In the March 2013 edition of Employment Matters, Piper Alderman reviewed the proposed amendments to the Fair Work Act 2009 (Cth) to provide the Fair Work Commission with jurisdiction to make orders to “stop” workplace bullying. Here we take another look at the measures which if passed, will commence shortly.
The proposed Part 6-4B of the Fair Work Act 2009 (Cth) (FW Act) would allow any worker (as defined in the WHS legislation) who reasonably believes that they are being bullied (which is defined in the same way as it is in the current draft of the Preventing and Responding to Workplace Bullying Code of Practice) to make an application to the Fair Work Commission (FWC). Importantly, reasonable management action carried out in a reasonable manner would not constitute bullying. The FWC will be required to deal with an application within 14 days. Penalties can be imposed up to $51,000 for corporations and $10,200 for individuals.
The 2013-14 federal budget, handed down on May 14 2013, has allocated $21.4m over four years to the anti-bullying measure, paying about $5.35m per year to the FWC.
The Coalition has stated that it is in support of the expansion of the FWC’s jurisdiction to include bullying, albeit with some changes, such as an expansion to cover union officials who bully workers or managers and a requirement that workers seek help or advice from an independent agency before making an application to the FWC.
If the Fair Work Amendment Bill is passed, the expansion of FWC’s jurisdiction will provide workers and unions with another avenue to challenge an employer’s management and practices. It may prove to be a useful tool to assist with resolving legitimate bullying claims, but it will also mean that employers will need to ensure its processes are thorough and transparent and there is a paper trail to support the action taken.
Some doubt has been raised as to whether the Fair Work Amendment Bill will be passed because both Rob Oakeshott MP and Tony Windson MP have reportedly withdrawn their support.