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Occupational Health and Safety
Amendment (Employee Protection)
Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
General
The main purpose of this Bill is to amend the Occupational Health and
Safety Act 2004 to enable an employee or prospective employee whose
employer or prospective employer engages in discriminatory conduct to bring
a civil action.
The Bill also provides protection for employees or prospective employees
against discriminatory conduct instigated by third parties.
The Bill further provides that the court may order the payment of damages or
other redress to an employee or prospective employee whose action is
successful.
The Bill also removes the penalty of imprisonment from the existing
provisions of the Occupational Health and Safety Act 2004 in relation to
discriminatory conduct.
Finally, the Bill amends the existing provisions of the Occupational Health
and Safety Act 2004 in relation to discriminatory conduct to include
authorised representatives of registered employee organisations among those
with whom an employee or prospective employee may engage in activity
related to occupational health and safety that is protected by the Act.
Clause Notes
Clause 1 sets out the purpose of the Bill, which is to amend the
Occupational Health and Safety Act 2004 to create a civil
cause of action for employees or prospective employees who are
discriminated against by an employer or prospective employer on
grounds that relate to occupational health and safety.
561297 1 BILL LA INTRODUCTION 3/12/2008
Section 76 of that Act currently establishes such discrimination
as a criminal offence with penalties, and section 78 enables a
court to make orders for damages or other redress if the employer
or prospective employer is convicted. However, these provisions
do not enable the employee or prospective employee who is
discriminated against to commence their own action to recover
damages or seek other forms of redress in the event that the
employer or prospective employer is not convicted, or the court
does not order the type or extent of redress the employee or
prospective employee is seeking.
Clause 2 provides that the Bill will commence on a day or days to be
proclaimed. If a provision does not come into operation before
1 July 2009, it will come into operation on that date.
Clause 3 defines the Occupational Health and Safety Act 2004 as the
Principal Act for the purposes of the Bill.
Clause 4 amends the existing criminal offence provisions of the Principal
Act (that is, the Occupational Health and Safety Act 2004 as
defined in Clause 3) to--
· extend the categories of people whom an employee or
prospective employee may assist, provide with
information or raise an occupational health and safety
issue while being protected against discrimination by an
employer; and
· remove the penalty of imprisonment.
Subclauses (1) and (2) amend sections 76(2)(c) and (d) of the
Principal Act to add an authorised representative of a registered
employee organisation to the list of people named in each of
those two sections. An authorised representative of a registered
employee organisation is defined in the Principal Act and has
certain powers relating to entry to workplaces that are established
in Part 8 of the Principal Act.
Subclause (3) has the effect of removing the reference to 'a term
of imprisonment not exceeding 6 months' from the penalty
provisions of section 76(4)(a) of the Principal Act. This means
that an employer who is a natural person, i.e. not a body
corporate, can no longer be imprisoned but only fined if
convicted of an offence under section 76.
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Clause 5 inserts a new Subdivision heading into Division 9 of Part 7 of the
Principal Act. The effect of this is to separate Division 9 into
two sets of provisions, the first being the existing provisions
relating to the criminal offence of engaging in discriminatory
conduct (as modified by this Bill), and the second relating to the
new provisions relating to a civil cause of action that are inserted
into the Principal Act by Clause 6 of this Bill.
Clause 6 inserts a new Subdivision 2, composed of five new sections
numbered 78A, 78B, 78C, 78D and 78E into the Principal Act.
As stated above, this Subdivision creates a new civil cause of
action relating to discriminatory conduct.
New section 78A(1) provides that an employer must not engage
in discriminatory conduct for a prohibited reason. This section is
based on the existing section 76 of the Principal Act, but does not
create an indictable offence.
New section 78A(2) establishes that an employer or prospective
employer engages in discriminatory conduct by doing or failing
to do specified actions. These actions are modelled on those set
out in section 76(1) of the Principal Act in respect of the criminal
offence created by section 76.
New section 78B(1) provides that the reason for the action of
the employer or prospective employer must be related to
specified occurrences relating to occupational health and safety.
The specified occurrences are modelled on those set out in
section 76(2) of the Principal Act in respect of the criminal
offence created by section 76.
New section 78B(2) provides that the reason must be a
substantial reason. This provision is modelled on that set out in
section 76(3) of the Principal Act in respect of the criminal
offence created by section 76, but with the difference that for the
criminal offence, the reason must be the dominant reason for the
action.
New section 78C provides that a third party must not instigate or
encourage discriminatory conduct by an employer. This section
is modelled on section 98 of the Equal Opportunity Act 1995.
New section 78D(1) enables an eligible person (that is, an
employee or prospective employee, or his or her representative,
as defined by new section 78D(5) below) to apply to the
Industrial Division of the Magistrates' Court for an order under
new section 78D.
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New section 78D(2) enables the Industrial Division of the
Magistrates' Court to make orders for payment of damages or
other redress to be made by the employer or prospective
employer if the employee or prospective employee is successful
in their action. These provisions are modelled on those existing
in section 78 that apply if the employer or prospective employer
is convicted.
New section 78D(3) enables the Industrial Division of the
Magistrates' Court to make orders for payment of damages or
other redress to be made by a third party if the employee or
prospective employee is successful in their action.
New section 78D(4) specifies that the orders that the Magistrates'
Court may make include the granting of injunctive relief to an
employee or prospective employee, as well as any other orders
that the Court considers necessary.
New section 78D(5) defines an eligible person to be the
employee or prospective employee who has been discriminated
against, or their authorised representative (such as a legal
practitioner). New section 78D(1) above specifies that a civil
action under these provisions can only be brought by such an
eligible person.
New section 78D(6) provides that the powers of the Magistrates'
Court, except where specifically modified by this Bill, are not
otherwise limited by the Bill.
New section 78E(1) provides that any action cannot be brought
more than one year after the employee or prospective employee
bringing it first became aware, or ought to have become aware,
that the employer or prospective employer had acted in a manner
specified in section 78A(2) for a substantial reason specified in
section 78B(1), or that a third party had acted in a manner
specified in section 78C(1) with the outcome that their employer
or prospective employer discriminated against them.
New section 78E(2) provides that the defendant, that is the
employer or prospective employer, or third party, bears the onus
of proving that the reason was not a substantial reason.
This provision is modelled on that set out in section 77 of the
Principal Act in respect of the criminal offence created by
section 76, but again with the "dominant reason" test for the
criminal offence replaced by a "substantial reason" test.
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New section 78E(3) provides that it is a defence to an action
brought under new sections 78A or 78C if the conduct was
reasonable in the circumstances and that a substantial reason for
the conduct was to comply with a requirement of the Principal
Act or the Accident Compensation Act 1995. This section is
modelled on section 7B of the (Commonwealth) Sex
Discrimination Act 1984.
New section 78E(4) provides that a successful civil action under
this new Subdivision 2 does not prevent a prosecution under
Subdivision 1, that is, the existing criminal offence (as modified
by this Bill).
New section 78E(5) prevents an employee or prospective
employee whose action is successful and who obtains damages or
other redress from the Magistrates' Court, and whose employer or
prospective employer is subsequently convicted, from also
obtaining damages or other redress from the court that has
imposed the conviction.
New section 78E(6) similarly applies the reverse situation, that is,
prevents an employee or prospective employee whose employer
or prospective employer has been convicted and who obtains
damages or other redress from the court that has imposed the
conviction, from also obtaining damages or other redress from
the Magistrates' Court as an outcome of a civil action based on
the same conduct.
Clause 7 provides that only conduct by an employer or prospective
employer, or third party, that occurs on or after the date clause 6
of this Bill comes into operation can be the basis for an action
under these new civil action provisions.
Clause 8 provides that the amending Act is repealed on 1 July 2010.
The repeal of this Act does not affect the continued operation of
the amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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