Hi Renata – In the minutes of our last Health and Safety committee meeting it say "HSR’s are entitled to de-identified incident reports if a staff member approves this".
If the staff member doesn't approve it, is it a breach if the HSR is not notified of the incident? How can the HSR use their powers if they are not informed about the incident?
I want to bring this up with my management, but I want to confirm if I have the rights to the information of any incident/hazard/near miss. I feel they will keep saying “the staff member didn't approve it”, therefore keeping the HSR in the dark.
As an elected HSR you have the power, under section 58 of the OHS Act, to enquire into any matter than poses a risk or potential risk to members of your DWG.
In addition, under section 69(1)(a), your employer has a duty to 'allow an HSR access to information the employer has relating to actual or potential hazards.' (our paraphrasing)
Using these rights and powers we encourage you to request the information you seek in writing, noting it's always a good idea to keep your DWG in the loop and secure their endorsement. We have a request for consultation email that you may find helpful here Pro-Forma Email Consultation - OHS Reps.
Should your request not result in prompt provision of the information you require, we encourage you to contact your union for assistance.
The wording should be simple, for example: ‘My employer refuses to hand over OHS records they have about actual or potential hazards affecting my DWG.’
Section 69 of the OHS Act states:
(1) An employer, any of whose employees are members of a designated work group, MUST
(a) allow a health and safety representative for the designated work group to have access to information that the employer has relating to—
(i) actual or potential hazards arising from the conduct of the undertaking of the employer, or the plant or substances used for the purposes of that undertaking; and
(ii) the health and safety of the members of the designated work group, or persons mentioned in section 44(1)(e) or 48(1)(e) whom the health and safety representative is authorised to represent
Even if certain details in the information were to be considered private, the OHS Act expressly places restrictions on HSRs regarding how this information might be used, specifically at section 58.
The Act also carves out an express exclusion for the sharing of certain medical information in section 69(2). Once the preconditions set out in section 69(1)(a)(i) and (ii) are met, and subject to s.69(2), the employer MUST share the information they have with the HSR. This is demonstrated by the VCAT decisions in the Jandula v Yarra Trams case and the Griffiths v Workcover (WorkSafe) case.
You and your designated work group members have a right to be represented in the resolution of OHS matters - Part 7 of the OHS Act covers representation matters. If you do not have all the relevant information (i.e. access to every hazard reported), then you cannot properly represent those workers who elected you.
When a matter that affects or is likely to affect the health and safety of employees is identified your employer has a duty under the OHS Act to consult with employees, and where possible, with their employee HSRs. The employer should conduct a risk assessment of identified hazards and involve the HSR in that risk assessment process and in the process of identifying and implementing controls.
The details of what matters must be consulted on, and when, are clearly defined in s.35 of the Act. You can find information about consultation on our OHSReps page Duty to consult - OHS Reps, including links to WorkSafe Victoria’s consultations advice and a link to our Record of Consultation form so that you can keep a clear record of who said what and what was agreed.