The Victorian legal system has strong safeguards in place against workplace bullying, harassment, and discrimination. This is evidenced by the Victorian WorkSafe Authority having prosecutorial powers through provisions within the Occupational Health and Safety Act 2004 (Vic). Accordingly, it is imperative that Victorian business owners be aware of their obligations under the OHS Act to ensure that they provide a safe working environment and avoid potential prosecution. This article will provide an overview of the relevant workplace laws in Victoria and ways in which employers can proactively mitigate potential liability.
Understanding Workplace Bullying, Workplace Harassment and Workplace Discrimination
Workplace Bullying
Workplace bullying refers to repeated, unreasonable behaviour, directed toward a worker, or group of workers that creates a risk to health and safety. Commonly, bullying may take place between a worker and their manager or supervisor, co-workers or workers and another person within the workplace (such as a subcontractor or even a client). Workplace bullying may amount to a breach of the OHS Act in circumstances where it creates a risk to an employee’s health and safety, in circumstances where the employer has failed to take all reasonably practicable steps to prevent and address the bullying behaviour. Specifically, an employer may be liable pursuant to section 21 of the OHS Act for failing to provide a safe work environment in circumstances where an employee has suffered workplace bullying. This is an extremely serious charge, as it is an indictable offence that can result in extensive financial penalties or in extreme cases a term of imprisonment if found guilty. This section of the OHS Act places a duty on employers to ensure that they have a safe working environment. Accordingly, in order to mitigate the potential risk of workplace bullying, it is important to have procedures in place that allow employees to report incidents of workplace bullying to ensure that such behaviour is addressed.
Workplace Harassment
Similarly, workplace harassment may amount to a breach of the OHS Act. Harassment includes behaviour such as telling jokes about racial groups, displaying racially offensive or pornographic posters or screensavers, making rude or derogatory remarks about a worker’s race, making humiliating comments about a worker’s disability, or asking intrusive questions about a worker’s personal life. In addition to potential health and safety breaches, which may be prosecuted criminally, harassment which is discriminatory (such as racial, sexual or disability related harassment) or sexual may fall under anti discrimination legislation.
Sexual harassment is a distinct category of harassment that is prohibited specifically under anti-discrimination laws (such as the Equal Opportunity Act, or the Sex Discrimination Act. Sexual harassment is defined as unwelcome sexual behaviors which could be expected to make a person feel offended, humiliated or intimidated. This may be physical, verbal or written. It is important for employers to be aware of their positive obligations in relation to workplace harassment, as much like bullying, if an employer does not have preventative measures in place to address harassment within their company, they may be in breach of section 21 of the OHS Act. As such, it is important to have mitigatory procedures in place.
Workplace Discrimination
Workplace discrimination is illegal in Victoria. Legislation such as the Equal Opportunity Act and the Sex and Racial Discrimination Acts make it clear that employers are liable for both direct and indirect discrimination. Further, in Victoria, discrimination in the workplace is prohibited in accordance with sections 76 and 78A of the OHS Act. These sections make it illegal for employers to act discriminatorily or engage in discriminatory conduct against their employees. Acting in such a manner may be further included as a breach under section 21.
Understanding Worksafe Notification and Resolution Requirements
Worksafe Notification Requirements
In addition to the requirements under section 21 of the OHS Act, employers are further required pursuant to section 38 of the Act to notify WorkSafe Authority in relation to any incidents that have occurred at their workplace that may be considered in breach of the OHS Act. This has been held to include circumstances involving bullying, harassment, or discrimination. It is important that employers are aware of their positive obligation under the act to report any incidents, as a failure to do so is an indicatable offence that can result in significant financial penalty.
Resolution Requirements
In relation to potential breaches of the OHS Act regarding health and safety concerns, section 73 of the Act stipulates that employers must attempt to resolve the issue in accordance with the relevant agreed procedures, or if there are no such procedures, the relevant procedure prescribed by the regulations. This is important for employers to consider, as it implies that they must have procedures in place to ensure that there is a safe working environment and further, that there are resolution procedures in place, should a health and safety concern arise. A failure to follow this section may result in further financial penalties.
Powers of the OHS Representative
Lastly, it is important for employers to be aware of the extensive powers conferred upon Health and Safety Representatives, pursuant to section 58 of the Act. Under this section, Representatives are empowered to inspect any part of a workplace at any time after giving reasonable notice to the employer, and immediately in the event of an incident or any situation involving an immediate risk to the health and safety of any person. This is important to note, as it allows the Representative a large scope to investigate a workplace. According to this section, Representatives are empowered to conduct their investigation by utilising any of the following:
- Photographs and or sketches of the workplace;
- Interviews with the employer and employees
- Making enquiries in relation to anything that they deem poses, or may pose, a risk to the health and safety of employees
- Require the establishment of a health and safety committee.
To conclude, given the extensive investigatory and prosecutorial powers of WorkSafe authorities and the potential financial consequences that a breach may cause, it is imperative that businesses and employers are aware of their obligations under the OHS Act.
How Galbally Parker Lawyers Can Help
At Galbally Parker, we are the strategic legal partners your business needs to navigate complex challenges and safeguard its reputation. We specialise in key areas of workplace crime, including Worksafe matters, and Occupational Health and Safety (OH&S). We also work with companies facing wage theft and workplace manslaughter allegations. Our experienced criminal lawyers are dedicated to protecting the interests of your organisation through providing tailored legal solutions that are designed to mitigate risks and ensure business continuity. Contact us today.
