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 OHS rep (or a committee member, or an employee who has raised 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 because the employee or prospective employee:
- 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.
This includes deputy reps. WorkSafe has stated that it treats any cases of alleged discrimination seriously and 'under its compliance and enforcement policy and general prosecution guidelines, prioritises allegations of discrimination for comprehensive investigation.'
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: As of 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 is a new section of the OHS Act, Section 78(A)-(E). This action may be taken by the person whether or not the matter has also been dealt with by WorkSafe. More information on this section - The Magistrates' Court website has a page relating to lodging a civil claim under the OHS Act, including discrimination by the employer under Section 76.
- WorkSafe Section 12 Position: How WorkSafe applies the law in relation to discrimination on health and safety grounds
- WorkSafe Inspectors - How Inspectors support and enforce health and safety at work. [pdf] Revised April 2012
- Overview of how inspectors deal with specific issues [pdf] - 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.
Last amended June 2015