Some Questions About Section 107B
Published: 14 October 2011
Under section 107B of the Workers Rehabilitation and Compensation Act 1986 a compensating authority must at the request of a worker provide the worker with copies of all documentary material and make available for inspection by the worker all non-documentary material that is in the compensating authority’s possession and relevant to the worker’s claim. The exception to this is material that is either relevant to the investigation of suspected dishonesty in relation to a claim or protected by legal professional privilege.
I have jurisdiction to investigate complaints about compliance with section 107B of the Act and from time to time I am asked by compensating authorities for my view on the scope of their obligations under the section.
When I give answers to questions about section 107B I approach the issues from two different perspectives. The first is the legal perspective: what does section 107B mean legally? The second is the complaint handling perspective: what approach will I take if someone complains to me about the way section 107B is being applied by a compensating authority? As an example of this two-fold approach I recite my answers to some questions I have answered earlier this year.
Q. Does section 107B require the compensating authority to provide documents that the worker has sent to the compensating authority such as e-mails?
A. If you mean emails that the worker has sent to the compensating authority relating to his claim, then the answer is Yes. If emails are in hard copy form, section 107B would require them to be copied and provided to the worker even though the worker was the author of them. If the emails are not in hard copy form, section 107B would require the worker to be given access to a computer monitor where he or she could look them up.
If a worker complained to me about a compensating authority not providing copies of his or her own emails that he or she sent to the compensating authority, I would want to know the significance of the emails from the worker's perspective and whether the worker has retained copies of them before deciding whether to investigate the complaint or not. I will not ordinarily investigate a complaint if it raises a trivial or frivolous issue even if the complainant is legally in the right.
Q. If a worker’s claim file includes copies of statements provided by other workers in the investigation of a claim, is the injured worker able to request copies of those statements even is it is going to cause further conflict in the workplace and the person providing the statement has requested their statement not be released to the injured worker? Is this legally privileged information? Is there an argument under OHS to protect the other workers who have provided the statements?
A. Section 107B would require the disclosure of witness statements relevant to a worker's claim regardless of whether their release will cause further conflict or the person providing the statement has requested that the statement not be released. The only exception to this is section 107B(3) where the statement is relevant to the investigation of suspected dishonesty in relation to a claim or it is protected by legal professional privilege. A statement is not protected by legal professional privilege if it is obtained for the purpose of investigating and determining the claim: see Bawden (Sup Ct unreported, delivered 21 December 1995 S5405) and Treleavan [1998] SAWCT 17. In fact, generally speaking, statements will not be covered by legal professional privilege until after the completion of the conciliation stage in the Tribunal. Therefore, as a matter of good practice, witnesses should not be advised that their statements will be kept confidential from the worker because the law does not support this. In my view, OHS considerations are not a basis for non-disclosure under section 107B. The exceptions in section 107B(3) are specific and complete. OHS is not one of them.
If I receive a complaint about witness statements not being provided under section 107B, I will seek an explanation from the compensating authority. My concern is not so much with the legalities but with what is reasonable. If the reason for non-production of the statement is due to OHS considerations, I will require good evidence of how the release of the statement is likely to impact on other employees. One possible outcome is that I may direct that the statement be released with certain sensitive sections blacked out.
Q. Where should the line be drawn between absolute compliance of disclosing every document on file and resisting fishing expeditions or being requested to disclose all documents?
A. Legally, section 107B does not allow you to draw the line other than by reference to what is relevant to the worker’s claim and the exception in section 107B(3). However, my approach to a complaint about compliance with section 107B is to look at what is reasonable in the particular situation. Of importance to me is the significance of particular documents to resolving an actual concern or issue and what access the worker has already had to relevant documents. I would not support a worker's mere curiosity or desire to simply cause more work for the compensating authority’s staff. I will also weigh up the level of work involved for the compensating authority to retrieve documents as against the benefit that might be achieved by the disclosure. These are some of the factors I take into account.
Anyone with a question about the way section 107B is applied is free to contact my Office for advice. In addition, an injured worker who is dissatisfied with a compensating authority’s compliance with section 107B may lodge a complaint with my Office.