In Australian and International Pilots Association v Qantas Airways Limited  FCA 32, the Federal Court has held that in the absence of an express contractual or industrial instrument provision to the contrary, Australian employers may insist that employees attend an independent medical assessment to test the employees’ fitness for their work. Justice Rares adopted an aggressive view stance on the employer’s right to seek medical information from an employee absent from work on sick leave.
The case arose from a clause in an enterprise agreement which provided:
“if a flight crew member reports sick on the same day that he or she is contacted for duty or on the following day, the Company may require the flight crew member to produce a medical certificate or other evidence of unfitness for duty.”
The judge took the view that the provisions of the Fair Work Act and the enterprise agreement were not the only source of an employer’s right to require an employee to provide medical evidence, ruling that an employer has a right, in addition to those of the Act or applicable industrial instrument, to require an employee to provide sufficient medical information, and if necessary, require the employee to attend a medical examination to procure that information. According to Justice Rares the right to this information is implied by law into the employment contract because it is necessary, at least in the case of Qantas, to facilitate Qantas complying with its statutory work health & safety obligations, in this case ”To ascertain whether the employee’s injury or illness flows from some failure of the employer’s duty to provide a healthy and safe workplace.”