Industrial Relations Commission of New South Wales CITATION: Australian Workers' Union, New South Wales and BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1056 APPLICANT Australian Workers' Union, New South Wales PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): 3200 of 2006 CORAM: Macdonald C CATCHWORDS: Dispute notification - employee allegedly being forced to sign negative drug and alcohol test consent form - referral agreement - conciliation partly successful in resolving an issue - certificate of attempted conciliation issued - hearing - privacy issue raised by employee considered but rejected - legislation and policies concerning medical records and privacy - medical records of employee pertaining to employee's drug and alcohol test can not be destroyed or removed but otherwise archived - file closed LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Australian Workers' Union, New South Wales v BHP Steel (AIS) Pty Limited (2003) NSWIRComm 461 HEARING DATES: 16/08/07 DATE OF JUDGMENT: 6 December 2007 APPLICANT Mr Wayne Phillips Australian Workers' Union, New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr Michael Mead Australian Industry Group New South Wales Branch DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 6 December 2007 Matter No IRC 3200 of 2006 Australian Workers' Union, New South Wales and BlueScope Steel (AIS) Pty Limited Notification under section 130 by Australian Workers' Union, New South Wales of a dispute with BlueScope Steel re member allegedly being forced to sign negative drug and alcohol test DECISION [2007] NSWIRComm 1056 1 The Commission has before it, a dispute notification under section 130 of the Industrial Relations Act 1996 ("the Act"). The dispute notification was lodged by the Australian Workers' Union, New South Wales ("the Union") against BlueScope Steel (AIS) Pty Limited ("the Respondent"). 2 The dispute notification was lodged on 28 September 2006. 3 The dispute notification concerns an employee of the Respondent (and member of the Union) who was allegedly forced to sign a document relating to a negative drug and alcohol test. 4 A Compulsory Conference of the parties was held on 6 October 2006. No referral agreement had been agreed to at that stage. 5 The parties appeared again before the Commission on 27 October 2006 for a Compulsory Conference and the Commission was provided with a referral agreement, agreed and signed, by the parties. The referral agreement set out the remedy being sought by the Union: " The member seeks to have all documentation relating to the testing (for drugs and alcohol) destroyed as the tests were negative and at no time did he refuse to participate in the testing process ." 6 Further conciliation of this notification was held on 5 and 8 December 2006, 1 and 22 February and 8 March 2007. 7 As the matter remained unsettled and conciliation was at an end, the Commission issued a Certificate of Attempted Conciliation on 8 March 2007. A Hearing program was put in place. 8 Subsequently the Hearing program was amended on 7 June 2007. The Hearing took place on 16 August 2007 in Wollongong. At the Hearing, the Union was represented by Mr Wayne Phillips who called the member concerned (Mr Francis Hughes) as a witness. The Respondent was represented by Mr Michael Mead of Australian Industry Group, who called Mr Christopher Darling (Manager - Safety, Health and Risk) as a witness. BACKGROUND 9 Mr Hughes has been an employee of the Respondent since 1980. 10 On 12 July 2006, there was an incident at work. He was working with another employee, carrying out a crane inspection. This is a WorkCover requirement to ensure the crane is fit for duty. Whilst doing so, there was a malfunction with the crane and a cable was severed. 11 A team leader was called over by the employees in question to inspect the malfunction. 12 Shortly thereafter, the team leader asked the two employees to have a Drug and Alcohol Test ("D.&A.T.") as there was damage to the crane. 13 Mr Hughes deposed he was willing to take the D.&A.T., even though he believed the incident was not due to employee error. 14 The two employees and the team leader walked over to the medical centre for the D.&A.T. 15 The resident nurse advised that unless Mr Hughes signed the appropriate form, then he could not take the D.&A.T. The consequence of not signing the appropriate form, was that the D.&A.T. would be deemed positive. Mr Hughes objected to signing the form but not to taking the D.&A.T. He eventually signed the form after he rang his Union. His witness statement (Ex 1) sets out the reason for objecting to signing the form. 16 The resident nurse also asked Mr Hughes a number of questions prior to taking the test. 17 Mr Hughes provided a urine sample as required for the D.&A.T. The nurse advised that the test was negative and gave him a copy of the D.&A.T. result. 18 Mr Hughes pursued his issue of concern surrounding the D.&A.T. with his Union which lodged a dispute notification on 28 September 2006. FINAL SUBMISSIONS For the Union 19 Mr Phillips of the Union, put the following in final submissions:- a) The remedy sought by the Union, on behalf of Mr Hughes, was the expunging of the D.&A.T. result (negative) from Mr Hughes file; b) Mr Hughes has no objection to undertaking a D.&A.T., but objected to doing so through the Respondent's medical centre facilities as that facility would then have access to his personal medical information; c) When Mr Hughes went to the medical centre, as directed by his team leader, he found himself in a waiting room - accompanied by the team leader and the other employee. Mr Hughes was questioned about his medical record and condition in front of the two other workers. Mr Hughes saw this as a breach of his confidentiality and privacy; d) Mr Hughes was asked to sign a form in order for the D.&A.T. procedure to be carried out. If any employee does not fill in the form, then a positive test result is automatically deemed to be the result. Mr Hughes resisted signing the form until he spoke to the Union. Mr Hughes' concern with the form was the access that people had to that form once he filled it in; e) Mr Hughes is prepared to undertake D.&A.T., but wants to use his own doctor or some other medical facility for testing purposes in order to maintain confidentiality and privacy; f) If Mr Hughes has to undertake a D.&A.T. on site, then he should not have to sign the form required. Even though the form has been amended already arising out of these proceedings, there was still no guarantee that no-one (apart from the company medical officers) would have access to Mr Hughes' personal records. For the Employer 20 Mr Mead, for the Respondent, put the following in final submissions:- a) The form required to be signed by employees is a consent form for agreeing to undertake the D.&A.T. That consent form and its retention by the medical centre is required by law; b) The retention of the form assists the Respondent in managing its liability on issues like occupational health and safety, WorkCover inspections and ensuring that the D.&A.T. process is not used as a mechanism to victimise employees by way of unfair targeting; c) The medical practitioners' nurses involved in the D.&A.T. process have their professional conduct for such a process, governed by the Medical Practice Act 1992 and the Nurses and Midwives Act 1991; d) The Medical Practice Act 1992 (section 126) states that the regulations may make provision for the keeping of records. The Medical Practice Regulation 2003 - Regulation 5 specifies that a record of each patient "must" be kept; e) There is also a legal requirement to maintain a record for seven years: Medical Practice Regulation 2003 - Reg 7. Accordingly, Mr Mead said that BlueScope Steel could not discard the negative test result of Mr Hughes as sought by him as a relief in the proceedings; f) As to Mr Hughes' concerns about privacy, of his medical records, the Commission was referred to the Health Records And Information Privacy Act 2002. Section 6 defines "health information" as that which includes personal information about an individual collected in connection with the donation, or intended donation, of an individual's body parts, organs or body substances, or… (s.6(c)). Mr Mead submitted that a urine sample would fit within the term, "body substances", and therefore fit within the definition of "health information". Schedule 1 (Clause 10) of the same Act, limits the use of "health information". That is, the "health information" (urine sample result) must not be used for a purpose other than the purpose for which it was collected - unless Mr Hughes consented otherwise. And Schedule 1 (Clause 11) of the same Act, limits the disclosure of "health information". That is, the "health information" (urine sample result) must not be disclosed for a purpose other than the purpose for which it was collected - unless Mr Hughes consented otherwise These provisions protected the privacy issue raised by Mr Hughes. Union in Reply 21 Mr Phillips, in Reply, put the following: a) The issue for determination goes to when is a consent form to be signed by an employee who is undertaking the D.&A.T. None of the material referred to by Mr Mead addresses that issue. That material does not say that the consent form has to be signed before a D.&A.T. is undertaken. CONSIDERATION 22 The Union filed a dispute notification on behalf of its member, Mr Francis Hughes who was aggrieved by the Respondent's D.&A.T. procedure. 23 The dispute notification stated the question, dispute or difficulty as follows: "Member forced to sign a document relating to a negative Drug and Alcohol test." 24 The Referral Agreement signed by the parties stated the dispute as follows: "Member at Slab Yard was forced to sign a document relating to Drug and Alcohol Testing. The member seeks to have all documentation relating to the testing destroyed as the tests were negative and at no time did he refuse to participate in the testing process." 25 The witness statement of Mr Hughes (Ex 1) sets out his concerns about the D.&A.T. process. a) He objected to signing the consent form, for giving permission for the D.&A.T. to be undertaken because of a privacy issue. That is, in signing the consent form, he was agreeing that the results of the D.&A.T., "would be released to an authorised Company Representative". He further deposed that he understood "that under the current system anybody within management may have access to these records". b) He sought that all records pertaining to the D.&A.T., identifying him personally, be removed. 26 The Commission will deal firstly with the evidence surrounding the issue of "privacy". 27 Mr Hughes' witness statement refers to his concerns about access by others to medical records in respect of the results of his D.&A.T. His concerns about who has access was considered by the parties and the Commission during the conciliation stage of this dispute. Arising out of the same process, the Respondent made a change to the consent form so as to accommodate that privacy concern of Mr Hughes. (The consent form is not titled such but is headed, "Standard Procedure - Safety Health & Risk") 28 The consent form, in its original format, was the subject of discussion in the conciliation stage of the dispute (MFI 2). The form identifies three types of tests: Alcohol Screen Test, Alcohol Confirmatory Test and Drug Screen. The first two tests require a breath sample and the latter (Drug Screen) requires a urine sample. 29 The Drug Screen test read (before being amended during the conciliation stage) as follows: " Drug Screen I understand that I am required to pass a sample of urine under supervision for the purpose of a Urine Drug Screen using the Vrian TesTcup. Positive tests will be referred to The Toxicology Unit of the Pacific Laboratory Medicine Services and I agree that this laboratory release the results of this test to an authorised Company Representative ." (emphasis added) Mr Hughes interpreted "authorised Company representative" as being wide ranging as to who might have access. Mr Mayne appeared for BlueScope Steel. He took on board that concern and the reference to "authorised Company representative" was deleted. In lieu, was wording that test results from the urine sample would be released to the "Company Medical Officer" (MFI 3). This document is annexed to Mr Darling's witness statement (Ex 2, CD 2). The impact of that changed wording is that it makes clear that the test results can only be provided to medical officers. 30 This changed wording also makes it clear and allays Mr Hughes' concern that "anybody within management may have access to these (medical) records." The final submission of Mr Mead, on behalf of BlueScope Steel, refers to matters contained in the statute which also restricts access to Mr Hughes' medical records and allays his privacy concerns. Thus Mr Mead referred to the Health Records And Information Privacy Act 2002 (" HR & IP Act ") He put forward a submission based on a reading of this HR & IP Act that Mr Hughes' urine sample result is not to be disclosed for a purpose other than the purpose for which it was collected - unless Mr Hughes consented otherwise. Mr Mead submitted that this HR & IP Act protected the privacy issue raised by Mr Hughes. 31 Mr Darling, Manager - Safety, Health & Risk at BlueScope Steel, Port Kembla gave evidence in the proceedings. He is a registered medical practitioner in the state of New South Wales and has also been a qualified medical specialist in the field of Occupational Medicine. (Ex 2, paras 1 to 3) 32 As to this issue of privacy of medical records, he deposed that the consent form (Annex CD 2) is considered to be a medical record and thus remains confidential to medical staff. The only information provided to operating management about medical records is the test result - that is, whether positive or negative. If a test is positive, there is no reference to the substance for which the test was positive or any of the levels recorded during the testing. (Ex 2, para 15) 33 Further, he said that the medical staff who have access are the registered doctors and nurses who have a broad series of legal and company requirements that they are required to follow with respect to medical records: New South Wales Medical Board Medical Records Acts and Regulations and the HR & IP Act 2002 (Ex 2, para 16) 34 Finally, he stated that the Respondent had developed policies and procedures in relation to storage and provision of medical records. (Ex 2, para 17) Summary 35 The Commission has considered the evidence pertaining to Mr Hughes' concern that his urine sample result "would be released to an authorised company representative" and "that under the current system anybody within management may have access to these records." 36 The first part of his concern set out above was addressed during conciliation of this matter and Mr Mayne for the Respondent addressed Mr Hughes' concern by deleting reference to "authorised company representative" and substituting "Company Medical Officer". The Commission is satisfied that this response by the BlueScope Steel (AIS) Pty Ltd representative makes it clear that information relating to his test is restricted to medical officers and such persons are registered doctors and nurses. The only information disclosed to non-medical officers about the D.&A.T. is whether the test was positive or negative. 37 Mr Darling deposed that Mr Hughes' concern about the terminology "authorised company representative" was the result of a misinterpretation by him of that term and its context. That is, Mr Darling stated that the D.&A.T. information would not be given out to company representatives. The Commission accepts that this is so, but the raising of that concern by Mr Hughes has resulted in plain language now being employed so as to make it clear to all employees that access to D.&A.T. information is restricted to medical officers. 38 The second concern/remedy raised by Mr Hughes was that he sought that all records pertaining to his D.&A.T., identifying him personally, be removed. 39 Mr Darling gave evidence on this remedy and advised that there were requirements as to why this remedy could not be granted. Thus: (a) Retention of the consent form was proof that the employee had indeed consented to the D.&A.T.. This protected the medical officers from liability. (b) Retention of the consent form and other associated forms, is proof that BlueScope Steel (AIS) Pty Ltd is complying with its policies and procedures. (Ex 2, paras 25 and 26) 40 In final submissions, Mr Mead, for the Respondent, set out the statutory requirements for the retention of an employee's test results. Thus the Medical Practice Regulation 2003 - Regulations 5 and 7, respectively require that records "must" be kept and kept for a period of seven years. Summary 41 Having considered the evidence as to Mr Hughes' application that his D.&A.T. records be removed, the Commission finds that this application cannot be granted because of a legal requirement upon the Respondent to keep such records. The Medical Testing Procedure 42 During the proceedings, evidence came to hand as to the privacy of an aspect of the medical testing procedure. The commentary on that aspect that appears below, does not form part of the Commission's deliberation on the two issues of concern raised by Mr Hughes. 43 It came to light during the proceedings, that the testing procedure carried out on Mr Hughes was not necessarily one entirely carried out in private. The Commission makes no finding as to whether that was so, because it was a matter that arose for the first time during proceedings and the Respondent was not therefore on notice that it was a matter to be addressed. Accordingly, the Commission is only drawing the parties' attention to this matter on the basis of alerting the parties as to whether there might be a privacy issue involved and if so, how might it be addressed. 44 When Mr Hughes attended the medical centre for the D.&A.T., he was accompanied by the other employee who was working on the crane (Mr Markovski) and the team leader. 45 The medical centre comprises, as the Commission understands it, two rooms: - waiting room and the testing room (the latter has a door). Again, as the Commission understands it, a registered nurse will ask questions of the employee to be tested, including the requirement to sign the consent form. Mr Hughes gave evidence that this process of the nurse asking questions took place in front of Mr Markovski and the team leader. Having taken the D.&A.T., the nurse gave out the result of the test (in his case, a negative result) in front of Mr Markovski and the team leader. 46 The issue of the presence of other persons when the nurse questioned (understood to be standard questions) Mr Hughes and the giving of the D.&A.T. result in front of the same persons, was not able to be taken further because the Respondent was not on notice about this issue and hence the nurse concerned was not a witness in the proceedings. Be that as it may, the Commission leaves the above issue with the parties for their consideration. 47 The Commission wonders whether the standard questions are known to the workforce through say, notice boards. If employees are aware of the standard questions, then any employee subject to a D.&A.T., could advise whether he/she wanted privacy in answering the questionnaire. 48 Should the parties need the assistance of the Commission in conciliating on this matter, then either party is able to access the assistance of the Commission through a different dispute notification process. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.