The Prohibition of Discriminatory Conduct - Protection for Workers that Engage in Workplace Health and Safety Issues
Part 7 of 14 - Workplace Health & Safety Update
Authors: Robin Young, Partner and Nick Read, Solicitor
17 November 2011
Much of the focus of the Workplace Health & Safety Act 2011 (“the WHS Act”) is on ensuring that businesses put in place, and use, systems to identify, assess and manage workplace risks. This idea is develped in Part 6 of the Act, which introduces measures to protect workers and others from being treated in a discriminatory way for raising workplace safety concerns.
You should be aware that if a business or person are convicted or found guilty of an offence under The Prohibition, (discussed in more details below), the penalty imposed could be up to $500,000. In addition to a monetary penalty the Court has the power to order that an offender pay compensation to any person affected by a contravention.
What is prohibited
Section 104 of the WHS Act provides that a person conducting a business or undertaking ("PCBU") must not engage in discriminatory conduct for a prohibited reason. Click here to read edition 3 for the definition of PCBU.
Discriminatory conduct is:
- Dismissing a worker.
- Terminating a contract for services.
- Putting a worker at his or her detriment.
- Altering the position of the worker.
- Refusing or failing to offer to engage a prospective worker.
- Terminating a commercial arrangement with a person.
- Refusing or failing to enter into a commercial contract with another person.
"Prohibited reasons” are as follows:
- A person is, has been or proposes to be an Health & Safety Representatives (“HSR”), click here to read edition 6.
- A person exercises power or performs a function as a HSR or as a member of a Health & Safety Committee (“HSC”).
- A person exercises, proposes or assists to perform a function under the WHS Act.
- A person raises, has raised or proposes to raise an issue of concern about safety with the business, an Inspector, a HSR, a member of a HSC or another worker.
- A person is involved or has taken action (or is proposed to be involved or taking action) in respect of a workplace safety issue.
When does the prohibition come into force?
The prohibition against discriminatory conduct will come into force from 1 January 2012.
How will this provision be enforced?
The prohibition against discriminatory conduct can be enforced by:
- Criminal prosecution by a Regulator; or
- Civil proceedings by a person affected by the contravention.
It will be presumed that discriminatory conduct will be for prohibited reasons unless the accused PCBU can prove otherwise. The burden of proof is on the balance of probabilities.
What can we learn from a recent case?
The prohibition of discriminatory conduct is consistent with the prohibition of adverse action contained in Part 3-1 of the Fair Work Act 2009 (“the FW Act”), as it applies to workplace safety laws. These provisions aim to protect workers from any adverse action by employers as a result of a worker exercising a workplace right. Workplace rights include participating in processes under a workplace law and making a complaint in relation to employment [see s341 FW Act].
The recent Federal Court case of Automotive, Foods, Metals Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 2) [2011] FCA 953 (31 August 2011), is a good example of how the prohibition of discriminatory conduct is likely to operate. In this adverse action case a HSR tagged out two forklifts with barely audible reversing beepers. His employer then issued him with a letter stating that if he did not un-tag the forklifts within a specified time frame, his employment would be terminated. The HSR’s union commenced proceedings for an urgent injunction to prevent the HSR’s employment from being terminated, an action that they said would be adverse and in response to the HSR’s raising of a workplace safety concern. At the hearing the employer unsuccessfully argued that the HSR had unreasonably refused to engage in discussions to resolve the issue. The Federal Court granted the injunction and in doing so commented on the important role of HSRs in the workplace.
The nature of the role of HSRs is one where situations of conflict with employers are likely to arise. It will therefore be important for businesses to carefully manage these relationships to ensure the prohibition against discriminatory conduct is not violated.
Under the WHS Act PCBU’s are prohibited from discriminating, including subcontractors. This could occur, for example, when a business decides not to enter into a commercial arrangement with a subcontractor on the basis of the subcontractor raising a safety concern about the prospective work. Businesses need to keep the prohibition of discriminatory conduct in mind when selecting and engaging subcontractors during tender processes.
The risk of claims being brought by subcontractors under the provision against discriminatory conduct fits neatly with the new obligation on businesses to consult, cooperate and coordinate activities with all other persons who have workplace safety duties in relation to the same matter, click here to read edition 5.
Holman Webb are able to advise further on the new prohibition of discriminatory conduct as well any other aspect of the new legislation. Queries arising from our Workplace Health & Safety publications should be directed to either Robin Young or Rachael Sutton.
Robin Young
Partner
T: +61 2 9390 8419
E: robin.young@holmanwebb.com.au
Rachael Sutton
Partner
T: +61 2 9390 8422
E: rachael.sutton@holmanwebb.com.au