Regulatory Advice – Discrimination against or victimisation of employees

Note: This information is intended as general guidance only and does not constitute legal advice. We encourage you to obtain independent advice about your legal obligations. If you have any feedback on the information provided, please contact us at info@nhvr.gov.au

This regulatory advice provides guidance on employee protections against discrimination and victimisation under section 699 of the Heavy Vehicle National Law (HVNL).

Image is of many basic white figures with one bright red figure in the middle.

Who is this advice for?

This regulatory advice is intended for:

What are my legal obligations?

Under the HVNL section 699, employers are prohibited from discriminating against or victimising employees for having provided information to a public authority, law enforcement agency, fellow or former employee, or union.

What are the legal consequences?

Employers who are found to be in contravention of HVNL section 699 can face a significant court-imposed financial penalty. Courts may also consider other penalties, if appropriate.

If an employer has been accused of victimising or discriminating against an employee, the onus is on the employer to prove they took the course of action for another reason, and not because the employee gave information to authorities or complained about a contravention of the HVNL.

What is discrimination and victimisation?

Under HVNL section 699, action by employers that may be considered discrimination or victimisation may include:

  • dismissal
  • demotion
  • unwarranted transfer of an employee
  • reducing an employee’s terms of employment
  • failing to offer a position of employment
  • treating an employee less favourably than another.

For the purposes of HVNL section 699:

  • Employer means a person who employs someone else. The definition also includes a prospective employer.
  • Employee means an individual who is employed by someone else. The definition also includes a contractor or a subcontractor.

Why is HVNL section 699 important?

This provision enables employees to report contraventions of the HVNL without fear that doing so may jeopardise their employment. It makes it an offence for an employer to discriminate against or victimise an employee who has reported such a contravention.

If an employee believes there has been a breach of the HVNL, they can bring this to the attention of the NHVR, a public authority, a law enforcement agency, a fellow employee, or a union. This flexibility is important, as it allows the NHVR to better monitor industry behaviour and compliance.

Key message for employees: This law protects an employee if they report their employer to the NHVR or another authority for breaking a heavy vehicle related law. They have the right to raise the issue without fear of discrimination or victimisation.

A contravention of the HVNL may include:

  • failure to identify and respond to safety risks
  • business practices that cause or encourage non-compliance with the HVNL
  • inadequate management systems or unrealistic schedules that cause drivers to operate a heavy vehicle while impaired by fatigue
  • heavy vehicles exceeding mass and/or dimension limits
  • heavy vehicles operating on roads they are not authorised to operate on for example restricted access vehicles/oversize over mass vehicles
  • loads on heavy vehicles not being safely restrained or being placed in a manner that makes the vehicle unstable or unsafe
  • operating practices or unrealistic schedules that encourage speeding
  • poor maintenance programs that result in unroadworthy heavy vehicles being used on roads.

Why is this important to my business?

It is in the best interest of a business to foster an environment that promotes a strong safety culture in the workplace. Employees should feel supported and encouraged to report safety or operational issues, or a non-compliance with any laws that govern their workplace or industry, including the HVNL.

Encouraging a culture of awareness and empowering your employees to report issues will motivate your employees to follow procedures and notify you of work practices that may be unsafe or potentially breach the HVNL.

Practical suggestions for businesses to manage the risk of discrimination or victimisation in the workplace include:

  • implementing policies and procedures that set clear behavioural standards and expectations for employees, contractors and managers
  • providing training to all staff to ensure expectations outlined in the policies and procedures are understood and implemented
  • conducting regular refresher training, as required
  • providing adequate supervision and oversight of high-risk business decisions
  • establishing processes that allow anonymous reporting
  • ensuring any reports are acted on in a timely manner
  • communicating with all employees about your organisation’s commitment to safety.

Key message for employers: There is no excuse for victimising or discriminating against employees who are trying to improve safety by providing information or making a complaint about a contravention of the HVNL.

Scenarios – Examples of breaches of HVNL section 699

1. A driver's shifts are cut after reporting an issue to the NHVR

Bill is employed as a casual driver by a transport company. After repeated directions from his manager to falsify work diary entries, he calls the NHVR’s Heavy Vehicle Confidential Reporting Line to make a report. Bill’s manager finds out about the report and thinks Bill is a troublemaker. The manager significantly reduces Bill’s shifts. In this instance the manager’s conduct would be considered a breach of HVNL section 699 because the conduct is prejudicial to Bill’s working conditions.

2. A driver loses out on an employment opportunity after reporting an issue to a trade union

Trevor applies for a position driving heavy vehicles for a transport company. Trevor has been driving heavy vehicle for many years, is experienced in operating numerous heavy vehicle combinations, and has a good driving record.

Following a successful interview, Trevor’s references are contacted. During the reference check, a referee discloses that Trevor is an active member of a trade union and has previously reported an employer to the union for conduct that was a serious breach of the HVNL. Because of this, the interviewer does not progress Trevor’s application, and he is overlooked for the position.

Trevor feels he was overlooked because he had previously made reports to the union about a serious breach of the HVNL. He makes a formal complaint to the union and the NHVR.

The employer must be able to prove that Trevor’s history of making a report to the union was not the reason his employment application was unsuccessful. If the employer is not able to provide sufficient reasons for not progressing Trevor’s employment application, it would be considered a breach of HVNL section 699, because the employer treated the prospective employee less favourably due to a previous report.

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