Discrimination for OHS reasons

Section 76 of the OHS Act prohibits an employer from dismissing an employee, discriminating against an employee or treating an employee less favourably because that employee is or has been an elected Health and Safety Representative (HSR).

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 the 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 because the employee or prospective employee:

  • is or has been an HSR or a member of a Health and Safety Committee (HSC);
  • exercises or has exercised power as an HSR or as a member of an HSC;
  • assists or has assisted or gives or has given any information to an inspector, an HSR, a member of an HSC, or has assisted, given information to or raised safety issues or concerns with authorised representatives of registered employee organisations (ARREOs); or
  • raises or has raised an issue or concern about health and safety to the employer, an inspector, an HSR, a member of an HSC or another employee.

This includes deputy HSRs.

Under Section 77 an employer bears the onus of proving that the reason for the alleged discriminatory act(s) was not the dominant reason for the employer's conduct.

What is meant by 'injuring an employee in the employment of the employer' or 'altering the position of an employee to the employee's detriment' or threatening to do such things?
WorkSafe has developed a 'S12 guideline' to explain and explore these sections of the Act: How WorkSafe Applies The Law In Relation To Discrimination On Health And Safety Grounds. The guideline explains that 'an objective assessment of all the facts is required' in attempting to answer these questions.

'Injuring an employee in the employment of the employer' usually relates to the loss or alteration of a legal right in employment, while 'altering the position of an employee to the employee's detriment' may include any adverse effect on or deterioration in the employee's conditions.

The publication provides a long list of possible examples of injuring or altering the conditions of employment to the employee's detriment or threatening to do so:

  • demotion
  • allocation of work below skill/classification level (leading to a reduction in classification or employability)
  • less flexible work hours, less congenial shifts or rosters, less overtime or less prospect of overtime earnings
  • repeated changes to shifts, rosters or working hours
  • lower salary, increments or bonuses
  • reduction in allowances
  • restrictions in maintaining competency levels
  • fewer training opportunities
  • refusing promotion or advancement
  • job transfer
  • standing down on full pay and being singled out for this purpose
  • denial of wage increase and being singled out for this purpose
  • reneging on an agreement to pay a wage increase
  • withdrawing a promise of secure employment in a position for an agreed term or an offer of promotion or advancement
  • denying access to existing resources such as information technology
  • verbal abuse, humiliation, denigration or ridicule
  • isolation or exclusion from organisational activities
  • denying access to a fair process before taking disciplinary action
  • taking disciplinary action
  • counselling and issuing a warning letter where the effect is to make the job less secure, or
  • making redundancies on the basis of discriminatory reasons.

The WorkSafe publication Employee Representation states:

WorkSafe will treat any cases of alleged discrimination seriously and, under its compliance and enforcement policy and general prosecution guidelines, prioritise allegations of discrimination for comprehensive investigation.

If charges are laid in relation to this section of the OHS Act, the burden is on the employer to prove that the dominant reason for their action was not any of the matters outlined above.

However, it is difficult to be able to demonstrate that the 'dominant' reason for such actions being taken by employers is OHS. Since the introduction of the 2004, there has only been one successful prosecution of an employer for discriminating against an HSR under this section of the Act.

Last amended April 2015