Hi Renata – What are my employers’ obligations to notify an HSR of an injured employee within their DWG?
Thank you for your query about the right of HSRs to be notified on an injured worker within a DWG. I am going to assume you mean notification of an injury occurring which is an OHS question, as opposed to someone being placed into your team on modified duties, which is more of a workers' compensation question.
There is nothing in the OHS Act that explicitly requires an employer to proactively notify HSRs of workplace injuries. There are, however, sections of the OHS laws you can use to be more involved following an incident.
Under s.69 of the OHS Act, employers are obliged to:
- Share information about actual or potential hazards affecting their DWG
- Allow HSRs access to information in their possession relating to the health and safety of DWG members (with appropriate privacy considerations)
There have been two recent case decisions on s.69 about HSRs trying to access the names of people who have made incident reports:
- Griffiths v Victorian Workcover Authority- WorkSafe Victoria (Review and Regulation) [2021] VCAT 561
- KDR Victoria Pty Ltd t/as Yarra Trams v Victorian Workcover Authorityt/a WorkSafe Victoria (Review and Regulation) [2024] VCAT 659
In short (and subject to the medical information exception in s.69(2) and legal professional privilege – but this is a whole other issue) simply arguing that the identity of the person who submitted an incident report is private is unlikely to be successful.
The limitation of this section is that it requires you to know about an incident to be able to ask for information about it! Therefore, you should think about this in combination with s.35 of the OHS Act (and r.21 of the OHS Regulations). Employers have a duty to consult with HSRs when:
- identifying or assessing hazards or risks to health or safety at a workplace under the employer's management and control or arising from the conduct of the undertaking of the employer
- making decisions about the measures to be taken to control risks to health or safety at proposing changes, that may affect the health or safety of employees of the employer
- proposing changes, that may affect the health or safety of employees of the employer
It is good practice (and under certain regulations it is required) as part of the risk management process to review controls and make changes as necessary to prevent future incidents. As soon as this process commences, under s.35 of the OHS Act, there is an obligation to consult which means de facto you find out about the injury that spurred the review.
Finally, if the incident was notifiable, there is a concrete duty to notify HSRs under s.38 of the OHS Act.
If you are concerned that HSRs are being frozen out of this process, in addition to any direct conversations you may have, I encourage you to discuss with other HSRs about putting this on the agenda for an OHS Committee. Per s.73 the functions of the Committee include:
- to facilitate co-operation between the employer and employees in instigating, developing and carrying out measures designed to ensure the health and safety at work of the employees; and
- to formulate, review and disseminate (in other languages if appropriate) to the employees the standards, rules and procedures relating to health and safety that are to be carried out or complied with at the workplace.
You could propose an internal process to make sure HSRs don’t miss out on information about workplace injuries and incidents that affect members of their DWG.