Work Health and Safety Amendment (Penalties and Engineered Stone and Crystalline Silica Substances) Regulations 2024 - Concluded Matters [2024] AUPJCHR 74 (10 October 2024)

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Parliamentary Joint Committee on Human Rights

FRL No.	F2024L00766
Purpose	This regulation amends the Work Health and Safety Regulations 2011 to increase monetary penalty levels; prohibit the use of engineered stone benchtops, panels and slabs; and regulate the processing of materials containing crystalline silica.
Portfolio	Employment and Workplace Relations
Authorising legislation	Work Health and Safety Act 2011
Disallowance	15 sitting days after tabling (tabled in the House of Representatives on 25 June 2024 and in the Senate on 26 June 2024. The disallowance period ended in the House on 9 September 2024 and in the Senate on 10 September 2024)^[181]
Rights	Right to just and favourable conditions of work; health; privacy

2.190 The committee requested a response from the minister in relation to the instrument in Report 7 of 2024.^[182]

Disclosure of worker health monitoring reports

2.191 The regulations amend the Work Health and Safety Regulations 2011 (WHS Regulations) to require an employer to provide health monitoring for all workers carrying out the processing of a crystalline silica substance (CSS) that is high risk in accordance with the health monitoring duties outlined in the WHS Regulations.^[183] CSS is found in sand, stone, concrete and mortar and is used to make products including engineered stone (used to fabricate kitchen and bathroom benchtops).

2.192 The WHS Regulations require an employer to: provide for health monitoring by a medical practitioner; obtain a health monitoring report; and give the health monitoring report to the worker, regulator and relevant employers who have a duty to provide health monitoring for the worker.^[184]

2.193 The health monitoring report must include the following information in relation to a worker:

2.194 An employer must also ensure that health monitoring reports in relation to a worker are kept as a confidential record identified as a record in relation to the worker and held for at least 30 years after the record is made.^[185]

2.195 The statement of compatibility explains that health monitoring is undertaken to detect the early signs of adverse health effects, help identify control measures that are not working effectively, and assist in protecting workers from the risk of exposure to silica dust.^[186] Further, in undertaking risk assessments for any processing of CSS, employers must also have regard to the results of any relevant health monitoring previously undertaken at the workplace,^[187] and previous incidents, illnesses or diseases associated with exposure to respirable crystalline silica at the workplace.^[188]

2.196 The regulations also prohibit the use, supply and manufacture of engineered stone in the Commonwealth work health and safety jurisdiction.^[189]

Summary of initial assessment

Preliminary international human rights legal advice

2.197 Insofar as the measure requires the health monitoring of workers carrying out the processing of a CSS that is high risk, and the disclosure of information to the regulator and employers to ensure monitoring, compliance and enforcement activities can be undertaken for the health and safety of workers, this measure would promote the rights to just and favourable conditions of work and the right to health. The right to just and favourable conditions of work includes the right to safe working conditions,^[190] and the right to health is the right to enjoy the highest attainable standard of physical and mental health.^[191]

2.198 However, by requiring the provision of personal health information and permitting the use and disclosure of that personal information, this measure also engages and limits the right to privacy. The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information.^[192] It also includes the right to control the dissemination of information about one’s private life. The right to privacy may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

2.199 Protecting workers from health risks at work is a legitimate objective for the purposes of international human rights law, and gathering and using health information in the context of regulating exposure to a health risk appears to be rationally connected to (that is, capable of achieving) that objective. In order to be proportionate, a limitation on the right to privacy should only be as extensive as is strictly necessary to achieve its legitimate objective and must be accompanied by appropriate safeguards. It is not clear whether a worker would be informed that their health monitoring report has been shared with the regulator or other relevant employers. It is also unclear whether individual health information needs to be shared with the regulator and employers in order to achieve the stated objective. Further, it appears that a report could include other health information relating to the worker that may be relevant to assessing whether the worker has contracted a disease (for example, comorbidities that are otherwise unrelated to CSS exposure). It is unclear whether reports can be anonymised or redacted before being provided to the regulator and employers or, if not, why it is necessary to provide individual health information in all circumstances. Further, where the Privacy Act 1988 does not apply, the explanatory materials do not identify what safeguards would protect the confidential health information of a worker.

Committee’s initial view

2.200 The committee noted that the regulation requires health monitoring for all workers carrying out the processing of a crystalline silica substance (a substance used to make products including engineered stone) where that is high risk. The committee considered that this is an important measure that promotes the rights to just and favourable work conditions and the right to health.

2.201 However, the committee considered that disclosing health monitoring reports (including a worker’s personal health information) to the regulator and employers, engages and limits the right to privacy. The committee noted that the health monitoring framework to which this regulation applies (the Work Health and Safety Regulations 2011) was established prior to the committee’s establishment, meaning that the committee has not assessed its human rights compatibility as a whole.

2.202 The committee considered that further information was required to assess the proportionality of the measure with the right to privacy, and as such the committee sought the minister’s advice.

Minister’s response^[193]

Providing anonymised or redacted health information would undermine the effectiveness of health monitoring. As well as identifying issues with controls at a workplace, health monitoring is intended to support a person conducting a business or undertaking (PCBU) to put in place safety arrangements that a worker with identified health conditions needs.

This process is detailed in the Model Health Monitoring Guide for Crystalline Silica (The Guide) which has been developed by the national work health and safety (WHS) policy body Safe Work Australia to support PCBUs to comply with the WHS laws. The Guide outlines that following the receipt of a health monitoring report, a PCBU must consult with the worker and explain any recommended remedial measures they must take. For example, removing the worker from continuing to perform silica work or implement additional control measures. It is not appropriate for the health monitoring reports to be anonymised or redacted as a PCBU needs to know the worker's identity and details of the tasks performed to protect that worker.

The Guide also outlines that a PCBU should consult with the worker if they need to do further health monitoring, this is not possible without knowing the identity of the worker. The Guide further outlines that a PCBU should also examine their work practices and procedures to see if tasks are being done correctly and if controls are not effective or being bypassed. If necessary, they should review and revise worker training programs.

In terms of disclosure of personal information to the regulator, compliance and enforcement activities would also be undermined if the report is anonymised or redacted. For example, it may be necessary for the regulator to interview the worker or to inspect training records at the workplace.

Regulation 374(2) provides that certain information must be included in ahealth monitoring report. If the mandatory information is provided, there would be scope for a worker to request that other information not be disclosed in the report or be subject to limited disclosure.

The information which is specified in regulation 374(2) is the information which is required to manage WHS risks associated with exposure to hazardous chemicals. For example, a clear indicator that controls at a workplace have failed is that a worker has contracted an occupational disease. It is important that the health monitoring report includes this information and that it is available to the PCBU and relevant regulator.

If the Privacy Act 1988 (Cth) does not apply, section 271 of the model Work Health and Safety Act which has been adopted by all jurisdictions, except Victoria, would apply. This section safeguards against a person, for example a regulator, disclosing information or documentation they gained access to when exercising any power or function they have under the WHS laws, unless a limited exception exists. The limited exceptions having consent of the person, the information is necessary for monitoring and enforcement purposes, required by a court or tribunal etc.

Further, some states have health records legislation which may apply to certain workers in the private and public sector. For example, New South Wales has the Health Records and Information Privacy Act 2002 which applies to public government agencies, universities, private organisations, health service providers or businesses (with a turnover of more than $3 million) which collect, hold or use health information.

Concluding comments

International human rights legal advice

2.205 The minister stated that it is necessary for a person conducting a business or undertaking (PCBU, namely, an employer) to receive identifiable health monitoring information about their workers, in order to support the employer to put in place safety arrangements for the worker. The minister stated that the Model Health Monitoring Guide for Crystalline Silica (the guide) provides further detail as to the process by which health monitoring activities must be undertaken.^[194] The minister stated that the guide outlines that after an employer has received a health monitoring report they must consult with the worker and explain any recommended remedial measures they must take, including any further health monitoring. The health monitoring report template sets out a substantial amount of personal health information which is to be collected by a medical practitioner (including questions about a wide range of prior medical conditions, prior smoking, and the worker’s views about the adequacy of dust control and safety measures at prior workplaces). However, it appears that only a limited section of the report (the results of a chest x-ray and spirometry and related recommendations) is provided to a person’s employer (and any associated employer), and only where the report has indicated that the worker may have contracted a disease or includes recommendations for remedial measures.^[195] This limited disclosure of personal medical information assists with the proportionality of the measure.

2.206 As to whether there is any flexibility for individual workers to request that certain information not be disclosed, or only be subject to limited disclosure, the minister stated that the information set out in subsection 374(2) must be disclosed. This includes the worker’s name, date of birth, any test results indicating whether the worker has been exposed to a hazardous chemical, and whether medical counselling is required for the worker in relation to the work that triggered the requirement for health monitoring. The minister stated that the regulator must receive identifiable health monitoring information in order to oversee compliance with the obligation to monitor the health of workers, and to undertake enforcement activities. As only a narrow scope of personal health information is to be provided to the regulator (as set out in the guide identified by the minister), and noting that a report will only be provided where it has indicated that the worker may have contracted a disease or includes recommendations for remedial measures, it would appear that a no less rights restrictive alternative approach would be effective to achieve the stated objective.

2.207 The minister stated that if the mandatory information is provided ‘there would be scope for a worker to request that other information not be disclosed in the report or be subject to limited disclosure’. While this may have safeguard value, the process described by the minister would appear to place the burden on a worker to actively request that certain information not be disclosed by their medical practitioner – a process which would rely on the worker knowing that they could make such a request. However, the health monitoring report template set out in the ‘Health Monitoring Guide for crystalline silica’ published by Safe Work Australia, clearly distinguishes between pages of the report which are to be provided to an employer (the contact details of relevant parties and whether a chest x-ray and other tests have returned normal or abnormal results), and the pages to be retained by the medical practitioner (the worker’s detailed medical and working history).^[196] This suggests that, in practice, registered medical practitioners are made aware that the detailed medical information about a worker’s other health conditions and general health is not to be provided to the employer without the worker’s consent. This assists with the proportionality of the measure.

2.208 As to the legislative safeguards which would protect a person’s privacy where the Privacy Act 1988 does not apply, the minister stated that section 271 of the model Work Health and Safety Act would apply (in all jurisdictions other than Victoria, where it has not been adopted).^[197] Section 271 provides for the confidentiality of information (and outlines a civil penalty or offence for breach), subject to a several exemptions.^[198] This assists with the proportionality of the measure where that model law applies. However, it is unclear what privacy safeguards would operate in Victoria, where this model law has not been adopted. The minister stated that some states have health records legislation which may apply to certain workers, citing one such example in New South Wales. However, the minister did not particularise any further such legislative frameworks. The existence of other privacy requirements may assist with the proportionality of this measure. However, without the specific details of those additional legislative safeguards it is not possible to conclusively assess their safeguard value.

2.209 On balance, however, based on the additional information provided by the minister, it appears that this measure likely constitutes a proportionate limit on the right to privacy.

Committee view

2.211 The committee notes that, while there is no flexibility for a worker to request that health information related to exposure to crystalline silica substance is not to be provided to their employer or to the regulator, only a narrow scope of information that is directly related to such exposure is required to be provided to an employer (and then, to the regulator). The committee considers that, based on the Model Health Monitoring Guide for Crystalline Silica identified by the minister, a medical practitioner would appear to be made aware that any additional medical information about a worker who has been referred for a health monitoring report is only to be provided to their employer with their consent, and is not otherwise required to be provided. The committee considers that this assists with the proportionality of the measure. The committee further considers that it does not appear that there would be a less rights restrictive means by which to achieve the objective of the measure.

2.212 As to safeguards, the committee notes the minister’s advice that where the Privacy Act 1988 would not apply to the protection of personal information, other legislative safeguards would apply. The committee considers the statement of compatibility should identify what other state-based legislative safeguards may apply in each relevant jurisdiction, as this information would facilitate a conclusive assessment of that legislation’s safeguard value with respect to the right to privacy.

2.213 The committee considers that, on balance, and having regard to the additional information the minister outlined, this measure likely constitutes a proportionate limit on the right to privacy. The committee notes that, had the statement of compatibility included the additional information outlined by the minister, the committee would not have sought further information in relation to this legislative instrument.

Suggested action

2.214 The committee recommends that the statement of compatibility be updated to reflect the information provided by the minister, and to particularise the state and territory legislative measures which would protect the confidentiality of a worker’s health monitoring report in circumstances where the Privacy Act 1988 does not apply.

2.215 The committee considers that its concerns have therefore been addressed, and makes no further comment in relation to this legislative instrument.

^[180] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Work Health and Safety Amendment (Penalties and Engineered Stone and Crystalline Silica Substances) Regulations 2024, Report 9 of 2024; [2024] AUPJCHR 74.

^[181] In the event of any change to the Senate or House’s sitting days, the last day for the notice would change accordingly.

^[182] Parliamentary Joint Committee on Human Rights, Report 7 of 2024 (21 August 2024), pp. 50–54.

^[190] See, UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005) [2].

^[191] International Covenant on Economic, Social and Cultural Rights, article 12(1).

^[193] The minister’s response to the committee’s inquiries was received on 5 September 2024. This is an extract of the response. The response is available in full on the committee’s website.

^[195] See, the template Health Monitoring report at pp. 14–27 (Health monitoring for crystalline silica | Safe Work Australia ). The first section of the report template (pp. 14–17) states that a copy of that section should be provided to the employer. The second section of the report template (pp. 18–27) indicates that it should be retained by the medical practitioner.

Australian Parliamentary Joint Committee on Human Rights