Employers are generally familiar with the anti-discrimination provisions of the Fair Work Act 2009 (Cth) (FW Act) and various state and federal anti-discrimination laws. But what is often missed is that discriminatory conduct in the workplace can also amount to a criminal offence under the model Work Health and Safety legislation.
Unlike discrimination under workplace relations laws, which typically results in civil liability, discriminatory conduct under the model Work Health and Safety legislation can in some circumstances be criminal in nature. That means that instances of discrimination can lead to prosecution, a finding of guilt and/or a criminal conviction and fine.
Discrimination under the WHS Legislation
The WHS legislation prohibits a wide range of ‘discriminatory conduct’ when done for a ‘prohibited reason’ tied to work health and safety. Discriminatory conduct includes:
- dismissing or standing down a worker;
- altering a worker’s role to their detriment;
- treating a prospective worker less favourably; and
- refusing or terminating a commercial arrangement.
Prohibited reasons include a person’s involvement in WHS activities, such as:
- raising or proposing to raise WHS concerns;
- assisting a WHS inspector / regulator;
- acting as a health and safety representative (HSR) or committee member; and
- taking steps to ensure compliance with the legislation.
Crucially, the model Work Health and Safety legislation also captures those who request, authorise, assist, encourage or induce another person to engage in discriminatory conduct. This means that a person cannot get around potentially being penalised because that person did not directly engage in the discriminatory conduct themselves. Practically, this means that managers, supervisors, and even senior executives may be personally liable for authorising discriminatory conduct of another worker if the conduct is ignored.
In addition to criminal penalties, affected individuals may bring a civil claim under the model Work Health and Safety legislation if they believe they have been subject to discriminatory or coercive conduct for a prohibited reason. The orders that may be sought include compensation, reinstatement or an offer of employment in the case of a prospective worker, or any other order the relevant court or tribunal considers appropriate.
First prosecution for discriminatory conduct under the model Work Health and Safety framework
A recent decision of the NSW District Court serves as a pointed reminder. In SafeWork NSW v Qantas Ground Services Pty Ltd (No. 4),[1] Qantas Ground Services (QGS) was convicted of engaging in discriminatory conduct against a worker who had exercised his powers as a health and safety representative by directing workers to cease unsafe work at the onset of the COVID-19 pandemic. The court found that QGS stood the worker down for a prohibited reason under the Work Health and Safety Act 2011 (NSW) and in doing so, effectively punished him for lawfully exercising a power under that Act.
The consequences were serious. QGS was fined $250,000 and was ordered to pay $21,000 in compensation to the worker for both economic loss and the hurt and humiliation he experienced. The Court noted that this was the first prosecution of its kind under the national model Work Health and Safety framework. As such, the penalty was intended to send a strong message to other persons conducting a business or undertaking (PCBUs).
What PCBUs need to do
Organisations must respond to work-related conduct in a proactive way, just like how they would treat the exercise of workplace rights under the FW Act. Key personnel, particularly in human resources, safety leadership, and operational management, must be aware that adverse action taken against a worker in response to WHS activity could expose them — and the organisation — to prosecution under model Work Health and Safety legislation. This means that training, documentation, and careful handling of performance and conduct issues are essential, particularly when WHS issues have been ventilated or are in the background.
[1] [2024] NSWDC 53.
The views expressed in this article are general in nature only and do not constitute legal advice. Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.