In the Fair Work Amendment Bill 2013 (the Bill), the Federal Government has proposed a range of amendments to the Fair Work Act 2009 (FW Act). The one which has attracted most attention is a new right for workers to apply to the Fair Work Commission (FWC) to prevent workplace bullying. 

As the Bill is currently being examined by 2 parliamentary committees, we look at the key issues in the Government’s measures to stamp out workplace bullies.

Who may apply to FWC?

Any “worker” may apply to the FWC for an order to stop bullying.  The worker must reasonably believe they’ve been bullied in order to apply. 

A “worker” has the same meaning used under work health and safety legislation.  It means any person who carries out work for a person conducting a business or undertaking (PCBU) and includes:

  • employees of the PCBU;
  • contractors;
  • employees of a labour hire company working for the PCBU;
  • subcontractors; and
  • volunteers.  

Unlike unfair dismissal claims, an application may be made regardless of the worker’s level of earnings.  This provides a remedy for some employees who are award free and earning in excess of the current high income threshold of $123,300 per annum.  However, it appears that an anti-bullying application may not be made by a dismissed worker. 

These provisions apply to bullying at work for a business conducted by a corporation, the Commonwealth, a Commonwealth authority, a body corporate incorporated in a Territory or a business or undertaking conducted principally in a Territory or Commonwealth place. 

What is bullying?

The Bill says bullying is:

  • repeated unreasonable behaviour by one or more individuals towards an employee (or a group to which the employee belongs); where
  • such behaviour creates a risk to health and safety. 

A single instance of what might be considered an act of bullying will not enable an application to be made.  However, it is likely that the FWC will see threats of bullying as actual bullying for which relief may be sought.

The Bill says that “reasonable management action carried out in a reasonable manner” is not bullying.  The Government says its intention is not to stop employers from allocating work or providing fair and constructive feedback on a worker’s performance.  It’s likely that the limits of what is and is not "reasonable management action" will be quickly tested if the Bill becomes law. 

Powers of the FWC

The FWC will be required to deal with a bullying application within 14 days of it being filed.  A filing fee may apply. The FWC will have the discretion to make orders to prevent bullying if it's satisfied that:

  • the worker has been bullied at work by an individual or individuals; and
  • there’s a risk that the worker will continue to be bullied at work.  

The FWC may then make orders it considers appropriate, other than monetary orders which are expressly excluded under the Bill.  The Government’s examples of orders the FWC might make are:

  • ordering that specified behaviour must stop;
  • requiring the employer to undertake regular monitoring of behaviour at a workplace;
  • directing compliance with an employer’s policy regarding workplace bullying;
  • requiring the employer to provide information, training and support to workers; and
  • ordering a review of an applicable workplace bullying policy.  

It will be interesting to see whether the FWC is prepared to make orders preventing the dismissal of a worker in circumstances where, for example the FWC finds that performance management by an employer is unreasonable.  The risk for employers is that some workers may be tempted to make an application as a leverage against their employer where performance management is underway.

If a worker is dismissed after making an application, it is unclear what, if any orders will be made by the FWC.  As the FWC may only make orders to prevent bullying, there will be no scope for the FWC to order reinstatement of a worker dismissed in circumstances involving bullying. In such circumstances, the worker’s options may include an unfair dismissal or adverse action claim.

The Bill is not clear who the FWC may make any orders against, whether it’s the person’s employer (or principal in the case of contractors) or co-worker involved in carrying out the bullying.  The Government’s commentary says employers, co-workers and visitors to a workplace may be the subject of orders by the FWC to stop bullying.

Can monetary orders be made?

The breach of an anti-bullying order by the FWC is a civil remedy provision under the FW Act.  A court may fine a corporation up to $51,000 and an individual up to $10,200 for breach of a civil remedy provision.  A person affected by the breach (such as the worker in the FWC proceedings) a trade union or an inspector may apply for the fine to be imposed. 

At present under the FW Act, a federal court may award compensation or reinstatement of a person where a civil remedy provision has been breached.  Although this is not addressed by the Government in its commentary, it seems that these remedies will be available where there has been a civil penalty provision breach arising from the breach of an anti-bullying order by the FWC.

What this may mean for your business

If the Bill becomes law, employers and others against whom an application may be made will need to act quickly if they receive an application.  The FWC will be acting quickly in order to meets its obligation of dealing with matters within 14 days.

The Bill will provide workers with access to a forum within a short time frame to address instances of workplace bullying.  In our view, it will also provide some workers with the potential to disrupt performance management processes by claiming that their employer and in particular specified managers who could be the subject of an application themselves are not conducting the process in a reasonable manner.  This may inevitably invite closer scrutiny of these processes by the FWC. 

We predict that employers will need to carefully review their bullying and any performance management policies.  At a minimum, policies will need to relate to employees and other types of workers who are eligible to make an application to the FWC.  Greater transparency and mechanisms to safeguard procedural fairness may also be needed in policies to help demonstrate that compliance with such policies involve reasonable management actions.