PSA Report Fitness Guidelines and Healthquest 14 March 2007

"Fitness to Continue Guidelines" and Healthquest

Central Council, 14 March 2007

Report adopted

Fitness to Continue Guidelines

Unions NSW called a meeting of public sector unions on 22 February 2007 to discuss the Public Employment Office's redraft of the Fitness to Continue Guidelines, last published in Memorandum 2001-11. On checking the redraft document against the M2001-11 guidelines, it was noted that there were a number of changes of great concern to the PSA.

The redraft document has changed "inherent requirements and job demands of a position" to "inherent requirements and demands of a position" and has deleted the reference to case law and to the two separate definitions of "inherent requirements" and "job demands" taken from case law.

This error has been compounded by stating in the redraft document that position descriptions are all the employer has to submit about the inherent requirements and demands of a position. The PSA does not accept that position descriptions provide sufficient information for fitness to continue assessments.

There are other deletions and insertions in the redraft document which are not acceptable. For example, removal of the paragraph under Reasonable Adjustments (for people with disabilities) which states that the employer cannot use "unjustifiable hardship" arguments for existing employees as these disabled employees must be provided with services or facilities. As well, the sentence "No single factor alone is likely to constitute unjustifiable hardship" has also been removed.

Under Referral of Employees, following the usual list of reasons to refer an employee for a medical assessment, there is a new and rather disturbing sentence "The above list does not include all the situations that could lead to an employee undertaking a fitness to continue assessment".

Under Medical Retirement, the redraft document has removed the words "medically retire the employee unless alternative duties can be found". The only mention of "alternative duties" has been moved to a paragraph about the last day of service for medical retirement.

The redraft document deletes the current specific timeframe for the last day of service based on the appeal process. There is also a proposal for an administration fee for employees seeking to access their personal information.

The Unions NSW representative on the HealthQuest Board, Mr Terry Hannan, attended the Unions NSW meeting on 22 February, together with the PSA and Nurses Association. Mr Hannan supported the PSA's concerns with the redraft document.

Mr Hannan proposed that employees not be confined to submitting only medical information (as proposed in the redraft), but should be able to submit additional relevant medical and other information to HealthQuest at the time of their assessment. He proposed rewriting two paragraphs under Appeals to provide for access to the HealthQuest Appeals Committee for employees whose employers are not required under legislation to use HealthQuest.

After the meeting, Unions NSW prepared a track changes version of the redraft document and emailed it to Premier's Department as a confidential draft with a note requesting an extension of time to allow for further submissions. No doubt because of the short notice, other affected unions (eg Police, HSU) were not represented at the meeting. Premier's Department has been pressing for a speedy response to the redrafted guidelines; however Unions NSW intends asking for the guidelines to be delayed until after the State election.

GREAT decision

At the same time as unions were considering the redraft of the Fitness to Continue guidelines, a GREAT decision (PSD/287/06) was published allowing an appeal by a DOCS employee against her medical retirement.

GREAT determined that the HealthQuest process was so flawed that the Director General should not have medically retired the employee. GREAT recommended that the employee should be referred for further assessment by HealthQuest and that the decision to retire the employee should be reconsidered having regard to all relevant evidence including the opinions of her treating doctors and any redeployment options available.

Mr Hannan has read the decision and noted that the employee did not lodge an appeal with the HealthQuest Appeals Committee before appealing to GREAT. He said the HAC has upheld several appeals from public servants for precisely the same reason, i.e. that the recommendation to medically retire was not the result of a medical examination by HealthQuest, but an examination of medical reports about the person. In a couple of cases when the people were re-examined by HealthQuest, or an independent Doctor, they were found to be fit to continue.

Contact Details
Rosslyn Small
Ph: 02 9220 0911