In an extremely important case, VCAT last week upheld the right of HSRs to information and confirmed that HSRs have a key, not marginal, role in the workplace.
The case, brought by WorkSafe to VCAT, involved a dispute regarding the information that the employer, Yarra Trams. should have provided to a HSR of a designated work group (DWG) in relation to a health and safety incident. The incident occurred at a crowded tram stop when a passenger verbally abused and spat on two Yarra Trams Authorised Officers (AOs). The passenger struck the second AO when he tried to protect the first one. Yarra Trams’ position essentially was that under privacy legislation and company policies, it was prohibited from providing the names of the employees involved without their consent. The HSR’s position was that his employer had an obligation to do so under s69(1)(a) of the OHS Act.
The case considered the competing interests of the employer's obligations under the OHS Act to provide information to the HSR with its obligations under the privacy legislation.
In its decision VCAT noted that Parliament expressly imposed a pre-condition of consent in section 69(2) - access to medical information - but did not do so in section 69(1)(a) when it could easily have done so. This supported the conclusion (reached after considering the OHS Act as a whole and the privacy legislation and other considerations) that section 69(1)(a) does not require the employee’s consent before the employer provides the employee’s personal information (the employee’s name) to the HSR as part of the information that the HSR is entitled to under section 69(1)(a).
Mr J Billings, VCAT Senior Member, said, "I conclude by saying that, as I interpret the OHS Act, the role of a HSR under the Act is not a marginal role. It is a key role."
This decision confirms and adds weight to the 2021 Griffiths case.
Congratulations to Michael Jandula, the brave HSR who sought the information as well as the RTBU and WorkSafe for taking up this issue.
Access VCAT’s decision here. Read more: OHS Rights; Privacy legislation and HSRs
