Industrial Relations Commission of New South Wales CITATION: Australian Services Union and Sydney Water Corporation [2005] NSWIRComm 156 NOTIFIER Australian Services Union (NSW and ACT Services Branch) PARTIES: RESPONDENT Sydney Water Corporation FILE NUMBER(S): IRC 962 of 2005 CORAM: Boland J CATCHWORDS: Industrial Dispute - Application for dispute order - Employees threatened with dismissal - Whether interim relief preventing employer from medically retiring two employees should be granted in circumstances where applicant Union questioning adequacy of employer's injury management policies and practices - Whether tests applying to the grant of injunctive relief appropriate to be applied in circumstances where interim relief is sought under sections 136 and 137 of Industrial Relations Act 1996 - Employees injured at work - Employees unable to return to pre-injury duties - Suitable duties - Employer's obligations in respect of the provision of suitable duties - Employer's obligations to re-train injured employees - Interim relief granted pending outcome of substantive proceedings Industrial Relations Act 1991 LEGISLATION CITED: Industrial Relations Act 1996 Workplace Injury Management and Workers Compensation Act 1998 Australian Salaried Medical Officers Federation (New South Wales) on behalf of Dhayanithi Sivathondan and South Western Sydney Area Health Service [2002] NSWIRComm 98 Banning v Great Lakes Council [2002] NSWIRComm 47 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 CASES CITED: ASMOF on behalf of Elizabeth Benson v Western Sydney Area Health Service [2003] NSWIRComm 337 Hill v Director General of the Department of Education and Training (1998) 85 IR 201 Qantas v Christie (1998) 193 CLR 280 Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (New South Wales Branch) (1992) 45 IR 39 HEARING DATES: 05/02/2005 DATE OF JUDGMENT: 05/17/2005 NOTIFIER Australian Services Union Mr C Lynch with Mr Fuller LEGAL REPRESENTATIVES: RESPONDENT Sydney Water Corporation Mr D Davies Sparke Helmore Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Boland J Tuesday 17 May 2005 Matter No IRC 962 of 2005 NOTIFICATION UNDER SECTION 130 BY AUSTRALIAN SERVICES UNION OF NSW OF A DISPUTE WITH SYDNEY WATER CORPORATION INTERLOCUTORY JUDGMENT [2005] NSWIRComm 156 1 This matter involves an application by the Australian Services Union (NSW & ACT Services Branch) for orders pursuant to ss 136 and 137 of the Industrial Relations Act 1996 that: The Respondent, Sydney Water Corporation, not dismiss Ronald Arthur Austin or Tony Bagala until the hearing and determination of matter number IRC 962 of 2005. Background 2 The application arose out of an industrial dispute notified to this Commission by the ASU pursuant to s 132 of the Act on 24 February 2005. The dispute was alleged to concern the following matters: Mr Anthony Bagala and Mr Ron Austin are both employed as Production Employees with Sydney Water Corporation. Mr Bagala and Mr Austin were advised, on 21 January 2005 and 7 February 2005 respectively, that Sydney Water Corporation is unable to provide them with safe work, and that they are stood down on full pay until further notice. The ASU is of the view that Sydney Water Corporation intends to terminate the abovementioned employees on Friday 25 February 2005. The ASU has sent correspondence to the employer requesting an urgent meeting to discuss the availability of suitable duties. However, the employer has failed to meet this request. 3 The matter came before the Commission in a compulsory conference on 25 February. It became apparent in the course of the conference that the ASU was concerned at the operation of Sydney Water's injury management policy and its application to employees who had suffered injury at work and in respect of whom Sydney Water had been unable to find suitable duties. Mr Austin and Mr Bagala were two such employees. Essentially, the ASU was concerned at what it regarded as an inadequate process within Sydney Water to search for and find suitable duties for employees who had been injured and were unable to perform their pre-injury duties, a lack of proper communication with injured workers and what the ASU regarded as an inadequate approach by Sydney Water to the re-training of injured workers. 4 Arising out of that conference the Commission made certain recommendations, including to the effect that there should be consultation between the ASU and Sydney Water regarding the latter's injury management policy. In the meantime, it was recommended there should be no threat of dismissal in relation to Messrs Austin and Bagala and that no decision to terminate either of the two employees should be taken until such time as the matter came back before the Commission. 5 The matter returned to the Commission on 11 April at the request of Sydney Water. It was concerned at the prospect of a stop work meeting "in support of injured workers" called by the ASU for the following day. That issue was sorted out in the course of the conference but it was evident that the ASU's underlying source of concern, Sydney Water's injury management policy, had not been resolved. Accordingly, the Commission issued further recommendations, which included the following: 1. The parties shall meet as soon as reasonably practicable for the purpose of Sydney Water Corporation considering the ASU's proposals to amend Sydney Water Corporation's Injury Management - Return to Work Programme; that, in the course of those discussions, Sydney Water Corporation will indicate either those elements of the union's proposals it is able to accept or, alternatively, those elements in the amended proposals it finds unacceptable and the reasons in writing why those proposals are unacceptable. .. 3. Sydney Water Corporation, in particular, Mr Ferrier, will take on the responsibility of fast-tracking any decision in relation to the future of Mr Ron Austin and Mr Don Snape as to whether or not there will be a role for them within Sydney Water Corporation, or, alternatively, whether or not they are to be medically retired and once that decision is made the employees and the union will be advised accordingly. 4. The parties will report back to the Commission on the progress of their discussions at 2pm on Wednesday, 20 April next. 6 On 20 April the Commission was advised that the parties had engaged in discussions since 11 April. Ms Fawcett for the ASU explained the progress as follows: Firstly, in the area of case conferences, Sydney Water are prepared to include directions to the case managers into their policy about the type of information they need to provide union members during case conferences. We envisage that will be something like their function, capacity, evaluation, their investigation into that sort of thing. The details are yet to be nutted out between the parties. They have also been providing their case managers with some direction as to the steps they are to take during case conferences. The second area that Mr Ferrier [for Sydney Water] indicated he would be looking into is the broader issue, the determination of suitable duties. Mr Ferrier indicated he was prepared to look at constructing a process that is demonstrable, objective and clear to all the parties in determining the available suitable duties. Thirdly, your Honour, Mr Ferrier indicated there was some merit in a joint decision-making process for determining the availability of suitable duties in the instance that a dispute arises. Your Honour, we believe that this has gone some way to allowing resolution of the underlying dispute between the parties. However, this afternoon we received a notice from Sydney Water that they intend to terminate Mr Austin and Bagala. 7 The decision to terminate the employment of Messrs Bagala and Austin was confirmed by Sydney Water. There ensued some discussion about how the matter should proceed and in light of the indication from Sydney Water that it would not comply with any recommendation under s 134(2) of the Act not to proceed to terminate the employment of the two employees, the ASU sought a certificate of attempted conciliation under s 135(5) of the Act and made an application, orally, for orders under ss 136 and 137 that the employment of Messrs Bagala and Austin not be terminated until the dispute between the ASU and Sydney Water over injury management policy had been dealt with by arbitration. 8 Sydney Water did not oppose the issuing of the certificate and in anticipation of the ASU's position had prepared itself to have the question of orders under ss 136 and 137 dealt with immediately. Indeed, it had on standby legal representation and a number of witnesses and documentary material in support of its position. Sydney Water's tactic smacked of an ambush and it was apparent Mr Lynch for the ASU was in no position to proceed to deal with the cross-examination of Sydney Water's witnesses. Accordingly, the Commission adjourned the hearing of the ASU's application for orders to 2 May with directions for the filing and serving of evidence and submissions. In the meantime, the Commission issued a certificate of attempted conciliation and recommended neither Mr Austin nor Mr Bagala be dismissed. That recommendation was complied with. ASU's case 9 The thrust of the ASU's case was that an industrial dispute existed within the meaning of the Act between that Union and Sydney Water, the subject matter of that dispute being the content and application of Sydney Water's injury management policy known as the Workplace Rehabilitation and the Medical Retirement Policy. The ASU asserted that the dispute was a long running one going back as far as 1996 but more recently it had been before Haylen J and Grayson DP in various manifestations. Reference was made to a statement of Grayson DP in December 2004 in Matter No. IRC04/7027. His Honour in that case stated: The Commission is aware of the concerns, that is, the same concerns having the potential to involve more widespread strike action than civil maintenance business of Sydney Water. It is clear to the Commission that these concerns which involve the employer's approach to the employment or continuing employment as the case may be of persons who are partially incapacitated and thereby unable, on one view of it, to carry out the full range of their employment duties. 10 The ASU contended that Messrs Bagala and Austin were caught up in the dispute because Sydney Water intended to terminate their employment by applying a flawed and unfair injury management policy and that the Commission should order that those terminations should not proceed until the issue of an appropriate policy and the ASU's role in it was determined in an arbitration. The ASU contended that there were a significant number of other employees who could suffer the same fate as Messrs Austin and Bagala. 11 It is apparent that the ASU is seeking a role in a joint decision making process for determining the availability of suitable duties for employees who had been injured at work. Sydney Water is prepared to consider a consultative process involving the ASU but is not prepared to countenance the ASU's participation in deciding whether suitable duties were or were not available. This is apparently because Sydney Water is concerned that would give the ASU a right of veto over the termination of employment of an employee where there was no agreement about the availability of suitable duties. 12 In relation to Mr Bagala and Mr Austin, the ASU submitted: 1 Sydney Water's Policy was against the wishes of Messrs Bagala and Austin and contrary to their rights to be rehabilitated and provided with suitable duties, and if the case warrants retraining and redeployment, in line with s 49 (1) and (2) of the Workplace Injury Management and Workers Compensation Act 1998. 2 The ASU contends a weakness in the Medical Retirement Policy is a failure to have union involvement and the requirement of adequate investigation of available and alternative duties. 3 The ASU contends that the Medical Retirement Policy of Sydney Water and its application is being unfairly applied to Mr. Austin and Mr. Bagala. 4 In the case of Mr. Austin he has not been offered retraining despite being 'fit for all sedentary duties' … Mr. Austin also disputes the Medical Reports of 14 December [referred to in the affidavit] of Heather Bathe. 5 In the case of Mr. Bagala he has been placed on restricted duties and denied access to work despite minor restrictions ... 6 Mr. Bagala disputes the Medical Reports found [in the] Affidavit of Heather Bathe ... Mr. Bagala contends he can do the majority of the work required of his substantive position. 7 Mr. Austin and Mr. Bagala, have not been provided with opportunities for retraining. In addition the ASU disputes the assessment of the 'inherent requirements' of each person's job should be the correct criteria to determine available work. It is unreasonable to expect each employee to perform 100 % of pre-injury duties in order to comply with their contract of employment. 8 The ASU has attempted to conciliate and negotiate these matters but this has failed, despite Sydney Water agreeing the application of the policy could be improved. 9 The ASU is seeking these matters to be arbitrated in these proceedings and assert this will address the 'long running industrial dispute'. 13 The affidavits of Mr Austin and Mr Bagala were read and both employees were required for cross-examination. In relation to Mr Austin his evidence was: · He is 56 years of age. · He commenced working with Sydney Water's predecessor, Sydney Water Board, in 1974 as a construction worker. · During the late 1980s he transferred to the Transport division in Sydney Water as a truck driver. This job involved heavy lifting in the loading and unloading of the truck. · In 1995 he sustained a lower back injury while securing a load on the truck he was loading. This initial injury caused him to have approximately two weeks off work, followed by a period of light duties, then a return to pre-injury duties. · He sustained an aggravation to the lower back injury in February 2000 and again in August 2001. On both occasions he required a period off work of about two weeks, then a gradual return to pre-injury duties. He had various X-ray and other tests during this period and was referred to specialists. · During 2000 he declined a redundancy package and was redeployed to Civil Maintenance where he worked until April 2004 as a Production/Maintenance worker. During this period he undertook a range of duties including: storeman duties, inspections of reservoirs, drove vehicles for short durations (up to 1 hour), changed water flow charts at various locations, yard or depot duties, cleaning, and water recycling at Rouse Hill project. · He considered he was gainfully employed during this period, and enjoyed his work. Mr Austin deposed: During this period of time my back pain remained stable, and I managed my work effectively. My restrictions were "not to lift more than 10 kgs, and avoiding heavy physical work". However, there were adequate duties that I could perform. In April 2004 I was transferred to Ryde to work as a Water Sampler. My employer agreed that this job would be for a trial period of 3 months as I was unsure of the nature of the work. My union organiser was present at the meeting when this was agreed. · Mr Austin further stated: 10. At no time was I aware of the specific nature of the work involved with sampling. Since undertaking the work my injury has progressively become worse. I informed Ms. Heather Bathe from Injury Management on at least two occasions that the repetitive bending required in the role was making me sore. However, Ms. Bathe only replied to me that I could not return to Civil Maintenance. I have not had regular reviews every 3 months as first agreed. I have not been offered to return to my previous position. I do not believe that my employer has investigated alternative duties, or any options for retraining. 11. My injury has been aggravated by the work I have had to do in Water Sampling. It involves constant bending, collecting ocean water at the edge of the surf requiring me to over reach, walking down uneven track and slopes, climbing into drains and collecting samples from awkward positions. At no time until my functional assessment (annexure 2) was I evaluated for this job. 12. My medical restrictions up until April 2004 when I transferred to the Water Sampling job were constant, and involved a variety of tasks with a weight lifting limit of 10 kg. Now that has been reduced to 3 kg as a result of my transfer to an unsuitable job. I have not been allowed to transfer back to Civil Maintenance as agreed in the presence of my union organiser in March 2004. 13. On 24 December 2004 I went on annual leave and returned to work on 7 January 2005 and was handed a letter stating I was unable to undertake any work at Sydney Water safely and as such I was directed to remain at home until suitable duties were found (annexure 3). 14. I had spoken to my rehabilitation coordinator early in December 2004 about a number of vacant positions doing water inspections policing the current water restrictions. Ms. Heather Bathe from Injury Management asked me whether I would be interested in doing this job. I replied that I would be, and asked about how I would go with the one day of office work required a week. She said words to the effect of "You don't have any computer skills, do you?" and walked off. Ms. Bathe never offered me any retraining or any advice on how I might handle the computer work, and I never heard from her again about this job. At the time I was unaware I would not be allowed to work anywhere in Sydney Water. I have not been offered any positions as suitable duties since I was directed not to come to work on the 7 January 2005. 15. I have not been allowed to return to my substantive position in Civil Maintenance. I have attended case conference with my union organiser but at none of these has a suitable set of duties been identified. I am fit for all sedentary work and can do all the tasks I did prior to going to Water Sampling. I have been advised I have to find my own job. 16. I believe that Sydney Water does not want me to work for them any more. If I lose my job I will not have any other employment prospects, given my age and my injury. The worry about my future and being prevented from doing my job has had an impact on my health, increasing my high blood pressure (I am taking medication), giving me headaches, and I have been prescribed nerve tablets. 14 In relation to Mr Bagala his evidence was: · He is 56 years of age. · He commenced working with the Sydney Water Board in 1976, performing a range of duties including: bricklaying in stormwater channels, concreting stormwater channels, raising manholes, and raising the side walls of stormwater channels. · In 1989-1990 he began sewer repair duties, which included fixing broken sewer pipes, digging trenches, repairing trenches, paving, concreting and bricklaying work, using a backhoe, using a bobcat, and using a loader. · In 1992 he sustained an injury to his lumbar spine in a car accident. He had roughly three months off work and resumed work on light duties. He gradually returned to the full range of duties with some minor restrictions, which were to avoid repetition and a lifting restriction that improved from 15kg to 20kg, then to 25 kg. These restrictions did not prevent him from performing the full range of duties because he worked mostly in teams of three, who would take turns at performing different tasks. · In 1994 he suffered a further injury, in another car accident. He suffered some pain but did not require any time off work. · He has been performing meaningful duties since his injuries. His medical restrictions have been minor. At the moment he can lift 20 kg, and is only restricted from using the large jackhammer and the partner saw. · In December 2002 he was told that he was not allowed to perform overtime. · In March 2004 he was taken off regular Civil Maintenance duties. He was told, "You won't be doing sewer repair work any more". · He was taken off sewer repair work and performed a mix of duties, drilling on Tuesdays and Wednesdays, and Reactive duties in the Water truck for the rest of the time. He performed these duties for about a year, and after that he performed a mix of Site Security duties and putting safety stickers in confined spaces. In November 2004 he was told that he could not perform corking (sic) duties as a manager decided that he could not use a corking (sic) gun, which weighs about 3kg. · Mr Bagala deposed: Just after Christmas 2004, I was offered a job at the Potts Hill Depot, to commence when I returned from holidays. I was not told what the job was, who to report to, or where to report to. I went to the Seven Hills to speak to my manager to get some direction. I then spoke to Ms. Ashleigh Robinson from Injury Management to ask her where to report to and what the job was. She informed me that there was no job at Potts Hill at this point because of the Christmas shutdown. I rang Ms. Robinson a few weeks later, and she informed me that the job I was talking about involved assisting with training, but as there was no training being held at this time, there was no job for me to do. I called Heather Bathe a week later when she had returned from holidays, and she said to me that I "was supposed to do that job" and said that I had refused. I was sent home from work on 21 January 2005 when Sydney Water told me that there was no safe work for me to perform. My restrictions remain the same, and I am able to perform the duties I have performed for years. I have had a number of case conferences with Injury Management and with my Union Organiser present. I do not believe that Sydney Water have tried to find me any work. Heather Bathe told me at one point that I could go to Ryde to do Water Sampling, and I agreed that despite the extra travel time, I would be willing to take this job. I called her back a few days later and told her a second time that I want to work in Ryde in Water Sampling, but I never heard back. If I don't get placed in another job in Sydney Water, I do not have any other options. My family relies on my wage, and the stress of not knowing where my family is going to get an income from is causing great distress to myself and my household. 15 The ASU considered that the principles to be applied in granting a dispute order of the kind prescribed by s 137(1)(c) were those adopted by Schmidt J in Hill v Director General of the Department of Education and Training (1998) 85 IR 201, that is, those principles referred to in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 in relation to the grant of an injunction, namely: (1) That there is a serious question to be tried or that the Plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the Plaintiff will be held entitled to relief; (2) That he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) That the balance of convenience favours the granting of an injunction. 16 As to the first test, whether there is a serious question to be tried, Mr Lynch submitted in relation, firstly, to Mr Austin: (a) Sydney Water is a large state owned corporation that employs over 3,500 employees. In excess of 50 per cent of these occupations involve 'white collar' work that does not require heavy lifting. In addition, Sydney Water has an unspecified number of agency hire contractors performing day-to-day roles in clerical occupations that Mr Austin could be retrained in. Yet Mr. Austin (despite having the injury for 10 years) has never been offered retraining or redeployment to any such positions. His first redeployments between 1995 and 2000 to a Security Officer and Truck Driver after his accident did not result in any aggravation of his injury. However, on redeployment to a production employee's role his injury became less manageable. (b) Mr. Austin has had a total lost time on workers compensation due to his injury of less than 6 weeks over a 10-year period. He has worked for Sydney Water for over 30 years and has been a loyal and productive employee. His current position as a production employee is the most demanding physically of all jobs in Sydney Water. Sydney Water has had ample opportunity to retrain Mr Austin and redeploy him to more suitable duties, but has failed to do so. (c) Prior to redeploying to the water-sampling job in March 2004 Mr Austin was gainfully employed within his medical restrictions, which remained at a consistent level. He was able to perform a range of productive tasks. (d) By placing Mr Austin in the role of Water Sampler, Sydney Water has further injured Mr Austin. This is despite continued complaints by Mr Austin that the job was aggravating his back. Since taking up the role of Water Sampler Mr Austin's weight restrictions (weight he can lift) has reduced from over 10 kg to 3 kg making him less employable. (e) The ASU relies on the authority in the High Court Decision, Qantas v Christie ((1998) 193 CLR 280, 152 ALR 365) , to dispute the criterion of 'inherent requirements' and in support of the ASU claim that the employer is duty bound to fully investigate all job opportunities before termination. In the respondent's submission they rely on the following Sydney Water medical advice to medically retire Mr Austin: The Fitness for return to work certificate issued in respect of Mr. Austin by Dr Radin Ahmad, state that the applicant are 'unable to perform the inherent requirements and job demands of the position' and that this will continue for the foreseeable future' (f) Mr Austin has always stated he is prepared to be retrained and undertake any job role across Sydney Water but Sydney Water has refused to allow Mr Austin other employment or retraining in administrative and clerical roles. (g) Mr Austin requested a position as a Water Patrol officer in December 2004 and again at a case conference in 25 February and gained a commitment from Sydney Water to pursue this job but this was declined by Sydney Water for unspecified reasons. (h) The ASU argues that all offers of employment relied on by Sydney Water required work in excess of existing medical restrictions or of a temporary nature. This was manifestly inappropriate, and did not satisfy the obligations of Sydney Water to provide suitable duties in accordance with the Workplace Injury Management and Workers Compensation Act 1998. In particular, the ASU contends that the Tanker Driver Job was beyond the medical restriction of Mr Austin and involved very heavy and at times excessive work, thereby amounting to no job offer at all. It asserts that the job of Field Hand involved heavy lifting and walking on unlevel and rough terrain and as such was outside of the medical restrictions and no job offer at all. Similarly, Sydney Water transferred Mr Austin to the water sampling role and despite an agreement to review the role in 3 months, Mr Austin's continued concerns of increasing pain and injury as a result of this job, and his reporting of these matters to the rehabilitation coordinator, the rehabilitation coordinator (Heather Bathe), left him in that role to his detriment, and without regard for his health. 17 In relation to Mr Bagala, the ASU submitted there was also a serious question to be tried: (a) The ASU disputes the claim of Sydney Water that Mr Bagala refused a job offer and that this offer constitutes compliance with the Workplace Injury Management and Workers Compensation Act on the following basis: Mr Bagala does not have a good command of the English Language and requires assistance in writing English. The offer of a Community Liaison Officer without significant training was an unfair offer, and amounted to no offer at all. It does not of itself meet the requirements of s 49 of the Workplace Injury Management and Workers Compensation Act . It was stated by Sydney Water that Mr Bagala has undertaken drilling in new signs and managed the job efficiently. (b) The ASU rejects the claim that Mr Bagala refused a job offer as a Tanker Driver, and further claimed that such an offer was no offer at all, as it did not of itself meet the requirements of s 49 of the Workplace Injury Management and Workers Compensation Act . Mr Bagala sustained his injuries, which were severe, during motor vehicle accidents. He has never been employed as a Truck Driver. It was reasonable that he reject an offer of employment as a Truck Driver in his circumstances on the basis he did not feel confident to drive a larger vehicle such as a truck. (c) The offer of a role at training services was of a temporary nature of two-week duration. If this job had been of any significant duration or a permanent position Mr Bagala would have accepted it despite the traveling time involved. During this time Mr Bagala was still seeking and undertaking more active work at the civil maintenance section. (d) Mr Bagala disputes the medical assessments of Dr Casolin dated 14 December 2004 and Mr Inez Farag dated 21 January 2005 relied on by Sydney Water. (e) Mr Bagala has claimed he wants to return and is capable of undertaking his full duties. Mr. Bagala was performing his duties within the restrictions when he was taken off civil maintenance duties on March 2004. The ASU asserts this was for reasons of 'conflict with the manager' not medical reasons. (f) The ASU contends that Mr Bagala is fit to comply with his contract of employment and it is manifestly unfair and unjust to remove him from duties because he cannot perform 100 per cent of the pre-injury duties. (g) The ASU relied on the authority of the High Court in Qantas v Christie, to dispute the criterion of 'inherent requirements'; the ASU claimed that the employer was duty bound to fully investigate all job opportunities before termination. In this regard Sydney Water relied on the following medical advice to retire Mr Austin and Mr Bagala: The Fitness for return to work certificate issued in respect of Mr. Austin by Dr Radin Ahmad, state that the applicants are 'unable to perform the inherent requirements and job demands of the position' and that this will continue for the foreseeable future'. 18 As to the irreparable injury test, Mr Lynch submitted: It is clear on the face of the legislation that monetary compensation is not available under s137 dispute orders. As such if the orders are not granted in this case the applicants will be required to relist a hearing pursuant to section 84 of the Act and seek orders under section 89 (7), if they hope to achieve a similar outcome to that hoped for in this application. This would place the union and Austin and Bagala at a significant disadvantage on the following reasons: 1 They would be dismissed and forced to await the time required to have the matters relisted. This will provide significant cost to the Commission and the ASU and therefore is against the public interest. 2 They would be in the unusual position of prosecuting an unfair dismissal while the substantive dispute if resolved in the favor of the ASU may well provide grounds for re-employment. 3 The ASU on behalf of the applicants would need to run their cases in full in order to utilise any beneficial finding of the substantive matter this dispute is concerned with. This is a burden on both the ASU and the applicants in this matter. 4 They will be without income as the employer has only offered 5 weeks in lieu of notice and the time list dates for section 84 applications exceeds that time. 19 In relation to the balance of convenience test, Mr Lynch submitted: [T]he Commission is entitled to restrain the dismissal of Austin and Bagala until such time as the matter is determined. This will be deferring to the public interest and avoiding any risk of industrial action noted in the recommendations of DP Grayson of December 2004 and the current rank and file resolution for industrial action in the event of dismissal of any injured worker reported in the last conciliation proceedings of this matter. 20 It was further submitted that Sydney Water's medical retirement policies and its workplace rehabilitation policies and procedures were manifestly unfair and have remained in dispute with the ASU since 1997. Mr Lynch submitted Sydney Water failed to comply with s 52(b) of the Workplace Injury Management and Workers Compensation Act. The policies and the Workplace Rehabilitation Policy had not been developed in consultation with the Union as required by: · Section 52(2) whereby a return-to-work program is to be established in accordance with the regulations and must, subject to the regulation: (a) comply with any guidelines determined by the Authority, and (b) be developed by the employer in consultation with the workers concerned and any industrial union of employees representing those workers, and … 21 It was further submitted the Rehabilitation Policy of Sydney Water does not comply with s 52(2)(a) of the Workplace Injury Management and Workers Compensation Act in that it does not comply with 'Guidelines determined by the [WorkCover] Authority', in particular the relevant 'Guidelines for Employers Return-to-Work Programs'. These Guidelines state that the obligation of the employer is: To develop, implement and review the Return-To-Work Program in consultation with workers and relevant unions. and require that: The effectiveness and continuing acceptability of the Program should be reviewed on a regular basis and agreed by the relevant parties. All Programs should set specific dates for review. The Guidelines also require that: The Return-to-Work Program should reflect management commitment and should be signed or otherwise endorsed by senior management and by senior worker representatives. 22 Mr Lynch referred to the provisions of the Guidelines where they provide a hierarchy of return to work goals that must be followed, namely: · same duties/same employer; · different duties/same employer; · same duties/different employer; · different duties/different employer. Case for Sydney Water 23 The respondent tendered three statements into evidence. They were statements by: (1) Heather Bathe - Injury Manager Co-ordinator for Sydney Water Corporation. (2) Danny Fitzgerald - Human Resources Manager of the Water Services Division of Sydney Water Corporation. (3) Mark Hanna - Manager of the Workers Compensation Business Unit of Sydney Water Corporation. 24 Ms Bathe's evidence regarding the application of Sydney Water's Injury Management Policy to Mr Austin and Mr Bagala was detailed and supported by extensive documentation. I note that between September 2001 and September 2004 various Return to Work plans were developed in relation to Mr Austin to try to accommodate his physical incapacity. However, it is evident from the opinions expressed by medical practitioners and other health professionals who examined Mr Austin that he is unable to perform the work of a Production Employee; a Water Sampler or driver of heavy vehicles. On 15 April 2003, Dr N Wijetunga of HealthQuest Workforce Health Management provided an Initial Report on Mr Austin. In her report, Dr Wijetunga stated, in part: Functional Capacity At work He experiences difficulty in driving heavy vehicles for prolonged periods. … Opinion … It is likely that Mr Austin's condition of chronic back pain is a permanent condition and therefore his restrictions would be required on a permanent basis. He is fit to continue in his current position for as long as it can be accommodated by Sydney Water Corporation. However he is permanently unfit to resume all his normal duties as a Production Employee. 25 At the time of the examination undertaken by Dr Wijetunga, Mr Austin's duties were in Civil Maintenance and included main to meter inspections and paperwork, water main flushing (with difficulty) and bushfire settings. 26 I note that on 27 August 2002, a Rehabilitation Counsellor/Registered Psychologist conducted a Vocational Assessment on Mr Austin. Her report stated: 2. Background & Current Circumstances He reports that in November 1995 he was employed as a truck driver in the Transport division of Sydney Water … When the Transport division … was closed he was offered redundancy or a transfer to Civil Maintenance. … Later in January 2000, he says he was using a crowbar while working on a water brake, and suffered and aggravation of his back pain … He says he returned to normal duties after about one week. In August 2001, Mr Austin says he was unloading "gibble" joints for a job. He lifted one off the back of a truck and experienced severe back pain again. … Mr Austin says he prefers to stay an employee of Sydney Water … He would be prepared to undertake retraining if required. 3. Education Mr Austin says he attended Northmead High School, but left at the legal age of just 15 years, not having attained his Intermediate Certificate. … Current Work Profile and Discussion … He has no computer skills. He considers his literacy to be average for an English speaking person…. CONCLUSION & RECOMMENDATIONS Mr Austin has considerable experience as a truck driver, and feels physically capable of, and confident with driving the larger automatic trucks, such as tipper trailers. … his minimum education would not render him competitive for formal administration positions. … 27 On 7 December 2004, Dr Wijetunga again examined Mr Austin. In her report, Dr Wijetunga stated: Recommendations [S]ince he has been on duties involving sampling, he has noticed a gradual deterioration of his lower back condition, which he attributes to repetitive bending, prolonged driving and awkward postures used to obtain samples. In view of his long history, it is advised that he undergoes a functional capacity evaluation to assist on whether his current level of duties is suitable. … It is recommended that he is reviewed in 4-6 months time to assess the findings of the functional capacity evaluation and his progress using the modifications discussed. 28 On 14 December 2004, an Occupational Therapist undertook a Physical Work Performance Evaluation on Mr Austin. In her report, the Therapist stated: Background Information … Mr Austin reported that since April 2004 he has been working in the Water Sampling team. … Mr Austin reported that he has experienced an increase in the symptoms in his lower back, radiating to his groin and quadriceps, and occasionally into his toes, since performing these duties. Job Match : … Mr Austin's functional tolerances have been assessed to be below what is required of him as a Water Sampler at Sydney Water with the following tasks: Lifting from ground to waist height Bilateral carry Repetitive squatting Walking (due to being hear rate limited/not due to back injury) Interventions for Consideration : Mr Austin is not fit to perform the duties required of a Water Sampler at Sydney Water … Mr Austin is to avoid returning to work to a position whereby his duties require him to work with his back in a flexed position, which requires him to perform more than occasional squatting … or which requires him to perform more than occasional back rotation of the back. 29 On 8 February 2005, Dr Wijetunga again examined Mr Austin. In her report, Dr Wijetunga stated: Mr Austin is permanently unfit for his normal duties as a water sampler. However he is fit for permanently restricted duties, which adhere to the following: - No sustained forward flexion of the lower back - No sustained awkward postures - No forward flexion whilst lifting weights without stretched arms - No repetitive bending - No lifting of greater than 15 – 10kg - No lifting of greater than 10 – 15kg without assistance. 30 On 29 March 2005, Ms Bathe said she attended a further Case Conference with: Mr Austin; Mr Werda, Manager Civil Maintenance; Mr McLachlan, Senior Human Resources Consultant; Mr Fuller of the ASU; and, Mr McClean. During the Case Conference it was reported that: (a) Mr Austin said that he had identified a possible work opportunity in the area of Cross Connections, however, the Cross Connections position had already been allocated to another employee on restricted duties; (b) Mr Austin also said that he had considered work as a Water Patrol Officer or a Storeman. He was advised that there were no vacancies for Storemen but the Water Patrol Officer position would be explored despite a number of concerns; and (c) Mr Austin was advised that Sydney Water's attempts to identify a suitable position for him had been unsuccessful; however Sydney Water would continue to look for a suitable position. In the result, given the nature of Mr Austin's disabilities, the Water Patrol Officer position was considered to be unsuitable. 31 On 14 April 2005, Dr R Ahmad of HealthQuest provided two Fitness for Work Summaries, in respect of Mr Austin, which stated: Mr Austin is suffering from a health condition that will, in all likelihood prove permanent. As a result this employee is unable to perform the inherent requirements and job demands of the position as a Production Employee for the SYDNEY WATER CORPORATION and it is likely that this will continue for the foreseeable future. And Mr Austin is suffering from a health condition that will, in all likelihood prove permanent. As a result this employee is unable to perform the inherent requirements and job demands of the position as a sampling officer for the SYDNEY WATER CORPORATION and it is likely that this will continue for the foreseeable future. 32 Ms Bathe gave similar detailed evidence regarding the application of Sydney Water's injury management policy in connection with Mr Bagala. Some 22 Return to Work plans were developed for Mr Bagala between May 2001 and December 2004 to accommodate his declining capacity to perform labouring work. 33 On 2 June 2000, Mr Inez Farag, Occupational Physiotherapist, performed a Functional Capacity Evaluation on Mr Bagala. In his report, Mr Farag stated: Relevant History Mr Bagala … was involved in two car accidents … The first occurred in 1992 and Mr Bagala reported injury to his lower back. He also tore his right biceps and fractured his ribs … He was off work for six months following the first accident. He then returned to work on light duties and was performing these for what is described as a "very long time". In 1994 Mr Bagala was involved in a second car accident and on this occasion-suffered injury to his right hip … After the second accident he returned to work also on restricted duties and it was not until approximately 2 1/2 years later that he was able to increase the range of duties performed. Physical Capability Compared to Job Description At the level that he was willing to work at in this assessment he cannot be considered to have the physical capacity to perform the duties of his current occupation. … 34 It is evident from the documentation attached to Ms Bathe's statement that in 2002 Mr Bagala was not coping with his work assignments because of his injury. In this connection, on 7 November 2002, Ms M Mulhall, Rehabilitation Co-ordinator for Sydney Water met with Mr Bagala. In her Case Note of that meeting, Ms Mulhall stated: Mr Bagala does not seem to have a good insight into his actual level of performance. He seems to believe that he is actually performing the jobs but when shown written feedback as to his unsatisfactory performance from his manager and peers he always comes up with an excuse … 35 On 18 November 2002, Mr V Faccin, Mr Bagala's manager, reported problems with Mr Bagala's work performance. In his email reporting, Mr Faccin stated: As per our return to work plan for the above, he was placed in a water reactive crew last week. The problem Tony tells the team leader that he is on restrictive duties and that he has an appointment after work and can not work back. … 36 On 2 May 2003, Ms Mitchell met with Mr Bagala and Mr Faccin. In her Case Note of that meeting, Ms Mitchell stated: Vic Faccin advises that Mr Bagala had reported some aggravations to his condition since the last RTW plan was developed (7/11/02) and as such his duties have been reduced to drillings, security inspections & yard duties. Mr Bagala advised that he feels pain in his right elbow/upper arm and left thumb if performing too much heavy work or has to work quickly. He also experiences right hip and lower back pain by aggravating an old injury. 37 On 13 May 2003, Dr Wijetunga examined Mr Bagala. In her report Dr Wijetunga stated: Fitness for Work Given that both his right arm condition and Lower back have remained unchanged since May 2001 it is likely that he will continue to require permanent restrictions. … 38 On 22 May 2003, Ms Mitchell wrote to Mr Bagala, regarding the requirement for him to attend a Functional Capacity Assessment. In her letter dated 22 May 2003, Ms Mitchell stated: If this assessment, in conjunction with medical advice does not provide avenues to achieve productive duties within Civil Maintenance, redeployment or medical retirement processes may be followed. 39 On 26 August 2003, Dr Wijetunga again examined Mr Bagala. In her report Dr Wijetunga stated: Progress Mr Bagala has continued with restricted duties. He has been on restricted duties including drilling, security work, and depot duties. However it appears that he has recently been removed from duties of security, as it was felt that these would not adhere to his restrictions. … Opinion … Therefore he continues to remain permanently unfit to perform all the duties of his substantive position as a Production Employee. 40 During 2004 there were several meetings with Mr Bagala regarding his capacity to perform various functions having regard to his medical restrictions. On 26 October 2004, Ms Bathe met with Mr Bagala, Mr Ron Hoogenvest Acting Depot Manager and Craig Martin, Mr Bagala's Union representative. During that meeting, Ms Bathe said they discussed the position and job description for a Tanker Driver. Mr Bagala stated that he did not feel safe driving a big truck due to narrow streets and the size of the truck. Mr Bagala was offered driving lessons and the opportunity to travel with an off-sider, but said that he would not be accepting the Tanker Driver position. 41 On or about 14 December 2004, Dr Wijetunga assessed Mr Bagala and prepared a report, stating in part: CURRENT STATUS Mr Bagala advised that his lower back and shoulder pain are the most troublesome of all his symptoms. Both of these are easier to control when he is away from work. In particular in relation to both these conditions, he notices that it is worse at work, if he is involved in heavy lifting or prolonged periods of shovelling. Additionally, he notices right hip pain, if he is require to work in wet clay when shovelling in a trench. Lower back Mr Bagala describes intermittent lower back pain, which is experienced on a daily level and generally worse when at work. … He feels that heavy lifting and shovelling aggravate his symptoms. Right shoulder pain Mr Bagala describes subscapular shoulder pain, which he equates to 2/10 and suggests that it is mainly in relation to heavy lifting. He also describes pain in the area of his biceps, which he suggests is also in relation to heavy lifting. CURRENT LIMITATIONS In relation to work, Mr Bagala advised that he continues to experience difficulties with heavy lifting, shovelling for prolonged periods and using power tools. … OPINION Mr Bagala has had a long history of difficulties with conditions involving lower back pain, right shoulder and arm pain, and left wrist pain. He has remained on restricted duties since 2002. … In November 2003, it was advised that he would require permanent restrictions to his work, which is still the standing recommendation, … Given his long history of lower back and right shoulder pain, which increases, with activities of heavy lifting or repetitive shovelling, he would be considered at risk of re injury if returned to all his normal duties. However, he is fit to continue with permanently restricted duties, and he is considered permanently unfit to resume all his normal duties. 42 On 20 December 2004, Ms Bathe met with Mr Bagala, Mr Faccin and Les Dallis, Mr Bagala's union representative, to discuss the report written by Dr Wijetunga. During this meeting Ms Bathe said Mr Faccin advised Mr Bagala that the only duties available at Seven Hills were sweeping and pushing a wheelbarrow. Ms Bathe said she informed Mr Bagala that there was a temporary role with Training Services available, but Mr Bagala said that he did not want this position on the basis that it was too far to travel. 43 On 21 January 2005, Mr Farag, Occupational Physiotherapist, performed a Functional Capacity Evaluation on Mr Bagala. In his report, dated 21 January 2005, Mr Farag stated: Consistency of Performance The functional limitations identified on this assessment occasions are consistent with those identified in previous assessments. Namely prolonged forward bending and kneeling postures are difficult to assume and slight variation in working postures is recommended. Once again this is consistent with the identified physical parameters, which are largely unaltered since the previous assessments and do not indicate either improvement or deterioration. … Physical Work Restrictions Mr Bagala remains restricted in sustaining awkward postures that load the spine and requires flexibility in working postures, particularly forward bending and kneeling, as well as squatting and crouching. Slight improvement in manual handling abilities particularly lifting above shoulder level and horizontal lifting. Lifting from floor level (15kg, 1-5% of the work day, tension in the erector spinae) Lifting above shoulder level (10kg for 6-33% of the work day, asymmetrical posturing) Horizontal lifting (17kg, 1-5% of the work day, tension in the erector spinae) Front carry (17kg, 1-5% of the work day, tension in the erector spinae) Left carry (10kg, 1-5% of the work day, lateral stability of the spine) Right carry (10kg, 1-5% of the work day, lateral stability of the spine) Physical Capacity Compared to Job description … He has evidence of degenerative changes in the back but there is no deterioration or improvement in his physical condition there. Options and Recommendations In my opinion Mr Bagala remains permanently restricted in relation to performing the full duties of his pre-injury position. At this stage upgrading him to the full duties of a production employee increases the risk of injury to his lower back and right shoulder. … 44 On 27 January 2005, Ms Bathe met with Mr Bagala and Mr Faccin to discuss Mr Farag's Functional Assessment Report. During this meeting Ms Bathe said Mr Bagala was handed a copy of this report and was handed a letter from Mr Werda, directing him to stay home on full pay till a suitable duties position is found for him. 45 On 25 February 2005, a Case Conference was held, where Mr Bagala, Mr Werda, Mr McLachlan, Mr Fuller (ASU), Mr Bagala's son and Ms Bathe met to review the current medical, functional and vocational assessments for Mr Bagala, with a view to exploring the opportunity to identify suitable work within the restrictions and to discuss any other relevant issues concerning his injury management. During the meeting Mr Bagala was given copies of the Functional Assessment Report dated 21 January 2005, Vocational Assessment report dated 21 September 2004, and HealthQuest report dated 14 December 2004. Ms Bathe said during this meeting, Mr Bagala: (a) Said that he felt he was capable of doing much more than his assessments indicated; (b) Accepted that he runs the risk of further injury if he did not adhere to his Injury Management Plan and work within his restrictions; (c) Was unsure what work he could do if no suitable work was identified within Civil Maintenance, but would think about it and get back to Mr Werda in a week in relation to this; and (d) Would seek advice in relation to his financial status and Superannuation. 46 Ms Bathe said on 6 April 2005 she received a letter from Dr Brdarevic, Mr Bagala's treating General Practitioner, dated 31 March 2005. In his letter, Dr Brdarevic stated in part: Mr Bagala has the following conditions with variations from time to time: · Chronic lower back pain due to osteo – arthritis which is fluctuating. · Chronic right hip pain due to osteo – arthritis which is fluctuating. · Left wrist tenosynovitis de-quervain – resolved ten months ago. · Right arm torn biceps – minimal restriction. In general Mr Bagala is able to perform his pre-injury duties as listed in your above letter – items 1 to 8. However patient should not carry out any repetitive lifting and or lift anymore than 20kg at any given time. As for any permanent medical restrictions Mr Bagala will continue to have occasional pain to his back and right hip. As I have referred Mr Bagala to Dr Ganora, Rehabilitation Specialist in February of this year I leave the final prognosis to him. 47 On 14 April 2005, Dr Ahmad provided a Fitness for Work Summary in respect of Mr Bagala, which stated in part: Mr Austin is suffering from a health condition that will, in all likelihood prove permanent. As a result this employee is unable to perform the inherent requirements and job demands of the position as a Production Employee for the SYDNEY WATER CORPORATION and it is likely that this will continue for the foreseeable future. 48 Mr Fitzgerald's evidence went to the fact that he prepared recommendations to Michael Keelan, General Manager, in respect of the medical retirement of Mr Bagala and Mr Austin. In respect of Mr Austin, in recommending medical retirement, Mr Fitzgerald drew attention to Mr Austin's history, which has been dealt with in the summary above of Ms Bathe's evidence and took into account: · that Mr Austin is likely to remain unfit for his pre-injury duties as a Production Employee or as a Water Sampling Officer in the foreseeable future; · the period of time that Mr Austin has been on suitable duties; and · that Sydney Water has been unable to find a position with duties suitable to accommodate Mr Austin's restrictions. 49 A similar process was followed in relation to Mr Fitzgerald's recommendation to medically retire Mr Bagala. 50 Mr Hanna's evidence went to the outcome of proceedings relating to claims by Mr Austin and Mr Bagala for workers compensation. In Mr Bagala's case the settlement in November 2002 was in the following terms: · Payment of $9,000 in respect of 15% permanent impairment of the back; · Payment of $8,000 in respect of 10% permanent loss of use of the right arm at or above the elbow; · Payment of $14,475 in respect of pain and suffering; · No payment in respect of weekly payment; and · No payment in respect of medical expenses. Mr Bagala has recently recommenced a claim for compensation in respect of weekly payments. 51 In April 2003 a settlement was also reached with Mr Austin in the following terms: · Payment of $7,500 in respect of 12.5% permanent impairment of the back; · Payment of $1,875 in respect of 2.5% permanent loss of use of the right leg at or above the knee; · Payment of $1,875 in respect of 2.5% permanent loss of use of the left leg at or above the knee; · Payment of $11,750 in respect of pain and suffering; · No payment in respect of medical expenses. In addition to these awards, from 23 April 2003, Sydney Water agreed to make payments of weekly compensation to Mr Austin of $200 per week on an ongoing voluntary basis. These payments are continuing. 52 Mr D Davies, solicitor, appeared for Sydney Water. He, too, relied on Hill v Director General of the Department of Education and Training. In that respect, Mr Davies submitted: The ASU on behalf of Mr Austin and Mr Bagala has not made out a serious question to be tried or a prima facie case, as: (a) All medical reports and medical certificates only provide that the Applicants have only ever been either unfit or fit for suitable duties. (b) The most recent report provided by Mr Bagala's Nominated Treating Doctor, Dr O Brdarevic, dated 31 March 2005, falls well short of certifying him fit for pre-injury duties. (c) The Fitness for Work certificates issued in respect of the Applicants, by Dr Radin Ahmad, state that the Applicants are ' unable to perform the inherent requirements and job demands of the position' and that 'this will continue for the foreseeable future' . (d) The Applicants have both been previously offered, or encouraged to take up, permanent and temporary positions within Sydney Water: (i) Mr Bagala was offered the position of Tanker Driver in the Water Services Division, in October 2004, but declined the role on the advice of his union and on the basis that he did not feel safe driving a big truck through narrow streets; (ii) Mr Bagala was offered a temporary role with Civil Maintenance, for 7 months, drilling in new signs, in July 2004 and a temporary role with Training Services, in December 2004, Mr Bagala turned this position down, on the basis that it was too far to travel; (iii) Mr Austin was offered the position of Tanker Driver with Tankering Services, in March 2003, but declined the role on the basis that he was not confident he could perform the role; (iv) Mr Austin was encouraged to consider the position of Survey Field Hand with the Survey and Design Group, in June/July 2003, however the demands of that role were considered too much for Mr Austin and his union advised him not to take part in considering the role of Survey Field Hand; and (v) Mr Austin trialled the position of a Water Sampler at West Ryde Depot, in December 2003, but was unable to perform the role as he found the work of Water Sampling physically difficult, he complained that he experienced increased in pain in his lower back and expressed concerns about aggravating his Injury and was unable to work all the Water Sampling runs. 53 It was submitted Mr Bagala and Mr Austin, after lengthy periods on suitable duties and workers' compensation, have never provided any medical evidence certifying them fit for full range of pre-injury duties. In relation to Mr Bagala it was submitted he has been either unfit for work, or fit for suitable duties only, since 3 May 2001 and in relation to Mr Austin he has been either unfit for work or fit for suitable duties only, since 14 August 2001. 54 Mr Davies submitted Sydney Water: had followed its Medical Retirement Process; the two employees had been afforded procedural fairness throughout that Process; they have been represented; and, have had the opportunity to obtain legal advice. It was submitted an employer was not obliged to attempt rehabilitation forever and that it was well established that no employer must continue to provide light duties forever: Banning v Great Lakes Council [2002] NSWIRComm 47. 55 It was further submitted the respondent was within its rights after approximately 3 years and 8 months, in respect of Mr Austin, and almost 4 years, in respect of Mr Bagala, of providing suitable duties, to consider that the two men will not return to pre-injury duties. 56 In relation to the question of irreparable injury Mr Davies submitted there was no evidence that this would be so in the case of Messrs Austin and Bagala. Mr Davies referred to the unusual circumstances in Hill, ASMOF o/b Elizabeth Benson v Western Sydney Area Health Service [2003] NSWIRComm 337 and Australian Salaried Medical Officers Federation (New South Wales) on behalf of Dhayanithi Sivathondan and South Western Sydney Area Health Service [2002] NSWIRComm 98 where the Commission considered the usual remedies were not sufficient and contended those circumstances did not exist here. 57 As to the balance of convenience, Mr Davies contended it weighed in favour of the respondent being permitted to exercise its right to consider medically retiring the two employees at the conclusion of the Medical Retirement Process. He submitted the employees' rights to challenge any outcome would remain unaffected if the orders are not granted and that the Commission should not lightly exercise its discretion to interfere with an employer's right to manage its employees. 58 It was further submitted that in the absence of any considerations that would indicate unfairness, unreasonableness of injustice, the balance of convenience rested with the completion of Sydney Water's process. It was also noted the employees' rights to workers' compensation payments remain unaffected. Consideration 59 Sections 136 and 137 of the Industrial Relations Act appear in Parts 1 and 2 respectively of Chapter 3, Industrial Disputes. Section 136 provides: 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. 60 Section 137 provides: 137 Kinds of dispute orders (1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings: (a) The Commission may order a person to cease or refrain from taking industrial action. (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. (c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. (d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute. (2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer. (3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount. 61 The orders sought by the ASU are under ss 136 and 137(1)(c) where the Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. 62 There was no issue that an industrial dispute existed between the ASU and Sydney Water. The subject matter of the dispute, as earlier explained, involved the operation of Sydney Water's injury management policy. In the course of that dispute there is no issue that Sydney Water took a decision to terminate the employment of Mr Bagala and Mr Austin in accordance with its medical retirement policy. The terminations have not yet been effected pending the outcome of this proceeding. 63 The proposed terminations have a connection to the subject matter of the dispute because part of the ASU's complaint is that in applying its injury management policy Sydney Water is not making sufficient effort to find suitable employment for injured employees nor is it putting sufficient effort into re-training employees who may have been injured so that they are able to perform work other than pre-injury duties. The ASU contends that if proper efforts had been made by Sydney Water to find suitable employment for Mr Austin and Mr Bagala, or had Sydney Water provided the two employees with re-training, there would be no need to medically retire them. 64 Mr Lynch contended in his submissions that feelings amongst employees were strong over what were perceived to be inadequacies in Sydney Water's approach to injury management and unless the dispute was resolved these feelings might boil over into industrial action. 65 On the face of it, s 136, in combination with s 137(1)(c), gives the Commission the power to exercise its discretion to order Sydney Water not to dismiss Mr Austin and Mr Bagala. The section, I think, owes its existence to the Parliament's concern, in introducing the Industrial Relations Bill 1995, that the Industrial Relations Act 1991 did not invest power in the Commission, in dealing with an industrial dispute, to reinstate or re-employ any one or more employees who were dismissed in the course of an industrial dispute or whose dismissal resulted in an industrial dispute, other than in accordance with the specific provisions dealing with unfair dismissals in Chapter 3, Part 8 of the 1991 Act: see Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (New South Wales Branch) (1992) 45 IR 39; Hansard, Legislative Council, 23 November 1995, 3851. 66 It is likely that the Parliament's principal intention in providing for s 137(1)(b) and (c) was to provide the Commission with the means of dealing with situations where a dispute existed and in the course of the dispute employees taking industrial action in support of claims were either threatened with dismissal or were dismissed because of, or for reasons related to, the industrial action. A good example of that was the situation addressed by the Commission in Woolstar where the employer dismissed approximately 400 employees, members of the Federated Storemen and Packers Union of Australia, NSW Branch, in the course of an industrial dispute. 67 The present circumstances are not the same as those in Woolstar. However, it seems to me that orders of the kind in s 137(1)(c) may be made to prevent the termination of employees threatened with termination in a situation where their future - that is, whether or not they are to be retained in employment - depends on the outcome of the arbitration of the subject matter of an industrial dispute. Moreover, I agree with the observation of Schmidt J in Hill at 205 that it is evident on the face of ss 136 and 137 that the Commission has the power to make an order on an interim basis, that a person who has been threatened with dismissal, not be dismissed. 68 The next matter for consideration is whether orders of the kind under s 137(1)(c) should be made in this case and what are the tests to be applied in determining that question. Both parties relied on Hill, which, of course, employed the standard tests applied to the granting of injunctions as enunciated by Mason ACJ in Castlemaine Tooheys. Those tests have been applied in numerous cases before the Commission in circumstances of threatened dismissal, usually in the context of s 89(7) of the Act, and whilst I am not entirely satisfied that the approach in Hill is necessarily appropriate in all cases for the granting of interim relief under s 136 and s 137, it is my intention to adopt it in this case as a guide to achieving a fair and proper outcome. In doing so, the Commission cannot lose sight of its duty under s 163(1)(c) of the Act to act according to equity, good conscience and the substantial merits of the case and if that requires some modification of the tests applied in Hill to the peculiar circumstances of the case then so be it. 69 The question of whether there is a serious issue to be tried, or in this case arbitrated, is complicated by the approach the parties took to this question. The ultimate issue to be arbitrated is whether Sydney Water's approach to injury management is adequate, but both parties in their respective submissions on whether there was a serious question to be arbitrated have blurred the issue of the adequacy of the respondent's injury management policies and practices and the issue of the termination of employment of Mr Bagala and Mr Austin. The focus of submissions on whether there was a serious issue to be tried was on Sydney Water's treatment of Mr Austin and Mr Bagala under its injury management policies and practices rather than the wider question of the policies and practices themselves. 70 The approach I propose to take, however, in considering whether there is a serious question to be arbitrated, is whether Sydney Water's treatment of Mr Austin and Mr Bagala gave rise to a prima facie case that such treatment reflected an inadequate injury management scheme. 71 There is no doubt that Sydney Water has a comprehensive and largely commendable injury management policy and it is difficult to find fault with much of the process as it was reflected in its application to Mr Austin and Mr Bagala. Various attempts over a number of years were made to find suitable duties within Sydney Water for both Mr Austin and Mr Bagala given the nature of their incapacity and it could not be successfully contended that Sydney Water acted with indecent haste in arriving at a decision to medically retire these two employees. 72 Nonetheless, the ASU contended that the various positions offered to Mr Austin and Mr Bagala amounted to no offers at all because either the requirements of the work exceeded the medical limitations imposed on the employees or the offers were unreasonable in the circumstances. The ASU were particularly concerned with the failure of Sydney Water to offer Mr Austin a clerical or administrative role and that Sydney Water simply relied on one vocational assessment of Mr Austin in August 2002 that "his minimum education would not render him competitive for formal administration positions." The ASU strongly contended that Sydney Water's system for searching out suitable duties for employees who could no longer perform their pre-injury duties was inadequate. The ASU also questioned why Sydney Water could not give precedence to finding suitable duties for an incapacitated employee over contractors or employees of contractors. That is, why was it that Sydney Water could not look at the work being done by contractors and replace the contractor or the contractor's employee if that would achieve the goal of providing suitable work for the employee who could no longer perform pre-injury duties? 73 This last issue is one about which I do not have any information. Where an employee has served the employer well over many years and who, despite a work injury, is keen to remain in employment and is able to perform productive full time or part time employment even though re-training might be required, why should a contract worker not be displaced if that is what is required in order to provide suitable duties to a long serving and loyal employee who will find it difficult to find other employment because of their age? 74 I consider Sydney Water's injury management and medical retirement policies and practices are generally good. There is clearly a well developed system in place to for liaising with injured workers, managers, treating doctors and other treating health professionals, developing return to work plans and monitoring the injured worker in the workplace. Further, I consider Sydney Water is essentially committed to retaining employees where it is able, rather than having the tacit objective of getting injured employees "off the books" as quickly as possible. However, the question remains whether the system in place is adequate to ensure that the retention of injured employees in employment is achieved to the greatest degree that is reasonably possible, consistent with the spirit and intent of the Workplace Injury Management and Workers Compensation Act. 75 In considering this question there are some issues about which I need further information and which require further consideration. For instance, I would not consider an injury management system to be adequate if the only mechanism in place in an organisation such as Sydney Water for searching out suitable duties was an email to various managers inquiring whether they had vacancies for a person with certain limitations and where there was no follow up to ensure the inquiry was dealt with in a proper manner. It is too easy for a manager to reply that no position is available for an employee who will require monitoring and greater management effort if the alternative is to engage an able bodied contractor. 76 The issues about which I require further information are as follows: (1) What is the system, if any, for searching out, and following up, on suitable duties for injured employees, having regard to the restrictions on the work they are able to perform, within: (a) Sydney Water's Water Service Division; (b) Sydney Water Corporation; (c) Other employers? (2) What is the system, if any, for determining what range of duties an injured employee may be able to perform with reasonable and appropriate re-training, what re-training does Sydney Water provide and on what basis is it determined that an injured employee is a candidate for re-training? (3) Does Sydney Water give precedence to the employment of employees over the engagement or continued engagement of contract workers in circumstances where the employees are unable to perform pre-injury duties but who are able to undertake full time or part time work in an area of Sydney Water's operations covered by contractors? If not, why not? (4) What arrangements are in place to review on a regular basis return to work programs in consultation with relevant unions? (5) What formal role does an injured worker's representative have in determining whether suitable duties are available and what practical arrangements are in place to ensure the representative is provided with an opportunity to be consulted about the question of suitable duties? Does the representative have access to a list of suitable duties that may be available and a description of the work involved? 77 Given the foregoing, I consider there are matters yet to be fully made clear about Sydney Water's injury management and medical retirement policies and practices and that in order to resolve the industrial dispute, either by arbitration or in the form of recommendations to the parties, it is appropriate that I give further consideration to the issues I have raised once I am provided with the necessary information. I will give directions in that regard. 78 That brings to the question of irreparable injury or, put another way, whether the relief that might be available to Mr Austin and Mr Bagala under the unfair dismissals provisions of the Act, if their employment were terminated, would be an adequate remedy. 79 Clearly, adequate relief is available to Mr Austin and Mr Bagala if they were able to make out a case for reinstatement and such a consideration counts in favour of refusing interim relief. However, whilst I acknowledge the principle the Commission will not lightly interfere with an employer's right to dismiss an employee without first coming to the view that such dismissal would be harsh, unjust or unreasonable, in the present case there are a number of issues I have identified that need to be resolved before being able to come to that view. If, for example, after considering the further information I have sought, I was to come to the view that the system within Sydney Water for searching out suitable duties was inadequate and that inadequate system operated in respect of Mr Austin and Mr Bagala, it might lead to a conclusion that termination of employment would be harsh, unjust or unreasonable. On the other hand, the further consideration may lead to the conclusion that the respondent took all reasonable steps to find alternative work for the two employees and medical retirement was the only reasonable option for the employer. 80 I propose to order that Sydney Water not proceed with its decision to terminate the employment of Mr Bagala and Mr Austin until I have considered those matters in respect of which I require further information. 81 That leads me to consider the balance of convenience. In that respect, I note that in both the case of Mr Austin and Mr Bagala it has been close to four years that the respondent has had to monitor and manage the two employees in order to accommodate their incapacity to perform pre-injury duties. Further, I am aware of Sydney Water's view that it has followed its medical retirement process, that the employees have been afforded procedural fairness throughout that process and that it should not be required to provide light duties indefinitely. Of course, it is not a question of light duties, but rather suitable duties that the employer would otherwise require to be performed in the conduct of its business. I am further led to understand that Mr Austin and Mr Bagala are not performing any productive work but they are continuing to be paid wages. 82 On the other hand, if I do not grant the interim relief sought by the ASU it will be open to the respondent to terminate the employment of Mr Bagala and Mr Austin. If that were to occur, and within a short period thereafter I was to find that Sydney Water's injury management system was inadequate, not only generally but in the manner it was applied to Mr Bagala and Mr Austin, that would likely provide the two employees with strong grounds to seek a remedy under the unfair dismissal provisions of the Act. There is also the strong prospect that if the employment of the two employees was terminated in circumstances where the Commission was continuing its inquiry into the respondent's injury management system it might spark industrial action. 83 The balance of convenience, in my opinion, lies in favour of the two employees being retained in employment until such time as the Commission completes its inquiry into the additional matters identified in this decision and makes a determination in that respect. I propose to expedite my consideration of the additional matters. Orders and directions 84 Pursuant to s 136 and 137 of the Industrial Relations Act, the Commission makes the following orders and directions: 1 Sydney Water Corporation shall not terminate the employment of Mr Tony Bagala and Mr Ronald Austin until further order of this Commission. 2 Sydney Water Corporation is to file and serve any material upon which it intends to rely in providing information in response to the issues raised in par [76] of this decision by 4.00pm on 27 May 2005; 3 The ASU is to file and serve any material upon which it intends to rely in response to the information provided by the respondent by 4.00pm on 6 June 2005; 4 The matter is listed for further hearing at 10.00 am on 8 June 2005; 5 Liberty to apply on short notice. _________________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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