On 27 June 2013, the Fair Work Amendment Bill 2013 passed both Houses of Parliament. Commencing 1 January 2014, the Fair Work Amendment Act 2013 will come into force. The changes which amend the Fair Work Act 2009 provide workers who are being bullied at work with the right to apply directly to the Fair Work Commission (the Commission) to stop the bullying.
From 1 January 2014, a worker who is being ‘bullied at work’ or believes they have been bullied at work will be able to apply directly to the Commission for an order to stop the bullying.
What sorts of businesses or organisations are covered by the new legislation?
Compliance with the new legislation will extend to all companies and other organisations which are ‘constitutionally-covered’ includingthe Commonwealth, a Commonwealth authority or a body corporate established for a public purpose by or under a law of the Commonwealth or in which the Commonwealth has a controlling interest. The Act also captures not for profit organisations.
Who is protected by the new Act?
Employers should note that the definition of 'worker' under this Act is very wide and includes an employee, contractor or subcontractor; an employee of a contractor or subcontractor; an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; an apprentice or trainee; a student gaining work experience; a volunteer; or a person of a prescribed class.
What constitutes bullying?
A worker is bullied at work if an individual or a group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour causes a risk to health and safety.
Repeated behaviour refers to the persistent nature of behaviour and can refer to a range of behaviours over time. ‘Unreasonable’ behaviour is an objective test – i.e. it is behaviour that a reasonable person having regard to the circumstances may see as unreasonable.
The definition of bullying includes behaviour that is victimising, intimidating, humiliating or threatening.
Balancing the need for employers to manage staff, reasonable management action carried out in a reasonable manner will not constitute bullying. Providing fair and constructive feedback on a worker’s performance will not be considered bullying under the Act.
Time is “of the essence”
Under the new provisions, a worker can bypass his or her employer and lodge a claim directly with the Commission. The Commission is required to deal with an application within 14 days after the application is made. The time limits will mean an employer will have very little time to investigate, assess, and respond to a claim.
If the Commission is satisfied that:
- the worker has been bullied at work by an individual or a group of individuals; and
- there is a risk that the worker will continue to be bullied at work by the individual or group,
it may make any order it considers appropriate to prevent the worker from being bullied at work by the individual or group.
An example of the sorts of orders the Commission may make include:
- regular monitoring of behaviours by an employer;
- compliance with the employer’s workplace bullying policy;
- provision of information by the employer;
- additional training to employees; and
- amendment of the employer’s workplace bullying policy.
It is also important to note that a worker who makes an application to the Fair Work Commission is not prevented from taking action under workplace health and safety legislation or pursing remedies under the Fair Work Act.
Six things you, as an employer, need to do
Given these new rights for workers and the new timeframes, employers are well advised to ensure that you are fully prepared for the new legislation to take effect by following these six steps:
- Ensure you are fully aware of the anti-bullying obligations which take effect on 1 January 2014.
- Prepare and to consider how your organisation can minimise the risk of an employee making claim directly to the Commission.
- Review and if necessary update your organisation’s bullying policy to ensure it adequately deals with the new provisions of the Act. Make sure to check things such as the definition of what constitutes unlawful workplace bullying and set out for all employees, expected standards of behaviour.
- Ensure all employees have a copy of the policy or at least know where and how to access the policy.
- Ensure that appropriate systems are in place to prevent bullying in the workplace and that there are processes in place to respond to any allegations, remembering too that time will be of the essence in any dealings with the Commission. Note that an organisation’s internal systems for resolving bullying complaints will come under close scrutiny by the Commission.
- Train employees prior to 1 January 2014 in your organisation’s policy and processes for dealing with bullying complaints.