The Workers’ Compensation and Rehabilitation Act 2003 (the Act) sets out how an employer may seek disclosure of any pre-existing injuries or medical conditions from prospective workers.
Having an employee disclose that they do not have any pre-existing injuries or conditions does not affect the employer’s duty of care and obligation to ensure a safe workplace. Hazards must still be controlled to ensure new injuries do not occur.
It's important for a person conducting a business or undertaking (PCBU) to
- provide an accurate and detailed position description for the vacant position prior to commencing your employment processes
- Ensure your employment processes include a written request to prospective workers to disclose any pre-existing injury or medical condition as this may help when disputing an aggravation claim.
Definitions
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Disclosure of pre-existing injury or medical condition
A prospective employer may request in writing for a prospective worker to disclose any pre-existing injuries or medical conditions that could reasonably be expected to be aggravated when carrying out the inherent duties of the role.
To do this, the prospective employer’s request must outline the nature of the duties the prospective worker would be undertaking, including the environment in which they will occur.
A way to do this could be to issue a detailed position description with a pre-employment disclosure form.
The prospective worker must be able to make an informed decision about each task and/or duties and list all pre-existing injuries or medical conditions that may be aggravated should they perform those tasks and/or duties. For example: A worker would be obligated to disclose that due to a pre-existing injury they are unable to lift over a certain weight.
The detailed written position description and written pre-employment disclosure should have a disclaimer and come with a strong message that any false or misleading disclosure may result in the worker not being entitled to compensation or being able to seek damages for any event that aggravates the pre-existing injury or medical condition.
A prospective worker cannot be forced or coerced to complete a pre-employment disclosure form. They need to complete the document at their own free will and should be given a reasonable timeframe to complete and return to the prospective employer.
If an employer engages a worker and requests a pre-employment disclosure form to be completed during the onboarding process the worker’s entitlement to compensation is unaffected.
Accessing claims history
A prospective employer can no longer apply to the regulator for a copy of a prospective worker’s claims history summary.
Using the information
Under the Anti-Discrimination Act 1991, unless there is a valid exemption, it is unlawful to make recruitment decisions based on a person’s impairment, perceived impairment or previous or current injuries or medical conditions.
Making reasonable adjustment
Employers should consider whether any adjustment or change can be made to the position that would allow the worker to carry out the job. This may include:
- Providing physical aids or adjustment to the work environment
- Changing the hours, or number of hours worked
- Incorporating breaks or changing the structure of the work
- Changing the duties to be performed
- Providing additional support to workers for identified tasks and/or duties
In determining the feasibility of making a reasonable adjustment, consideration should be given to whether an employer would be exposed to unjustifiable hardship as a result of the change.
Genuine occupational requirement
A genuine occupational requirement is one that is essential to the position. In considering if a requirement is a genuine occupational requirement, it should be considered if the position would effectively be the same, or still be carried out without the requirement.
Work health and safety obligations
An employer has an obligation to ensure a safe working environment. In assessing the suitability of a prospective worker an investigation of whether there are any unacceptable risks should be undertaken. A decision to not engage a prospective worker due to a health and safety issues must be justifiable and reasonable in relation to the assessed level of risk.
More information
Master Builders has template disclosure forms available to members on eDocs. For further information or advice, please contact Master Builders Workplace Relations team.
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