Contents (2011 - 10)
Work Health and Safety Act 2011 No 10
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.