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Contents (2011 - 10)
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Work Health and Safety Act 2011 No 10
Current version for 6 January 2017 to date (accessed 25 April 2017 at 18:34)
Part 6
Part 6 Discriminatory, coercive and misleading conduct
Division 1 Prohibition of discriminatory, coercive or misleading conduct
104   Prohibition of discriminatory conduct
(1)  A person must not engage in discriminatory conduct for a prohibited reason.
Maximum penalty:
(a)  in the case of an individual—$100,000, or
(b)  in the case of a body corporate—$500,000.
(2)  A person commits an offence under subsection (1) only if the reason referred to in section 106 was the dominant reason for the discriminatory conduct.
Note.
 Civil proceedings may be brought under Division 3 of this Part in relation to discriminatory conduct engaged in for a prohibited reason.
105   What is “discriminatory conduct”
(1)  For the purposes of this Part, a person engages in discriminatory conduct if:
(a)  the person:
(i)  dismisses a worker, or
(ii)  terminates a contract for services with a worker, or
(iii)  puts a worker to his or her detriment in the engagement of the worker, or
(iv)  alters the position of a worker to the worker’s detriment, or
(b)  the person:
(i)  refuses or fails to offer to engage a prospective worker, or
(ii)  treats a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement, or
(c)  the person terminates a commercial arrangement with another person, or
(d)  the person refuses or fails to enter into a commercial arrangement with another person.
(2)  For the purposes of this Part, a person also engages in discriminatory conduct if the person organises to take any action referred to in subsection (1) or threatens to organise or take that action.
106   What is a “prohibited reason”
Conduct referred to in section 105 is engaged in for a prohibited reason if it is engaged in because the worker or prospective worker or the person referred to in section 105 (1) (c) or (d) (as the case requires):
(a)  is, has been or proposes to be a health and safety representative or a member of a health and safety committee, or
(b)  undertakes, has undertaken or proposes to undertake another role under this Act, or
(c)  exercises a power or performs a function or has exercised a power or performed a function or proposes to exercise a power or perform a function as a health and safety representative or as a member of a health and safety committee, or
(d)  exercises, has exercised or proposes to exercise a power under this Act or exercises, has exercised or proposes to exercise a power under this Act in a particular way, or
(e)  performs, has performed or proposes to perform a function under this Act or performs, has performed or proposes to perform a function under this Act in a particular way, or
(f)  refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act or refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act in a particular way, or
(g)  assists or has assisted or proposes to assist, or gives or has given or proposes to give any information to any person exercising a power or performing a function under this Act, or
(h)  raises or has raised or proposes to raise an issue or concern about work health and safety with:
(i)  the person conducting a business or undertaking, or
(ii)  an inspector, or
(iii)  a WHS entry permit holder, or
(iv)  a health and safety representative, or
(v)  a member of a health and safety committee, or
(vi)  another worker, or
(vii)  any other person who has a duty under this Act in relation to the matter, or
(viii)  any other person exercising a power or performing a function under this Act, or
(i)  is involved in, has been involved in or proposes to be involved in resolving a work health and safety issue under this Act, or
(j)  is taking action, has taken action or proposes to take action to seek compliance by any person with any duty or obligation under this Act.
107   Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct
A person must not request, instruct, induce, encourage, authorise or assist another person to engage in discriminatory conduct in contravention of section 104.
Maximum penalty:
(a)  in the case of an individual—$100,000, or
(b)  in the case of a body corporate—$500,000.
Note.
 Civil proceedings may be brought under Division 3 of this Part if a person requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason.
108   Prohibition of coercion or inducement
(1)  A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce or induce the other person, or a third person:
(a)  to exercise or not to exercise a power, or to propose to exercise or not to exercise a power, under this Act, or
(b)  to perform or not to perform a function, or to propose to perform or not to perform a function, under this Act, or
(c)  to exercise or not to exercise a power or perform a function, or to propose to exercise or not to exercise a power or perform a function, in a particular way, or
(d)  to refrain from seeking, or continuing to undertake, a role under this Act.
Maximum penalty:
(a)  in the case of an individual—$100,000, or
(b)  in the case of a body corporate—$500,000.
Note.
 Civil proceedings may be brought under Division 3 of this Part in relation to a contravention of this section.
(2)  In this section, a reference to taking action or threatening to take action against a person includes a reference to not taking a particular action or threatening not to take a particular action in relation to that person.
(3)  To avoid doubt, a reasonable direction given by an emergency services worker in an emergency is not an action with intent to coerce or induce a person.
(4)  In this section, emergency services worker includes an officer, employee or member of any of the following:
(a)  the Ambulance Service of NSW,
(b)  Fire and Rescue NSW,
(c)  the NSW Rural Fire Service,
(d)  the NSW Police Force,
(e)  the State Emergency Service,
(f)  the NSW Volunteer Rescue Association Inc,
(g)  the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001,
(h)  an accredited rescue unit within the meaning of the State Emergency and Rescue Management Act 1989.
109   Misrepresentation
(1)  A person must not knowingly or recklessly make a false or misleading representation to another person about that other person’s:
(a)  rights or obligations under this Act, or
(b)  ability to initiate, or participate in, a process or proceedings under this Act, or
(c)  ability to make a complaint or inquiry to a person or body empowered under this Act to seek compliance with this Act.
Maximum penalty:
(a)  in the case of an individual—$100,000, or
(b)  in the case of a body corporate—$500,000.
(2)  Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
Division 2 Criminal proceedings in relation to discriminatory conduct
110   Proof of discriminatory conduct
(1)  This section applies if in proceedings for an offence of contravening section 104 or 107, the prosecution:
(a)  proves that the discriminatory conduct was engaged in, and
(b)  proves that a circumstance referred to in section 106 (a)–(j) existed at the time the discriminatory conduct was engaged in, and
(c)  adduces evidence that the discriminatory conduct was engaged in for a prohibited reason.
(2)  The reason alleged for the discriminatory conduct is presumed to be the dominant reason for that conduct unless the accused proves on the balance of probabilities, that the reason was not the dominant reason for the conduct.
(3)  To avoid doubt, the burden of proof on the accused under subsection (2) is a legal burden of proof.
111   Order for compensation or reinstatement
If a person is convicted or found guilty of an offence under section 104 or 107, the court may (in addition to imposing a penalty) make either or both of the following orders:
(a)  an order that the offender pay (within a specified period) the compensation to the person who was the subject of the discriminatory conduct that the court considers appropriate,
(b)  in relation to a person who was or is an employee or prospective employee, an order that:
(i)  the person be reinstated or reemployed in his or her former position or, if that position is not available, in a similar position, or
(ii)  the person be employed in the position for which he or she had applied or a similar position.
Division 3 Civil proceedings in relation to discriminatory or coercive conduct
112   Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct
(1)  An eligible person may apply to the District Court for an order under this section.
(2)  The District Court may make one or more of the orders set out in subsection (3) in relation to a person who has:
(a)  engaged in discriminatory conduct for a prohibited reason, or
(b)  requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason, or
(c)  contravened section 108.
(3)  For the purposes of subsection (2), the orders that the District Court may make are:
(a)  an injunction, or
(b)  in the case of conduct referred to in subsection (2) (a) or (b), an order that the person pay (within a specified period) the compensation to the person who was the subject of the discriminatory conduct that the District Court considers appropriate, or
(c)  in the case of conduct referred to in subsection (2) (a) in relation to a worker who was or is an employee or prospective employee, an order that:
(i)  the worker be reinstated or reemployed in his or her former position or, if that position is not available, in a similar position, or
(ii)  the prospective worker be employed in the position for which he or she had applied or a similar position, or
(d)  any other order that the District Court considers appropriate.
(4)  For the purposes of this section, a person may be found to have engaged in discriminatory conduct for a prohibited reason only if a reason referred to in section 106 was a substantial reason for the conduct.
(5)  Nothing in this section is to be construed as limiting any other power of the District Court.
(6)  For the purposes of this section, each of the following is an eligible person:
(a)  a person affected by the contravention,
(b)  a person authorised as a representative by a person referred to in paragraph (a).
113   Procedure for civil actions for discriminatory conduct
(1)  A proceeding brought under section 112 must be commenced not more than 1 year after the date on which the applicant knew or ought to have known that the cause of action accrued.
(2)  In a proceeding under section 112 in relation to conduct referred to in section 112 (2) (a) or (b), if a prohibited reason is alleged for discriminatory conduct, that reason is presumed to be a substantial reason for that conduct unless the defendant proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct.
(3)  It is a defence to a proceeding under section 112 in relation to conduct referred to in section 112 (2) (a) or (b) if the defendant proves that:
(a)  the conduct was reasonable in the circumstances, and
(b)  a substantial reason for the conduct was to comply with the requirements of this Act or a corresponding WHS law.
(4)  To avoid doubt, the burden of proof on the defendant under subsections (2) and (3) is a legal burden of proof.
Division 4 General
114   General provisions relating to orders
(1)  The making of an order in a proceeding under section 112 in relation to conduct referred to in section 112 (2) (a) or (b) does not prevent the bringing of a proceeding for an offence under section 104 or 107 in relation to the same conduct.
(2)  If the District Court makes an order under section 112 in a proceeding in relation to conduct referred to in section 112 (2) (a) or (b), the court cannot make an order under section 111 in a proceeding for an offence under section 104 or 107 in relation to the same conduct.
(3)  If the court makes an order under section 111 in a proceeding for an offence under section 104 or 107, the District Court cannot make an order under section 112 in a proceeding in relation to conduct referred to in section 112 (2) (a) or (b) that is the same conduct.
115   Prohibition of multiple actions
A person cannot:
(a)  commence a proceeding under Division 3 of this Part if the person has commenced a proceeding or made an application or complaint in relation to the same matter under a law of the Commonwealth or a State and that proceeding, application or complaint has not been withdrawn, or
(b)  recover any compensation under Division 3 of this Part if the person has received compensation for the matter under a law of the Commonwealth or a State, or
(c)  commence or continue an application under Division 3 of this Part if the person has failed in a proceeding, application or complaint in relation to the same matter under a law of the Commonwealth or a State, other than a proceeding, application or complaint relating to workers’ compensation.