ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – initial matter related to an application under the Dispute Resolution Procedure of the TNT-TWU Fair Work Agreement 2014-2017 – at first instance the Commission found that respondent was fit to perform the inherent requirements of the role of a Bulk Driver with the appellant – found respondent should be returned to his role immediately with appropriate ‘work hardening’ as recommended by Dr Cunneen, Occupational Physician – appellant applied for permission to appeal – decision stayed pending the outcome of the appeal – grounds for appeal included that the Commission: incorrectly applied the relevant principles in determining the inherent requirements of the role of Bulk Driver with TNT; misunderstood and, in a number of instances, did not consider the evidence about the role of Bulk Driver in the context of TNT’s operations; and erred in assessing Dr Cunneen’s evidence – decision of Full Bench minority – the heart of the appeal was whether the Commission correctly applied and construed the relevant principles in assessing whether the respondent was fit to perform the inherent requirements of the role of Bulk Driver – permission to appeal should be granted in this matter – Full Bench minority of the view that the appeal raised important questions concerning the application and construction of the relevant principles in assessing whether the respondent was fit to perform the inherent requirements of the role of Bulk Driver with the appellant – decision under appeal is of a discretionary nature – House v The King considered – in assessing the inherent requirements of the role as a Bulk Driver, the Commission accepted that reasonable accommodations, by way of lifting aids, must be considered – having regard to Boag, Full Bench minority satisfied that the Commission considered modified duties in concluding what formed part of the inherent requirements of the role of a Bulk Driver – Commission found that the lifting aids were inclusive of the substantive role of a Bulk Driver, despite there being no certainty that such would be available at a customer’s site – held the Commission’s assessment of the inherent requirements of a Bulk Driver was always inclusive of whether reasonable accommodations were to be provided to the respondent – such a consideration may be relevant if an employee is redeployed to undertake alternative duties, however, it is not the starting point in determining the inherent requirements of a particular role, in doing so, the Commission fell into error – Full Bench minority also held the medical evidence of Dr Cunneen referenced and relied upon by the Commission did not establish that respondent was able to lift at least 25kg – the medical evidence of Dr Cunneen stipulated that if the appellant were to lift more than 20kg unaided, this would pose significant risks of further work-related aggravations to his pre-existing lumbar spondylosis – as such, the Commission erred in reaching this conclusion which formed part of the basis upon which she found that the respondent could perform the inherent requirements of a Bulk Driver with the appellant – satisfied there was an appealable error in the House v The King sense – Full Bench minority satisfied that the appeal must be upheld – decision of Full Bench majority – not in dispute that respondent had a back injury in 2005 – respondent said it was a prolapsed disc – he had surgery in 2006 and was certified fit to return to work in 2006 – respondent gave evidence that he had no further issues with his back injury – he suffered a further but unrelated back injury in 2010 and that injury was resolved – respondent had suffered an injury to his knee in 2014 and had been stood down from work – he was advised in 2014 that he would not be able to return to work until he provided a medical clearance that he could fulfil the complete duties of his role – he had a total knee replacement in April 2015 and sought to return to work in September 2015 having obtained a medical clearance – the appellant advised the respondent at this time that they required a further assessment to ensure he could return to his normal role – he was required to undertake a functional assessment and a fitness for duties assessment – as a result of those assessments the appellant concluded that it had reasonable concerns about the respondent’s ability to safely carry out the inherent requirements of his role – in March 2016 the TWU notified a dispute to the Commission – dispute resulted in the decision at first instance – Commission will grant permission to appeal only if it is in the public interest to do so – decision under appeal is of a discretionary nature and such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly – in considering the inherent requirements of the position, the Commission considered extensive documentation from the appellant, and the submissions of both the appellant and the respondent – Full Bench majority held the Commission properly concluded that the correct approach to determining inherent requirements was to ‘objectively determine what the inherent requirements of a position are on a consideration of the evidence which includes the terms on which a person is employed, the job that they undertake as well as relevant surrounding circumstances’ [Christie] – consider the Commission did give proper and due consideration to the relevant surrounding circumstances – do not discern any error in the approach of the Commission to the determination of the inherent requirements of the position – the Commission properly identified the relevant law and considered the submissions and evidence before her in accordance with it – satisfied that the Commission’s conclusion about the inherent requirements of the position was reasonably open to her on the evidence and there was no appealable error in her approach – appellant submitted that in rejecting some of Dr Cunneen’s evidence the Commission ignored or did not appear to properly consider a number of important facts – Full Bench majority not able to identify any error in the Commission’s assessment of the medical evidence – given the findings about the inherent requirements of the position the evidence was not inconsistent with the Commission’s conclusion that Mr Martin could in fact perform the inherent requirements of the position – Full Bench majority satisfied that the factual findings made by the Commission were available to her on the evidence before her – not satisfied that the matter raises issues of importance and general application – further not satisfied that the decision was attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave was refused – permission to appeal refused – appeal dismissed – stay order issued in this matter set aside. Appeal by TNT Australia P/L t/a TNT against decision of Spencer C of 20 January 2017 [[2017] FWC 440] Re: Martin
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