5.2.3 Consult about RTW
An employer must, to the extent that it is reasonable to do so, consult about the return to work of a worker with:
- the worker
- the worker's THP Treating Health Practitioner, subject to consent of the worker
Note: Where a worker has submitted a claim form with a signed ‘Authority to Release Medical Information and Worker’s Declaration’, this consent has been provided.
- an OR Occupational Rehabilitation provider.
For detailed information about this employer obligation refer to Compliance Code 1 of 4: Providing employment, planning and consulting about return to work.
Consulting includes:
- sharing information about the worker's return to work
- providing a reasonable opportunity for the worker, the worker's THP and the OR provider to consider and express their views about the worker's return to work
- taking those views into account.
Person to assist worker
While an employer must consult directly with the worker, the worker may be represented, assisted and supported during the consultation process. The person who assists the worker can be any person chosen by the worker, except a legal practitioner Legal practitioner means an Australian legal practitioner within the meaning of the Legal Profession Act 2004.
Record consultation
Employers must be able to demonstrate the consultation that they have undertaken or the reasonable efforts they have made to do so. While maintaining written records is not mandatory, compliance with the duty to consult can be easier to demonstrate if written records exist.
Note: Consultation can take a range of forms, such as a telephone discussion, conference, meeting or other activities designed to seek advice and information. Consultation may also take the form of a written exchange of documents.
To the extent reasonable to do so
The way the employer consults and appropriate timeframes will need to relate to the specific RTW Return to Work circumstances. Factors to determine what is reasonable include details:
- about the worker, the nature of the worker’s injury and incapacity
- about the THP, the method of consulting with the THP. THP involvement can vary and the employer may not be able to influence this. As a consequence ‘the extent reasonable’ may be influenced by the THPs degree of participation. Nevertheless, there is scope for employers to take a greater role to provide information to and seek input from the THP.
See: If your worker is injured - A guide for Employers
Agents also have a key role in discussing return to work with the worker, the THP and the OR Provider. In communicating with these parties and in particular with the THP, Agents should work to ensure that appropriate contact is being made and that communications take into account employer consultation activities that are occurring. It will be important to work with the employer and ensure that these contact points do not unnecessarily overlap and impact on the key parties being contacted.
Agents should support the employer in their approach to consultation as needed, providing support and guidance to the employer.