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Contents (2011 - 10)
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Work Health and Safety Act 2011 No 10
Current version for 8 June 2017 to date (accessed 27 June 2017 at 08:38)
Part 6 Division 1
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.