Is it Safer Without You?: Analysing the Intersection between Work Health and Safety and Anti-Discrimination Laws

Abstract

Anti-discrimination and occupational health and safety laws historically targeted the employment relationship. The recently enacted national Work Health and Safety Act 2011 (Cth) (WHS Act) has rejected the employer and employee relationship as the primary relationship warranting regulation. The WHS Act instead adopts a wider regulatory focus and requires persons conducting businesses or undertakings (PCBUs) to manage health and safety in a range of work relationships that are not regulated by other workplace laws. The WHS Act reforms substantially alter how anti-discrimination and health and safety laws interact. In this study we argue that the expanded coverage of the WHS Act is resulting in a regulatory gap between workplace health and safety (WHS) and anti-discrimination laws. This gap is creating situations where PCBUs are managing health and safety issues in work relationships that are not protected by anti-discrimination laws. We analyse the possible implications of this disparity through a case study on workplace violence and workers with mental disabilities. We conclude that this regulatory gap is a recipe for future discriminatory health and safety policies and maintain that more research is required to ascertain how the different statutes operate in the workplace and the consequences of this interaction.