We’re told that workplace bullying costs Australian employers as much as $36 billion per annum. We’re not quite sure how that figure was hatched, but the Government has decided to have a shot at arresting it by amending the Fair Work Act to enable the Fair Work Commission to make "stop bullying orders".
So, how will it work? Well, it’s not entirely clear.
Under the proposed provisions, which are meant to take effect on 1 July 2013, if a worker reasonably believes he or she is being bullied, they can make an application to the FWC for an order to prevent the conduct.
What amounts to bullying? Apparently it’s where 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 that behaviour creates a risk to health and safety. Glad we cleared that up. Oh, and reasonable management action carried out in a reasonable manner is not bullying. Sound reasonable?
We know from the proposed amendments that the FWC must start to deal with an application within 14 days but whether this is done by way of an informal conference, hearing or by some other method, is left to the FWC’s complete discretion. Even though the Explanatory Memorandum to the Bill has a section entitled "Right to a fair hearing", the FWC can make a decision in the alleged bully’s absence, which sounds like a denial of procedural fairness to us.
If the FWC considers bullying has occurred, the FWC will apparently be empowered to make any order it considers appropriate to prevent the bullying other than the payment of money.
However, the real kicker is in the contravention of an anti-bullying order, carrying a maximum penalty of $51,000 for a corporation and $10,200 for an individual.
It all strikes us as another rushed and inadequately considered amendment. Whether or not it will be passed remains to be seen, but in the meantime, be nice to your fellow employees and watch this space.