May 26, 2021

ATHENA CAINS Welcome back to the SRC Report. I am Athena Cains, Principal at McInnes Wilson, and today I am joined by Sama Khan, an Associate in our team. Welcome to your first SRC Report Sama

SAMA KHAN Thanks, Athena. It's a pleasure to be here.

ATHENA CAINS This is the first in a two-part Rehabilitation Series on decisions made under s 36 and 37 of the SRC Act – the rehabilitation provisions. In this first part, Sama and I will talk about decision making under ss 36 and 37. In Part 2, we will review cases that deal with the rehabilitation provisions in order to assist delegates to avoid making unlawful decisions. This is because unenforceable decisions do not assist anyone in returning to work and have meaningful employment, which, after all, is the ultimate goal of rehabilitation.

So first, let's address the purpose of rehabilitation. The purpose of the rehabilitation provisions is to assist the employer to get the employee back to suitable employment as quickly as is safely possible. The advantage of this is that the employee is meaningfully engaged and, as we all know – good work is good for you- and the employer has their employee back at work, which is fantastic for ASL caps.

There are two rehabilitation provisions in the SRC Act, section 36, which is basically your fitness for duty provision and s 37, which is the rehabilitation program provision. Both provisions are the only provisions in the SRC Act that give the employer some control over the rehabilitation of their employee under the SRC Act. The employer obviously retains all of their rights and responsibilities as an employer under their EA, PS Act and the Fair Work Act etc.

SAMA KHAN And I think that is a really important point, Athena – the SRC Act is not the only source of authority that an employer has over their employees. It is really important to remember that injured employees are first and foremost employees, and employers do have duties in relation to them, but also employees have duties owed back to their employer. That is a great topic for another day.

ATHENA CAINS Yes, Sama, we will definitely circle back there on another occasion! So, let's get into what s36 and s 37 allow for.

Section 36 is your basic fitness for duty provision and allows for the employer to arrange an assessment with a suitably qualified person addressing the employee's capability to undertake a rehabilitation program. A suitably qualified person is usually a workplace rehabilitation provider or an Independent Medical Expert.

Section 37 is the rehabilitation program provision. It gives employers the power to make rehabilitation programs for employees. A rehabilitation program is a program is designed to help employees recover and return to health and work following a work-related injury or illness. 

Sama and I get told a lot about what Rehabilitation Programs MUST include. And I guess today before we go into the technicalities of making a decision, we wanted to bust a few myths. Whilst there may be Handbooks around what best practice rehabilitation is and what a program should include –it is only in the SRC Act itself and the SRC Act (Guidelines for Rehabilitation Authorities)

Instrument 2019 (made under s 41) mandate what MUST be in them. 

The first myth I want to bust here is the return to work hierarchy. The return to work hierarchy no longer exists in law and, in my view, has no place in a rehabilitation program. Agencies did use to have to follow the hierarchy under the 2012 Guidelines for Rehabilitation Authorities, but these guidelines were repealed on 15 August 2019. Now all that is required is that the Agency takes reasonable steps to obtain or assist the employee in obtaining suitable employment. Suitable employment, for a Cth employee, is simply put employment in the Commonwealth for which the employee is suited. 

SAMA KHAN You say "all that is required" and "simply" like it is not a tricky thing for employers or employees looking to return to work. And what is suitable employment anyway!

ATHENA CAINS We will have to leave suitable employment and address it another day as it is a full podcast or two in its own right. As to the simplicity of suitable employment – well, you are spot on, Sama – I know it is not easy, but I think it is far easier than trying to squish an employee into the RTW hierarchy, which is too rigid to be of assistance to Agencies in complex matters. 

For now, it is enough to know that the obligation on employers is contained in s 40 of the SRC Act and is limited to taking all reasonable steps to provide the employee with suitable employment or to assist the employee in finding such employment and not the return to work hierarchy. It is the s 40 obligation (and the corresponding duties in the Guidelines) that will be considered in determining whether a rehab program is reasonable or not. I would go so far as to say a rehab program, with the RTW hierarchy as the goal, where there is evidence that this goal is preventing compliance with the Rehab program (for example, where an employee has suffered PTSD and simply cannot, and has medical evidence to support that, return to the original place of work), would likely not be found to be reasonable. 

Another thing I sometimes get told is that the overarching rehabilitation goal cannot change and must always be the return to suitable employment (although I note here it is usually described as the RTW hierarchy – but I have busted that myth, so we will stick to SE). This is not true. There is no requirement in the legislation or the Guidelines that the decision must state a GOAL, and this GOAL is always the return to SE. There is, of course, a requirement for the Agency to monitor the RP, and that includes the availability of suitable employment. However, this monitoring does not have to be included in the RP, and where an RP's focus on SE is causing harm to the employee, it could be found to be unreasonable in the circumstances. Remember – the RP can change and should change as an employee's capability changes. Flexibility may be required in order to assist the employee in achieving the best outcome for them.

So now we have busted some myths - Sama, why don't you take us through the key elements of making defensible decisions under s 37.

SAMA KHAN Well, as you have outlined, Athena, correct decision making is critical to a defensible rehabilitation program. This is important because the decision ultimately impacts upon employee's health and wellbeing, but also because making invalid decisions can have consequences in the AAT for the employer. The reason for this is that decisions that are made under s 36 and s 37 of the SRC Act are 'reviewable decisions' under s 60 of the SRC Act, meaning they are decisions that can be brought before the AAT for review after they have been reviewed by Comcare. So it's very important that the decisions made under these sections are made in accordance with the legislation, the Guidelines, and, of course, the general principles of administrative decision making such as procedural fairness. 

When the employer (or rehab authority) is making a determination under s 37, the formal requirements it needs to have done to ensure that the decision is valid and that the provision of the program is defensible are:

  1. That the person making the determination has the delegation to do so and this delegate has the appropriate skills and capabilities to exercise the function;
  2. Regard is had to the factors in s 37(3) commonly referred to as (the (a) to (h) requirements) when determining whether a program should be implemented;
  3. The employee must be consulted (but their consent or 'sign off' is not required);
  4. That the determination is in writing, includes the reasons for the decision as well as include details of the review mechanisms available to the employee; 
  5. The decision must include:
    1. details of the RCM, and supervisor and WRP (if applicable) 
    2. Review dates
    3. (If relevant) Reasonable steps being undertaken to obtain or assist the employee in obtaining suitable duties under s 40 (a topic for another day)

Delegation 

SAMA KHAN So the first key issue that a rehab authority must consider under these sections is to identify who the appropriate person to make the decisions are. That is the person with delegation. If the decisions are made by someone without a delegation to do so, generally speaking, the decisions will be invalid and unenforceable. 

The appropriate delegation can be obtained under s 41A of the SRC Act. This section broadly provides that a principal officer of an entity, the commonwealth authority (where a license is not in force) or a licensee may request in writing, delegate to an employee all or any of the powers and functions of the rehabilitation authority under Part III (being the Rehabilitation part) of the SRC Act. 

The 2019 Guidelines also provide that the delegate must have the appropriate skills and capabilities to make the decision and is provided appropriate resources and training for the exercise or performance of those powers.

As a general rule – ss 36 and 37 delegations should sit at the RCM level and above in the WHS team. It would be questionable if, for instance, these powers were delegated broadly outside of the WHS areas, and the delegation was exercised by delegates without WHS training and expertise. If you have any doubt that you have the appropriate delegation, check your HR delegations. 

ATHENA CAINS If you can't find them, you have my permission to panic. Get straight onto this so that you ensure your HR delegations exist, are accessible and are up to date!

The (a) to (h) requirements

SAMA KHAN So you know you are the delegate, and you are ready to make your decision on the rehabilitation program. What do you do next? S 37(3) specifically outlines the matters that the delegate needs to consider when making a determination that an employee should undertake a rehab program. These considerations are:

  1. Any written assessment made under s 36 of the SRC Act; 
  2. Any reduction in the future liability to pay compensation if the program is undertaken
  3. The cost of the program
  4. Any improvement in the employee's opportunity to be employed after completing the program
  5. The likely psychological effect on the employee of providing the program
  6. The employee's attitude to the program
  7. The relative merits of any alternative and appropriate rehab program; and 
  8. Any other relevant matter. 

I think it is worth at this time addressing as 36 assessment briefly and what is actually required in relation to one.

Firstly, you don't have to do a 36 assessment. Part of the decision making under s 36 is actually deciding – do I need one or not to determine an employee's capability to undertake an RP. You don't need to have done one for 37 RP; the Guidelines specifically state that one is not always necessary in order to make a rehabilitation program under s 37.

Tracking through the legislation at s 36(1), we can see that a rehabilitation authority may at any time arrange for an assessment of an employee's capability of undertaking a rehabilitation program. In making this decision, judgement is clearly required as well as an assessment of risk-taking into account the Agency's ultimate responsibilities around suitable employment. The Guidelines allow for as 36 assessment not to be undertaken as a precursor to as 37 where there is sufficient advice available from the employee's treaters, or the WRP, the RCM or supervisor or indeed just the employee. A word of warning, though, it would be prudent to obtain the collaboration of a few of these individuals if you intend to make a rehabilitation program without a 36 assessment. I am not so sure that one resting solely on the opinion of a supervisor in the absence of any other support would be upheld.

ATHENA CAINS The dangers of the recovered expert! I have actually had a decision-maker say to me that an employee did not have an ongoing entitlement to compensation because the decision-maker had recovered from a similar injury within three months, so the employee should have recovered in 3 months as well. This is one of the most difficult arguments to counter. I know I will be preaching to the converted, but decisions under ss 36 and 37 cannot be made in the absence of actual medical evidence. Decisions ought not to be made on the basis of anecdotes or statistics. 

SAMA KHAN Indeed! So what are clear examples of when a rehab assessment would not be required as a precursor to a 37 program?

Often, a referral for a rehab assessment may not be necessary if:

  • the treating doctor supports an early and safe return to work and provides clear medical guidance,
  • the employee clearly doesn't have an incapacity for work or only has minor restrictions, 
  • the RCM has the appropriate experience skills and capacity to manage a return to work, 
  • where there is good communication between all of the stakeholders, and 
  • you have support from the employee, treating medical practitioner, or other treatment providers that an assessment is not required. 

Of course, whether or not you obtain making any assessment under s 36 will turn on the specific facts of the particular employee. 

So s 36 (or lack thereof) is the (a) of an (a) to (h). (b)-(g) are pretty straightforward, although Athena – it might be an idea to do a separate session on those specific provisions as we do not have time today.

ATHENA CAINS Yes, Sama – I think that is a great idea, and we will cover it in Part 2 of our Rehabilitation Series. 

SAMA KHAN But before we wrap up (a) – (h) considerations today, I think it is worth covering off on how much 'regard' should be had to each of the(a) to (h) 's? Justice O'Loughlin, in the case of Department of Defence v Fox which was a 1997 case of the Federal Court, provided that a rehab authority would not comply with its statutory obligation if it merely had token regard or nominal regard to the (a) to (h) 's. So you need to make sure that their consideration of each factor is more than just a token thought. Our suggestion would be that when writing out the reasons for your decision, a rehab authority addresses each consideration and ensures that it has fully thought through each of them and addressed them separately in its decision. It is also incredibly important that it is the delegate who addresses these issues and is seen to address them in the decision. If it is unclear who wrote the (a)-(h) consideration – this might undermine the validity of the decision.

Another interesting case where the AAT had to weigh up the (a)-(h) 's is in the 2017 matter of Re Huber and Comcare, in which the Applicant was a qualified patent attorney with IP Australia. A return to work plan was unsuccessful for a few reasons, partly to do with difficulties around her computer, and Comcare suggested readiness training to skill her for different forms of work with another employer. The Applicant wanted her rehab program to be a post-graduate law degree, totalling three years. The AAT refused support for the course, having regard to the fact that it was very expensive and would mean a delay of up to 4 years before she would be ready to take up suitable employment. The AAT preferred a program focused on getting the Applicant job-ready through occupational therapy and work trials, in addition to job-seeking activities. 

Consultation

SAMA KHAN Getting back to the requirements of as 37 decision, the Guidelines require that a rehabilitation authority consults with an employee in relation to a proposed rehabilitation plan. The Guidelines also provide that in undertaking this consultation employer must consider: (a) the employee's injury and circumstances; and (b) the employee's communication needs. What this basically means, in my view, is that an employer needs to consider how to best consult with an employee. A one size fits all approach (such as emailing the draft to an employee and asking for feedback) might work a lot of the time, but not every time. An employer needs to consider how best to consult meaningfully with an employee.

I want to reiterate, however, that consultation is not consent. They are not the same thing. The employee's consent, whilst desirable, is actually not required for a valid decision to be made under ss 36 and 37. 

Decision in writing

SAMA KHAN Decisions under s 37 (and s 36) must be in writing and contain reasons. The reasons must refer to the matters the delegate had regard to in making the decision. Written reasons need to address the issue to be determined, the factors taken into account and then provide a clear decision. We would recommend that there be a template decision developed to ensure a decision-maker addresses all the relevant factors that are required under the provisions. This would also ensure that key things, such as the date of review, details of the RCM, review rights etc., are not forgotten in the 'heat of the decision'. 

ATHENA CAINS I think that is a really important point, Sama – administrative decision making is methodical, so a template can be a really valuable tool for a decision-maker as long as the template is used wisely and not slavishly followed as there will always be one case that requires a unique approach in order to be defensible.

Thank you so much today, Sama

SAMA KHAN You are welcome, Athena.

ATHENA CAINS Before we sign off today, please take a moment to check your delegations instrument and ensure that your rehabilitation policies and templates are up to date with the SRC Act and the 2019 Guide. 

In the next SRC Report, we will provide a case review of interesting and relevant rehabilitation cases in Part 2 of our rehabilitation series. 

Don't forget to check out our other SRC Report podcasts and if you have any burning questions - please email me, Athena Cains, and we will answer them at the start of our next episode.