Article by Julie Marotta and Andrea Motbey
It is currently a criminal offence under the Victorian OHS Act for an employer to discriminate against an employee or prospective employee for a proscribed OHS related reason. An employer is exposed to a prosecution by WorkSafe for discrimination if the employer:
- dismisses an employee, injures an employee in the employment or alters an employee's position to his or her detriment, or threatens to do any of these things; or
- refuses or fails to offer employment to a prospective employee, or treats a prospective employee less favourably than another prospective employee would be treated in offering terms of employment,
where the dominant reason for the employer's conduct is that the employee is or has been:
- a health and safety representative (HSR) or a health and safety committee member;
- exercising a power as a HSR or as a member of a health and safety committee;
- assisting or providing information to a WorkSafe inspector, HSR, or a member of a safety committee; or
- raising an issue or concern about health and safety to an employer, inspector , HSR or safety committee member.
Changes to the law
The proposed amendments to the OHS Act will extend the list of proscribed reasons to include providing assistance and information to, or raising safety issues with, authorised representatives of registered employee organisations (ARREOs).
WorkSafe will continue to have the ability to prosecute an employer, and if found guilty the employer is liable to fines or an order to pay damages to, or reinstate the employee or appoint the prospective employee to the position or similar position to which they applied. A court will no longer be able to impose a term of imprisonment, bringing the Victorian law in line with other jurisdictions.
The Proposed New Civil Action
However, the most significant change proposed by the Bill is the creation of a new right of action that enables the employee or prospective employee to bring civil proceedings on their own behalf in the Industrial Magistrates Court against an employer who is alleged to have discriminated against them on OHS grounds. Additionally, the Bill proposes that any person authorised by the employee or prospective employee, such as a union representative, may initiate and continue proceedings on the employee's behalf.
If the court is satisfied that a proscribed reason is a 'substantial', rather than the 'dominant' reason as in the current provision, for the discrimination against the employee, the Court may order the employer:
- to pay damages to, or reinstate, the employee;
- to appoint a prospective employee to the position, or a similar position, to that applied for; or
- not to engage in the prohibited conduct.
The Bill also proposes a prohibition on a person requesting, instructing, inducing, authorising or assisting an employer or prospective employer to engage in OHS - related discrimination. For example this would make it unlawful for a contractor to request, instruct, induce, authorise or assist a sub-contractor to discriminate against the sub-contractor's employee on OHS grounds. In these circumstances a contractor would be exposed to a civil claim even if the employer sub-contractor never actually discriminated against the employee.
The proposed civil action will be available to employees even in circumstances where WorkSafe has made a decision not to prosecute, the employer is prosecuted but not convicted or a Court does not order the type or extent of remedy the employee or union seeks in the WorkSafe prosecution.
An employer may successfully defend a claim if it can prove that the conduct was reasonable in the circumstances, or a "substantial" reason for the conduct was to comply with the requirements of the OHS Act or the Accident Compensation Act 1985 (Vic).
Consequences of the Proposed Bill
In so far as the Bill allows a union to commence proceedings for an employee, it is inconsistent with the recent recommendations of the National OHS Review panel and the proposed national model OHS law, which recommends that unions should not be permitted to initiate prosecutions under OHS law.
While an employer could be prosecuted for an offence against the criminal provision and face a civil claim for the same discriminatory conduct, damages would only be payable in respect of one or other of the contraventions.
The Bill also introduces a lower threshold test for the civil action. To be successful in such a discrimination claim, an employee or prospective employee need only establish that a substantial reason for the employer's conduct was a prohibited reason. This is an easier test for an employee or prospective employee to meet, compared to a criminal prosecution in which WorkSafe must prove that a proscribed reason was the dominant reason for the employer's conduct.
Finally, allegations of conduct in breach of the prohibition against discrimination due to OHS activity may also found a claim of discrimination under the Equal Opportunity Act 1995 (Vic) (EO Act) to the extent that an employee or an ARREO may claim that the OHS activity is also industrial activity. The EO Act prohibits an employer or prospective employer from discriminating against an employee or prospective employee because he or she has engaged in industrial activity, which includes (but is not limited to):
- being a member of, or joining, an industrial organisation or association;
- organising or promoting or proposing to organise or promote a lawful activity on behalf of an industrial organisation or association (such as assisting an inspector);
- encouraging, assisting, participating in or proposing to encourage, assist or participate in a lawful activity organised or promoted by an industrial organisation or association; or
- representing or advancing the views, claims or interests of members of an industrial organisation or association.
To the extent that protected OHS activities can be characterised also as industrial activity, an employer may face a claim in the Victorian Civil and Administrative Tribunal, as well as the Court.
Lessons for employers
If passed, these laws will come into effect from July 2009. In the interim Victorian employers remain liable to fines and a maximum 6 month prison term for discriminating against employees or prospective employees on OHS grounds.
Additionally, as the Bill has yet to complete its passage through Parliament, and as it may create significant new exposure to liability for Victorian employers, employers may wish to consider making submissions to members of the Victorian Parliament if they want amendments to the Bill.
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.