Under proposed amendments to the Fair Work Act 2009 (Cth) (FW Act) introduced to Parliament on 21 March 2013, a worker who is being bullied at work will be entitled to apply to the Fair Work Commission (FWC) for an order to stop the bullying.
If a ‘stop bullying order’ is breached, the worker, a Fair Work inspector or a union can apply to the Federal Court, Federal Magistrates Court or an eligible State or Territory Court for relief.
The practical implications for employers and workplaces are wide reaching and will, if implemented, require employers more proactively to train staff, investigate, manage and mediate claims of such nature amongst staff.
In the ring: the rules of the game
The Minister for Employment and Workplace Relations has indicated that there is a desire for the proposed anti-bullying measures in the Fair Work Amendment Bill 2013 (Cth) (Bill) to commence on 1 July 2013.
Applying for a “stop bullying order”
- The proposed new provisions of the FW Act provide that a worker who reasonably believes they have been bullied at work may apply to the FWC for an order to stop bullying.
- Under the proposed new provisions, the FWC is required to start dealing with an application for an order to stop bullying within 14 days of the application being made.
Definition of ‘bullied at work’
- The term ‘bullied at work’ will be defined as ‘if, while the worker is engaged by a constitutionally-covered business, another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behavior creates a risk to health and safety’.
- The proposed new provision provides that the definition of ‘bullied at work’ does not apply to reasonable management action carried out in reasonable way.
Definition of ‘worker’
- The proposed provisions provide that the term ‘worker’ has the same meaning as in the Work Health and Safety Act 2011 (Cth)(WHS Act).
- The WHS Act adopts a broad definition of ‘worker’ to include persons who carry our work in any capacity for a ‘person conducting a business or undertaking’, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
Power of the FWC to make a ‘stop bullying order’
- Under the proposed new sections of the FW Act, if the FWC is satisfied that the worker has been bullied at work and there is a risk that the worker will continue to be bullied, the FWC may make any order it considers appropriate to prevent the worker from being bullied at work.
- Examples of orders given in the explanatory memorandum include orders requiring individuals to stop the behaviour, for an employer to monitor behaviour and for a person to comply with the employer's bullying policy.
- This can extend to removing people from within chains of reporting creating a practical nightmare for management and HR alike.
- However, the power of the FWC to make an order does not extend to ordering reinstatement of a person, the payment of compensation or a pecuniary amount.
- Under the existing section 590 of the FW Act, the FWC has the flexibility to inform itself as it considers appropriate in relation to an application.
- This may include contacting the employer or other parties to the application, conducting a conference under section 592 of the FW Act or holding a formal hearing under section 593 of the FW Act.
- This power has clear reputational risks for organisations and individuals alike.
Civil remedy provision
- Under the proposed amendments, a person to whom a “stop bullying order” applies must not contravene a term of the order. This means that if a ‘stop bullying order’ is breached, the worker, a Fair Work Inspector or a union can apply to the Federal Court, Federal Magistrates Court or an eligible State or Territory Court for relief in relation to the breach.
- Breach of an order made by the FWC will attract a maximum penalty of 60 penalty units (or up to $10,200 for an individual or $51,000 for a body corporate).
- It should be noted by employers and principals that there is discretion for such amounts to be made payable to individuals. As such it is likely that aggrieved individuals will use this as an indirect way to obtain compensation from employers or principals.
- Individuals making applications will not be limited to pursuing such steps in isolation to all other employment remedies already provided for elsewhere.
- This amendment is intended to ensure that if a worker suffers discrimination, adverse action or dismissal as a result of raising a bullying complaint, they will continue to be entitled to pursue other remedies under the FW Act or other legislation.
Implications for employers
On the one hand, it is positive for employers that the Bill expressly states that reasonable management action conducted in a reasonable manner is not bullying. However, this alone will likely be a bitterly contested and often litigated point if experience, from other jurisdictions that deal with such matters, is anything to go by.
This expanded regulatory framework will almost certainly increase the financial and opportunity cost for business.
“Arm yourself now” is the key take-home message. You can avoid such claims by:
- Educating and training your employees about what is acceptable and unacceptable behaviour and what constitutes workplace bullying;
- Implementing reporting practices if you don’t have one, or even if you do, review and publish the conduct standards in the code of conduct or policy which employees can access and be inducted in, together with refresher training;
- Taking complaints of bullying seriously and investigate promptly and properly; and
- Making the sanctions for such unacceptable conduct clear and apply them equitably and consistently. .