Division 8 of Part 7
Section 76 of the OHS Act prohibits an employer from dismissing an employee, discriminating against an employees or treating an employees less favourably because that employee is or has been an elected OHS rep (or a committee member, or raising an OHS issue).An employer (or prospective employer) is guilty of an indictable offence if the dominant reason for:
- dismissing an employee, injuring an employee or altering the employee's position to detriment of the employee;
- threatening to do any of the above things to an employee'
- refusing or failing to offer employment to a prospective employee or discriminating between prospective employees in offering terms of employment;
- is or has been an OHS rep or a member of a Health and Safety Committee (HSC);
- exercises or has exercised a power as a rep or a member of an HSC;
- assists or has assisted or gives or has given any information to an inspector, a rep or a member of an HSR; or
- raises or has raised an issue or concern about health and safety to the employer, an inspector, a rep, a member of an HSC or another employee.
If charges are laid under this section of the Act, the burden is on the employer to prove that the dominant reason for their action was not any of the matters outlined above.
Note: From July 2009, the OHS Act provides for civil action to be taken in the Industrial Division of the Magistrates' Court by a person affected (or their representative) if any prohibited reasons for discriminatory conduct is a substantial reason for that conduct. This action may be taken by the person whether or not the matter has also been dealt with by WorkSafe. More information:
- The Magistrates' Court website has a special page
"Occupational Health and Safety - Civil action for alleged discrimination" with information on proceedings brought under Section 76A of the OHS Act
- WorkSafe Section 12 Position: How WorkSafe applies the law in relation to discrimination on health and safety grounds
- Overview of how inspectors deal with specific issues - This document provides information about how WorkSafe OHS inspectors deal with specific issues when performing their functions - including when investigating allegations of discrimination under S76.