Victorian Numbered Acts Victorian Numbered ActsAfter section 242 of the Accident Compensation Act 1985 insert —
(1) An employer or prospective employer must not engage in discriminatory conduct for a prohibited reason.
Penalty: 240 penalty units for a natural person;
1200 penalty units for a body corporate.
(2) For the purposes of this section, an employer engages in "discriminatory conduct" if the employer—
(a) dismisses, or threatens to dismiss, a worker from employment; or
(b) alters, or threatens to alter, the position of a worker to the worker's detriment; or
(c) treats a worker less favourably than another worker in relation to promotion or re-employment.
(3) Conduct referred to in subsection (2) is engaged in for a prohibited reason if the dominant reason is because the worker—
(a) has given the employer or any other employer notice of an injury; or
(b) has taken steps to pursue a claim for compensation against the employer or any other employer; or
(c) has given, or attempted to give, a claim for compensation to the employer or any other employer, the Authority or a self-insurer; or
(d) has complied with a request made under section 239 or 240.
(4) For the purposes of this section, a prospective employer engages in discriminatory conduct if the prospective employer—
(a) refuses or fails to offer employment to an applicant for employment; or
(b) in offering, or refusing to offer, terms of employment, treats an applicant for employment less favourably than another applicant for employment.
(5) Conduct referred to in subsection (4) is engaged in for a prohibited reason if the dominant reason is because the applicant for employment—
(a) has given an employer notice of an injury; or
(b) has taken steps to pursue a claim for compensation against an employer; or
(c) has given or attempted to give a claim for compensation to an employer, the Authority or a self-insurer; or
(d) has complied with a request made under section 239 or 240.
(6) In proceedings for an offence against this section, if all the facts constituting the discriminatory conduct are proved, the employer or prospective employer bears the burden of adducing evidence that the reason alleged in the charge was not the dominant reason why the employer or prospective employer engaged in the conduct.
(7) It is a defence to proceedings for an offence against this section if the employer or prospective employer proves that—
(a) the relevant conduct was
necessary to comply with the requirements of this Act or the
Occupational Health and Safety Act 2004 ; or
s. 23
(b) the worker or applicant for employment was unable to perform the inherent requirements of the employment, even if the employer or prospective employer had made reasonable adjustments to those requirements; or
(c) the worker was engaged in fraud or dishonesty in relation to, or associated with, the giving of notice of the injury or pursuit of the claim for compensation.
(1) If an employer or prospective employer is convicted or found guilty of an offence against section 242AA in respect of a worker or applicant for employment, the court may (in addition to imposing a penalty) make one or more of the following orders—
(a) an order that the employer or prospective employer pay (within a specified period) to the worker or applicant for employment such damages as the court considers appropriate to compensate the worker or applicant for hurt and humiliation as the result of the discriminatory conduct;
(b) an order that the employer or prospective employer pay the worker or applicant an amount not exceeding the remuneration that—
(i) in the case
of a worker, but for the discriminatory conduct, the worker would have
received from that employer during the 12 months immediately after the
discriminatory conduct was engaged in;
s. 23
(ii) in the case of an applicant for employment, the applicant would have received if the applicant had been employed by that prospective employer for a period not exceeding 12 months from the day on which the applicant made the application for employment;
(c) an order that—
(i) the worker be reinstated or re-employed in the worker's former position or, if that position is not available, in a similar position; or
(ii) the worker or applicant for employment be employed in the position for which he or she had applied or a similar position.
(2) In making any order under this section, the court must take into account any compensation or damages received by the worker in respect of any injury to which the discriminatory conduct relates.
(3) Nothing in a proceeding referred to in section 242AA or 242AD gives rise to an issue estoppel in relation to a claim for compensation under this Act or an application or proceedings referred to in section 134AB.
(1) If—
(a) a worker or applicant for employment considers that an offence against section 242AA has occurred; and
(b) no prosecution has been brought in respect of that occurrence within 6 months of that occurrence—
the worker or applicant for employment may request in writing that the Authority bring a prosecution in respect of that occurrence.
(2) Within 3 months after it receives a request under subsection (1), the Authority—
(a) must investigate the matter; and
(b) must advise (in writing) the worker or applicant for employment that a prosecution has been or will be brought or give reasons why a prosecution will not be brought.
(3) If the Authority advises the worker or applicant for employment that a prosecution will not be brought, the Authority must refer the matter to the Director of Public Prosecutions if the worker or applicant for employment requests (in writing) that the Authority do so.
(4) The Director of Public Prosecutions must consider the matter and advise (in writing) the Authority whether or not the Director considers that a prosecution should be brought.
(5) The Authority must ensure a copy of the advice is sent to the worker or applicant for employment who made the request and, if the Authority declines to follow advice from the Director of Public Prosecutions to bring proceedings, the Authority must give the worker or applicant for employment written reasons for its decision.
(6) The Authority must include in its annual report, and publish on its website, a statement setting out—
(a) the number of requests received by the Authority under subsection (1); and
(b) the number of cases in which the Authority has advised under subsection (2)(b) that a prosecution has been or will be brought, or will not brought; and
(c) the number of cases in which the Director of Public Prosecutions has advised under subsection (4) that a prosecution should be brought or should not be brought.
(7) No proceedings may be brought in respect of a decision to bring or not to bring proceedings for an offence under section 242AA.
(8) For the purposes of subsection (7), "proceedings" includes—
(a) the inquiry into, hearing and determination of any question or matter under this Act;
(b) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration of right or an injunction;
(c) seeking any order under the Administrative Law Act 1978 ;
(d) any other action or proceeding.
(1) For the purposes of this section, an employer engages in discriminatory conduct if the employer—
(a) dismisses, or threatens to dismiss, a worker from employment; or
(b) alters, or threatens to alter, the position of a worker to the worker's detriment; or
(c) treats a worker less favourably than another worker in relation to promotion or re-employment.
(2) Conduct referred to in subsection (1) is engaged in for a prohibited reason if a substantial reason is because the worker—
(a) has given the employer or any other employer notice of an injury; or
(b) has taken steps to pursue a claim for compensation against the employer or any other employer; or
(c) has given, or attempted to give, a claim for compensation to the employer or any other employer, the Authority or a self-insurer; or
(d) has complied with a request made under section 239 or 240.
(3) For the purposes of this section, a prospective employer engages in discriminatory conduct if the prospective employer—
(a) refuses or fails to offer employment to an applicant for employment; or
(b) in offering, or refusing to offer, terms of employment, treats an applicant for employment less favourably than another applicant for employment.
(4) Conduct referred to in subsection (3) is engaged in for a prohibited reason if a substantial reason is because the applicant for employment—
(a) has given an employer notice of an injury; or
(b) has taken steps to pursue a claim for compensation against an employer; or
(c) has given or attempted to give a claim for compensation to an employer, the Authority or a self-insurer; or
(d) has complied with a request made under section 239 or 240.
(5) A worker or an applicant for employment may apply to the Industrial Division of the Magistrates' Court for an order under this section in relation to an employer or a prospective employer who has engaged in discriminatory conduct for a prohibited reason.
(6) An application referred to in subsection (5) must be made not more than one year after the date on which the discriminatory conduct occurred.
(7) In a proceeding under this section, if all the facts constituting the discriminatory conduct are proved, the employer or prospective employer bears the burden of adducing evidence that the reason alleged in the proceeding was not a substantial reason for the conduct.
(8) It is a defence to a proceeding under this section if the employer or prospective employer proves that—
(a) the relevant conduct was necessary to comply with the requirements of this Act or the Occupational Health and Safety Act 2004 ; or
(b) the worker or applicant for employment was unable to perform the inherent requirements of the employment even if the employer or prospective employer made reasonable adjustments to those requirements; or
(c) the worker was engaged in fraud or dishonesty in relation to, or associated with, the giving of notice of the injury or pursuit of the claim for compensation.
(9) The Industrial Division of the Magistrates' Court may make one or more of the following orders in relation to an employer or prospective employer who has engaged in discriminatory conduct for a prohibited reason—
(a) an order that the employer or prospective employer pay (within a specified period) to the worker or applicant for employment such damages as the court considers appropriate to compensate the worker or applicant for hurt and humiliation as a result of the discriminatory conduct;
(b) an order that the employer or prospective employer pay the worker or applicant an amount not exceeding the remuneration that—
(i) in the case of a worker, the worker was entitled to receive from that employer during the 12 months immediately after the discriminatory conduct was engaged in or, if the worker was so employed for less than 12 months, the amount the worker would have been entitled to receive if the worker had been so employed for that period of 12 months;
(ii) in the case of an applicant for employment, the applicant would have received if the applicant had been employed by that prospective employer for a period not exceeding 12 months from the day on which the applicant made the application for employment;
(c) an order that—
(i) the worker be reinstated or re-employed in the worker's former position or, if that position is not available, in a similar position; or
(ii) the worker or applicant for employment be employed in the position for which the worker or applicant had applied or a similar position.
(10) In making any order under this section, the court must take into account any compensation or damages received by the worker in respect of any injury to which the discriminatory conduct relates.
(11) Each party to a proceeding under this section
is to bear its own costs in the proceeding unless the court
determines that it is fair that a party pay all or a specified part of the
costs of another party.
s. 23
(1) The making of an order in a proceeding under section 242AD does not prevent the bringing of a proceeding for an offence against section 242AA in respect of the same conduct.
(2) If a court makes an order in a proceeding under section 242AB, a court cannot make an order under section 242AD in respect of the same conduct.
(3) If a court makes an order in a proceeding under section 242AD, a court cannot make an order under section 242AB in a proceeding for an offence against section 242AA in respect of the same conduct.
An application for an order under section 242AB or a proceedings under 242AD is not a proceeding in respect of an injury within the meaning of section 134AB(1).".