Industrial Relations Commission of New South Wales CITATION : Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v The Department of Aging, Disability and Home Care [2004] NSWIRComm 240 APPLICANT PARTIES : Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales RESPONDENT The Department of Aging, Disability and Home Care FILE NUMBER: IRC 277 of 2004 CORAM: Harrison DP CATCHWORDS : Notification under s130 of a dispute re sections 49(1) and (2) of the Workplace Injury Management and Workers Compensation Act 1998 - Compassionate transfer sought - transfer opposed - contest over applicable policy. Held - Policy confused - effective employer is Department of Aging, Disability and Home Care - employer failed to address issues of conflict in the workplace - absence of return to work plan - transfer refused - employer directed to meet obligation to resolution of workplace issues - recommendation that return to work program with training plan be developed. Industrial Relations Act 1996 LEGISLATION CITED : Public Sector Employment and Management Act 2002 Home Care Service Act 1988 Workplace Injury Management and Workers Compensation Act 1998 HEARING DATES: 06/25/2004; 08/03/2004 EXTEMPORE JUDGMENT DATE : 08/19/2004 APPLICANT Mr N Wilkins, PSA LEGAL REPRESENTATIVES: RESPONDENT Mr B King, DADHC JUDGMENT: - 9 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 19 August 2004 MATTER NO IRC 277 OF 2004 Notifcation Under Section 130 By The Public Service Association And Professional Officers' Association Amalgamated Union Of New South Wales Of A Dispute With The Department Of Aging, Disability And Home Care Re Sections 49(1) And (2) Of The Workplace Injury Management and Workers Compensation Act 1998 DECISION [2004] NSWIRComm 240 1 This matter was subject to several unsuccessful attempts at conciliation. Arbitration proceedings took place on 25 June 2004. The matter was unable to be completed on that occasion due to the unavailability of a witness for the respondent. The matter proceeded to conclusion on 3 August 2004. 2 Mr N Wilkins appeared on behalf of the Public Service Association And Professional Officers' Association Amalgamated Union Of New South Wales (PSA). Mr B King appeared on behalf of the Department Of Aging, Disability And Home Care (DADHC). 3 Ms Julie Ann Martin was employed as a Service Co-ordinator with the DADHC based at Port Macquarie from 29 July 1994. 4 On 12 June 2002 Ms Martin commenced a period of absence due to workplace injury and illness diagnosed as acute anxiety, stress and shingles. 5 Ms Martin's evidence is that the circumstances leading to this situation had their genesis in a number of workplace incidents involving herself and another service co-ordinator, identified as Robyn Cook, in March 2001 through to October 2001. Ms Martin deposed that she was subject to harassment and bullying behaviour, which she reported to the Service Centre Manager, Mr Danny Fahey. Her evidence is that she received no support from management to resolve the conflict with Ms Cook, and in particular her request for mediation was not acted upon; resulting in a deterioration of her health leading to time off work on sick leave and a period of hospitalisation for eight days prior to the absence from 12 June 2002. 6 Ms Martin's evidence is that she sought to return to work on 6 August 2002. In her first affidavit (exhibit 3) she deposed that Mr Fahey would not allow her to return to her service co-ordinator duties, requiring her to undertake "projects". Ms Martin's evidence is that she regarded management as exhibiting favouritism and preferential treatment to a Ms Nyomie Ward, an administrative assistant who had acted in the role of Service Co-ordinator during Ms Martin's absence. 7 The issues at Port Macquarie Home Care were never addressed. 8 Ms Martin worked from her residence for a period. In March 2003 Ms Martin was advised that there was no position within Port Macquarie Home Care and she was seconded to a position of Community Worker based at Kempsey from May 2003 to September 2003. Ms Martin holds an Associate Diploma in Social Science which qualified her for appointment to this position. On conclusion of the temporary position Ms Martin resumed absence on workers' compensation. 9 It is Ms Martin's evidence that she was offered six days' work in her position of Service Co-ordinator while Mr Fahey was on leave. She notes that Mr Fahey had been on leave for some nine weeks prior to the offer to her, which was made for the last six days of his absence. 10 Ms Martin deposed that she has no confidence in returning to her former position of Service Co-ordinator at Port Macquarie Home Care and seeks compassionate transfer to the first available vacant Community Worker position located at Port Macquarie. 11 Ms Martin deposed that on 5 February 2004 she received advice that a Community Worker position was vacant within the Port Macquarie office. Ms Martin met the eligibility requirements, applied for the position, and was subject to interview. The results of the interview process ranked Ms Martin below other applicants to the extent that she was not placed on the eligibility list for the position. The filling of this position has been on hold pending the outcome of these proceedings. 12 The argument advanced by the PSA is that a compassionate transfer should be allowed pursuant to the applicable Compassionate Transfer Policy. 13 Mr King argued that there is no Compassionate Transfer Policy and that compassionate transfer is not appropriate in the circumstances. 14 The policy position is best described as one of confusion arising from the formation of DADHC from the Home Care Service, Disability Services of the Department of Community Services and the New South Wales Department of Aging and Disability on 11 April 2001. Some of the Department of Community Services' policies and corporate services are retained by DADHC and others are not. This is an issue that DADHC should address. The relevant policy allowing for compassionate transfer should be properly and clearly documented and communicated to all relevant staff. 15 The argument advanced by Mr Wilkins that the Public Sector Employment and Management Act 2002 is the ultimate source of authority and provides capacity for transfer has some substance and should be given due consideration. 16 Mr King contended that Ms Martin is employed pursuant to the Home Care Service Act 1988, not the Public Sector Employment and Management Act 2002. 17 A most disturbing aspect of this case is that neither party could put definitive evidence or argument to establish precisely which sector of public administration is the responsible employer of Ms Martin. 18 Mr King's submission that Ms Martin is a permanent employee of Home Care Service and a temporary employee of DADHC attempts to clarify this, however, when viewed against the component parts of DADHC, which includes the Home Care Service, the proposition appears unusual. 19 The evidence of Ms Parkinson, Ms Cannon, Ms Brown and Ms Couper describes the work of Ms Martin in the temporary position of Community Worker and the selection process for filling the position on a permanent basis. 20 Ms Parkinson's evidence leads to a conclusion that Ms Martin was an energetic and conscientious worker. Ms Cannon, Ms Brown and Ms Couper did not denigrate Ms Martin's application to her duties, however, deposed that she lacked experience, particularly with disabled clients and accordingly was allocated work of a less complex nature and subject to greater than usual support by the management team. Ms Couper's evidence is that Ms Martin required twice the level of support normally required, and on her estimation could take a number of years to acquire the necessary experience to function effectively at the required level of independence. 21 Ms Brown, Ms Cannon and Ms Couper deposed that the effect on services whilst Ms Martin obtained experience was not acceptable. 22 It is not necessary for me to attempt to resolve the policy confusion in these proceedings. I find there is no basis for transfer of Ms Martin to a position in favour of a person or persons better qualified to deliver the sensitive community services required. 23 Mr Wilkins relied on s 49 of the Workplace Injury Management and Workers Compensation Act 1998 which requires an employer to provide suitable work. In considering the application of this section in the context of an industrial dispute, it is necessary in my opinion to have regard to ss 46, 47 and 48. These provisions are restated below: 46 Employer's injury management plan obligations (1) The employer must participate and co-operate in the establishment of an injury management plan required to be established for an injured worker. (2) The employer must comply with obligations imposed on the employer by or under an injury management plan for an injured worker. (3) This section does not apply when the employer is a self-insurer. 47 Worker's injury management plan obligations (1) An injured worker must participate and co-operate in the establishment of an injury management plan required to be established for the worker. (2) The worker must comply with obligations imposed on the worker by or under an injury management plan for the worker. (3) The worker must, when requested to do so by the insurer, nominate as the worker's treating doctor for the purposes of an injury management plan for the worker a medical practitioner who is prepared to participate in the development of, and in the arrangements under, the plan. (4) A medical practice can be nominated as treating doctor for the purposes of subsection (3). Such a nomination operates as a nomination of the members of the practice who treat the worker from time to time and a reference in this Chapter to the nominated treating doctor is a reference to those members of the practice. (5) The worker must authorise the worker's nominated treating doctor to provide relevant information to the insurer or the employer for the purposes of an injury management plan for the worker. (6) An injury management plan must provide for the procedure for changing the worker's nominated treating doctor. 48 Injured worker's obligation to return to work An injured worker must make all reasonable efforts to return to Work with his or her pre-injury employer (that is, the employer liable to pay compensation to the worker) as soon as possible, having regard to the nature of the injury. 49 Employer must provide suitable work (1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker. (2) The employment that the employer must provide is employment that is both suitable employment (as defined in section 43A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury. (3) This section does not apply if: (a) it is not reasonably practicable to provide employment in accordance with this section, or (b) the worker voluntarily left the employment of that employer after the injury happened (whether before or after the commencement of the incapacity for work), or (c) the employer terminated the worker's employment after the injury happened, other than for the reason that the worker was not fit for employment as a result of the injury. Note. See also Part 7 Chapter 2 of the Industrial Relations Act 1996 for provisions for protection of employment of injured workers 24 The application is not brought pursuant to Part 7 Chapter 2 of the Industrial Relations Act 1996 ("the Act") and accordingly consideration of these provisions do not arise. 25 The matter is brought as a dispute between the parties in respect to the discharge of their obligations, one to the other, in the circumstances of Ms Martin's injury and difficulty in returning to her former position or suitable alternative work. 26 Neither party provided detail of the employer's injury management plan. Ms Couper's evidence is that she was aware that Ms Martin was on a return to work program, but was not required to be aware of the detail. 27 The detail of this program is not provided in these proceedings. 28 It was put that Ms Martin's refusal to accept a position of Residential Support Worker (RSW) at Port Macquarie Home Care would result in the cessation of her workers compensation payments in the near future. Mr Wilkins argued that the qualifications and experience held by Ms Martin did not equip her for the RSW position and accordingly it is not suitable employment. 29 There is a paucity of evidence on this point. The argument advanced by Mr Wilkins is exactly the argument put by Mr King in respect to Ms Martin's suitability for the Community Worker position sought here on compassionate transfer. 30 The whole process appears to have advanced without any real consideration of Ms Martin's rights and fairness towards her. 31 The cessation or continuation of workers compensation payments is a matter for another jurisdiction 32 The following ex tempore decision, issued on 3 August 2004, is published below and affirmed. HIS HONOUR: I find on the evidence before me that Ms Martin has been treated unfairly by the Department of Home Services. I regard the Department of Home Services as the effective employer of first instance and conclude that it is totally untenable and unacceptable that the conflict in respect to working with the supervisor in the position of substance from which Ms Martin was first incapacitated remains unresolved. That's not an issue that the parties can walk away from. It's not an issue that can be resolved by simply removing Ms Martin. It is an issue that must be addressed by the management and whether it requires the removal of management, change of management or an accommodation by the parties, it must be addressed to conclusion and not walked away from. The responsibilities under the Occupational, Health and Safety legislation, I would think though not within this jurisdiction, fall upon Home Care Services in the first instance. Certainly the industrial issues fall upon Home Care Services in the first instance and I'm not satisfied that all reasonable avenues have been explored and resolved. I don't accept the submission from Mr King that there should be a change in Workers Compensation circumstances as a result of refusal of the RSW position. The matter has been very poorly and inappropriately handled in my opinion. These proceedings seek an order for a compassionate transfer to another section of the Department. The evidence is clear that there is a capacity to make that transfer should the Department so desire. It is another thing for this Commission to intervene and force such a transfer. I decline to do so. I note that it is an available resolution of the matter and indeed Ms Martin's ability or her capacity to accept a position at a lower rate of pay could be regarded as a generous concession by her to resolution of the matter and ought be taken on board in that way. The legislation requires and provides the capacity for training and it's my recommendation that a return to work program, with appropriate training over an appropriate period of time be developed, whether it be in Home Care Services which is the sector of initial responsibility or whether it be in the wider DADHC Department, is a matter for the parties to consider. I note the evidence of Ms Couper and the evidence of Ms Cannon that Ms Martin was a diligent and effective worker within her capacity, whilst engaged directly by them. That ought be recognised to her credit and I do not believe that it's beyond the capacity of the wider DADHC Department to develop a training program and a return to work program should, on the completion of proper and diligent efforts, nothing be found within the Department of Home Services. I formally refuse the application for an order of compassionate transfer. I conclude the proceedings on the basis of those determinations and recommendations. Thank you. 33 Matter No IRC 277 of 2004 is so concluded. oo0oo 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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