Hi Renata – Last week we had a serious near miss incident involving chemicals that were incorrectly labelled. Had the incident played out it had the potential to result in a fatality. As part of my investigation, I have asked to see a training compliance report to ensure that all DWG members are up to date with chemical training. My manager refused to provide this information, claiming that it is a breach of privacy.
Under s.69 of the OHS Act, your employer is 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 relating to personal medical information)
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 Authority t/a WorkSafe Victoria (Review and Regulation) [2024] VCAT 659
Although you are requesting a report of the required training completions rather than requesting an unredacted copy of an incident report, the principles are the same. 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 people who have/have not completed training is private is unlikely to be successful, and in fact, may be detrimental to the investigation of the chemical handling/storage incident.
In responding to the report of a serious chemical handling/storage incident, your employer should be consulting with you as the DWG HSR – such consultation would involve providing you with all of the relevant information. WorkSafe’s publication Guide to Part 7 - Employee representation handbook for workplaces includes a plain language guide for employers on all things relating to employee representation and consultation. When consulting an HSR, employers must:
- Share information with the HSR about the OHS matter - for consultation to be meaningful, employers must share all relevant matters involving employees’ health and safety with employees and HSRs. This information should be provided in a timely way so that the employees and HSRs have adequate time to consider the matters, discuss them and then provide feedback to their employer.
- Give the HSR a reasonable opportunity to express their views about the matter -
- Take the HSRs views into account
If your employer’s version of ‘consultation’ does not align with the guideline above, you may want to request that the consultation process begin again. You can formally request consultation using our Consultation Email. And don’t forget to keep a record of everything – you can use our Record of Consultation, or the Checklist for health and safety consultation | WorkSafe Victoria version which is designed for employers and includes prompts to remind them of what good consultation looks and sounds like.
If your employer continues to push back on your request to view training records relevant to an OHS hazard that affects your DWG members, I recommend contacting UWU directly for support and guidance in escalating the issue for resolution.
If you have any questions about OHS we encourage to fill out an Ask Renata query and one of our officials will get back to you shortly. Alternatively give Ask Renatabot a try!