What Direct Discriminatory Conduct Under WHS Law Means for Your Business
In work health and safety management, legal duties often focus on systems and risk controls. But there is another legal obligation that is just as vital for workplace culture and compliance: prohibitions on discriminatory conduct when it comes to WHS roles, functions or raising safety concerns.
Direct discriminatory conduct isn’t just a theoretical concept. It is a specific part of the Work Health and Safety Act, and it has real consequences when it is breached. Safe Work Australia
What Is Direct Discriminatory Conduct Under WHS Law?
Under the WHS Act, you must not discriminate against someone because of their involvement in WHS activities. This includes workers or prospective workers who:
are health and safety representatives (HSRs),
serve on health and safety committees,
raise safety concerns,
exercise safety powers, or
assist others in safety related matters. Safe Work Australia
In practice, discriminatory conduct could include things like:
dismissing a worker because they raised a safety concern,
changing a worker’s role to their detriment after they performed a WHS function,
refusing to hire someone who is active in safety processes, or
treating someone unfavourably in their terms and conditions because of their safety involvement. SafeWork NSW
It’s important to recognise that it is the reason for the behaviour that determines whether it is unlawful. The conduct only becomes a WHS offence if it is done for a prohibited reason related to the person’s WHS engagement. Safe Work Australia
Why This Matters to PCBUs and Leaders
From a WHS leadership perspective, discriminatory conduct provisions are designed to protect the integrity of consultation, reporting and safety participation. A system where workers fear reprisal for raising hazards, participating in committees or exercising safety powers undermines the entire risk management framework.
This prohibition supports a core WHS principle: everyone should be able to raise safety concerns or participate in safety processes without fear of retaliation. Safe Work Australia
Consequences for Your Business
Engaging in prohibited discriminatory conduct can trigger both civil and criminal liabilities under WHS law. That means individuals and companies can face serious penalties if they discriminate against someone for their safety involvement. Safe Work Australia
In recent enforcement action, authorities have successfully prosecuted discriminatory conduct where a worker was excluded from the workplace after exercising valid safety powers as an HSR. This outcome reminds leaders that motivations behind decisions matter as much as the decisions themselves. Holding Redlich
Turning Compliance Into a Strength
To protect your business and create a genuinely safe workplace, leaders should:
Reinforce the value of WHS roles and participation at all levels of the business.
Ensure policies explicitly prohibit retaliation or discrimination for safety related activities.
Train managers on recognising both direct and subtle forms of discrimination linked to safety involvement.
Embed supportive processes for reporting hazards and participating in safety committees.
This goes beyond compliance. It fosters a culture where safety leadership is encouraged and risk management is strengthened by genuine participation and trust.
Final Thought
Direct discriminatory conduct under WHS law is a powerful reminder that legal duties extend into how people are treated based on safety engagement. Building a culture where raising concerns and performing safety roles is welcomed not only reduces risk but strengthens both compliance and business performance.
If you would like to unpack practical steps for your organisation or tailor WHS policies to mitigate these risks, Anzen Safety & Training can help you benchmark your current approach and build a stronger, compliant and safe workplace.
