Discrimination

Division 9 of Part 7, Occupational Health and Safety Act 2004

The Occupational Health and Safety Act 2004 (OHS Act) prohibits and imposes penalties on an employer if they dismiss, discriminate or treat an employee less favourably because that employee is or has been an HSR or a member of an HSC.

An employer or prospective employer may be guilty of an indictable offence if the dominant reason for:

• dismissing an employee, injuring an employee or altering the employee's position to the detriment of the employee
• threatening to do any of the above things to an employee
• refusing or failing to offer employment to a prospective employee or discriminating between prospective employees in offering terms of employment

is because the employee or prospective employee:

• is or has been an HSR or a member of an HSC
• exercises or has exercised a power as an HSR or as a member of an HSC
• assists or has assisted, or gives or has given any information to, an inspector, the Authority, an authorised representative of a registered employee organisation (ARREO), an HSR or a member of an HSC, or
• raises or has raised an issue or concern about health and safety to the employer, an inspector, the Authority, an ARREO, an HSR, a member of an HSC or an employee of the employer

This also applies to deputy HSRs (DHSRs) and any labour hire worker who is or has been an HSR or a member of an HSC. WorkSafe treats any cases of alleged discrimination seriously and, under its compliance and Enforcement Policy and General Prosecution Guidelines, prioritises allegations of discrimination for comprehensive investigation.

If charges are laid in relation to this section of the OHS Act, the burden is on the employer to prove that the dominant reason for their action was not due to any of the matters outlined.

If an employer or prospective employer is convicted or found guilty of discrimination, the court may, in addition to imposing a penalty:

• make an order that the offender pay damages to the employee or prospective employee and/or make an order that
  • the employee be reinstated or re-employed in their former position, or if their former position is not available, in a similar position, or
  • the prospective employee be employed in the position for which he or she had applied or a similar position

The OHS Act also allows civil proceedings to be brought by a person (or their representative) affected by the discriminatory conduct. The person can apply to the Industrial Division of the Magistrates' Court for an order under section 78D.

For more information on discrimination refer to How WorkSafe applies the law in relation to discrimination on health and safety grounds.

What does employee injury or detriment mean?

In considering these questions an objective assessment of all the facts is required.

Injuring an employee in the employment of the employer usually relates to the loss or alteration of a legal right in employment, while altering the position of an employee to the employee's detriment may include any adverse effect on or deterioration in the employee's conditions.

Some possible examples of injuring or altering the conditions of employment to the employee's detriment or threatening to do, may include:

• demotion
• allocation of work below skill/classification level (leading to a reduction in classification or employability)
• less flexible work hours, less congenial shifts or rosters, less overtime or less prospect of overtime earnings
• repeated changes to shifts, rosters or working hours
• lower salary, increments or bonuses
• reduction in allowances
• restrictions in maintaining competency levels
• fewer training opportunities
• refusing promotion or advancement
• job transfer

Depending on the circumstances of each case, some of the actions specified in this section may be legitimate for operational and/or procedural reasons.

Further information on discrimination can be found in the guidance Discrimination on health and safety grounds.