Introduction to discriminatory, coercive and misleading conduct

It is important to encourage all persons to be engaged in work health and safety activities and to properly exercise roles, powers and functions provided for in the Model Work Health and Safety Act (Model Act).

To this end the Model Work Health and Safety Act, in Pt 6 (ss 104 to 115), addresses inappropriate conduct that could deter people from being involved in safety activities or deter them from exercising their roles, powers and functions under the Act.

Part 6 of the Model Act sets up a scheme that prohibits discriminatory, coercive and misleading conduct in relation to work health and safety matters. The prohibition is aimed at allowing workers, prospective workers and others to perform legitimate safety-related functions or activities and to raise health and safety issues or concerns under the Model Act without fear of reprisal. These provisions send a strong signal that discrimination and other forms of coercion that may deter people from being involved in and committed to work health and safety issues are unlawful and will not be tolerated. Penalties and other remedies are provided. Machinery provisions deal with how criminal and civil proceedings will operate and how the interaction between the two forms of action will be managed.

See Introduction to discriminatory, coercive and misleading conduct.

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.

Prohibition of coercion and misleading conduct

In addition to prohibiting discriminatory conduct in relation to work health and safety matters, Part 6 of the Model Act also makes it unlawful to:

• • coerce or induce a person to exercise or not exercise a power, function or role under the Act; and
• • knowingly or recklessly misrepresent a person’s rights, obligations, ability to participate in processes or proceedings or make complaints or inquiries under the Act.

This Guidance Note explains what types of content will amount to coercion, inducement and misrepresentation.

See Prohibition of coercion and misleading conduct.

Criminal and civil proceedings for discriminatory or coercive conduct

Part 6 of the Model Act provides for both criminal and civil sanctions in relation to discriminatory conduct.

If the prohibited reason for engaging in discriminatory conduct is the predominant reason, prosecution and criminal penalties may follow. If the prohibited reason is the substantial reason, civil proceedings may arise. There are several other important differences between criminal and civil proceedings for discriminatory conduct, such as who can bring proceedings, the applicable standard of proof and the defences available, which are explained in this Guidance Note.

Part 6 of the Model Act also makes provision for criminal and civil penalties in relation to coercion and criminal penalties in relation to misleading conduct.

See Criminal and civil proceedings for discriminatory, coercive or misleading conduct.