I'm getting resistance from my employer when I try to gather information about hazards at work. My boss claims the documents in question are protected by 'legal privilege'. What does this mean, and how does legal privilege impact my employer’s obligations under our OHS Act?
There are two types of legal privilege:
Advice privilege: confidential communication providing legal advice.
Litigation privilege: confidential communications about current or anticipated litigation.
Section 69 of our OHS Act requires employers to provide certain information to HSRs regarding workplace hazards and employee health and safety. However, there's uncertainty about whether this obligation extends to privileged information.
If an employer refuses to provide information, an HSR can issue a PIN, leading to an investigation by a WorkSafe Inspector. However, an Inspector cannot override a claim of legal privilege; only a court can decide on that.
Given that WorkSafe cannot order the employer to produce information or documents over which the employer is claiming privilege, the most fruitful pathway for an HSR may be to discuss the employer’s privilege claim and seek further clarification, leading the employer to re-evaluate the extent of their claim.
HSRs should ask employers for:
- The title, author, and date of the document(s) over which the claim is made.
- The person or entity asserting the claim.
- Whether privilege is claimed over the whole or part of the document.
- The category of privilege being claimed.
- The grounds on which LPP is claimed.
- If LPP is claimed over more than one document or communication, the HSR can ask for these items to be scheduled, and each of the particulars above provided for each item.
Avoid asking for the contents of a document when requesting details of a privilege claim. Instead, encourage the employer to involve their legal representative when discussing the privilege claim if they’re concerned about inadvertently waiving privilege.
The answers to these questions will set you up to have productive conversations with WorkSafe and others about the validity of the LPP claim.