The Federal Government has introduced significant amendments to the Fair Work Act 2009 (Cth) including new powers for the Fair Work Commission to stop workplace bullying and new rules regulating flexible work arrangements, union right of entry and roster changes.
The Fair Work Amendment Bill 2013 (“Bill”) is the second tranche of the Government’s response to the recommendations of the Fair Work Act Review Panel from 2012 and its response to the House of Representatives Standing Committee on Education and Employment’s report “’Workplace Bullying’ We just want it to stop”.
The proposed amendments will have implications for all employers. We have outlined the main changes below.
New bullying remedy
The Bill provides for a “worker”, who reasonably believes they have been bullied at work, to apply to the Fair Work Commission (“Commission”) for an order to stop the bullying.
“Worker” is defined broadly, using the definition of “worker” under the Work Health and Safety Act 2011 (“WHS Act”). This includes an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or volunteer.
The Bill defines bullying as a situation where a “worker” is subjected to repeated unreasonable behaviour at work by an individual or group of individuals and that behaviour creates a risk to health and safety. In these circumstances the worker may apply to the Commission for an order to stop the bullying. The Bill also specifies that “reasonable management action carried out in a reasonable manner” is not bullying.
The key aspects of the Commission’s procedures and powers are as follows:
The Commission must start dealing with an application to stop bullying within 14 days of the application being made.
The steps the Commission may take include contacting the employer or other involved parties to obtain information, conducting a conference or a formal hearing. The Commission may also refer the matter to a Work Health and Safety Regulator and disclose information it has obtained to such regulator.
Scope of orders
The Commission has the power to make any order it considers appropriate (other than an order for payment of a pecuniary amount) to prevent the worker from being bullied at work. The Explanatory Memorandum to the Bill provides the following examples of orders the Commission may make:
- the individual or group of individuals involved stop the specified behaviour;
- regular monitoring of behaviours by an employer;
- compliance with an employer’s workplace bullying policy;
- the provision of information and additional support and training to workers;
- a review of the employer’s workplace bullying policy.
The EM also notes that orders will not necessarily be limited to employers but could also apply to co-workers and visitors to the workplace. The orders could also be based on behaviour such as threats made outside the workplace if the threats relate to work.
Matters for the Commission to consider
Before making an order, the Commission must be 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.
In considering the terms of an order, the Commission must take into account:
- any procedure available to the worker to resolve grievances and disputes;
- any final or interim outcomes arising from an investigation into the matter that is being, or has been, undertaken by another person or body; or
- any procedure available to the worker to resolve grievances or disputes; and
- any other matters the Commission considers relevant.
Sanctions for non-compliance
Contravention of an order made by the Commission is a civil penalty offence. Any person affected by the contravention, an industrial association or an inspector may apply to the courts for a penalty to be imposed.
Implications for employers
This new avenue of complaint for employees will potentially have very significant implications for employers. There has been a dramatic increase in workplace bullying complaints and grievances in recent times which often arise in the context of performance management or other situations where there are points of difference between employees and their managers/supervisors. Employers have already been subject to increased scrutiny by workplace safety regulators in response to complaints made by individual employees which have resulted in investigations and improvement notices being issued. The Commission will now provide a further level of redress which will be easily accessible by employees.
Given the matters the Commission is required to consider in making an order and the types of orders it may make it will be critical for employers to:
- quickly and objectively respond to bullying complaints;
- have a formal workplace bullying policy in place;
- have effective complaint handling and investigation procedures in place;
- ensure staff are adequately trained in handling investigations and complaints;
- be able to demonstrate that applicable policies and investigation procedures have been followed,
to reduce the prospect of the Commission finding it necessary to intervene and make orders in response to a complaint.
The Bill also makes a number of other amendments to the Act as follows.
Family friendly measures
The Bill introduces a number of ‘family friendly measures’. These include:
- expanding the right for pregnant women to transfer to a safe job;
- increasing the concurrent parental leave period to 8 weeks;
- providing that any period of special maternity leave taken will not reduce the employee’s unpaid parental leave period;
- extending the right to request flexible working arrangements to (amongst others) employees with disabilities, who have caring responsibilities, who are 55 years of age or older or who are experiencing domestic violence from a family member.
Guidance on “reasonable business grounds”
The Bill also introduces a non-exhaustive definition of “reasonable business grounds” for employers considering whether to grant an employee’s request for flexible working arrangements. These include:
- that the new working arrangements requested would be too costly for the employer;
- that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;
- that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;
- that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity;
- that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
Changes to normal roster arrangements
The Bill also introduces consultation requirements in respect of changes to rosters or work hours under modern awards and enterprise agreements. This includes a new mandatory consultation clause to be included in enterprise agreements on this topic.
In response to the current high profile debate on penalty rates the Bill introduces a change to the modern awards objective, requiring the Commission to ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions taking into account (amongst other things) the need to provide additional remuneration for employees working overtime, employees working unsocial, irregular or unpredictable hours, employees working on weekends or public holidays or working shifts.
Right of entry
The Bill also amends the “right of entry” provisions under the Act in a number of ways. Amongst other things, the amendments provide for:
- the Commission to deal with disputes in respect of the frequency of visits to premises for discussion purposes; and
- interviews and discussions to be held in a room agreed between a permit holder and occupier. If no agreement is reached, the permit holder may conduct the interview or hold the discussions in any room or area in which one or more of the persons who may be interviewed or participate in discussions ordinarily take their meal or other breaks which is provided by the occupier for taking such meal or breaks. Permit holders must also comply with any reasonable request by the occupier of the premises to take a particular route to reach such a room or area of the premises.
The changes to the “right of entry” provisions also provide for accommodation and transport arrangements in remote areas between occupiers and permit holders. The Commission will have the power to deal with disputes regarding such arrangements and the conduct of the permit holder while being accommodated or transported under such arrangements.
The changes in the Bill will have a significant day to day impact for employers. These are important developments and we will keep you informed of the progress of the legislation.