Discriminatory conduct
No person can discriminate against, coerce or mislead workers who report a WHS matter or perform the duties of a Health and Safety Representative (HSR).
What is discriminatory conduct
Discriminatory conduct means unjust or unfairly biased or damaging treatment against a person because of the person’s WHS roles or activities.
Examples of discriminatory conduct could include:
- dismissing a worker
- terminating a contract for services with a worker
- changing a worker’s position to their disadvantage (for example standing an health and safety representative (HSR) down, less flexible work hours, less favorable shifts, less overtime and repeated changes to shifts, rosters or working hours)
- treating a worker differently from others
- not hiring someone
- offering a prospective worker less favourable terms and conditions
- terminating a commercial arrangement.
A person must not take any action intended to intimidate, force or cause a person to exercise, or not exercise, a health and safety power, function or role.
Immunity of health and safety representatives
The WHS Act provides protections for a health and safety representative while performing their role and functions.
A HSR is not personally liable for anything done or omitted to be done in good faith when exercising a power or performing a function under the WHS Act or in the reasonable belief that the thing was done or omitted to be done in the exercise of a power or the performance of a function under the WHS Act.
Discriminatory conduct case study
SafeWork NSW brought this first-of-its-kind action after HSR Theo Seremetidis was stood down after he directed workers to cease unsafe work and raised concerns about workers being exposed to COVID-19.
On 2 February 2020, the day after the announcement that Australia would be shutting its borders to flights from China, Mr Seremetidis directed his colleagues to cease work and not clean two aircrafts due to arrive from Mainland China. In response, Mr Seremetidis was isolated from his workgroup and stood down by Qantas. SafeWork NSW filled charges under section 104 of the WHS Act alleging that Qantas engaged in discriminatory conduct for a prohibited reason.
In November 2023 Qantas was found guilty and the court ordered Qantas to pay $250,000 for its breach.
Work Health and Safety Minister Sophie Cotsis said: “As a first principle no Work Health and Safety rep should be stood down for doing their job. I greatly appreciate the work that the TWU has done to support workplace health and safety. I am also very pleased SafeWork took the initiative in this case to ensure the rights of Health and Safety reps were protected. Let this case stand as a warning, not just to Qantas but to all employers, not to discriminate."
District Court Judge Honourable David Russell stated in his findings “A reading of all of the provisions in the WHS Act regarding HSRs leads me to the view that an HSR should be fearless in carrying out his or her duties and obligations, providing that such acts are done in good faith, and in the reasonable belief that the action taken by the HSR is done in the exercise of a power or the performance of a function granted to an HSR under the WHS Act.”