When an employer can be penalised for discrimination
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.
What the OHS Act says about discrimination against HSRs
Section 76 of the OHS Act provides for prohibition on discrimination
Section 77 provides that the accused bears onus of proof
Section 78A-E provides for civil actions for discriminatory conduct
The OHS Act prohibits employers from discriminating against HSRs, members of health and safety committees (HSC) and other employees. Penalties may apply if an employer does any of the following:
- dismisses, injures or alters the position of an employee to their detriment
- threatens to do any of the above
- refuses or fails to offer employment to a prospective employee, or treats them less favourably
It is an offence if the employer or prospective employer does any of the above 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
- helps, has helped, gives or has given, any information to, an inspector, WorkSafe an authorised representative of registered employee organisation (ARREO), an HSR or a member of an HSC
- raises or has raised an issue or concern about health and safety to the employer, an inspector, WorkSafe, an ARREO, an HSR, a member of an HSC or an employee of the employer
This also applies to deputy HSRs.
How WorkSafe prioritises allegations of discrimination
WorkSafe treats cases of alleged discrimination seriously and, under its Compliance and Enforcement Policy and General Prosecution guidelines, will prioritise allegations of discrimination for comprehensive investigation.
If charges are laid under Section 76 of the OHS Act, employers are responsible for proving the main reason for their actions are not the reasons outlined above.