When Anna Kelsey-Sugg first wrote for RTWMatters about union accusations, aired on the ABC’s 7:30 Report in 2009, of inappropriate injury management at Australia Post, she made this observation: “You get the union you deserve.”

In fact, unions have been approaching Labor politicians with concerns about Australia Post’s treatment of injured and ill workers since at least 2000, when the topic was first raised in the Senate by then-opposition Senator Stephen Conroy. In 2009, Labor Senators aligned with Family First’s Stephen Fielding to launch an Inquiry into the matter.

(RTWMatters has published several articles about the Senate Inquiry—you can recap here and here. The Inquiry’s terms of reference are online here.)

Union accusations about what was going wrong at Australia Post were a mixed bag. There were allegations that an LTIFR-focused bonus program for supervisors (LTIFR = Lost Time Injury Frequency Rate, for those who don’t speak industry jargon) meant that ill and injured workers were pressured to return to work too quickly. There was a sense that the commercial arrangements between Australia Post and InjuryNET, a practitioner network organisation contracted to treat and assess ill and injured workers, also conspired to pressure workers back to work. And there were concerns about how Australia Post’s use of Facility Nominated Doctors (FNDs), sourced through InjuryNET, impacted on health, work and workers’ compensation outcomes.   

Many of the submissions made to the Inquiry were from individual workers, outlining their negative experiences within Australia Post’s injury management program. These submissions gave credence to union complaints.

Yet Australia Post was adamant that its policies were best practice. Comcare had investigated these policies and endorsed them. And several experts in the field of Return to Work gave in-principle support for the Australia Post / InjuryNET approach. So what was going on? A union beat-up, an employer cover-up, or something less “good guy / bad guy”; something more ambiguous?

The first thing to note about the Senate report, finally released at the end of June 2010 after three delays, is that the commercial relationship between Australia Post and InjuryNET was found to be above board. For a fixed fee of $1.5 million over three years, Australia Post contracts InjuryNET to ‘examine and treat Australia Post employees’, and this fee is not linked to LTIFRs.

Similarly, although a proportion of the bonus available to Australia Post managers was tied to LTIFRs, the maximum yearly amount attainable for reducing LTIFRs was less than $400. Nevertheless, throughout the course of the Inquiry Australia Post agreed to do away with LTIFRs as a key performance indicator for managers, although the measure will be retained at the corporate level.

The Senate Inquiry was also convinced by expert testimony (including from RTWMatters’ Dr Mary Wyatt) to the effect that:

•  It is not inherently negative for employers to be concerned about reducing the cost of injury management;
•  The vast majority of Australian doctors are unlikely to be bullied or influenced into providing a medical opinion that does not reflect what they consider to be in the patient’s best medical interests; and
•  The principle reason why FNDs routinely advise the early return to work of injured workers is because of medical evidence which indicates that this provides numerous benefits to injured patients—and not because they want to assist the ‘management and organisational imperatives of Australia Post as the unions contend’.

Having dismissed these aspects of the union allegations, the Inquiry focused on three features of Australia Post’s injury management program which were considered to be problematic:

1. Confusion over when Australia Post employees may, and when they must, attend a facility nominated doctor (FND);
2. Issues relating to the appropriate and legal use of FNDs’ assessments of ill and injured workers, especially around instances when medical information attained within Australia Post’s Early Intervention Program was used to accept or reject workers’ compensation claims; and
3. Allegations that Australia Post employees are routinely being returned to work too early or on inappropriate duties.

Confusion over when Australia Post employees may, and when they must, attend a facility nominated doctor (FND)

Each year, there are approximately 4200 visits to FNDs by Australia Post workers. Ill and injured workers have the right to see a doctor of their own choosing. However, a common story amongst past and present Australia Post employees who made submissions to the Senate Inquiry “was that they had been verbally threatened with disciplinary action by their manager if they refused to attend an FND immediately upon being injured.”

There are two situations in which Australia Post may legally direct employees to attend an FND, instead of or in addition to their chosen practitioner:

1. To assess an injured or ill employee’s capacity to undertake a rehabilitation program—this happens approximately 5-10 times per year; and
2. To assess fitness for duty—such assessments account for almost 10% of FND visits annually.

Although on paper these may seem like appropriate exceptions to the rule of worker nominated treatment, in practice the Inquiry found that  “if employees choose not to visit an FND, or not to participate in the EIP (early intervention program), then Australia Post will...require them to do so. Furthermore, Australia Post’s own internal guidelines on the use of the Determination also indicate that it is their policy to require injured workers to take part in the ‘voluntary EIP’”.

The Inquiry concluded that a  lack of clarity “amongst both employees and managers as to their rights and obligations” has led to “the unintended misuse of injury management processes” and to “unnecessary tension and resentment between employees and managers”.

And this tension and resentment has been heightened because of a substantial disagreement between unions and Australia Post on this point, which is ‘impacting adversely on employees and reducing the effectiveness of Australia Post’s injury management program’.

Issues related to the appropriate and legal use of facility nominated doctors’ assessments

Ostensibly, the fitness for duty assessments mentioned above are part of Australia Post’s early intervention program, which is aimed at promoting rehabilitation and a safe, durable and speedy return to work for ill and injured workers.

However, Australia Post also uses the medical assessments undertaken as part of the early intervention program as evidence in workers’ compensation claims. According to Senate Inquiry, while this does not breach Comcare policy, it has caused employees to be sceptical of the objectives of the early intervention program.

The Inquiry also observed that Australia Post managers “routinely” attend medical assessments with ill or injured workers and that, while in some instances this may demonstrate support for the worker, it is largely inappropriate for managers to actually sit in on medical appointments.

Allegations that Australia Post employees are routinely being returned to work too early or on inappropriate duties.

In Senate Estimates 2006, it was revealed that 95% of injured workers who attend a family doctor are found unfit for work, whereas only six percent of injured workers who visit an Australia Post FND are deemed to be unfit for work.

Moreover, Australia Post workers who made submissions to the Inquiry told of being asked to come into work, sign in, have a cup of tea and then go home, or to remain at work watching television.

As noted above, the Inquiry was convinced by expert evidence about the rehabilitation value of an early return to work. However, it also accepted that:

• LTIFRs are not the best measure of the success of an injury management program, although they may play some role as a measure of safety; and
• In order for an injured employee to recover properly, they must feel supported and valued in the work environment. Employees need to be consulted on, and agree to, the work they are required to perform on their return to work, and that work must respect the limits of their capacity and be ‘compatible with their chosen work environment and skill level.

The report concluded that Australia Post’s use of FND assessments does not breach Comcare policy. However, Australia Post could do more to ensure that employees and managers understand what FND information is used for, and to make sure that its policies are consistent with best practice.

In summary...

The Inquiry concluded that “the key problem with Australia Post’s treatment of injured and ill workers” is not “the program itself, but its communications with employees and with unions about the program; the links between EIP [early intervention program] medical assessments and the workers’ compensation scheme; and the lack of involvement and input that employees have in developing their own return to work program.”

The Inquiry also identified:

• Insufficient employee buy-in;
• Lack of clear agreement between Australia Post, supervisors, workers and unions regarding the rights and obligations of each party under the program; and
• An “extremely disappointing” lack of communication and empathy between the parties involved.

What now?

The Inquiry made four recommendations:

1. Noting the in-principle agreement reached for the use of Facility Nominated Doctors, the committee recommends that Australia Post and the unions representing its employees continue to work in good faith to develop the details of the new policy within the context of the new enterprise agreement. The committee urges both parties to ensure that once a lawful and fair agreement has been reached, both sides work to ensure that employees and managers are well-informed of their rights and obligations with respect to injury management processes.
2. The committee recommends in the strongest terms that Australia Post consider ceasing the practice of using medical assessments obtained under the Injury Management (Early Intervention) Policy for workers' compensation purposes. The committee further recommends that Australia Post ensure that every time an employee attends a Facility Nominated Doctor (FND), whether voluntarily or compulsorily, the employee is advised of the uses to which the FND's medical assessment may be put. The committee urges Australia Post to consult with the unions representing Australia Post employees to develop appropriate material to inform employees of the implications of FND visits. 
3. The committee recommends that Australia Post develop processes through which injured workers have buy-in to their return to work program, and which ensure that all injured workers are given appropriate work to undertake on their return. Specifically, the committee advises that in each instance, a manager should discuss with an injured employee what duties they are physically capable of, would find satisfying, and would be happy to perform.
4. The committee recommends in the strongest terms that Australia Post consider directing managers that they are not to be present in employee medical consultations unless their presence is specifically requested by the employee. The Injury Management (Early Intervention) Policy ought to be revised accordingly.

Since March, Australia Post and the CEPU have been collaborating on a proposed new model for the use of FNDs. This includes the development of a “WorkReady” pack for employees to take to the treating practitioner of their choice, and curtails the situations in which an FND visit may be required. (For example, if an employees’ chosen practitioner does not complete the “WorkReady” pack, then the employee may be directed to attend an FND.)

This collaboration is an encouraging sign that the lack of empathy and communication identified by the Inquiry is changing. Australia Post, over the next few years, will in all likelihood continue to have the union it deserves. Perhaps now that won’t be such a bad thing