In the first case of its kind, the New South Wales District Court has ruled that a subsidiary of Qantas, Qantas Ground Services (“QGS”), has directly discriminated against one of their own employees, breaching the Work Health and Safety Act.

Background Facts

The employee was working at the Sydney International Terminal and had been elected to act in the capacity of a health and safety representative for the company.

In early 2020, amidst the beginning of the Covid-19 pandemic, the employee (in his role as the health and safety representative) made the decision to alert his fellow co-workers to the safety issues of cleaning the aircrafts that were coming from China, where the virus was beginning to spread at a rapid rate.

Under section 85 of the Work Health and Safety Act, a health and safety representative has capacity to order work be halted if the environment or job is too unsafe.  The employee deemed cleaning these aircraft was unsafe work due to the unknown hazard it exposed other workers to. He made the decision to advise his co-workers to no longer engage in this work.

Qantas subsequently made the decision to stand the employee down, placing him on paid leave and with an order to not return to work for the foreseeable future.

What Happened Next?

SafeWork NSW commenced proceedings on behalf of the employee and alleged that QGS had engaged in discriminatory conduct against their employee, and that the reason for such conduct was a prohibited reason under the Fair Work Act – specifically, that no employer can discriminate against a health and safety representative for exercising their power or making a decision in their capacity as a representative.

The Court held that QGS had engaged in discriminatory conduct for a prohibited reason against the employee in his role as a health and safety representative, and that QGS had both unfairly removed him from his duties and deprived his fellow employees from seeking his advice on safety matters.

QGS was fined half of the maximum penalty rate for this type of matter, an unprecedented decision to reflect the severity of the matter.  They have been ordered to pay $250,000.00 in compensation, alongside a further $21,000.00 to the employee for economic and non-economic losses. QGS will also be responsible for paying a portion of SafeWork NSW costs of the proceedings.

What You Need To Know

This case serves as a warning for all employers to tread with caution when dealing with the conduct of their health and safety representatives.

The Work Health and Safety Act sets prescribes that before any decisions are made about health and safety issues, you must consult with the representative and vice versa.  If you believe they have taken action without consulting you first, it is recommended for you to organise a meeting with them to discuss the decision and its ramifications.  This is something that QGS failed to do and was heavily criticised for, adding to the penalty against them.

Understanding the role of HSRs and ensuring clear and open communications around safety are critical components of not only regulatory compliance, but the maintenance of a safe and healthy work environment.

Chris Oliver, Director and Isabelle Daley, Graduate Associate