Discriminatory conduct for prohibited reasons

This Guidance Note explains what constitutes “discriminatory conduct”, and when it will be unlawful.

Briefly stated, a person will be considered to have engaged in discriminatory conduct if the person:

• • dismisses a worker;
• • terminates a contract for services with a worker;
• • puts a worker to his or her detriment in the engagement of the worker;
• • alters the position of the worker to the worker’s detriment;
• • refuses or fails to offer to engage a prospective worker;
• • treats a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement;
• • terminates a commercial arrangement with another person;
• • refuses or fails to enter into a commercial arrangement with another person; or
• • organises to take or threatens to organise or take any of the above activities.

In many cases, there may be a legitimate reason for such conduct. Discriminatory conduct will only be unlawful if it is carried out for a prohibited reason. Prohibited reasons for engaging in discriminatory conduct include that the person who is the subject of the discriminatory conduct:

• • is involved in, has been involved in, or intends to be involved in work health and safety representation at the workplace by being a health and safety representative or a member of a health and safety committee or exercising a power or function in that capacity;
• • undertakes, has undertaken, or proposes to undertake another role under the Act;
• • exercises or refrains from exercising or exercises in a particular way, a power or function under the Act;
• • assists, has assisted, or proposes to assist a person exercising a power or performing a function under the Act;
• • gives, has given, or intends to give information to a person exercising a power or performing a function under the Act;
• • raises, has raised, or proposes to raise an issue or concern about work health and safety with specified other persons;
• • is involved in, has been involved in, or proposes to be involved in resolving a work health and safety issue under the Act; or
• • is taking action, has taken action, or proposes to take action to seek compliance with a duty or obligation under the Act.

Instructing, inducing, encouraging, authorising or assisting another person to engage in discriminatory conduct for a prohibited reason is also prohibited.

See Discriminatory conduct for prohibited reasons.