Discriminatory, coercive and misleading 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.

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.

• 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).

• 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.