The Australian Workers' Union v Alcoa World Alumina Australia Limited
[2013] FWC 674
•12 FEBRUARY 2013
[2013] FWC 674 |
FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.739—Dispute resolution
The Australian Workers’ Union
v
Alcoa World Alumina Australia Limited
(C2012/2530)
Aluminium industry | |
COMMISSIONER WILLIAMS | PERTH, 12 FEBRUARY 2013 |
The Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2011.
[1] This matter involves a dispute brought through clause 19−Dispute Settlement Procedure of the Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2011 [AE883477] (the Agreement) by The Australian Workers’ Union (the applicant or the AWU). The respondent is Alcoa World Alumina Australia Limited (the respondent or Alcoa).
[2] An interim decision was issued on 14 December 2012 [[2012] FWA 10546]. These are the reasons for that decision.
The dispute
[3] The dispute relates to the information which is to be provided to the respondent pursuant to Clause 22(c) of the Agreement in circumstances where an employee who is required to provide evidence of their fitness to operate mobile equipment elects to undertake a medical assessment conducted by a registered medical practitioner of their choosing instead of undertaking the medical assessment at the Alcoa Medical Centre. The employees involved are working at Alcoa’s mine sites Huntley and Willowdale.
[4] Relevantly, Clause 22(c) provides that:
- Undertake the medical assessment at the Alcoa Medical Centre(s) during rostered work time, without loss of pay; or
- To attend a registered medical practitioner of their choosing outside of working hours (and in this case shall be reimbursed for the cost of such medical on the supply of a receipt for the medical assessment in the event that the medical practitioner’s account has not been invoiced to and paid by Alcoa).
“Mobile Equipment Medicals
Employees required to have a Mobile Equipment Medical to operate mobile equipment’ may elect to;
If the medical is not performed by the Alcoa Medical Centre, then the employee will be required to obtain Alcoa’s pro-forma medical examination form and ensure that acceptable medical form completed by the abovementioned medical practitioner and then returned to the Alcoa Medical Centre.”
[5] The dispute was characterised by the applicant in the form of three questions to be determined:
1. Under Clause 22(c) of the Agreement, are employees who elect to attend a medical practitioner of their choosing required to return:
a. pro-forma medical examination form? or
b. acceptable medical form completed by their practitioner?
2. Can the employer alter the pro-forma medical examination form referred to in Clause 22(c) during the term of the Agreement?
3. Does the Agreement make provision for the employer to require employees to sign medical consent forms for the purpose of Mobile Equipment Medicals under Clause 22(c)?
[6] In the decision issued on 14 December 2012 I determined that the answers to these questions were:
1. Under Clause 22(c) of The Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2011 (the Agreement) employees who elect to attend a registered medical practitioner of their choosing are required to return the pro-forma medical examination form they obtained from the employer, which has been completed by their medical practitioner, to the Alcoa Medical Centre.
2. The employer can alter the pro-forma medical examination form.
3. The Agreement does not make provision for the employer to require employees to sign medical consent forms for the purpose of Mobile Equipment Medicals under Clause 22(c).
Submissions
The AWU’s submissions
The first question to be determined
[7] The first issue in dispute concerns the particular document to be returned to Alcoa by an employee, after an employee elects to attend a medical practitioner of their choosing, and after that practitioner of their choosing conducts the mobile medical.
[8] The applicant’s position is that the last paragraph of Clause 22(c) of the Agreement requires an employee to return an “acceptable medical form” completed by the medical practitioner of their choosing, being a form certifying they are fit to operate mobile equipment.
[9] The respondent’s position, as the applicant understands it, is that the last paragraph of
Clause 22(c) requires an employee to return a “pro-forma medical examination form”, or some document commonly titled “physical examination form” that the respondent uses in different manners and varies from time to time.
The second question to be determined
[10] The second issue in dispute concerns the respondent’s alteration, from time to time, to the pro-forma medical examination form referred to in Clause 22(c) during the term of the Agreement.
[11] The applicant submits that the pro-forma medical examination form referred to in Clause 22(c) cannot be altered from time to time. The document as referred to in Clause 22(c) was fixed at the time of the Agreement.
The third question to be determined
[12] The third issue in dispute is whether the Agreement provides for the respondent to require employees to sign medical consent forms for the purpose of Mobile Equipment Medicals under Clause 22(c).
[13] The applicant submits that the direction to require an employee to sign a medical consent form for the provision of medical information from the medical practitioner to the respondent is not provided for in the Agreement and is an unreasonable requirement beyond and in conflict with the express terms of the Agreement.
Proper Construction and the Intention of the Parties
[14] The last paragraph in Clause 22(c) contains an ambiguity. Alternatively, the applicant submits that an ambiguity can be raised in extrinsic evidence.
[15] The Agreement provides:
“If the medical is not performed by the Alcoa Medical Centre, then the employee will be required to obtain Alcoa’s pro-forma medical examination form and ensure that acceptable medical form completed by the above mentioned medical practitioner and then returned to the Alcoa Medical Centre.”
[16] The terms used in the paragraph are “medical examination form” and “acceptable medical form”.
[17] The subject of the dispute is the intended use of a document that the respondent is requesting that employees return populated from their doctor or consent to their doctor returning. The form is commonly titled “physical examination form”, but various manifestations of this form currently exist and have existed from time to time.
[18] Evidence of prior negotiations may establish objective background facts known to both parties and the subject matter of the agreement being negotiated. Evidence of statements and actions in those negotiations are relevant, provided they reflect mutual actual intentions.
[19] The jointly agreed Final Terms of Settlement, which is Attachment SP17 to the statement of Simon Price (the Final Terms of Settlement) provided:
“If the medical is not performed by the Alcoa Medical Centre, then the employee will be required to obtain Alcoa’s pro-forma medical examination form and ensure that an acceptable medical form is completed by the above mentioned medical practitioner and then returned to the Alcoa Medical Centre”
[20] The last paragraph of Clause 22(c) in the Agreement is virtually identical to the clause in the Final Terms of Settlement, with minor typographical errors, which are explained in the statement of Simon Price.
[21] The removal of the words, which are emphasised and highlighted in brackets in the following paragraph, occurred through typographical error in drafting, and these errors are clearly indicated by grammatical faults in the paragraph:
“If the medical is not performed by the Alcoa Medical Centre, then the employee will be required to obtain Alcoa’s pro-forma medical examination form and ensure that [an] acceptable medical form [is] completed by the above mentioned medical practitioner and then returned to the Alcoa Medical Centre.”
[22] The choice of words included in the last paragraph of Clause 22(c) in the Agreement, in light of the terms in the Final Terms of Settlement, clearly establishes that the wording was abstracted from the words agreed in the Final Terms of Settlement. The wording of the Final Terms of Settlement reflects the mutual actual intentions.
[23] The choice of the words in the last paragraph of Clause 22(c) in the Agreement in no way resembles the earlier proposal of the employer in negotiations.
[24] If it were intended that the “medical examination form” was to be the “acceptable medical form”, any draftsman could have made that clear. If there was such an intention the clause could have been drafted in the following manner (without limitation to alternative manners of drafting):
“If the medical is not performed by the Alcoa Medical Centre, then the employee will be required to obtain Alcoa’s pro-forma medical examination form and ensure that acceptable medical form [is] completed by the above mentioned medical practitioner and [is] then returned to the Alcoa Medical Centre.”
[25] It is submitted the construction advanced by the applicant is also consistent with a reading of the last paragraph of Clause 22(c) in the immediate context of Clause 22 and within in the context of the Agreement.
[26] In the context of the entire text of Clause 22, the purpose of Clause 22(c) is to ensure assessment of the fitness to operate mobile equipment by a registered medical practitioner. A certificate from a doctor stating that an employee is fit to operate mobile equipment was mutually understood to be the acceptable medical form.
[27] The clear purpose of Clause 22(c) is to enable the assessment of fitness to perform particular duties by either the Alcoa Medical Centre or a registered medical practitioner of the employees choosing. There was no intention to have the Alcoa Medical Centre conduct a further assessment of fitness to operate mobile equipment once an employee had elected to attend a registered medical practitioner, attended a registered medical practitioner and had a Mobile Equipment Medical assessment. That there was no such intention is clear in the first three paragraphs of Clause 22(c).
[28] The applicant submits the Commission should avoid a construction of the Agreement that introduces additional burdens that have not been expressly agreed to by the employees, including the provision of test results and personal medical information to the respondent.
[29] The construction advanced by the applicant is also consistent with a reading of the Agreement in the context of the relevant legislative scheme.
An unreasonable construction and an unreasonable request
[30] The applicant submits that the respondent is utilising the ambiguity in the last paragraph of Clause 22(c), which is affected by typographical error(s), for alternative purposes that may include the following purposes (without limitation):
a. to deter employees visiting their own practitioner for the assessment of their fitness to perform particular duties;
b. to collect and/or store employees’ detailed medical information for purposes beyond the purposes of the mobile medical; and
c. to conduct a re-assessment of the fitness to operate mobile equipment, after an employee has attended their elected registered medical practitioner and had a Mobile Equipment Medical deeming them fit by that registered medical practitioner.
[31] The Agreement only refers to return of one form to Alcoa by an employee. The applicant submits that the clear mutual intention at the time of making the Agreement was that the “acceptable medical form” was a certificate from a doctor verifying that an employee is fit.
[32] The inherent inconsistency in the respondent’s position is evident in Alcoa’s use and alteration of various mobile medical packs, including in the following ways (without limitation):
a. In three letters to the off-site doctor the respondent requests the doctor provides a “certificate to say he [the Employee] is fit”.
b. In one of the letters to the off-site doctors contained in the various medical packs the respondent requests the doctor to “please forward the results”.
c. In one of the letters to the off-site doctor the respondent also requests the “physical examination form” be returned.
[33] Beyond the right to require an assessment of the fitness to perform duties, which an employee may elect a registered medical practitioner of their choosing to perform, the respondent has no express right within the Agreement:
a. to dictate what information is provided to the respondent by a registered medical practitioner; or
b. require an employee to consent to release of their medical information and test results.
[34] Furthermore, a reading of the last paragraph of Clause 22(c) as requiring an imposition in the system of assessment of fitness to operate mobile equipment of a process of returning of the “physical examination form” or “test results”:
a. would be unjust and unreasonable;
b. would be an absurd outcome after an assessment by a registered medical practitioner had been performed;
c. is unnecessary for assessment of fitness by a medical practitioner;
d. would not enable the company to be made aware that; and
e. is unnecessary, as it has not been required in the past for the same assessment purposes.
[35] The applicant submits the respondent is seeking from the employees something that is unjust or unreasonable.
[36] Furthermore, the applicant submits that the principles of construction, upon examination of the facts, favour a fair interpretation. In all of the circumstances, a fair interpretation is one that achieves the purposes of an employee electing to have a medical assessment conducted by a registered practitioner of their own choosing, which include:
a. The purpose of maintenance of trust and confidence in the provision of information to and from that practitioner; and
b. The maintenance of personal privacy, while still ensuring they are verified fit by a registered medical practitioner.
[37] It cannot be said to have been known to the parties, nor can it to be said to be notoriously known, that employees are required to return a “physical examination form” to the respondent for the purposes of the Alcoa Medical Centre conducting an assessment of the fitness to perform their duties after an assessment has already been made by a registered medical practitioner of the employee’s choosing.
[38] The respondent would require the implication of a term to impose such a process and the relevant tests for implying terms into the Agreement have not been met.
[39] In the applicant’s submission it is clear that there is no basis to imply a term requiring the consent of transfer of medical information to the respondent. It is not necessary to imply a term to this effect. It is also not reasonable, nor is it equitable to impose invasion on the privacy of employees, which is contrary to the terms and purposes of the disputed clause and the Agreement.
[40] The evidence is that it is not just highly unlikely, but that it was not agreed that there should be transfer of medical information to the respondent where an employee elected to have the mobile medical conducted by a registered practitioner of their own choosing.
[41] Furthermore, it cannot be said that there was a common intention between the parties that an employee who has elected to have the mobile medical conducted by a registered practitioner of their own choosing should have to provide private medical information after that medical to the respondent. The Final Terms of Settlement establish the common intention.
[42] It does not go without saying that an employee who has elected to have the mobile medical conducted by a registered practitioner of their own choosing should have to provide private medical information after that medical to the respondent.
[43] The applicant further submits that the employees and/or their medical practitioners are less likely to comply with a process the employees did not agree to, a process that employees and medical practitioners believe to be unreasonable, and a process that is a change in the status quo.
Alcoa’s submissions
[44] The requirement to undertake the required medical assessment for mobile equipment operators has been established by Alcoa Incorporated; the parent company and major shareholder of Alcoa in its Environmental Health & Safety Standards (EHS STD 71).
[45] The EHS STD 71 is not directly required for compliance with the Mines Safety & Inspection Act 1984 (the Mines Safety & Inspection Act) however, it does form a part of the arrangements which ensure that therespondent meets its general duty of care obligations which are imposed.
[46] Prior to the commencement of the Agreement, the respondent undertook medical assessments as required by the EHS STD 71 without incident and, with very minimal exception, at the Alcoa Medical Centres staffed by personnel who:
a. are trained and competent to undertake medical assessments required by the EHS STD 71, i.e. they are Occupational Health Professionals; and
b. comprehensively understand the working environment and the impact that various medical issues may have on relevant employees being able to undertake their work in that environment.
[47] During the negotiations for the Agreement, the applicant sought to negotiate a capacity for relevant employees of the respondent to make an election between attending an Alcoa Medical Centre for the required medical assessment or utilising a registered medical practitioner of their choosing.
[48] Negotiations on that issue resulted in the introduction of Clause 22(c) which was a new clause introduced in the Agreement.
[49] Clause 22(c) of the Agreement did not change the EHS STD 71 or the standard to be applied by Alcoa in the determination of whether an employee met the requirements of the EHS STD 71.19.
[50] Relevantly, Clause 22(c) provides that:
- “Undertake the medical assessment at the Alcoa Medical Centre(s) during rostered work time, without loss of pay” (Emphasis added); or
- “attend a registered medical practitioner of their choosing outside of working hours (and in this case shall be reimbursed for the cost of such medical on the supply of a receipt for the medical assessment in the event that the medical practitioner’s account has not been invoiced to and paid by Alcoa).” (Emphasis added).
a. “Employees required to have a Mobile Equipment Medical to operate mobile equipment” may make an election (Emphasis added);
b. Such election relates to whether the employee would:
c. “If the medical is not performed by the Alcoa Medical Centre, then the employee will be required to obtain Alcoa’s pro-forma medical examination form and ensure that acceptable medical form completed by the abovementioned medical practitioner and then returned to the Alcoa Medical Centre.” (Emphasis added).
[51] The applicant asserts that employees who elect to undertake the required medical assessment through a registered medical practitioner of their choosing need not provide to the Alcoa Medical Centre more than a medical certificate which confirms the relevant employee’s fitness for work.
[52] The respondent contends that employees who elect to undertake the required medical assessment through a registered medical practitioner of their choosing must provide a medical form that is acceptable to it (i.e. which at this time is the respondent’s pro-forma medical examination form), to ensure that the requirements of the EHS STD 71 can be satisfied and that the relevant employee is fit to operate relevant mobile equipment.
Question 1
Are employees who elect to attend a medical practitioner of their choosing required to return:
a. pro-forma medical examination form; or
b. acceptable medical form completed by their practitioner?
[53] The first issue which must be in considering in answering the above question is whether the wording is ambiguous, or whether, in fact, its true meaning can be established from a plain and ordinary examination of the words having regard for the whole of the Agreement.
[54] This consideration is necessary because, contrary to the submission of the applicant, recourse to extrinsic materials can only be made where the wording is in fact ambiguous.
[55] The respondent submits that no ambiguity in Clause 22(c) of the Agreement exists.
[56] The Agreement relevantly provides:
“If the medical is not performed by the Alcoa Medical Centre, then the employee will be required to obtain Alcoa’s pro-forma medical examination form and ensure that acceptable medical form completed by the above mentioned medical practitioner and then returned to the Alcoa Medical Centre.”
[57] The wording in dispute must be read in the context of the rest of Clause 22(c) of the Agreement. Clause 22(c) provides that employees who are required to have a Mobile Equipment Medical may make a personal election to have the medical assessment performed either at the Alcoa Medical Centre or by a registered medical practitioner of their choosing.
[58] In either case, the employee must undertake “the medical assessment”, which the respondent submits should be the same regardless of where the medical assessment is performed. This approach is supported by the requirement that the relevant employee obtain “Alcoa’s pro-forma medical examination form”.
[59] The wording in dispute is only relevant to the circumstances where an employee elects to use a medical practitioner of their choosing. In that setting, the text quoted above does the following:
a. It requires the employee to obtain Alcoa’s pro-forma medical form;
b. It requires that acceptable medical form to be completed by the medical practitioner; (Emphasis added); and finally
c. It requires that medical form to be returned to the medical centre (Emphasis added).
[60] The essence of the dispute in relation to question 1 is whether the phrase “that acceptable medical form” is a reference to the pro-forma medical form referred to a few words earlierin the sentence or to some entirely separate medical form.
[61] ‘That’ is defined in the Australian Concise Oxford Dictionary to mean “the person or thing pointed to or drawn attention to or observed by the speaker at the time, or already named or understood…”.
[62] The only ‘thing’ which has been named or could be drawn attention to in the relevant paragraph is the pro-forma medical form.
[63] It is submitted that, notwithstanding the grammatical clumsiness of the wording, there is no justification for a conclusion that the phrase “that acceptable medical form”, appearing as it does in the sentence, can be a reference to anything but the pro-forma medical form.
[64] In light of the submission set out in the paragraph above, namely that employees must undertake the same medical assessment whether it is conducted by staff at the Alcoa Medical Centre or through a registered medical practitioner of the employees choosing, the requirement to provide and then subsequently return Alcoa’s pro-forma examination form (as asserted above) should be considered to:
a. reflect a practical intent that the same information be made available to the respondent on an employee’s fitness to operate mobile equipment regardless of where the required medical assessment is undertaken; and
b. result in a sensible industrial outcome and not the injustice which would arise if the respondent was required to accept a lesser amount of information on which to ensure the fitness for work of relevant employees as required by the EHS STD 71.
[65] The applicant appears to submit that the words ‘and’ and ‘is’ should be inserted into the Agreement.
[66] Such an outcome can only be achieved through:
a. Rectification of the Agreement as a remedy for mistake; or
b. Implying Terms into Agreement because it does not make sense.
[67] There is no suggestion that the Agreement does not work. This is of course not the same question as to whether or not the wording may be ambiguous, which the respondent submits that it is not, such a finding would necessarily prevent words from being implied.
[68] The further difficulty with an argument that the words ‘and’ and ‘is’ should be implied, is that in and of themselves, they do not change the meaning of the words which are the subject of the dispute and therefore cannot claimed to be so obvious that it goes without saying.
[69] Even if it is accepted that the words proposed by the applicant should be inserted, either by way of rectification or implication (which is rejected by the respondent), Clause 22(c) then would be modified to be read as follows:
“If the medical is not performed by the Alcoa Medical Centre, then the employee will be required to obtain Alcoa’s pro-forma medical examination form and ensure that an acceptable medical form is completed by the above mentioned medical practitioner and then returned to the Alcoa Medical Centre.” (Emphasis added)
[70] It is the respondent’s submission that even if the paragraph must be read, as set out above it does not lead to a situation where the clause could be considered ambiguous.
[71] Even with the additional words, application of the already discussed principles for interpreting agreements lead to the same outcome. Clause 22(c) of the Agreement would still require employees who elect to have the required medical assessment conducted by a registered medical practitioner of their choosing to:
a. obtain the respondent’s pro-forma medical examination form;
b. undergo the required medical assessment; and
c. provide to the respondent an acceptable medical form which is to be completed and returned to the respondent so that it can be satisfied as to the fitness for work.
[72] ‘Form’ is variously defined in the Australian Concise Oxford Dictionary as a “document with blanks to be filled up”.
[73] The requirement in Clause 22(c) that a “form” be completed by the registered medical practitioner of the employees choosing and returned by the employee must be interpreted, given the words and in the context of the Agreement as a whole, to require a greater obligation than the preparation of a bespoke letter by a medical practitioner providing only a basic statement as to the fitness of the relevant employee.
[74] In considering the term “acceptable form” with a practical bent, it must be a form acceptable to the respondent because:
a. the onus of implementing and complying with the EHS STD 71 rests with the respondent;
b. the respondent has a significant responsibility under the Mines Safety & Inspection Actas to duty of care for its employees;
c. it is clear that the applicant has, where it intended to do so, negotiated a requirement for certain matters to be agreed e.g. Clauses 6.11(b), 10.3(a)(iii), 6.12(a); and therefore there is no basis for any assertion by the applicant that the inclusion of “acceptable form” is a reference to an agreed form;
d. it would not be industrially sensible to conclude that an employee who elects to utilise a registered medical practitioner of their own choosing can provide less information to the respondent than an employee who elects to attend the Alcoa Medical Centre; and
e. to suggest that the election was anything other than a capacity to decide who would conduct a standard medical assessment and complete a standard form as to the fitness for work of an employee would result in an injustice for the respondent and would not be industrially sensible.
[75] If the Commission concludes that there is ambiguity as to the meaning of the final paragraph of Clause 22(c), it is the submission of the respondent that there is still no justification for a conclusion that the acceptability of the medical form should be determined by the applicant, one of its members or their medical practitioner.
[76] In the circumstances the only sensible interpretation, particularly given the duty of care that is imposed on the respondent by the Mines Safety & Inspection Act, is that the medical form to be completed must be a form acceptable to the respondent. The duty under the Mines Safety & Inspection Act is not delegable to some doctor, not known to the respondent but preferred by an employee.
[77] Where the true meaning of a clause cannot be determined, regard may be had to extrinsic materials to assist in resolving any ambiguity.
[78] The High Court in the Royal Botanic Gardens and Domain Trust v South Sydney City Council, (2002) 240 CLR 45, (the Royal Botanic Gardens case) upheld the statement of Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW, (1982) 149 CLR 337, (Codelfa) at [103]:
“…the position remains, in my view, that stated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW:
“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties...
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself.” ”
[79] What the High Court in the Royal Botanic Gardens case omitted in that case reference was the following paragraph from the decision of Justice Mason:
“Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.”
[80] The decision of the High Court in Western Export Services Inc v Jireh International Pty Ltd, [2011] HCA 45, leaves no doubt that all of the reasoning of Mason J in Codelfa stands as binding authority in relation to the use of extrinsic material in resolving ambiguity.
[81] The facts, as contemplated by Mason J in Codelfa, were:
a. Alcoa had a clear and well established practice for conducting mobile equipment medicals;
b. The applicant wanted to make changes to that established practice, as reflected by the proposal contained in their Bargaining Period Discussion Document;
c. There was limited negotiation over the words, which remained unchanged over a period of approximately 4 months prior to the Agreement being referred to relevant employees for their consideration as part of the voting process to determine whether the valid majority of employees agreed to the making of the Agreement; and
d. The agreed understanding of the parties in relation to the proposed agreement, including Clause 22(c) is set out in the AWU WAO 2011 EBA Overview Presentation (the Presentation).
[82] Whilst the desire of the AWU to effect changes to the Mobile Equipment Medicals is an objective fact, the AWU Bargaining Period Discussion Document referred to by the applicant does not in and of itself form part of the objective framework of facts, as it is clearly a document setting out the aspirations or intentions of the AWU.
[83] In contrast to the AWU Bargaining Period Discussion Document, the Presentation clearly reflects the parties agreed intentions, after the negotiations had been concluded.
[84] Section 180(5) of the Act requires employers to explain the terms of a proposed agreement.
[85] In order to meet that obligation the Presentation was prepared, circulated to the AWU for their approval and then presented to the employees ahead of the ballot to approve the Agreement.
[86] Clause 22(c) was specifically referred to within that Presentation which stated on slide 52 that;
“Employees not using Alcoa’s Medical Centre are to ensure that Alcoa’s medical examination form is completed by the medical practitioner and returned to the Alcoa Medical Centre.”
[87] The Presentation was annexed to the Statutory Declaration as signed by the respondent and filed with the application for approval of the Agreement, along with a Statutory Declaration signed by the applicant.
[88] It is the submission of the respondent that if it is necessary to have regard to extrinsic materials to determine the presumed intentions of the parties, no higher regard can be had than for the document, agreed to by both parties, which was an agreed explanation of the agreement they had just finished negotiating.
[89] In the context of the obligations contained in the Act, the presumed intentions of the parties in relation to the Agreement can be replaced by the commonly agreed actual intentions as reflected the Presentation.
[90] Accordingly, any issue of ambiguity should, in the respondent’s submission, be determined in favour of the respondent.
Question 2
Can the respondent alter the pro-forma medical examination form referred to in Clause 22(c) during the term of the Agreement?
[91] It is submitted by the respondent that there is no issue as to whether or not the pro-forma medical examination form was set as at the time the Agreement was approved, based on the application of principles of interpretation. In National Union of Workers v GrainCorp Operations Limited [PR918161] Deputy President Ives, in discussing the principles of interpretation said “an award or agreement should be interpreted in the same manner as a court or tribunal would interpret legislation or another document”.
[92] It is a recognised principle of statutory interpretation, see section 10 of the Acts Interpretation Act 1901, that a reference to a document is taken to be a reference to that document asamended from time to time. As such, the reference to the pro-forma medical examinationform, should – in the absence of any contrary indication, and it is submitted that there is nosuch contrary indication – be taken to be a reference to the pro-forma medical examinationform as amended from time to time.
[93] If the above submission is not accepted, it is submitted that there is nothing in the wording of the relevant paragraph of Clause 22(c) that provides any indication of a limitation on the nature or content of the pro-forma medical examination form.
[94] It is relevant to note that amendment of the EHS STD is outside the control of the respondent and the applicant. The submission of the applicant, if accepted, would be that as a result of the insertion of Clause 22(c) and the Agreement by the respondent to allow its employees to use their own medical practitioner, the respondent could no longer comply with the EHS STD if they were amended during the life of the Agreement. Such an outcome is not, in the respondent’s submission, industrially sensible.
[95] Regardless of whether the reference to the pro-forma medical examination form is the form as it was on the date of approval of the Agreement, nothing in the Agreement prevents the respondent from amending the form in accordance with the terms of the Agreement.
[96] Consultation clauses are required in all enterprise agreements by section 205 of the Act.
[97] Clause 21 is the consultation clause in the Agreement and was specifically negotiated by the applicant and respondent as part of the negotiations for the Agreement.
[98] It is the submission of the respondent that the pro-forma medical examination form may be amended pursuant to Clause 21 of the Agreement.
[99] Relevantly, Clause 21.1 provides that:
“21.1 General
(a) From time to time, the company may wish to change aspects of its business and how it operates.
(b) Where change is considered and proposed by the Company, the Company will consult with the appropriate work groups affected by the change and their appropriate representative.
(c) Prior to making the decision to introduce a change, the Company will consult with the relevant employees regarding:
(i) The introduction of the change;
(ii) The effect the change is likely to have on the employees; and
(iii) Measures the employer will take to avert or mitigate the adverse effect of the change on the employees.
(d) Consultation on, and implementation of, change will be through;
(i) Clause 21.2, where the change will have an adverse impact on the job security and/or current income of employees; and
(ii) Clause 21.3, where the change will not have an adverse impact on the job security and/or current income of employees.”
[100] The clause provides for the respondent to comply with:
- Clause 21.2 applies where there the proposed change will have an adverse effect on the job security and/or current income of affected employees; and
- Clause 21.3 applies where the proposed change will not have an adverse impact on the on the job security and/or income of the affected employees.
a. a general consultation obligation as prescribed by Clause 21.1(c); and
b. additional consultation obligations as specified by Clauses 21.2 and 21.3 which are applicable as follows:
[101] Any change to the pro-forma medical examination form would not have an adverse impact on:
a. the job security of the affected employees; or
b. the current income of the affected employees, and as such, changes to the pro-forma medical examination form could simply be made by complying with the requirements of Clauses 21.1(c) and 21.3.
[102] Changes made to the ‘form’this year were made as a result of negotiations with the applicant’s legal representative following a conference at the Commission and generally to address concerns he had raised on behalf of the applicant.
[103] If the applicant now opposes such changes, the respondent is entitled to decide whether to revert to the pro-forma medical examination form as it stood before those changes or make amendments to the pro-forma medical examination form through the procedure referred to above.
Question 3
Does the Agreement make provision for the respondent to require employees to sign medical consent forms for the purpose of Mobile Equipment Medicals under Clause 22(c)?
[104] Clause 6.5(b) of the Agreement makes it a term and condition of employment for employees to comply with all relevant occupational health and safety standards and regulations determined by the company, which includes the EHS STD 71.
[105] This obligation includes compliance with the requirements for Mobile Equipment Medicals, as set out in the EHS STD 71.19.
[106] The Mobile Equipment Medical Standard requires the assessment to be undertaken by an Occupational Health Professional. Relevantly, this does not include a general practitioner.
[107] In order to comply with the Mobile Equipment Medical Standard, is it necessary for the information, collected by the employee’s preferred medical practitioner to be returned to Alcoa for review by such Occupational Health Professionals.
[108] Compliance with the occupational health and safety standards also includes compliance with the EHS STD 71.16.
[109] The EHS STD 71.16 is the Management of Employee Medical Records and Employee Exposure Records.
[110] The purpose of EHS STD 71.16 is to “describe the requirements for management of employee medical records and employee exposure records to ensure that all locations appropriately and consistently maintain the confidentiality of employee medical records.” (Emphasis added)
[111] The EHS STD also requires an employee’s medical record to be a complete occupational health record and include all occupational health care information for the employee. As such, any requested medical information must be returned to Alcoa, regardless of who undertakes the medical assessment.
[112] As part of the EHS STD 71.16, Alcoa Medical Services are subject to a global directive to maintain the confidentiality of employee medical records.
[113] That obligation is in addition to the obligations imposed upon Alcoa Medical Services as a result of the Privacy Act 1988 (the Privacy Act).
[114] The respondent does not need express authorisation under the Agreement, let alone the implication of new wording into the Agreement, to require information from the medical practitioner because:
a. the medical practitioner is not a party to the Agreement;
b. clause 6.5(b) which requires employees to comply with Alcoa’s EHS STD, places such an obligation on the employee, not the respondent;
c. employers do not need express rights to be prescribed in an Agreement to do what they would otherwise be entitled to do as a matter of managerial prerogative;
[115] The respondent’s concerns are that its employees are fit for work, meet the requirements of the EHS STD 71.19 and that it complies with the obligation to hold complete medical records for its employees, as required by the EHS STD 71.16.
[116] Medical information is not provided to other Alcoa employees without the consent of the employee.
[117] Medical information is not utilised by Alcoa Medical Services other than:
a. to ensure the employee is able to safely perform their duties;
b. to assist in the treatment of an employee in emergency situations;
c. as part of internal Alcoa employee medical management, i.e. ESL or rehabilitation; and
d. as required by law.
[118] The position of the respondent is that:
- undergo the nominated medical tests; and
- return the pro-forma medical examination form containing those test results.
a. if an employee elects to have the medical assessment conducted by an external medical practitioner of their choosing, they can only do so by electing/consenting to provide the required information to the respondent following the assessment;
b. the right to elect to have the assessment conducted by a registered medical practitioner of their choosing does not exist unless all of the requirements of Clause 22(c), as asserted by the respondent, are met. That is, no election can be made if the relevant employee is not prepared to:
c. if the clear requirements set out in the referring letter to the external medical practitioner are complied with, the medical consent form should not be required;
d. there is no justification to the applicant’s submission that a medical practitioner is unlikely to comply with a requirement to provide requested test results to an employer; and
e. the question of compliance by employees is not relevant to this dispute, it is a matter for the respondent once the obligations on the employee are resolved through this process.
[119] However, the respondent maintains that the medical consent form allows for efficiencies in the event that the form is not completed appropriately or is for some reason illegible. In those circumstances Alcoa’s Medical Centre can liaise directly with the medical practitioner and thus avoid in delays in confirming the employee’s fitness for work which could otherwise arise if the employee were required to return to their doctor to obtain the missing information.
[120] The provision of medical information to employers, including the use of consent forms, is a routine part of both the recruitment and ongoing employment of employees in a range of industries, in particular mining.
[121] The suggestion that an employee can take any medical form required by an employer to a doctor, whose services the employer is going to pay for, and then not return the information required by the employer defies logic and common sense. It fails to recognise the duty of care which is imposed upon Alcoa, to ensure that its employees are capable of performing the job for which they are employed and can in no way be said to lead to the sensible industrial outcome as contemplated by Justice Kirby in Amcor Ltd v Construction, Forestry, Mining and Energy Union, (2005) 222 CLR 241.
[122] The suggestion is also at odds with the decision of the Full Bench in upholding the decision of SDP Acton that an employee’s unwillingness to give an authority for exchanges of medical reports as between the medical practitioners and their employer was of itself sufficient conduct to justify the termination of employment 1.
[123] Whilst the laws regarding the protection of private information are important and imposed by the federal parliament, they do not represent an absolute right to privacy. Information can be released as permitted by the Privacy Actand those circumstances include where the employee has authorised its release.
[124] It is important to note that the information being obtained and held is no different to the information which is held by Alcoa’s Medical Centre in respect of every employee who undertakes a Mobile Equipment Medical using the Medical Centre. The medical consent form does not represent an absolute right for Alcoa to obtain any and all medical information held by an external medical practitioner about an employee.
Conclusion
[125] The dispute is one where the applicant, having failed to achieve its objectives at the negotiating table, now seeks to penalise the respondent for having provided some flexibility to its employees in the Agreement in respect of who can perform a Mobile Equipment Medical by seeking to argue, in the face of overwhelming contrary documentation, that the words “that acceptable medical form” should prevent the respondent from continuing to apply the high standards to the assessment of their employees fitness for work which had been in place for years.
[126] It is the submission of the respondent that:
- is the form being discussed at all times in the paragraph;
- is capable of being amended by the respondent from time to time;
a. the current wording of Clause 22(c) is not in fact ambiguous;
b. the reference to “acceptable medical form” must properly be considered to be a form acceptable to the respondent;
c. a sensible industrial outcome is only reached through a conclusion that the respondent’s pro-forma medical examination form:
d. in the circumstances, there is nothing unreasonable or even unusual about an employer requiring an employee to provide specific medical information to their employer or an employer requiring an employee to sign a consent form allowing the employer to obtain such information from the relevant medical practitioner.
[127] In conclusion, it is the submission of the respondent that the questions posed in this dispute should be answered as follows:
a. Clause 22(c) requires employees who attend their own medical practitioner to return Alcoa’s pro-forma medical examination form, as amended from time to time;
b. Yes; and
c. Yes, and even if it doesn’t nothing in the Agreement prevents the respondent from requiring an employee to sign a medical consent form.
Consideration
[128] I have not summarised the evidence given by the witnesses in this matter as much of that material focused on the party’s negotiations in the lead up to making the Agreement.
[129] The evidence regarding employees electing to attend a medical practitioner of their own choosing is that for the period January 2012 to October 2012, 190 employees underwent Mobile Equipment Medicals. Over this period 12 of these employees elected to attend a general practitioner of their own choosing rather than the Alcoa Medical Centre and of those 6 returned all the documentation required by Alcoa.
[130] In an earlier period 7 other employees had elected to attend a general practitioner of their own choosing rather than the Alcoa Medical Centre and all of those employees returned all the documentation required by Alcoa 2.
[131] The dispute in this matter involves a disagreement between the parties over the correct construction of Clause 22(c) of the Agreement.
[132] In a recent decision of this Commission, National Union of Workers, New South Wales Branch v FreshFood Management Services Pty Ltd [[2012] FWA 10832] Deputy President Booth reviewed the authorities regarding the correct approach for the Commission to determine the proper construction of an agreement. At paragraph [15] Deputy President Booth said:
“The words of the statute, award, agreement or contract must first be given their plain meaning and only when they are ambiguous does interpretation require the examination of surrounding circumstances. In the High Court judgement Western Export Services Inc v Jireh International Pty Ltd Gummow, Heydon and Bell JJ upheld the decision of Macfarlan JA in the New South Wales Court of Appeal in which he said:
“A court is not justified in disregarding unambiguous language simply because the contract would have a more commercial and business like operation if an interpretation different to that dictated by the language were adopted.”
Their honours went on to say at paragraphs 3 and 4:
“Acceptance of the applicant’s submission, clearly would require reconsideration by this Court of what was said in Codelfa Construction Pty Ltd v State Rail Authority of NSW by Mason J, with the concurrence of Stephen J and Wilson J, to be the “true rule” as to the admission of evidence of surrounding circumstances. Until this Court embarks upon that exercise and disapproves or revises what was said in Codelfa, intermediate appellate courts are bound to follow that precedent. The same is true of primary judges, notwithstanding what may appear to have been said by intermediate appellate courts.
The position of Codelfa, as a binding authority, was made clear in the joint reasons of five Justices in Royal Botanic Gardens and Domain Trust v South Sydney City Council and it should not have been necessary to reiterate the point here.”
In Codelfa Mason J said at paragraph 22:
“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning.””(Referencing omitted)
[133] So it is in this case that evidence of surrounding circumstances, such as the negotiations leading up to the making of the Agreement, is admissible to aid in the interpretation of the Agreement if the language is ambiguous or susceptible of more than one meaning however this evidence is not admissible to contradict the language of the Agreement when it has a plain meaning.
[134] Consequently I will first consider whether or not the language in issue has a plain meaning that it is discernible and not ambiguous.
[135] In doing so the other well understood principles of construction naturally will apply.
[136] The starting point is the text itself and discerning its meaning may require consideration of the context including the general purpose and policy of the provision. Specifically for agreements in this jurisdiction the industrial purpose of the provision is also to be considered.
[137] A narrow or pedantic approach to interpretation is to be avoided and it is to be borne in mind that the framers will likely have had a practical bent of mind and were more concerned with expressing their intent in ways likely to have been understood in the context of the relevant industry rather than with legal niceties.
[138] Clause 22 (c) reads as follows:
- Undertake the medical assessment at the Alcoa Medical Centre(s) during rostered work time, without loss of pay; or
- To attend a registered medical practitioner of their choosing outside of working hours (and in this case shall be reimbursed for the cost of such medical on the supply of a receipt for the medical assessment in the event that the medical practitioner’s account has not been invoiced to and paid by Alcoa).
“Mobile Equipment Medicals
Employees required to have a Mobile Equipment Medical to operate mobile equipment’ may elect to;
If the medical is not performed by the Alcoa Medical Centre, then the employee will be required to obtain Alcoa’s pro-forma medical examination form and ensure that acceptable medical form completed by the abovementioned medical practitioner and then returned to the Alcoa Medical Centre.”
[139] Firstly in terms of content it should be observed that this provision is a subclause of Clause 22-Fitness for Work.
[140] The opening paragraphs of this clause note the parties’ commitment to implementing a drug and alcohol policy to which all employees will comply and that the parties are committed to developing and applying a fitness for work policy which identifies and addresses medical conditions and fatigue and stress.
[141] The clause notes that the respondent requires all employees to comply with the Mines Safety and Inspection Act and Regulations with respect to their fitness for work.
[142] Subclause (c) then deals with Mobile Equipment Medicals.
[143] The subclause details the party’s agreement as to how those employees whom are required to have a mobile equipment medical will complete this.
[144] Employees have the right to elect to undertake the medical assessment at the Alcoa Medical Centre or attend a registered medical practitioner of their choosing.
[145] If they elect to attend a registered medical practitioner of their choosing they must do so outside working hours and are to be reimbursed the cost of such medical assessment on supply of a receipt.
[146] The final paragraph which is the provision at the centre of this dispute sets out a requirement for the employee who is attending a registered medical practitioner of their choosing to obtain Alcoa’s pro-forma medical examination form and,
“...ensure that acceptable medical form completed by the abovementioned medical practitioner and then returned to the Alcoa Medical Centre.”
[147] The balance of Clause 22 refers to Appendix 9 of the Agreement which prescribes Alcoa’s Drug and Alcohol Policy in detail.
[148] The general purpose of these provisions dealing with Mobile Equipment Medicals is to establish a process for employees to be medically assessed so that their employer can be satisfied of their fitness to operate mobile equipment.
[149] For employees who elect to attend a medical practitioner of their own choosing the clause provides additional obligations because the medical assessment will not be conducted by Alcoa medical personnel.
[150] The purpose of these additional provisions is to ensure that the information returned by an employee satisfies Alcoa the employee is or is not fit to operate mobile equipment as would be the case had the employee elected to undertake the medical assessment at Alcoa’s Medical Centre. The requirement to obtain the pro-forma medical examination form recognises that some medical practitioners may be unfamiliar with the respondent’s operations and so require some direction to properly determine an employee’s fitness to operate mobile equipment at Alcoa’s sites.
[151] I will now consider the particular words of these provisions.
[152] It is notable that there is some inconsistency in the language used in these provisions, even when referring to what both parties agree is the same thing.
[153] For example the heading of Clause 22(c) is “Mobile Equipment Medicals”.
[154] Consistent with this the next sentence explains employees are required to “...have a Mobile Equipment Medical...”
[155] However immediately under this the first dot point refers to employees undertaking “...the medical assessment...”.
[156] The second dot point then refers to being reimbursed for the cost of “...such medical...” and then again refers to “...the medical assessment...”.
[157] The final paragraph again refers to “...the medical...”.
[158] Considering the submissions of the parties and the evidence of all of the witnesses it is clear that all involved recognise that “Mobile Equipment Medical(s)” is synonymous with “medical assessment” which is synonymous with “medical”.
[159] So there is a ready willingness by both parties to recognise that the drafters were not pedantic in their use of words in this clause.
[160] The respondent with some justification in my view focused on in part the need for proper meaning to be given to the word “that” where it precedes the words “acceptable medical form” as underlined below:
“If the medical is not performed by the Alcoa Medical Centre, then the employee will be required to obtain Alcoa’s pro-forma medical examination form and ensure that acceptable medical form completed by the abovementioned medical practitioner and then returned to the Alcoa Medical Centre.” (Underlining added)
[161] A number of the definitions of ‘that’ from the Macquarie Dictionary, as set out below, include the common theme of indicating or pointing out an idea, person or thing which was mentioned already.
“pronoun (demonstrative) (plural those)
1. (used to indicate a person, thing, idea, etc., as pointed out or present, or as before mentioned or supposed to be understood, or as about to be mentioned, or by way of emphasis): that’s my choice. 2. (used to indicate the one of two or more persons, things, etc., already mentioned, that is more remote in place, time, or thought.) 3. (used to indicate one of two or more persons, things, etc., already mentioned, implying contradistinction (opposed to this).–pronoun (relative) 4. (used as the subject or object of a relative clause, especially one defining or restricting the antecedent, sometimes replaceable by who, whom, or which): the man that arrived; the man that I saw. 5. (used as the object of a preposition, the preposition being at the end of the relative clause): the man that I spoke of. 6. (used in various special or elliptical constructions): fool that he is. –adjective (demonstrative) (plural those) 7. (used to indicate a person, place, thing, idea, etc., as pointed out or present, as before mentioned or supposed to be understood, or by way of emphasis): we want that help especially. 8. (used to indicate, of two or more persons, things, etc., already mentioned, the one more remote in place, time, or thought.) 9. (used to indicate one of two or more persons, things, etc., already mentioned, implying contradistinction (opposed to this)...” (Underlining added)
[162] In the context of the disputed paragraph above the words “that acceptable medical form” are most likely have been used to refer to the “pro-forma medical examination form” which is mentioned immediately before in this sentence. (Emphasis and underlining added)
[163] To rely on the different words preceding the word “form” where it is used twice in this paragraph to mean two different and distinct ‘forms’ in my view strains the meaning of the words without justification.
[164] The respondent with some basis also argues that the words “acceptable medical form” within the context of the purpose of these provisions necessarily means acceptable to the respondent. It is the respondent who requires employees to undertake medical assessments to provide information that they are fit to work on mobile equipment. The applicant’s construction would leave the question of what was an acceptable medical form open to dispute which would not always allow the employer to be sure that an employee was or was not fit for work on mobile equipment. This outcome would be inconsistent with the industrial purposes of this provision.
[165] If the employees medical practitioner does not have to complete the pro-forma medical examination form from Alcoa and the acceptability of the medical form to be returned is decided by each employees chosen medical practitioner this would in some cases leave doubt as to whether the medical assessment was an appropriate assessment of that employees fitness to work on the mobile equipment for the respondent. It may be uncertain whether the medical practitioner had appropriate information regarding the respondents operations and was aware of the fitness for work requirements for mobile equipment operators in the particular context of those operations. This does not support the applicant’s construction.
[166] Much was made of the poor syntax that is evident in this disputed paragraph and the applicant submitted the insertion of a number of additional words would give clear meaning to its interpretation. However other words could equally be added to resolve the deficient syntax such as below:
“If the medical is not performed by the Alcoa Medical Centre, then the employee will be required to obtain Alcoa’s pro-forma medical examination form and ensure that acceptable medical form [is] completed by the abovementioned medical practitioner and then returned to the Alcoa Medical Centre.”
[167] I have no doubt other alternative syntax changes could also be suggested to support either construction. In my view no reliance can be had on the applicant’s suggestion for words to be assumed to have been left out in error, particularly when alternative drafting would give greater clarity to competing meanings. Rather the better approach is simply to accept that the syntax is imperfect. I do not accept that this deficiency needs to be resolved by assuming that other words have been left out so that a particular meaning can then be found.
[168] In my view the plain meaning of these words is clear however clumsy they may be. There is no ambiguity.
[169] In terms of the first question my conclusion is that employees who elect to attend a registered medical practitioner of their choosing are required to return to the Alcoa Medical Centre the pro-forma medical examination form they obtained from the respondent, which has been completed by their medical practitioner.
[170] That construction is consistent with what in my view is the industrial purpose of these provisions as explained above. This construction ensures Alcoa receives the information it requires to be sure an employee either is or is not fit to operate mobile equipment in its operations.
[171] The second question is whether or not the employer can change the pro-forma medical examination form.
[172] The Agreement is silent on this point. On this issue I accept the general proposition that this “pro-forma” is a document of the respondent and so it is within its discretion to change it as it sees fit. If the parties intended that the respondent be constrained from altering its pro-forma this would have needed to have been express in the Agreement, which it is not.
[173] The respondent has the prerogative to alter the pro-forma medical examination form.
[174] Turning to the third question, the Agreement does not require an employee to sign anything under this clause. The clause directs the employee to ensure that the pro-forma medical examination form, when it has been completed by the employees chosen medical practitioner, is returned to the Alcoa Medical Centre.
[175] The Agreement does not make provision for the respondent to require employees to sign medical consent forms for the purpose of Mobile Equipment Medicals under Clause 22(c).
[176] In summary I determine that the answers to these questions are:
1. Under Clause 22(c) of The Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2011 (the Agreement) employees who elect to attend a registered medical practitioner of their choosing are required to return the pro-forma medical examination form they obtained from the employer, which has been completed by their medical practitioner, to the Alcoa Medical Centre.
2. The employer can alter the pro-forma medical examination form.
3. The Agreement does not make provision for the employer to require employees to sign medical consent forms for the purpose of Mobile Equipment Medicals under Clause 22(c).
COMMISSIONER
Appearances:
T Hammond of Counsel for the applicant.
W Milward of Heelan & Co Industrial Relations and Management for the respondent.
Hearing details:
2012.
Perth:
December 12, 13.
1 Allan v Australian Postal Corporation [2007] AIRCFB 34
2 Exhibit R2, paragraphs [37] and [38].
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