Shielding workers who speak out for safety
Ensuring your workplace is safe and without risk to the health of your workers requires the cooperation of your workforce. Sometimes, this may mean a worker raises a health and safety concern or complaint. Workplaces with positive safety cultures encourage workers to raise safety concerns so they can be speedily addressed. But other workplaces may discourage their workers from speaking out, and even seek to punish those workers who do.
In Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 3) (2022), the Federal Court considered a claim by a labour hire worker who alleged she was dismissed because the host employer did not like her complaints about failure to follow safety procedures.
The worker, who was a dump-truck operator, refused to dump loads in areas that were poorly lit and which was contrary to the safe work procedure that stipulated, “Ensure adequate lighting is in place to illuminate the work area, having consideration for shadow, contrast and glare. Additional lighting sets may need to be set-up for night-time operations”.
The host employer disputed that the reason for not requiring the labour hire worker anymore had anything to do with safety concerns that she had raised, however, the Court was not convinced.
As a result, the Court found that the host employer had taken unlawful adverse action against the worker, because of her raising workplace complaints, which was in breach of the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act). Penalties and compensation are yet to be determined.
In this case, the Court considered the application of the Coal Mining Safety & Health Act 1999 (Qld) and whether the safety procedures in question could be said to have been made under a ‘workplace instrument’, which is a requirement for breaches of the general protections in the FW Act. The Court was satisfied that in this case the procedures were made under a relevant workplace instrument.
Although this case focused on particular legislation and procedures, it does offer the potential for the Courts to enforce protection for workers in other industries who raise safety concerns from being adversely treated. These protections are in addition to the prohibitions in work health and safety laws that protect workers from being discriminated against for raising any concern about work health and safety.
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