Victoria moves to raise OHS and discrimination protections

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Victoria moves to raise OHS and discrimination protections

Victorian workers who raise OHS issues and suffer discrimination as a result, will be able to sue their employers for damages under new legislation introduced into State Parliament.

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Victorian workers who raise OHS issues and suffer discrimination as a result, will be able to sue their employers for damages under new legislation introduced into State Parliament.
 
The Occupational Health and Safety Amendment (Employee Protection) Bill 2008 proposes to establish an individual right of action for employees for instances of alleged OHS discrimination.
 
In his second reading speech, WorkCover Minister Tim Holding said it is accepted that workplace health and safety relies on everyone — employers and workers — playing a ‘proactive role’.
 
‘This system is not premised on having WorkSafe inspectors on hand at every workplace, 24 hours a day,’ he said.
 
‘Nor can employees be proactive about workplace health and safety in an environment where they risk any disadvantage for acting as or assisting employee representatives, for aiding or providing information to a WorkSafe inspector, or for speaking out about their OHS concerns.’
 
Onus on employer
 
In addition to the existing criminal provisions for OHS discrimination, the Bill provides for an individual employee who has allegedly suffered discrimination to apply to the industrial division of the Magistrates Court for a civil remedy.
 
As with the existing criminal provisions in the OHS Act for OHS discrimination, the onus of proof in such cases will be on the employer. However, a 'substantial reason' test will apply under the new civil arrangements rather than the stronger 'dominant reason' test for criminal cases.
 
There is also provision for an individual to seek an injunction from the court to restrain proscribed conduct.
 
The Bill also makes it clear that a civil defence is available where the employer's conduct was reasonable in the circumstances and undertaken to comply with other provisions of the OHS Act or the Accident Compensation Act.
 
The Magistrates Court will have powers to make orders, including for damages and reinstatement. It will also direct matters to alternative dispute resolution.
 
Unions and independent contractors
 
The identified activities in the Act to which protection from discrimination is provided will be expanded to include where employees assist or raise safety issues with authorised representatives of unions.
 
'This reflects the important role such representatives play in workplace health and safety and should enhance the overall efficacy of Victoria's OHS regime, which is reliant on all workplace parties playing an active role in speaking out on OHS issues,’ Holding told Parliament.
 
The Bill also provides coverage of third-party discrimination against employees of independent contractors.
 
The prison penalty for criminal breaches of s76 of the OHS Act will be removed, bringing Victoria into line with other jurisdictions.
 
The Bill was tabled in State Parliament on 2 December. If passed, the new arrangements will come into effect on 1 July 2009.
 
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