A correspondent says:

The NSW RFS has just concluded HSR elections for the ensuing three years. During the election period, a number of captains of brigades received an email from a Group Captain ‘encouraging members to nominate for the HSR/Deputy HSR roles stating ‘I encourage members of your brigades to apply for HSR/Deputy HSR positions so that other person does not get in’.

There are no names mentioned in the email but would this be considered to be discriminatory conduct under the WHS Act?

I have viewed the Act noting the below sections that in my opinion have been breached.

29   Duties of other persons at the workplace

A person at a workplace … must— …

(b)        take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and…

104   Prohibition of discriminatory conduct

(1)        A person must not engage in discriminatory conduct for a prohibited reason.

A prohibited reason includes that the person “is, has been or proposes to be a health and safety representative …” (s 106(a)).

105   What is “discriminatory conduct”

(1)  For the purposes of this Part, a person engages in discriminatory conduct if— …

(b)  the person—

(ii)        treats a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement, or

108   Prohibition of coercion or inducement

(1)        A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce or induce the other person, or a third person—

(a)        to exercise or not to exercise a power, or to propose to exercise or not to exercise a power, under this Act, or

109   Misrepresentation

(1)        A person must not knowingly or recklessly make a false or misleading representation to another person about that other person’s—…

(b)        ability to initiate, or participate in, a process or proceedings under this Act, or

Discussion

The Rural Fires Act 1997 (NSW) s 116 says “The fire control officer for a rural fire district may form two or more rural fire brigades formed for the district into a group of rural fire brigades.” The Group Captain is ‘elected by the brigades in the Group’ (Service Standard 2.1.4, v 3.1). My understanding is that a Group Captain is a volunteer position.

I cannot comment on the particular email; I haven’t seen it, nor do I want to – but given what I’ve been told I cannot see how any of the sections of the Work Health and Safety Act 2011 (NSW) identified by my correspondent are relevant.

Writing to members encouraging them to stand for election cannot be discriminatory or a misrepresentation. And giving people an opinion on the suitability of a candidate is electioneering. It may not be very clever for a group captain to do that as it may give rise to an inevitable conflict that may impact upon their ability to perform their duties. It may be defamatory. It may breach any number of RFS service standards depending on how it’s phrased; but it doesn’t breach those sections of the WHS Act.

A person can lobby for a cause but still treat those who have a different view appropriately. The Group Captain may not want a particular person elected but that does not mean he or she is treating that potential candidate ‘less favourably’ in the context of their duties. It may give rise to difficulties later but encouraging people to nominate, and to not vote for a particular person, does not appear to be discriminatory conduct. There is also nothing to suggest the Group Captain is or intends to ‘take action’ against the person they don’t want to see elected, nor are they saying the person cannot stand for election.

If there is a process to elect an office holder, then it must be part of that process that people can be encouraged to nominate and people can campaign in favour of, or against, a particular candidate. In the context of an organisation like the RFS it may be unseemly for someone, particularly someone in some authority, to discourage a vote for a particular candidate but it does not mean that person will or is treating the person unfavourably when it comes to preforming the officer’s duties.

Conclusion

I haven’t seen it, nor do I want to see the email in question but given what I have been told it seems to me that whilst the email may be unfortunate, may give rise to future problems it does not appear to breach any of the WHS sections identified by my correspondent.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Associationand  NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.