The Senate Education, Employment and Workplace Relations Legislation Committee has now issued its report on the Federal government's proposed anti-bullying amendments to the Fair Work Act 2009 (Cth). It has recommended that the amendments be passed into law.
The anti-bullying amendments have been foreshadowed to come into effect on 1 July 2013, creating yet another jurisdiction in which an employer may be forced to defend a bullying complaint.
In this eBulletin, we look at how complaints of workplace bullying will operate under the Fair Work Act and what this will mean for employers.
In February 2013, the Australian Government (Government) released its response to the House of Representatives Standing Committee on Education and Employment report Workplace bullying "We just want it to stop".1 The Federal Minister for Employment and Workplace Relations, The Hon Bill Shorten MP, pledged that the Government would amend the Fair Work Act 2009 (FW Act) to allow a worker (ie an employee or an independent contractor) who has suffered bullying at work a right to seek assistance through the Fair Work Commission (FWC).
In March 2013, the Fair Work Amendment Bill 2013 (Bill) was introduced into Federal parliament and referred to the Senate Education, Employment and Workplace Relations Legislation Committee (Committee) for an inquiry and report. Over 50 submissions were received from individuals and organisations, including employer groups, unions and legal bodies.
The Committee issued its report on 14 May 20132 and recommended that the Bill be passed. The Coalition has indicated that it supports the proposed changes to the FW Act to address workplace bullying but only to the extent that a worker has sought impartial help and advice from a regulatory agency, and that the changes are expanded to include the conduct of union officials to workers and employers.3
It has been foreshowed that the Bill will be implemented on 1 July 2013.
It is almost certain that the FWC will now hear and determine bullying complaints. The Government has recently allocated in excess of $20 million to fund the program over the next four years.
It seems that the process for dealing with bullying complaints will be similar to the way the FWC currently deals with unfair dismissal claims.
If this is the case, FWC staff would probably need to be trained to assess and process the bullying applications. If there is a risk to the worker's health and safety, it will probably need to be identified. Any approach would need to be prioritised and interim orders made. Under the proposed anti-bullying provisions, the FWC would have to start to deal with the matter within 14 days after the application is made by gathering relevant information, holding a conference or conducting a hearing.
In order to pursue a complaint of bullying under the proposed Fair Work jurisdiction, there are certain conditions that must be met, including for example, the worker making the compliant must establish that he or she is a current worker of their employer who, in turn, must be a "constitutionally-covered business". In addition, the bullying must occur at work and fall within the definition of "bullying" under the amended FW Act (ie once the Bill has become law).
Importantly, "reasonable management action carried out in a reasonable manner" is expressly excluded from the definition of being "bullied at work".
At present, there is no statutory timeframe to make an application.
When determining a bullying case, it is likely that the FWC would take into account any interim or final outcomes of investigations into the matter, or any grievance or dispute resolution procedures that are available or underway.
When determining a bullying application, the FWC could consider:
- making any order it considers appropriate to stop the bullying other than a payment of a pecuniary amount such as a fine or compensation; and
- disclosing or authorising the disclosure of information acquired by the FWC during the process to other regulatory or enforcement agencies. For example, information from the FWC proceedings may be shared with workplace regulators and/or other Ombudsman bodies who may be permitted to use that information in their own investigations and proceedings.
It is important to acknowledge that bullying is a very real and insidious societal and workplace issue that must be prevented or dealt with as soon as it occurs, and many employers adopt a "zero tolerance" approach to workplace bullying.
Of course, while a number of bullying claims may have merit, employers must also be mindful of frivolous or strategic claims of alleged bullying in the workplace.
The anti-bullying amendments to the FW Act create yet another jurisdiction in which an employer may be forced to defend a bullying complaint that may also be the subject matter of concurrent proceedings elsewhere.
At present, allegations of bullying may be pursued under a variety of different laws or instruments including:
- work health and safety;
- the stalking provisions of the Victorian Crimes Act 1958;
- workers' compensation;
- common law actions for serious injury, breach of contract or negligence;
- discrimination, adverse action and unfair dismissal under the FW Act;
- equal opportunity at both State and Federal levels; and
- internal bullying and harassment, grievance and dispute resolution policies and procedures or as part of an Enterprise Agreement or Award.
Some forums that adjudicate in these jurisdictions have the power to award compensation or damages, whereas others, including those under work health and safety and criminal laws, are punitive and may order fines, convictions and/or imprisonment in extreme cases.
The above "list" also highlights that an employer may be exposed to a multiplicity of proceedings by an aggrieved worker who may simultaneously pursue a claim under these various laws, unless they are expressly prohibited from doing so under relevant legislation. Although the Fair Work jurisdiction is intended to operate in an expedient and cost-effective way, that proposition will certainly be tested in this context.
While there may be jurisdictional hurdles to prevent or limit a bullying complaint made to the FWC, the relative ease of making an application and the subjective definition of the worker's "reasonable belief" that he or she is "bullied at work" means that employers need to be vigilant and prepared to respond to a bullying complaint in that forum in a timely and appropriate manner.