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The overlap between the Equal Opportunity Act and the Occupational Health and Safety Act

The overlap between the EOA and OHSA. Four key areas where the Equal Opportunity Act 1995 (Vic) and the Occupational Health

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The overlap between the Equal Opportunity Act and the Occupational Health and Safety Act

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    1. The overlap between the Equal Opportunity Act and the Occupational Health and Safety Act Occupational Health & Safety Representatives Conference 26 October 2005 Kristina Hoel – Legal & Policy Officer

    2. The overlap between the EOA and OHSA Four key areas where the Equal Opportunity Act 1995 (Vic) and the Occupational Health & Safety Act 1985 (Vic) overlap Definition of discrimination under the OHSA & the EOA, remedies Important for reps to be aware of these laws and issues that confront workers when they decide to seek redress.

    3. Four areas of overlap Areas of overlap exist between the OHSA and the EOA. Dealing with “psychosocial hazards” Health and safety exceptions Genuine and reasonable requirements Discrimination due to involvement in OHS activities

    4. Powers of Health & safety representatives A health & safety representative is entitled under s.58(1) of the OHSA to do any of the following: inspect any part of a workplace at which a member of the designated work group is employed accompany an inspector during a workplace inspection require the establishment of a health & safety committee for people whom the representative is authorised to represent. If a worker consents, accompany them in an interview with the employer about OHS matters (inc issues of bullying, discrimination.)

    5. Employer Obligations Employers owe obligations to representatives under 69(1) of the OHSA: to allow a heath and safety representative for a designated work group to have access to information relating to- (i) actual or potential hazards (includes “psycho-social hazards”) (ii) the heath and safety of workers the representative is authorised to represent; To allow a representative to be present at an interview concerning occupational health and safety with the employer

    6. (1) What are “psychosocial hazards”? Bullying, discrimination and harassment: Repeated pattern unreasonable behaviour that creates a risk to health and safety includes verbal abuse, intimidation, sexual harassment, giving employees impossible assignments or meaningless tasks unrelated to job, isolating and excluding employees May be actionable under the EOA (conduct occurs due to industrial activity or attributes like impairment, race, age or sex) or under the OHSA, if employee suffers an injury due to the behaviour.

    7. (1) Dealing with “psychosocial hazards” Important to note: discrimination is a psychosocial hazard Reps have to be aware of psychosocial hazards as something that they may encounter and have to deal with. Reps have a role as a representative of members of a designated work group with the power to make a difference - alerting OHS committee/management to psychosocial hazards. Representatives may need to consider: Was the behaviour one-off or repeated? Look at patterns emerging from a work area/individual Does complainant believe behaviour was as a result of an attribute industrial activities, physical features? Is the complainant alleging sexual harassment? Did the behaviour result in some injury or illness?

    8. (2) Health and safety exceptions Representatives may encounter situations where a worker is complaining that they are not being employed due to OHS reasons… Lawful to discriminate against employees in certain cases: s. 80 of EOA “Protection of health, safety and property” s. 21 of OHSA “Duties of employers” – provide safe workplace without risks to health…. Sec 69 of EOA “Things done with statutory authority” (eg – refusing to employ a worker to comply with OHSA) Case law indicates employers cannot dismiss a worker under these exceptions but can impose potentially discriminatory policies

    9. (2) Health and safety exceptions Issues that reps may need to consider: Can the person perform the genuine and reasonable requirements of the position? Is the person at greater risk of injury or deterioration than any other workers? Are there other options which would minimise or eliminate risk? What are the consequences for the person if they are re-injured?

    10. Returning to work after an injury: Section 155A of the Accident Compensation Act: requires employers to re-employ injured workers once they are fit for work. If they have no incapacity (no longer entitled to compensation) a current work capacity (and have to do modified duties) If a worker is not re-employed in spite of this section, OHS reps need to be aware that: Workers denied re-employment after an injury lack capacity to access a personal remedy (eg damages) under the ACA – only prosecution of an employer may be sought. Possible to lodge complaint of impairment discrimination under EOA if being denied employment due to injury/illness.

    11. Refusing to re-employ an injured worker Employers may decide not to re-employ a worker who has been injured by relying on: Section 155B of ACA - unjustifiable hardship exemption Includes: financial circumstances of employer and cost of compliance previous efforts to rehabilitate worker length of service of worker number of workers already assisted in this way OR Section 22(1) of EOA – an exception - permitting discrimination if the employee unable to perform “genuine and reasonable requirements” of job

    12. (3) Genuine & reasonable requirements If an employee complains they have been dismissed or prevented from working due to illness or injury, representatives should consider: the requirements of the position as a whole Could the person fulfil the requirements of the position as a whole, even if unable to perform a particular requirement? Could the person perform the position in safety? the person’s abilities, skills, qualifications, experience and any supporting information… and assess whether the worker can return to work or seek redress under the EOA / ACA Note: possibility of lodging complaints under DDA (Cth) - Contact HREOC

    13. (4) Discrimination – OHS Activities OHS representatives should note that discrimination due to involvement in occupational health and safety activities occurs at many workplaces: may be the subject of a complaint under the EOA: s. 6(c) “industrial activity” Is prohibited under s 76. OHSA

    14. Definition of “industrial activity” It is unlawful to discriminate against an employee if a substantial reason for the discrimination is the employee’s lawful industrial activity. Under Section 4 of the EOA:   “industrial activity” means—   (a) being or not being a member of, or joining, not joining or refusing to join, an industrial organisation;   (b) participating in, not participating in or refusing to participate in a lawful activity organized or promoted by an industrial organisation;

    15. Definition of industrial organisation “Industrial organisation” means—   (a) an organisation of employees;   (b) an organisation of employers;   (c) any other organisation established for the purposes of people who carry on a particular industry, trade, profession, business or employment;

    16. “organisation of employees” includes: acting as one of a collection of individuals, a member of an identifiable group “deciding, speaking or acting collectively as a group.” groups that do not have a formal structure, a legal identity or criteria for membership. Moloney v State of Victoria [2000] VCAT 1089 requires the involvement of more than one individual. Schou v State of Victoria, May 1999

    17. “Industrial Activity”- activities related to: Improving working conditions; Improving pay rates; promoting compliance with relevant awards/ workplace regulations Requiring the employer to investigate certain irregularities in the workplace taken by groups of employees acting or expressing themselves in a collective way Dickenson v Shire of Yarra Ranges [2000] VCAT 1093 (31 May 2000),

    18. Case study Maria is an elected OHS representative and is not a union member. She works on the factory floor where she has been active in promoting compliance with the OHS Act. The workers use Maria as their “voice” to the management on OHS issues. Management has labelled Maria a “troublemaker” and marked her personnel file “No Promotion.” Maria believes she is being treated less favourably in her employment because of her work on OHS issues.

    19. Maria’s complaint A complaint of discrimination on the ground of industrial activity could be lodged : if Maria believes that she has been treated less favourably because she is a member of an organisation of employees. If Maria is participating in lawful OHS activities which are organised or promoted by an industrial organisation (an organisation of employees).

    20. s. 76 OHSA. Prohibition on discrimination OHS Representatives and others may face discrimination at work The OHSA makes it unlawful for employers to discriminate against workers (eg by dismissing them) or prospective employees (eg refusing to hire) if the dominant reason for doing so was because the employee or candidate (cf- substantial reason – EOA) is a health and safety representative a member of a health and safety committee, raises a concern about health or safety to the employer or representative. This is an offence that can be investigated by the Victorian Workcover Authority.

    21. Discrimination: Remedies under EOA/OHSA Important for representatives to be mindful of the potential outcomes possible under the EOA or the OHSA. OHSA s.76: offenders face fines, possible prison term Offenders can be required to pay damages Employee can be reinstated in the same or a similar position Prospective employee can be employed. Investigation by VWA can result in a change to workplace conditions Litigation may be costly and lengthy, may not deliver a remedy. EOA: free complaint handling process, on average takes about 100 days. Investigation, possible conciliation with potential financial settlement, apology. Outcome uncertain. Commission cannot enforce outcomes. Reinstatement or instatement very unlikely. General change to workplace conditions unlikely, as an individual complaint handling process generally delivers individual redress. Option of referring matter to VCAT if complaint declined or conciliation unsuccessful – VCAT has power to make and enforce orders.

    22. Conclusion Areas of overlap exist between the OHS scheme and the EOA: - “Psychosocial hazards” Health and safety exceptions Genuine and reasonable requirements Discrimination due to involvement in OHS activities Important for reps to be mindful of the different outcomes possible under each of the Acts when a worker seeks redress.

    23. Contact details Enquiries regarding this presentation: kristina.hoel@eoc.vic.gov.au General enquiries: Advice line (Melb)- 9281 7100 Country callers – 1800 134 142 TTY – 9281 7110 complaints@eoc.vic.gov.au

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