7.3.5 Prepare for conciliation
No later than three working days before conciliation, the Case Manager and/or the Technical Manager The Technical Manager liaises with Case Managers, employers, workers and legal providers to support the management of a workers' compensation claim./IMA Injury Management Advisor along with the representative attending conciliation, review and discuss the merits of the dispute. The information considered must include additional information provided by the worker and identify whether:
- any new information raises additional issues
- the decision is appropriate in light of the new evidence
- there are any gaps in the worker’s information/arguments, for example doctor’s reports or radiology reports
- the dispute raises any unique or scheme sensitive issues and whether legally qualified Agent staff or WorkSafe need to be involved
- the Agent should contact the employer to discuss the matter and strategy before the conciliation conference.
If the review finds there is no reasonable prospect of successfully maintaining the decision should the matter proceed to Court and/or the initial decision was not made in accordance with the legislation, the decision should be withdrawn before the conference and all parties advised in writing.
If the Agent identifies relevant information the worker did not provide, the Agent should contact the Conciliation Officer and request that the relevant documentation be obtained by the Conciliation Service. If the worker intentionally withholds information the Agent should request that the relevant documentation is obtained by the Conciliation Service.
Note: Public holidays are excluded in the calculation of relevant timeframes.
The Agent should be fully aware of any other claim related issues which are not the subject of the conciliation conference but which may affect the outcome of the conference. This may include issues that are the subject of litigation or are being managed by a legal panel firm.
If the worker is represented, the Agent must actively participate in discussions with that representative before conciliation to attempt to resolve the dispute and avoid unnecessary conciliation.
The role of legally qualified Agent staff is to provide support to representatives attending the conciliation conferences and any additional support and advice where difficult issues arise that cannot be addressed by a suitably qualified person (technical).
Discuss claim with employer
Additionally, the Agent is to contact the employer to discuss the claim and the dispute so that the appropriate employer representative with the proper decision-making authority and knowledge of the particular workplace attends the conference. The Agent is to then notify the WIC Workplace Injury Commission at least three days before conciliation of the name and position of the Employer representative attending the conference to allow the parties to prepare for conciliation.
Note: Public holidays are excluded in the calculation of relevant timeframes.
Privilege against self-incrimination
A party to a dispute at conciliation must produce all documents in their possession, custody or power and disclose all information to the Conciliation Officer that relate to the dispute and are reasonably available to them unless they claim privilege or immunity from producing that document or information.
The privilege or immunity is a common law privilege against self-incrimination. It entitles a person to refuse to answer a question or to produce a document, if the answer or the document would incriminate that person against:
- self-incrimination in criminal matters
- self-exposure to a civil or administrative penalty
- self-exposure to the forfeiture of an existing right.
The privilege applies to protect and/or avoid putting a person in a position where the person will be exposed to punishment or penalty whether they tell the truth, lie or refuse to provide the information. It applies to criminal, civil and administrative proceedings.
Privacy
Agents must use their discretion when supplying copies of medical and circumstance reports. Where an Agent releases information directly to a worker who is a party to a dispute they must delete other individuals’ personal and sensitive information and information not relevant to the dispute. A copy of this document must also be provided to WIC.
Agents should carefully review any Conciliation notices and requests to ensure they provide only relevant documents to the dispute. The reports should not be provided to the worker or their representative if it would:
- pose a serious threat to the life or health of someone
See: Serious threat to life or health - impact on the privacy of others
See: Provide information to WIC - be subject to legal professional privilege
- be subject to public interest immunity (eg protect identity of confidential informers or in circumstances where the public interest against disclosure outweighs the need for disclosure to ensure justice in a particular case).
See: Access to Information & Privacy
If reports are withheld from the worker, the Agent must advise the Conciliation Service at the earliest opportunity which documents have been withheld or edited and why.
Note: The Agent must still provide these documents to the Conciliation Service.