Introduction

On 21 March 2013 the Fair Work Amendment Bill 2013 (the Bill) was introduced into Federal Parliament for consideration and debate.  While the Bill contains a number of changes to the Fair Work Act 2009 (Cth) (FW Act), one of the most controversial amendments is the introduction of new anti-bullying measures.

Schedule 3 of the Bill proposes the introduction of a new Part 6-4B (sections 789FA – 789FH) to the FW Act to allow employees and others who believe they have been subjected to workplace bullying to have their grievance heard in the Fair Work Commission (the FWC). 

This proposed amendment will be a significant addition to the statutory regime1 that currently deals with bullying in Australia. For the first time, bullying will expressly be brought within the jurisdiction of the industrial umpire. Previously, bullying could only be raised as an example of conduct that may breach adverse action provisions within the FW Act or unfair dismissal laws.

Background to anti-bullying amendments

The Bill follows a report by the House of Representatives Standing Committee on Education and Employment into workplace bullying. The Workplace Bullying “We just want it to stop” Report (the Report) recommended that arrangements be put in place for individuals to seek remedies, through a legal dispute resolution process, if they believe they have been subjected to workplace bullying. The Federal Government’s response to the Report, tabled on 12 February 2013, supported this recommendation and foreshadowed the amendments introduced in the Bill.

Key aspects of the Bill

The key aspect of the Bill is the right of a worker who reasonably believes they have been bullied at work to apply to the FWC for an order to stop the bullying (under the proposed section 789FC(1)).

Who can make an application?

Importantly, the Bill proposes that the right to apply to the FWC will be provided to “workers”, a significantly broader concept than “employee”.2

The definition of “worker” is taken from the Work Health and Safety Act 2011 (Cth)3 (the WHS Act) and extends to any person who carries out work in any capacity for a person conducting a business or undertaking.  This will include employees, contractors and subcontractors, volunteers, apprentices, trainees and work experience students.  In addition, there are other people who are deemed workers for the purposes of the WHS Act, including Commonwealth statutory office holders.

Therefore, employers should be aware that applications can be made in relation to their workplace by people other than employees.

When will a worker be considered to have been bullied at work?

The Bill, if passed, will include a codified definition of workplace bullying in a new section 789FD(1) of the FW Act.  This section will provide that a worker is bullied at work if an individual or group of individuals exhibit “repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety’.”

In light of this definition, a worker will not be considered to have been bullied in circumstances where the conduct has only occurred once.  However, single instances of unreasonable behaviour may give rise to other rights (such as rights under the general protections provisions of the FW Act), depending upon the reason for the conduct.

The proposed definition of ‘workplace bullying’ does not include reasonable management practices such as reasonable performance management. However, it is not clear who will need to prove that the management activities were unreasonable – the employer or the complainant?

It is clear that the Commission will need to decide the issue of whether a complaint of bullying is substantiated or whether the complaint arises from reasonable performance management or management of misconduct.  This will be a potential hurdle for employers.

How will the FWC deal with a bullying application?

The proposed reforms will require the FWC to deal with an employee’s application within 14 days as a matter of priority (for example, by listing it for conference or hearing or inviting submissions from the parties). 

In dealing with the application, under the proposed new section 789FF, where the FWC is satisfied the worker has been bullied at work and there is a risk that this will continue, the FWC will have the power to make any order it considers appropriate to prevent the worker from being bullied.  However, these orders cannot require the payment of a monetary amount.

The making of an order by the FWC under these proposed provisions will not prevent a proceeding being commenced under the WHS Act for a breach of that Act (under the proposed new section 789FH).

Further, failure to comply with an order of the FWC made under section 789FF can result in the contravening party being ordered to pay a civil penalty.

Critical issues for employers

As outlined above, management of workers which is conducted reasonably will not be considered workplace bullying.  However, just because a worker is being reasonably managed will not prevent that worker from bringing a bullying application – the reasonableness or otherwise of the management by the employer will be reviewed in order to determine whether bullying has occurred. 

We recommend that employers review their processes and procedures for managing performance, conduct and complaints in order to ensure that steps taken demonstrate the reasonableness of management action.

If the Bill becomes law, it will be even more important for employers to document a range of performance and conduct discussions and decisions – not just in relation to formal warnings and termination of employment.  Additionally, employers should appropriately address complaints, particularly complaints of bullying, when they are made by employees and other workers.

At present, there is a lack of detail in the proposed amendments as to who will be parties to a bullying dispute if the alleged bully is not the employer.  It is unclear whether, in those circumstances, an employer will be able to make submissions as an interested or affected party, particularly if orders made by the FWC will impact on the way in which the employer deals with its workers.  These issues may be addressed in amendments to the Bill.

Further, the making of a bullying complaint to the FWC will likely be the exercise of a ‘workplace right’ by an employee for the purposes of the adverse action provisions of the FW Act.  The interplay between these two issues has not been addressed in the Bill and it therefore appears possible for an employee to bring both an adverse action application and bullying application concurrently.

Moving forward

The Bill is still at the early stages of consideration by the Federal Parliament and will possibly be amended before it is passed.  Employers should remain alert as to the passage of these amendments.