Criminal and civil actions can be brought against a person who engages in discriminatory, coercive or misleading conduct for work health and safety (WHS) matters.
Part 6 of the Work Health and Safety Act 2011 (WHS Act) prohibits discriminatory, coercive and misleading conduct in relation to WHS matters. This means people can perform WHS roles and activities, or raise WHS issues or concerns at their workplace, without fear of being discriminated, coerced or misled.
Discriminatory conduct means treating someone to their disadvantage in their position, prospective position or work arrangements.
Part 6 of the WHS Act prohibits an individual or business from engaging in discriminatory conduct against a person because of the person’s WHS roles or activities.
Examples of discriminatory conduct could include:
- firing a worker
- terminating a contract for services with a worker
- changing a worker’s position to their detriment (e.g. by decreasing their salary or by demotion)
- treating a worker differently from others
- not hiring someone
- offering a prospective worker less favourable terms and conditions
- terminating a commercial arrangement (e.g. a contract to supply materials to a workplace, or a sub-contracting arrangement).
Threatening to or asking someone else to organise any of the above is also discriminatory conduct.
- Jenny is an elected and trained HSR.
- Jenny issues her employer a lawful provisional improvement notice (PIN) regarding an unsafe work practice.
- Jenny’s employer refuses to manage the risks identified in the PIN and dismisses her for threatening commercial viability by issuing the PIN.
- Over several weeks, Padma identifies significant safety hazards at her workplace.
- Each time, she reports the hazards via her employer’s incident and hazard reporting system.
- Due to the need to take photos of the hazard and delays with the reporting system software, Padma spends over an hour completing each hazard report.
- As a result, she does not meet her work targets for the month.
- Despite knowing that Padma has spent this time reporting significant safety hazards, her supervisor notes that she has not met work targets and therefore does not qualify for her performance bonus. Her supervisor also places her on a performance management program.
- Mark applied for a job and is considered the most suitable and competent candidate by the recruitment panel.
- Mark’s referee report is received by the recruitment panel. The referee report mentions that Mark has previously refused to perform work tasks due to feeling that the tasks were unsafe.
- The recruitment panel decides not to proceed with hiring Mark due to this comment in his referee report.
- Trucks & Co. is a contractor providing freight transport services to a company called Western Warehouses.
- Workers from Trucks & Co. notice that significant changes have occurred in one of the large warehouses of Western Warehouses, increasing the on-site traffic interaction between trucks, forklifts, cars and pedestrians.
- Trucks & Co. requests an updated traffic management plan and better traffic management zoning from Western Warehouses, to reduce the risk of a vehicle incident at the warehouse.
- Western Warehouses is not willing to spend the resources to update their traffic management plans and improve the traffic management zoning at the warehouse.
- When Trucks & Co. push the issue, Western Warehouses decides to change contractor for their freight transport service provider and terminate the arrangement with Trucks & Co.
Workers and prospective workers (including contractors in commercial arrangements) are protected by the prohibition of discriminatory conduct under Part 6 of the WHS Act.
This protection also applies to health and safety representatives (HSRs).
The conduct is unlawful when done for a prohibited reason, which includes:
- the person is a HSR or a member of a health and safety committee, or undertakes another role under the WHS Act
- does or does not exercise their powers or perform their functions under the WHS Act
- does or does not exercise their powers or perform their functions under the WHS Act in a particular way
- assists or gives information to persons exercising a power or performing a function under the WHS Act
- raises an issue or concern about WHS with persons such as a PCBU, inspector, a HSR, a member of a health and safety committee, another worker or any other duty holder or person exercising a power or performing a function under the WHS Act.
If a person is convicted or found guilty in a criminal action, the court can impose penalties and make orders for example:
- a fine
- an order for compensation
- an order that a worker is reinstated or re-employed.
If the prohibited reason is a substantial reason for the discriminatory conduct, that can lead to civil action.
While a substantial reason does not need to be the dominant or the only reason for the conduct, it is not sufficient to establish that it was simply one of a number of reasons. A person may not be liable if they can prove that their conduct was reasonable in the circumstances.
If the relevant court or tribunal establishes that a person has engaged in unlawful discriminatory conduct in a civil action, the court or tribunal can make a range of orders, for example:
- an injunction (to make a person stop an action or take certain action)
- an order for compensation
- an order that a worker is reinstated or re-employed
- any other order that the court or tribunal considers appropriate (including a declaratory order).
Both civil and criminal actions can be brought against a person for the same conduct. However, a court cannot make the same orders against a person in both criminal and civil actions.
For criminal and civil actions, if it is established that a person has engaged in discriminatory conduct, that person must prove that the conduct was not unlawful by proving that the alleged prohibited reason was not the dominant or substantial reason for the conduct.
Coercive conduct or inducement
Coercion means persuading someone to do something by using force or threats. Inducement is action taken to encourage a person to do or refrain from doing something through a promise of a benefit.
The WHS Act prohibits an individual or business from engaging in coercive conduct against a person because of the person's WHS roles or activities.
A person must not take any action intended to intimidate, force or cause a person to exercise, or not exercise, a health and safety power, function or role. This particularly applies to HSRs. This includes organising or threatening to organise or take such action in situations where a person:
- does, or does not exercise their powers or perform their functions under the WHS Act
- proposes to exercise, or not exercise their powers or perform their functions in a particular way
- refrains from seeking, or continuing to undertake, a role under the WHS Act.
There is an exception for emergencies. This allows an emergency worker to give reasonable directions in an emergency without it amounting to unlawful coercion or inducement.
Workers and prospective workers (including contractors in commercial arrangements) are protected by the prohibition of coercive conduct under Part 6 of the WHS Act. This protection also applies to HSRs.
- Bình is an elected and trained HSR.
- Bình issues his employer a lawful PIN regarding an unsafe work practice.
- Bình’s employer offers him an extra’s day’s leave if he withdraws the PIN.
- When Bình refuses to withdraw the PIN, his employer threatens him with loss of employment.
In criminal action, a person convicted or found guilty of coercion or inducement can face a penalty.
In civil action, the relevant court or tribunal can issue an injunction (to make a person stop an action or to take certain action) or any other order it considers appropriate (including a declaratory order).
It is an offence for a person to knowingly or recklessly make a false or misleading representation about another person’s:
- rights or obligations under the WHS Act (e.g. the right to cease work)
- ability to initiate or participate in a process or proceedings under the WHS Act (e.g. the right to request the election of an HSR or the right of a majority of workers of a work group to remove an HSR elected by them)
- ability to make a complaint or inquiry to a person or body empowered under the Act to seek compliance (e.g. claiming that the circumstances do not allow an inspector to be called in to resolve an issue).
This does not apply if the person to whom the representation is made would not be expected to rely on it.
- Maddie is an elected and trained HSR.
- The work group Maddie represents have raised a safety issue with her.
- Maddie raises the issue with her employer on behalf of the work group.
- When Maddie is on annual leave, Maddie’s employer speaks to the work group and tells them the safety issue is not a real concern and that raising issues with Maddie only causes dramas and reflects badly on the work group.
If a person has made misrepresentations, that can lead to criminal action and penalties.