181Dismissal or other victimisation of employee or contractor assisting with or reporting breaches

181 Dismissal or other victimisation of employee or contractor assisting with or reporting breaches

Note: (Cf Occupational Health and Safety Act 1985 (Vic) s 54; Occupational Health and Safety Act 2000 (NSW) s 23)

(1) An employer must not dismiss an employee or contractor, injure an employee or contractor in his or her employment or alter an employee’s or contractor’s position to his or her detriment because the employee or contractor: (a) has assisted or has given any information to a public agency in respect of a breach or alleged breach of an Australian road law; or (b) has made a complaint about a breach or alleged breach of an Australian road law to the employer, a fellow employee or fellow contractor, a trade union or a public agency. (2) An employer or prospective employer must not refuse or deliberately omit to offer employment to a prospective employee or prospective contractor or treat a prospective employee or prospective contractor less favourably than another prospective employee or prospective contractor would be treated in relation to the terms on which employment is offered because the first‑mentioned prospective employee or contractor: (a) has assisted or has given any information to a public agency in respect of a breach or alleged breach of an Australian road law; or (b) has made a complaint about a breach or alleged breach of an Australian road law to a former employer, a former fellow employee or former fellow contractor, a trade union or a public agency. (3) A person commits an offence if: (a) the person engages in conduct that results in a contravention of subsection (1); and (b) the person is an employer of the person concerned. (4) A person commits an offence if: (a) the person engages in conduct that results in a contravention of subsection (2); and (b) the person is an employer or prospective employer of the person concerned. (5) In proceedings for an offence under this section, if all the facts constituting the offence other than the reason for the defendant’s action are proved, the onus of proving that the defendant’s action was not actuated by the reason alleged in the charge lies on the defendant. (6) If a person is found guilty of an offence under this section, the court may, in addition to imposing a penalty on the offender, make either or both of the following orders: (a) an order that the offender pay within a specified period to the employee or contractor or to the prospective employee or prospective contractor such damages as it thinks fit by way of compensation; (b) an order that: (i) the employee or contractor be reinstated or re‑employed in the employee’s or contractor’s former position or (if that position is not available) in a similar position; or (ii) the prospective employee or prospective contractor be employed in the position for which the prospective employee or prospective contractor had applied or (if that position is not available) in a similar position. (7) The maximum amount of damages cannot exceed the monetary jurisdictional limit of the court in civil proceedings. (8) An order for payment of damages is enforceable as if it were a judgment of the court sitting in civil proceedings. (9) A person who fails to comply with an order for employment, reinstatement or re‑employment is guilty of an offence. (10) A person commits an offence if: (a) the person is subject to an order under subsection (6)(b); and (b) the person engages in conduct that results in a contravention of the order. (11) The offence under subsection (10) is an offence of strict liability. (12) In this section: