Better Protection for Health & Safety Reps

The OHS Amendment (Employee Protection) Bill 2008 passed through the Upper House of the Victorian Parliament on 23rd June 2009. The amendment comes into affect on 1 July 2009. A major issue is that this improves the protection from discrimination in the Occupational Health and Safety Act and that includes the right of an individual (or their representative) to initiate a prosecution. WorkSafe are no longer the only ones who can prosecute for discrimination. Individual right of action 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. * The onus of proof in such cases will be on the defendant (employer) * A “substantial reason” test will apply under the new civil arrangements * An individual to seek an injunction from the court to restrain proscribed conduct * 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 has powers to make orders including for damages and reinstatement, It can also direct matters to alternative dispute resolution Removal of prison sentence The prison penalty for criminal breaches of Section 76 of the OHS Act will be removed, bringing Victoria more into line with other jurisdictions. Employees of independent contractors The coverage of the new civil anti-discrimination provisions in the OHS Act will also apply to third–party discrimination against employees of independent contractors Protection to employees assisting or consulting authorised representatives of registered employee organisations is included.