AIRC refuses mine employer access to medical records - for now

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AIRC refuses mine employer access to medical records - for now

Hail Creek coal mine’s attempt to 'arm itself' against a claim by workers deemed 'unsuitable' for employment has been put on hold after the AIRC foundthe confidential medical records sought were not relevant at this stage.

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Hail Creek coal mine’s attempt to 'arm itself' against a claim by workers deemed 'unsuitable' for employment has been put on hold after the AIRC foundthe confidential medical records sought were not relevant at this stage.

Background

In July 2003 the AIRC Full Bench issued the Hail Creek Preference of Employment Order which was designed to ensure the company fill vacancies from an agreed list. The order allowed the company to apply to the Commission for relief from the order if it felt that a candidate wasunsuitable for a position.

In December 2003, Hail Creek notified the Commission of applications for relief in relation to 10 listed employees. In January it asked the FullBench to issue directions that would force the employees to producedocumentation it said it needed to prepare its case.

It said eight of the 10 applicants had refused access to medical assessment documentation and three had refused access to their functional capacity evaluation report.

The medical assessments had been performed as part of the Coal Mine Workers Health Scheme. Under the scheme the employer appoints a medical advisor, but their clinical findings and the health-related history of the mineworker are confidential and are not disclosed to the employer.

Instead the advisor comments on whether the worker is fit to undertake a position and whether they have any conditions that need managing. It is open to an employer toconclude that an employee cannot be gainfully employed because of anynecessary medical restrictions.

Findings

Commissioner Bacon said Hail Creek took a 'global' rather than an individual approach to establishing why it needed access to the medical reports to show that the workers were unsuitable for employment. He also noted that the company sought much more than just the clinical findings that underpinned any restrictions - it wanted all of the health-related history and all ofthe clinical findings and all other medical records for each of the namedworkers.

The Commissioner said it was difficult to see why a different approach should be taken in relation to these individuals 'as compared to the thousands of mineworkers and prospective mineworkers who, each year, have their future in the industry determined by a strict application of theHealth Scheme'.

He said it seemed that Hail Creek wanted to 'arm itself' against the possibility that the workers intended to produce detailedmedical evidence which would contradict any restriction put in place by its own medical advisor.

Commissioner Bacon found that as each individual's circumstances were considered it might be that the disclosure of some (or all) of the relevant clinical findings and/or health related history might be relevant.

However,he said, Hail Creek had not established that the documents it sought at thisstage of the proceedings were of the relevant nature. The Commissioner alsonoted that there was a persuasive public interest consideration inmaintaining the integrity of the Health Scheme.

Commissioner Bacon concluded that Hail Creek could make a further application for the release of the medical information at any time after theCFMEU had filed its material.

See: Hail Creek Coal Pty Ltd, AIRC PR942931, (22 January 2004).

 

Related:

Sample medical information policy

 

Sample job application form

 

 

   

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