1.2.9 Provide information to WIC Dispute resolution & litigation

Agents must produce all documents in their possession, custody or control and must disclose all information to the Conciliation Officer or Arbitration Officer that is reasonably available to them unless privilege or immunity applies to prevent producing that document or disclosing the information.

Privilege of immunity

The privilege of 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 tend to incriminate that person:

  • against self-incrimination in criminal matters
  • against self-exposure to a civil or administrative penalty and
  • against self-exposure to the forfeiture of an existing right.

The privilege applies to protect and/or avoid placing a person in a position where they will be exposed to punishment or penalty whether they tell the truth, lie or refuse to provide information. It applies to criminal, civil and administrative proceedings.

Accordingly, subject to a claim of privilege or immunity, documents and information relevant to the dispute, including names of individuals and other identifying information contained in circumstance investigation reports must be produced to a Conciliation Officer.

Conciliation Officers or Arbitration Officers may make available to other parties, any documents or information provided. The covering letter to the WIC Workcover Injury Commission should highlight documents that contain confidential personal and/or health information and must be dealt with in accordance with the WIRC Act Workplace Injury Rehabilitation & Compensation Act 2013 and privacy laws.

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 at conciliation, in response to an initial notice of conciliation or request by WIC to produce documents, it must delete other individuals’ personal and sensitive information and any information which is not relevant to the dispute. A copy of the documentation must also be provided to WIC.

Agents should carefully review conciliation notices and requests to ensure that they provide only documents which are relevant to the dispute. Reports are not 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 or
  • impact on the privacy of others - see: Personal affairs or
  • disclose information covered by protected disclosure (formerly whistleblower protection) laws or
  • be subject to legal professional privilege or
  • be subject to public interest immunity (e.g. circumstances where the public interest against disclosure outweighs the need for disclosure to ensure justice in a particular case).

If reports are withheld from the worker, the Agent must advise the Conciliation Officer or Arbitration Officer which documents have been withheld or edited and why, as soon as possible.


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Competing legal requirements of non-disclosure

Some situations where information might be disclosed include:

  • voluntarily by WorkSafe or Agents where disclosure is necessary for the performance of its official duties or by Agents when exercising a function or power on behalf of WorkSafe
  • voluntarily in specific circumstances outlined in the WIRC Act
  • by consent (whether express or implied)
  • where required or authorised by or under law
  • where compelled to produce information by virtue of the statutory powers of other bodies.

For exampleClosed Victoria Police, State Revenue Office, ATO.

Relevantly, secrecy provisions do not preclude a person from producing a document or divulging information:

Disclosure of a document or information to a Conciliation Officer or Arbitration officer in compliance with a notice or a request or by direction about a dispute under the WIRC Act, would therefore be lawful.

Privacy laws

Agents will not be in breach of the privacy principles if they provide a document or information in compliance with a WIC notice or request.

The privacy laws require that personal information only be used in line with the primary purpose for which it was collected or otherwise by consent. However, personal information may also be used or disclosed for a related secondary purpose or where disclosure is ‘required or authorised by or under law’ (i.e. where there is a legal obligation to use or disclose personal information in a particular way), such as in line with the WIRC Act for conciliation purposes.

See: Privacy and Data Protection Act 2014

Agents must carefully review any notices lodged with Conciliation or Arbitration, or additional requests from WIC to ensure they provide only documents which are relevant to the dispute.

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Serious threat to life or health

If information to be disclosed poses a serious threat to the life or health of the person seeking access to that information, the Agent should refer to the guidelines contained in Serious threat to life or health and advise the Conciliation Officer, as soon as possible, of its decision to claim the exemption. Any information provided to the Conciliation Officer must be marked ‘Confidential – Health Information’.

Legal professional privilege

Legal professional privilege may be legitimately claimed for any document or information subject to a Conciliation Officer’s notice or request.

Consider the following to determine whether or not to disclose the information requested:

  • privilege is a common law right based on important public interest considerations and public interest factors of a high order are required to override the privilege
  • there is no provision in the WIRC Act expressly overriding or limiting legal professional privilege in disputes arising under the WIRC Act
  • the privilege protects confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in court proceedings
  • privilege in a communication or document is waived (ie lost) if the effect of the legal advice it contains is revealed to someone other than the client in circumstances which are not consistent with maintenance of the privilege.

If the information or documents subject to a Conciliation Officer’s notice or request is subject to legal professional privilege, Agents:

  • are entitled to withhold the privileged information or document or produce an edited version of a document if practicable (eg a file note) by deleting the privileged information
  • explain to the Conciliation Officer at the earliest opportunity of its decision to claim legal professional privilege and the grounds in support of its decision to protect the privileged information from disclosure
  • must obtain prior written approval from WorkSafe’s Agent Performance & Relationships Division before any decision is made to disclose or waive privileged information.
Dispute arising from access to information

If a dispute at conciliation relates to the Agent’s decision to exempt information or documents, Agents are entitled to defend their decision to exempt documents.

If a conciliator indicates that a direction might be issued to release exempt documents or information, Agents should consult their legally qualified staff. Dispute resolution & litigation

Workplace Injury Rehabilitation & Compensation Act 2013

Any dispute and/or litigation arising under s9 of the WIRC Act is to be managed by the Agent.

Privacy & Data Protection Act 2014 & Health Records Act 2001

Any complaint or appeal, including conciliation, arising under privacy laws are managed by the Agent subject to the complaint.

Agents are required to notify and keep WorkSafe informed of developments in line with privacy complaint handling processes.

See: Privacy

WorkSafe may use its discretion to take over litigation where/if a complaint or proceeding impacts upon scheme-wide or strategic issues or policies. Agents are required to assist and cooperate with WorkSafe.

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