Does it affect my rights as an OHS rep? The simple answer is NO.
The rights you have under the Victorian Occupational Health and Safety Act (2004) to have access to information are not affected by Victorian or Commonwealth privacy legislation (the Privacy Act 1988 (Commonwealth), Information Privacy Act 2000 (Victoria), and Health Records Act 2001, even after the introduction of the recent amendments covering the private sector [Privacy (Public Sector) Amendment Regulations (2002)].
It is not uncommon for reps to report that their employer has refused them access to all sorts of information (to which they have a right), claiming that the Privacy Act prohibits them from making this information available.
- an employer refusing to notify the reps when an accident occurred, claiming that it was illegal for the company to release the names of any workers who had been injured in that, or any, accident. The reps only found out something had gone wrong when they noticed that a fellow worker wasn't around and started asking questions!
- a large employer 'blanking out' the name of the person involved and a number of important details (such as the location and actions taken to address the problem) on incident reports before providing these to the rep, claiming this was 'personal' information.
Unfortunately, there are some employers who will come up with creative excuses for not complying with their legal duties under the Act.
What the Office of the Privacy Commissioner says:
The Office of the Privacy Commissioner, when advised of the first example above, stated that such an example was a "misuse of the legislation". It also provided the following advice:
- The Privacy Act was designed primarily to protect an individual's PRIVATE information - for example, someone's personal medical records.
- The sort of information the employer should provide to allow the rep to inspect under Section 58(1)(a)(ii) - ie that an incident has occurred, the names of people involved, outcomes (eg first aid administered, ambulance called, WorkSafe notified, etc) - is not that covered by the Privacy Act. OHS reps are entitled to access a wide range of information under the OHS Act.
- Section 58(1)(a)(ii) of the Occupational Health and Safety Act (2004) explicitly gives OHS reps the right to IMMEDIATELY investigate "an accident, hazardous situation, dangerous occurrence or immediate risk". Implicitly, this means the employer MUST NOTIFY the rep/s that something has occurred.
- The employer must allow the OHS rep to have access to information on actual or potential hazards [Section 69(1)(a)(i)] AND on the health and safety of members of the DWG [Section69(1)(a)(ii)]
- Furthermore, the medical records of an individual are protected under the Act, unless the individual gives permission (see Sections 69(2)] .
- Even records that would normally be protected under the privacy legislation, or those of a non-employee who may be injured on site, can still be released if requested by the OHS rep. The
Privacy Amendment (Private Sector)Act 2000 allows for this under
Privacy Principle 2: "Use and Disclosure" by stating that disclosure can be made if:
(e) "the organisation reasonably believes that the use or disclosure is necessary to lessen or prevent:
(i) a serious and imminent threat to an individual's life, health or safety; or
(ii) a serious threat to public health or public safety"
If you have any questions about the Privacy Act, call the hotline of the Office of the Federal Privacy Commissioner on 1300 363 992. It also has a website with information, guidance on the National Privacy Principles and access to the full text of the legislation.
Privacy Victoria also has a website and can be contacted on 1300 666 444.
What WorkSafe Victoria says:
The VTHC has also received the following advice on this issue from WorkSafe:
"WorkSafe Victoria's view ... is that the various privacy laws, both Commonwealth and Victorian, do not prevent health and safety representatives' access to information, or issues being discussed at health and safety committee meetings. WorkSafe's view is that Section 31(3) provides adequate protection for privacy in relation to employees' medical details."
Note: Section 69(2) of OHS Act provides that an employer can only supply medical information to an OHS rep in a form which does not identify an individual worker UNLESS that worker has consented. OHS reps need to make sure that members of their designated work groups provide their consent.
What to do...
If you are having similar problems in your workplace, raise the issue at the OHS Committee level to establish a formal protocol on notifying reps immediately in the event of an accident, dangerous occurrence, etc, and to guarantee access to information as provided for in the OHS Act.
Make sure you also contact your union to keep them informed of what has been going on in your workplace and for further information and advice.
Last updated June 2015