OHS discrimination clauses clarified by appeals court

Friday 05 May 2017

An employer charged with discriminating against workers for raising an OHS issue has failed to convince a superior court that the Crown must prove, beyond reasonable doubt, that the workers raised the issue on "reasonable grounds" and believed the threats made against them would be carried out.

The Crown must prove that an employee "raised an issue or concern about health and safety", rather than the employee's "state of mind" at the time, Victorian Court of Appeal Justices Chris Maxwell, Mark Weinberg and Phillip Priest found.

The employer (anonymised in the proceedings at hand) was charged with seven counts of discrimination, in contravention of s76(2) of the Victorian OHS Act, after its operations manager allegedly threatened to place four workers on a "reform list", and said he was prepared to sack a high number of employees "to straighten the place out".

The manager's alleged comments came after the four workers raised concerns that heavy goods that needed to be lifted exceeded the warehouse forklift's safe work limit, and suggested that the company provide another forklift and seek advice from WorkSafe.

The trial was due to commence in August last year, but the County Court identified a "heated dispute" between the parties on the elements of the offence, and referred several questions of law to the Court of Appeal.
These included the employer's contention that the Crown must prove that the four workers "believed" there were safety concerns relating to the forklift, and that it was "reasonable for [them] to hold that belief in all the circumstances".

It argued that none of the workers raised the issue "honestly, genuinely or in good faith", and Parliament "cannot have intended to allow safety issues to be used as a tool to mask industrial action, insubordination, or false claims".

But Justices Maxwell, Weinberg and Priest accepted the Director of Public Prosecutions' submission that the discrimination provisions of the OHS Act imposed no obligation on the Crown to prove either the state of mind of the employee who raised the "issue or concern" or that the employee had reasonable grounds for raising it.

The bench also found that the employer "appeared to imply that there was a clear dichotomy between pursuing a 'genuine' concern about safety, on the one hand, and pursuing 'industrial' objectives on the other", and rejected this premise.

"That is a false dichotomy, in our view. Plainly enough, safety in the workplace is an industrial issue of great importance to both employers and employees," they said.

"The mere fact that a safety issue was raised as part of, or in connection with, the pursuit of other industrial objectives would not necessarily mean that an offence of this kind could not be proved."

The other questions of law included the employer's contention that the Crown must prove, beyond reasonable doubt, that the maker of a discriminatory threat intended that the target "should fear that the threat would be carried out", and that the target believed it would be carried out.

"[In] our view, there is a short answer to these submissions. If Parliament had intended to require any of these matters to be proved, specific provision to that effect could – and would – have been made," Justices Maxwell, Weinberg and Priest said.

DPP v Acme Storage Pty Ltd (a Pseudonym) [2017] VSCA 90 (28 April 2017)