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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Occupational Health and Safety Amendment
(Employee Protection) Bill 2008
TABLE OF PROVISIONS
Clause Page
1 Purpose 1
2 Commencement 2
3 Principal Act 2
4 Prohibition on discrimination 2
5 New Subdivision heading inserted in Division 9 of Part 7 3
6 New Subdivision 2 inserted in Division 9 of Part 7 3
Subdivision 2--Civil actions for discriminatory conduct 3
78A Prohibition of discriminatory conduct 3
78B Prohibited reasons 4
78C Prohibition of authorising or assisting discriminatory
conduct 5
78D Civil action for discriminatory conduct 5
78E Procedure for actions for discriminatory conduct 7
7 Transitional provision 8
177 Proceedings for contravention of section 78A or 78C 8
8 Repeal of amending Act 8
ENDNOTES 9
561297B.I-3/12/2008 i BILL LA INTRODUCTION 3/12/2008
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Occupational Health and Safety
Amendment (Employee Protection) Bill
2008
A Bill for an Act to amend the Occupational Health and Safety Act
2004 to create a civil cause of action for employees or prospective
employees who are discriminated against by an employer or
prospective employer on grounds that relate to occupational health
and safety.
The Parliament of Victoria enacts:
1 Purpose
The purpose of this Act is to amend the
Occupational Health and Safety Act 2004 to
create a civil cause of action for employees or
5 prospective employees who are discriminated
against by an employer or prospective employer
on grounds that relate to occupational health and
safety.
561297B.I-3/12/2008 1 BILL LA INTRODUCTION 3/12/2008
Occupational Health and Safety Amendment (Employee Protection) Bill
2008
s. 2
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
5 operation before 1 July 2009, it comes into
operation on that day.
3 Principal Act
See: In this Act, the Occupational Health and Safety
Act No.
107/2004. Act 2004 is called the Principal Act.
Reprint No. 1
as at
23 February
2007
and
amending
Act Nos
97/2005,
28/2007 and
66/2008.
LawToday:
www.
legislation.
vic.gov.au
10 4 Prohibition on discrimination
(1) In section 76(2)(c) of the Principal Act, after
"an inspector," insert "an authorised
representative of a registered employee
organisation,".
15 (2) In section 76(2)(d) of the Principal Act, after
"an inspector," insert "an authorised
representative of a registered employee
organisation,".
(3) For section 76(4)(a) of the Principal Act
20 substitute--
"(a) in the case of a natural person, a fine not
exceeding 500 penalty units; and".
561297B.I-3/12/2008 2 BILL LA INTRODUCTION 3/12/2008
Occupational Health and Safety Amendment (Employee Protection) Bill
2008
s. 5
5 New Subdivision heading inserted in Division 9 of
Part 7
After the heading to Division 9 of Part 7 of the
Principal Act insert--
5 "Subdivision 1--Criminal offences and
proceedings".
6 New Subdivision 2 inserted in Division 9 of Part 7
After section 78 of the Principal Act insert--
"Subdivision 2--Civil actions for
10 discriminatory conduct
78A Prohibition of discriminatory conduct
(1) An employer or prospective employer must
not engage in discriminatory conduct for a
prohibited reason.
15 (2) For the purposes of this subdivision, an
employer or prospective employer engages
in discriminatory conduct if--
(a) the employer of an employee--
(i) dismisses the employee, injures an
20 employee in the employment of
the employer or alters the position
of the employee to the employee's
detriment; or
(ii) threatens to do any of those things
25 to the employee; or
(b) the employer or prospective employer
of the prospective employee refuses or
fails to offer employment to the
prospective employee, or treats the
30 prospective employee less favourably
than another prospective employee
561297B.I-3/12/2008 3 BILL LA INTRODUCTION 3/12/2008
Occupational Health and Safety Amendment (Employee Protection) Bill
2008
s. 6
would be treated in offering terms of
employment.
78B Prohibited reasons
(1) Conduct referred to in section 78A is for a
5 prohibited reason if it is carried out because
the employee or prospective employee--
(a) is or has been a health and safety
representative or a member of a health
and safety committee; or
10 (b) exercises or has exercised a power as a
health and safety representative or as a
member of a health and safety
committee; or
(c) assists or has assisted, or gives or has
15 given any information to, an inspector,
an authorised representative of a
registered employee organisation, a
health and safety representative or a
member of a health and safety
20 committee; or
(d) raises or has raised an issue or concern
about health and safety to an employer,
an inspector, an authorised
representative of a registered employee
25 organisation, a health and safety
representative, a member of a health
and safety committee or an employee of
the employer.
(2) For the purposes of section 78A, an
30 employer or prospective employer may be
found to have engaged in discriminatory
conduct for a prohibited reason if a reason
mentioned in subsection (1) is a substantial
reason for the conduct.
561297B.I-3/12/2008 4 BILL LA INTRODUCTION 3/12/2008
Occupational Health and Safety Amendment (Employee Protection) Bill
2008
s. 6
78C Prohibition of authorising or assisting
discriminatory conduct
A person must not request, instruct, induce,
encourage, authorise or assist an employer or
5 prospective employer to engage in
discriminatory conduct in contravention of
section 78A.
78D Civil action for discriminatory conduct
(1) An eligible person may apply to the
10 Industrial Division of the Magistrates' Court
for an order under this section.
(2) The Industrial Division of the Magistrates'
Court may make one or more of the
following orders in relation to an employer
15 or prospective employer who has
contravened section 78A--
(a) an order that the employer or
prospective employer pay (within a
specified period) such damages to the
20 employee or prospective employee who
was the subject of the discriminatory
conduct as the Court considers
appropriate to compensate the
employee or prospective employee;
25 (b) an order that--
(i) the employee be reinstated or re-
employed in the employee's
former position or, if that position
is not available, in a similar
30 position; or
(ii) the prospective employee be
employed in the position for
which the prospective employee
had applied or a similar position;
561297B.I-3/12/2008 5 BILL LA INTRODUCTION 3/12/2008
Occupational Health and Safety Amendment (Employee Protection) Bill
2008
s. 6
(c) any other order that the Court considers
appropriate.
(3) The Industrial Division of the Magistrates'
Court may make one or more of the
5 following orders in relation to a person who
has contravened section 78C--
(a) an order that the defendant pay (within
a specified period) such damages to the
person who was the subject of the
10 discriminatory conduct as the Court
considers appropriate to compensate the
person;
(b) any other order that the Court considers
appropriate.
15 (4) The orders that may be made under
subsections (2)(c) or (3)(b) include--
(a) injunctions; and
(b) any other orders that the Industrial
Division of the Magistrates' Court
20 considers necessary to stop the conduct
or remedy its effects.
(5) For the purposes of this section, each of the
following is an eligible person--
(a) a person affected by the contravention;
25 (b) another person authorised to represent a
person referred to in paragraph (a).
(6) Nothing in this section is to be construed as
limiting any other power of the Industrial
Division of the Magistrates' Court.
561297B.I-3/12/2008 6 BILL LA INTRODUCTION 3/12/2008
Occupational Health and Safety Amendment (Employee Protection) Bill
2008
s. 6
78E Procedure for actions for discriminatory
conduct
(1) A proceeding brought for contravention of
section 78A or 78C must be commenced not
5 more than 1 year after the date on which the
plaintiff knew or ought to have known that
the cause of action accrued.
(2) In a proceeding for a contravention of
section 78A or 78C, if all the facts
10 constituting the alleged discriminatory
conduct other than the reason for the
defendant's conduct are proved, the
defendant bears the onus of proving that the
reason alleged in the complaint was not a
15 substantial reason for the conduct.
(3) It is a defence to proceeding for a
contravention of section 78A or 78C if the
defendant proves that--
(a) the conduct was reasonable in the
20 circumstances; and
(b) a substantial reason for the conduct was
to comply with the requirements of this
Act or with the Accident
Compensation Act 1985.
25 (4) The making of an order in a proceeding for a
contravention of section 78A does not
prevent the bringing of a proceeding for an
offence against section 76 in respect of the
same conduct.
30 (5) If the Industrial Division of the Magistrates'
Court makes an order under section 78D in a
proceeding for a contravention of
section 78A, the court cannot make an order
under section 78 in a proceeding for an
35 offence against section 76 in respect of the
same conduct.
561297B.I-3/12/2008 7 BILL LA INTRODUCTION 3/12/2008
Occupational Health and Safety Amendment (Employee Protection) Bill
2008
s. 7
(6) If the court makes an order under section 78
in a proceeding for an offence against
section 76, the Industrial Division of the
Magistrates' Court cannot make an order
5 under section 78D in a proceeding for a
contravention of section 78A in respect of
the same conduct.".
7 Transitional provision
After section 176 of the Principal Act insert--
10 "177 Proceedings for contravention of
section 78A or 78C
A proceeding for a contravention of
section 78A or 78C must not be brought in
respect of conduct that occurred before the
15 commencement of section 6 of the
Occupational Health and Safety
Amendment (Employee Protection) Act
2008.".
8 Repeal of amending Act
20 This Act is repealed on 1 July 2010.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
561297B.I-3/12/2008 8 BILL LA INTRODUCTION 3/12/2008
Occupational Health and Safety Amendment (Employee Protection) Bill
2008
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561297B.I-3/12/2008 9 BILL LA INTRODUCTION 3/12/2008
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