Since the commencement of the Occupational Health and Safety Act 1985 (Vic) (the 1985 OHS Act) on 1 October 1985 employers have been criminally liable for discriminating against employees on OHS grounds. This criminal liability was carried over into the Occupational Health and Safety Act 2004 (Vic) (the OHS Act).

These discrimination provisions relate to specific conduct relating to occupational health and safety and are in addition to more general discrimination prohibitions under relevant anti-discrimination legislation and the Fair Work Act 2009 (Cth).

On 1 July 2009 new provisions came into force extending this liability under the OHS Act by introducing civil liability for OHS discrimination. This legal update aims to remind employers of their existing criminal liability, explain the recent changes and provide guidance on what employers should be doing to manage their legal risk in relation to OHS discrimination.

The big changes are that:

  • employees can now bring a civil claim if they believe an employer has discriminated against them for prohibited reason, and
  • discrimination which occurs as result of an employee assisting, giving information to, or raising an OHS issue with, an authorised representative of a union is now prohibited.

Existing Provisions – Criminal Offence

It is important to remind you of the criminal offence provisions of the OHS Act that still apply. The concepts of discriminatory conduct and prohibited reasons apply equally to the new civil liability provisions.

Sections 76 -78 of the OHS Act provide that it is an indictable offence for an employer (or a prospective employer) to engage in discriminatory conduct for a prohibited reason.

Discriminatory Conduct

An employer engages in discriminatory conduct if they do or threaten to do any of the following:

  • dismiss an employee
  • injure an employee, or
  • alter the position of an employee to the employee’s detriment.

A prospective employer engages in discriminatory conduct if they refuse or fail to offer employment to a prospective employee or treat a prospective employee less favourably than another when offering terms of employment.

Prohibited Reasons

The prohibited reasons for engaging in discriminatory conduct before the amendments were:

  • an employee is or has been a health and safety representative (HSR) or a member of a health and safety committee (HSC)
  • an employee exercises or has exercised a power as an HSR or a member of an HSC
  • an employee assists or has assisted, or gives or has given information to, an inspector, an HSR or a member of an HSC, or
  • an employee raises or has raised an OHS issue or concern to the employer, an inspector, an HSR or a member of an HSC.

In order to be guilty of an offence the prohibited reason must be the ‘dominant reason’ for the employer’s discriminatory conduct.

In proceedings for this offence the prosecution need to prove, beyond reasonable doubt, the facts making up the offence other than the reason for the employer’s conduct. The employer then has the onus of proving that the prohibited reason alleged in the charge was not the dominant reason that the employer engaged in the conduct. In effect this means that the employer needs to show that there was another reason for their conduct (such as poor performance) and that that reason was the main reason that they ‘discriminated’ against the employee.

Penalties

  • Natural person – six months imprisonment and/or a fine of $ 58,410
  • Body corporate – a fine of $ 292,050.

In addition to these penalties the Court can also make the following orders:

  • The offender pays damages that the Court considers appropriate to the employee or the prospective employee who was discriminated against
  • The employee be reinstated or re-employed in their former or similar position
  • The prospective employee be employed in the position applied for or similar.

New Provisions – Civil Action

On 1 July 2009 the Occupational Health and Safety Amendment (Employee Protection) Act 2009 (Vic) (the Amending Act) commenced, changing existing discrimination provisions and introducing new provisions.

Change to Prohibited Reasons

The amending legislation extends the prohibited reasons under the OHS Act for both criminal and civil actions such that an employer must not engage in discriminatory conduct because an employee:

  • assists or has assisted, or gives or has given information to an ‘authorised representative of an employee organisation’, or
  • raises or has raised an OHS issue or concern to the employer, an inspector, an HSR or a member of an HSC assists, or gives information to, an ‘authorised representative of an employee organisation’.

When introducing the Amending Act to Parliament in December 2008 the Hon. Tim Holding Minister for Finance, WorkCover and the Transport Accident Commission stated that this extension of protection:

…reflects the important role that such representatives play in workplace health and safety and should enhance the overall efficiency of Victoria’s OHS regime, which is reliant on all workplace parties playing an active role in speaking out on OHS issues.

New Civil Right of Action

According to Tim Holding MP the Amending Act:

… gives effect to a commitment by this government to enhance protections to employees who are proactive about workplace health and safety or who raise health and safety issues and who suffer discrimination as a result.

Such protections are viewed as necessary because workplace health and safety relies on employees playing a proactive role and employees cannot do this if they risk suffering a disadvantage.

Under the new provision 78D an employee (or their representative) may apply to the Magistrates Court for a civil remedy against an employer or prospective employer who has engaged in discriminatory conduct against them for a prohibited reason.

Discriminatory conduct and prohibited reasons in relation to civil action have the same meanings as described above in relation to the criminal offence provisions.

In civil claims the employer bears the onus of proving the reason for their conduct in civil proceedings as they do in criminal proceedings.

A Court may make the same damages and reinstatement orders in civil remedy proceedings as in criminal offence proceedings. A court may also make “any other order that the court considers appropriate”, including providing injunctive relief.

The bringing of a civil claim by an employee does not prevent the bringing of criminal charges by WorkSafe for the same conduct. However, if a damages or reinstatement order is made under the civil remedy provisions then no such order can be made under the criminal offence provisions.

One significant difference in the civil remedy provisions is that the prohibited reason need only be a ‘substantial reason’ for the discriminatory conduct, rather than a ‘dominant reason’ as in the criminal offence provisions.

Another key difference is that the standard of proof in civil cases is ‘on the balance or probabilities’ rather than ‘beyond reasonable doubt’ as in criminal cases. Because of this difference in the standard of proof it may be easier for an employee to prove a civil discrimination claim than it will be for a regulator to prove a criminal discrimination offence based on the same set of facts.

Inducing, encouraging…discriminatory conduct

Under the new provisions an employee may also bring a civil action against any person who requests, instructs, induces, encourages, authorises or assists an employer or prospective employer to engage in discriminatory conduct for a prohibited reason. In this case the Court may make an order for appropriate damages, injunctive relief or any other order the Court considers appropriate. This provision is specifically aimed at ensuring employees of independent contractors are “afforded the benefit of broader protection under the antidiscrimination provisions.”

The Amending Act does provide some limited protections to employers with respect to the civil claim provisions, namely:

  • there is a one year time limit for an employee to bring a civil claim, and
  • it is a defence if the employer can prove that the conduct was reasonable in the circumstances and a substantial reason for the conduct was compliance with the OHS Act or the Accident Compensation Act 1985 (Vic).

Change to Criminal Penalty

The Amending Act removed imprisonment for breaches of the criminal offence provision.

What should employers do now?

As always employers should be vigilant in ensuring that OHS discrimination does not occur in their workplace. In particular, employers should:

  • remind employees that discrimination of any kind, including on OHS grounds, will not be tolerated
  • ensure that there are documented policies and procedures for taking disciplinary action against employees and engaging new employees
  • ensure that there are appropriate processes around the management of OHS complaints and the roles and responsibilities of employees who raise OHS concerns in the workplace
  • provide refresher training on discrimination in the workplace which should deal generally with discrimination as well as discrimination for OHS related reasons, and
  • ensure that policies and procedures are implemented in the workplace at all times by those taking disciplinary action or hiring new staff.