Win for workers

20 July 2015
Maurice Blackburn and the TWU have won a landmark case in the Fair Work Commission which sends a strong message to employers about overstepping boundaries when it comes to workers’ health, privacy and their personal lives.

TWU v Cement Australia Pty Ltd [2015] FWC 158 (20 April 2015) tested what is lawful and reasonable when it comes to directions issued by employers to their employees that invade their personal life.

The Commission ruled that it is unreasonable for an employer to direct a group of workers to attend a compulsory health assessment unless there is a genuine need for the assessment and it is relevant to the requirements of the worker’s job.

In this case, Cement Australia Pty Ltd sought to introduce a compulsory physical risk review program relying on injury statistics about the frequency of injuries reported by heavy vehicle drivers in its distribution division, in particularly musculoskeletal injuries.

The program, to be undertaken every 2 years by external provider Kinnect, included a range of assessments such as blood pressure, height and weight, waist and neck circumference and range of motion testing.

The union strongly disputed the company’s right to direct drivers to participate in the assessment, particularly given the lack of information regarding the assessment and privacy concerns about how the information would be stored and used.

The Commissioner ruled that Cement Australia’s direction to the drivers to participate in the program was not a lawful and reasonable direction.

She said in the decision: "There has been an insufficient particularisation of the data to establish a genuine need to direct an entire segment of the workforce to undertake this assessment. Further, the outcome of the Risk Review Program will not provide medical information directed to the inherent requirements of the job or provide a link to reduce the musculoskeletal injury rate."

"In addition, given that there remain questions regarding the process and contradictory information and questions regarding the discharge of the process, the direction has not been made on reasonable terms. The [company] could not conclusively provide that the privacy of employees’ medical information would be secured."

Employers are continuing to cross the line into workers’ personal lives. This has been happening for some time. This is an important example of unions acting on behalf of workers to draw that line.