On 1 January 2014, a new anti-bullying jurisdiction will be conferred upon the Fair Work Commission (FWC), and workers will have access to an entirely new type of legal claim against organisations in relation to bullying. As a result, bullying claims are expected to increase and the FWC is currently preparing for 3,500 applications in its first year alone.
The new anti-bullying jurisdiction
From 1 January 2014, any worker in a constitutionally-covered business who reasonably believes that he or she has been bullied at work, and that this bullying behaviour creates a risk to health and safety, can apply to the FWC for an order to stop the bullying. Importantly, a ‘worker’ is broadly defined and includes employees, contractors, subcontractors, employees of contractors or subcontractors, labour hire employees, outworkers, apprentices, trainees, work experience students and volunteers.
Upon receipt of an application, the FWC is required to start to deal with the application within 14 days of it being made. The FWC has indicated that it may start to deal with an application by informing itself through inquiries or by requiring the provision of information from other parties (such as the respondent to the application).
After the FWC has received an application, it will serve it on the employer or principal that employs or engages the applicant and, in most cases, on the individual or group of individuals whose alleged conduct has prompted the application. The individual or group will be advised that their employer or principal has been provided with a copy of the application and will be given an opportunity to provide a response to the FWC.
Once the FWC has completed its information gathering, it will assess whether the matter should be referred to mediation or hearing for determination. The FWC has indicated that it will only propose mediation if it is appropriate having regard to the nature of the parties and the allegations made in the application.
Any applications that are not resolved at, or subject to, mediation will be heard by a FWC member for determination. If the FWC is satisfied that:
- the worker has been bullied at work by a particular individual or group; and
- there is a risk that the bullying by that individual or group will continue,
the FWC has broad powers to make orders it considers appropriate to prevent the worker from being bullied at work by that individual or group. While the FWC cannot make an order requiring reinstatement or the payment of money, the Commission is empowered to make any other order it considers appropriate to enable normal working relationships to resume.
Stop bullying orders
The FWC’s orders may be directed to:
- the employer or principal of the worker;
- the employer or principal of the alleged bully;
- the alleged bully; and/or
- co-workers or individuals who visit the workplace (for example, clients or suppliers).
Orders may require, for example, review of an employer’s workplace bullying policy; compliance with an employer’s workplace bullying policy; support and training; provision of information to workers; or regular monitoring of behaviour by an employer.
The FWC will not make a stop bullying order if:
- the worker is no longer exposed to bullying by the particular individual or group (for example, if the worker or alleged bully has resigned or been dismissed); or
- the bullying conduct complained of is actually reasonable management action carried out in a reasonable manner.
Any person who breaches an anti-bullying order is exposed to a civil penalty of up to $51,000 (for corporations) or $10,200 (for individuals) per breach.
What does this mean for your organisation?
The new anti-bullying jurisdiction will potentially increase the number of legal claims against organisations in relation to bullying, as it is expected to provide a simple and efficient way for workers to seek resolution of a workplace bullying issue.
It is essential that all organisations:
- review and refresh their policies and procedures to ensure there are appropriate mechanisms in place to eliminate or minimise the risk of workplace bullying and respond to complaints by workers;
- ensure that their performance management processes are fair and reasonable, and include appropriate documentation to evidence performance concerns;
- roll out training on bullying and other forms of inappropriate workplace behaviour for staff and managers;
- train and upskill managers and human resources professionals on undertaking internal investigations into employee grievances;
- act quickly to deal with complaints and follow up with the individuals involved; and
- proactively undertake risk assessments to identify where and how bullying may occur in your organisation and the control measures currently or proposed to be used to eliminate or minimise the risk of bullying.