Australia: Discrimination And OHS

Since the commencement of the Occupational Health and Safety Act 1985 (Vic) (the 1985 OHS Act) on 1 October 1985 employers have been criminally liable for discriminating against employees on OHS grounds. This criminal liability was carried over into the Occupational Health and Safety Act 2004 (Vic) (the OHS Act).

These discrimination provisions relate to specific conduct relating to occupational health and safety and are in addition to more general discrimination prohibitions under relevant anti-discrimination legislation and the Fair Work Act 2009 (Cth).

On 1 July 2009 new provisions came into force extending this liability under the OHS Act by introducing civil liability for OHS discrimination. This legal update aims to remind employers of their existing criminal liability, explain the recent changes and provide guidance on what employers should be doing to manage their legal risk in relation to OHS discrimination.

The big changes are that:

  • employees can now bring a civil claim if they believe an employer has discriminated against them for prohibited reason, and
  • discrimination which occurs as result of an employee assisting, giving information to, or raising an OHS issue with, an authorised representative of a union is now prohibited.

Existing Provisions – Criminal Offence

It is important to remind you of the criminal offence provisions of the OHS Act that still apply. The concepts of discriminatory conduct and prohibited reasons apply equally to the new civil liability provisions.

Sections 76 -78 of the OHS Act provide that it is an indictable offence for an employer (or a prospective employer) to engage in discriminatory conduct for a prohibited reason.

Discriminatory Conduct

An employer engages in discriminatory conduct if they do or threaten to do any of the following:

  • dismiss an employee
  • injure an employee, or
  • alter the position of an employee to the employee's detriment.

A prospective employer engages in discriminatory conduct if they refuse or fail to offer employment to a prospective employee or treat a prospective employee less favourably than another when offering terms of employment.

Prohibited Reasons

The prohibited reasons for engaging in discriminatory conduct before the amendments were:

  • an employee is or has been a health and safety representative (HSR) or a member of a health and safety committee (HSC)
  • an employee exercises or has exercised a power as an HSR or a member of an HSC
  • an employee assists or has assisted, or gives or has given information to, an inspector, an HSR or a member of an HSC, or
  • an employee raises or has raised an OHS issue or concern to the employer, an inspector, an HSR or a member of an HSC.

In order to be guilty of an offence the prohibited reason must be the 'dominant reason' for the employer's discriminatory conduct.

In proceedings for this offence the prosecution need to prove, beyond reasonable doubt, the facts making up the offence other than the reason for the employer's conduct. The employer then has the onus of proving that the prohibited reason alleged in the charge was not the dominant reason that the employer engaged in the conduct. In effect this means that the employer needs to show that there was another reason for their conduct (such as poor performance) and that that reason was the main reason that they 'discriminated' against the employee.


  • Natural person – six months imprisonment and/or a fine of $ 58,410
  • Body corporate – a fine of $ 292,050.

In addition to these penalties the Court can also make the following orders:

  • The offender pays damages that the Court considers appropriate to the employee or the prospective employee who was discriminated against
  • The employee be reinstated or re-employed in their former or similar position
  • The prospective employee be employed in the position applied for or similar.

New Provisions – Civil Action

On 1 July 2009 the Occupational Health and Safety Amendment (Employee Protection) Act 2009 (Vic) (the Amending Act) commenced, changing existing discrimination provisions and introducing new provisions.

Change to Prohibited Reasons

The amending legislation extends the prohibited reasons under the OHS Act for both criminal and civil actions such that an employer must not engage in discriminatory conduct because an employee:

  • assists or has assisted, or gives or has given information to an 'authorised representative of an employee organisation', or
  • raises or has raised an OHS issue or concern to the employer, an inspector, an HSR or a member of an HSC assists, or gives information to, an 'authorised representative of an employee organisation'.

When introducing the Amending Act to Parliament in December 2008 the Hon. Tim Holding Minister for Finance, WorkCover and the Transport Accident Commission stated that this extension of protection:

...reflects the important role that such representatives play in workplace health and safety and should enhance the overall efficiency of Victoria's OHS regime, which is reliant on all workplace parties playing an active role in speaking out on OHS issues.

New Civil Right of Action

According to Tim Holding MP the Amending Act:

... gives effect to a commitment by this government to enhance protections to employees who are proactive about workplace health and safety or who raise health and safety issues and who suffer discrimination as a result.

Such protections are viewed as necessary because workplace health and safety relies on employees playing a proactive role and employees cannot do this if they risk suffering a disadvantage.

Under the new provision 78D an employee (or their representative) may apply to the Magistrates Court for a civil remedy against an employer or prospective employer who has engaged in discriminatory conduct against them for a prohibited reason.

Discriminatory conduct and prohibited reasons in relation to civil action have the same meanings as described above in relation to the criminal offence provisions.

In civil claims the employer bears the onus of proving the reason for their conduct in civil proceedings as they do in criminal proceedings.

A Court may make the same damages and reinstatement orders in civil remedy proceedings as in criminal offence proceedings. A court may also make "any other order that the court considers appropriate", including providing injunctive relief.

The bringing of a civil claim by an employee does not prevent the bringing of criminal charges by WorkSafe for the same conduct. However, if a damages or reinstatement order is made under the civil remedy provisions then no such order can be made under the criminal offence provisions.

One significant difference in the civil remedy provisions is that the prohibited reason need only be a 'substantial reason' for the discriminatory conduct, rather than a 'dominant reason' as in the criminal offence provisions.

Another key difference is that the standard of proof in civil cases is 'on the balance or probabilities' rather than 'beyond reasonable doubt' as in criminal cases. Because of this difference in the standard of proof it may be easier for an employee to prove a civil discrimination claim than it will be for a regulator to prove a criminal discrimination offence based on the same set of facts.

Inducing, encouraging...discriminatory conduct

Under the new provisions an employee may also bring a civil action against any person who requests, instructs, induces, encourages, authorises or assists an employer or prospective employer to engage in discriminatory conduct for a prohibited reason. In this case the Court may make an order for appropriate damages, injunctive relief or any other order the Court considers appropriate. This provision is specifically aimed at ensuring employees of independent contractors are "afforded the benefit of broader protection under the antidiscrimination provisions."

The Amending Act does provide some limited protections to employers with respect to the civil claim provisions, namely:

  • there is a one year time limit for an employee to bring a civil claim, and
  • it is a defence if the employer can prove that the conduct was reasonable in the circumstances and a substantial reason for the conduct was compliance with the OHS Act or the Accident Compensation Act 1985 (Vic).

Change to Criminal Penalty

The Amending Act removed imprisonment for breaches of the criminal offence provision.

What should employers do now?

As always employers should be vigilant in ensuring that OHS discrimination does not occur in their workplace. In particular, employers should:

  • remind employees that discrimination of any kind, including on OHS grounds, will not be tolerated
  • ensure that there are documented policies and procedures for taking disciplinary action against employees and engaging new employees
  • ensure that there are appropriate processes around the management of OHS complaints and the roles and responsibilities of employees who raise OHS concerns in the workplace
  • provide refresher training on discrimination in the workplace which should deal generally with discrimination as well as discrimination for OHS related reasons, and
  • ensure that policies and procedures are implemented in the workplace at all times by those taking disciplinary action or hiring new staff.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.