The Federal Government’s tough stance on workplace bullying continues with the new federal anti-bullying jurisdiction taking effect from 1 January 2014. This bulletin sets out what all employers need to know about the jurisdiction and how to prepare.
What is it?
Earlier this year the federal government approved amendments to the Fair Work Act 2009 and conferred a new anti-bullying jurisdiction on the Fair Work Commission. What this means is that from 1 January 2014 individuals will be able to make an application to the Fair Work Commission if they believe they have been bullied at work.
Who can claim?
Under the anti-bullying jurisdiction a worker who reasonably believes that they have been bullied at work, may apply to the Fair Work Commission for an order.
A worker is defined to have the same meaning as under the Workplace Health and Safety Act 2011, but does not include a member of the Defence Force. The Workplace Health and Safety Act 2011 defines a worker as follows:
A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:
(a) an employee; or
(b) a contractor or sub-contractor; or
(c) an employee of a contractor or sub-contractor; or
(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or
(e) an outworker; or
(f) an apprentice or trainee; or
(g) a student gaining work experience; or
(h) a volunteer; or
(i) a person of a prescribed class.
This means a worker includes employees, contractors, sub-contractors, outworkers, apprentices, trainees, students gaining work experience and volunteers.
What is bullying?
Under the anti-bullying jurisdiction a worker is bullied at work if:
- The worker is at work in a constitutionally covered business;
- An individual or group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
- The behaviours create a risk to health and safety.
- While bullying is broadly defined, key points to take away from the definition are that the behaviour must be unreasonable and repeated, it must occur while the employee is at work and the behaviour must create a risk to health and safety.
However, it is important to note that reasonable management action carried out in a reasonable manner is not bullying.
What happens if a claim is made?
If a worker reasonably believes they have been bullied at work they can apply to the Commission for an order to stop the bullying.
Once an application is filed with the Fair Work Commission the application will be provided to the employer. Additionally, in most cases, the individual or individuals whose alleged conduct has led to the application will be provided with a copy of the application by the Fair Work Commission. The individual(s) will then be given an opportunity to respond to the application.
When will an order be made?
An order will only be made by the Commission if the Commission is satisfied that:
- the worker has been bullied at work by an individual or group of individuals; and
- there is a risk that the worker will continue to be bullied at work by the individual or group.
- The Fair Work Commission may make any order it considers appropriate (other than an order requiring a payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
Accordingly, it is important to understand that an order will never be for a financial amount to be paid to the worker. Further, the Fair Work Commission will only make an order in circumstances where:
- it is satisfied the worker has been bullied;
- there is a risk the worker will continue to be bullied; and
- the order will prevent the worker from being bullied at work by the individual or group.
- What kind of orders will be made?
The Commission can make any order it considers appropriate, save for orders for financial payment. However, in this jurisdiction, exactly what kind of orders the Fair Work Commission will make remains uncertain.
What we do know however is that in making an order, in addition to the above considerations, the Fair Work Commission must also take into account:
- the outcomes of any final or interim outcomes arising out of an investigation into the matter that is being or has been undertaken by another person or body;
- any procedure available to the worker to resolve the grievances or disputes;
- the outcomes of any final or interim outcomes arising out of any procedure available to the worker to resolve the grievances or disputes;
- any matters the Fair Work Commission considers relevant.
Take Away Message
Employers should be using this time now, before the new anti-bullying jurisdiction takes effect, to ensure they have control measures in place to reduce the risk of bullying occurring in the workplace. Further, should bullying occur, employers should have clear policies in place for investigating complaints of bullying when made (either internally or independently).
Organisations should also be training all staff about bullying in the workplace so staff can identify bullying, and if bullying occurs, how to make a compliant or what steps can be taken to resolve the complaint.
Finally, the most important take away message we can give employers is if a bullying complaint is made, it should be immediately investigated and if bullying is found to have occurred, disciplinary action should be taken.
If you require any further information regarding this alert please do not hesitate to contact us.
NB: This article was first published on HR Lawyers