The recent appeal decision of the Victorian Supreme Court in
Patrick Stevedoring v Victorian WorkCover Authority
demonstrates that the Victorian courts are willing to strictly
enforce the anti-discrimination provisions under the
Occupational Health and Safety Act 2004 (Vic), potentially
setting the precedent for the enforcement of the new
anti-discrimination provisions under the Model Work Health and
The case in brief
Patrick Stevedoring was prosecuted by WorkSafe Victoria for
breaching section 76 of the Occupational Health and Safety Act
2004 (Vic) which prohibits an employer from discriminating
against an employee on health and safety grounds. The prosecution
of Patrick Stevedoring is the first prosecution for breach of the
The prosecution of Patrick Stevedoring arose from allegations
that an employee, who was an elected health and safety
representative, had been suspended by his manager and issued with a
disciplinary letter after raising concerns about new safety
procedures that were to be introduced. The employee's concerns
included that Patrick Stevedoring had failed to consult either the
employee or the OHS committee before implementing the new
procedures. Consequently, the employee refused to follow the new
In the first instance, the Magistrates' Court found that the
dominant reason for the manager suspending the employee and for
Patrick Stevedoring's disciplinary action against the employee
was that he had raised concerns about health and safety in his
capacity as a health and safety representative. The
Magistrates' Court issued Patrick Stevedoring with a penalty of
$180,000 for the breach which carries a potential maximum penalty
of approximately $300,000.
Patrick Stevedoring appealed the Magistrate's Court decision
to the Supreme Court late last year but was unsuccessful in its
appeal. The Supreme Court was prepared to uphold the
Magistrate's Court decision to impose the $180,000 penalty,
despite conceding that the penalty was more than it may have
Messages for business
The decision indicates that Victorian courts are willing to
strictly enforce the anti-discrimination provisions under the
Occupational Health and Safety Act 2004.
The approach taken by the Victorian Courts in strictly enforcing
the provisions will likely encourage regulators in other
jurisdictions to prosecute organisations for breaching the new anti
discrimination provisions under the Work Health and Safety
Act which extends protections to all workers, not just
employees, and for which criminal and civil sanctions can
Businesses should therefore manage the risk of a potential
breach of the anti-discrimination provisions by:
incorporating the specific prohibition on discrimination on
safety grounds in current or new OH&S and equal opportunity and
ensuring all staff are aware of the prohibition; and
ensuring managers and supervisors in particular who are dealing
with workers day to day are educated and trained on appropriate
responses to health and safety concerns if and when they are
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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