfaces is a feature of working in Pit Operations. The manual states that standing on uneven or inclined surfaces is something which is occasionally required and that employees "May spend up to 2-3 hours working on guideposts, moving cables, minor maintenance or other activities standing on uneven surfaces".56 In her report Ms Benstead records the following restriction in relation to standing:
"Client reported he was able to stand for periods of up to 2-3 hours, after which his lower back may ache a little (knee would not be problematic), but would ease as soon as he was able to walk for a brief period of time."57
[615] In respect of the second restriction two points may be noted. The first is that this restriction was noted in Dr Fenner's August 2003 Section 4 Report in respect of Mr Walsh, in these terms:
"avoid vibration and difficult access till FCE." [emphasis added]
[616] Mr Walsh subsequently underwent an FCE which concluded that there were no functional deficits that would indicate he was unable to work as a Mobile Equipment Operator.
[617] The second point is that during cross-examination Dr Fenner conceded that this restriction was based on Mr Walsh's performance in the modified Kraus Weber exercises.58 As we have already indicated we are not satisfied that the modified Kraus Weber test used by Dr Fenner is an appropriate test for assessing fitness for work. Nor are we satisfied that the results of such a test provide a proper scientific basis for the restrictions imposed by Dr Fenner in his Section 4 Reports.
[618] The issues arising from Mr Walsh's medical assessment do not persuade us that he is unsuitable for a position as a Mobile Equipment Operator at the Hail Creek Mine.
[619] In relation to the next matter relied on by Hail Creek, the results of Mr Walsh's ARM-Q are set out at Annexure PMD12 to Exhibit Hail Creek 19. We have already made a number of general observations about the company's reliance on the ARM-Q results. Further, in her assessment of Mr Walsh, Ms Walters says:
"His approach to safety is however likely to be very good as he will follow safety procedures closely and tends to be cautious and generally risk averse."59
[620] Hail Creek also rely on Mr Walsh's psychometric test results in support of the contention that he is unsuitable.
[621] We have already noted the limitations in respect of these results. The test results must also be viewed in the context of Ms Walters's overall assessment of Mr Walsh and his work experience. We acknowledge that a number of the comments made by Ms Walters support Hail Creek's contentions, for example:
". . . may have more difficulty in responding to changes in situations."
". . . likely to be relatively inflexible in adopting new ways of doing things and has a strong preference for doing things by well established methods."
". . . seem to be rather resistant to change in general."
"He tends to take a rather traditional approach, preferring to use well established methods, and he may be rather resistant to change and new ways of doing things."
[622] But Ms Walters also makes a number of other, favourable, comments in respect of Mr Walsh:
"Brian's profile suggests that he has a strong work ethic and is likely to be very conscientious and hard working."
"He will be prepared to follow rules and procedures quite closely."
"He is likely to show a moderate level of initiative. He has a degree of group orientation, suggesting that he will probably conform to other people's views, but retains an element of independence in his thinking."
[623] Ms Walters does not say that Mr Walsh could not function effectively in a team environment, rather it is said that "he may make less of a contribution to his team's thinking than is ideal, but he seems to be sufficiently group orientated to be willing to compromise and put the team's needs ahead of his own when necessary". We do not think that such an assessment renders Mr Walsh unsuitable.
[624] The assessment centre results must also be balanced against Mr Walsh's eight years of experience at the Blair Athol Mine. He worked in a team environment while employed at Blair Athol and utilised a range of operator skills.
[625] We are not persuaded that his low Abstract Reasoning test result, his performance in the experimental exercises or his personality profile make Mr Walsh unsuitable for the position of Mobile Equipment Operator at the Hail Creek Mine.
[626] The last matter relied upon by Hail Creek Coal in support of its contention that Mr Walsh is unsuitable is his refusal to permit access to the full results of his health assessment or his FCE results. For reasons we have already given we are not persuaded that Mr Walsh's refusal to permit access to the full results of his health assessment is relevant to an assessment of his suitability for employment. We adopt the same view in respect of his FCE results. In this regard we note that these results were provided to Dr Fenner, the NMA for the Hail Creek Mine.
[627] We have not been persuaded that Mr Walsh is unsuitable for the position of Mobile Equipment Operator at the Hail Creek Mine. We decline to grant the relief sought.
6. CONCLUSION
[628] For the reasons given we have concluded that Messrs Albert, Cusack and Mitchelson are unsuitable for the positions currently available at the Hail Creek Mine. We propose to grant the relief sought in respect of these individuals.
[629] In respect of the other individuals who are the subject of these proceedings we are not persuaded that they are unsuitable for the position of Mobile Equipment Operator at the Hail Creek Mine and we decline to grant the relief sought.
Appearances:
J Tuck of Counsel and G Dann for Hail Creek Coal Pty Ltd.
A Slevin of Counsel with A Bukarika for the Construction, Forestry, Mining and Energy Union.
Hearing details:
Before Commissioner Bacon:
2003.
Brisbane-Sydney (video hearing):
December 23.
2004.
Brisbane:
January 20.
Before Ross VP, Duncan SDP, Bacon C:
2004.
Brisbane:
February 10, 11, 12, 18, 24, 25;
March 17, 19, 31.
Melbourne-Sydney-Brisbane (video hearing):
March 29.
Printed by authority of the Commonwealth Government Printer
<Price code O>
2 Exhibit Hail Creek 9 at paras 21-26.
5 [2003] NWCA 336 at para 114 per Sheller, Ipp and Tobias JJA.
6 See ALHMWU v Home Care Transport Pty Ltd (2002) 117 FCR 87 per Merkel J; Helm v Hansley Holdings Pty Ltd (in Liquidation) [1999] WASCA 71; Brian Rochford Ltd (Administrator appointed) v TCFUA of NSW (1998) 47 NSWLR 47 at 56-57.
7 See generally King v Freshmore (Vic) Pty Ltd, Print S4213 (17 March 2000) per Ross VP, Williams SDP and Hingley C.
8 WA Meat Commission v Australasian Meat Industry Employees Union, Industrial Union of Workers WA Branch Matter No. 890 of 1993, 5 August 1993 WAIRC per Sharkey P, Coleman C and Gregor C at p. 7 per Sharkey P.
9 (1987) 19 IR 153 at 155. Also see Giles J, Dispensing with the Rules of Evidence, in 7 Aust. Bar Rev. 233.
13 Transcript at paras 1036-1037.
15 See generally Transcript at paras 1797-1804 and 2919-2987.
16 See Exhibit Hail Creek 9 at para 38.
19 Exhibit Hail Creek 10 at para 22.
20 Exhibit Hail Creek 26, Statement of Ms Walters.
24 ibid. at para 33 and Annexure ACW2.
33 Exhibit Hail Creek 27, Statement of Dr Fenner.
34 Great Western and London, Midland and Scottish Railway v Smart 24 Ry. & Can. Tr. Cas. 273 at 281; R v Brent London Borough Council ex parte Omar (1991) 23 H.L.R. 446; R v Lewisham London Borough Council ex parte Dolan (1992) 25 H.L.R. 68; R v Tower Hamlets, London Borough ex parte Subhan 24 H.L.R. 541.
39 See Exhibit Hail Creek 20 at para 7.
41 Exhibit CFMEU 17, Statement of Mr Barnes.
42 Transcript at paras 5183-5189.
43 See generally X v The Commonwealth (1999) 200 CLR 177.
44 Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 304 per McHugh J.
46 Robb v Green [1895] 2 QB 315 at 317; Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] Ch 169 at 174; Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 372.
47 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66; Concut Pty Ltd v Worrell (2000) 176 ALR 693.
48 Lister v Romford Ice & Cold Storage Ltd [1957] AC 555 at 572-573, per Viscount Simonds at 586, per Viscount Radcliffe at 597, per Lord Somervell of Harrow; Kashemije Stud Pty Ltd v Hawkes [1978] 1 NSWLR 143.
49 X v The Commonwealth (1999) 200 CLR 177 at 188 per McHugh J.
51 Transcript at paras 5193-5196.
62 Exhibit Hail Creek 26 at Annexures ACW6 - ACW15.
64 Exhibit Hail Creek 9 at paras 59-63.
66 See Exhibit Hail Creek 21 at Annexure PMD1.
67 Exhibit CFMEU 20, Statement of Elizabeth Allworth, Attachment B at p. 5.
69 Messrs Albert, Barnes, Cusack, Halverson, Lindley, Mitchelson and Walsh.
70 For an example see Exhibit Hail Creek 10 at Annexure PMD19.
72 (1933) 49 CLR 66 at 81; also see Starke and Evatt JJ at 72-73.
73 (2000) 176 ALR 693 at 700-701.
75 Brackenridge v Toyota Motor Corporation Australia Limited (1996) 142 ALR 99; Burazin v Blacktown City Guardian (1996) 142 ALR 144 at 151; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191; Carrigan v Darwin City Council, unreported IRCA 970101, 20 March 1997 per von Doussa J; Lloyd v R.J. Gilbertson (Qld) Pty Ltd (1996) 68 IR 277 at 283-284.
76 Patty v Commonwealth Bank of Australia (2002) 113 IR 36; Thomson v Orica Australia Pty Ltd (2002) 116 IR 186.
77 Jager v Australian National Hotels Pty Ltd (1998) 7 Tas R 437 at 457 per Slicar J; Thomson v Broadley [2002] QSC 255 at , and per Jones J.
78 AMFEPKIU v NSW Sugar Milling Co-operative Ltd, Print P9636, 25 March 1998 per Munro J; Hinds v Laser Resources Management Pty Ltd, PR914451, 21 February 2002 per Hingley C.
79 Lloyd v R.J. Gilbertson (Qld) Pty Ltd (1996) 68 IR 277 at 283-284 per Madgwick J. See generally Godfrey, K, Contracts of employment: Renaissance of the implied term of trust and confidence (2003) 77 ALJ 764.
80 McCarry, G.J., Damages for Breach of the Employer's Implied Duty of Trust and Confidence (1998) April 26 Australian Business Law Review 141-146 at 145.
81 Bank of Credit and Commerce International SA v Ali [1999] 2 All ER 1005 at 1015 per Lightman J, cited with approval by Gleeson CJ, Gaudron and Gummow JJ in Concut Pty Ltd v Worrell (2000) 176 ALR 693 at 703. Also see Bell v Lever Brothers Ltd & Ors [1932] AC 161 at 227 per Lord Aitkin and McCarry, G.J., The Employee's Right to Silence (1983) 57 ALJ 607.
82 The refusal appears as Exhibit CFMEU 13 and the offer of a job at Blair Athol is referred to in Transcript at paras 2439-2441.
83 Transcript at paras 5214-5215.
84 Hobbs v Capricorn Coal Management Pty Ltd, PR903643, 30 April 2001 per McIntyre VP, Cartwright SDP and Harrison C at para 30.
85 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 at 389-390 per Anderson J; cited with approval by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (14 September 2001).
86 Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 at 87.
87 See Idoport Pty Ltd v National Australia Bank Ltd [1999] NSW SC 828 at per Einstein J.
88 For example see Transcript at paras 4475-4476.
89 For example see Transcript at para 3412.
90 For example see Transcript at paras 3648-3661.
91 See Dr Fenner's evidence, Transcript at paras 3222-3227 and 3234-3278.
92 Exhibit CFMEU25 at Appendix 4.
93 Exhibit Hail Creek 27 at Annexure PJF1.
95 Exhibit Hail Creek 16 at Annexure PMD 14
96 Exhibit CFMEU 16, Statement of Mr Halverson at para 22.
97 Exhibit Hail Creek 9 at para 86.
99 Transcript at paras 3464-3466.
100 Exhibit Hail Creek 9 at para 76.
102 Transcript at paras 3483-3490.
103 Exhibit Hail Creek 27 at Annexure PJF7.
104 Dr Fenner's evidence, Transcript at paras 3638-3642.
106 Dr Schneider's evidence, Transcript at paras 4665-4692; also see Exhibit CFMEU 25 at pp.11-12.
107 Exhibit CFMEU 25 at Annexure AP4.
109 There is a degree of inconsistency in Dr Fenner's evidence in relation to this issue - compare Transcript at paras 4470-4477 and paras 4482-4483.
110 Exhibit CFMEU 11, Statement of Mr Albert, at paras 3 and 4, and Annexures A, B, C and D.
112 Exhibit Hail Creek 10 at Annexure PMD7.
113 ibid. at paras 19-21 and Annexures PMD8, 9, 10 and 11.
116 Exhibit Hail Creek 26, Annexure ACW6 at p.43.
118 Exhibit Hail Creek 10 at Annexure PMD12.
121 Exhibit Hail Creek 27 at para 207.
122 Transcript at paras 1559-1561 and 1671-1681.
127 ibid. at paras 1564 and 1569.
129 Transcript at paras 1578-1584.
131 Exhibit Hail Creek 29 at para 15.
135 ibid., Annexure JHL2 at p. 3.
136 Transcript at paras 5081-5084.
138 Exhibit Hail Creek 29 at para 14.3.
139 Exhibit CFMEU 27, Annexure JHL2 at p. 3.
141 Exhibit Hail Creek 29 at para 14.4.
142 Exhibit CFMEU 27, Annexure JHL2 at p. 3.
143 Exhibit Hail Creek 29 at para 19.
144 Exhibit CFMEU 27, Annexure JHL2 at p. 3.
145 Exhibit Hail Creek 29 at para 19.
146 Exhibit CFMEU 27 at Annexure JHL2 at p. 3.
147 Exhibit Hail Creek 10 at Annexure PMD12.
148 Exhibit Hail Creek 27 at para 208 and Annexure PJF53.
154 Exhibit Hail Creek 20, Annexure PMD 2 at pp. 2-7.
155 Exhibit CFMEU 9, Statement of Mr Appleton at paras 3 and 5, and Annexures A, B, C and D.
158 Exhibit Hail Creek 11, Statement of Mr Davies in respect of Mr Appleton, at paras 12-14 and Annexures PMD8, 9, 10 and 11.
160 ibid. at para 19 and Annexure PMD12.
161 Exhibit Hail Creek 26, Annexure ACW7 at p.48.
162 Exhibit Hail Creek 27 at Annexure PJF24.
163 Exhibit Hail Creek 11, Statement of Mr Davies in respect of Mr Appleton at para 30 and Annexure PMD13; Exhibit Hail Creek 27 at Annexure PJF24.
164 ibid. at para 184 and 185 and Annexure PJF46.
165 Transcript at paras 2463 to 2466.
166 Exhibit Hail Creek 32 at paras 100-103.
167 Exhibit Hail Creek 26 at p. 48.
168 Exhibit CFMEU 9 at Annexure B.
169 See paras [354] and [355] above.
171 Exhibit CFMEU 17 at paras 13 and 17 and Annexures B, C and D.
172 ibid. at Annexures D and E.
173 ibid. at para 17 and Annexure F.
174 Exhibit Hail Creek 12, Statement of Mr Davies in respect of Mr Barnes, at paras 12-14 and Annexures PMD8, 9, 10 and 11.
176 Exhibit Hail Creek 26 at Annexure ACW8 at p. 54.
178 Exhibit Hail Creek 12, Statement of Mr Davies in respect of Mr Barnes at Annexure PMD13.
180 Exhibit CFMEU 17 at para 25.
181 Exhibit Hail Creek 27 at para 172.
184 Exhibit Hail Creek 32 at para 86.
185 Transcript at paras 2724-2726.
186 Exhibit Hail Creek 27 at Annexure PJF 4.
190 ibid. at paras 2366, 2437-2442.
191 ibid. at paras 3887, 3921, 3924 and 3930.
193 Exhibit Hail Creek 27 at para 63.
194 Exhibit CFMEU 14, Statement of Mr Crichton at para 4 and Annexures A and B.
195 Exhibit Hail Creek 13, Statement of Mr Davies in respect of Mr Crichton, at paras 10-13 and Annexures PMD5, 6, 7 and 8.
198 Exhibit Hail Creek 26 at Annexure ACW9 at p. 61.
199 Exhibit Hail Creek 27 at Annexure PJF16.
200 Exhibit Hail Creek 26, Annexure ACW 9 at pp. 59-60.
202 Exhibit Hail Creek 13 at Annexure PMD 10.
203 Exhibit Hail Creek 26, Annexure ACW 9 at pp. 59-61.
205 Exhibit CFMEU 14 at Annexure B.
206 Exhibit CFMEU 18, Statement of Mr Cusack at para 3 and Annexures A and B.
207 Exhibit Hail Creek 14, Statement of Mr Davies in respect of Mr Cusack at paras 17-19 and Annexures PMD9, 10, 11 and 12.
209 Exhibit Hail Creek 26 at Annexure ACW10 at p. 68.
210 Exhibit Hail Creek 27 at para 116.5.
216 Exhibit CFMEU 18 at Annexure C.
217 ibid. at Annexure D, pp. 3-4.
218 Exhibit Hail Creek 27 at Annexure PJF49.
225 Exhibit Hail Creek 25, Annexure JDS1 at p. 28.
227 Transcript at paras 4156-4173.
229 Exhibit CFMEU 10, Statement of Mr Finger at para 3 and Annexures A and B.
230 Exhibit Hail Creek 15, Statement of Mr Davies in respect of Mr Finger at paras 18-20 and Annexures PMD9 - 12.
232 Exhibit Hail Creek 15 at Annexure PMD8.
236 Exhibit Hail Creek 26, Annexure ACW 11 at p. 75.
238 Exhibit Hail Creek 27 at Annexure PJF13.
239 Exhibit Hail Creek 26, Annexure ACW 11 at pp. 73-74.
241 Exhibit CFMEU 16, Statement of Mr Halverson at para 3 and Annexures A, B, C and D.
242 Exhibit Hail Creek 16, Statement of Mr Davies in respect of Mr Halverson, at paras 18-20 and Annexures PMD9, 10, 11 and 12.
245 Exhibit Hail Creek 26, Annexure ACW12 at p. 80.
246 Exhibit Hail Creek 27 at para 108.
248 Cross-examination of Dr Fenner, Transcript at paras 3678-3682.
249 Exhibit Hail Creek 16 at Annexure PMD16.
250 Exhibit CFMEU 16 at Annexure E.
253 ibid. at paras 104.7 and 105.
7 Exhibit CFMEU 16, Annexure E at p.4.
8 Exhibit Hail Creek 27 at para 182.
13 Exhibit Hail Creek 28 at para 39.
15 PR901496 (5 March 2001) per Giudice J, Harrison SDP and Jones C at para 18.
16 Exhibit Hail Creek 20, Annexure PMD1, Section 3-04, Medical Testing and Monitoring at p. 4.
17 Exhibit Hail Creek 27 at para 183.6.
21 ibid., Annexure PJF4 at p.18.
22 Exhibit CFMEU 12, Statement of Mr Lindley at para 4 and Annexures A, B and C.
23 Exhibit Hail Creek 17, Statement of Mr Davies in respect of Mr Lindley at paras 10-12 and Annexures PMD8, 9, 10 and 11.
26 Exhibit Hail Creek 26, Annexure ACW13 at p. 85.
27 Exhibit Hail Creek 27 at Annexure PJF30.
28 Exhibit CFMEU 12 at para 16.
30 Exhibit Hail Creek 27 at paras 200-205.
32 ibid. at p. 32 and Appendix 6.
34 Exhibit Hail Creek 27 at Annexure PJF29.
38 Transcript at paras 5146-5159.
39 Exhibit CFMEU 19 at para 3 and Annexure A.
40 Exhibit Hail Creek 19, Statement of Mr Davies in respect of Mr Walsh at paras 10-12 and Annexures PMD6, 7, 8 and 9.
43 Exhibit Hail Creek 26, Annexure ACW15 at p. 100.
44 Exhibit Hail Creek 27 at Annexure PJF12.
46 Exhibit CFMEU 19 at Annexure C.
47 Exhibit Hail Creek 27 at Annexure PJF39.
50 Exhibit Hail Creek 28 at para 20.
52 Transcript at paras 3968-3969.
53 Exhibit CFMEU 19, Annexure C at p. 5.
54 Exhibit Hail Creek 27 at para 63.
55 Exhibit CFMEU 19, Annexure C at p. 2.
56 Exhibit Hail Creek 27, Annexure PJF4 at p. 19.