On 19 January 2018 a Full Bench of the Industrial Relations Commission (NSW) made a new award relating to Death and Disability for firefighters employed by Fire and Rescue NSW (‘FRNSW’) – Re Fire and Rescue NSW Firefighting Staff (Death and Disability) Award 2017 [2018] NSWIRComm 1003.

These matters are usually determined by agreement rather than a determination of a three member bench. What made this one different was a provision that, in the argument of FRNSW, would have put it in breach of the Occupational Health and Safety Act 2011 (NSW) (see [7]).

The previous award provided that where a question of a firefighter’s fitness for duty arose, a firefighter would obtain a medical clearance from their own ‘nominated medical practitioner’. That practitioner would forward the report to an ‘independent occupational physician nominated by FRNSW’. The independent occupational physician would review the report and advise FRNSW that the firefighter was fit for duty, fit for duty ‘with specified requirements or restrictions’, temporarily unfit for duty as a firefighter but fit to perform alternative duties, temporarily unfit to perform any duties or ‘permanently unfit to perform the firefighter’s ordinary duties’ [12].  No other information would be given to FRNSW.

FRNSW said without detailed information about a firefighter who was assessed as either unfit for duty, or fit for duty but subject to restrictions, it could not take steps to ensure a safe workplace for that firefighter ([7]). It wanted a clause that said, in effect, where a firefighter was assessed as ‘unfit by the independent occupational physician (“IOP”), either temporarily or permanently, the IOP is to also supply FRNSW with all related medical information’ ([13]).  At [14] the Tribunal said:

The position adopted by the FBEU [Fire Brigade Employees’ Union of New South Wales] was that the firefighter’s nominated medical practitioner would review and discuss the firefighter’s health and fitness check, together with the results, with the firefighter and advise FRNSW that the firefighter had attended and completed their required health check. No other information would be provided to FRNSW.

In support of its position, FRNSW relied on the evidence of a ‘an occupational physician employed by FRNSW’ ([15]).  The FBEU relied on ‘the “Ethical Guidelines for Occupational and Environmental Physicians” prepared by the Royal Australasian and [sic] College of Physicians which emphasised the need to protect the confidentiality of information about the health status of employees’ ([16]).

The result (at [17]) was that the Full Bench inserted the following clause into the award (underlining provided in the judgement):

The independent occupational physician will provide no other information or advice to FRNSW concerning the firefighter’s health and fitness without the firefighter’s consent apart from such information regarding the specified requirements or restrictions as, in the professional opinion of the independent occupational physician, is necessary for the safe management of the firefighter. If the firefighter disagrees with the independent occupational physician’s advice to FRNSW, then it will be open to the firefighter to seek a determination of their fitness for duty under Clause 8.

That it is up to the IOP to determine what information should be given to FRNSW may, no doubt, lead to disagreement something which the Tribunal noted.  They said (at [18]):

In the view of the Full Bench the addition of these words … appropriately, at least at this stage, balances the right to privacy on the part of employees and the employer’s need for information to meet its responsibilities to ensure the safety and welfare of its employees at work. As information is gathered in the operation of these provisions there may be a need to adjust the balance, but that consideration will be undertaken in the light of practical experience rather than theoretical possibilities.

It will be possible for the parties to return to seek an amendment to the award if, ‘in the light of practical experience’ the balance between the needs of FRNSW and firefighters has not been appropriately made.

POSTSCRIPT

Following the decision of the Full Bench discussed, above, there were still some outstanding matters between FRNSW and the FBEU. These were subject to further conferences until the matters were resolved.  The finalised award was made on 1 June 2018 (Crown Employees (Fire and Rescue NSW Firefighting Staff Death and Disability) Award 2017 [2018] NSWIRComm 1040).