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 Safety Act.

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 provision.

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 procedures.

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 imposed.

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 apply.

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 anti-discrimination policies;
  • 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 raised.

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.