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Take care when workers need to see a doctor

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 105, 30 May 2006

A provision in an agreement requiring employees to attend a doctor nominated by the employer should clearly and unambiguously set out the purpose of the requirement and the circumstances in which the requirement arises. A recent decision of the Australian Industrial Relations Commission illustrates this.

In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation (2006) PR972197, the Commission considered the Award covering Australia Post and its employees and the extent of Australia Post’s right to require employees to attend a medical examination with a doctor nominated by Australia Post. The Union claimed Australia Post unlawfully required employees to attend a medical examination when they applied for sick leave and workers compensation.

The Commission found that the Award did not allow Australia Post to require an employee to attend a medical examination by a doctor nominated by Australia Post when an employee made an application for workers compensation or sick leave. Rather, the relevant clause only applied in circumstances where the employee may be unfit or incapable of discharging their duties. The Commission said that the clause was intended to prevent an employee who may be working whilst unfit, from continuing to work. Further, it applied to stop an employee who has been absent because of unfitness, from returning to work, without the employer having an opportunity to test the employee’s fitness.

For Australia Post to be able to require employees to attend a medical examination when they applied for sick leave and workers compensation, the Award needed to clearly say so.

HR Tip

• A requirement that an employee attend a medical examination by a doctor nominated by the employer generally needs to be expressed in a workplace agreement, an award, or an employee's contract of employment.
• Such a provision must be clearly expressed and set out the purpose for requiring an employee to attend a medical examination, for example, to determine fitness for work after the employee has been absent because of any illness (including work related illnesses) for a specified period of time.
• Critically, if an employer intends an agreement to allow the employer to require an employee to attend a doctor nominated by the employer when the employee has applied for sick leave, or workers compensation, this has to be clearly expressed in the workplace agreement, award, or contract of employment.
  

Richard Taylor
Senior Associate
Australian Business Lawyers