A worker who is bullied at work will be able to apply to the Commission for various orders including an order that the bullying stop.
It is important that employers be able to demonstrate a pro-active approach to bullying including the existence of appropriate policies which inform staff as to the required behaviours and enable the employer to quickly and appropriately respond to any complaints.
The Fair Work Act 2009 (Cth) has been amended to give the Commission power to deal with bullying complaints made by a worker. "Worker" has been broadly defined and will include an individual who performs work in any capacity including for example, an employee, contractor, subcontractor or trainee.
A person will be "bullied at work " if an individual or group repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety. Unreasonable behaviour is behaviour that a reasonable person in the same circumstances would consider unreasonable. It would include behaviour that is victimising, humiliating intimidating or threatening.
Whilst the Fair Work Act makes it clear that bullying does not include "reasonable management action carried out in a reasonable manner" (for example, reasonable performance counselling or disciplinary action), what constitutes unreasonable management action is not defined.
The Safe Work Australia's draft Model Code of Practice with respect to bullying provides some guidance and relatively defines 'unreasonable behaviour' as "behaviour that a reasonable person, having regard for the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening" . Some recognised examples of unreasonable behaviour include:
- abusive, insulting or offensive language or comments;
- unjustified criticism or complaints;
- continuously and deliberately excluding someone from workplace activities;
- withholding information that is vital for effective work performance; ? setting unreasonable timelines or constantly changing deadlines;
- setting tasks that are unreasonably below or beyond a person's skill level;
- denying access to information, supervision, consultation or resources such that it has a detriment to the worker;
- spreading misinformation or malicious rumours;
- changing work arrangements, such as rosters and leave, to deliberately inconvenience a particular worker or workers; and
- excessive scrutiny at work.
Process for complaints
The Commission must commence dealing with a bullying complaint within 14 days of the application being filed and employers will be required to file their response within 7 days of receiving the application. The Commission has indicated that it may list complaints for conference (ie, conciliation) or for hearing depending on the nature of the complaint made. These short time frames may not give employers adequate time to finalise their own investigations and will require significant effort by employers and their representatives to prepare and defend a claim within the time permitted. For this reason, it is important that employers take steps now to prepare for the introduction of these laws.
If after hearing a complaint, the Commission is satisfied that bullying has occurred and that there is a risk the bullying will continue, it can make any order it considers appropriate to prevent further bullying (other than an order requiring payment of a pecuniary amount). Such an order made in relation to bullying may lead to a $51,000 fine for a corporation or a $10,200 fine for an individual.
In considering what order/s to make, the Commission must take into account:
- the outcomes of any investigation into the matter;
- any procedures available to the worker to resolve grievances or disputes;
- the outcomes of any procedures available to the worker at the workplace; and
- any matters the Commission considers relevant.
Recommended steps for employers
In order to be well placed to defend a bullying complaint, we recommend that employers develop an anti-bullying policy that:
a) explains what bullying is and importantly, what will not amount to bullying in order to minimise misconceived claims;
b) includes a clear statement that workplace bullying will not be tolerated; and
c) provides for an internal complaint process that employees can access before making a complaint to the Commission. This may result in a complaint not being made to the Commission or where a complaint is made, will have the practidcal effect of giving employers more time to investigate and prepare their defence.
Employers should also:
- conduct training for managers and employees to explain the new laws and employee obligations;
- remain proactive by monitoring workplace behaviours and regularly assessing employees' well-being; and
- seek advice early in the event that a complaint is made so that steps can be taken to prepare a defence within the time permitted.