Part 6: WHS Discriminatory, Coercive and Misleading Conduct

Regulatory citation: Model Work Health and Safety Act, Part 6 (Sections 104–115), Discriminatory, coercive and misleading conduct

What Does Part 6 Cover?

Part 6 of the model WHS Act protects workers, prospective workers and others from being punished for raising safety issues or taking on safety roles. It prohibits discriminatory conduct for a prohibited reason, coercion or inducement around WHS rights, and false or misleading statements about WHS rights and obligations. It provides both criminal offences and civil remedies.

Why Part 6 Matters

Consultation and issue reporting only work if people feel safe to speak up. Part 6 protects health and safety representatives (HSRs), committee members and anyone who raises a concern, so that hazards are reported rather than hidden.

Core Obligations

1. Do Not Engage in Discriminatory Conduct (ss104–105)

A person must not engage in discriminatory conduct for a prohibited reason. Discriminatory conduct includes dismissing a worker, terminating a contract for services, detrimentally altering a worker's position or engagement, refusing to engage a prospective worker or offering them less favourable terms, and terminating or refusing to enter a commercial arrangement. Organising or threatening any of these also counts.

2. Know the Prohibited Reasons (s106)

Prohibited reasons include that the person is, has been or proposes to be an HSR or committee member, or takes on another role under the Act. They also cover exercising or not exercising a power or function under the Act, assisting or giving information to someone who does, and raising a WHS issue or concern. Being involved in resolving a WHS issue, or seeking compliance with the Act, are prohibited reasons too.

3. Do Not Request or Assist Discrimination (s107)

A person must not request, instruct, induce, encourage, authorise or assist another person to engage in discriminatory conduct that contravenes section 104.

4. No Coercion or Inducement (s108)

A person must not take, or threaten to take, action against another with intent to coerce or induce them to exercise or not exercise a power or function under the Act, or to stop seeking or holding a role under the Act. A reasonable direction from an emergency services worker in an emergency is not coercion.

5. No False or Misleading Representations (s109)

A person must not knowingly or recklessly make a false or misleading representation about another person's rights or obligations under the Act, their ability to start or take part in a process or proceeding, or their ability to make a complaint.

6. Criminal Proceedings and the Reverse Onus (ss110–111)

In a prosecution, a prohibited reason is presumed to be the dominant reason for the conduct unless the accused proves otherwise on the balance of probabilities. On conviction, the court can also order compensation and, for employees, reinstatement or re-employment.

7. Civil Proceedings (ss112–113)

An eligible person, meaning someone affected or their authorised representative, can apply to the relevant court or tribunal. Orders include injunctions, compensation and reinstatement. Here the prohibited reason only needs to be a substantial reason, and it is presumed unless the defendant proves otherwise. Proceedings must start within 1 year after the applicant knew, or ought to have known, of the cause of action. A defendant can rely on showing the conduct was reasonable and a substantial reason was to comply with WHS laws.

8. No Double Recovery (ss114–115)

A court cannot make both orders under section 111 after a conviction and civil orders under section 112 for the same conduct. A person also cannot bring duplicate proceedings on the same matter or recover compensation twice for it.

Common Compliance Approaches

Check Decisions for Safety Links

Before dismissing, demoting or ending a contract, check whether the person recently raised a safety issue or holds a safety role, and document the actual reasons.

Train Managers

Make sure supervisors know that pressuring someone not to report a hazard can be an offence.

Example: Part 6 in Practice

A labour hire worker at a packaging plant tells an HSR that a machine guard keeps being bypassed. A week later the host's supervisor asks the agency to end the worker's placement. The site manager reviews the request, finds no performance issues on record and blocks it. The guard issue is fixed, and supervisors receive a briefing on Part 6.

Related regulations: WHS HSRs and safety committees, WHS duty to consult, WHS entry permit holders.

Note: This summary is based on the model WHS Act published by Safe Work Australia. Model laws only take effect once a jurisdiction enacts them, and each jurisdiction's WHS Act can differ in wording, section numbers and penalties. Victoria has not adopted the model WHS laws and has its own OHS Act. Always check the legislation and regulator guidance that apply where you work.

Frequently Asked Questions

Does Part 6 protect contractors?

Yes. It covers workers, which includes contractors, and also protects people in commercial arrangements, such as a supplier whose contract is ended for a prohibited reason.

Who has to prove the reason for the conduct?

Once a prohibited reason is alleged and the conduct is proved, the reason is presumed. The accused or defendant must prove otherwise on the balance of probabilities.

Is there a time limit for a civil claim?

Yes. Civil proceedings must start within 1 year after the applicant knew, or ought to have known, that the cause of action arose.