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First successful SafeWork NSW prosecution for discriminatory conduct under the WHS Act

02 April 2024

5 min read

#Workplace Relations & Safety

Published by:

Jamie Kim, Annelise Harper

First successful SafeWork NSW prosecution for discriminatory conduct under the WHS Act

Employers will be familiar with Australia’s anti-discrimination laws. However, a lesser-known protection that often falls under the radar is in the anti-discrimination provisions of work health and safety legislation.

In SafeWork NSW v Qantas Ground Services Pty Ltd (No. 4) [2024] NSWDC 53, SafeWork NSW succeeded in what appears to be the first prosecution for discriminatory conduct under the NSW and model work health and safety laws in Australia.

In this notable decision, the District Court of New South Wales accepted that an employee had been discriminated against under the Work Health and Safety Act 2011 (NSW) (WHS Act) when he was stood down after exercising his rights as a workplace health and safety representative. At the time, the employee, Mr Seremetidis (the Employee), was a high lift truck driver and an elected health and safety representative (HSR) working for Qantas Ground Services Pty Ltd (QGS) at Sydney International Terminal.

While this decision marks the first successful prosecution under Australia’s model work health and safety laws, it is not the first case where an employer has been held liable for discriminating against an employee for having raised a safety issue. In an analogous case prosecuted under Victoria’s Occupational Health and Safety Act 2004 (Vic), an employer was fined $180,000 after standing down and issuing a formal warning to an employee who raised a safety concern.

What were the key facts leading to the prosecution?

The events giving rise to this decision took place in early 2020 amidst heightened concerns about the global spread of COVID-19.

On 1 February 2020, the Australian Government imposed new travel restrictions and isolation measures for citizens returning from mainland China based on the increased risk posed by the coronavirus.

On 2 February 2020, the Employee directed other QGS employees on three occasions to cease cleaning and servicing flights arriving from mainland China.

Later that day, QGS called the Employee into a meeting during which a QGS senior executive read from a prepared script from her phone. QGS provided the Employee with a direction to immediately leave the workplace and a letter directing him that he must not attend work before the conclusion of an investigation into his conduct.

SafeWork NSW succeeded in its argument that QGS had discriminated against the Employee in breach of section 104 of the WHS Act when it excluded him from the workplace because he had exercised his power as an HSR to direct employees to cease unsafe work.

What does the WHS Act say?

Section 85 of the WHS Act empowers an HSR to direct workers to cease work if the HSR has a reasonable concern that carrying out the work would mean exposure to serious health or safety risks.

Section 104 of the WHS Act prohibits a person from engaging in discriminatory conduct for a prohibited reason. ‘Discriminatory conduct’ includes the act of altering a worker’s position to their detriment. A ‘prohibited reason’ includes the fact that the worker has exercised a power or performed a function as an HSR.

What were the Court’s findings?

The parties did not dispute that by standing down the Employee, QGS had altered his position in a way that was to his detriment.

In considering whether the Employee’s direction was validly given as an HSR under section 85 of the WHS Act, making it capable of forming the ‘prohibited reason’ under section 104, the Court held:

  • the Employee held a ‘reasonable concern’ as to safety and that concern could not be seen as “fanciful, illogical or irrational” in the context of the Government restrictions imposed on 1 February 2020, which demonstrated the Federal Government’s view of the risk that COVID-19 posed to Australia
  • there was a serious risk to worker health and safety because the workers were tasked with servicing aircraft arriving from a country that was at the epicentre of the Government’s restrictions
  • the risk arose from an immediate or imminent exposure to a hazard because the cleaning crew would be exposed to the virus immediately upon boarding the aircraft.

While the Court considered that the Employee was under an obligation to first consult with QGS before giving the directions, the Court found that his failure did not invalidate the directions. This is particularly so because QGS had not raised concern about the lack of consultation at the time and QGS itself had also failed to fulfil its obligations under the WHS Act to consult about a health and safety matter.

The Court accepted that QGS saw the Employee’s directions to cease work as a threat to the conduct of the business and as a result, stood him down from his employment, breaching section 104 of the WHS Act.

The Court ordered QGS to pay a fine of $250,000 and compensation of $21,000 (which comprised of $6,000 economic loss and $15,000 non-economic loss).

What are the key takeaways from this decision?

The Court stressed the importance of the role of an HSR in a business, which is not only vital in protecting the safety of workers but also provides a positive advantage to the operation of businesses by providing an avenue to deal with health and safety matters.

Where employers and businesses are considering disciplinary or other actions in response to an HSR’s actions, it is prudent to reflect on whether such action or plan will fall afoul of the protections against discrimination in the WHS Act. This decision provides a timely reminder and important message that risk arises not only in exposure to a general protections claim under the Fair Work Act 2009 (Cth), but also under the WHS Act.

If you have any questions, please get in touch with a member of our team below.

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Jamie Kim, Annelise Harper

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