Discrimination and prohibited conduct

A key requirement of work health and safety (WHS) legislation in all Australian jurisdictions is that people must not be discouraged or prevented from raising health and safety issues or exercising any of their powers or functions under WHS legislation. The provisions of the WHS Act that prohibit discrimination, coercion, inducement and misrepresentation aim to protect individuals from being penalised or put at a disadvantage because of their WHS-related activities.

Who is protected?

Those to be protected include ‘workers’ (including employees, contractors, labour hire personnel and volunteers) and ‘prospective workers’, for example, job applicants. Also protected are people engaged in commercial arrangements – for example, a person must not be refused a contract or have a contract terminated because of their legitimate safety related activities.

What is discriminatory conduct?

Discriminatory conduct includes any of the following actions, if the main reason for taking the action is a ‘prohibited reason’:
  • terminating a worker’s employment or contract
  • terminating (or refusing or failing to enter into) a commercial arrangement with another person
  • declining to offer a job to a prospective worker or treating a prospective worker less favourably.
It is also considered discriminatory conduct if a person ‘puts a worker to their detriment in the engagement of the worker’ or ‘alters the position of the worker to the worker’s detriment’ for a prohibited reason.  

‘Altering the position of a worker to the worker’s detriment’ means doing things that have an adverse effect on the worker’s conditions of employment during that employment, for example, demoting the person, allocating work that is below the person’s level of skill or classification, offering less flexibility in working hours, less favourable shifts or rosters, less overtime or lower salary, or fewer increments or bonuses. It could also include actions such as offering fewer training opportunities, refusing promotion or denying a wage increase, or verbal denigration or ridicule.

‘Putting a worker to his or her detriment in the engagement of the worker’ has a similar meaning but relates to the worker’s conditions at the commencement of the engagement, which may include the terms of engagement offered to a prospective worker.

Threatening to take such actions, or requesting, instructing, inducing, encouraging, authorising or assisting another person to take such actions, also counts as discriminatory conduct.

Of course, some of these actions may be legitimate for operational or procedural reasons. They only amount to discriminatory conduct where the dominant or substantial reason for them is a prohibited reason.

What is a prohibited reason?

Prohibited reasons are those that relate to a person’s involvement in health and safety, eg a person must not be disadvantaged merely for being a health and safety representative or a member of a health and safety committee, and exercising his or her legitimate functions and powers in that role. 

Similarly, if a person raises a health and safety concern, makes a complaint about health and safety or gives information to an inspector or a WHS entry permit holder, that person must not be subject to discrimination or threats of discrimination as a result.

Proving that a prohibited reason is the ‘dominant or substantial reason’ for the conduct

Discriminatory conduct is an offence that may result in criminal prosecution and penalties if it can be proved, to the required standard, that the ‘dominant’ reason for it was a prohibited reason. The ‘dominant’ means it was the ‘ruling, prevailing or most influential’ reason. All the available and relevant information and circumstances must be taken into account before deciding whether a prohibited reason was the dominant reason for a person’s conduct. The ‘dominant reason’ may not be the reason stated by the person or the reason which initially appears to be dominant.

A ‘substantial’ reason for conduct must have some substance, though it need not be the dominant or only reason. To prove to the required standard that a prohibited reason was a substantial reason for the conduct, it is not sufficient to establish that it was simply one of a number of reasons. If it can be established in court that a prohibited reason was the substantial reason for the discriminatory conduct, the conduct may be the subject of civil proceedings. 

Coercion, inducement and misrepresentation

It is illegal for a person to organise or take (or threaten to organise or take) any action against another person with intent to coerce or induce the person not to exercise their powers or perform their functions under WHS legislation.

Similarly, a person must not knowingly or recklessly make a false or misleading representation to another person about that other person’s WHS rights or obligations.

[Last reviewed 23 April 2018]