2013 started unexpectedly. The Federal election was "called" nine months in advance, the Pope resigned (with notice) and the Government just announced a statutory remedy for bullying to be added to the Fair Work Act.

The announcement surprisingly comes ahead of Safe Work Australia finalising a further draft Code of Conduct on bullying, expected later in March or April 2013. Whilst no one disputes the value of eradicating bullying from the workplace, the proposed new scheme is bound to cause controversy and will be open to some misuse.

The Government announcement

The Government proposes to amend the Fair Work Act to allow employees to lodge a claim of workplace bullying with the Fair Work Commission, and the Commission is to consider the claim within 14 days and then decide how to proceed.

What is bullying?:

bullying, harassment or victimisation means repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.

But bullying does not include “reasonable” management practices.

Should the Commission find that an applicant is subject to bullying, then it can make any orders that it considers appropriate to remedy the conduct, including publication of its orders.

The existing adverse action provisions will continue to operate, and will protect an employee from adverse action because they make, or propose to make, a complaint of bullying.

So, what does this all mean?

There is little doubt that the proposal gives a genuine opportunity for those subject to bullying to seek early intervention and with appropriate protections. The ability to make a claim should have a positive effect on modifying the behaviour of bullies.

However, what is bullying is not easily or satisfactorily defined in the proposal. For example, are unreasonable, or silly, or ill-thought out management practices automatically to be categorised as bullying?

There are instances of inappropriate workplace behaviour, that might also be unreasonable management, but that does not amount to bullying. Unfortunately, there are no doubt poor managers, but they may be managers who are not also bullies. Rudeness, funny looks, being difficult or making unfavourable decisions may not amount to bullying. Bullying complaints should not be about managing poor managers or incompatible personalities.

What is bullying has a subjective element. As Dr Cotton, clinical psychologist, was recently reported in the Sydney Morning Herald as saying, bullying has become the "catchall" to categorise all sort of discontentment (see B.Williams, Bogus or not, bullying claims are costly, 25 February 2013). And that has been our experience as well.

Any scheme would need to be able to filter, at an early stage, genuine cases from misconceived or frivolous cases. To not have such checks, will expose all to great cost and inconvenience.

Proceedings alleging bullying will be complex and personal. The Fair Work Commission will need more resources to deal with such applications, a point recently made by the President of the Commission. The Commission may conduct an initial conference within 14 days but any hearing may be months away.

The complexity of such proceedings arises not only from the emotionally charged nature of the matter, but also from the fact that it is not just a claim between employee and employer. The manager, supervisor or co-worker against whom the allegation of bullying is made might have an interest to be heard in the proceedings. It could be a breach of principles of natural justice to not afford that person a chance to respond. Findings of bullying could have reputational and social consequences.

There is also considerable scope for strategic use and misuse of the provisions. Lodging a bullying complaint before disciplinary action or processes are completed may have the effect of stalling any disciplinary action pending the outcome of the complaint. Employers may be fearful of taking any disciplinary action, for fear of an adverse action claim. Will the scheme become the new device of employees to avoid the consequences of their own failures?

On top of that, how are businesses meant to adequately get on top of all this regulation, when the regulation itself is not clear? Businesses face significant challenges if the scheme becomes a repository for any workplace dissatisfaction.

Our view

There is little doubt bullying in the workplace needs to be addressed. However, a scheme which labels, by default, all inappropriate behaviour or poor management as bullying will have unintended consequences for the workplace.

In our view, a successful scheme will be defined by its rigorous definition of bullying and safeguards against misuse. The challenge, as daunting as it is, now lies in the hands of the drafters of the legislation to get it right.