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Discriminatory conduct

The Work Health and Safety Act 2012 (SA) (the WHS Act) has three offences for discriminatory, coercive or misleading conduct, which prohibits:

  • any person authorising or assisting discriminatory conduct for a prohibited reason
  • coercion or inducement to exercise a power or role or not to exercise that power or role
  • misrepresentation about a person's rights, obligations or ability to make a complaint seeking compliance with the Act.

Discriminatory, coercive or misleading conduct

Conduct considered discriminatory, where there is a goal of thwarting the proper operation of the WHS Act and the independence of workers and anyone else contributing to the resolution of health and safety matters, might include actions aimed at:

  • current employment, including dismissal, termination of a service contract, or action which disadvantages a worker
  • potential employment, including failure to offer employment or treating a prospective worker less favourably than another applicant
  • commercial arrangements, including termination of or refusal to enter into a commercial arrangement
  • threatening to organise or undertake discriminatory conduct.

It is illegal to discriminate against a worker or anyone else who:

  • undertakes (or has undertaken) a role under the WHS Act, such as a Health and Safety Representative (HSR) or member of a Health and Safety Committee (HSC)
  • exercises (or has exercised) any power under the WHS Act, including powers exercised as an HSR or HSC member
  • performs (or has performed) any function under the WHS Act, including functions as an HSR or HSC member
  • exercises any power, function or role in a particular way
  • does not exercise a power or function under the WHS Act
  • assists (or has assisted) any person exercising a power under the WHS Act
  • raises (or has raised) health and safety issues with a PCBU, inspector, WHS entry permit holder, HSR, member of an HSC, another worker or any other person exercising a power, function or duty under the WHS Act
  • participates (or has participated) in health and safety issue resolution processes
  • takes action (or has taken action) to seek compliance with the duties of the WHS Act.

Penalties

The maximum penalties that apply if you are convicted of discriminatory, coercive or misleading conduct are $100,000 for an individual and $500,000 for a body corporate. In addition, the court may order you to pay compensation to the person discriminated against or reinstate their employment. An employment order may also be made if employment was denied for a prohibited reason.

There is no reverse onus of proof for offences and the prosecutor must prove all elements of the offence however, unless the defendant can prove otherwise the prohibited reason, if established, will be taken to be the dominant reason for the conduct.

If you are the person discriminated against, you or your representative may initiate civil proceedings before the Industrial Relations Court of South Australia for an order, which may include injunctions, compensation, reinstatement, employment or any other order the Court considers appropriate in the circumstances.
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