Privacy laws and the rights on health and safety representatives to information
Privacy legislation does not give employers the right to refuse to disclose information to health and safety representatives.
What is privacy legislation?
Both the State of Victoria and the Commonwealth Government have laws which govern how organisations can collect, use and disclose personal information. These laws are the:
- Privacy Act 1988 (Commonwealth),
- Information Privacy Act 2000 (Victoria), and
- Health Records Act 2001 (Victoria).
However, these laws do not mean that employers can refuse to provide information when requested by a health and safety representative, or refuse to allow incidents to be discussed at health and safety committee meetings.
What rights to information do health and safety representatives have?
Section 69(1)(a) of the Occupational Health and Safety Act 2004 gives health and safety representatives the right to access certain information which employers collect. This information may include personal details about people.
Why do health and safety representatives have this right?
The OHS Act gives health and safety representatives the right to request information so that they can represent the interests of their designated work group properly and to help the employer solve health and safety issues and problems as they arise in workplaces.
What information can health and safety representatives have access to?
Health and safety representatives can have access to information about the:
- actual or potential hazards at the workplace
- conduct of the undertaking of the employer
- plant or the substances used in the workplace, and
- health and safety of the employees of the employer.
Can a health and safety representative ask for medical information?
The OHS Act is careful to protect the privacy of employees. Section 69 (2) says that an employer cannot give any medical information about an employee to a health and safety representative unless:
- the employee has agreed, or
- is not identified by the information.
Do the privacy laws affect the rights of health and safety representatives to information under the OHS Act?
No, the rights of health and safety representatives to information are not affected by the privacy laws. The relationship of the OHS Act to each of the privacy laws is explained below.
Information and health and safety committees
Health and safety committees have several functions, including facilitating co-operation between an employer and the employees of the employer in developing and carrying out measures to ensure health and safety at work. Workplace incidents and issues may be considered at committee meetings, and in these circumstances the information should be provided in a way which ensures that employees cannot be identified, unless they have agreed for the information to be discussed.
Privacy Act 1988 (Cth)
The Privacy Act at first affected only Commonwealth government agencies, but on 21 December 2001 it was extended to some private sector organisations. The definition of “organisation” in section 6C of the Act means that many Victorian businesses would not be covered. The Act prohibits use or disclosure of information about an individual. This means that much of the information requested by health and safety representatives may not be affected, as it may not be about an individual, but about hazards, the conduct of the undertaking, plant and substances, and the general health and safety of employees.
Where information requested is about an individual, the Privacy Act will apply, subject to a number of exceptions. One exception is that disclosure may be made if the information is required or authorised by another law. The OHS Act is such a law for this purpose. Therefore, the disclosure of information under section 69 is not prohibited by the Privacy Act, even where that information concerns an individual.
Information Privacy Act 2000 (Vic)
This Act places limits on the way Victorian public sector organisations such as government departments and agencies may deal with personal information. Therefore, it mostly only affects health and safety representatives in public sector organisations.
Once again, however, the Information Privacy Act allows disclosure of information required or authorised by another law, and also says that where it is inconsistent with other legislation, the other legislation prevails. This means that the obligation on employers to allow health and safety representatives access to the information referred to in section 69(1)(a) of the OHS Act 2004 is not affected by the Information Privacy Act.
Health Records Act 2001 (Vic)
This legislation puts limits on how health information as defined in the Act can be handled by both private and public sector organisations. However, like the Information Privacy Act, the Health Records Act permits disclosure of health information required or authorised by another law, and where there is inconsistent legislation, the other legislation prevails to the extent of the inconsistency. Thus health information should be disclosed as it usually would be under the OHS Act. With regard to medical information, the OHS Act requires an employer not to supply any medical information about an employee to a health and safety representative unless the employee has consented, or cannot be identified by the information.
