The Work Health and Safety Act 2012 (WHS Act) contains provisions that prohibits discrimination based on work health and safety (WHS) roles or activities. These provisions are intended to allow workers, prospective workers and others to perform safety-related activities and to raise WHS issues or concerns without fear of reprisal.
A prospective worker is someone who is seeking to be engaged to carry out work. The provisions also apply to commercial arrangements, protecting a person from being refused a contract or from having a contract terminated because of their safety-related activities.
A person must not engage in discriminatory conduct for a prohibited reason.
Discriminatory conduct is defined as:
- dismissing a worker
- terminating their contract
- altering a worker’s position
- or in any other way doing something to the detriment of the worker.
It can also mean:
- failing to engage a prospective worker
- treating a prospective worker less favourably than another
- terminating a commercial arrangement, or
- failing to enter into a commercial arrangement.
Threatening to take any of this action is also discriminatory conduct.
Prohibited reasons for engaging in discriminatory conduct towards workers, prospective workers and others include if they:
- are, were or propose to be a health and safety representative (HSR) or a member of a health and safety committee or perform a function in this capacity
- exercised a power or performed a function (or refrained from doing so)
- assisted a person to exercise a power or perform a function
- raised a health and safety issue with a person conducting a business or undertaking (PCBU), inspector, WHS entry permit holder, HSR, member of a health and safety committee or another worker
- are involved in resolving a WHS issue
- acted to get another person to comply with their duties.
A person that engages in discriminatory conduct can be subject to both criminal and civil proceedings. If convicted or found guilty of an offence, penalties may be imposed and they may also be required to pay compensation and reinstate employees or employ prospective employees.
Asking, instructing or encouraging another person to engage in discriminatory conduct is also an offence and can result in both criminal and civil proceedings.
Coercion or inducement
A person must not take coercive action, or threatened to take intentionally to intimidate, force or cause a person to act or fail to act in relation to a health and safety power or function.
Coercion is any action taken that compels or forces someone to do, or refrain from doing, something.
Inducement is any action taken that encourages a person to do, or refrain from doing, something through a promise of a benefit or promise to relieve them from a detriment.
A person must not take, organise to take, or threaten any action against another person with the intent to coerce or induce them or someone else to:
- exercise or not exercise a power under the Act, at all or in a particular way, or
- perform or not perform a function under the Act, or
- refrain from seeking a role under the Act or continuing to undertake a role under the Act.
An employer threatens to terminate the employment of a HSR’s if they proceed with issuing a provisional improvement notice to remedy an identified contravention of WHS laws.
Such conduct may also constitute discriminatory conduct.
It is not coercion or inducement when an emergency services worker gives a reasonable direction to a person to exercise or not exercise a power or perform a function in an emergency.
An emergency services worker directs a HSR to assist with the operation of equipment at a workplace in order to make the area safe. This may prevent the HSR from exercising powers to direct a cessation of work.
It an offence for a person to knowingly or recklessly make a false or misleading representation to another person about the other person’s:
- rights or obligations under the Act, such as the right to cease work
- ability to initiate, or participate in, a process or proceedings under the Act
- for example, the right to request the election of a HSR or the right of a majority of workers of a work group to remove a HSR elected by them
- ability to make a complaint or inquiry to a person or body empowered under the Act to seek compliance with the Act
- for example, asserting that the circumstances do not allow an inspector to be called in to resolve an issue.
These provisions do not apply where the person to whom the representation is made would not be expected to rely on it.
A PCBU insists that a SafeWork SA inspector does not have the power to enter a workplace where a safety incident has taken place. This is not considered misrepresentation as the inspector would be aware that they can exercise such a power.
A PCBU informs a HSR that they do not have the power to issue a provisional improvement notice. This is not considered misrepresentation as the HSR would be aware from their HSR training that they do have the power to do so.
A person that engages in coercion, inducement or misrepresentation can be subject to criminal proceedings and if convicted or found guilty of an offence, penalties may be imposed.
Interpretative Guideline – Discriminatory, Coercive or Misleading Conduct - Safe Work Australia